author: COBB, Chief Justice. MURDOCK, Justice

text:
    QORE, INC., d/b/a QORE Property Sciences v. BRADFORD BUILDING COMPANY, INC.
    1070865.
    Supreme Court of Alabama.
    June 12, 2009.

      Joseph C. Staak of Smith Currie & Hancock, LLP, Atlanta, Georgia, for appellant.
    Charles A. Burkhart and M. Todd Lowther of Balch & Bingham LLP, Birmingham, for appellees.
   COBB, Chief Justice.

This appeal involves a negligence claim by Bradford Building Company, Inc. (Bradford), against QORE, Inc., d/b/a QORE Property Sciences (“QORE”). Bradford’s claims arise out of the failure of a concrete slab during the construction of a building on the slab. The slab failed because it was built over an excavated fuel-tank pit that had been filled with material that was not properly compacted. QORE appeals from the Jefferson Circuit Court’s denial of its motion for a judgment as a matter of law. We affirm.

Facts and Procedural History

When, as in this case, an appellant challenges a trial court’s ruling on a motion for a judgment as a matter of law, the appellate court views the evidence in the light most favorable to the nonmovant. Waddell & Reed, Inc. v. United Investors Life Ins. Co., 875 So.2d 1143, 1152 (Ala.2003). Therefore, with regard to facts as to which evidence or testimony was in conflict at trial, the Court has set out those facts in the light most favorable to Bradford, the nonmovant.

A. Purchase of Property

In December 2004, RKM Leeds, LLC (“RKM”), purchased a painel of real property from JDW Properties I, LLC (“JDW Properties”). RKM intended to construct a building to house a Walgreens pharmacy on the site and then to sell the developed property to Walgreen Company. Before the sale of the real property, a gasoline service station had been operating on the property. Under the contract for the sale of the property, JDW Properties was to remove the underground fuel-storage tanks and related fuel lines from the property, and RKM was responsible for placing and compacting fill in the pits left by the removal of the fuel-related equipment.

B. Gallet Report

In May 2005, RKM hired Gallet & Associates, Inc. (“Gallet”), to determine whether subsurface conditions would provide the necessary structural support for the Wal-greens store. Gallet investigated the site and, on June 15, 2005, provided RKM a report of its results (“the Gallet report”). In its report, Gallet noted that the “store will be located at the site of an existing gas station.” Gallet recommended that “[t]he existing ... buried utilities (including existing fuel product lines and underground storage tanks) should be excavated from the proposed building and parking areas.”

Because excavating the tanks would create pits at least 15 feet deep, the Gallet report recommended that these “abandoned tank pits should be backfilled with engineered fill.” “Engineered fill” is fill that has been tested by an engineering firm and deemed suitable for use as structural fill and that has been properly installed and compacted. The Gallet report specified that,

“[i]n building areas, structural fill should be extended a minimum of 5 feet outside all building lines, paved areas, and slopes. The fill should be placed in thin loose lifts not exceeding 8 inches in thickness and compacted accordingly.”

Soil compaction is performed by placing appropriate fill material in thin layers and compressing each layer with a roller or other compacting machinery before adding the next layer. Fill is compacted to prevent settling of the soil over time, which can undermine the structural integrity of buildings constructed over the settling soil.

The Gallet report also recommended that, after the site had been excavated, backfilled, and graded, but before the placement of any extra fill to raise the grade to the specifications in the building plans, “the exposed subgrade should be thoroughly proof rolled.” “Proof rolling” is a process in which the surface of the soil is carefully observed as a fully loaded tandem-axle dump truck is driven over it. Any soft or structurally unsound soils revealed by the proof rolling are undercut and replaced with suitable well compacted engineered fill. Proof rolling does not detect structurally unsound soils or subsurface conditions at depths greater than roughly three feet below the surface.

C. QORE/RKM Contract

After the Gallet report had been submitted, RKM hired QORE to perform construction-materials-testing (“CMT”) services related to site grading and building construction. The contract entered into between QORE and RKM stated that the scope of CMT services to be performed by QORE “will be in accordance with the Master Work Scope of CMT Services requested by Walgreen! ] Company and Wal-greens’ Criteria Specification Fiscal 2005.”

The “Master Work Scope of CMT Services requested by Walgreen! ] Company” included the following “soils testing and site preparation” services:

“ — Standard Proctor [a soil-compaction test]
“ — Modified Proctor [a soil-compaction test]
“ — -Nuclear Gauge fa soil-density test]
“ — Compaction Control Testing
“ — Compaction and Proof Roll Observation
“ — Review of Soil Boring Report and Bearing Capacities.”

The “Walgreens Criteria Specifications, Fiscal 2005” (“the Walgreens specifications”) included a schedule of “inspections, tests, and similar services representing] the minimum scope of quality control services to be performed,” including the following:

“Verify suitable soil bearing capacity
“Field density testing, compaction testing
“Optimum moisture/maximum density testing
“Pavement proof rolling
“Pavement Surface Smoothness Testing”

The Walgreens specifications also set forth specific requirements for “Site-work/Excavation,” including the following:

“Testing: ....
“1. Soil reports of actual unconfined compressive strength of each strata tested. Verify soil/fill bearing capacity conforms to design requirements. Perform one test at each column pad and per each 50 1ft. of foundation....
“5. Final building pad verification letter, submitted by the Geotechnical Engineer at the completion of Grading operations, summarizing satisfactory completion of all tests performed prior to slab placement.”

Further, the Walgreens specifications incorporated the Gallet report. Colin Se-well, project manager for QORE, testified at trial that part of QORE’s responsibility was to ensure that the recommendations in the Gallet report were followed.

In addition to providing that QORE’s services would “be in accordance with the Master Work Scope of CMT Services requested by Walgreen[ ] Company and Wal-greens’ Criteria Specification Fiscal 2005,” the contract between QORE and RKM also stated:

“The following list of construction materials testing was provided to us [i.e., QORE] by Walgreen[ ] [Company] during the CMT selection and we consider it to be the master scope of services. This scope includes requirements in the Project Specifications Manual.
“I. Earthwork
“ — Density testing of mass fill and utility trench backfill...
“ — Evaluation of soil subgrades prior to fill placement...
“ — Standard Proctor compaction tests, where required...
“ — Modified Proctor tests, where required (does not currently apply)
“ — Nuclear gauge density testing, if required
“ — Review of geotechnical subsurface exploration report [the Gallet report]
“We will perform our evaluations and tests in general accordance with the project specifications and applicable standards of the industry in the local area of the project. Our personnel do not have the authority to direct the contractor or his subcontractors in the performance of their work or to authorize changes in the construction contract. We will, however, bring to their attention any observations or test results that indicate noncompliance with the contract documents. We point out that the tests will be performed on a random basis and they are not a guarantee of the work in accordance with the construction documents ....
“Standard of Care. The [CMT] Services [provided by QORE] will be performed in accordance with the standards customarily provided by a firm rendering the same or similar services in the same geographic region during the same time period.”

D. Bradford, RKM’s General Contractor

On September 8, 2005, RKM entered into a contract with Bradford pursuant to which Bradford was to serve as general contractor for the construction of the Wal-greens drug-store building. Bradford had built Walgreens stores for RKM on previous occasions. For the construction project at issue in this case, Bradford subcontracted the grading work on the site to Borden & Brewster Contractors, Inc. (“B & B”).

Bradford undertook the responsibility to inform QORE of the progress of the construction. However, Bradford’s personnel did not know what construction-materials tests needed to be performed, and, as the general contractor, Bradford did not undertake any responsibility to direct QORE as to which tests to perform. Rather, as the firm that was to perform the CMT services for the project, QORE was responsible for determining what tests to perform at each of the various stages of construction and to send an engineer or technician, as appropriate, to perform those tests at the proper times.

E. Improper Backfilling

JDW Properties or a related entity entered into a contract with CDG Engineers & Associates, Inc. (“CDG”), to remove the underground storage tanks and fuel lines from the site. CDG subcontracted the work to Milam & Co. Construction, Inc. (“Milam”).

On the morning of October 11, 2005, B & B’s general superintendent, Donald Edwards, visited the construction site to observe the progress of Milam’s underground-storage-tank-removal work. Edwards noticed that Milam had not compacted the fill dirt that was being placed in the large pits left by the removal of the underground storage tanks. Edwards telephoned Bradford’s project manager, Michael Cahoon, to inform him that Milam’s dump trucks were dumping loose fill into the pits where the fuel tanks had been and that he saw no compaction equipment at the site.

Cahoon went to the site and saw that the backfilling was not being done properly. Edwards and Cahoon were concerned that settling problems could develop if the Walgreens drug-store building was built over the improperly backfilled pits. Ca-hoon immediately telephoned RKM to inform RKM of the problem. RKM instructed Cahoon to telephone CDG and Milam, the contractor and subcontractor performing the tank-removal work, and Cahoon did so. Both CDG and Milam assured Cahoon that they would compact the fill in the fuel-tank pits.

RKM also instructed Cahoon to call QORE about the matter. At 12:44 p.m. and again at 1:03 p.m. on October 11, 2005, shortly after speaking with representatives of CDG and Milam about the improper backfilling of the pits left by the removal of the underground tanks, Cahoon telephoned QORE and informed QORE of the improper backfilling of the pits. Thereafter, Bradford relied on QORE to verify that the backfill in the pits had been properly compacted so that the bearing capacity of the soil was sufficient to support the Walgreens store building to be constructed on the site.

F. QORE’s Subgrade Evaluation

By early November 2005, Bradford and B & B had begun work at the site. The site had been stripped of all asphalt, concrete, debris, and vegetation, but Bradford and B & B had not begun to place fill on the site to level the surface to the specified grade. Bradford and B & B relied on QORE to test the existing soil and to inform them whether the soil met the necessary criteria before they began placing fill to level the site or proceeded with construction of the Walgreens building. Colin Sewell, an engineer in training and project manager for QORE, traveled to the project site to perform a “subgrade evaluation” to determine whether the soil met specifications and would support the slab and ultimately the building.

