source: Caselaw Access Project

author: LYONS, Justice.

license: Public Domain

text:
    Ex parte GUARANTY PEST CONTROL, INC. (In re A. Vincent Brown, Jr. v. Guaranty Pest Control, Inc.)
    1080386.
    Supreme Court of Alabama.
    April 24, 2009.

      Edgar M. Elliott IV, Michael A. Vercher, and Richard M. Thayer of Christian & Small LLP, Birmingham, for petitioner.
    Thomas F. Campbell and D. Keiron McGowin of Campbell Law, P.C., Birmingham, for respondent.
   LYONS, Justice.

Guaranty Pest Control, Inc. (“Guaranty”), has filed a petition for a writ of mandamus requesting that this Court direct the Jefferson Circuit Court to vacate its orders granting a motion to compel filed by A. Vincent Brown, Jr., and denying Guaranty’s motion for a protective order. We grant the petition in part, deny it in part, and issue the writ.

I. Factual Background and Procedural History

Brown sued Guaranty on May 4, 2006, alleging that Brown owned an office building (“the office”) that Guaranty had inspected for possible infestation of wood-destroying organisms (“WDO”), including termites. The complaint also alleged that Guaranty had treated the office to prevent infestation by WDOs but that the office had been infested and had suffered extensive damage. Brown, among other things, asserted a claim of fraud with respect to Guaranty’s inspection and treatment of the office.

With his complaint, Brown served Guaranty with discovery requests, including the following requests for production of documents, pursuant to Rule 34, Ala. R. Civ. P.:

“13. For each date on which the [office] received treatment for termites from [Guaranty], please produce the customer file for each of [Guaranty’s] customers who received a treatment for termites during the same week which was performed by the same person.
“20. For each date on which the [office] received an annual renewal inspection from [Guaranty], please produce the customer file for each of [Guaranty’s] customers who received an annual renewal inspection during the same week, performed by the same inspector.
“21. For each date on which the [office] received an inspection for the purpose of completing an Official Alabama Wood Infestation Inspection Report from [Guaranty], please produce the customer file for each of [Guaranty’s] customers who received such an inspection during the same week from the same inspector.
“27. Please produce all documents relating to all properties placed under WDO contracts during the month that the [office] was originally placed under contract with [Guaranty] (January 1991), the month that [Brown] became a party to a termite contract with [Guaranty] (October 1995), and each property placed under contract in the month immediately preceding and immediately following those months (November 1990, February 1991, September 1995 and November 1995).”

Guaranty objected to requests 13, 20, 21, and 27 (“the requests”) on the grounds that they were overly broad and unduly burdensome.

Eventually, on October 10, 2008, Brown moved to compel responses to the requests. Guaranty responded to Brown’s motion, arguing primarily that the requests were unduly burdensome. Guaranty relied on an affidavit of its vice president, who stated that responding to the requests would require a manual review of some 20,000 to 25,000 files. Guaranty estimated that the cost of responding to the requests would be approximately $16,000. The trial court granted Brown’s motion to compel on October 22, 2008. On October 31, 2008, Guaranty moved for a protective order.

The trial court held a hearing on Guaranty’s motion for a protective order on November 18, 2008. That hearing was not transcribed. On the same day, the trial court rendered the following order by handwritten notation on the trial court’s docket sheet: “[Brown] is entitled to customer files at the time of the original treatment and 3 months before and after and at the time [Brown] took over the [office] and 3 months before and after.” See Rule 58(a), Ala. R. Civ. P. It is unclear whether this order was ever entered pursuant to Rule 58(c), Ala. R. Civ. P., which prescribes the requirements for the entry of an order. On December 22, 2008, the trial court entered an order denying Guaranty’s motion for a protective order. The December 22, 2008, order did not include any findings similar to those in its November 18, 2008, order. Guaranty subsequently petitioned this Court for a writ of mandamus directing the trial court to vacate its November 18, 2008, and December 22, 2008, orders.

II. Standard of Review

“A writ of mandamus will be ‘issued only when there is: 1) a clear legal right in the petitioner to the order sought; 2) an imperative duty upon the respondent to perform, accompanied by a refusal to do so; 3) the lack of another adequate remedy; and 4) properly invoked jurisdiction of the court.’ Ex parte United Serv. Stations, Inc., 628 So.2d 501, 503 (Ala.1993).”

Ex parte Horton Homes, Inc., 774 So.2d 536, 539 (Ala.2000). Regarding discovery matters specifically, this Court has stated:

“Discovery matters are within the trial court’s sound discretion, and this Court will not reverse a trial court’s ruling on a discovery issue unless the trial court has clearly exceeded its discretion. Home Ins. Co. v. Rice, 585 So.2d 859, 862 (Ala.1991). Accordingly, mandamus will issue to reverse a trial court’s ruling on a discovery issue only (1) where there is a showing that the trial court clearly exceeded its discretion, and (2) where the aggrieved party does not have an adequate remedy by ordinary appeal. The petitioner has an affirmative burden to prove the existence of each of these conditions.
“Generally, an appeal of a discovery order is an adequate remedy, notwithstanding the fact that that procedure may delay an appellate court’s review of a petitioner’s grievance or impose on the petitioner additional expense; our judicial system cannot afford immediate mandamus review of every discovery order.”

Ex parte Ocwen Federal Bank, FSB, 872 So.2d 810, 813 (Ala.2003) (footnote omitted). In Ocwen, this Court identified “four circumstances in which a discovery order may be reviewed by a petition for a writ of mandamus.” Ex parte Dillard Dep’t Stores, Inc., 879 So.2d 1134, 1137 (Ala.2003)(citing Ocwen). Those circumstances include:

“(a) [Wjhen a privilege is disregarded, see Ex parte Miltope Corp., 823 So.2d 640, 644-45 (Ala.2001); (b) when a discovery order compels the production of patently irrelevant or duplicative documents the production of which clearly constitutes harassment or imposes a burden on the producing party far out of proportion to any benefit received by the requesting party, see, e.g., Ex parte Compass Bank, 686 So.2d 1135, 1138 (Ala.1996); (c) when the trial court either imposes sanctions effectively precluding a decision on the merits or denies discovery going to a party’s entire action or defense so that, in either event, the outcome of the case has been all but determined and the petitioner would be merely going through the motions of a trial to obtain an appeal; or (d) when the trial court impermissibly prevents the petitioner from making a record on the discovery issue so that an appellate court cannot review the effect of the trial court’s alleged error. The burden rests on the petitioner to demonstrate that its petition presents such an exceptional case — that is, one in which an appeal is not an adequate remedy. See Ex parte Consolidated Publ’g Co., 601 So.2d 423, 426 (Ala.1992).”

Dillard, 879 So.2d at 1137.

III. Analysis

Guaranty argues in its petition that the trial court erred in denying its motion for a protective order as to the requests as they were written. Guaranty contends that each of the requests was unduly burdensome. Guaranty therefore argues that its petition falls within the second circumstance identified by Ocwen and Dillard, supra, in which this Court may review a discovery order by a petition for a writ of mandamus where the discovery requested “imposes a burden on the producing party far out of proportion to any benefit received by the requesting party.” Dillard, 879 So.2d at 1137. In its petition, Guaranty relies, as it did before the trial court, on the affidavit of its vice president.

Although the trial court’s December 22, 2008, order denied Guaranty’s motion for a protective order in its entirety, Brown contends in his answer to the petition that the trial court in fact granted Guaranty’s motion with respect to requests 13, 20, and 21. Accordingly, Brown argues that the issues Guaranty raises in its petition relative to requests 13, 20, and 21 are moot; Brown consequently does not respond substantively to Guaranty’s petition regarding those requests. Regarding request 27, Brown contends that Guaranty admitted that that request was not burdensome.

Brown bases his contention regarding requests 13, 20, and 21 on the trial court’s November 18, 2008, order, which is silent as to those requests, and on arguments made by counsel for the parties at the November 18, 2008, hearing. Brown maintains that Guaranty’s admission regarding request 27 also occurred at the November 18, 2008, hearing. To support these assertions, Brown attached to his answer an affidavit from one of his attorneys who attended the hearing. In that affidavit, Brown’s counsel states, among other things:

“In response to questioning by Judge King [at the November 18, 2008, hearing,] Guaranty’s lawyer ... admitted his client could identify and locate customer records by date service was initiated for Vince Brown in 1995 and the prior owner in 1991. However, [Guaranty’s counsel] stated that Guaranty could not easily identify information responsive to [requests 13, 20, and 21],... [In the November 18, 2008, order,] Judge King essentially ruled for Guaranty on the two items that [Guaranty’s counsel] said presented difficulty and ruled for the plaintiff on the issue that [Guaranty’s counsel] conceded did not present difficulty.”

