text:
    Cindy PRILL, as administratrix of the estate of Michael David Prill, deceased v. Sean W. MARRONE et al.
    1050332.
    Supreme Court of Alabama.
    Feb. 20, 2009.
    Rehearing Denied May 8, 2009.

      Ronald R. Crook of Smith & Alspaugh, P.C., Birmingham; and Dennis Harmon, Columbus, Mississippi, for appellant.

      William J. Donald III of Donald, Randall & Donald, Tuscaloosa, for appellees Sean W. Marrone and John Marrone.
    Wilbor J. Hust, Jr., of Zeanah, Hust, Summerford & Williamson, Tuscaloosa, for appellee Justin M. Beams.
   PER CURIAM.

Cindy Prill, as the administratrix of the estate of Michael David Prill, her deceased son, appeals from a summary judgment entered in favor of Sean Marrone (“Sean”), John Marrone (“Mr. Marrone”), and Justin R. Beams in Ms. Prill’s wrongful-death and negligent-entrustment action against them.

Procedural History

On July 15, 2004, Ms. Prill sued Justin, Sean, and Mr. Marrone, alleging wrongful death against Justin and Sean and negligent entrustment against Mr. Marrone. Ms. Prill also sought to hold Sean and Justin civilly liable for Michael’s death on a conspiracy theory. Mr. Marrone is Sean’s father. Sean and Mr. Marrone filed a motion to dismiss the complaint for failure to state a claim upon which relief could be granted, which the trial court denied. Separately, Justin filed a motion to dismiss for failure to state a claim upon which relief could be granted, which the trial court also denied.

On August 17, 2004, Sean and Mr. Mar-rone filed their answer to Ms. Prill’s complaint, denying the material allegations of the complaint and pleading the affirmative defenses of contributory negligence and assumption of the risk. On August 2, 2005, Justin filed a motion for a summary judgment. On August 8, 2005, Sean and Mr. Marrone filed a motion for a summary judgment. On November 8, 2005, the trial court granted the motions for a summary judgment. Ms. Prill appealed.

Facts

This case is based on the events that led to Michael’s death from a single gunshot wound to the head, which was inflicted by a .38 Special Smith & Wesson brand handgun owned by Mr. Marrone. Michael was 20 years old at the time of his death; Sean and Justin were 17 years old.

On July 21, 2002, Sean entered Mr. Mar-rone’s bedroom closet, while Mr. Marrone was asleep in the bedroom, and removed four guns, including the .38 handgun that later killed Michael and a .45-caliber Glock brand handgun, and some ammunition from a closet. Sean did not have Mr. Marrone’s permission to remove any guns from the closet. Mr. Marrone testified that neither the closet nor the guns in the closet were secured with locks.

On at least one prior occasion, Sean had removed a gun from his father’s closet without permission. On that occasion, Mr. Marrone warned Sean not ever again to remove any guns from the closet, and it appears that Mr. Marrone grounded Sean for having done so on that occasion. This incident happened at least six months before the events here.

Shortly after Sean removed the guns from his father’s closet, Justin arrived at Sean’s house. Sean and Justin placed the guns and ammunition in Justin’s vehicle and then drove to Michael’s mobile home to “go shooting” with him. Two days before this event, Sean, Justin, and Michael had gathered at Michael’s mobile home and shot a shotgun that belonged to Michael.

Upon arriving at Michael’s mobile home, Sean placed the .38 handgun and some bullets for it in the front pocket of his pants, and Justin concealed the Glock in his hand. They knocked on the front door of the mobile home at around 3:30 p.m., and Ms. Prill allowed Sean and Justin to enter the mobile home. Ms. Prill did not know that they brought guns into her house until after the shooting. Also present in the mobile home were Michael and Ms. Prill’s boyfriend, Lance Smelley. Smelley was asleep in the master bedroom when Sean and Justin arrived.

After Sean and Justin woke Michael from a nap, Sean, Justin, and Michael went into the dining room of the mobile home and played a game with the .38 handgun, which was unloaded. The game consisted of each of the boys taking turns placing the gun in his “wallet” and then pulling the gun out of his wallet and acting like he was robbing a store. Ms. Prill, who was in another room, asked the boys to quiet down. The boys then returned to Michael’s bedroom.

After returning to Michael’s bedroom, all three boys took turns handling the .38 handgun. Each boy would take a turn putting a bullet into one chamber of the handgun, spin the cylinder, and close the cylinder to see where the bullet had landed. These actions were meant to imitate Russian roulette, but the boys did not point the .38 handgun at anyone, including themselves.

At some point, Sean began loading bullets into all but one of the chambers of the .38 handgun and spinning the cylinder to see where the empty chamber would land. While Sean was doing this, Ms. Prill knocked on the bedroom door. Before Ms. Prill entered the bedroom, Sean laid the loaded gun beside Michael, who was lying on his bed. Ms. Prill stuck her head in the bedroom door and asked Michael if he had a piece of paper with a neighbor’s telephone number on it. Michael responded that he did not have the piece of paper, so Ms. Prill left the room. According to Sean, shortly after Ms. Prill left the room, Michael, who was left-handed, picked up the .38 handgun with his right hand and said, “[L]et’s play Russian roulette.” Michael immediately pointed the gun at his head and pulled the trigger. The gun fired once, and a bullet struck Michael in his right temple, killing him.

Justin testified that he was walking out of the bedroom door when the gun was fired. Justin said that he turned around and saw Sean standing near the foot of the bed where he had been sitting moments before. Ms. Prill testified that only 15 or 20 seconds elapsed from the time she left Michael’s bedroom until she heard the shot. Ms. Prill further testified that it did not occur to her that anything odd or unusual was going on in the bedroom when she spoke to Michael. Justin and Sean agreed that Michael did not know that the gun was loaded before he picked it up, placed it to the right side of his head, and pulled the trigger.

Dr. William Shores, a forensic pathologist for the Alabama Department of Forensic Sciences, performed an autopsy on Michael. Dr. Shores testified that he could not determine whether the gun was fired by Michael or by someone else.

Justin testified that Michael had said that he had played Russian roulette before, but Justin did not believe him. According to Justin, Michael was reckless and seemed always to be depressed. Justin further testified that Michael had wrecked his sister’s automobile because he was upset and he said that he had wanted to kill himself. Sean testified that, at some time before the day Michael died, Sean had asked Michael if he would ever play Russian roulette and he responded that he would play.

Ms. Prill acknowledged that she did not have any personal knowledge that either Sean or Justin had handled the gun that caused Michael’s death or that either Sean or Justin had coerced or tricked Michael into handling the gun or pulling the trigger himself. Ms. Prill testified that she had no knowledge, personal or otherwise, as to who actually pulled the trigger.

Ms. Prill described Michael as a kindhearted, fun-loving person, who loved to make people smile. Ms. Prill testified that Michael was “doing okay” psychologically around the time of the shooting, that he had never had any psychological treatment or counseling, and that she had never known him to express any suicidal thoughts or to have any suicidal tendencies. Ms. Prill further testified that Michael had gone through “some typical teenage stuff with girls breaking up with him” but nothing that caused her great concern. Ms. Prill indicated that Michael was very responsible with guns, and she testified that he had taken a hunter’s safety course.

Standard of Review

“This Court’s review of a summary judgment is de novo.

“ ‘In reviewing the disposition of a motion for summary judgment, “we utilize the same standard as the trial court in determining whether the evidence before [it] made out a genuine issue of material fact,” Bussey v. John Deere Co., 581 So.2d 860, 862 (Ala.1988), and whether the movant was “entitled to a judgment as a matter of law.” Wright v. Wright, 654 So.2d 542 (Ala.1995); Rule 56(c), Ala. R. Civ. P. When the movant makes a prima facie showing that there is no genuine issue of material fact, the burden shifts to the nonmovant to present substantial evidence creating such an issue. Bass v. SouthTrust Bank of Baldwin County, 538 So.2d 794, 797-98 (Ala.1989). Evidence is “substantial” if it is of “such weight and quality that fair-minded persons in the exercise of impartial judgment can reasonably infer the existence of the fact sought to be proved.” Wright, 654 So.2d at 543 (quoting West v. Founders Life Assurance Co. of Florida, 547 So.2d 870, 871 (Ala.1989)). Our review is further subject to the caveat that this Court must review the record in a light most favorable to the nonmovant and must resolve all reasonable doubts against the movant. Wilma Corp. v. Fleming Foods of Alabama, Inc., 613 So.2d 359 (Ala.1993) [overruled on other grounds, Bruce v. Cole, 854 So.2d 47 (Ala.2003) ]; Hammers v. Balfour Guthrie, Inc., 564 So.2d 412, 413 (Ala.1990).’ ”

Pittman v. United Toll Sys., LLC, 882 So.2d 842, 844 (Ala.2003) (quoting Hobson v. American Cast Iron Pipe Co., 690 So.2d 341, 344 (Ala.1997)).

Issues and Analysis

First, Ms. Prill asserts that she presented substantial evidence indicating that Justin’s and Sean’s negligence caused Michael’s death. Specifically, Ms. Prill alleges that Sean and/or Justin negligently concealed handguns on their person and brought the guns into her house, in violation of § 13A-11-73, Ala.Code 1975, and that they negligently handled the guns. In their motions for a summary judgment, Justin, Sean, and Mr. Marrone argued that, as a matter of law, Justin’s and Sean’s allegedly negligent conduct was not the proximate cause of Michael’s death because, they said, Michael’s unforeseen actions intervened and were the superseding cause of the injury.

“The elements of a negligence claim are a duty, a breach of that duty, causation, and damage.” Armstrong Bus. Servs., Inc. v. AmSouth Bank, 817 So.2d 665, 679 (Ala.2001). “It is settled law in Alabama that even if one negligently creates a dangerous condition, he or she is not responsible for injury that results from the intervention of another cause, if at the time of the original negligence, the intervening cause cannot reasonably be foreseen.” Sims v. Crates, 789 So.2d 220, 224 (Ala.2000) (citing Gilmore v. Shell Oil Co., 613 So.2d 1272 (Ala.1993)). “In such cases, we have held that the defendant’s negligence is not the ‘proximate cause’ of the plaintiffs injury, and, therefore, that the defendant is not liable.” Gilmore, 613 So.2d at 1275. “Such an unforeseen agency, which breaks the chain of causation that otherwise might have linked the defendant’s negligence to the plaintiffs injury, has been referred to as an ‘intervening efficient cause.’ ” Id. “In order for conduct to be considered an intervening efficient cause, it must (1) occur after the defendant’s negligent act, (2) be unforeseeable to the defendant at the time he acts, and (3) be sufficient to be the sole cause-in-fact of the plaintiffs injury.” Id.