It is undisputed that the only test Sewell performed at the site was a proof roll. During this test, Sewell identified several areas where the proof roll revealed that the ground was too soft or was unsuitable for building, and these areas were corrected. Sewell knew the site had formerly been used for a gasoline station. He had read the Gallet report and was familiar with its recommendation that the fuel tanks and fuel lines be removed and that properly compacted engineered fill be placed in the pits left by their removal. Sewell asked the B & B representative at the site where the pits had been located, but the B & B representative did not know. Sewell made no further attempts to locate and specifically test the fill material in the tank pits.

Frank Upchurch, a materials engineer who testified at trial as an expert witness for Bradford, testified that, if QORE had performed density tests on the fill, a sub-grade evaluation, and other tests specified in QORE’s contract with RKM, QORE would have detected that the material in the tank pits had not been properly compacted before Bradford began to build. According to Upchurch, the proof roll QORE performed was not sufficient to satisfy QORE’s obligation to verify that soil in the tank pits met the density and compaction specifications for the construction project or that it would support the slab. Upchurch further testified that, by performing only a proof roll, QORE did not meet the standard of care set forth in its contract with RKM. According to Up-church, performing the testing procedures and fulfilling the obligations specified in the contract in accordance with the standard of care would have required QORE (1) to ask further questions and to perform further research to determine the location of the tank pits and whether the tank pits had been properly backfilled and compacted; (2) to ask to review the results of any existing soil-compaction tests of the tank-pit areas; and (3) to perform any drilling, field-density, or compaction tests needed to verify that the soil in the tank pits met the project specifications and would bear the load of the planned construction.

According to Upchurch, if QORE was unable to locate and test the tank pits, QORE should have informed RKM and Bradford that it could not verify the suitability of the fill in the tank pits and warn them that, if the tank pits were not properly filled and compacted, the building could settle and sustain damage.

G. Failure of the Slab

After QORE performed the proof roll, Bradford built a concrete slab on the site to serve as the foundation for the Wal-greens drug-store building. However, because the soils in the tank pits had not been properly backfilled, they began to settle, causing the slab to break. Bradford made the necessary repairs, which it paid for. Bradford presented evidence indicating that repairing the slab cost $223,000 and that Bradford would have incurred no expense if QORE had discovered the problem with the fill material in the tank pits before Bradford built the slab. At trial, a representative of Bradford testified that Bradford made “a business decision” to pay those costs, because, at the time, it was unclear who, if anyone, was at fault for the broken slab or why the slab failed, because Bradford had a contractual duty to RKM to construct a slab on which a store building could be constructed, and because Bradford risked failing to meet its contractual obligations and damage to its business relationships with RKM and Walgreens if the broken slab was not corrected and the store was not able to open on time.

H. Court Proceedings

On October 27, 2006, Bradford filed the underlying action. On January 8, 2008, the trial court entered judgment on a jury verdict finding QORE liable to Bradford in negligence and awarding Bradford $196,937.96. QORE moved for judgment as a matter of law, arguing that Bradford had not presented substantial evidence of any of the elements of its negligence claim. On February 25, 2008, the trial court denied the motion. On March 18, 2008, QORE filed a notice of appeal from the denial of its motion for a judgment as a matter of law.

Standard of Revieiu
“When reviewing a ruling on a motion for a JML [judgment as a matter of law], this Court uses the same standard the trial court used initially in deciding whether to grant or deny the motion for a JML. Palm Harbor Homes, Inc. v. Crawford, 689 So.2d 3 (Ala.1997). Regarding questions of fact, the ultimate question is whether the nonmovant has presented sufficient evidence to allow the case to be submitted to the jury for a factual resolution. Carter v. Henderson, 598 So.2d 1350 (Ala.1992). The nonmovant must have presented substantial evidence in order to with1 stand a motion for a JML. See § 12-21-12, Ala.Code 1975; West v. Founders Life Assurance Co. of Fla., 547 So.2d 870, 871 (Ala.1989). A reviewing court must determine whether the party who bears the burden of proof has produced substantial evidence creating a factual dispute requiring resolution by the jury. Carter, 598 So.2d at 1353. In reviewing a ruling on a motion for a JML, this Court views the evidence in the light most favorable to the nonmovant and entertains such reasonable inferences as the jury would have been free to draw. Id. Regarding a question of law, however, this Court indulges no presumption of correctness as to the trial court’s ruling. Ricwil, Inc. v. S.L. Pappas & Co., 599 So.2d 1126 (Ala.1992).”

Waddell & Reed, Inc. v. United Investors Life Ins. Co., 875 So.2d 1143, 1152 (Ala.2003).

Analysis

QORE argues that the trial court erred in denying QORE’s motion for a judgment as a matter of law because, according to QORE, Bradford did not present sufficient evidence of any of the elements of a negligence claim. “In a negligence action the plaintiff must prove (1) that the defendant owed the plaintiff a duty; (2) that the defendant breached that duty; (3) that the plaintiff suffered a loss or injury; and (4) that the defendant’s breach was the actual and proximate cause of the plaintiffs loss or injury.” DiBiasi v. Joe Wheeler Elec. Membership Corp., 988 So.2d 454, 460 (Ala.2008) (citing Ford Motor Co. v. Burdeshaw, 661 So.2d 236, 238 (Ala.1995)).

A. Duty and Breach

In Harris v. Board of Water & Sewer Commissioners of Mobile, 294 Ala. 606, 613, 320 So.2d 624, 630 (1975), this Court held that “where one party to a contract assumes a duty to another party to that contract, and it is foreseeable that injury to a third party — not a party to the contract — may occur upon a breach of that duty, the promissor owes that duty to all those within the foreseeable area of risk.” A breach of such a duty that results in injury to a third party who is “within the foreseeable area of risk” is actionable negligence. Id.

According to QORE, Bradford did not meet its burden of presenting substantial evidence indicating that QORE had a duty to perform any test other than a proof roll before Bradford poured the concrete slab foundation for the Walgreens building. However, according to the testimony of Bradford’s expert, had QORE performed the tests specified in its contract with RKM in accordance with the standard of care specified in the contract, either QORE would have verified that the soil in the tank pits met the project specifications and that it would support the building to be constructed on the property or it would have alerted RKM and Bradford that it was not possible to determine whether the soil in the tank pits would support the building.

It is undisputed that QORE did not locate and test the fill material in the tank pits or inform Bradford and RKM that it was unable do so. Thus, the evidence presented at trial was sufficient to send to the jury the question whether QORE owed and breached a contractual duty to verify that the soil in the tank pits met the project specifications and that it would support the building to be constructed on the property or to warn that the appropriate tests had not been performed and that the building could fail. The trial court did not err in submitting those issues to the jury.

B. Reasonable Reliance

Even when a third party is not in privity with the parties to a contract and is not a third-party beneficiary to the contract, the third party may recover in negligence for breach of a duty imposed by that contract if the breaching party negligently performs the contract with knowledge that others are relying on proper performance and the resulting harm is reasonably foreseeable. Cincinnati Ins. Cos. v. Barber Insulation, Inc., 946 So.2d 441, 446-47 (Ala.2006). Citing Cincinnati, supra, QORE argues that it was entitled to a judgment as a matter of law because, according to QORE, Bradford did not meet its burden of presenting substantial evidence indicating that it reasonably relied on QORE to verify whether the soil in the tank pits was suitable to support the weight of the Walgreens building.

However, Bradford presented evidence indicating that QORE, as the firm hired to perform CMT services, was hired for the benefit of the construction project as a whole. According to one of the experts who testified at trial, it is general practice in the construction industry that “everyone that’s working on the project is intended to benefit” from the CMT services performed by the firm hired to perform those services, whether they are a party to the contract or not, and that it is reasonable and generally expected that all contractors working on the project will rely on that firm’s CMT services rather than hire an independent firm to do the same work for the contractor’s benefit. Further, Michael Cahoon testified at trial that, in his experience as a manager for a general contractor, it is generally expected that the firm performing the CMT services will verify that the recommendations in the geotechnical report (such as the Gallet report) are followed and that project specifications have been met. Bradford further presented evidence indicating that it had made QORE aware of the need to verify that the soil in the tank pits was properly compacted, that QORE had a contractual duty to so verify, and that Bradford was relying on QORE to perform its duty so that the building would not fail because of subsurface settling in the tank pits.

The above evidence is sufficient to create a genuine issue of fact so that the trial court properly submitted the case to the jury to decide whether Bradford had reasonably relied on QORE to verify that the soil in the tank pits would bear the weight of the Walgreens building.

C. Proximate Cause

To overcome a motion for a judgment as a matter of law in a negligence action, the plaintiff must present substantial evidence indicating that the defendant’s acts or omissions proximately caused the plaintiffs injury. See Brackin v. Trimmier Law Firm, 897 So.2d 207, 226 (Ala.2004). QORE argues that it was entitled to a judgment as a matter of law because, according to QORE, Bradford did not meet its burden of presenting substantial evidence indicating that the failure of the slab was proximately caused by QORE’s failing to verify whether the soil in the tank pits would support the Wal-greens building. Rather, according to QORE, Bradford’s decision to pay to correct the underlying soil condition and to repair the slab was an independent cause of Bradford’s injury because, QORE contends, Bradford was not contractually obligated to incur those costs.