Without citing authority, Guaranty has moved to strike the affidavit on the ground that it is inadmissible hearsay. Guaranty also argues that the affidavit improperly attempts to represent “unrecorded procedural matters” and to alter the “record” before this Court. Guaranty cites Cooper v. Adams, 295 Ala. 58, 61, 322 So.2d 706, 708 (1975)(stating regarding an exhibit to a brief in an appeal from a summary judgment: “The record cannot be changed, altered or varied on appeal by statements in briefs of counsel, nor by affidavits or other evidence not appearing in the record.”). Guaranty does not deny the substantive assertions of the affidavit, in either its motion to strike the affidavit or its reply to Brown’s answer. Nor does Guaranty offer conflicting evidence.

Rule 21(a)(1)(B), Ala. R.App. P., provides that the petitioner is to provide this Court with a “statement of the facts necessary to an understanding of the issues presented by the petition.” This Court has explained the role of the parties in assembling the materials to be reviewed in a mandamus proceeding as follows:

“The materials reviewed by this Court in considering a petition for writ of mandamus consist of exhibits provided by the parties:
“ ‘[A] petitioner for a writ of mandamus is obliged to provide with the petition “copies of any order or opinion or parts of the record that would be essential to an understanding of the matters set forth in the petition.” Rule 21(a), Ala. R.App. P. In the event the petition is not denied, the respondent is directed to file an answer to the petition, which provides the respondent with an “opportunity to supplement the ‘record’ by attaching exhibits of its own....’”
“Ex parte Fontaine Trailer Co., 854 So.2d 71, 74 (Ala.2003) (quoting Ex parte Miltope Corp., 522 So.2d 272, 273 (Ala.1988)).”

Ex parte Covington Pike Dodge, Inc., 904 So.2d 226, 232 n. 2 (Ala.2004). Regarding the facts and materials submitted by the respondent in answer to the petition, this Court has stated: “ ‘In passing upon the petition for mandamus, the return or answer of respondent, unless controverted, is to be taken as true.’ ” King v. Smith, 288 Ala. 215, 219, 259 So.2d 244, 248 (1972) (quoting Ex parte Adams, 216 Ala. 353, 355, 113 So. 513, 515 (1927)). See also Ex parte State ex reí. Atlas Auto Fin. Co., 251 Ala. 665, 668, 38 So.2d 560, 562 (1949).

When this Court considers a petition for a writ of mandamus, the only materials before it are the petition and the answer and any attachments to those documents. There is no traditional “record” submitted to this Court by the trial court clerk as in an appeal. This Court’s statement in Cooper, supra, that the “record cannot be changed, altered or varied on appeal by statements in briefs of counsel, nor by affidavits or other evidence not appearing in the record,” related to materials attached to an appellee’s brief that were “dehors the record” prepared by the trial court clerk in a proceeding reaching this Court on direct appeal. 295 Ala. at 61, 322 So.2d at 708. Contrary to Guaranty’s assertion, this Court’s statements in Cooper do not refer to materials submitted by a respondent in answer to a petition for a writ of mandamus. Pursuant to Covington Pike Dodge, supra, it was within Brown’s province, as the respondent to Guaranty’s petition, to supplement the “record” before us with exhibits of his own. 904 So.2d at 232 n. 2. Guaranty challenged the affidavit procedurally as hearsay; however, Guaranty did not support its arguments with citations to authority as required by the Alabama Rules of Appellate Procedure. See Rule 21(a)(1)(D) and Rule 28(a)(10), Ala. R.App. P. “[I]t is not the function of this Court to do a party’s legal research or to make and address legal arguments for a party based on un-delineated general propositions not supported by sufficient authority or argument.” Dykes v. Lane Trucking, Inc., 652 So.2d 248, 251 (Ala.1994). Accordingly, we deny Guaranty’s motion to strike on this basis. Furthermore, the statements of Guaranty’s counsel appear to fall within the hearsay exclusions of Rule 801(d)(2)(A) and (C), Ala. R. Evid., and Guaranty has not offered any argument or authority showing otherwise. Moreover, we have previously considered affidavits submitted in response to a petition for mandamus from trial judges describing the proceedings below. See, e.g., Ex parte Benford, 935 So.2d 421, 423 (Ala.2006), and Ex parte S & Davis Inti, Inc., 798 So.2d 677, 679 (Ala.2001). Also, we are not here confronted with an attempt to bring to this Court matters not considered by the trial court, as the affidavit of counsel purports to describe proceedings before the trial court. Compare Ex parte Flowers, 991 So.2d 218, 225 (Ala.2008) (“ ‘In determining whether the trial court [exceeded] its discretion, this [C]ourt is bound by the record and cannot consider a statement or evidence in brief that was not before the trial court.’ ” (quoting Ex parte Baker, 459 So.2d 873, 876 (Ala.1984))).

As the petitioner, Guaranty is obliged to advise this Court of all the “facts necessary to an understanding of the issues presented by the petition,” Rule 21(a)(1)(B), Ala. R.App. P., and to show “a clear legal right ... to the order sought.” Horton Homes, 774 So.2d at 539 (quoting Ex parte United Serv. Stations, Inc., 628 So.2d 501, 503 (Ala.1993)). Furthermore, the burden is on Guaranty to show that, in compelling discovery and denying its motion for a protective order, the trial court exceeded its discretion. Ocwen Federal Bank, 872 So.2d at 813. As noted above,' Guaranty did not deny the substantive assertions of the affidavit Brown submitted or offer conflicting evidence. Accordingly, as to its substance, the affidavit is not “controverted, [and] is to be taken as true.” King, 288 Ala. at 219, 259 So.2d at 248.

Based upon Brown’s concession regarding his right to production pursuant to requests 13, 20, and 21 on the basis of (a) the silence of the trial court’s order of November 18, 2008, as to those requests and (b) on his affidavit describing proceedings in the trial court, we deny the petition as to requests 13, 20, and 21 because we cannot recognize that Guaranty has a clear legal right to the issuance of the writ of mandamus to address a moot issue.

With regal’d to Guaranty’s claim of undue burden as to request 27, we are again confronted with the uncontroverted evidence of a concession that “Guaranty’s lawyer ... admitted his client could identify and locate customer records by date service was initiated for Vince Brown in 1995 and the prior owner in 1991.” Request 27 calls for

“all documents relating to all properties placed under WDO contracts during the month that the [office] was originally placed under contract with [Guaranty] (January 1991), the month that [Brown] became a party to a termite contract with [Guaranty] (October 1995), and each property placed under contract in the month immediately preceding and immediately following those months (November 1990, February 1991, September 1995 and November 1995).”

Based upon the foregoing, we conclude that Guaranty has failed to establish a clear legal right to the issuance of the writ based on undue burden and hardship.

Guaranty also argues that the trial court exceeded its discretion by ordering more discovery than Brown requested. Guaranty argues that the trial court’s November 18, 2008, order required Guaranty to produce records for the six-month period surrounding Guaranty’s original inspection and contract regarding the office and for the six-month period surrounding Brown’s acquisition of the office. However, request 27 sought only records for the three-month periods surrounding those dates. Guaranty argues that a party may be compelled to produce only those documents that have been requested. It cites Rule 37(a)(2), Ala. R. Civ. P., which provides, in part: “[I]f a party in a response to a request for production or inspection submitted under Rule 34[ ] fails to respond that production or inspection will be permitted as requested or fails to produce or permit inspection as requested, ... the discovering party may move for an order ... compelling production or inspection .... ”

In his answer to the petition, Brown concedes the error of the November 18, 2008, order. Accordingly, it is undisputed that the trial court compelled Guaranty to produce documents that Brown had not requested, specifically, documents covering a time period twice the time period for which Brown had requested documents. Although it is unclear whether the trial court’s November 18, 2008, order was entered pursuant to Rule 58(c), Ala. R. Civ. P., the parties agree that they are bound by it. Because this issue is presented in tandem with an issue whether production of the material sought in request 27 would be unduly burdensome clearly within the scope of the Ocwen factors and as to which we have, on the one hand, no evidence of a concession that production would not be unduly burdensome and, on the other, Brown’s concession that the order exceeds the scope of his request, we address it. We agree that the trial court exceeded its discretion to the extent that the trial court ordered the production of more documents than Brown requested and that Guaranty does not have an adequate remedy by appeal. See, e.g., Ex parte Sexton, 904 So.2d 1251,1252 (Ala.2004)(granting a petition for a writ of mandamus in part where, “given the willingness of the parties seeking production to limit their previous broad requests to a specific set of photographs, [this Court] conclude[d] that the trial court’s order exceeded the scope of the request before it”).

