author: PER CURIAM. MURDOCK, Justice

text:
    Faye B. GILMER v. CRESTVIEW MEMORIAL FUNERAL HOME, INC., et al.
    1051429.
    Supreme Court of Alabama.
    June 30, 2009.
    Rehearing Denied Oct. 16, 2009.

      J. Chris Cochran of Pittman, Dutton, Kirby & Heliums, P.C., Birmingham, for appellant.
    R. Larry Bradford and Shane T. Sears of Bradford & Sears, P.C., Birmingham, for appellees Barry Taul and Mary Caldwell.
    Bert P. Taylor of Taylor Ritter P.C., Orange Beach, for appellee Crestview Memorial Funeral Home, Inc.
    John Martin Galese, Jeffrey L. Ingram, and Franklin L. Bell of Galese & Ingram, P.C., Birmingham, for appellee Garland Jones.
   PER CURIAM.

Faye B. Gilmer appeals from a summary judgment entered in favor of Crestview Memorial Funeral Home, Inc. (“Crest-view”), Garland “Sonny” Jones, Barry Taul, and Mary Caldwell. At the time the services that are the basis for the underlying action were performed, Jones was the owner and president of Crestview, Taul was the manager of Crestview, and Caldwell was an apprentice embalmer and funeral director for Crestview. We affirm in part, reverse in part, and remand.

Procedural History

On December 19, 2003, Gilmer sued Crestview, Jones, Taul, and Caldwell. The complaint alleged the tort of outrage, negligence and/or wantonness, suppression, and breach of contract. All the claims related to the funeral services, including embalming, provided by Crestview to Gil-mer in connection with the burial of her deceased husband. On March 23, 2004, the defendants filed a joint answer to the complaint. On May 16, 2005, Gilmer amended her complaint to add a claim against Crestview and Jones alleging negligent, willful, or wanton hiring, training, or supervising of employees.

On September 1, 2005, the defendants filed a joint motion for a summary judgment, along with evidentiary materials to support the motion. On October 18, 2005, Gilmer filed a response to the defendants’ summary-judgment motion, along with supporting evidentiary materials. On November 14, 2005, Gilmer filed a motion requesting an order to allow the issuance of a nonparty subpoena to the Alabama Board of Funeral Service. On November 17, 2005, Gilmer filed a motion requesting that the trial court extend the discovery deadlines. On December 6, 2005, Gilmer filed a second response to the defendants’ summary-judgment motion, along with an affidavit from the executive secretary of the Alabama Board of Funeral Service. On December 12, 2005, the trial court entered an order, purporting to enter a summary judgment for Gilmer and to deny the defendants’ summary-judgment motion. However, on December 16, 2005, the trial court amended its order to simply deny the defendants’ summary-judgment motion and to grant Gilmer’s motion for an extension of time to complete discovery and her motion for an order allowing the issuance of a nonparty subpoena.

On May 8, 2006, the day the case was set for trial, the defendants filed a motion in open court to dismiss Gilmer’s complaint under Rule 12(b)(6), Ala. R. Civ. P. On May 10, 2006, “[u]pon hearing extensive oral arguments of counsel and upon review of the pleadings and evidentiary submissions to the court,” the trial court granted the motion to dismiss all the claims in Gilmer’s complaint and amended complaint. On May 24, 2006, Gilmer filed a motion to alter, amend, or vacate the judgment. The trial court denied this motion on June 23, 2006, but the court set aside this denial and set a hearing on the motion for June 30, 2006. After conducting the hearing, the trial court again denied the motion on June 30, 2006. On July 5, 2006, Gilmer appealed.

Facts

Shortly after her husband’s death, Gil-mer contacted Crestview to provide funeral and burial services for her husband. On July 17, 2003, Gilmer signed an “Authorization to Embalm and Prepare.” The document authorized Crestview to embalm the body of Gilmer’s husband “us[ing] the services of independent embalmers, apprentices or student interns in connection with such embalming, care and preparation for disposition, provided that any person rendering such services is allowed to perform such work under applicable law.”

Billy Groves was the only licensed embalmer employed by Crestview on July 17, 2003. According to his affidavit, Groves was on medical leave and did not participate in any embalming services from June 30, 2003, to July 31, 2003. Groves stated that he was aware that Caldwell and Taul had claimed that the embalming services performed on Gilmer’s husband’s body were done under Groves’s direction and/or supervision; Groves stated in his affidavit, however, that this claim was false. Groves stated that, at the time the embalming services were rendered, he was not aware that Caldwell or Taul had embalmed the body of Gilmer’s husband. Groves stated that he later learned that Caldwell and/or Taul had been forging Groves’s signature on the official embalming log maintained by Crestview for inspection by the Alabama Board of Funeral Service, and Groves learned that Taul had forged Groves’s name on the embalming log for the embalming services performed on Gil-mer’s husband’s body.

Taul testified that he had embalmed the body of Gilmer’s husband; Taul acknowledged that he was not a licensed embalmer or a certified apprentice embalmer when he did so. According to Taul, while Groves was on medical leave, Crestview would sometimes hire a “contract embalmer” to perform embalming services usually performed by Groves. Taul testified that Crestview did not charge the customer extra when a contract embalmer was hired; thus, he said, it was more profitable for Crestview to have an employee perform the embalming services without hiring a contract embalmer.

The day after Taul embalmed the body of Gilmer’s husband, Caldwell completed a clinical embalming report describing the embalming procedure. Taul told Caldwell what to write in the report. Caldwell signed the report and wrote the word “embalmer” beside her signature. Taul’s name did not appear on this report. Both Caldwell and Taul testified that Caldwell did not embalm the body of Gilmer’s husband and that she was not present when Gilmer’s husband’s body was embalmed by Taul.