“In Gilmore, an employee at a gasoline station/convenience store kept a loaded handgun on a shelf beneath the counter in the store. The plaintiffs son, Michael Gilmore, was a friend of another employee. On the day he died, Michael had gone to the store to visit his friend. The employee who owned the handgun testified that on that day, he had inadvertently left the handgun on the shelf beneath the counter. Michael went behind the counter to make a telephone call; while there, he took the handgun from underneath the counter. His friend testified that Michael ‘opened the chamber of the handgun and removed all the bullets. Michael then replaced one of the bullets, closed the chamber, put the handgun to his head, and pulled the trigger.’ 613 So.2d at 1274. The shot killed Michael. This Court held that his conduct was an efficient intervening cause that negated any liability of the defendants for any negligence on their part in leaving the handgun on the shelf.
“ ‘The death of Michael Gilmore is also an unexplainable tragedy. We do not understand, nor do we attempt to rationalize, his deliberate and destructive final act. However, we recognize that such acts are not the ordinary and naturally flowing consequences of the defendants’ negligent conduct in leaving the handgun under the cashier’s counter where it was accessible to those persons who might find themselves behind the cashier’s counter. What relieves the defendants of any liability for Michael’s death is that Michael, by his own hands, acted intentionally and deliberately in a manner that was calculated to result in his own death.’
“[613 So.2d] at 1278.”

Sims, 789 So.2d at 224-25.

In Sims, the father of a teenager who shot himself while attending a party at the home of a friend’s stepfather brought a wrongful-death action against the stepfather and the friend, alleging that the teenager’s death was the proximate result of negligent, willful, or wanton acts on their part. The stepfather kept handguns in his bedroom in an unlocked cabinet that was built into the headboard of his bed. However, all the handguns were stored unloaded, and the ammunition was kept in a separate locked cabinet. The teenager obtained a .357 handgun from the cabinet, but he obtained ammunition for the handgun from another teenager who attended the party and not from the stepfather’s locked cabinet. The teenager was taking cartridges in and out of the chamber of the handgun and spinning the chamber around. Some girls told him to stop playing with the gun. The teenager stated that he could not die, put the gun to his head, and pulled the trigger, but nothing happened. One of the girls left to get someone who would take the gun away from the teenager, but while she was gone he again put the gun to his head and pulled the trigger. The gun discharged, killing the teenager. Sims, 789 So.2d at 222-23. This Court held that the teenager’s own actions were sufficient to break any chain of causation between the stepfather’s actions and the teenager’s death. 789 So.2d at 224.

Likewise, in the present case, Michael’s own negligent and unforeseeable actions were sufficient to break any chain of causation between Justin’s and Sean’s actions and Michael’s death. Michael intentionally and suddenly picked up the .38 handgun, pointed it at his head, and pulled the trigger. There is no evidence indicating that Justin or Sean coerced or tricked Michael into handling the gun or pulling the trigger or that they could foresee that Michael was about to take these actions. At the time of the shooting, the three friends had been playing for approximately an hour without incident, there had been no discussion of suicide, and they had not actually played Russian roulette or pointed the gun at anyone or at themselves. Justin and Michael had simply gathered at Michael’s house to “go shooting” with him, as they had done two days earlier.

Furthermore, the fact that Michael may not have known that the gun was loaded is irrelevant. Ms. Prill testified that Michael, who was 20 years old, had taken a hunter’s safety course, and there was evidence indicating that Michael had some familiarity with guns. As the United States Court of Appeals for the Sixth Circuit has stated: “Any gun safety course teaches and any reasonable gun user should know that no gun, loaded or unloaded, should ever be pointed at [a] human, much less pointed and mockingly fired.” Davis v. McCourt, 226 F.3d 506, 512 (6th Cir.2000). Therefore, even if Sean and/or Justin negligently created a dangerous condition with their actions, they are not responsible for Michael’s death, which resulted from the intervention of his unforeseeable conduct. Michael’s actions were unforeseeable as a matter of law and were the proximate cause of his death.

Ms. Prill next argues, as an exception to the general rule that suicide is an intervening cause that serves to break all causal connections between the alleged negligent acts and the death, that, assuming Michael committed suicide, Justin and Sean “created an uncontrollable impulse in Michael which led to suicide or caused a mental condition which resulted in his suicide.” (Ms. Prill’s brief, at 30.) In Vinson v. Clarke County, Alabama, 10 F.Supp.2d 1282, 1303-04 (S.D.Ala.1998), the court stated:

“Under Alabama law, suicide generally functions as an efficient intervening cause which serves to break all causal connections between the alleged wrongful or negligent acts and the death at issue. See Gilmore v. Shell Oil Co., 613 So.2d 1272, 1275-76 (Ala.1993). Consequently, a defendant cannot be found liable for the suicide of another unless ‘the relationship between a decedent and a defendant is such that we expect the defendant to take reasonable steps to protect the decedent from deliberate and self-destructive injury.’ Id. at 1278.”

Furthermore, the court noted that “the Alabama Supreme Court has indicated that liability for suicide might result in one other circumstance, namely where a defendant created an uncontrollable impulse in another which led to suicide, see Gilmore, 613 So.2d at 1276 .... ” Vinson, 10 F.Supp.2d at 1304. Finally, the court recognized that “[w]here there is neither a custodial relationship which would indicate the foreseeability of suicide, or a claim of irresistible impulse, Alabama law provides that ‘suicide ... is unforeseeable as a matter of law, and civil liability will not be imposed upon a defendant for a decedent’s suicide.’ ” 10 F.Supp.2d at 1304 n. 21 (quoting Gilmore, 613 So.2d at 1278).

This Court has not elaborated on what type of conduct by a defendant might cause a victim to experience an “uncontrollable impulse,” so that the act of suicide is considered to be the last link in the chain of causation from the defendant’s alleged wrongful act to the suicide and, thus, the defendant’s act is the proximate cause of death. However, other jurisdictions have explained that an “uncontrollable impulse” consists of “a delirium, frenzy or rage, during which the deceased commits suicide ‘without conscious volition to produce death.’ ” McMahon v. St. Croix Falls School Dist., 228 Wis.2d 215, 225, 596 N.W.2d 875, 880 (Wis.Ct.App.1999) (quoting Bogust v. Iverson, 10 Wis.2d 129, 138, 102 N.W.2d 228, 232 (1960)); see also Restatement (Second) of Torts § 455 (1965) (actor liable if actor’s negligent conduct causes another’s insanity, making it impossible for the other to resist an impulse caused by her insanity). The key to finding an “uncontrollable impulse” is finding that “the defendant actually causes the suicide.” McMahon, 228 Wis.2d at 225, 596 N.W.2d at 880.

In the present case, Ms. Prill has not presented any evidence indicating that Justin or Sean caused Michael to enter a “delirium, frenzy or rage” during which he committed suicide. In fact, Ms. Prill did not present any expert or circumstantial evidence of Michael’s state of mind at the moment he shot himself. Ms. Prill testified that she talked to Michael seconds before he shot himself and that at that time it did not occur to her that anything odd or unusual was going on. There is no evidence indicating that Justin’s or Sean’s conduct caused Michael to surrender his own free will. All the evidence presented to the trial court leads to the conclusion that, with conscious volition, Michael recklessly and without warning picked up the gun, pointed it at his head, and pulled the trigger. Ms. Prill failed to present substantial evidence indicating that Justin and/or Sean created an uncontrollable impulse in Michael that led to his suicide. Therefore, Ms. Prill has failed to present substantial evidence creating a genuine issue of material fact in response to the properly supported summary-judgment motions, and, thus, the summary judgment in favor of Justin and Sean on her wrongful-death claim is affirmed.

Next, Ms. Prill alleges that she presented substantial evidence to support her claim of negligent entrustment against Mr. Marrone. “ ‘The essential ingredients of a cause of action for negligent entrustment are: (1) an entrustment; (2) to an incompetent; (3) with knowledge that he is incompetent; (4) proximate cause; and (5) damages.’ ” Halford v. Alamo Rent-A-Car, LLC, 921 So.2d 409, 412 (Ala.2005) (quoting Mason v. New, 475 So.2d 854, 856 (Ala.1985) (emphasis omitted)). Mr. Mar-rone responds that he is not liable under the theory of negligent entrustment because, he says, he did not entrust the .38 handgun to Sean.

This Court has not specifically defined the element of entrustment in the context of a claim that alleges the negligent en-trustment of a gun. However, in Edwards v. Valentine, 926 So.2d 815 (Ala.2005), this Court discussed the element of entrustment in the context of a claim alleging the negligent entrustment of an automobile:

“ ‘In Alabama, when one person drives a car belonging to another, a rebuttable presumption of entrustment, ie., that the car was being operated by the driver with the permission of the owner, arises when ownership is established .... Thus, the owner of a vehicle is faced with a substantial burden in order to disprove an entrustment.’ Note, Negligent Entrustment in Alabama, 23 Ala. L.Rev. 733, 738 (Summer 1971) (emphasis added; footnote omitted); see also Thompson v. Havard, 285 Ala. 718, 721, 235 So.2d 853, 856 (1970). ‘Entrustment can include either [1] actual entrustment, [2] continuing consent to use the vehicle, or [3] leaving the vehicle available for use.’ Note, supra, at 738. A case of entrustment by ‘leaving the vehicle available’ may occur, even though ‘the entrustor has not given ... permission [to use the vehicle on a particular occasion] and may even have expressly refused it’ Id. at 739 (emphasis added; footnote omitted). ‘In order to establish that there has been an entrustment by leaving the vehicle available, it must be shown that the entrustor knew or had reason to know that the particular incompetent involved in the accident was likely to use the vehicle without authorization and that the entrustor failed to take reasonable precautions to prevent such unauthorized use.’ Id. (emphasis added; footnote omitted); see also Redmond v. Self, 265 Ala. 155, 90 So.2d 238 (1956); Paschall v. Sharp, 215 Ala. 304, 110 So. 387 (1926). In this case, the evidence was sufficient for the court to conclude that Edwards left the vehicle available for Garrison’s use on the date of the accident.”