IV. Conclusion

Based on the foregoing, we conclude that Guaranty has satisfied its burden with respect to that part of its petition challenging the trial court’s November 18, 2008, order insofar as it requires Guaranty to produce more documents than Brown requested, but not as to the remainder of its petition. Accordingly, we grant Guaranty’s petition for a writ of mandamus to the extent that the trial court ordered the production of more documents than were requested, and we direct the trial court to vacate its November 18, 2008, and December 22, 2008, orders and to enter an order consistent with this opinion. In all other respects, we deny Guaranty’s petition for a writ of mandamus.

MOTION TO STRIKE DENIED; PETITION GRANTED IN PART AND DENIED IN PART; WRIT ISSUED.

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

      . Guaranty did not attach a copy of the complaint to its petition for a writ of mandamus. However, Brown attached a copy of the complaint to his answer to the petition. Accordingly, the complaint is properly before this Court for consideration. See Ex parte Coving-ton Pike Dodge, Inc., 904 So.2d 226, 232 n. 2 (Ala.2004)(quoting Ex parte Fontaine Trailer Co., 854 So.2d 71, 74 (Ala.2003), and Ex parte Miltope Corp., 522 So.2d 272, 273 (Ala. 1988)).

      . See, e.g., Ex parte Horton Homes, Inc., 774 So.2d 536, 540 (Ala.2000)(''[A] party dissatisfied with the trial court’s ruling on a motion to compel discovery must first make a timely motion for a protective order, so as to create a record to support the essential allegation that the petitioner has no other adequate remedy.” (citing Ex parte Reynolds Metals Co., 710 So.2d 897 (Ala. 1998)))’

      . Rule 801(d) provides, in part:
      "A statement is not hearsay if—

      "(2) Admission by Party Opponent. The statement is offered against a party and is
      (A) the party's own statement in either an individual or a representative capacity or ... (C) a statement by a person authorized by the party to make a statement concerning the subject .... ”


author: MURDOCK, Judge.

text:
    CONSECO FINANCE CORP.-ALABAMA v. J.T. ATTAWAY d/b/a Phenix Mobile Home Court.
    2010204.
    Court of Civil Appeals of Alabama.
    Jan. 24, 2003.

      Robert J. Solomon of Kenney & Solomon, P.C., Duluth, Georgia, for appellant.
    Kenneth L. Funderburk of Funderburk, Day & Lane, Phenix City, for appellee.
   MURDOCK, Judge.

Conseco Finance Corp.-Alabama (formerly known as Green Tree Financial Corp.-Alabama) appeals from a judgment of the Russell Circuit Court against it and in favor of J.T. Attaway in the amount of $6,970 in satisfaction of Attaway’s alleged hen against a mobile home in which Conse-co claimed a security interest for lot rent and for damages associated with the removal of the mobile home from Attaway’s property.

In July 2000, Conseco sued alleging that Conseco had been assigned the interest of Phil’s Mobile Service (“Phil’s”) in a “Manufactured Home Retail Installment Contract” (the “installment contract”) dated August 25, 1997, between Clarence R. Bailey, as buyer, and Phil’s, as seller. Conse-co contended that, pursuant to the installment contract, it had a security interest in a 1996 Fleetwood mobile home located on Attaway’s property, that Bailey had defaulted on his payment obligations under the installment contract, and that it was entitled to possession of the mobile home. Conseco also contended that Attaway, who had leased Bailey the lot on which the mobile home was located, had possession of the mobile home and claimed that he was owed past-due lot rent dating back to 1997. Conseco alleged that it had not agreed to pay lot rent to Attaway, and it requested, in pertinent part, that the trial court enter a judgment awarding Conseco possession of the mobile home and “reasonable value for the wrongful detention or use of the mobile home.”

Contemporaneously with the filing of its complaint, Conseco also filed a motion for a writ of seizure pursuant to Rule 64, Ala. R. Civ. P. In October 2000, after a hearing on Conseco’s Rule 64 motion, the trial court entered a consent order that, in pertinent part, authorized Conseco, upon posting bond, to repossess the mobile home. Conseco posted bond in February 2001 and sold the home to a third party in May 2001, at which time the mobile home was removed from Attaway’s property.

A few days after the mobile home was removed from Attaway’s property, he filed counterclaims alleging, among other things, that Conseco had not removed the mobile home from his property for seven months after the court entered the October 2000 consent order and that Conseco had not paid him lot rent that had allegedly accrued from the date of the October 2000 consent order through the date that Conseco removed the mobile home in May 2001. Attaway further alleged that Conse-co had never perfected its security interest in the mobile home and that Conseco had not obtained a waiver from Attaway for lot rent that was allegedly due to be paid to him. Accordingly, Attaway contended that his claim for lot rent, including past-due lot rent back to 1997, was superior to Conse-co’s alleged security interest.

A bench trial was held on Attaway’s counterclaims in November 2001. At trial, Attaway testified that he had entered into a ground lease with Bailey in early 1997, that he had talked to Conseco before Bailey moved the mobile home onto his property, and that he had refused Conse-co’s request that he execute a release regarding Bailey’s rent obligation. Attaway also testified that Bailey had stopped paying the lot rent the ground lease required him to pay, that Attaway was owed $100 per month in past-due lot rent that had allegedly accrued between October 1997 and May 2001, and that he also was owed a $25 late fee for each month’s past-due lot rent. Attaway’s claim for lot rent and late fees totaled $5,875.

Attaway testified that he had contacted Conseco on numerous occasions between October 1997 and May 2001 about Bailey’s failure to pay lot rent and that Conseco had repeatedly informed Attaway that it would remove the mobile home from his property and pay the past-due lot rent. Attaway also testified that he suffered $1,600 in losses due to damage to a waterline ($475) and to a power pole ($775) that allegedly occurred when the mobile home was removed from his property and for a water bill ($850) associated with the damaged waterline. After a bench trial, the trial court, without setting forth specific findings of fact, entered a judgment in favor of Attaway and against Conseco, and awarded Attaway damages of $6,970. Conseco appealed to this court.

Conseco argues that Attaway did not have a lien against the mobile home for lot rent, and that even if he did, Conseco’s security interest had priority over any such lien. We need not reach the latter issue.

When ore tenus evidence is presented, the trial court’s findings of fact are presumed correct and the judgment based on its findings of fact will not be disturbed unless the judgment is clearly erroneous, without supporting evidence, manifestly unjust, or against the great weight of the evidence. See J & M Bail Bonding Co. v. Hayes, 748 So.2d 198 (Ala.1999); Gaston v. Ames, 514 So.2d 877 (Ala.1987). Also, when the trial court has entered a judgment without making specific findings of fact, the appellate court “will assume that the trial judge made those findings necessary to support the judgment.” Trans-america Commercial Fin. Corp. v. Am- South Bank, N.A., 608 So.2d 375, 378 (Ala. 1992). However, a trial court’s conclusions on legal issues carry no presumption of correctness on appeal, and this court will review the application of the law to the facts de novo. See e.g., Allstate Ins. Co. v. Skelton, 675 So.2d 377 (Ala.1996); Ex parte Cash, 624 So.2d 576, 577 (Ala.1993).