Other than general propositions of law that provide no support for its argument, QORE cites no cases to substantiate its theory that Bradford’s fixing the problem with the slab at its own expense was a voluntary, unforeseeable act that broke the chain of proximate causation. “ ‘Authority supporting only “general propositions of law” does not constitute a sufficient argument for reversal.’ ” Walden v. Hutchinson, 987 So.2d 1109, 1121 n. 4 (Ala.2007) (quoting Beachcroft Props., LLP, 901 So.2d 703, 708 (Ala.2004), quoting in turn Geisenhoff v. Geisenhoff, 693 So.2d 489, 491 (Ala.Civ.App.1997)). Therefore, we will not consider QORE’s argument that the trial court erred in not finding that the chain of causation was broken. See City of Birmingham v. Busi ness Realty Inv. Co., 722 So.2d 747, 752 (Ala.1998) (“When an appellant fails to cite any authority for an argument on a particular issue, this Court may affirm the judgment as to that issue, for it is neither this Court’s duty nor its function to perform an appellant’s legal research.” (citing Rule 28(a)(5), Ala. R.App. P.; Spradlin v. Birmingham Airport Auth., 613 So.2d 347 (Ala.1993))).

D. Contributory Negligence

QORE argues that it was entitled to a judgment as a matter of law because, according to QORE, Bradford was contributorily negligent, as a matter of law. A plaintiff who negligently contributes to his own injury cannot recover in a negligence action, notwithstanding a showing that the defendant was also negligent. Hannah v. Gregg, Bland & Berry, Inc., 840 So.2d 839, 860-61 (Ala.2002). To establish contributory negligence as a matter of law, a defendant must demonstrate that the plaintiff put himself at risk of being injured and that the plaintiff had a conscious appreciation of that risk at the moment the incident occurred. Id.

In support of its argument, QORE points out that Michael Cahoon had observed CDG and Milam improperly back-filling the tank pits and that Cahoon testified that, “in hindsight,” it had been a mistake to trust CDG and Milam to properly compact the soil in the tank pits and to rely on QORE to verify that the soil in the tank pits had been suitably compacted.

However, as discussed, supra, it was not unreasonable for Bradford to inform QORE of the problem and to thereafter rely on QORE to verify that the soil in the tank pits had been sufficiently compacted and to alert Bradford if the material did not meet the project specifications. The record contains sufficient evidence from which a jury could reasonably conclude that, at the time Bradford constructed the slab, Bradford had not consciously placed itself at risk of being harmed. Ca-hoon’s testimony that, in hindsight, it had been a mistake to rely on QORE does not entitle QORE to judgment as a matter of law that Bradford was contributorily negligent.

E. Damages

At trial, the parties stipulated that the appropriate measure of compensatory damages in this case was the amount of money that would place Bradford in the same condition it would have occupied had QORE not breached its contractual obligations to RKM. See Poffenbarger v. Merit Energy Co., 972 So.2d 792, 801 (Ala.2007) (“Compensatory damages should indeed be adequate to make the victim whole.”); cf. Wal-Mart Stores, Inc. v. Bowers, 752 So.2d 1201 (Ala.1999) (discussing the proper measure of damages in negligence actions when the only injury is damage to property). QORE argues that it was entitled to a judgment as a matter of law because, according to QORE, Bradford did not present substantial evidence of what Bradford would have paid to correct the soil in the tank pits if QORE had detected the unsuitability of the fill before Bradford built the slab.

However, Bradford presented evidence indicating that, if QORE had not breached its contract with RKM, the problem would have been corrected before Bradford built the slab, and Bradford would not have been placed in the position of paying for any repairs to the slab or for bringing the tank pits to project specifications in order to fulfill its obligations as general contractor and to protect its business relationships. Bradford also presented evidence that it incurred costs of $223,000 to repair the slab. Thus, the evidence was sufficient to warrant a jury’s determination as to the amount of Bradford’s damages.

Conclusion

For the reasons stated above, the trial court did not err in denying QORE’s motion for a judgment as a matter of law. We affirm.

AFFIRMED.

LYONS, WOODALL, STUART, SMITH, BOLIN, PARKER, and SHAW, JJ., concur.

MURDOCK, J., concurs in the rationale in part and concurs in the result.

MURDOCK, Justice

(concurring in the rationale in part and concurring in the result).

I respectfully decline to join in Part “C” of the “Analysis” portion of the main opinion to the extent that it concludes that QORE’s brief does not cite sufficient authority to place before us the issue whether, in the words of QORE’s brief, Bradford engaged in “an independent and voluntary business decision” that broke the chain of proximate causation. The main opinion states that “[ojther than general propositions of law that provide no support for its argument, QORE cites no cases to substantiate its theory that Bradford’s fixing the problem with the slab at its own expense was a voluntary, unforeseeable[] act that broke the chain of proximate causation. ‘ “Authority supporting only ‘general propositions of law1 does not constitute a sufficient argument for reversal.” ’ ” 25 So.3d at 1125. What the main opinion refers to as “general propositions of law,” however, appear to me to be adequate support for the argument made in this case by QORE, and that argument in turn appears to me to be adequate to place before this Court the issue of proximate causation.

QORE’s discussion begins by explaining the four elements of a negligence claim:

“To establish a negligence claim, a plaintiff must establish four elements: 1) the existence of a legal duty to a foreseeable plaintiff; 2) breach of that legal duty by the defendant; 3) proximate causation; and 4) damage or injury. Martin v. Arnold, 643 So.2d 564 (Ala.1994); see also, Havard v. Palmer & Baker Engineers, Inc., 293 Ala. 301, 306, 302 So.2d 228 (1974).”

QORE’s brief, at 29. Certainly, the foregoing represents only general propositions of law and would not be sufficient by itself to present to us the issue of proximate causation. QORE’s brief continues as follows, however:

“This Court has defined ‘proximate cause’ as follows:
“ ‘The proximate cause of an injury is that cause which, in the natural and probable sequence of events, and without the intervention or coming of some new or independent cause, produces the injury, and without which the injury would not have occurred.’ “Alabama Power Co. v. Moore, 899 So.2d 975, 979 (Ala.2004).”

(Emphasis added.) QORE then cites Byrd v. Commercial Credit Corp., 675 So.2d 392, 393 (Ala.1996), for the proposition that this Court has “defin[ed] proximate cause as ‘an act or omission that in a natural and continuous sequence, unbroken by any new and independent causes, producefs] the injury and without which the injury would not have occurred.’ ” (Emphasis added.)

The question QORE seeks to have us address is whether the evidence in this case was sufficient to put the issue of proximate causation to the jury. As to this issue, QORE’s brief directly applies the above-stated legal principles to the facts of the present case in a straightforward manner:

“Bradford’s damages arose out of an independent and voluntary business decision it made, as opposed to a natural and probable chain [of] events precipitated by QORE’s negligence. Bradford was aware that under its contract with RKM, it had no legal responsibility to make the building repairs. Nevertheless, as Michael Cahoon, Bradford’s project manager, testified, Bradford’s payment for the building repairs was voluntarily made to further Bradford’s business relationship with RKM and to obtain more Walgreen’s work.”

(Emphasis added.) Following this argument, QORE discusses the evidence in more detail over the next several pages of its brief and then draws conclusions as to the proper application of the above-stated principles to that evidence. I find QORE’s brief as to the issue of proximate causation sufficient to comply with Rule 28, Ala. R.App. P., and to place before us the issue of proximate causation.

That said, I turn to the merits of QORE’s argument. On its merits, QORE’s argument fails in my view.

Bradford presented evidence indicating that QORE was aware that “if the soil in the tank pits was not properly compacted, the building could be damaged and repairs would have to be made.” Although Michael Cahoon testified that Bradford’s business relationships were a “factor” that “influenced” its decision to pay for the repairs, he also testified that, at the time Bradford made the decision to repair the slab, it was unclear who was at fault. According to Cahoon, the slab failure left Bradford, as a general contractor, “stuck between a rock and a hard place.” Cahoon testified that the slab failure jeopardized Bradford’s ability to keep its contractual obligations to RKM and Wal-greens, and Bradford paid for the repairs in an effort to keep from losing money it would otherwise have made on the project and from losing future opportunities to do business for RKM and Walgreens. As a result, according to Cahoon, Bradford made a “business decision to fix [the problem] and then get the store open and figure out whose fault it was afterwards.” This, in my view, constituted sufficient evidence for consideration by the jury as to whether Bradford’s actions were part of the “natural and probable sequence of events” that could occur as the result of QORE’s failures. It is sufficient evidence from which a jury could conclude that Bradford’s actions did not represent “the intervention or coming of some new or independent cause.” The evidence presented at trial was sufficient to create a question of fact as to whether QORE’s negligence proximately caused Bradford to be placed in the position of bearing the loss for which it is seeking redress. The trial court, in my view, did not err in submitting that question to the jury.

      . The record is conflicting as to whether JDW Properties, its owner, or a related business entity entered into the contract hereinafter described for removal of the fuel tanks and related work.

      . Much of the testimony Bradford presented in relation to the scope of QORE's duties under its contract with RKM was offered through Bradford’s expert. QORE argues that Bradford's expert should not have been permitted to testify at trial regarding the scope of QORE's contractual duties. According to QORE, such testimony went beyond merely offering expert testimony regarding the meaning of technical and trade terms in the contract and instead encroached on the trial court's duty to construe the contract as a matter of law. QORE filed a motion in limine on this issue, which was denied. However, QORE did not object during the trial to the introduction of the challenged evidence, and it cites no portion of the record indicating that it obtained the express acquiescence of the trial court that such an objection at trial was unnecessary. Likewise, our review of the record has revealed no such acquiescence. Therefore, we will not address the issue because QORE did not preserve it for appellate •review. See Owens-Corning Fiberglass Corp. v. James, 646 So.2d 669, 673 (Ala.1994) (holding that this Court will not review an adverse ruling on a motion in limine, absent proper objection at trial or the trial court's express agreement that such an objection is not necessary).