Edwards, 926 So.2d at 320-21.

In Edwards, a motorist was struck from behind by a pickup truck while it was being operated by the brother-in-law of the owner of the truck. The motorist and his wife sued the owner, asserting a claim of negligent entrustment of a vehicle. Following a nonjury trial, the trial court awarded the motorist $115,000 in compensatory damages and awarded the motorist’s wife $35,000 on her loss-of-consortium claim. Edwards, 926 So.2d at 319.

At the time of the accident in Edwards, the owner and the brother-in-law had lived in adjacent mobile homes for approximately 10 years. The owner testified that he “left” his truck for his brother-in-law’s wife, who was the owner’s sister and had four small children, to use “in case of an emergency.” 926 So.2d at 321. The brother-in-law testified that he took the truck on the day of the accident to go to the store. The keys were not in the truck, so the brother-in-law entered the owner’s home and got the keys from the dresser or the table, as he had occasionally done in the past. The parties stipulated to the admission of the deposition of Billy Ray Cochran, who testified that he had seen the brother-in-law driving the owner’s truck on occasions before the accident. He also stated that, on numerous occasions — both before and after the accident — he had seen the owner give the brother-in-law the keys to the owner’s truck, accompanied by the instructions that if the brother-in-law, his wife, or one of their children ever had a wreck in it, they should claim that they had stolen the truck. Edwards, 926 So.2d at 321.

Based on these facts, this Court held that “the evidence was sufficient for the court to conclude that [the owner] left the vehicle available for [the brother-in-law]’s use on the date of the accident.” Edwards, 926 So.2d at 321. Furthermore, “[t]he trial court’s conclusion that [the owner] entrusted his vehicle to [the brother-in-law] is not palpably erroneous.” Id. But see Penland v. Allsup, 527 So.2d 715 (Ala.1988) (holding that the owner of a sports car, who had been drinking with the passenger and who had left the keys in the car so the passenger could listen to the radio while the owner got out of the car for a brief delivery, did not entrust the car to the passenger and was not liable for negligent entrustment, even though the passenger had used the car on three prior occasions; the passenger had always used the car with the owner’s express permission, had not previously used the car at will, and was not drunk on previous occasions).

Also, in the context of construing a provision in an insurance policy that excluded coverage for property entrusted to an insured for storage or safekeeping, this Court quoted with approval the following language: “‘The word entrust has been defined by both lay and legal authorities in substance to mean to commit something to another with a certain confidence regarding his care, use or disposal of it.’ ” Ho Bros. Rest., Inc. v. Aetna Cas. & Sur. Co., 492 So.2d 603, 606 (Ala.1986) (quoting Pacific Indem. Co. v. Harrison, 277 S.W.2d 256, 261 (Tex.Civ.App.1955) (emphasis omitted)). This Court also noted that “[u]nder Pacific Indemnity Co., supra, and its progeny, in order for there to be an ‘entrustment’ of an automobile, there basically has to be a voluntary and actual delivery of keys and/or the vehicle to the thief by the insured.” Ho Bros. Rest., 492 So.2d at 606. Furthermore, this Court held:

“We hereby adopt the Pacific Indemnity Co., supra, construction of ‘entrustment’ as the construction which ordinary men would place on the word ‘entrustment.’ Implicit in this holding is the requirement of some expectation on the part of each party as to how each will act with respect to the ‘entrusted’ property.”

492 So.2d at 606.

In the present case it is undisputed that, unlike the owner of the automobile in Edwards, Mr. Marrone never gave Sean express or implied permission to remove the .38 handgun from the bedroom closet. In fact, Mr. Marrone explicitly told Sean not to remove the gun from the closet. As was the case with the owner of the vehicle in Penland, there is no evidence indicating that Mr. Marrone ever intended for Sean to use the .38 handgun on the day that Michael died. Mr. Marrone did not have any expectation as to how Sean would handle the gun if he removed it from the closet because Mr. Marrone did not have any expectation that the gun would be removed from the closet. Mr. Marrone did not actively aid, assist, or facilitate Sean’s removal of the gun from the closet. Ms. Prill did not present substantial evidence indicating that Mr. Marrone knew that Sean was likely to use the .38 handgun without authorization and that Mr. Marrone failed to take reasonable precautions to prevent such unauthorized use. It is undisputed that Mr. Marrone stored the unloaded guns in a closet in his bedroom and explicitly told Sean not to remove the guns. The fact that, at least six months before Michael’s death, Sean had removed a gun from Mr. Marrone’s closet without his permission is not substantial evidence indicating that Mr. Marrone entrusted the .38 handgun to Sean on the day Michael died.

Moreover, even assuming that Mr. Marrone did negligently entrust the .38 handgun to Sean, Mr. Marrone’s negligence was not the proximate cause of Michael’s death. As discussed earlier, Michael’s own negligence was a superseding intervening cause that attenuated any negligence on the part of Mr. Marrone from the ultimate injury to Michael. Therefore, Ms. Prill did not present substantial evidence to support her negligent-entrustment claim.

Finally, Ms. Prill appears to seek civil liability for certain criminal acts allegedly committed by Justin and Sean. Specifically, Ms. Prill alleges that “since suicide is a felony at common law, if [Justin] or Sean either induced or caused, aided or abetted, or failed to prevent [Michael] from committing suicide, both are criminally liable for his death.” (Ms. Prill’s brief, at 20.) To support this allegation, Ms. Prill cites § 13A-2-23, Ala.Code 1975, which sets forth criminal liability based upon the behavior of another. Ms. Prill also alleges that “[s]ince suicide is murder at common law, an agreement encompassing it is criminal conspiracy.” (Ms. Prill’s brief, at 21.) Ms. Prill does not elaborate on either of these allegations, and it is unclear how they relate to the summary judgment. In her complaint, Ms. Prill did allege that “[Sean] and [Justin] were co-conspirators and entered the home of [Michael] with concealed weapons knowing that if weapons had been shown when [Sean and Justin] entered the home of [Michael], they would have been denied entry into the home.” However, Ms. Prill scarcely mentions the conspiracy claim in her responses to the summary-judgment motions or in her briefs to this Court.

In Martinson v. Cagle, 454 So.2d 1383 (Ala.1984), this Court held that, although an act that constitutes a crime can also be the basis of a civil action, civil liability will exist “only if the acts complained of violate the legal rights of the plaintiff, constitute a breach of duty owed to the plaintiff, or constitute some cause of action for which relief may be granted.” 454 So.2d at 1385. This Court found that counts alleging “only that the criminal acts were committed and that the [plaintiffs] were thereby injured” did not state a civil cause of action. Id.

Like the plaintiff in Martinson, Ms. Prill alleges only that Justin and Sean committed criminal acts and that those acts caused injury to Michael. The language of the Alabama Code does not create a private right of action for criminal complicity or criminal conspiracy, nor does Ms. Prill show where this Court has recognized that a civil cause of action exists under the criminal statutes proscribing this conduct. To the extent that the allegedly criminal conduct of Justin or Sean also constitutes a legitimate civil cause of action, such as a cause of action for negligence, that claim has been pursued. However, Ms. Prill may not maintain a separate or additional cause of action under the criminal-complicity or conspiracy statutes. Therefore, the motions for a summary judgment were properly granted as to these allegations of criminal conduct.

To the extent that Ms. Prill’s conspiracy claim may be construed as a civil-conspiracy claim, she has not presented substantial evidence to support such a claim. “A plaintiff alleging a conspiracy must have a valid underlying cause of action.” Callens v. Jefferson County Nursing Home, 769 So.2d 273, 280 (Ala.2000). As discussed earlier, Ms. Prill’s wrongful-death claim fails because she cannot prove causation. Therefore, she does not have a valid underlying cause of action to support her conspiracy claim. tion.” Callens v. Jefferson County Nursing Home, 769 So.2d 273, 280 (Ala.2000). As discussed earlier, Ms. Prill’s wrongful-death claim fails because she cannot prove causation. Therefore, she does not have a valid underlying cause of action to support her conspiracy claim.

It should also be noted that it is unnecessary to address the arguments set forth by the parties concerning the affirmative defenses of assumption of the risk and contributory negligence. A summary judgment is proper for the defendants in this case on the wrongful-death claim because Michael’s conduct broke the chain of causation that otherwise might have linked the defendants’ negligence to the plaintiffs injury. The conduct of Justin and Sean was simply not the proximate cause of Michael’s death. A summary judgment is likewise proper for Mr. Marrone on the negligent-entrustment claim.

Conclusion

Based on the foregoing, the trial court’s judgment is affirmed.

AFFIRMED.

COBB, C.J., and WOODALL, SMITH, PARKER, and SHAW, JJ., concur.

      . Ms. Prill testified that Michael was left-handed and that he was uncoordinated using his right hand but no more so than a typical left-handed person would be. Ms. Prill acknowledged that Michael had broken his left hand in October 2001 and that he was required to use his right hand more while his left hand was in a cast.


source: Caselaw Access Project

author: MURDOCK, Justice.

license: Public Domain

text:
    Charlette RYAN et al. v. John PATTERSON et al.
    1060438.
    Supreme Court of Alabama.
    Feb. 27, 2009.
    Rehearing Denied May 8, 2009.

      W. Lee Pittman and J. Chris Cochran of Pittman, Dutton, Kirby & Heliums, P.C., Birmingham, for appellants.
    J. Michael Rediker, Patricia D. Diak, and Michael C. Skotnicki of Haskell Slaughter Young & Rediker, LLC, Birmingham, for appellees John Patterson and Sue Patterson.
    Paul M. James, Jr., of Rushton, Stakely, Johnston & Garrett, P.A., Montgomery, for appellee Wayne’s Pest Control Company, Inc.
   MURDOCK, Justice.

Charlette Ryan appeals, and 500 other individuals (“the listed objectors”) purport to appeal, from a class-certification order based on Rule 23(b)(2), Ala. R. Civ. P. This order was issued by the Shelby Circuit Court in conjunction with the settlement of litigation between John Patterson and Sue Patterson and Wayne’s Pest Control Company, Inc. (“Wayne’s”), a pest-control company that also offers lawn-care service.