Attaway cites no authority, and we have found none, for the proposition that a landowner has either a statutory lien or a common-law lien for ground rent against a tenant’s property. To the contrary, in Montana v. Alabama Fishermen’s & Hunters’ Ass’n, 226 Ala. 303, 305, 146 So. 805, 806 (1933), our Supreme Court held that a landlord did not have a statutory lien for ground rent against a building that the tenant had constructed on the leased premises. While Alabama law provides for landlords’ liens for other purposes, none of those liens appear applicable to the facts of this case. See Faulk v. Green Tree Acceptance, Inc., 549 So.2d 80, 81 (Ala.1989) (towing and storage charges for an abandoned mobile home do not result in a statutory lien or a common-law possessory lien); Ala.Code 1975, § 35-9-30 (providing a landlord’s lien against a tenant’s crops grown on rented lands); Ala.Code 1975, § 35-9-60 (providing a landlord of a rented “storehouse, dwelling house, or other building” with a lien on a tenant’s “goods, furniture, and effects”). Accordingly, we conclude that that portion of the trial court’s judgment awarding Attaway damages in satisfaction of a purported lien for ground rent is due to be reversed.

Conseco also argues that there was insufficient evidence to support Attawa/s claim that the damage that Attaway allegedly suffered when the mobile home was removed from his property was caused by Conseco. Attaway testified, however, that at least one of Conseco’s employees was involved in removing the mobile home from Attaway’s property, and, based upon the record, the trial court could have concluded that the removal of the mobile home was carried out pursuant to the authority granted to Conseco by the October 2000 consent order. That portion of the trial court’s judgment awarding Attaway damages for his water bill and as compensation for the damage to his waterline and power pole is due to be affirmed.

That portion of the trial court’s judgment awarding Attaway damages for his water bill and for the damage to his waterline and power pole is hereby affirmed. We reverse that portion of the trial court’s judgment awarding Attaway damages for lot rent, and we remand the cause for further proceedings.

The Appellee’s request for the award of an attorney fee on appeal is denied.

AFFIRMED IN PART; REVERSED IN PART; AND REMANDED.

YATES, P.J., and CRAWLEY, THOMPSON, and PITTMAN, JJ., concur.

      . In November 1999, Bailey stopped making payments to Conseco for the mobile home. He informed Conseco that he was vacating the mobile home and that Conseco should repossess it in January 2000. However, he apparently did not vacate the home until after February 2000.

      . At trial, Conseco acknowledged that it had repossessed the mobile home and stated that Attaway’s claims for lot rent were the only remaining claims to be disposed of by the trial court.

      . Attaway argues in his brief to this court that he and Conseco entered into an express, oral contract pursuant to which, he claims, Conse-co obligated itself to pay lot rent. In the alternative, Attaway has also argued that the trial court's judgment might be supported on úle. grounds of promissory estoppel, unjust enrichment, or trespass and nuisance.
      Attaway failed to include the aforementioned causes of action in his counterclaim, and he failed to file a motion to amend the pleadings. Based on our review of the record, and particularly the posttrial comments of the parties and the trial court regarding what issues were to be decided, we cannot conclude that the parties tried Attaway's un-pleaded causes of action by express or implied consent. See Rule 15(b), Ala. R. Civ. P.

      . Further, there was no evidence indicating that Attaway obtained a lien by any agreement between him and either Bailey or Con-seco.

      . Although the trial court did not specify the basis of its damages award, Attaway's claim for unpaid lot rent and late charges totaled only $5,375. It appears that the trial court awarded Attaway approximately $1,600 in damages associated with damage to the waterline and the power pole. However, we are unable to account for the $5 discrepancy between the $6,970 judgment award and the $6,975 claimed by Attaway.


author: PER CURIAM.

text:
    Teresa Desselle THOMAS v. John A. WILLIAMS.
    2070512.
    Court of Civil Appeals of Alabama.
    Nov. 21, 2008.
    Certiorari Denied April 24, 2009 Alabama Supreme Court 1080299.

      Shay Samples and James R. Moncus III of Hare, Wynn, Newell & Newton, L.L.P., Birmingham, for appellant.
    Thomas H. Keene, L. Peyton Chapman III, and Bethany L. Bolger of Rushton, Stakely, Johnston <& Garrett, P.A., Montgomery, for appellee.
   PER CURIAM.

Teresa Desselle Thomas sued John A. Williams, seeking an award of damages on claims alleging intentional interference with a business relationship, the tort of outrage, and intentional infliction of emotional distress. Williams moved to dismiss Thomas’s complaint pursuant to Rule 12(b)(6), Ala. R. Civ. P., alleging that Thomas had failed to state a claim upon which relief could be granted. Thomas responded to Williams’s motion to dismiss by arguing that her complaint was sufficient under Rule 8, Ala. R. Civ. P. The trial court heard oral arguments on the motion to dismiss. On December 11, 2007, the trial court entered a notation on the case-action summary in which it granted Williams’s motion to dismiss. Thomas timely appealed.

Our supreme court has set forth the standard of review of a Rule 12(b)(6) dismissal for failure to state a claim upon which relief may be granted as follows:

“ ‘This Court must review de novo the propriety of a dismissal for failure to state a claim and must resolve all doubts in favor of the plaintiff:
“ ‘ “It is a well-established principle of law in this state that a complaint, like all other pleadings, should be liberally construed, Rule 8(f), Ala. R. Civ. P., and that a dismissal for failure to state a claim is properly granted only when it appears beyond a doubt that the plaintiff can prove no set of facts entitling him to relief. Winn-Dixie Montgomery, Inc. v. Henderson, 371 So.2d 899 (Ala.1979) ....
‘““Where a 12(b)(6)[, Ala. R. Civ. P.,] motion has been granted and this Court is called upon to review the dismissal of the complaint, we must examine the allegations contained therein and construe them so as to resolve all doubts concerning the sufficiency of the complaint in favor of the plaintiff. First National Bank v. Gilbert Imported Hardwoods, Inc., 398 So.2d 258 (Ala.1981). In so doing, this Court does not consider whether the plaintiff will ultimately prevail, only whether he has stated a claim under which he may possibly prevail. Kara-gan v. City of Mobile, 420 So.2d 57 (Ala.1982).”
‘“Fontenot v. Bramlett, 470 So.2d 669, 671 (Ala.1985).’ ”

Fogarty v. Parker, Poe, Adams & Bernstein, L.L.P., 961 So.2d 784, 787-88 (Ala.2006) (quoting Bay Lines, Inc. v. Stoughton Trailers, Inc., 838 So.2d 1013, 1017-18 (Ala.2002)); see also Stovall v. Universal Constr. Co., 893 So.2d 1090, 1101-1102 (Ala.2004) (same); and Pratt Capital, Inc. v. Boyett, 840 So.2d 138, 142-43 (Ala.2002) (same). Our supreme court has recently stated that although we have notice pleading under Alabama’s Rules of Civil Procedure, “ ‘a pleading must give fair notice of the claim against which the defendant is called to defend.’ ” Ex parte Burr & For-man, LLP, 5 So.3d 557, 566 (Ala.2008) (emphasis omitted), quoting Archie v. Enterprise Hosp. & Nursing Home, 508 So.2d 693, 696 (Ala.1987); see also Ex parte International Refining & Mfg. Co., 972 So.2d 784, 789 (Ala.2007) (“[T]he purpose of notice pleading is to provide defendants adequate notice of the claims against them.”).

In his motion to dismiss, Williams argued that Thomas’s complaint does not contain allegations sufficient to support her claims asserting the tort of outrage, intentional infliction of emotional distress, and intentional interference with business relations. The factual allegations in Thomas’s complaint read as follows:

“1. The Plaintiff, Teresa Thomas, is an adult resident of Autauga County, Alabama and resides in the town of Mill-brook.
“2. The Defendant, John Williams, is an adult resident of Montgomery County, Alabama and is a practicing medical doctor in Montgomery.
“3. The Plaintiff, Teresa Thomas, was employed as a medical assistant by Dr. James Carpenter from approximately February, 2007, until September 18, 2007, when she was abruptly fired without warning, justification, or explanation.
“4. The Plaintiff, Teresa Thomas, lost her husband, David Brian Thomas, on January 24, 2002, due to the negligent medical care delivered by Defendant, John Williams.
“5. The Plaintiff, Teresa Thomas, as the duly qualified Administratrix of the Estate of her deceased husband, brought a wrongful death lawsuit against Defendant, John Williams, on January 23, 2004.
“6. The wrongful-death and medical-malpractice lawsuit was tried to a jury on or about the week of September 10, 2007.
“7. On September 17, 2007, a Montgomery County jury returned a verdict in favor of Defendant, John Williams.
“8. On the same day, September 17, 2007, Defendant, John Williams, placed a telephone call to Dr. James Carpenter, during business hours, ....
“9. At the time of this initial call, Dr. Carpenter was not available to take [Williams’s] telephone call. [Williams] was given Dr. Carpenter’s cellular phone number instead.
“10. On September 17, 2007, at approximately 3:00 p.m., Defendant, John Williams, again called Dr. Carpenter’s place of business and asked to speak to Dr. Carpenter. On this occasion, Dr. Carpenter was available and took the telephone call in his office.
“11. The next day, on September 18, 2007, at approximately 10:30 a.m., the Plaintiff, Teresa Thomas, received a telephone call from Dr. Carpenter’s office manager who stated that ‘your services are no longer needed anymore.’
“12. At no time was Plaintiff, Teresa Thomas, offered any explanation or justification whatsoever for her abrupt and totally unexpected termination.
“13. [Thomas’s] job performance had been completely acceptable during the course of her employment with Dr. James Carpenter, and no complaints had ever been voiced about her job performance prior to the phone calls made by Defendant, John Williams.
“14. The Plaintiff, Teresa Thomas, inquired as to whether the office manager had received a telephone call regarding her employment. The office manager replied that she had not personally received such a telephone call and declined to talk further about it.
“15. The Plaintiff, Teresa Thomas, went to Dr. Carpenter’s office that afternoon to retrieve her personal belongings.
“16. The Plaintiff, Teresa Thomas, again inquired as to whether John Williams had called the office. Dr. Carpenter’s medical assistant replied that T can’t say Teresa, but believe what you are asking me is true.’
“17. The Plaintiff, Teresa Thomas, further avers that the Defendant, John Williams, intentionally and maliciously made the phone call to her employer, Dr. James Carpenter, with the intent and purpose of seeking, directly or indirectly, the termination of Teresa Thomas’s employment.
“18. [Thomas] also avers that the Defendant, John Williams, knew that she was the sole bread winner for two of her children, and furthermore, that his intentional and malicious phone call was made with intent to financially damage the family, as well as to intentionally inflict mental and emotional distress upon [Thomas].”

Thomas argues that the trial court erred in dismissing her claims against Williams. As an initial matter, we note that Thomas purports to assert separate claims of the tort of outrage and intentional infliction of emotional distress based on the same conduct on the part of Williams; however, the tort of outrage is the same cause of action as intentional infliction of emotional distress. Harrelson v. R.J., 882 So.2d 317, 321-22 (Ala.2003); Gunter v. Huddle, 724 So.2d 544, 547 (Ala.Civ.App.1998). For the purposes of this opinion, we refer to the two claims as a claim of the tort of outrage, and we address the trial court’s dismissal of that claim first.

“The elements of such a claim are settled:

“ ‘The tort of outrage requires that: (1) the actor intended to inflict emotional distress, or knew or should have known that emotional distress was likely to result from his conduct; (2) the conduct was extreme and outrageous; (3) the defendant’s actions caused the plaintiff distress; and (4) ... the distress was severe. With respect to the conduct element, this Court has stated that the conduct must be “so outrageous in character and so extreme in degree as to go beyond all possible bounds of decency, and to be regarded as atrocious and utterly intolerable in a civilized society.” ’ ”

Gunter v. Huddle, 724 So.2d at 547 (quoting Harris v. McDavid, 553 So.2d 567, 569-70 (Ala.1989)); see also American Road Sen. Co. v. Inmon, 394 So.2d 361, 365 (Ala.1980) (recognizing the tort of outrage as actionable in Alabama).

In American Road Service Co. v. In-mon, supra, Inmon lost his job after his employer conducted an investigation of an alleged “kick-back” scheme and an audit of Inmon’s job performance. Inmon presented evidence indicating that he “had been harassed, investigated without cause, humiliated, accused of improper dealings, treated uncustomarily, and terminated without justification.” 394 So.2d at 367. However, our supreme court, although recognizing that a cause of action existed for the tort of outrage, concluded that the evidence presented in that case was insufficient to support a tort-of-outrage claim. In reaching that conclusion, the court acknowledged that “the record supports the conclusion that the management of In-mon’s investigation and termination may have been somewhat disorganized, and a humiliating experience for him personally.” 394 So.2d at 368. However, the court held that the employer’s conduct could not be characterized as “ ‘so outrageous in character, and so extreme in degree, as to go beyond all possible bounds of decency, and to be regarded as atrocious, and utterly intolerable in a civilized community.’ ” Id. (quoting Restatement (Second) of Torts, § 46, Comment (d), p. 73 (1948)).

In Potts v. Hayes, 771 So.2d 462, 465 (Ala.2000), Hayes, a nurse, sued her supervisor after the supervisor sent a letter to the Alabama Board of Nursing documenting concerns he had about Hayes’s regularly seeking narcotics for migraines; her receiving narcotics without a doctor’s order; and her checking out narcotics as apart of her job, but doing so without proper documentation. Hayes alleged, among other things, that the supervisor’s conduct amounted to an intentional infliction of emotional distress, i.e., that it support a tort-of-outrage claim, because, she stated, he had publicly accused her of “ ‘being a drug addict, a thief, a danger to the public and of failing to perform her duties’ ” as a nurse. 771 So.2d at 464. Our supreme court held that the evidence was insufficient to submit to a jury on a tort-of-outrage claim and that the trial court erred in failing to enter a judgment as a matter of law on Hayes’s tort-of-outrage claim. In so holding, the court recognized:

“The tort of outrage is an extremely limited cause of action. It is so limited that this Court has recognized it in regard to only three kinds of conduct: (1) wrongful conduct in the family-burial context, Whitt v. Hulsey, 519 So.2d 901 (Ala.1987); (2) barbaric methods employed to coerce an insurance settlement, National Sec. Fire & Cas. Co. v. Bowen, 447 So.2d 133 (Ala.1983); and (3) egregious sexual harassment, Busby v. Truswal Sys. Corp., 551 So.2d 322 (Ala. 1989). See also Michael L. Roberts and Gregory S. Cusimano, Alabama Tori Law, § 23.0 (2d ed. 1996). In order to recover, a plaintiff must demonstrate that the defendant’s conduct ‘(1) was intentional or reckless; (2) was extreme and outrageous; and (3) caused emotional distress so severe that no reasonable person could be expected to endure it.’ Green Tree Acceptance, Inc. v. Stand-ridge, 565 So.2d 38, 44 (Ala.1990) (citing American Road Service Co. v. Inmon [, 394 So.2d 361 (Ala.1980) ]).”

Potts v. Hayes, 771 So.2d at 465.

Since the release of Potts v. Hayes, supra, our supreme court has affirmed judgments on jury verdicts entered on a tort-of-outrage claim in two other cases— one involved a sexual assault on a minor and the other could be said to have involved “barbaric methods employed to coerce an insurance settlement.” See Potts v. Hayes, 771 So.2d at 465. In Harrelson v. R.J., supra, our supreme court held that the defendant’s sexual assault of a 15-year-old girl and the girl’s resulting emotional distress was sufficient to support a judgment on a jury verdict against the defendant on a tort-of-outrage claim. In that case, our supreme court concluded that the evidence supported a conclusion that the defendant’s conduct had caused the victim emotional distress “so severe that no reasonable person could be expected to endure it.” Harrel-son v. R.J., 882 So.2d at 323. In Travelers Indemnity Co. of Illinois v. Griner, 809 So.2d 808, 811-12 (Ala.2001), two defendant workers’ compensation administrators, although contractually obligated to provide medical benefits, withheld those benefits without justification, causing the plaintiff to “remain[ ] depressed and in pain for an extended period without the medical necessities prescribed by his authorized physicians.” As a result, the administrators’ conduct created the possibility of the plaintiffs being forced to accept a minimal workers’ compensation settlement. Our supreme court concluded that that evidence supported the plaintiffs tort-of-outrage claim, and it affirmed a judgment entered on a jury verdict in favor of the plaintiff. Id.