      . Contrary to the suggestion in the main opinion, QORE’s argument in its initial brief is not based on whether Bradford's actions in assuming responsibility for repair of the slab were or were not "foreseeable.” It is Bradford that injects the concept of foreseeability in an effort to "defend” against the argument presented by QORE. Even Bradford does so, however, only with respect to the foreseeability of damage to the slab if QORE failed to fulfill its duties, not the foreseeability of Bradford’s undertaking in response to that damage. (“The proximate cause issue is not whether it was reasonably foreseeable that Qore's conduct would cause Bradford to pay for the repairs but instead, whether it was reasonably foreseeable that Qore's conduct would result in damage to the slab itself." Bradford's brief, at 35-36 (emphasis by Bradford; footnote omitted).)

      . I suspect that most cases that would be apposite to a situation such as this likely would discuss the issue in terms of equitable subrogation, rather than negligence. Compare, e.g., American Cyanamide Co. v. United States Fid. & Guar. Co., 459 So.2d 851, 853-54 (Ala.1984) (citing American Southern Ins. Co. v. Dime Taxi Serv., Inc., 275 Ala. 51, 57, 151 So.2d 783, 787 (1963)).


source: Caselaw Access Project

author: STUART, Justice. COBB, Chief Justice MURDOCK, Justice

license: Public Domain

text:
    MOBILE OB-GYN, P.C. v. Wendy Godwin BAGGETT. Wendy Godwin Baggett v. Mobile OB-GYN, P.C.
    1071020 and 1071081.
    Supreme Court of Alabama.
    June 12, 2009.

      A. Dannner Frazer, Jr., D. Brent Baker, and Mary Margaret Bailey of Frazer, Greene, Upchurch & Baker, L.L.C., Mobile, for appellant/cross-appellee Mobile OB-GYN, P.C.
    Michael S. McGlothren, Fairhope; and C. Randall Caldwell, Jr., of Caldwell Law Firm, P.C., Foley, for appellee/cross-appel-lant Wendy Godwin Baggett.
   STUART, Justice.

Wendy Godwin Baggett sued Mobile OB-GYN, P.C., in the Mobile Circuit Court alleging that one of its physicians, Dr. Phillip Madonia, committed medical malpractice while treating her during her pregnancy and that the death of her baby shortly after childbirth was the direct result of Dr. Madonia’s malpractice. Following a trial, the jury returned a verdict in favor of Baggett and against Mobile OB-GYN in the amount of $8 million. The trial court subsequently ordered a remitti-tur of $3 million, reducing the damages award to $5 million. Mobile OB-GYN now appeals the judgment entered against it, and Baggett has cross-appealed, challenging the remittitur. We reverse the judgment entered against Mobile OB-GYN and remand the cause for a new trial; accordingly, Baggett’s cross-appeal is dismissed as moot.

I.

Baggett became a patient at Mobile OB-GYN on March 1, 2004, when Dr. Madonia began treating her for high blood pressure and depression. At that visit and at succeeding visits over the next several months, Dr. Madonia tried prescribing various medications to treat Baggett, eventually settling on Benicar for her high blood pressure and Wellbutrin and Prozac for her depression. Baggett testified that the medications Dr. Madonia prescribed had a positive impact on how she felt.

On October 25, 2004, Baggett again visited Mobile OB-GYN after a home pregnancy test indicated that she was pregnant. Dr. Madonia confirmed the results of that test, estimated that she was approximately six weeks pregnant based on a pelvic exam, and gave Baggett a prescription for prenatal vitamins. Dr. Madonia testified that he also spoke with Baggett about the medications she was taking and told her that she could continue taking Wellbutrin and Prozac but that she should stop taking Benicar because there were strong warnings against taking it during pregnancy. However, Baggett testified that Dr. Madonia told her that it was fine for her to continue taking all of her current medications, and she continued to do so. Baggett testified that on several succeeding visits to Dr. Madonia’s office she asked about the safety of the medications she was taking during a pregnancy, but neither Dr. Madonia nor his nurse, Amy Clossman, ever told her to stop taking Benicar; both Dr. Madonia and Clossman testified that Baggett never asked them whether she should continue to take Beni-car once she learned she was pregnant and that they did not know that she continued taking it during her pregnancy. Although Baggett’s medical records indicate the date on which Benicar was prescribed to her, none of Dr. Madonia’s notes and nothing in the medical records maintained by Mobile OB-GYN indicate that she was ever told to discontinue taking Benicar after she became pregnant.

Baggett returned to Mobile OB-GYN for monthly pregnancy checkups in November, December, and January. Ultrasound examinations were conducted in November and December, and those examinations, along with other testing done during those visits, indicated that Bag-gett’s pregnancy was progressing normally. On February 7, 2005, Baggett returned to Mobile OB-GYN for her fifth prenatal visit with Dr. Madonia. Another ultrasound examination was performed on this visit, and the technician conducting this examination did not indicate any problems in her summary of the examination; in fact, she specifically noted that the level of amniotic fluid was normal. However, Dr. Madonia subsequently testified that Baggett’s amniotic-fluid level at the time of that ultrasound examination, 6.69 centimeters, was low, but that he did not realize it at the time because he had relied upon the technician’s summation of the ultrasound examination instead of looking at the entire report. Low amniotic fluid, or oligohydramnios, is a condition associated with Benicar exposure during pregnancy.

Baggett’s next two prenatal visits to Mobile OB-GYN took place on March 7 and April 4, and nothing during those visits indicated that Baggett’s pregnancy was anything other than normal. On April 25, Baggett returned for her next scheduled appointment. During her visit with Dr. Madonia, Baggett reported that she had experienced some vaginal mucous discharge. Dr. Madonia examined her cervix, but did not see anything abnormal. To assure Baggett that everything was normal, however, Dr. Madonia ordered another ultrasound examination. When this ultrasound was performed, it showed that Baggett had virtually no amniotic fluid and that the fetus was in distress. Dr. Mado-nia immediately transferred Baggett to the high-risk obstetrics clinic at the University of South Alabama Children’s and Women’s Hospital, and shortly thereafter an emergency caesarean section was performed and a baby boy was delivered.

The baby’s condition, however, was not good, and, after an examination, his primary physician, Dr. Richard Whitehurst, indicated in his notes that the baby suffered from hypotension related to maternal Benicar exposure. In another note written the following day, after the baby was given a transfusion, Dr. Whitehurst stated his diagnosis as hypotension, anuria, and Benicar exposure. The baby died on April 27, approximately 36 hours after birth. Baggett testified at trial that, following the baby’s death, Dr. Whitehurst recommended that an autopsy be performed because he believed that Benicar exposure was the cause of the baby’s problems. An autopsy was performed, and the pathologist who performed that autopsy, Dr. Elizabeth Manci-Gardner, concluded that “[t]he most likely cause of death in this case is decreased uteroplacental blood flow.” Baggett introduced evidence at trial indicating that decreased uteroplacental blood flow in a mother, as well as hypotension and anuria in a baby, are conditions associated with exposure to Benicar during the pregnancy.

On July 12, 2005, Baggett filed a medical-malpractice action against Mobile OB-GYN in the Mobile Circuit Court, alleging that its negligence and/or wantonness was responsible for the death of her baby. The case proceeded to trial on November 5, 2007, and, at the close of all the evidence, the trial court charged the jury on the following five counts of negligence:

“Now, Wendy Baggett brings this lawsuit alleging the following: Negligently prescrib[ed] the drug Benicar to Wendy Godwin Baggett; two, negligently failed to appropriately follow up with Wendy Baggett and monitor her condition and that of her child; three, negligently did not have in place appropriate procedures, safeguards, and protocols to prevent the drug Benicar from being prescribed to pregnant patients; four, negligently failed to appreciate the developing signs of the developing damage the drug Benicar was causing during the pregnancy and failed to institute any remedial measures; and five, negligently did not properly evaluate the risk of allowing a pregnant patient to remain on the drug Benicar.”

On November 9, 2007, the jury returned a general verdict in favor of Baggett and against Mobile OB-GYN in the amount of $8 million. Mobile OB-GYN subsequently moved for a judgment as a matter of law, a new trial, or a remittitur, and, following a hearing on Mobile OB-GYN’s motion, the trial court entered an order denying the requests for a judgment as a matter of law and a new trial but ordering a remittitur and reducing the damages to $5 million. On April 21, 2008, Mobile OB-GYN filed its notice of appeal to this Court, and, on May 1, 2008, Baggett filed her cross-appeal.

II.
“When reviewing a ruling on a motion for a JML [judgment as a matter of law], this Court uses the same standard the trial court used initially in deciding whether to grant or deny the motion for a JML. Palm Harbor Homes, Inc. v. Crawford, 689 So.2d 3 (Ala.1997). Regarding questions of fact, the ultimate question is whether the nonmovant has presented sufficient evidence to allow the case to be submitted to the jury for a factual resolution. Carter v. Henderson, 598 So.2d 1350 (Ala.1992). The nonmovant must have presented substantial evidence in order to withstand a motion for a JML. See § 12-21-12, Ala.Code 1975; West v. Founders Life Assurance Co. of Florida, 547 So.2d 870, 871 (Ala.1989). A reviewing court must determine whether the party who bears the burden of proof has produced substantial evidence creating a factual dispute requiring resolution by the jury. Carter, 598 So.2d at 1353. In reviewing a ruling on a motion for a JML, this Court views the evidence in the light most favorable to the nonmovant and entertains such reasonable inferences as the jury would have been free to draw. Id. Regarding a question of law, however, this Court indulges no presumption of correctness as to the trial court’s ruling. Ricwil, Inc. v. S.L. Pappas & Co., 599 So.2d 1126 (Ala.1992).”

Waddell & Reed, Inc. v. United Investors Life Ins. Co., 875 So.2d 1143, 1152 (Ala.2003). The plaintiff in a medical-malpractice action is required to present substantial evidence indicating both that the defendant health-care provider “failed to comply with the standard of care and that such failure probably caused the injury or death in question.” § 6-5-549, Ala.Code 1975.

III.