I. Facts and Procedural History

On October 29, 1997, the Pattersons filed a complaint containing class allegations against Wayne’s and three individuals associated with Wayne’s, in the Shelby Circuit Court. The same day, the Patter-sons moved for a conditional class certification, which the circuit court granted pursuant to Rule 23(b)(2) and (b)(3), Ala. R. Civ. P. Wayne’s removed the case to federal court, which eventually remanded the case to the Shelby Circuit Court.

The Pattersons filed amended complaints on November 2, 1998, and June 28, 2005. In each complaint, the Pattersons alleged that they and a class of homeowners throughout Alabama had contracted with Wayne’s to perform termite pest control in their homes and that Wayne’s had uniformly failed: (1) to make proper initial termite treatments; (2) to make proper termite re-treatments; and (3) to conduct adequate inspections and reinspec-tions for termite damage and often to perform any reinspections at all, even though such inspections are required under § 2-28-9, Ala.Code 1975, and related regulations.

In 1998, Pestco Exterminating Company, Inc. (“Pestco”), declared bankruptcy. Wayne’s purchased Pestco’s customer information and the files of Pestco customers from the bankruptcy trustee. The customer list included Ryan and the listed objectors. Ryan and the listed objectors had participated in an action filed against Pestco similar to the one filed against Wayne’s by the Pattersons, and that action ultimately resulted in a classwide pro tanto settlement agreement. That settlement, however, explicitly did not discharge Wayne’s of any claims the class members may have had against Wayne’s. In January 2003, Ryan and the listed objectors sued Wayne’s in the Bessemer Circuit Court (“the Ryan action”), alleging claims identical to those made in the case against Pest-co and by the Pattersons against Wayne’s.

In April 2000, Wayne’s filed its answer to the Pattersons’ complaint, and discovery followed. The circuit court referred the case to mediation in May 2005. On December 14, 2005, the Pattersons and Wayne’s entered into a classwide “Settlement Agreement and Release” (“the Patterson settlement”). The circuit court entered a preliminary order on December 27, 2005, approving the Patterson settlement and certifying the class according to Rule 23(b)(2), Ala. R. Civ. P. (“the Patterson class”). As to class certification, the court stated that Wayne’s had acted “in a uniform manner and on grounds generally applicable to the class in the connection with the provision of termite-related services and .... [a]s a result, the issuance of final equitable, injunctive and declaratory relief with respect to the class members as a whole is appropriate.” According to the preliminary order, the Patterson class consisted of

“all persons or other entities who own property in Alabama who have entered into contracts or agreements with Wayne’s or for whom Wayne’s has taken over prior contracts of other pest control operators for the inspection for the existence or infestation of termites, and for the treatment, control and/or prevention of termites for such Alabama property, and/or for the repair of any damage caused by termites for their Alabama property, and/or for the renewals of any such services during the period commencing January 1, 1978 through [December 14, 2005].”

A court-approved notice of the Patterson settlement was mailed to 21,960 putative class members, including Ryan and the listed objectors. The notice informed putative class members of the nature of the case and the terms of the Patterson settlement. The notice also informed putative class members of their right to object to the terms of the Patterson settlement and of the manner in which such an objection needed to be presented to the circuit court and that a fairness hearing concerning the Patterson settlement would be held on March 8, 2006. The notice stated that objections must be in written form and that “[n]o individual Plaintiff Settlement Class Member can object on behalf of other Plaintiff Settlement Class Members.”

Thereafter, Ryan, with the aid of her attorney Thomas F. Campbell, filed an objection purportedly on behalf of herself, Chuck Metcalf, and “approximately 500 objectors” — the listed objectors — complaining that the settlement was not appropriate for Rule 23(b)(2) class certification. Six other written objections were filed with the circuit court, four of which were subsequently withdrawn in their entirety. As a result, three objections remained before the circuit court, representing a total of 10 individuals.

As the notice for the Patterson settlement indicated, the circuit court held a fairness hearing on March 8, 2006. In that hearing, the circuit court questioned counsel for the Pattersons and for Wayne’s extensively regarding the propriety of certifying the class under Rule 23(b)(2) rather than Rule 23(b)(3). On July 6, 2006, the circuit court issued its “Settlement Approval Order and Final Judgment” that detailed the provisions of the settlement and explained its decision to certify the class action under Rule 23(b)(2). On the same date, the circuit court issued a corresponding “Memorandum Opinion” that provided its reasons for finding the settlement to be fair and adequate.

The terms of the Patterson settlement provided that the Pattersons and the members of the putative class agreed to release all claims against Wayne’s based on its “failure to perform adequate annual termite reinspections, and the failure to perform adequate termite treatments (initial pre-construction treatments, post-construction treatments, and/or re-treatments) from January 1, 1978, through December 14, 2005,” except for “claims for personal injury not arising out of a failure to properly conduct annual termite rein-spections.” In exchange for the release of claims, Wayne’s agreed to provide several benefits to the class members.

First, the Patterson settlement “enjoined and ordered [Wayne’s] to repair or (at the election of Plaintiffs) pay the reasonable costs to repair identified termite damage on Plaintiffs’ properties which was not previously identified as existing at the time [Wayne’s] agreed to provide termite services on such property (even for Plaintiffs whose contracts with Wayne’s do not obligate Wayne’s to make repairs).” This “termite-repair plan” covers damage identified within two years of the approval of the Patterson settlement. As the language of the Patterson settlement indicates, Wayne’s must repair the termite damage or reimburse class members for the repair of the termite damage, regardless of the type of contract a class member had with Wayne’s.

Second, as part of the termite-repair plan, the Patterson settlement “enjoined [Wayne’s] from asserting defenses that [it] might otherwise have to the termite damage claims of Plaintiffs” made within the two-year window provided in the settlement. Those defenses included: that the termite damage is “old damage,” that class members had altered the landscape of the subject property in such a way as to make the property susceptible to termite damage, that live active termites had not been identified by Wayne’s, that the subject property had suffered moisture damage, that a class member’s contract covered only re-treatment rather than damage repair, or that a class member’s contract with Wayne’s had expired.

Third, the termite-repair plan provides that a plan administrator would process “properly supported claims within ninety (90) days of receipt of a Proof of Loss.” If a claimant disagrees with the amount to be paid for repairs or is otherwise dissatisfied with the repairs, the Patterson settlement provides for resolution of the dispute by mediation. If mediation proves unsuccessful, then a claimant can have the dispute settled either through arbitration (where the costs of arbitration are borne by the plan administrator) or through a bench trial in the Shelby Circuit Court.

Fourth, the termite-repair plan provides:

“[I]n the event that an applicable federal or state agency with regulatory authority over Wayne’s termite operations issues a finding that Wayne’s or its predecessor [Pestco] has failed to treat a covered structure as required to satisfy termiticide label specifications or state requirements, Wayne’s agrees to make [the] specific remedial treatment ... at no charge to said class member.”

Fifth, Wayne’s agreed in the Patterson settlement to change its future business practices. It agreed to perform annual termite inspections in accordance with Alabama Department of Agriculture “regulations, recommendations, and guidelines.” The Patterson settlement prohibits Wayne’s from allowing its employees to perform more than 12 inspections in an 8-hour shift. It requires Wayne’s to monitor the amount of time its employees spend on each inspection. It prohibits Wayne’s employees from engaging in “booster shot” spraying of a structure’s foundation, a tactic allegedly often used to distract customers from the inadequacy of termite inspections. The Patterson settlement requires employees to document whether the underside of the front porches of houses are accessible for inspection; if the underside of a porch is not accessible, Wayne’s must create such access, if possible, at a reduced cost to class members. The Patterson settlement requires Wayne’s to “create and/or supplement written training manuals, policies, procedures and guidelines to ensure that all employees and/or representatives of Wayne’s are adequately trained to perform termite-related services.” It also dictates that Wayne’s must provide notice by mail of upcoming inspections, and it must schedule inspections by telephone so that the interior of structures can be inspected.

The Patterson settlement also provides class members with certain monetary benefits related to termite services. Wayne’s is required to “offer to convert all its existing liquid barrier termite customers to a termite monitoring and baiting system and will offer each customer who is not already on a termite monitoring and baiting system a coupon for a below-market price” for such a system. Wayne’s must waive the termite-inspection fee associated with the inspection during which the upgrade is made. Wayne’s must offer customers who have re-treatment contracts an upgrade to repair contracts and, in conjunction with doing so, must allow such customers a 40% discount in the cost of the re-treatment of the covered structure. The Patterson settlement also requires Wayne’s to provide a coupon for a $60 reduction in a one-year pest-control services contract to all class members who are not currently pest-control customers. Similarly, customers who are not lawn-care customers must be provided a coupon for a free initial lawn service (up to a maximum value of $60) if they enter into a one-year lawn-care contract.

Finally, the Patterson settlement provides that Wayne’s will pay attorney fees for class counsel in an amount to be determined by the circuit court, not to exceed $400,000. Wayne’s also agreed to pay a class-representative fee of $5,000 to each class representative.

Ryan filed a motion to alter, amend, or vacate the final judgment, which the circuit court subsequently denied. Ryan appeals, challenging the validity of the class certification under Rule 23(b)(2).

II. Standard of Review

“This Court applies an abuse-of-discretion standard of review to a trial court’s class-certification order, but we will review de novo the question whether the trial court applied the correct legal standard in reaching its decision to certify a class.
“If the [plaintiffs] fail to meet the evidentiary burden as required by Rule 23, [Ala. R. Civ. P.,] then the order certifying the ... class[ ] constitutes an abuse of discretion by the trial court.
... The [plaintiffs] must establish all of the criteria set forth in Rule 23(a), Ala. R. Civ. P., and one of the criteria set forth in Rule 23(b).”

Smart Prof l Photocopy Corp. v. Childers-Sims, 850 So.2d 1245, 1248-49 (Ala.2002).

In examining the several prerequisites for class certification contained in Rule 23, we must keep in mind that “Rule 23 of the Alabama Rules of Civil Procedure reads the same as Rule 23 of the Federal Rules, and we consider federal case law on class actions to be persuasive authority for the interpretation of our own Rule 23.” Adams v. Robertson, 676 So.2d 1265, 1268 (Ala.1995).