Gilmer testified that shortly after her husband’s death her daughter read her an article about Crestview that appeared in the newspaper. Gilmer understood this article to say that every body that had been embalmed at Crestview during July 2003 had not been embalmed by a licensed embalmer. Gilmer testified that at this time her mental anguish “start[ed] being almost unbearable.” According to Gilmer, she and her daughter began to investigate whether her husband’s body had been embalmed by a licensed embalmer. This investigation included telephoning Crestview several times in an attempt to see the license of the person who had embalmed Gilmer’s husband’s body. According to Gilmer, Crestview eventually told Gilmer’s daughter that she could see the embalmer’s license, and Crestview gave her a copy of Caldwell’s embalming license. Caldwell testified that she was not licensed to embalm in Alabama until July 31, 2003, over two weeks after the body of Gilmer’s husband was embalmed. Caldwell also testified that she had nothing to do with the actual embalming of Gilmer’s husband’s body.

Gilmer testified that her husband was buried on July 19, 2003, and that Caldwell, who was directing the funeral, rushed the graveside service and did not give Gilmer enough time to greet the people who attended. According to Gilmer, Caldwell told Gilmer that her daughters were ready to start the funeral service, while separately telling the daughters that Gilmer wanted to go ahead and “get [the service] over with.” Gilmer testified that she did not complain to anyone at the time about being rushed. Gilmer also testified that the only thing that prevented her from greeting people after the graveside service was not Caldwell, but the heat.

Gilmer testified that, based on her observation while at the graveside service of the hinges on her husband’s casket and her observation of the hinges in pictures taken at the service, Gilmer became worried that the casket had been turned in the wrong direction when her husband was buried. Gilmer said that several days after the service she had a telephone conversation with Taul about her concern. Taul assured Gilmer that her husband’s casket was not turned in the wrong direction and that the casket had hinges on both sides. However, Taul testified that, shortly after the telephone conversation, he discovered that the casket Gilmer’s husband was buried in did not have hinges on both sides. Taul said he never informed Gilmer that his statement about the hinges was incorrect. According to Gilmer, a few days after she spoke with Taul she had a meeting with Jones, and he admitted that the casket did not have hinges on both sides and that the casket had apparently been turned in the wrong direction when Gil-mer’s husband was buried.

Jones testified that he was not involved in the day-to-day operations of Crestview. Generally, Jones would visit Crestview two or three times a week. Jones testified that it was his understanding that, if the licensed embalmer was on vacation or out sick and the manager of the funeral home was not a licensed embalmer, the manager would contract with an independent embalmer to perform the embalming services.

Standard, of Review

In the present ease, both parties appear to treat the defendants’ “motion to dismiss plaintiffs complaint” as a motion to dismiss for failure to state a claim under Rule 12(b)(6), Ala. R. Civ. P. However, in reaching its decision to grant this motion, the trial court explicitly states that it reviewed “evidentiary submissions.”

This Court has held:

“ ‘When matters outside the pleadings are considered on a motion to dismiss, the motion is converted into a motion for summary judgment, Rule 12(b), Ala. R. Civ. P.; this is the case regardless of what the motion has been called or how it was treated by the trial court, Papastefan v. B & L Constr. Co., 356 So.2d 158 (Ala.1978); Thorne v. Odom, 349 So.2d 1126 (Ala.1977). “Once matters outside the pleadings are considered, the requirements of Rule 56, [Ala. R. Civ. P.], become operable and the ‘moving party’s burden changes and he is obliged to demonstrate that there exists no genuine issue as to any material fact and that he is entitled to a judgment as a matter of law.’ C. Wright & A. Miller, Federal Practice & Procedure, Civil, § 1366 at 681 (1969).” Boles v. Blackstock, 484 So.2d 1077, 1079 (Ala.1986).’ ”

Robinson v. Benton, 842 So.2d 631, 634 (Ala.2002) (quoting Hornsby v. Sessions, 703 So.2d 932, 937-38 (Ala.1997)).

In Pittman v. United Toll Systems, LLC, 882 So.2d 842 (Ala.2003), this Court set forth the standard of review applicable to a ruling on a motion for a summary judgment, as follows:

“This Court’s review of a summary judgment is de novo.
“ ‘In reviewing the disposition of a motion for summary judgment, “we utilize the same standard as the trial court in determining whether the evidence before [it] made out a genuine issue of material fact,” Bussey v. John Deere Co., 531 So.2d 860, 862 (Ala.1988), and whether the movant was “entitled to a judgment as a matter of law.” Wright v. Wright, 654 So.2d 542 (Ala.1995); Rule 56(c), Ala. R. Civ. P. When the movant makes a prima facie showing that there is no genuine issue of material fact, the burden shifts to the nonmovant to present substantial evidence creating such an issue. Bass v. SouthTrust Bank of Baldwin County, 538 So.2d 794, 797-98 (Ala.1989). Evidence is “substantial” if it is of “such weight and quality that fair-minded persons in the exercise of impartial judgment can reasonably infer the existence of the fact sought to be proved.” Wright, 654 So.2d at 543 (quoting West v. Founders Life Assurance Co. of Florida, 547 So.2d 870, 871 (Ala.1989)). Our review is further subject to the caveat that this Court must review the record in a light most favorable to the nonmovant and must resolve all reasonable doubts against the movant. Wilma Corp. v. Fleming Foods of Alabama, Inc., 613 So.2d 359 (Ala.1993) [overruled on other grounds, Bruce v. Cole, 854 So.2d 47 (Ala.2003) ]; Hanners v. Balfour Guthrie, Inc., 564 So.2d 412, 413 (Ala.1990).’ ”