Mobile OB-GYN argues that it is entitled to a new trial because, it claims, the trial court erred by submitting to the jury, in addition to a claim that was supported by substantial evidence, claims that tuere not supported by substantial evidence, that is, “evidence of such weight and quality that fair-minded persons in the exercise of impartial judgment can reasonably infer the existence of the fact sought to be proved.” West v. Founders Life Assurance Co. of Florida, 547 So.2d 870, 871 (Ala.1989). Mobile OB-GYN argues that, of the five counts submitted to the jury in this case, only one was supported by substantial evidence and, citing Long v. Wade, 980 So.2d 378, 385 (Ala.2007), argues that the judgment entered on the jury’s general verdict must therefore be reversed because both a good count and a bad count were submitted to the jury. In Long, this Court stated that, under the so-called good-count/bad-count rule,

“ ‘when the trial court submits to the jury a “good count” — one that is supported by the evidence — and a “bad count” — one that is not supported by the evidence — and the jury returns a general verdict, this Court cannot presume that the verdict ivas returned on the good count In such a case, a judgment entered upon the verdict must be reversed.’
“Larrimore v. Dubose, 827 So.2d 60, 63 (Ala.2001) (quoting Alfa Mut. Ins. Co. v. Roush, 723 So.2d 1250, 1257 (Ala.1998)) (emphasis added).”

980 So.2d at 385. Accordingly, if any of the counts submitted to the jury in this case were not supported by substantial evidence, Mobile OB-GYN is entitled to a judgment as a matter of law on those unsupported “bad counts,” and the judgment entered on the jury’s verdict is due to be reversed and the cause remanded for a new trial on the remaining “good counts.” Mobile OB-GYN does not dispute that there is substantial evidence supporting the first count submitted to the jury, i.e., the count alleging that Dr. Mado-nia negligently prescribed Benicar to Bag-gett; however, it objects to all four other counts. We therefore review each of those four counts to determine whether they were supported by substantial evidence at trial.

The second count, alleging that Mobile OB-GYN “negligently failed to appropriately follow up with Wendy Baggett and monitor her condition and that of her child,” and the fourth count, alleging that Mobile OB-GYN “negligently failed to appreciate the developing signs of the developing damage the drug Benicar was causing during the pregnancy and failed to institute any remedial measures,” both relate to the ultrasound examination that was performed on February 7, 2005, and are therefore treated together. The second count specifically concerns Dr. Mado-nia’s failure to recognize that Baggett’s amniotic fluid was low, and the fourth count relates to his failure to take remedial measures to protect the fetus, including telling Baggett to cease taking Benicar, after the February 7 ultrasound examination revealed a low amniotic-fluid level.

At trial, Baggett presented substantial evidence indicating that, at the time the February 7, 2005, ultrasound was performed her amniotic-fluid level was low, that the applicable standard of care required Dr. Madonia to take action based on that fact, and that he failed to do so. That evidence included the following testimony from Dr. Madonia’s videotaped deposition, which was shown at trial:

“Q. All right. Doctor, isn’t the standard of care when you have a low amniotic fluid reading like this to hospitalize the mother to consider your treatment options?
“A. Depends on — you know, we probably wouldn’t hospitalize her with an amniotic fluid. We would repeat this at some point. Repeat it probably the next day.
“Q. But you didn’t do that in this case; did you?
“A. No, I didn’t.
“Q. Okay. In fact, until I showed you the actual ultrasound reading, which is Exhibit IF, you didn’t realize that this mother had such a low reading; did you?
“A. No sir.
“Q. Okay. Thank you, Doctor. Doctor, if you had seen that ultrasound reading in February, would you have quizzed Ms. Baggett about whether she was still on Benicar?
“A. It’s possible. I’m not sure what I — I would have done something. I’m not sure what I would have done.
“Q. The normal part of what you would have done at that point is recovered her medications with her?
“A. Probably.
“Q. All right. And if she had told you T am still on Benicar,’ you would have told her on February 7th to stop taking it; wouldn’t you?
“A. Yes.”

Baggett’s expert witness, Dr. Mark Tur-rentine, also testified on this issue:

“Q. Doctor, based on your education, training, background, the materials you have reviewed, the facts you have become familiar with, do you have an opinion to a reasonable degree of medical certainty as to whether [Mobile OB-GYN] deviated [from the standard of care] by not taking additional action after an ultrasound reading came back showing amniotic fluid level of 6.69, which Dr. Madonia himself has testified was low and required additional attention?
“A. Yes.
“Q. What is your opinion?
“A. That there should have been further evaluation following that ultrasound.
“Q. So your opinion is [Mobile OB-GYN] did deviate?
“A. Deviated from the standard of care, yes.”

Although Mobile OB-GYN also produced some evidence indicating that Baggett’s amniotic-fluid level on February 7, 2005, 6.69 centimeters, is not universally considered to be a low reading, the evidence submitted by Baggett was nevertheless sufficient to constitute substantial evidence that Dr. Madonia breached the applicable standard of care. Mobile OB-GYN does not dispute this point, but it argues that Baggett subsequently failed to put forth substantial evidence indicating that Dr. Madonia’s error caused the death of Bag-gett’s baby, that is, that the baby probably would have lived if Dr. Madonia had recognized that Baggett’s amniotic-fluid level was low and had taken remedial measures. See, e.g., § 6-5-549, Ala.Code 1975; 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))).

Initially, Mobile OB-GYN notes that when Baggett’s expert, Dr. Turrentine, was asked specifically about causation, he was interrupted by an objection and, after that objection was resolved, failed to answer the question:

“Q. Now, assuming that on February 7th the doctors at Mobile OB-GYN had asked Wendy Baggett are you— what medications you are taking, and she had told them Benicar, if the Be-nicar had been discontinued then, do you have an opinion as to whether little baby Andrew could have been salvaged,—
“[Mobile OB-GYN’s attorney:] Your Honor,—
“Q. —could have been saved?
“[Mobile OB-GYN’s attorney:] —pardon me. I object. Again, he has no qualifications to give that testimony at all.”

Dr. Turrentine did not thereafter express an opinion as to whether the baby could have been saved had Benicar been discontinued on February 7; instead, he began discussing a medical-journal article. Dr. Turrentine summarized that article, Fetal Toxic Effects of Angiotensin II Receptor Antagonists: Case Report and Follow-Up after Birth, published in the January 2005 edition of The Annals of Pharmacotherapy, as follows:

“Q. And what is that particular article about?
“A. This article is — has two components. It is described as a case report of an infant who was exposed to one of these ARB medications[] during pregnancy. And then, in addition, it summarizes the articles available up until that time of other case reports of infants that have been exposed to the ARB medication during pregnancy.”

Dr. Turrentine also was asked what conclusions were drawn in this article:

“Q. Doctor, what conclusions were reached in this article about the survivability by an infant who had been on a medication such as Benicar and was then taken off of the medication Benicar up to the 28th week of pregnancy, bearing in mind that little Andrew’s ultrasound was when he was approximately 22 weeks gestational age?
“A. The article here by [Marie-An-drée] Bos-Thompson, there are three — of the ten reports that are there, there are three of them, and, again, they were — these were ARB-like medications. They were — none of them were specifically Benicar. They all act very similarly.
“In three of the cases where the medications were discontinued, I think one was at 24 weeks, one was at 25 weeks, and one at 28 weeks. And at the time the medications were discontinued, there was very minimal amniotic fluid around the baby. And in those three cases, within between two to six weeks, the fluid level came back to a sufficient level.
“Now one of these cases the family opted to end the pregnancy at 32 weeks. The other case had — the baby died at 33 weeks. But in the third case the baby was live-born.
“Q. And the baby that was live-born, two years after it was born, how was it doing?
“A. From this case report, actually it had regained a lot of its renal function and had improved tremendously.”

Thus, at no point in his testimony or discussion of the medical-journal article did Dr. Turrentine ever state, as his expert opinion, that Baggett’s baby probably would have survived if remedial action had been taken on February 7.

However, even though Dr. Turrentine did not give an opinion on this point, Bag-gett argues that there is nevertheless substantial evidence in the record indicating that the baby would have survived if Mobile OB-GYN had taken remedial action on February 7. Baggett first argues that the article discussed by Dr. Turrentine is itself an expert source establishing causation. However, an examination of that article reveals that it does not, in fact, support that proposition. Indeed, after summarizing 15 cases in which fetuses were exposed to ARB medications similar to Benicar, which medications are referred to in the article as “ATI antagonists,” the article states that “[b]ased on these 15 case reports, it is not possible to conclude that the risk is really reduced when treatment is stopped early in pregnancy. Rather, it does support avoidance of ATI antagonists throughout pregnancy.” Marie-Andrée Bos-Thompson et al., Fetal Toxic Effects of Angiotensin II Receptor Antagonists: Case Report and Follow-Up after Bhih, 39 The Annals of Pharmacoth-erapy 157, 160 (January 2005). The article concludes as follows:

“Our case and review of other reported cases support the recommendation to avoid ATI antagonists during pregnancy. ATI antagonists are responsible for severe oligoamnios, which can lead to neonatal renal insufficiency and other associated abnormalities. If a pregnant woman is accidentally prescribed an ATI antagonist, the agent should be stopped as soon as possible. Monitoring of amniotic fluid volume and p2-rciicroglobulin fetal blood levels can be used to increase the likelihood of positive fetal outcomes.”

Id. Thus, this article at best stands for the proposition that if it is discovered that a pregnant woman is taking an ATI antagonist such as Benicar, she should cease doing so as soon as possible, and steps can then be taken to increase the possibility of a positive outcome. However, at no point in the article is it stated, or even implied, that if those steps are taken there is a probability of a positive outcome to the pregnancy. This same problem also exists for Baggett in regard to the following testimony given by Dr. Madonia, which she also cites as evidence of causation:

“Q. According to this article at least, there are things you can attempt to do to reverse the effect of drugs such as Benicar; correct?
“A. Yes.”