III. Discussion and Analysis

At the outset, we note that Ryan does not question the fairness and adequacy of the Patterson settlement itself. She also does not dispute that the certified class meets the requirements of Rule 23(a): nu-merosity, commonality, typicality, and adequacy of representation. Ryan challenges only the validity of the class certification under Rule 23(b)(2). In fact, she suggests that class certification may be proper in this instance under Rule 23(b)(3).

Rule 23(a) provides:

“One or more members of a class may sue or be sued as representative parties on behalf of all only if (1) the class is so numerous that joinder of all members is impracticable, (2) there are questions of law or fact common to the class, (3) the claims or defenses of the representative parties are typical of the claims or defenses of the class, and (4) the representative parties will fairly and adequately protect the interests of the class.”

Rule 23(b) provides:

“An action may be maintained as a class action if the prerequisites of subdivision (a) are satisfied, and in addition:
“(1) the prosecution of separate actions by or against individual members of the class would create a risk of
“(A) inconsistent or varying adjudications with respect to individual members of the class which would establish incompatible standards of conduct for the party opposing the class, or
“(B) adjudications with respect to individual members of the class which would as a practical matter be disposi-tive of the interests of the other members not parties to the adjudications or substantially impair or impede their ability to protect their interests; or
“(2) the party opposing the class has acted or refused to act on grounds generally applicable to the class, thereby making appropriate final injunctive relief or corresponding declaratory relief with respect to the class as a whole; or
“(3) the court finds that the questions of law or fact common to the members of the class predominate over any questions affecting only individual members, and that a class action is superior to other available methods for the fair and efficient adjudication of the controversy. The matters pertinent to the findings include: (A) the interest of members of the class in individually controlling the prosecution or defense of separate actions; (B) the extent and nature of any litigation concerning the controversy already commenced by or against members of the class; (C) the desirability or undesirability of concentrating the litigation of the claims in the particular forum; (D) the difficulties likely to be encountered in the management of a class action.”

A proper understanding of the intended operation of Rule 23(b) must take into consideration certain provisions of Rule 23(c). Rule 23(c)(2) provides:

“In any class action maintained under subdivision (b)(3), the court shall direct to the members of the class the best notice practicable under the circumstances, including individual notice to all members who can be identified through reasonable effort. The notice shall advise each member that (A) the court will exclude the member from the class if the member so requests by a specified date; (B) the judgment, whether favorable or not, will include all members who do not request exclusion; and (C) any member who does not request exclusion may, if the member desires, enter an appearance through counsel.”

No corresponding provision exists allowing Rule 23(b)(1) and (b)(2) class members to opt out of a putative class action.

“[I]n a class action brought under Rule 23(b)(3), the members of the class are entitled to ‘opt out’ of the class action and pursue a separate lawsuit. See Rule 23(c). Class members in a Rule 23(b)(1) or 23(b)(2) lawsuit do not have the choice of opting out of the class action.”

Adams, 676 So.2d at 1270. Thus, Ryan’s arguments concern the fact that this action involves a non-opt-out class under Rule 23(b)(2).

A. Acts or Refusals to Act on Grounds Generally Applicable to the Class

Rule 23(b)(2) requires that “the party opposing the class [i.e., Wayne’s] has acted or refused to act on grounds generally applicable to the class, thereby making appropriate final injunctive relief or corresponding declaratory relief with respect to the class as a whole.”

“By its terms, ... Rule 23(b)(2)[, Fed. R.Civ.P.,] imposes two independent but related requirements. In the first place, the defendants’ actions or inactions must be ... generally applicable to all class members. ... The latter half of Rule 23(b)(2) requires that final injunctive relief be appropriate for the class as a whole.”

Shook v. Board of County Comm’rs of County of El Paso, 543 F.3d 597, 604 (10th Cir.2008).

Ryan notes that “[sjubsection (b)(2) was ‘intended primarily to facilitate civil rights class actions, where the class representatives typically sought broad injunctive relief against discriminatory practices.’ ” Holmes v. Continental Can Co., 706 F.2d 1144, 1155 (11th Cir.1983) (quoting Penson v. Terminal Transport Co., 634 F.2d 989, 993 (5th Cir.1981)). While this is true, the Notes of Advisory Committee on 1966 Amendments following Federal Rule 23 explicitly state that

“[sjubdivision (b)(2) is not limited to civil-rights cases. Thus an action looking to specific or declaratory relief could be brought by a numerous class of purchasers, say retailers of a given description, against a seller alleged to have undertaken to sell to that class at prices higher than those set for other purchasers, say retailers of another description, when the applicable law forbids such a pricing differential.”

Thus, the common characteristic among the class members need not be inherent, i.e., race, gender, disability, and may even be economic in nature.

Nonetheless, “Rule 23(b)(2) demands'a certain cohesiveness among class members with respect to their injuries, the absence of which can preclude certification.” Shook, 543 F.3d at 604.

“ ‘Injuries remedied through (b)(2) actions are really group, as opposed to individual injuries. ... Although the interests of the different members of a (b)(2) class are by no means identical,] the substantial cohesion of those interests makes it likely that representative members can adequately represent the interests of absent members and that the need for and interest in individual representation will be minimal.’ ”

Holmes, 706 F.2d at 1155 n. 8 (quoting Note, Notice in Rule 23(b)(2) Class Actions for Monetary Relief: Johnson v. General Motors Corp., 128 U. Pa. L.Rev. 1236, 1252-53 (1980)). See also Allison v. Citgo Petroleum Corp., 151 F.3d 402, 412 (5th Cir.1998) (stating that “[t]he (b)(2) class action ... was intended to focus on cases where broad, class-wide injunctive or declaratory relief is necessary”).

Ryan points to pronounced differences among the class members in terms of the injuries they sustained. Some class members have repair contracts while others have only re-treatment contracts; some never received proper initial treatments while others did not receive proper re-treatments; and some received inadequate reinspections while other received no rein-spections at all. Moreover, some class members sustained termite damage while others did not. Further, some class members continue to be customers of Wayne’s while others are not. Under such circumstances, the interests of these class members likely would differ in terms of the remedies they desire. For example, some need repairs for termite damage while others simply need reimbursement for a contract that was not performed. In short, it is undeniable that the members of the Patterson class did not suffer identical injuries that can be remedied through class-wide injunctive relief.

B. Predominance of Relief in the Patterson Settlement

Given the varying injuries and interests of the class members, it should come as no surprise that the Patterson settlement provides both injunctive and monetary relief. See Allison, 151 F.3d at 413 (“Monetary remedies are more often related directly to the disparate merits of individual claims. ... As a result, a class seeking substantial monetary remedies will more likely consist of members with divergent interests.”). “[Cjlose scrutiny is necessary if money damages are to be included in any mandatory class in order to protect the individual interests at stake ....” Coleman v. General Motors Acceptance Corp., 296 F.3d 443, 448 (6th Cir. 2002). This Court has observed that “[a]s a general rule, certification of a class pursuant to Rule 23(b)(2) is improper if the primary relief sought is money damages,” Compass Bank v. Snow, 823 So.2d 667, 678 (Ala.2001); it is also true that “the fact that a Rule 23(b)(1) or (b)(2) suit may ultimately result in a monetary recovery from a defendant does not prevent certification under those subdivisions.” First Alabama Bank of Montgomery, N.A v. Martin, 425 So.2d 415, 423 (Ala.1982).

The United States Court of Appeals for the Fifth Circuit observed in Allison that

“there is little discussion by appellate courts as to what it means for a particular form of relief to be ‘predominant.’ The Advisory Committee Notes make no effort to define or explain the concept. Interpreting the term literally, predominant means ‘controlling, dominating, [or] prevailing.’ Webster’s Third New International Dictionary 1786 (1993). But how that translates into a workable formula for comparing different types of remedies is not at all clear.”

151 F.3d at 411-12. Despite the difficulty, the Allison court devised a standard for determining which kind of relief — injunc-tive or monetary — predominates in a putative class action certified under Rule 23(b)(2), a standard this Court adopted in Snow, 823 So.2d at 678, and reaffirmed in Funliner of Alabama, L.L.C. v. Pickard, 873 So.2d 198, 208-09 (Ala.2003). The Allison court concluded:

“[M]onetary relief predominates in (b)(2) class actions unless it is incidental to requested injunctive or declaratory relief. By incidental, we mean damages that flow directly from liability to the class as a whole on the claims forming the basis of the injunctive or declaratory relief. See Fed.R.Civ.P. 23(b)(2) (referring only to relief appropriate ‘with respect to the class as a whole’). Ideally, incidental damages should be only those to which class members automatically would be entitled once liability to the class (or subclass) as a whole is established. That is, the recovery of incidental damages should typically be concomitant with, not merely consequential to, class-wide injunctive or declaratory relief. Moreover, such damages should at least be capable of computation by means of objective standards and not dependent in any significant way on the intangible, subjective differences of each class member’s circumstances. Liability for incidental damages should not require additional hearings to resolve the disparate merits of each individual’s case; it should neither introduce new and substantial legal or factual issues, nor entail complex individualized determinations. Thus, incidental damages will, by definition, be more in the nature of a group remedy, consistent with the forms of relief intended for (b)(2) class actions.”

Allison, 151 F.3d at 415 (some citations omitted). In other words, there are at least three factors to consider in determining whether damages are incidental for purpose of class certification: “(1) whether such damages are of a kind to which class members would be automatically entitled; (2) whether such damages can be computed by objective standards, and not standards reliant upon intangible, subjective differences of each class member’s circumstances; and (3) whether such damages would require additional hearings to determine.” 32B Am.Jur.2d Federal Courts § 1710 (2007).