882 So.2d at 844 (quoting Hobson v. American Cast Iron Pipe Co., 690 So.2d 341, 344 (Ala.1997)).

Discussion

The only argument presented in the defendants’ motion was that all Gilmer’s claims should be dismissed because, the defendants said, all of her claims arise solely from her allegation that the defendants had violated § 34-13-112, Ala.Code 1975, a part of Title 34, Chapter 13, “Funeral Services,” which provides that “[a]ll embalming must be performed under a licensed embalmer .... ” The defendants argued that Gilmer’s claims cannot be maintained because, they say, § 34-13-112 does not create a private cause of action and a violation of that statute does not constitute negligence per se. In response to the defendants’ motion, Gilmer did not argue that § 34-13-112 creates a private cause of action or that a violation of the statute constitutes negligence per se. Instead, Gilmer argued that the claims asserted in her complaint are valid common-law causes of action that are not based solely on § 34-13-112. Gilmer contended that she merely referenced § 34-13-112 in her complaint to help establish some of the elements of her common-law claims.

On appeal, the parties present the same arguments they presented to the trial court. In White Sands Group, L.L.C. v. PRS II, LLC, 998 So.2d 1042 (Ala.2008), this Court held that, in responding to a summary-judgment motion, a nonmovant is not required to present substantial evidence of elements of a claim that are not challenged by the movant. Specifically, this Court held:

“ ‘The [summary-judgment] movant has the initial burden of making a prima facie showing that there is no genuine issue of material fact; if the movant makes that showing, the burden then shifts to the nonmovant to present substantial evidence of each element of the claim challenged by the movant.’ Harper v. Winston County, 892 So.2d 346, 349 (Ala.2004) (emphasis added). However, if the movant does not satisfy his initial burden, ‘then he is not entitled to judgment. No defense to an insufficient showing is required.’ Ray v. Midfield Park, Inc., 293 Ala. 609, 612, 308 So.2d 686, 688 (1975) (emphasis added). ‘A motion that does not comply with Rule 56(c)[, Ala. R. Civ. P.,] does not require a response in defense from the nonmovant.’ Horn v. Fadal Machining Ctrs., LLC, 972 So.2d 63, 70 (Ala.2007). Simply stated, ‘ “[a] summary judgment is not proper if the movant has not complied with the requirements of Rule 56.” ’ 972 So.2d at 70 (quoting Northwest Florida Truss, Inc. v. Baldwin County Comm’n, 782 So.2d 274, 277 (Ala.2000)).”

998 So.2d at 1054-55. Therefore, this Court will address only the issue whether the claims asserted in Gilmer’s complaint are dependent upon the existence of a private cause of action under § 84-13-112. This opinion will not address whether Gil-mer has presented substantial evidence of every element of each of her claims because the defendants’ motion, which argued only that Gilmer had no private cause of action under § 34-13-112, was so narrowly drawn as not to require such a response from Gilmer.

In Gilmer’s brief on appeal she appears to concede, as she did before the trial court, that § 34-13-112 does not permit her to bring a private action under that statute and that a violation of the statute does not constitute negligence per se. Gil-mer’s brief, at 47. We assume, without deciding, that that is the case. Gilmer simply argues that her claims do not arise from § 34-13-112. In response, the defendants spend the majority of their brief discussing prior decisions of this Court and of the Alabama Court of Civil Appeals that concern the violation of particular statutes or ordinances and whether those statutes or ordinances permit a private cause of action predicated on a violation of the statute or ordinance. Based on these prior decisions, the defendants argue that “Gil-mer has not presented any evidence to support the claim that § 34-13-112 creates or implies a private cause of action.” Defendants’ brief, at 13. However, this discussion is generally inapplicable to Gil-mer’s argument because she does not claim that § 34-13-112 creates or implies a private cause of action.

The defendants’ response to Gilmer’s actual argument is simply to dismiss it as “absurd.” Defendants’ brief, at 16. The defendants allege that Gilmer’s claims “all revolve around Crestview Memorial Funeral Home not having a licensed embalmer,” and “are based squarely on a violation of the licensing statute.” Defendants’ brief, at 15-16. The defendants bring to this Court’s attention the numerous times Gilmer alleges in her complaint that a licensed embalmer did not embalm her husband’s body, in violation of Alabama law. The defendants do not address Gil-mer’s claims individually. Nevertheless, despite the defendants’ assurance that Gil-mer’s argument is nonsensical, this Court must examine each of Gilmer’s claims and decide whether each claim states a cause of action arising under § 34-13-112, which for purposes of this appeal we assume does not provide Gilmer a private cause of action, or whether each claim states a common-law cause of action that is not dependent upon a private cause of action being conferred by § 34-13-112.

The defendants discuss two prior decisions of this Court that provide some general guidance in the present situation, although they are not determinative: Flint City Nursing Home, Inc. v. Depreast, 406 So.2d 356 (Ala.1981), and Blockbuster, Inc. v. White, 819 So.2d 43 (Ala.2001).

In Flint City Nursing Home, the administrator of the estate of a decedent sued a nursing home, alleging that the negligence or wantonness of the nursing home resulted in the decedent’s fall from a window, as a result of which he sustained injuries that caused his death. 406 So.2d at 357. One issue before this Court was whether the trial court erred in admitting evidence concerning the licensure status of the nursing home and its administrator at the time of the accident. This Court was unable to locate any prior Alabama decision that “specifically addresse[d] the question of the admissibility of evidence of the licensure status of a business or enterprise or its administrator when the question posed is whether that business or enterprise exercised reasonable care on the occasion of the accident .... ” 406 So.2d at 357. However, this Court found persuasive two prior decisions that held that a trial court must refuse to admit evidence indicating that a party did not have a driver’s license while driving a car that had been involved in an accident, unless the party who proffered the evidence could establish a causal connection between the failure to have a license and the injuries received in the accident. 406 So.2d at 357-59. After examining those two decisions, this Court held that when a question of actionable negligence on a specific occasion is in issue,

“evidence that one who is required to have a license by law does not have one, would be admissible only if:
“(1) The statute which requires the license was enacted for the benefit of the person who seeks to invoke its violation as distinguished from the public generally or a class to whom the statute necessarily applies, and
“(2) There was a causal connection between the failure of the person or business required to be licensed and the injuries suffered.”