However, one cannot reasonably infer from this testimony that merely because a physician can attempt to reverse the effects of Benicar on a fetus, the probable result of such an. attempt is a positive outcome to the pregnancy.

Baggett also cites the testimony of Mobile OB-GYN’s two expert witnesses as further evidence of causation. Dr. Dwight Rouse and Dr. Max Rogers both testified on behalf of Mobile OB-GYN, and their expert opinion was that Bag-gett’s amniotic-fluid level on February 7 was not low. They testified that her fluid level was normal because it was above the five-centimeter mark, which, they claimed, is the generally recognized cutoff point for oligohydramnios. Dr. Rouse specifically testified that “there was no indication, based on the impression of the experienced sonographer, that there was anything wrong on this ultrasound,” and Dr. Rogers agreed that Baggett’s amniotic-fluid level on February 7 was “normal”; both witnesses stated that no further action was required by Dr. Madonia based on the February 7 ultrasound. Baggett argues that these two witnesses were, in effect, declaring that the baby was “perfectly normal” on February 7 and would therefore have been fine had Baggett ceased taking Benicar as of that date.

However, Baggett’s argument mischar-acterizes Dr. Rouse’s and Dr. Rogers’s testimony. Neither witness ever expressed an opinion as to the health of Baggett’s baby on February 7; rather, they expressed their opinions regarding the ultrasound report, specifically as it related to Baggett’s amniotic-fluid level. Neither Dr. Rouse’s statement that “there was no indication ... that there was anything wrong on this ultrasound” nor Dr. Rogers’s testimony that the amniotic-fluid level was “normal” necessarily leads to the conclusion that the baby was “perfectly normal” on February 7.

It was undisputed at trial that the use of ATI antagonists such as Benicar during the second and third trimesters of pregnancy can cause injury or death to the fetus. It was also undisputed that Baggett was already approximately halfway through her second trimester when the February 7 ultrasound was conducted. No expert testified that Baggett’s baby probably would have been saved if Baggett had stopped taking Benicar on February 7 and, even when looking at the entirety of the evidence in the light most favorable to Baggett, as we must, Waddell & Reed, Inc., 875 So.2d at 1152, it is impossible to conclude that a fair-minded person in the exercise of impartial judgment could reasonably infer that Baggett’s baby probably would have been saved if Baggett had stopped taking Benicar on February 7. At most, the evidence indicated only that the baby possibly could have been saved if Baggett had stopped taking Benicar on February 7. A mere possibility is an insufficient basis upon which to support a jury verdict in a medical-malpractice action. See § 6-5-549, Ala.Code 1975. Accordingly, the second and fourth counts are bad counts that should not have been submitted to the jury.

IV.

Mobile OB-GYN also argues that both the third count submitted to the jury — that it breached the standard of care because it “negligently did not have in place appropriate procedures, safeguards, and protocols to prevent the drug Benicar from being prescribed to pregnant patients” — and the fifth count submitted to the jury — that it breached the standard of care because it “negligently did not properly evaluate the risk of allowing a pregnant patient to remain on the drug Beni-car” — are not supported by the evidence. Specifically, Mobile OB-GYN argues that there was no expert testimony establishing the standard of care applicable as to either count, establishing that there was a breach of that standard, or establishing that that alleged breach was the proximate cause of the baby’s death. For the reasons that follow, we disagree.

In regard to the third count, Baggett’s expert witness, Dr. Turrentine, gave the following testimony establishing the standard of care health-care providers should use in charting patients’ medications and concluding that Mobile OB-GYN did not meet that standard:

“Q. Doctor, based on your education, training and background, is it the standard of care that the documenting of the continuance, discontinuance, prescription of medications is to be charted?
“A. The standard of care is that medications, when they are started and stopped, should be documented.
“Q. Doctor, based on your education, training, background, the materials you reviewed, the facts you have become familiar with in this case, do you have an opinion to a reasonable degree of medical certainty as to whether [Mobile OB-GYN] violated the standard of care by not charting medications appropriately in their charts?
“A. Yes, they did not chart discontinuing the Benicar.”

Dr. Rouse and Dr. Rogers subsequently testified that Dr. Madonia’s charting practices did not breach the standard of care; however, Dr. Turrentine’s testimony nevertheless constitutes substantial evidence that the standard of care required Dr. Madonia to chart when medications are started and stopped and that he breached the standard of care by failing to do so.

In regard to the fifth count, the unanimous testimony of every expert who testified at trial was that when a patient taking Benicar becomes pregnant, Benicar should be immediately discontinued. Indeed, the testimony of those experts indicated that it was a violation of the standard of care not to discontinue the use of Benicar. This testimony is tantamount to stating that a proper evaluation of the risks associated with leaving a pregnant patient on Benicar will ahvays lead the evaluating physician to conclude that the risks are unacceptable and that Benicar should therefore be discontinued; by extension, any evaluation (or the failure to conduct an evaluation) that results in the patient being left on Benicar has necessarily been negligent and the evaluating physician who does not discontinue Benicar has breached the standard of care.

Thus, there was expert testimony establishing the standards of care applicable to the third and fifth counts as well as evidence indicating that Mobile OB-GYN failed to meet those standards. However, there still must be some evidence from which a jury could reasonably conclude that Mobile OB-GYN’s breach of those standards proximately caused the death of Baggett’s baby before those counts may be considered good counts. Mobile OB-GYN emphasizes that there was no expert testimony establishing proximate causation; however, the general facts underlying these counts, along with the undisputed expert testimony establishing that women who become pregnant should immediately discontinue the use of Benicar, constitute substantial evidence of proximate causation. If Mobile OB-GYN had maintained its patients’ medical records in a manner consistent with the standard of care as established by Dr. Turrentine, Dr. Mado-nia would have had a record indicating that Baggett had been prescribed Benicar, and, upon reviewing that record, he would have also seen that the record indicated that Baggett had never stopped taking Benicar. The undisputed evidence indicates that Dr. Madonia knew that Benicar should not be taken by pregnant women; thus, his evaluation of the situation after reviewing her medical records and learning these facts would have necessarily resulted in his instructing Baggett to immediately cease taking Benicar. A jury could therefore reasonably conclude that Mobile OB-GYN’s failure to properly chart Bag-gett’s Benicar use led to the negligent failure to evaluate that resulted in her continued use of Benicar and the ultimate death of her baby. The third and fifth counts were accordingly good counts that were properly submitted to the jury.

V.

After all the evidence was presented, the jury in this case was given a charge alleging five counts of negligence. It subsequently returned a general verdict in favor of Baggett and against Mobile OB-GYN, and the trial court entered a judgment based on that verdict. However, because two of the five counts the jury was charged on were not supported by substantial evidence, Mobile OB-GYN was entitled to a judgment as a matter of law on those two counts, and those counts should not have been submitted to the jury. Because we cannot presume that the jury’s verdict was based on the three remaining good counts, we must therefore reverse the judgment entered on that verdict. Long, 980 So.2d at 385. All other issues raised by Mobile OB-GYN in its appeal and the issue regarding the remittitur raised by Baggett in her cross-appeal are therefore moot, and the cause is remanded to the trial court for a new trial on the remaining good counts.

1071020 — REVERSED AND REMANDED.

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

COBB, C.J., concurs in part and dissents in part.

MURDOCK, J., concurs in the result in part and dissents in part.

1071081 — DISMISSED.

LYONS, WOODALL, SMITH, BOLIN, PARKER, MURDOCK, and SHAW, JJ., concur.

COBB, C.J., dissents.

COBB, Chief Justice

(concurring in part and dissenting in part in case no. 1071020).

I concur with the majority’s conclusion that the first, third, and fifth negligence counts were properly submitted to the jury. As to the majority’s conclusion that the trial court erred in submitting the second and fourth negligence counts to the jury, I respectfully dissent.

The journal article referenced in the majority opinion and discussed in the record does not support Wendy Baggett’s contention that the effects of Benicar can be reversed if the mother stops taking the drug. However, the record contains other evidence from which a jury could reasonably conclude that Baggett’s exposure to Benicar after the February 7, 2005, ultrasound probably and proximately caused the death of the infant. See, e.g., Ala.Code 1975, § 6-5-549 (“In the case of a jury trial, the jury shall be instructed that in order to return a verdict against a health care provider, the jury shall be reasonably satisfied by substantial evidence that the health care provider failed to comply with the standard of care and that such failure probably caused the injury or death in question.”); cf. Crutcher v. Williams, 12 So.3d 631, 640 (Ala.2008)(opinion on return to second remand) (“[T]o prevail on a medical-malpractice claim ... the plaintiff must prove that a breach of the standard of care ... proximately and probably caused actual injury to the plaintiff.”); Giles v. Brookwood Health Servs., Inc., 5 So.3d 533 (Ala.2008) (upholding a summary judgment for the defendant in a medical-malpractice case because the plaintiff did not present substantial evidence that the defendant physician’s negligence proximately and probably caused injury to the plaintiff).

Mobile OB-GYN’s own evidence at trial demonstrated that Benicar works by lowering the patient’s blood pressure, and that in doing so it decreases the flow of blood to the uterus and, ultimately, to the fetus. Insufficient blood flow to the uterus is known as uteroplacental insufficiency. Baggett introduced evidence indicating that Benicar lowered her blood pressure and caused the blood flow to the uterus to decrease. The evidence, including Mobile OB-GYN’s own evidence, also demonstrated that the decreased flow of blood to the uterus caused a decrease in the amount of amniotic fluid and that the decrease in the amount of amniotic fluid, in turn, caused the baby in this case to develop abnormally and ultimately to die.