In their briefs on appeal, the parties dispute whether various upgrades in pest-control services and various discounts constitute injunctive or monetary relief. See generally Adams v. Robertson, 676 So.2d 1265 (Ala.1995). In this case, however, we find dispositive the extent to which the settlement requires individualized determinations of damage. As the United States Court of Appeals for the Sixth Circuit has explained, a critical factor “in determining whether injunctive relief predominates in a Rule 23(b)(2) class ... is whether the compensatory relief requested requires individualized damages determination or is susceptible to calculation on a classwide basis.” Coleman, 296 F.3d at 448. If nothing else, the mechanisms provided in the Patterson settlement for customers to file their termite-damage claims distinguishes this case from Adams and demonstrates that the termite-repair plan constitutes monetary relief. The customer who has a claim for termite damage must submit a “properly supported claim[ ]” to the plan administrator, who will process the claim within 90 days. The plan administrator is necessary because the amount of the claim for each customer will vary based on the extent of the termite damage sustained by each customer’s structure. The individualized nature of each claim for termite damage indicates that the relief is monetary in nature and not classwide in-junctive relief. See, e.g., Holmes, 706 F.2d at 1156 (stating that “ ‘money damages are directly related to the disparate merits of individual claims and are not generally applicable to the claims of the class as a whole’ ” (quoting Gerald E. Rosen, Title VII Classes and Due Process: To (b)(2) or Not to (b)(3), 26 Wayne L.Rev. 919, 923 (1980))).

Moreover, if the customer disagrees with the plan administrator over the amount awarded for the termite damage, the Patterson settlement provides a system of hearings and appeals. Although this provision is certainly intended to help class members receive just compensation for termite-related property damage, the hearings and appeal system further reflect the individualized nature of the relief available under the termite-repair plan. As the Allison court observed: “Liability for incidental damages should not require additional hearings to resolve the disparate merits of each individual’s case; it should neither introduce new and substantial legal or factual issues, nor entail complex individualized determinations.” 151 F.3d at 415. Though the Pattersons and Wayne’s insist that the forfeiture of defenses by Wayne’s in the settlement means that the appeals process does not concern liability, the fact that individual computations and additional hearings are required to effect the relief provided by the termite-repair plan militates against finding that the relief constitutes incidental damages suitable for Rule 23(b)(2) certification.

One reason that members of classes certified under Rule 23(b)(2) typically do not have the right to opt out of the action is that

“[o]pting out of a (b)(2) suit for injunc-tive relief would have little practical value or effect. Even class members who opted out could not avoid the effects of the judgment. A (b)(2) injunction would enjoin all illegal action, and all class members would necessarily be affected by such broad relief.”

Holmes, 706 F.2d at 1157. Based on the test devised in Allison and adopted by this Court, the relief provided in the Patterson settlement as a whole is not of the nature contemplated for Rule 23(b)(2) class certification. The members of the Patterson class as a whole are not automatically entitled to the damages available in the Patterson settlement. Instead, the damages available under the termite-repair plan are dependent upon the individual differences between the amount of termite damage sustained by each class member submitting a claim. The damages claims under the termite-repair plan will require additional hearings if the claimant and the plan administrator disagree on the amount to which the claimant is entitled.

IV. Conclusion as to Merits

Based on the foregoing, we conclude that the circuit court erred in certifying the Patterson class under Rule 23(b)(2), Ala. R. Civ. P. Accordingly, we reverse the circuit court’s certification of the Patterson class and remand the case to the circuit court for further proceedings.

V. Motions to Strike Listed Objectors

Both the Pattersons and Wayne’s have filed motions asking this Court to strike the listed objectors as appellants in this case because: (1) the Ryan action has not been certified as a class action and Ryan, therefore, has not been certified to represent the listed objectors, (2) the notice of the Patterson settlement explicitly stated that individual class members could not object on behalf of other class members, and (3) an affidavit filed by an attorney for the Pattersons indicated that three of the listed objectors were not even aware that Ryan had filed an objection on their behalf. The circuit court observed in footnote 2 of its “Memorandum Opinion,” which accompanied its “Settlement Approval Order and Final Judgment,” that the objection in question “was purportedly filed on behalf of Charlette Ryan and Chuck Metcalf, along [with] all the ‘Ryan Plaintiffs’ (defined as ‘approximately 500 other Plaintiffs’ in a separate pending lawsuit),” and that “even if an objection had properly been raised by an additional 500 class members, the percentage of objectors (many of them being two family members representing one termite contract) would still be less than 2.4% of the nearly 22,000 class members.” (Emphasis in original.) This observation indicates that the circuit court did not consider Ryan’s objection to properly represent a viable objection for the listed objectors. Given the unequivocal language in the notice for the Patterson settlement that each objection must be made by the individual class member and the fact that the circuit court did not deem the objections of the listed objectors to be properly filed, we grant the motions to strike the listed objectors as appellants to this action.

MOTIONS TO STRIKE GRANTED; REVERSED AND REMANDED.

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

      . The federal district court vacated the state court's conditional class certification.

      . Section 2-28-9, Ala.Code 1975, requires all businesses involved in "subterranean termite eradication and control work” to "make an annual inspection of each job done during the term of the contract.”

      . The final definition of the class explicitly excluded 11 individuals, most of whom had filed objections to the Patterson settlement with the circuit court.

      . Campbell had been the Pattersons attorney in this litigation from its inception until he withdrew as their counsel in August 1999. The circuit court eventually barred Campbell from appearing in this action on behalf of Ryan because of his previous representation of the Pattersons in this litigation.

      . Class members had one of two types of contracts with Wayne's: a repair contract or a re-treatment contract. Every contract, regardless of type, required annual inspections of the subject property. Repair contracts provided that Wayne’s would repair termite damage discovered upon inspection at no cost to the customer, provided no defenses applied to the damage. Re-treatment contracts provided that Wayne's would re-treat termite-damaged areas discovered upon inspection, but Wayne's would not be obligated to repair said damage.

      . This provision for dispute resolution is as modified by the parties during the final fairness hearing, which was later approved by a written order of the circuit court.

      . We recognize that not every court has adopted the Allison approach. For example, the United States Court of Appeals for the Second Circuit has rejected Allison because it "foreclosed] Rule 23(b)(2) certification in all actions seeking actual damages 'even if the class-wide injunctive relief is the form of relief in which the plaintiffs are primarily interested.' " Parker v. Time Warner Entm’t Co., 331 F.3d 13, 20 (2d Cir.2003) (quoting Robinson v. Metro-North Commuter R.R., 267 F.3d 147, 163 (2d Cir.2001)). Instead, the Second Circuit requires its courts to consider the following in determining whether Rule 23(b)(2) certification is proper:
      "(1) even in the absence of a possible monetary recovery, reasonable plaintiffs would bring the suit to obtain the injunctive or declaratory relief sought; and (2) the in-junctive or declarator)' relief sought would be both reasonably necessary and appropriate were the plaintiffs to succeed on the merits. Insignificant or sham requests for injunctive relief should not provide cover for (b)(2) certification of claims that are brought essentially for monetary recovery.” Robinson, 267 F.3d at 164. Under these criteria, it seems clear that the injunctive relief requiring Wayne’s to improve its pest-control inspection and treatment services is reasonably necessary and appropriate, but it is far from clear that the Pattersons would have brought this action solely to obtain the injunc-tive relief, especially given the fact that the first request in the "prayer for relief” in the original complaint was for "[d]isgorgement of defendants’ unjust enrichment, or, in the alternative, compensatory, incidental and consequential damages (including damages for emotional distress) against all defendants.” In any event, this Court finds the Allison approach to fairly reflect the interests of class members seeking certification under Rule 23(b)(2).

      . Our result pretermits the need to discuss Ryan’s third argument concerning whether the certification of this class violated her right to due process of law under the 14th Amendment to the United States Constitution.


author: COBB, Chief Justice.

text:
    Julie R. LYONS and Godfrey Lyons v. VAUGHAN REGIONAL MEDICAL CENTER, LLC.
    1071502.
    Supreme Court of Alabama.
    April 24, 2009.

      Ronald R. Crook of Smith & Alspaugh, P.C., Birmingham, for appellants.
    John D. Herndon of Huie, Fernambucq & Stewart, LLP, Birmingham, for appel-lee.
   COBB, Chief Justice.

Julie R. Lyons and Godfrey Lyons, plaintiffs in a medical-malpractice action in the Dallas Circuit Court, appeal from a summary judgment entered in favor of Vaughan Regional Medical Center, LLC (“Vaughan”), a limited liability company that operates the Vaughan Regional Medical Center, a medical facility. We affirm.

Factual Background and Procedural History

On November 21, 2003, at approximately 4:30 p.m., Julie was admitted to the Vaughan Regional Medical Center complaining of severe lower-back pain that radiated down her right leg; the diagnosis upon admission was an acute onset of right lumbar radiculopathy. A Heparin IV lock (“Hep-lock”) device was inserted into Julie’s right hand by a nurse, and Dilaudid for pain and Phenergan for nausea were administered to Julie through the Hep-lock device. According to Julie, she felt a burning sensation in her hand as the medication was administered. Approximately four hours after the medication had been administered, Julie awoke with pain in her right hand and noticed redness and swelling in the hand. Julie contends that she mentioned to a nurse the next time the medication was administered that the Hep-lock device was causing her discomfort but that the nurse did not respond to her complaints. During the night Julie again complained to a nurse about swelling and pain in her hand and asked the nurse to bring her an ice pack to place on her hand, which the nurse did. The swelling and pain subsided. However, during the early morning hours of November 22, the pain and swelling increased to a point that, according to Julie, “it was enough to distract me from the pain in my back.” Julie pushed the call button between two and four times without getting a response from a nurse. Finally, Julie was able to communicate by intercom with a nurse at the nurses’ station; she stated that if a nurse did not come to remove the Hep-lock device she would remove it herself. Julie recalled her hand at this point as being swollen from the tips of her fingers to approximately her midforearm. The Hep-lock device was removed from Julie’s right hand. Julie alleges the Hep-lock device “infiltrated,” i.e., went completely through the vein and into the soft tissues of her hand, and the medications were thus administered into the tissues of her right hand instead of into the vein.

From the deposition testimony contained in the record, it appears that the medical center’s records indicate that at 5:15 a.m. on November 22, 2003, the nurse attending to Julie noticed redness at the site where the Hep-lock device had been inserted. The medical center’s records further indicate that at 8:10 a.m. on the same date Julie complained of pain and swelling in her right hand, that the nurse noted redness in the hand, and that the Hep-lock device was discontinued. The record shows that the records from the medical center do not indicate that Julie was diagnosed with an IV infiltration while she was a patient at the medical center. However, according to Dr. Iqbal Singh, Julie’s pain-management doctor, the medical center’s records indicate that later in the day of November 22, 2003, Julie’s right hand was being elevated on a pillow and-warm compresses were being applied. Dr. Singh stated that this would indicate that there was a problem with the IV-access site and that Julie had developed an infection or had inflammation at the IV-access site.