In Collins v. Henderson, 480 So.2d 1246 (Ala.Civ.App.1985), Henderson, a contractor, sued Collins, a homeowner, after Collins had failed to pay him for certain repairs. Collins counterclaimed, alleging that the contractor had “(1) caused tar damage to her home and household furnishings, (2) caused the walls in her home to crack, (3) caused her house to leak, resulting in water damage to her home and household furnishings, and (4) cut a power cable outside the home and then improperly repaired the cable, causing balls of electricity to fly through her home.” 480 So.2d at 1248. Collins asserted, among other claims, a tort-of-outrage claim. The trial court dismissed the tort-of-outrage claim, and this court affirmed, concluding that Collins had failed to assert a claim upon which relief could be granted. This court explained:

“The allegations in the counterclaim and upon which Collins based her claim of outrage relate to breach of contract and negligent performance of the contract and, therefore, do not rise to that level of ‘extreme and outrageous conduct’ required by our cases and the Restatement (Second) of Torts, supra. Consequently, Collins’s tort of outrage count does not state a claim for which relief can be granted. Hence, the trial court did not commit reversible error by dismissing [Collins’s tort-of-outrage claim].”

Collins v. Henderson, 480 So.2d at 1248 (emphasis added).

In this case, in addition to her factual allegations quoted above, in asserting her tort-of-outrage claim, Thomas alleged:

“Defendant, John Williams, as referenced herein, engaged in irreprehensible [sic] conduct in contacting Dr. Carpenter and in intentionally and maliciously interfering in the business relationship between Dr. Carpenter and [Thomas]. As such, [Williams’s] conduct was so outrageous in character and so extreme in degree as to go beyond all possible bounds of decency, and to be regarded as atrocious and utterly intolerable in a civilized society.
“By virtue of [Williams’s] conduct, Plaintiff, Teresa Thomas, has sustained damages and suffered losses, including being subjected to severe emotional distress.”

Thus, the allegations in Thomas’s complaint allege that Williams contacted her employer and that, shortly thereafter, her employer terminated her employment. Although Thomas alleges that Williams intended to cause the termination of her employment, she did not allege that Williams actually caused the loss of her employment. This court must construe the complaint in a manner in which all doubts regarding the sufficiency of the pleadings are resolved in favor of Thomas. Fogarty v. Parker, Poe, Adams & Bernstein, L.L.P., supra. Accordingly, we construe the complaint as alleging that Williams improperly caused the termination of Thomas’s employment. We further conclude that Thomas’s cursory statement that she was “subjected to severe emotional distress” was sufficient to survive a motion to dismiss. Therefore, we conclude that, in her complaint, Thomas set forth allegations in support of each of the required elements of the tort of outrage.

However, in addition to requiring “a short and plain statement of the claim,” Rule 8(a), Ala. R. Civ. P., also requires that “the pleader [show that she] is entitled to relief’ on that claim. Even if all the allegations Thomas cited in support of her tort-of-outrage claim are taken as true, we must conclude that the facts of this case are insufficient to rise to the level necessary to support a tort-of-outrage claim. In essence, Thomas has alleged that Williams caused her to lose her job. Assuming Thomas’s allegations to be true and capable of being supported by the evidence, we cannot say that Williams’s conduct rose to the level at which our courts have allowed recovery for the tort of outrage, i.e., cases involving misconduct in a burial, sexual harassment or assault, or barbaric methods of coercing an insurance settlement. See Potts v. Hayes, supra; see also Harrelson v. R.J., supra; and Travelers Indemnity Co. of Illinois v. Griner, supra. We cannot say that Williams’s conduct, as alleged in Thomas’s complaint, was “ ‘so outrageous in character, and so extreme in degree, as to go beyond all possible bounds of decency, and to be regarded as atrocious, and utterly intolerable in a civilized community.’ ” American Road Serv. Co. v. Inmon, 394 So.2d at 368. Accordingly, we agree with Williams that, with regard to Thomas’s tort-of-outrage claim, Thomas failed to state a claim upon which relief could be granted, and we affirm the trial court’s dismissal of that claim. Collins v. Henderson, supra.

Thomas next argues that the trial court erred in dismissing her claim asserting intentional interference with business relations. Our supreme court has stated:

“The elements of the tort of interference with contractual or business relations are: 1) the existence of a contract or business relation; 2) the defendant’s knowledge of the contract or business relation; 3) intentional interference by the defendant with the contract or business relation; 4) the absence of justification for the defendant’s interference; and 5) damage to the plaintiff as a result of the interference.’ Soap Co. v. Ecolab, Inc., 646 So.2d 1366, 1371 (AJa.1994). ‘The general rule firmly meshed into the law of most jurisdictions today is that one who, without justification to do so, induces a third person not to perform a contract with another, is liable to the other for the harm caused thereby.’ Gross v. Loivder Realty Better Homes & Gardens, 494 So.2d 590, 596 (Ala.l986)(emphasis added).”

Ex parte Aivtrey Realty Co., 827 So.2d 104, 108-09 (Ala.2001); see also Soap Co. v. Ecolab, Inc., 646 So.2d 1366, 1371 (Ala.1994) (same).

In his motion to dismiss, Williams, citing Barber v. Business Products Center, Inc., 677 So.2d 223, 227 (Ala.1996), contends that Thomas was also required to allege “fraud, force, or coercion” on the part of Williams in support of her claim alleging intentional interference with business relations. See also Joe Cooper & Associates, Inc. v. Central Life Assurance Co., 614 So.2d 982 (Ala.1992), upon which Barber relies for that proposition. In setting forth the elements of the cause of action of intentional interference with business relations, and including the element of “fraud, force, or coercion,” both Barber and Joe Cooper & Associates, supra, omit the “absence of justification” element set forth in Awtrey Realty, supra.

The contradiction in the stated elements of intentional interference with business relations leads us to more closely examine the cause of action. In Gross v. Lovcder Realty Better Homes & Gardens, 494 So.2d 590 (Ala.1986), our supreme court set forth the history of the cause of action of intentional interference with business relations, explaining that it was first recognized in Sparks v. McCreary, 156 Ala. 382, 47 So. 332 (1908), as an intentional interference that resulted in harm to the plaintiffs business. 494 So.2d at 593. The cause of action was later narrowed in Ers-well v. Ford,, 208 Ala. 101, 94 So. 67 (1922), to provide that it could be asserted in only two instances: when an employee is enticed to leave his employment or “ ‘where a party has been procured against his will or contrary to his purpose, by coercion or fraud, to break his contract with another.’ ” Gross, 494 So.2d at 594-95 (quoting Erswell v. Ford, 208 Ala. at 103, 94 So. at 69). The court then discussed the similarity of the torts of intentional interference with business relations and intentional interference with contractual relations, and it ultimately concluded that there was no reason to maintain a distinction between the two causes of action. The court explained:

“[M]any jurisdictions have established a cause of action broad enough to include not only interference with contractual relations, but also interference with business relations not necessarily involving a contract. See 45 Am.Jur.2d Interference §§ 49-50 (1969); Annot., 5 A.L.R.4th 9 (1981). Adoption of this broad scope of the cause of action has been recognized as the better approach in those jurisdictions, such as ours, in which an action for interference with business relations is allowed. We see no reason to continue the distinction between the two causes of action and are of the opinion that a single set of elements, broadly defined, so as to include both causes of action, would simplify and clarify the law in this area.”

Gross, 494 So.2d at 596-97. Accordingly, the court set forth the elements for the newly combined, broader cause of action of intentional interference with business or contractual relations as requiring:

“(1) The existence of a contract or business relation;
“(2) Defendant’s knowledge of the contract or business relation;
“(3) Intentional interference by the defendant with the contract or business relation;
“(4) Absence of justification for the defendant’s interference; and
“(5) Damage to the plaintiff as a result of defendant’s interference.
" 3We retain the principle that justification is an affirmative defense to be pleaded and proved by the defendant. Whether the defendant is justified in his interference is generally a question to be resolved by the trier of fact. Polytec, Inc. v. Utah Foam Products, Inc., 439 So.2d 683 (Ala.1983). Whether a defendant’s interference is justified depends upon a balancing of the importance of the objective of the interference against the importance of the interest interfered with, taking into account the surrounding circumstances. Restatement (Second) of Torts § 767 (1979), and Comments. The restatement utilizes the term 'improper' to describe actionable conduct by a defendant. Non-justification is synonymous with ‘improper.’ If a defendant’s interference is unjustified under the circumstances of the case, it is improper. The converse is also true. Section 767 of the Restatement lists, and the Comments explain, several items that we consider to be among the important factors to consider in determining whether a defendant's interference is justified:
“ ‘(a) the nature of the actor’s conduct,
“ ‘(b) the actor’s motive,
“ ‘(c) the interests of the other with which the actor’s conduct interferes,
“ ‘(d) the interests sought to be advanced by the actor,
“ ‘(e) the social interests in protecting the freedom of action of the actor and the contractual interests of the other,
“‘(f) the proximity or remoteness of the actor’s conduct to the interference, and
“ ‘(g) the relations between the parties.’
“Restatement (Second) of Torts § 767 (1979).”