Substantial evidence also exists to show that the critical decrease in the level of amniotic fluid, caused by taking a medication one of the effects of which is to decrease blood flow to the uterus, occurred after the February 7, 2005, ultrasound. As the majority notes, according to Mobile OB-GYN’s expert witnesses, the amniotic-fluid level at the time of the February 7 ultrasound was within the normal range. However, the undisputed evidence showed that, at the time of the child’s birth almost 11 weeks (almost the length of a trimester) later, Baggett had virtually no amniotic fluid. Moreover, Dr. Elizabeth Manci-Gardner, who performed the autopsy, concluded that “[t]he most likely cause of death in this case is decreased uteropla-cental blood flow, ivhich appears to have been relatively recent in onset because the fetal ... weights” were within normal ranges for a 33-week-old fetus.

Thus, although there was no proof at trial that ceasing the administration of Be-nicar can reverse damage that has already been done, there was substantial evidence that Benicar lowered Baggett’s blood pressure and decreased the blood flow to the uterus after the February 7 ultrasound, thereby probably and proximately causing the decrease in amniotic-fluid levels after the February 7 ultrasound, which in turn caused developmental defects in the fetus and, as a result, the death of the child.

The majority states that “no expert opinion testimony supports the view that events preceding the February 7 ultrasound examination can be disregarded so as to warrant the conclusion that lack of further evaluation by Dr. Madonia following the February 7 ultrasound probably caused the baby’s death.” 25 So.3d at 1138 n. 7. On this record, one could nevertheless reasonably conclude that the Beni-car taken after the February 7 ultrasound probably cannot be disregarded as a proximate cause of the baby’s death. The second and fourth counts were supported by sufficient evidence of proximate and probable causation and were properly submitted to the jury.

As a final note, I remain convinced of the correctness of Justice Murdock’s special writing concurring in the result in Long v. Wade, 980 So.2d 378, 387 (Ala.2007), in which I concurred. It is clear from the record that both counsel and the trial judge attempted to adhere to Long, which had just been released at the time of the trial in this case. However, I note that this case illustrates the complications that can arise under Long when a jury renders a general verdict after considering allegations that the defendant committed several tortious acts or omissions, any one of which could form an independent basis for holding the defendant liable. See Long, 980 So.2d at 386-87 (“[The plaintiff] may not, merely by including all alleged bases of recovery in a single count of their complaint, avoid the good-count/bad-count rule .... [The plaintiffs claims] are not merely different theories on which to recover for the same acts or omissions, but constitute entirely separate acts or omissions, which form discrete and independent bases for potential recovery. ... Upon sufficient proof, each one carries the potential for liability.”). In light of Long, the pleading requirements of § 6-5-551, Ala.Code 1975, a part of the Alabama Medical Liability Act, and the majority’s holding today, it appears that special verdicts or general verdicts accompanied by interrogatories may be a necessity in many medical-malpractice cases. See Rule 49(b) and (c), Ala. R. Civ. P. (regarding special verdicts and general verdicts accompanied by answers to interrogatories).

MURDOCK, Justice

(concurring in the result in part and dissenting in part in case no. 1071020).

With respect to the appeal in case no. 1071020, I concur in the result reached by the main opinion except as to the fifth count of Wendy Baggett’s complaint, as to which I respectfully dissent. I write separately to address the third and fifth counts of the complaint.

The Third Count

In the first trial of this case, the third count of Baggett’s complaint alleged that Mobile OB-GYN had breached the standard of care because it “negligently did not have in place appropriate procedures, safeguards, and protocols to prevent the drug Benicar from being prescribed to pregnant patients.” Baggett adduced evidence during trial that, if believed by the jury, indicated that Dr. Madonia’s nurse did not know what Benicar was before Baggett’s baby was delivered; that the staff of Mobile OB-GYN did not ask patients, during every prenatal visit, what medications they were taking; that some Mobile OB-GYN staff erroneously believed that Dr. Mado-nia automatically discontinued all medications when a patient became pregnant; and that Dr. Madonia did not indicate on Baggett’s medical chart that he had allegedly discontinued Benicar. Further, although disputed, there was evidence from which the jury reasonably could find that Dr. Madonia himself did not ask Baggett on prenatal visits what medications she was taking and, as discussed in the main opinion, that neither Dr. Madonia nor his staff followed charting practices that would reveal this information.

The extreme nature of the risk to pregnant patients of taking Benicar was not only testified to by experts, it was undisputed. Accordingly, if proven, the fact that Mobile OB-GYN did not have in place necessary procedures or practices for learning whether a pregnant patient was taking a drug as dangerous to a fetus as Benicar — and especially an appropriate procedure or practice to determine or reveal tvhether a pregnant patient teas still taking a drug recently prescribed by Dr. Madonia himself that woidd, be dangerous to a developing fetus — would entail a “ ‘ “lack of care [that] is so apparent ... as to be understood by a layman, and [to] require[ ] only common knowledge and experience to understand it.” ’ ” Ex parte HealthSouth Corp., 851 So.2d 33, 39 (Ala.2002) (quoting Tuscaloosa Orthopedic Appliance Co. v. Wyatt, 460 So.2d 156, 161 (Ala.1984), quoting in turn Dimoff v. Maitre, 432 So.2d 1225, 1226-27 (Ala.1983)). Likewise, as to the issue of causation, it is well within the ken of a layperson to be able to infer how appropriate charting practices would have made it apparent in a timely manner that Baggett remained on Benicar after she became pregnant.

The Fifth Count

I disagree, however, with the main opinion’s treatment of count five of the complaint. Baggett alleges in count five that Dr. Madonia “negligently did not properly evaluate the risk of allowing a pregnant patient to remain on the drug Benicar.” The record, however, at least as it developed at the first trial of this case, did not support such an allegation. In point of fact, there was no dispute at the first trial but that Dr. Madonia actually did know and did appreciate, at the time he was treating Baggett, the risk Benicar posed to fetuses. The dispute was not whether Dr. Madonia had this knowledge, but rather whether he acted upon it — either by implementing appropriate procedures to prevent patients like Baggett from remaining on such a drug or by actually informing Bag-gett that she should stop taking the drug. These are the issues to which the evidence at the first trial was directed — and these issues are subsumed by the first and third counts of the complaint. Accordingly, the charging of the jury as to the fifth count in the first trial of this case was at best potentially duplicative and confusing, see, e.g., American Cast Iron Pipe Co. v. Williams, 591 So.2d 854, 856 (Ala.1991), and 75A Am. Jur.2d Trial § 991 (2007), and was at worst the charging of a “bad count.”

      . Baggett in fact refilled her prescription for Benicar on October 27, 2004, two days after her visit with Dr. Madonia.

      . It appears that an ultrasound examination was not performed during either of those visits.

      . In her brief to this Court, Baggett emphasizes that “[Mobile OB-GYN] did not offer a single witness who testified that baby Andrew could not be salvaged as of February 7." Baggett’s brief, p. 17. However, this argument fails to recognize that the burden was on Baggett to prove causation, not on Mobile OB-GYN to disprove it.

      . Benicar belongs to a class of drugs alternately referred to at trial as angiotensin receptor blockers, or "ARB medications,” and as angiotensin II receptor antagonists, or "ATI antagonists.”

      . In its brief to this Court, Mobile OB-GYN also emphasizes that of the three cases discussed by Dr. Turrentine in summarizing the medical-journal article, only one baby survived:
      "The fact that one baby survived out of three reported cases proves nothing. These three cases are not shown to present a sufficient statistical sample having any application to other babies exposed to Beni-car. In fact, if they suggest anything at all, it is that the Baggett baby was likely to die even if Mrs. Baggett had stopped taking Benicar following the February 7 ultrasound.”
      Mobile OB-GYN’s brief, p. 37.

      . The evidence in the record that does speak to this point — the package insert included with Benicar — would actually seem to rebut Baggett's argument. That insert states that "[pjatients and physicians should be aware, however, that oligohydramnios may not appear until after the fetus has sustained irreversible injury," thus indicating that Benicar may have already caused irreversible injuries even if the amniotic-fluid level appears normal.

      . The Chief Justice's special writing, quoting from the autopsy report describing an autopsy that occurred 11 weeks after the February 7, 2005, ultrasound, states: " '[Tjhe most likely cause of death in this case is decreased utero-placental blood flow, which appears to have been relatively recent in onset because the fetal ... weights’ were within normal ranges for a 33-week-old fetus.” 25 So.3d at 1141 (Cobb, C.J., concurring in part and dissenting in part). The Chief Justice's special writing, relying heavily on the evidence as to decreased blood flow being "relatively recent” con-eludes: "[Tjhere was substantial evidence that Benicar lowered Baggett's blood pressure and decreased blood (low to the uterus after the February 7 ultrasound, thereby probably and proximately causing the decrease in amniotic-fluid levels after the Februaiy 7 ultrasound, which in turn caused developmental defects in the fetus and, as a result, the death of the child.” 25 So.3d at 1141. Of course, the doctor who prepared the autopsy report was not qualified as an expert on the effects of Benicar and offered no opinion on the role of Benicar in causation. Furthermore, as noted in this main opinion, no expert opinion testimony supports the view that events preceding the February 7 ultrasound examination can be disregarded so as to warrant the conclusion that lack of further evaluation by Dr. Madonia following the February 7 ultrasound probably caused the baby's death. Consequently, a jury verdict reaching the conclusion drawn in the Chief Justice's special writing would be based on speculation as to matters well beyond the expertise of a layperson.

      . Consistent with expert testimony introduced by Baggett at trial, not to mention its ability to use its own common sense and experience, the jury could have found that such charting practices would include a practice of always charting both the prescription of and the discontinuation of drugs that posed a danger to pregnant women and a practice of checking for both types of entries with respect to patients who become pregnant.


author: PARKER, Justice.

text:
    Ex parte BRIAN NELSON EXCAVATING, LLC. (In re Alvin Prater, Robert Hall, and Jessie Hall v. Brian Nelson Excavating, LLC).
    1071473.
    Supreme Court of Alabama.
    June 12, 2009.

      Jack Owen and John W. Marsh of Ball, Ball, Mathews & Novak, P.A., Montgomery, for petitioner.
    Valerie Rucker Russell and Jock M. Smith of Cochran, Cherry, Givens & Smith, PC, Tuskegee, for respondents.
   PARKER, Justice.