Julie was discharged from the medical center on November 25, 2003, and was immediately transferred to HealthSouth Medical Center in Birmingham for back surgery. According to Julie’s husband, Dr. Singh told him on the day preceding Julie’s discharge from the medical center that he wanted to see Julie concerning her hand as soon as she returned from Birmingham. According to Dr. Singh, Julie’s medical records, however, do not indicate that Dr. Singh diagnosed Julie with an IV infiltration during her hospitalization at the medical center. The first indication in Dr. Singh’s records of an infiltration was during Julie’s post-surgical follow-up visit to Dr. Singh on December 9, 2003, the notes for which, according to Dr. Singh, stated: “Patient’s right hand edematous, purple, and cool to touch. Patient states she had recent IV infiltrate in the right hand and it’s still tender.” Dr. Singh diagnosed Julie as having reflex sympathetic dystrophy (“RSD”). According to Dr. Singh:

“Reflex Sympathetic Dystrophy is a condition that is seen after trauma of any kind. And it results in certain degree of changes in the extremity depending on the stage of the problem. Initially the pain in that limb becomes out of proportion with the degree of the injury and patient develops stimuli, mechanical or otherwise. Patient later on develops changes in the skin which can be discoloration, the extremity becomes cold and very painful. As time progresses on, patient develops some trophic changes in the nail and the hair growth and skin quality changes. And gradually patient can develop contractures or permanent changes in the extremity.”

Dr. Singh further stated that RSD can be caused by minor trauma such as an abrasion, a cut, or even a pinprick. The trauma may be so minor that the patient does not recall the trauma. In regard to what caused Julie to develop RSD, Dr. Singh, who also is the Lyonses’ expert witness in this action, testified as follows:

“[LYONSES’ COUNSEL]: Do you know of any other trauma that Ms. Lyons experienced here at the hospital during that November 2003 hospitalization which is capable of causing RSD other than the infiltration?
“[DR. SINGH]: I’m not aware of any other trauma.
“[LYONSES’ COUNSEL]: In your opinion, what is more likely to cause based upon your own education, background, training, and experiences as well as your own treatment of Ms. Lyons, what is the most likely cause of RSD?
“[DR. SINGH]: Most likely related to the IV.
“[LYONSES’ COUNSEL]: And when you say most likely related to the IV, what do you mean?
“[DR. SINGH]: Just the process of starting an IV or a problem resulting from IV infiltration, both traumas can possibly initiate the Reflex Sympathetic Dystrophy.”

On September 13, 2005, the Lyonses initiated this action against Vaughan in the Dallas Circuit Court. Julie alleged negligence under the Alabama Medical Liability Act, § 6-5-480 et seq., Ala.Code 1975, and Godfrey alleged loss of consortium. On February 8, 2008, Vaughan filed a motion for a summary judgment as to the Lyons-es’ claims. After the Lyonses responded and a hearing was held, the trial court entered a summary judgment in favor of Vaughan on June 23, 2008, without stating the grounds for the summary judgment. The Lyonses appeal.

Standard of Review

“ ‘ “In reviewing the disposition of a motion for summary judgment, we utilize the same standard as that of the trial court in determining whether the evidence before the court made out a genuine issue of material fact” and whether the movant was entitled to a judgment as a matter of law. Bussey v. John Deere Co., 531 So.2d 860, 862 (Ala.1988); Rule 56(c), Ala. R. Civ. P. When the movant makes a prima facie showing that there is no genuine issue of material fact, the burden then shifts to the nonmovant to present substantial evidence creating such an issue. Bass v. SouthTrust Bank of Baldwin County, 538 So.2d 794, 797-98 (Ala.1989). Evidence is “substantial” if it is of “such weight and quality that fair-minded persons in the exercise of impartial judgment can reasonably infer the existence of the fact sought to be proved.” West v. Founders Life Assurance Co. of Florida, 547 So.2d 870, 871 (Ala.1989).’

“Ex parte General Motors Corp., 769 So.2d 903, 906 (Ala.1999).

“ “When the basis of a summary-judgment motion is a failure of the non-movant’s evidence, the movant’s burden, however, is limited to informing the court of the basis of its motion— that is, the moving party must indicate where the nonmoving party’s case suffers an evidentiary failure. See General Motors, 769 So.2d at 909 (adopting Justice Houston’s special concurrence in Berner v. Caldwell, 543 So.2d 686, 691 (Ala.1989), in which he discussed the burden shift attendant to summary-judgment motions); and Celotex Corp. v. Catrett, 477 U.S. 317, 323, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986) (stating that “a party seeking summary judgment always bears the initial responsibility of informing the [trial] court of the basis of its motion”).’

“Rector v. Better Houses, Inc., 820 So.2d 75, 80 (Ala.2001).

“ ‘When the trial court does not give specific reasons for entering a summary judgment, we will affirm the judgment if there is any ground upon which the judgment could have been based. Yarbrough v. C & S Family Credit, Inc., 595 So.2d 880, 881 (Ala.1992).’

“McCloud v. City of Irondale, 622 So.2d 1272, 1273 (Ala.1993).”

Brown v. St. Vincent’s Hosp., 899 So.2d 227, 233-34 (Ala.2004).

Analysis

In their complaint, the Lyonses allege that the staff of the medical center breached the standard of care by negligently assessing, observing, and evaluating the Hep-lock device inserted in Julie’s right hand and the injection of medication through the Hep-lock device and by negligently failing to remove the Hep-lock device in a timely manner when Julie complained of pain, redness, and swelling in her hand. They also allege in their complaint that because of these purported in-actions by the staff of the medical center, Julie subsequently developed RSD. On appeal, the Lyonses state that “the only question before this Court is whether [Julie] met her burden by substantial evidence to refute Vaughan’s contention that [Julie’s] RSD was not related to any breach of the standard of care of Vaughan’s nurses.” (Lyonses’ brief, p. 25.)

In Sorrell v. King, 946 So.2d 854 (Ala.2006), this Court observed:

“A plaintiff in a medical-malpractice action must also present expert testimony establishing a causal connection between the defendant’s act or omission constituting the alleged breach and the injury suffered by the plaintiff. Pruitt v. Zeiger, 590 So.2d 236, 238 (Ala.1991). See also Bradley v. Miller, 878 So.2d 262, 266 (Ala.2003); University of Alabama Health Servs. Found., P.C. v. Bush, 638 So.2d 794, 802 (Ala.1994); and Bradford v. McGee, 534 So.2d 1076, 1079 (Ala.1988). To prove causation in a medical-malpractice case, the plaintiff must demonstrate ‘ “that the alleged negligence probably caused, rather than only possibly caused, the plaintiffs injury.” ’ Bradley, 878 So.2d at 266 (quoting University of Alabama Health Servs., 638 So.2d at 802). See also DCH Healthcare Auth. v. Duckworth, 883 So.2d 1214, 1217 (Ala.2003) (‘“There must be more than the mere possibility that the negligence complained of caused the injury; rather, there must be evidence that the negligence complained of probably caused the injury.” ’ (quoting Parker v. Collins, 605 So.2d 824, 826 (Ala.1992))); and Pendarvis v. Pennington, 521 So.2d 969, 970 (Ala.1988) (‘ “The rule in medical malpractice cases is that to find liability, there must be more than a mere possibility or one possibility among others that the negligence complained of caused the injury; there must be evidence that the negligence probably caused the injury.” ’ (quoting Williams v. Bhoopathi, 474 So.2d 690, 691 (Ala.1985), and citing Baker v. Chastain, 389 So.2d 932 (Ala.1980))). In Cain v. Howorth, 877 So.2d 566 (Ala.2003), this Court stated:
“ ‘ “ ‘To present a jury question, the plaintiff [in a medical-malpractice action] must adduce some evidence indicating that the alleged negligence (the breach of the appropriate standard of care) probably caused the injury. A mere possibility is insufficient. The evidence produced by the plaintiff must have “selective application” to one theory of causation.’ ” ’
877 So.2d at 576 (quoting Rivard v. University of Alabama Health Servs. Found., P.C., 835 So.2d 987, 988 (Ala.2002)). However, the plaintiff in a medical-malpractice case is not required to present expert testimony to establish the element of proximate causation in cases where ‘the issue of proximate cause is not ... “beyond the ken of the average layman.” ’ Golden v. Stein, 670 So.2d 904, 908 (Ala.1995). Therefore, ‘[u]nless “the cause and effect relationship between the breach of the standard of care and the subsequent complication or injury is so readily understood that a layperson can reliably determine the issue of causation,” causation in a medical-malpractice case must be established through expert testimony.’ DCH Healthcare Auth., 883 So.2d at 1217-18 (quoting Cain, 877 So.2d at 576).”

946 So.2d at 862-63.

The Lyonses rely on the testimony of Dr. Singh to show a causal connection between the IV infiltration and the RSD from which Julie suffers. If this Court were to presume that Julie suffered an IV infiltration while she was a patient at the medical center and that the IV infiltration was the result of negligence on the part of Vaughan, Dr. Singh’s testimony is insufficient to create a genuine issue of material fact as to whether Julie’s RSD was probably caused by the IV infiltration. As previously noted, Dr. Singh testified as follows:

“[LYONSES’ COUNSEL]: In your opinion, what is more likely to cause based upon your own education, background, training, and experiences as well as your own treatment of Ms. Lyons, what is the most likely cause of RSD?
“[DR. SINGH]: Most likely related to the IV.
“[LYONSES’ COUNSEL]: And when you say most likely related to the IV, what do you mean?
“[DR. SINGH]: Just the process of starting an IV or a problem resulting from IV infiltration, both traumas can possibly initiate the Reflex Sympathetic Dystrophy.”