Gross, 494 So.2d at 597 (footnote omitted). Thus, the elements of the cause of action as set forth in Awtrey Realty, supra, are the same as those first set forth by our supreme court in Gross when it created the broader cause of action of intentional interference with business or contractual relations.

Barber and Joe Cooper & Associates are the only cases decided by our supreme court since Gross that mention the requirement of “fraud, force, or coercion” as an element of the tort of intentional interference with business or contractual relations. Most cases dealing with a claim of intentional interference with business relations since the decisions in Barber, supra, and Joe Cooper & Associates, supra, have relied upon the “absence of justification” element rather than the requirement of a showing of “fraud, force, or coercion.” See, e.g., Tom’s Foods, Inc. v. Cam, 896 So.2d 443, 453-54 (Ala.2004); Waddell & Reed, Inc. v. United Investors Life Ins. Co., 875 So.2d 1143, 1153 (Ala.2003); Michelin Tire Corp. v. Goff, 864 So.2d 1068, 1077 (Ala.Civ.App.2002); Parsons v. Aaron, 849 So.2d 932, 946 (Ala.2002); Colonial Bank v. Patterson, 788 So.2d 134, 136-37 (Ala.2000); Folmar & Assocs., LLP v. Holberg, 776 So.2d 112, 115 (Ala.2000); Sevier Ins. Agency, Inc. v. Willis Corroon Corp. of Birmingham, 711 So.2d 995, 1001 (AIa.1998), rev’d on other grounds, Ex parte Howell Eng’g & Surveying, Inc., 981 So.2d 413 (Ala.2006); and Rhodes v. Collateral Mortgage, Ltd., 695 So.2d 66, 68 (Ala.Civ.App.1997). Other recent cases have omitted the “absence of justification” element but have failed to mention a requirement of “fraud, force, or coercion.” See, e.g., S.B. v. Saint James Sch., 959 So.2d 72, 94 (Ala.2006); McCluney v. Zap Profl Photography, Inc., 663 So.2d 922, 925 (Ala.1995); Utah Foam Prods., Inc. y. Polytec, Inc., 584 So.2d 1345, 1352-53 (Ala. 1991); and Cobb v. Union Camp Corp., 786 So.2d 501, 506 (Ala.Civ.App.2000), rev’d on other grounds, Ex parte Union Camp Corp., 816 So.2d 1039 (Ala.2001).

Thus, this court’s research has revealed no cases decided since Barber and Joe Cooper & Associates that require an allegation or proof of “fraud, force, or coercion” on the part of the defendant in order to allege a claim of intentional interference with business relations. The supreme court indicated in Gross, supra, that it intended to replace the old cause of action of intentional interference with business relations, a part of which included the “fraud, force, or coercion” language, with the broader cause of action of interference with business or contractual relations. In doing so, the court set forth elements for that cause of action that did not include “fraud, force, or coercion” on the part of the defendant. See Gross, supra. In setting forth the elements of the cause of action, the supreme court also included a footnote, quoted supra, in which it explained the required element of “absence of justification.” Gross, 494 So.2d at 597.

More recent authority than Barber and Joe Cooper & Associates has required an “absence of justification” for the purported interference, rather than “fraud, force, or coercion.” Also, a requirement that a plaintiff claiming intentional interference with contractual relations allege and show an “absence of justification” does not conflict with our supreme court’s opinion in Gross, supra. Accordingly, we elect to follow the line of cases setting forth the elements of an intentional interference with business relations as

“ ‘1) the existence of a contract or business relation; 2) the defendant’s knowledge of the contract or business relation; 3) intentional interference by the defendant with the contract or business relation; 4) the absence of justification for the defendant’s interference; and 5) damage to the plaintiff as a result of the interference.’ ”

Ex parte Awtrey Realty Co., 827 So.2d at 108-09 (quoting Soap Co. v. Ecolab, Inc., 646 So.2d at 1371); see also Tom’s Foods, Inc. v. Carn, supra; Waddell & Reed, Inc. v. United Investors Life Ins. Co., supra; Michelin Tire Corp. v. Goff, supra; Parsons v. Aaron, supra; Colonial Bank v. Patterson, supra; Folmar & Assocs., LLP v. Holberg, supra; Sevier Ins. Agency, Inc. v. Willis Corroon Corp. of Birmingham, supra; and Rhodes v. Collateral Mortgage, Ltd., supra.

In this case, Thomas alleged that Williams had called the man he knew to be Thomas’s employer and that, shortly thereafter, Thomas lost her employment. Thomas asserted facts tending to indicate that Williams’s contact with her employer constituted interference with her employment relationship with her employer, and she stated that the purported interference was not justified. Thus, we conclude that Thomas alleged facts sufficient to assert a valid claim of intentional interference with business or contractual relations. We note that the absence of justification for the interference is an element that, in addition to being alleged and proven by plaintiff, is also an affirmative defense available to the defendant. Gross, 494 So.2d at 597 n. 3.; see also Tom’s Foods, Inc. v. Carn, 896 So.2d at 454-55; and Parsons v. Aaron, 849 So.2d at 946. In his brief submitted to this court, Williams has argued facts that he contends constitute a justification for his purported interference. However, those arguments have not, at this stage of the litigation, been presented to or considered by the trial court.

In reaching our holding, we do not consider whether Thomas will actually prevail on her intentional-interference-with-business-relations claim, see Fogarty v. Parker, Poe, Adams & Bernstein, L.L.P., supra. We merely conclude that the facts as alleged in that complaint, when construed in Thomas’s favor, are sufficient to state a claim of intentional interference with business relations such that relief might be granted on that claim and are sufficient to give Williams “fair notice” of that claim. See Rule 8(a), Ala. R. Civ. P.; and Gross v. Lowder Realty Better Homes & Gardens, supra; see also Ex parte Burr Forman, LLP, supra. We conclude that the trial court erred in dismissing that part of Thomas’s complaint in which she asserted a claim of intentional interference with business relations. Accordingly, we reverse that part of its judgment, and we remand the cause for further proceedings.

AFFIRMED IN PART; REVERSED IN PART; AND REMANDED.

THOMPSON, P.J., and PITTMAN, BRYAN, and THOMAS, JJ„ concur.

MOORE, J., concurs in the result, without writing.

      . We note that in his brief submitted to this court, Williams argues that the United States Supreme Court has set forth a more stringent standard for stating a claim in a complaint, see Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007), and that this court should apply that standard. The Supreme Court of Alabama has the sole authority to promulgate rules governing practice and procedure in all Alabama courts. Ala. Const, of 1901, Amend. No. 328, § 6.11 (now Art. VI, § 150, Ala. Const. 1901 (Off. Recomp.)); Ex parte Sorsby, 12 So.3d 139 (Ala.2007). Also, this court is bound by the precedent of our supreme court, and, therefore, we are unable to overrule prior caselaw in order to alter a well-settled standard of review. § 12-3-16, Ala.Code 1975; Farmers Ins. Exch. v. Raine, 905 So.2d 832, 835 (Ala.Civ.App.2004). Accordingly, we use the well-settled standard of review of a motion to dismiss.

      . A person's employment is a property right, and interference with that right may be actionable under the theory of intentional interference with business or contractual relations. Hall v. Integon Life Ins. Co., 454 So.2d 1338, 1344 (Ala. 1984).

      . In Pakruda v. Cross, 669 So.2d 907, 909 (Ala.Civ.App. 1995), this court, citing Joe Cooper & Associates, also stated that "fraud, force, or coercion” was a required element of the tort of intentional interference with business or contractual relations.


author: THOMPSON, Presiding Judge.

text:
    Linda Lee COCHRAN v. Joseph P. CHAPMAN.
    2070541.
    Court of Civil Appeals of Alabama.
    Dec. 31, 2008.
    Rehearing Denied March 9, 2009.
    Certiorari Denied April 24, 2009 Alabama Supreme Court 1080684.