Brian Nelson Excavating, LLC (“Nelson”), filed this petition for a writ of mandamus asking this Court to direct the Montgomery Circuit Court to vacate its order denying Nelson’s motion for a summary judgment. Nelson’s petition for the writ of mandamus presents two questions for consideration by this Court: (1) Is a claim for damages to a residence caused by vibrations or concussion transferred through the ground a trespass claim or a nuisance claim so as to invoke either a six-year statute of limitations or a two-year statute of limitations, respectively; and (2) what constitutes knowledge or constructive knowledge of the identity of a party, so that substitution of that party for a fictitiously named defendant after the expiration of the limitations period does not relate back to the filing of the original complaint? Our denial of this petition on a peripheral issue, however, pretermits any discussion of the questions presented by Nelson.

Background and Procedural Posture

Nelson is the defendant in an action filed by Alvin Prater, Robert Hall, and Jessie Hall. Nelson was added as a defendant on December 6, 2006, when it was substituted for a fictitiously described defendant pursuant to Rule 9(h), Ala. R. Civ. P. With the exception of the general contractor, Russell Construction Company of Alabama, Inc., which subcontracted work to Nelson, the original named defendants are no longer parties to the action.

On January 27, 2003, Robert Hall and Alvin Prater, who were neighbors, felt vibrations in the ground that shook their houses. Upon investigating, they determined that the source of the vibrations was a vibratory compactor being used in the construction of a parking lot on church property that adjoined the rear of their properties. Robert Hall immediately spoke with the person operating the compactor, and shortly thereafter he spoke with that person’s supervisor. The supervisor gave Robert Hall a business card that identified Nelson as the employer of the person operating the compactor. A few days later, Robert Hall communicated this information to Prater, who wrote down the name “Brian Nelson” and a telephone number from the business card. Robert Hall gave the business card to his wife, Jessie Hall. The Halls and Prater allege that soon after they experienced the vibrations in their houses, they noticed exterior and interior damage to the walls of their houses and to the ceilings, flooring, brick work, planters, patios, and fences of their houses.

The Halls apparently had filed an insurance claim with Nelson’s liability carrier for damage to their house because a June 18, 2003, letter from State Auto Insurance Companies, Nelson’s insurer, advised Robert Hall that State Auto’s “investigation indicates that our insured was not at fault in this case.” The letter lists the insured as “Brian Nelson Excavating Company LC.” Jessie Hall acknowledged that Robert Hall received this letter.

The Halls and Prater filed the underlying action on November 12, 2004, against State Farm Fire and Casualty Company, Safeco Insurance Company of America, Russell Construction of Alabama, Inc., Jade Engineering and Inspection, Inc., and several fictitiously named defendants, seeking compensation for the damage to their houses allegedly caused by the vibrations from the compactor used on the adjoining church property. They also sought damages, including punitive damages, from the insurance companies for, among other things, fraud, bad faith, and breach of contract.

Prater and the Halls amended their complaint on December 6, 2006, almost four years after the events underlying their claims, to substitute Nelson for one of the fictitiously described defendants. In response, Nelson pleaded the bar of the two-year statute of limitations applicable to a nuisance claim, and on May 1, 2008, Nelson filed a motion for a summary judgment, arguing that, because the undisputed evidence established that Prater and the Halls had no claim based on trespass, the two-year statute of limitations in § 6-2-38, Ala.Code 1975, for nuisance claims barred their claims against Nelson. Nelson further asserted that Prater and the Halls had improperly attempted to use Alabama’s fictitious-party practice to circumvent the bar of the two-year statute of limitations applicable to a nuisance claim. Nelson argued that because both Prater and the Halls knew that Nelson was the entity that employed the person who operated the compactor, the fictitious-party-practice rule, Rule 9(h), Ala. R. Civ. P., was not available to them.

Prater and the Halls responded, arguing that their claim against Nelson was based on trespass and that the statute of limitations for trespass, pursuant to § 6-2-34(2), Ala.Code 1975, is six years. As for the substitution of Nelson for a fictitiously named defendant, they argued:

“Although [Prater and the Halls] may have been aware that [Nelson] performed work at the construction cite [sic], [Prater and the Halls] believed [it] to be merely a supervising employee of Russell Construction. [Prater and the Halls] were unaware that [Nelson] was a liable party until after receiving Russell Construction’s Motion for Summary Judgment. Shortly thereafter, the second amended complaint was filed.”

The trial court denied Nelson’s motion for a summary judgment on June 18, 2008, and issued the following order:

“The above-styled matter comes before the court on Defendant’s, Brian Nelson Excavating, LLC, motion for summary judgment. A hearing was held on June 5, 2008, at which representation for both parties was present. In order for a party to prevail on motion for summary judgment, the moving party must demonstrate ‘that there is no genuine issue of material fact and that the moving party is entitled to a judgment as a matter of law.’ [Ala. R. Civ. P.,] Rule 56(c)(3) (2007).
“[Nelson] contends that the claims brought are similar to those for damage[ ] caused by concussion or vibrations from blasting on adjacent property, and should fall under a two-year statute of limitations and thus, should be barred under the Alabama Code 1975, § 6-2-38. [Prater and the Halls] claim their action should be treated as a trespass, which carries a 6 year statute of limitations pursuant to § 6-2-34(2) of the Alabama Code 1975.
“Trespass and private nuisance are separate fields of tort liability relating to actionable interference with the possession of land, the difference between the two being the extent to which Defendant’s actions impede Plaintiffs exclusive possessory interest. There remains a question as to whether [Nelson’s] actions constituted nuisance or trespass; therefore, [Nelson’s] motion for summary judgment is due to be and is hereby denied.
“Done this the 18 June 2008.”

Nelson then filed this petition for a writ of mandamus asking this Court to direct the trial court to vacate its order denying its summary-judgment motion and to enter a summary judgment in Nelson’s favor on the basis that the claim against it does not relate back to the filing of the original complaint and is thus barred by the two-year statute of limitations.

Standard of Review

A writ of mandamus is an extraordinary remedy available only when there is: “(1) a clear legal right to the order sought; (2) an imperative duty upon the respondent to perform, accompanied by a refusal to do so; (3) the lack of another adequate remedy; and (4) the properly invoked jurisdiction of the court.” Ex parte BOC Group, Inc., 823 So.2d 1270, 1272 (Ala.2001) (citing Ex parte Inverness Constr. Co., 775 So.2d 153, 156 (Ala.2000)).

Generally, “ ‘a writ of mandamus will not issue to review the merits of an order denying a motion for a summary judgment.’ ” Ex parte Empire Fire & Marine Ins. Co., 720 So.2d 893, 894 (Ala.1998)(quoting Central Bank of the South, 675 So.2d 403, 406 (Ala.1996)). However, a petition for a writ of mandamus is the proper vehicle by which to seek review of a denial of a motion for summary judgment filed by a party originally listed as a fictitiously named defendant when the “undisputed evidence shows that the plaintiff failed to act with due diligence in identifying the fictitiously named defendant as the party the plaintiff intended to sue.” Ex parte Snow, 764 So.2d 531, 537 (Ala.1999).

Analysis

The use of fictitious-party pleadings is authorized by Rule 9(h), Ala. R. Civ. P.:

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

Rule 15(c), Ala. R. Civ. P., provides for the relation back of an amended pleading to the date of the original pleading:

“(e) Relation Back of Amendments. An amendment of a pleading relates back to the date of the original pleading when
“(1) relation back is permitted by the law that provides the statute of limitations applicable to the action, or
“(2) the claim or defense asserted in the amended pleading arose out of the conduct, transaction, or occurrence set forth or attempted to be set forth in the original pleading, except as may be otherwise provided in Rule 13(c) for counterclaims maturing or acquired after pleading, or
“(3) the amendment, other than one naming a party under the party’s true name after having been initially sued under a fictitious name, changes the party or the naming of the party against whom a claim is asserted if the foregoing provision (2) is satisfied and, within the applicable period of limitations or one hundred twenty (120) days of the commencement of the action, whichever comes later, the party to be brought in by amendment (A) has received such notice of the institution of the action that the party will not be prejudiced in maintaining a defense on the merits, and (B) knew or should have known that, but for a mistake concerning the identity of the proper party, the action would have been brought against the party, or
“(4) relation back is permitted by principles applicable to fictitious party practice pursuant to Rule 9(h).”

The applicability of the principle of relation back to the substitution of a named party for a fictitiously named party in this case is dependent upon which limitations period applies. If the six-year statute of limitations applies, no relation-back issue is presented. Here, the trial court did not reach the question of which statute of limitations governs. “There remains a question as to whether [Nelson’s] actions constituted nuisance or trespass; therefore, [Nelson’s] motion for summary judgment is due to be and is hereby denied.” Because the six-year statute of limitations would render the relation-back issue irrelevant, to determine whether there was a need to reach the fictitious-party/relation-back issue this Court would first have to determine the statute-of-limitations question that was not addressed by the trial court. This the Court will not do. Certain issues are not “properly raised by writ of mandamus, because ... the petitioner must show ... a lack of other adequate remedy. The fact that a statute of limitations defense is applicable is not a proper basis for issuing a writ of mandamus, due to the availability of a remedy by appeal.” Ex parte Southland Bank, 514 So.2d 954, 955 (Ala.1987) (citations omitted).

The petition is denied because the fictitious-party/relation-back issue in this case is not ripe for mandamus review.

PETITION DENIED.

COBB, C.J., and LYONS, WOODALL, STUART, SMITH, BOLIN, MURDOCK, and SHAW, JJ., concur.

      . The original named defendants were State Farm Fire and Casualty Company, Safeco Insurance Company of America, Russell Construction Company of Alabama, Inc., and Jade Engineering and Inspection, Inc.