Flint City Nursing Home, 406 So.2d at 359.

In Blockbuster, a patron sued a videotape rental retailer alleging breach of contract, unjust enrichment, fraud, negligence, and conversion. 819 So.2d at 43. The patron alleged that he had been a customer of the retailer’s for six years and that the retailer wrongfully included in its rental charges and passed on to its customers a rental tax imposed upon the retailer by § 40-12-222, Ala.Code 1975. 819 So.2d at 44. The trial court denied the retailer’s motion to dismiss the complaint. 819 So.2d at 43. This Court “granted [the retailer’s] permissive appeal to address whether § 40-12-222 permits a private cause of action.” 819 So.2d at 45. On appeal, the patron, like Gilmer in the present case, admitted that there was no legislative intent to create a private cause of action when the legislature adopted the rental-tax statute. 819 So.2d at 44. Instead, the patron contended that he was not attempting to assert a private cause of action under the rental-tax statute but was merely seeking to recoup under common-law causes of action that which the retailer had taken from him. Id. Without explanation, this Court stated that “each of [the patron’s] common-law causes of action is predicated upon [the retailer’s] alleged violation of § 40-12-222.” 819 So.2d at 45. However, this Court noted that, unlike the present case, “[t]he question whether [the patron] has common-law causes of action against [the retailer] that are not private rights of action under the Rental Tax Statute is not before us.” 819 So.2d at 45 n. 2. Ultimately, this Court concluded that the rental-tax statute did not permit a private cause of action, and this Court also explicitly found that “[the retailer] was authorized by Alabama law to pass along the rental tax to its customers.” Id. at 46.

In the present situation, Gilmer first alleges that her breach-of-contract claim arises from her contract with Crest-view to provide the funeral and burial services for her husband, not from § 34-13-112. Gilmer contends that it was necessary to reference § 34-13-112 to show that the contract had been breached, but the source of her claim, she says, is the contract. “A plaintiff can establish a breach-of-contract claim by showing ‘(1) the' existence of a valid contract binding the parties in the action, (2) his own performance under the contract, (3) the defendant’s nonperformance, and (4) damages.’ ” State Farm Fire & Cas. Co. v. Slade, 747 So.2d 293, 303 (Ala.1999) (quoting Southern Med. Health Sys., Inc. v. Vaughn, 669 So.2d 98, 99 (Ala.1995)). Gilmer presented evidence indicating that she had entered into a contract with Crestview to provide funeral and burial services for her deceased husband and that part of that contractual agreement was an “Authorization to Embalm and Prepare” document. This document explicitly authorized Crestview to embalm her husband’s body using only the services of people who are “allowed to perform such work under applicable law.” Gilmer claims that the applicable law was not followed when her husband’s body was embalmed and, thus, that a specific written provision of the contract was breached. Although it is necessary for Gilmer to demonstrate that her husband’s body was not embalmed pursuant to § 34-13-112 or some other “applicable law” in order to pursue her breach-of-contract claim, this claim stems from a reference to and construction of the contract itself, not § 34-13-112. Therefore, the trial court erred in entering a summary judgment for the defendants on Gilmer’s breach-of-contract claim based on the argument that the claim is based solely on § 34-13-112.

Gilmer next argues that her suppression claim is not based on § 34-13-112.

“To make out a suppression claim, a plaintiff must show that the defendant had a duty to disclose a material fact and failed to do so, that the concealment or failure to disclose induced the plaintiff to act, and that the plaintiff suffered actual damage as a result. Hines v. Riverside Chevrolet-Olds, Inc., 655 So.2d 909, 918 (Ala.1994). One may be liable for suppression only if he has knowledge of the fact allegedly suppressed and only if he is under a duty to disclose. A duty to disclose may arise from a confidential relationship, from a request for information, or from the circumstances of the case. Id.; § 6-5-102, Ala.Code 1975. ‘If a plaintiff offers evidence of particular circumstances creating an inference that the defendant should have disclosed certain material facts, then whether the defendant had a duty to communicate those facts is for the jury to determine.’ Hines, supra, at 918.”

LaCoste v. SCI Alabama Funeral Servs., Inc., 689 So.2d 76, 79-80 (Ala.Civ.App.1996).

Again, the question whether Gilmer has presented substantial evidence of each element of her suppression claim is not before this Court. This Court need only decide whether Gilmer’s suppression claim arises from § 34-18-112. Gilmer alleges that the defendants concealed or failed to disclose the fact that her husband’s body would not be embalmed by a licensed embalmer and that this concealment or failure to disclose induced her to enter into a contract with Crestview for funeral and burial services that she would not have entered into if she would have known that a licensed embalmer would not be available to embalm her husband’s body. We hold that this allegation originates from the defendants’ alleged failure to fulfill their duty to disclose to Gilmer certain facts that were known to them. This duty may originate from a confidential relationship between the parties or from the particular circumstances of this case, but the duty to disclose does not originate from § 34-13-112. Therefore, the trial court erred in entering a summary judgment for the defendants on Gilmer’s suppression claim based on the argument that the claim is based solely on § 34-13-112.