      W. Gregory Hughes, Mobile, for appellant.
    Grady R. Edmondson, Mobile, for appel-lee.
   THOMPSON, Presiding Judge.

Linda Lee Cochran appeals from a purported final judgment of the Mobile Circuit Court finding that she and Joseph P. Chapman are married by virtue of the common law. For the reasons set forth herein, we determine that the trial court’s order did not constitute a final judgment, and, therefore, we dismiss the appeal for lack of appellate jurisdiction.

On June 8, 2007, Chapman filed a complaint for a divorce against Cochran. Among other things, he alleged in his complaint that he and Cochran had married on December 31, 1989, and had lived together until their separation on June 1, 2007. In her answer to the complaint, Cochran denied that she and Chapman were married.

The trial of the matter on November 14, 2007, focused on whether the parties had entered into a common-law marriage; it was apparently conceded that if they were married, it was solely by virtue of the common law. On November 20, 2007, the trial court issued a judgment determining that the parties had not entered into a common-law marriage.

On December 5, 2007, Chapman filed a motion to alter, amend, or vacate the trial court’s judgment. He argued that sufficient evidence was offered at the trial to indicate that the parties were married by virtue of the common law and that the trial court’s judgment was contrary to pleadings that Cochran had filed in a previous divorce action between the parties that had been dismissed. On February 11, 2008, the trial court granted Chapman’s motion and vacated its November 20, 2007, judgment. In its order, the trial court found that the parties had, in fact, entered into a common-law marriage. The trial court set the case for a trial on July 23, 2008.

On February 28, 2008, Cochran filed a motion asking the trial court to certify the February 11, 2008, order as final pursuant to Rule 54(b), Ala. R. Civ. P. The trial court granted Cochran’s motion. Thereafter, Cochran appealed the trial court’s February 11, 2008, order.

In his brief on appeal, Chapman contends, among other things, that this court lacks jurisdiction over this appeal. We agree.

“An appeal ordinarily will lie only from a final judgment — i.e., one that conclusively determines the issues before the court and ascertains and declares the rights of the parties involved.” Bean v. Craig, 557 So.2d 1249, 1253 (Ala.1990). Rule 54(b), Ala. R. Civ. P., provides an exception to this rule. It reads, in pertinent part:

“When more than one claim for relief is presented in an action, whether as a claim, counterclaim, cross-claim, or third-party claim, or when multiple parties are involved, the court may direct the entry of a final judgment as to one or more but fewer than all of the claims or parties only upon an express determination that there is no just reason for delay and upon an express direction for the entry of judgment.”

Discussing the propriety of a Rule 54(b) certification of finality, this court recently wrote:

“In State v. Brantley Land, L.L.C., 976 So.2d 996 (Ala.2007), our supreme court reviewed an order, purportedly made final pursuant to Rule 54(b), in which the trial court granted the State of Alabama a fee-simple interest in certain real property it had sought to condemn but reserved the question of compensation owed the owners of the property for a trial. On appeal by the State, the supreme court addressed the propriety of the certification of finality under Rule 54(b). It stated:
“ ‘In James v. Alabama Coalition for Equity, Inc., 713 So.2d 987 (Ala. 1997), this Court stated:
“ ‘ “Not every order has the element of finality necessary to trigger the application of Rule 54(b). Tanner v. Alabama Power Co., 617 So.2d 656, 656 (Ala.1993) (Rule 54(b) ‘confers appellate jurisdiction over an order of judgment only where the trial court “has completely disposed of one of a number of claims, or one of multiple parties” ’ (emphasis in Tanner)).”
“‘713 So.2d at 941. As the James Court further stated, “ ‘[o]nly a fully adjudicated whole claim against a party may be certified under Rule 54(b).’” 713 So.2d at 942 (quoting Sidag Aktiengesellschaft v. Smoked Foods Prods. Co., 813 F.2d 81, 84 (5th Cir.1987) (emphasis in Sidag)). Similarly, in Precision American Corp. v. Leasing Service Coup., 505 So.2d 380, 381 (Ala.1987), this Court held that the partial summary judgment at issue in that case did not “completely dispose[ ] of a claim so as to make that
judgment final. Rule 54(b) does not authorize the entry of final judgment on part of a single claim.” ’
976 So.2d at 999 (footnote omitted). The supreme court concluded that the trial court’s order vesting the State with title to the real property but failing to award compensation to the landowners from whom the property was taken ‘[did] not present [it] with a “fully adjudicated whole claim,” ... and that, therefore, the trial court erred in directing the entry of a final judgment as to that order.’ Id. at 1001.”

Martin v. Phillips, 7 So.3d 1012, 1018 (Ala.Civ.App.2008).

In the present case, Chapman’s complaint sets forth a single claim for relief: a divorce from Cochran with the attendant division of marital property and debt. The question whether the parties are married does not constitute a discrete “claim” within the case; instead, it is a constituent part of Chapman’s single claim for a divorce. Thus, the trial court’s order setting aside its final judgment and determining that the parties had entered into a common-law marriage does not “fully adjudicate a whole claim,” as was necessary to make the order subject to a certification of finality under Rule 54(b).

This court has previously noted that it disfavors the adjudication of divorce cases in piecemeal fashion. See Morrison v. Morrison, 1 So.3d 1052 (Ala.Civ.App.2008) (citing Flores v. Flores, 978 So.2d 791 (Ala. Civ.App.2007), and Blythe v. Blythe, 976 So.2d 1018, 1020 n. 3 (Ala.Civ.App.2007)). Such an observation is particularly true, where, as here, the judgment from which the appellant appeals does not even determine whether the parties should be divorced in the first instance.

Based on the foregoing, we conclude that it was inappropriate for the trial court to certify as final under Rule 54(b) its order holding that Chapman and Cochran were married by virtue of the common law. Thus, the order from which Cochran appeals is not a final judgment, and, as a result, this court lacks jurisdiction over her appeal. Her appeal is therefore due to be dismissed. See Trousdale v. Tubbs, 929 So.2d 1020,1023 (Ala.Civ.App.2005).

APPEAL DISMISSED.

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

      . We note that in our previous decision in Buford v. Buford, 874 So.2d 562 (Ala.Civ.App. 2003), this court resolved an appeal from an order, certified as final under Rule 54(b), in which the trial court had found that a common-law marriage existed between the parties but had not resolved the underlying claim for a divorce. The court made no express finding of appellate jurisdiction in that case. That an implied finding of jurisdiction may arise from Buford does not control the resolution of the question of jurisdiction in the present case. As our Supreme Court has said with regard to issues of jurisdiction not specifically decided in a previous case:
      "For a case to be stare decisis on a particular point of law, that issue must have been raised in the action, decided by the court, and its decision made part of the opinion of the case; accordingly, a case is not binding precedent on a point of law where the holding is only implicit or assumed in the decision but is not announced.”
      " ‘20 AmJur.2d Courts § 153 (1995) (footnotes omitted). As our Supreme Court recently observed, "[arguments based on what courts do not say, logically speaking, are generally unreliable and should not be favored by the judiciary; this is especially true when the judiciary is faced with, as we are here, a contrary constitutional mandate.” Ex parte James, 836 So.2d 813, 818 (Ala. 2002) (emphasis added). See also Penn-hurst State School & Hosp. v. Halderman, 465 U.S. 89, 119, 104 S.Ct. 900, 79 L.Ed.2d 67 (1984) (" 'When questions of jurisdiction have been passed on in prior decisions sub silentio, this Court has never considered itself bound when a subsequent case finally brings the jurisdictional issue before us.’ ” (quoting Hagans v. Lavine, 415 U.S. 528, 533 n. 5, 94 S.Ct. 1372, 39 L.Ed.2d 577 (1974))); and American Portland Cement Alliance v. Environmental Protection Agency, 101 F.3d 772, 776 (D.C.Cir.1996) ("That the court has taken jurisdiction in the past does not affect the analysis because jurisdictional issues that were assumed but never expressly decided in prior opinions do not thereby become precedents.”).’ ”

        Ex parte Town of Lowndesboro, 950 So.2d 1203, 1209-10 (Ala.2006) (quoting Alabama Dep’t of Envtl. Mgmt. v. Lowndesboro, 950 So.2d 1180, 1194-95 (Ala.Civ.App.2005)).