(Emphasis added.) To have a valid claim under the Alabama Medical Liability Act, the Lyonses must provide evidence indicating that the negligence alleged is the proximate and probable cause of Julie’s injury; a mere possibility or one possibility among others is insufficient to meet the burden of proof. See Sorrell v. King, supra. Dr. Singh identified various types of minor trauma that could be possible causes of RSD. Although he identified the Hep-lock device as “the most likely” cause of Julie’s RSD, he identified both the insertion of the Hep-lock device and an infiltration of the Hep-lock device as possible causes of the RSD. Such evidence is insufficient to show a causal connection between the purported IV infiltration and the RSD. Thus, the summary judgment in favor of Vaughan is due to be affirmed.

The Lyonses alternatively argued before the trial court that expert testimony was unnecessary because, they say, a layperson could readily understand that IV infiltration probably caused Julie’s RSD. However, she does not make that argument on appeal. “ ‘An argument not made on appeal is abandoned or waived.’ ” Muhammad v. Ford, 986 So.2d 1158, 1165 (Ala.2007) (quoting Avis Rent A Car Sys., Inc. v. Heilman, 876 So.2d 1111, 1124 n. 8 (Ala.2003)).

As to Godfrey’s loss-of-consortium claim, “[a] loss-of-consortium claim is derivative of the claims of the injured spouse.” Flying J Fish Farm v. Peoples Bank of Greensboro, 12 So.3d 1185, 1196 (Ala.2008). Because Julie’s claim fails, so must Godfrey’s loss-of-consortium claim fail. Id.

Conclusion

Because the Lyonses have not established a proximate causal connection between the purported IV infiltration Julie sustained as a patient at the medical center and the RSD, we affirm the summary judgment entered in favor of Vaughan as to Julie’s claim under the Alabama Medical Liability Act. Because Godfrey’s loss-of-consortium claim is derivative of Julie’s claim, we also affirm the summary judgment in favor of Vaughan as to Godfrey’s loss-of-consortium claim.

AFFIRMED.

WOODALL, SMITH, PARKER, and SHAW, JJ., concur.

      . The record does not contain any of Julie’s medical records.

      . During his deposition in this action, Dr. Iqbal Singh, Julie’s pain-management doctor and the physician who admitted her to the medical center, recalled seeing during a prior deposition in another action in which Julie was seeking Social Security disability benefits a document in the medical center's records possibly mentioning that the Hep-lock device that had been used on Julie was not functioning. That document, however, was not contained in the medical center’s records provided to Dr. Singh during his deposition in this matter.


author: THOMPSON, Presiding Judge.

text:
    Betty G. ELDRIDGE v. Rebecca ELDRIDGE and Martin Eldridge, in their capacities as co-executors of the estate of Robert L. Eldridge.
    2070684.
    Court of Civil Appeals of Alabama.
    Jan. 16, 2009.
    Rehearing Denied March 6, 2009.
    Certiorari Denied May 8, 2009 Alabama Supreme Court 1080724.

      Eric A. Bowen, Montgomery, for appellant.
    W. Stanley Gregory of Bradley Arant Rose & White LLP, Montgomery, for ap-pellees.
   THOMPSON, Presiding Judge.

In the summer of 2004, Robert L. El-dridge (“Robert”) became ill and unable to take care of his finances. His wife, Betty G. Eldridge (“Betty”), moved the Autauga Probate Court (“the probate court”) to appoint her as the conservator of Robert’s estate. Robert’s children, Rebecca El-dridge (“Rebecca”) and Martin Eldridge (“Martin”), did not object to Betty serving as conservator. Accordingly, on August 31, 2004, the probate court entered a temporary order granting Betty letters of con-servatorship. The record indicates that a final order appointing Betty as conservator was entered on October 28, 2004; that order is not contained in the record on appeal.

Robert died on December 23, 2004. Pursuant to the terms of Robert’s will, Rebecca and Martin were appointed to be the co-executors of Robert’s estate. Rebecca and Martin (hereinafter together referred to as “the heirs”) were the heirs of Robert’s estate under the terms of Robert’s will.

. On June 3, 2005, Betty filed in the probate court a motion seeking to be discharged as the conservator of Robert’s estate; in support of that motion, Betty submitted an accounting of the conserva-torship assets. The heirs, in their capacities as the co-executors of Robert’s estate (hereinafter “the estate”), filed an opposition to Betty’s motion seeking to be discharged as the conservator. In that opposition, the estate moved for a hearing to be conducted on the accuracy of the accounting and for an order requiring Betty to repay Robert’s estate any amounts not properly expended pursuant to the conser-vatorship.

The probate court conducted an ore ten-us hearing on November 11, 2005. On August 10, 2006, the probate court entered a detailed judgment determining that Betty owed the estate $52,251. Betty filed a postjudgment motion. On January 22, 2007, Betty appealed to the Autauga Circuit Court (“the circuit court”). On March 30, 2008, the circuit court purported to enter a judgment affirming the August 10, 2006, probate court judgment. Betty filed a notice of appeal to this court on April 2, 2008. However, because we conclude that the circuit court never obtained jurisdiction over this matter, we must dismiss the appeal.

The Rules of Civil Procedure apply in probate court proceedings. See § 12-13-12, Ala.Code 1975. Rule 59, Ala. R. Civ. P., requires that a postjudgment motion be filed within 30 days of the entry of a judgment. The 30th day after the entry of the August 10, 2006, probate court judgment was Saturday, September 9, 2006. Pursuant to Rule 6, Ala. R. Civ. P., when the applicable period ends on a Saturday, Sunday, or legal holiday, the end of the period for computing the expiration of time limitations greater than 10 days under the Rules of Civil Procedure is the first day following the Saturday, Sunday, or legal holiday. Therefore, a Rule 59 post-judgment motion taken from the August 10, 2006, probate court judgment was required to have been filed by Monday, September 11, 2006. However, the date stamp on Betty’s postjudgment motion filed in the probate court indicates that her postjudgment motion was filed on September 12, 2006, 33 days after the entry of the August 10, 2006, probate court judgment. Accordingly, the date stamp on Betty’s postjudgment motion indicates that that motion was not timely filed.

On September 26, 2006, Betty filed a motion in the probate court asking that court to correct the record to reflect that her postjudgment motion actually had been timely filed on September 11, 2006. Betty submitted the affidavit of her attorney in support of her motion to correct the record. In that affidavit, Betty’s attorney stated that he had timely filed the post-judgment motion in the probate court on Monday, September 11, 2006.

The parties treated the postjudgment motion as if it had been timely filed on September 11, 2006, and as if it had been denied by operation of law on December 11, 2006. See Rule 59.1, Ala. R. Civ. P. (“A failure by the trial court to dispose of any pending post-judgment motion within [90 days] ... shall constitute a denial of such motion as of the date of the expiration of the period.”). Forty-two days later, on January 22, 2007, Betty filed a notice of appeal to the circuit court. See § 12-22-21, Ala.Code 1975 (providing for appeals to the circuit court from probate court judgments); see also Rule 4(a), Ala. R.App. P. (providing that appeals be taken within 42 days).

The record, however, indicates that the probate court never ruled on Betty’s motion to correct the record to reflect that the postjudgment motion had been timely filed. The timely filing of a notice of appeal from the probate court to the circuit court pursuant to § 12-22-21 is a jurisdictional act. Williams v. Lollar, 8 So.3d 319, 321 (Ala.2008). Betty’s notice of appeal to the circuit court from the probate court’s August 10, 2006, judgment was required to have been filed within 42 days of the entry of that judgment unless the time for taking an appeal was tolled by the timely filing of a postjudgment motion. In this case, Betty’s postjudgment motion from the August 10, 2006, probate court judgment is date stamped as having been filed one day late, and the record indicates that the probate court did not rule on Betty’s motion to correct the record to reflect that the postjudgment motion had been timely filed.

In response to a request by this court, Betty submitted a letter brief in which she alleged that an internal review by the probate court clerk indicated that the postjudgment motion had been timely filed on September 11, 2006. Betty later supplemented her initial letter brief by submitting one page from a transcript of a hearing held in the probate court on the postjudgment motion and on several other motions then pending before that court. That transcript page indicates that counsel for the estate agreed that the post-judgment motion had been timely filed on September 11, 2006. However, that transcript page does not indicate whether the probate court judge agreed that the post-judgment motion had been timely filed. In the absence of a ruling by the probate court, the estate’s acknowledgment that the postjudgment motion had been timely filed is of no effect because subject-matter jurisdiction cannot be conferred by an agreement of the parties. International Longshoremen’s Ass’n v. Davis, 470 So.2d 1215, 1216 (Ala.1985).

The materials Betty submitted in support of her supplemental letter brief to this court are not part of the record on appeal. Further, nothing in those materials indicates that the probate court ruled that the postjudgment motion had been timely filed, and Betty did not seek to supplement the record on appeal to include the transcript of the postjudgment hearing or any other evidence tending to indicate that the postjudgment motion had been timely filed. See Rule 10(f), Ala. R.App. P. (providing for the supplementation or correction of the record on appeal to correctly reflect the proceedings below). Accordingly, the record on appeal does not demonstrate that the postjudgment motion was timely filed in the probate court; rather, the record indicates that that motion was untimely. Therefore, we must conclude that the postjudgment motion did not toll the time for taking an appeal to the circuit court. Betty’s notice of appeal to the circuit court was filed in excess of 42 days after the entry of the August 10, 2006, probate court judgment. Betty’s failure to timely appeal the probate court’s judgment to the circuit court results in the circuit court’s lacking jurisdiction to review the matter. Williams v. Lollar, 8 So.3d at 321. The absence of jurisdiction renders the circuit court’s purported judgment affirming the probate court’s judgment void. Id. A void judgment will not support an appeal to this court. Jones v. Sears, Roebuck & Co., 342 So.2d 16, 17 (Ala.1977). Accordingly, we must dismiss the appeal. Id.; Williams v. Lollar, supra.

APPEAL DISMISSED.

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

      . December 10, 2006, the 90th day after September 11, 2006, was a Sunday. Therefore, assuming that the postjudgment motion was timely filed on September 11, 2006, the motion would have been deemed denied on December 11, 2006, the Monday after December 10, 2006, See Richburg v. Cromwell, 428 So.2d 621 (Ala.1983), and First Alabama Bank v. McGowan, 758 So.2d 1116 (Ala.Civ.App.2000).

      . Thus, assuming the postjudgment motion had been filed on September 11, 2006, that notice of appeal would have been timely.