Next, Gilmer alleges that her tort-of-outrage claim is not based on § 34-13-112. In order to recover on this claim, Gilmer must demonstrate that the defendants’ conduct “ ‘(1) was intentional or reckless; (2) was extreme and outrageous; and (3) caused emotional distress so severe that no reasonable person could be expected to endure it.’” Potts v. Hayes, 771 So.2d 462, 465 (Ala.2000) (quoting Green Tree Acceptance, Inc. v. Standridge, 565 So.2d 38, 44 (Ala.1990)). This Court has recognized the tort of outrage in the family-burial context. Whitt v. Hulsey, 519 So.2d 901 (Ala.1987).

Gilmer claims that the following conduct by the defendants was extreme and outrageous: “(1) [Her husband’s] body being embalmed by someone without proper authorization and [without] Faye Gilmer’s consent, (2) the unjustified rushing of the graveside service, (3) the placement of [her husband’s] body in the wrong direction, and (4) attempting to cover-up the wrongful conduct by lying to Faye Gilmer and providing her with false and misleading documents.” Gilmer’s brief, at 35. This Court need not decide whether any of this specific conduct is actionable as the tort of outrage because, as previously noted, that issue was not raised in the summary-judgment motion. This Court need decide only whether Gilmer’s tort-of-outrage claim arises from § 34-13-112. To the extent that Gilmer bases her tort-of-outrage claim on the alleged rushing of the graveside service, the alleged burial of her husband’s casket in the wrong direction, or the defendants’ alleged conduct in attempting to cover up prior "wrongful conduct, the tort-of-outrage claim is completely independent of § 34-13-112. Consideration of whether the defendants’ conduct is outrageous would be resolved without any reference to § 34-13-112. To the extent that Gilmer’s tort-of-outrage claim is based on her allegation that her husband’s body was embalmed without proper authorization or consent, the claim arises from the defendants’ conduct and the contract between the parties, not from § 34-13-112. Therefore, the trial court erred in entering a summary judgment for the defendants on Gilmer’s tort-of-outrage claim based on the defendants’ argument that that claim is based solely on § 34-13-112.

Finally, Gilmer argues that her negligent-supervision claim against Crest-view and Jones is not based solely on § 34-18-112. Gilmer alleges that this claim is predicated on Crestview and Jones’s failure to supervise the activities of Taul and Caldwell. Specifically, Gilmer alleges:

“There is ample evidence that Crestview and Sonny Jones condoned Barry Taul’s practice of personally embalming bodies when Billy Groves was absent.... Crestview and Sonny Jones knew, or should have known, that a licensed embalmer had not been engaged on an independent-contractor basis, to ‘fill in’ for Billy Groves during his extended medical leave. There was a complete failure to supervise Barry Taul so that he understood that he was not to embalm bodies since he was not authorized to provide embalming services under Alabama law.... References to statutory provisions merely provide definitional information to show how there was a failure to properly supervise Barry Taul and Meg Caldwell.”

Gilmer’s brief, at 46.

Contrary to Gilmer’s assertion, Gilmer’s negligent-supervision claim is based solely on a violation of § 34-13-112. To prove a claim of negligent supervision, a plaintiff must show that the employer knew, or in the exercise of ordinary care should have known, that its employee was incompetent. Armstrong Bus. Servs., Inc. v. AmSouth Bank, 817 So.2d 665, 682 (Ala.2001). The only evidence Gilmer presented to demonstrate the incompetence of a Crestview employee is the evidence indicating that Taul performed embalming services while he was not licensed or performing “under a licensed embalmer,” in violation of § 34-13-112. Therefore, the negligent-supervision claim is based solely on a violation of the statute; thus, a summary judgment for Crestview and Jones on this claim is proper.

Gilmer does not specifically discuss her negligence and/or wantonness claim in her brief to this Court. Neither does she specifically explain why this claim does not arise from § 34-13-112. Therefore, Gilmer waives any argument concerning this claim, and the defendants are entitled to a summary judgment on this claim. See Tucker v. Cullman-Jefferson Counties Gas Dist., 864 So.2d 317, 319 (Ala.2003) (“ ‘An appeals court will consider only those issues properly delineated as such, and no matter will be considered on appeal unless presented and argued in brief.’ ” (quoting Braxton v. Stewart, 539 So.2d 284, 286 (Ala.Civ.App.1988), citing in turn Ex parte Riley, 464 So.2d 92 (Ala.1985))).

Finally, we recognize that Jones has filed a brief on appeal separate from the joint brief filed by Crestview, Taul, and Caldwell. In his individual brief, Jones adopts all the arguments set forth by Crestview but, additionally, Jones argues that he cannot be held personally liable for any of the alleged torts of Crestview. Before this Court, Gilmer mentions Jones only when discussing her negligent-supervision claim, and she presents no other argument as to why the summary judgment for Jones should be reversed regarding any other claim. Consequently, in light of our earlier disposition of the negligent-supervision claim, we affirm the trial court’s summary judgment in favor of Jones on all claims.

Conclusion

We affirm the summary judgment for Jones on all claims, and we affirm the summary judgment for Crestview on Gil-mer’s negligent-supervision claim against it and for all the defendants on her negligence and/or wantonness claims. We reverse the summary judgment for Crest-view, Taul, and Caldwell as to Gilmer’s breach-of-contract, suppression, and tort-of-outrage claims. We remand this case for proceedings consistent with this opinion.

AFFIRMED IN PART; REVERSED IN PART; AND REMANDED.

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

COBB, C.J., and MURDOCK, J„ concur in part and dissent in part.

MURDOCK, Justice

(concurring in part and dissenting in part).

I concur in the main opinion to the extent it reverses the trial court’s dismissal of Gilmer’s claims alleging breach of contract and the torts of suppression and outrage. I dissent from the main opinion’s affirmance of the dismissal of Gilmer’s claims alleging wrongful supervision, negligence, and wantonness and the dismissal of all Gilmer’s claims against Jones.

A. Viability of Gilmer’s Wrongful-Supervision, Negligence, and Wantonness Claims

The main opinion correctly explains why Gilmer’s breach-of-contract claim, suppression claim, and tort-of-outrage claim, though each is ultimately dependent for its success on the fact that the embalmer was not properly licensed, do not constitute “per se” causes of action for the violation of the licensing statute, § 34-13-112, Ala. Code 1975. I do not see why the same reasoning the main opinion applies to these three claims does not apply with equal force and effect to Gilmer’s claim that Crestview and Jones engaged in negligent or wrongful supervision and that, as a result, someone in their employ who was not licensed to perform embalming services embalmed the body of Gilmer’s husband. The gravamen of this latter claim, insofar as the damages aspect, is not that the embalming necessarily was done “incompetently,” but rather that Gilmer has suffered mental anguish from the uncertainties and doubts, including the loss of trust and peace of mind, resulting from knowing that someone embalmed her husband’s body who was not properly licensed to do so. Crestview and Jones’s wrongful supervision, according to this claim, allowed this to happen.

The main opinion relies on the fact that, in the normal negligent or wrongful-supervision claim, the act that directly causes injury to the plaintiff is the incompetent performance of employment duties by an employee — thus the principle espoused in the main opinion that, in order to make out a negligent-supervision claim, the employer must have known (or reasonably should have known) of the employee’s incompetence. 35 So.3d at 596 (citing Armstrong Bus. Servs., Inc. v. AmSouth Bank, 817 So.2d 665, 682 (Ala.2001)). Here, because the direct cause of injury to Gilmer is not that the embalming was done incompetently, but rather that it was done by someone not properly licensed, what must be shown is that the employer knew (or reasonably should have known) that the employee performing the embalming was not licensed. To the same extent Crest-view and Jones knew or should have known this fact for purposes of the tort theories of suppression and outrage, as to which the main opinion reverses the judgment for the defendants, they knew or should have known this fact for purposes of the wrongful-supervision theory.

I am of the same view with respect to what the main opinion refers to as Gilmer’s “claim of negligence and/or wantonness.” Clearly, this claim also arises from common-law principles and not per se from the violation of the licensing statute.

In addition, unlike the main opinion, I conclude that Gilmer’s brief sufficiently presents the viability of these claims to this Court. Gilmer argues that she “does not assert any private cause of action based solely on Barry Taul’s non-licensure status.” In the section of her brief titled “Crestview’s ‘Legal’ Arguments,” she takes on and exposits numerous cases cited by Crestview for the proposition that Gilmer is “merely claiming ‘negligence per se’ for the statutory violations.” Much of Gilmer’s discussion of these cases and the cases she discusses in the section of her brief titled “More Applicable Case Law” supports the view that her negligence/wantonness claim is based on well-established common-law principles and is not a per se cause of action derived merely from the fact that the embalmer was not licensed under the statute.

Among other things, Gilmer discusses Knight v. Burns, Kirkley & Williams Construction Co., 331 So.2d 651 (Ala.1976), and Murray v. Alabama Power Co., 413 So.2d 1109 (Ala.1982), for the proposition that, “while a statutory violation usually does not create a new remedy or constitute negligence per se, a statutory violation ... may aid in showing the wrongfulness of a party’s conduct.” (Emphasis added.) For example, Gilmer cites Knight for the proposition that “[a]s to a traditional common-law negligence-based cause of action,” the federal regulations at issue in that case could be admissible in determining the standard of care. She then concludes that “references to applicable statutory provisions may assist the jury in deciding the wrongfulness of a party’s conduct under the particular circumstances” and that “statutory references establish that Crest-view and the individual defendants fully appreciated the wrongfulness of their conduct in allowing Barry Taul to embalm Jack Gilmer’s body and the outrageousness of the attempted cover-up.”

Based on the foregoing, I dissent as to the main opinion’s disposition of Gilmer’s wrongful-supervision claim and her claims alleging negligence and wantonness. Consequently, I also dissent from the main opinion’s decision to affirm the judgment in favor of Jones “[i]n light of [its] earlier disposition of the negligent-supervision claim.” 35 So.3d at 596.

B. The Dismissal of “All Claims” Against Jones

In addition, I must dissent from the main opinion’s decision to affirm the trial court’s “dismissal” of “all claims” against Jones.

I note first that each count of the complaint, as amended — including the counts alleging suppression, negligence and/or wantonness, the tort of outrage, and wrongful supervision — alleges that Jones (as well as each of the other defendants) directly committed the various wrongs alleged therein. The complaint does not allege liability on the part of Jones under such theories as respondeat superior or a piercing of the corporate veil of Crest-view.

The defendants’ joint “Motion to Dismiss” was filed on the day the case was set for trial, May 8, 2006. This motion was expressly filed “pursuant to Rule 12(b)(6),” Ala. R. Civ. P. The sole ground for dismissal presented to the trial court in this motion was that all Gilmer’s claims amounted to nothing more than incogniza-ble assertions of private causes of action arising “per se” from the violation of the licensing statute. It is the trial court’s judgment granting this motion for dismissal that constitutes the judgment from which the appeal is taken in this case.

The main opinion begins its explanation of its decision to uphold the trial court’s dismissal of all claims against Jones by noting that Jones has filed a separate brief in this Court in which he argues that “he cannot be held personally liable for any of the alleged torts of Crestview.” 35 So.3d at 596. This is the same argument Jones made to the trial court in the failed September 2005 summary-judgment motion. See note 5, supra. (Jones even attempts to bolster this argument by reference to a statement made in Gilmer’s written response to the September 2005 summary-judgment motion as a concession — an improper characterization in my view — that Jones did not participate in the events giving rise to the tort-of-outrage claim.) As has been noted, this ground for dismissal of the claims against Jones was not presented to the trial court by the Rule 12(b)(6) motion filed by the defendants on the first day of trial, the judgment granting which is the judgment from which Gilmer appeals.

Nonetheless, the fact remains that the trial court did dismiss all claims against Jones. Consequently, it is incumbent upon Gilmer, as the appellant, if she wishes to achieve a reversal of the trial court’s dismissal of the claims alleged in her complaint against Jones, to argue in her brief to this Court that that dismissal was erroneous. See Smith v. Mark Dodge, Inc., 934 So.2d 375, 380 (Ala.2006) (noting that we will not reverse a trial court’s judgment on a ground not argued on appeal); Tucker v. Nichols, 431 So.2d 1263, 1264 (Ala.1983) (explaining that the appellant has an affirmative duty of showing error upon the record). The majority is of the view that Gilmer has not made this argument, at least not as to anything other than the tort of wrongful supervision. I am of the view that she has.

The main opinion reasons as follows: “Gilmer mentions Jones only when discussing her negligent-supervision claim, and she presents no other argument as to why the summary judgment for Jones should be reversed regarding any other claim.” 35 So.3d at 596. I believe that this mischaracterizes Gilmer’s brief to this Court and that, in fact, Gilmer has presented the only argument she needs to have presented as to why the trial court’s judgment should be reversed as to all claims.

Gilmer begins her initial brief to this Court as follows: “The issue raised in this appeal is whether the trial court erroneously granted a Rule 12(b)(6)-based dismissal of the complaint as amended and all causes of action asserted therein based on the sole ground asserted in a motion to dismiss filed on the morning that a trial on the merits was to commence.” She thereafter fully addresses this singular issue. As she states, she does so as to “all causes of action.” The approach she takes to do so is to take up each cause of action, one at a time, not each defendant, one at a time.

Specifically, Gilmer discusses why the gravamen of each cause of action is not, “per se,” merely the violation of the statute. In so doing, her focus is on what each legal theory entails, not against whom she plans to prove each theory. Consequently, it is true that she does not mention Jones by name in respect to most of the legal theories. By the same token, however, she generally does not argue the liability of the other defendants by name in respect to each legal theory.

For example, in Gilmer’s discussion of why her suppression claim was not tantamount to a per se claim based upon a violation of the licensing statute, she refers to the underlying fact that “Crestview employees” knew, but suppressed, certain material facts. The fact that Jones is not argued by name to have engaged in suppression is no more a ground of waiver of that tort as to him than it is to any other specific defendant. Gilmer does not take on the task of arguing that this defendant or that defendant should not have been dismissed; rather, she argues that this claim and that claim, as alleged in the complaint (i.e., as to all the defendants), should not have been dismissed for failure to state a cognizable claim under Alabama law.

Gilmer’s brief to this Court addresses the sole issue presented to and decided by the trial court when it entered the dismissal from which Gilmer now appeals — whether her complaint seeks to recover based on general common-law principles or, instead, for “per se” causes of action derived strictly from the violation of the licensing statute. In her brief, Gilmer defends all claims alleged in the complaint (including necessarily as they relate to Jones) against this sole ground, a ground that was not applied by the trial court to Jones in any manner or degree differently than as to all other defendants. In meeting and defeating this ground, Gilmer’s brief has done all it needs to do to defeat the single basis upon which the trial court dismissed all Gilmer’s claims. I do not see that Gilmer’s brief is a source for any waiver of any of these claims.

COBB, C.J., concurs.

      . Regulation 395-X-6-.06, Ala. Admin. Code (Alabama Board of Funeral Service), provides:
      "Each funeral establishment in the state, beginning January 1, 1986, shall keep a record of each human dead body embalmed at said establishment and shall retain such record for a period of not less than four (4) years. The record may be in simple log form, but shall contain the name of the deceased, date of embalming, time embalming procedure began and ended, and the signature of the embalmer. Said records may contain any additional information, at the discretion of the establishment, so long as it meets the aforementioned provisions. Embalming records will be checked during the annual inspection beginning fiscal year 1986-87.”

      . See Parker Bldg. Servs. Co. v. Lightsey, 925 So.2d 927 (Ala.2005) (holding that the trial court erroneously instructed the jury that negligence per se applied to a violation of a municipal building code because the building code was adopted for the benefit of the general public and not for benefit of a distinguishable class of persons); Liberty Nat'l Life Ins. Co. v. University of Alabama Health Servs. Found., P.C., 881 So.2d 1013 (Ala.2003) (holding that an insurer was not entitled to bring a private action for a health-care provider’s alleged breach of a statute governing the hospital’s itemized billing statement to a patient because the statute contained no language suggesting that the legislature intended to create a private cause of action for any violation); Lary v. Flasch Bus. Consulting, 878 So.2d 1158 (Ala.Civ.App.2003) (holding that a physician did not have a private cause of action to assert a violation of a section of the Telephone Consumer Protection Act ("the TCPA”) barring facsimile or telephone communications using automatic telephone-dialing systems that did not comply with federal standards because, unlike other sections of the TCPA, the section relating to noncompli-ant systems did not authorize actions by private citizens); and Thomas Learning Ctr., Inc. v. McGuirk, 766 So.2d 161 (Ala.Civ.App.1998) (plurality opinion) (stating that a builder’s act of obtaining a building permit for another builder in violation of general-contractor licensing statutes did not provide the owner of the building with a cause of action for negligence against the builder who obtained the permit because the licensure statutes were enacted for the benefit of the public generally as distinguished from the owner).

      . The main opinion treats the trial court’s judgment as a summary judgment because of the trial court’s statement that it considered evidence in granting the defendants' day-of-trial Rule 12(b)(6), Ala. R. Civ. P., motion. I do not see what evidence the trial court properly could have considered in deciding that motion, however. That motion was expressly filed by the defendants as a "motion to dismiss” under Rule 12(b)(6) and clearly sought relief on only one theory: the purely legal question whether the claims, as alleged in the complaint, made for cognizable claims for relief under Alabama law. I therefore cannot view the trial court’s order as anything other than what it necessarily was: a judgment of dismissal for failure to state a claim. Although a summary judgment can be based on a purely legal issue, even the incognizability of an asserted claim ("no genuine issue as to any material fact and ... the moving party is entitled to a judgment as a matter of law," Rule 56(c)(3), Ala. R. Civ. P.), to treat the motion as a motion for a summary judgment in this particular case is, in my view, misleading and risks confusion.
      Even if the trial court’s ruling is to be referred to, as it is by the majority, as a "summary judgment,” it is clear that the court’s ruling was based on only a single issue, the sole issue before it at the time it ruled, i.e., the purely legal question whether the various claims for relief as set out in the complaint amounted to allegations of per se liability resulting from the violation of the licensing statute or, instead, cognizable allegations of violations of common-law duties. As discussed below, the "appellant’s brief” filed in this Court by Gilmer clearly responds to this sole legal issue and does so for purposes of defeating it with respect to all the claims asserted in the complaint as amended.

      . In what is hereinafter referred to a Gilmer’s "wrongful-supervision” claim, the complaint alleges that Crestview and Jones "negligently, willfully and/or wantonly hired, trained and/or supervised” the other staff of Crest-view.

      . As part of the September 2005 motion for a summary judgment, Jones raised (1) the factual issue whether he personally was involved in the wrongs alleged in the complaint and (2) the mixed question of law and fact whether the corporate veil should be pierced so as to make him liable for the alleged acts of Crest-view. (Jones was the president, the owner, and a director of Crestview.) Gilmer successfully defended against these arguments; the motion was denied in its entirety by the trial court. The issues raised by Jones in this earlier, defeated summary-judgment motion were not reasserted by Jones in the May 2006 “Motion to Dismiss,” the granting of which is the subject of the present appeal. See, e.g., Mitchell v. Folmar & Assocs., LLP, 854 So.2d 1115, 1116 (Ala.2003); Fahey v. C.A.T.V. Subscriber Servs., Inc., 568 So.2d 1219, 1222 (Ala.1990); Lind v. United Parcel Serv., Inc., 254 F.3d 1281, 1283-84 (11th Cir.2001); see generally Superskate, Inc. v. Nolen, 641 So.2d 231 (Ala.1994).

      . Gilmer may or may not be able to establish as a factual matter that Jones was personally involved in some of the tortious conduct alleged or that the corporate veil should be pierced to make him liable for the breach-of-contract or tort claims. Such issues are not presented by the judgment from which the present appeal is taken.


source: Caselaw Access Project

author: BOLIN, Justice.

license: Public Domain

text:
    BRASFIELD & GORRIE, L.L.C. v. SOHO PARTNERS, L.L.C.
    1070296.
    Supreme Court of Alabama.
    Aug. 21, 2009.
    Rehearing Denied Oct. 16, 2009.

      Joseph B. Mays, Jr., Marc James Ayers, and Darrell C. Tucker II of Bradley Arant Rose & White LLP, Birmingham, for appellant.
    James A. Harris III and Nicole Mapp Hardee of Harris & Harris, LLP, Birmingham, for appellee.
   BOLIN, Justice.

Brasfield & Gorrie, L.L.C. (hereinafter referred to as “B & G”), appeals from an order of the Jefferson Circuit Court denying its motion to compel arbitration. We reverse and remand.

I. Facts and Procedural History

In September 2004, B & G contracted with Soho Partners, L.L.C., to construct two “towers” in Homewood, Alabama, combining both retail and condominium space. The contract contained two conditions precedent to arbitration: (1) claims would be referred initially to the architect for decision and, if not resolved, (2) claims would mediated before arbitration was invoked. The pertinent parts of the contract state:

“ § 4.4 RESOLUTION OF CLAIMS AND DISPUTES
“ § 4.4.1 Decision of Architect. Claims, including those alleging an error or omission by the Architect, ... shall be referred initially to the Architect for decision. An initial decision by the Architect shall be required as a condition precedent to mediation, arbitration or litigation of all Claims between the Contractor and Owner arising prior to the date final payment is due.
“ § 4.5 MEDIATION
“ § 4.5.1 Any claim arising out of or related to the Contract ... shall, after initial decision by the Architect or 30 days after submission of the Claim to the Architect, be subject to mediation as a condition precedent to arbitration or the institution of legal or equitable proceedings by either party.
“ § 4.5.2 The parties shall endeavor to resolve their Claims by mediation which, unless the parties mutually agree otherwise, shall be in accordance with the Construction Industry Mediation Rules of the American Arbitration Association currently in effect. Request for mediation shall be filed in writing with the other party to the Contract and with the American Arbitration Association. The request may be made concurrently with the filing of a demand for arbitration but, in such event, mediation shall proceed in advance of arbitration or legal or equitable proceedings ....
“ § 4.6 ARBITRATION
“ § 4.6.2 Claims not resolved by mediation shall be decided by arbitration, which unless the parties mutually agree otherwise, shall be in accordance with the Construction Industry Arbitration Rules of the American Arbitration Association currently in effect. The demand for arbitration shall be filed in writing with the other party to the Contract and with the American Arbitration Association, and a copy shall be filed with the Architect.”

(Emphasis added.)

A dispute arose between the parties regarding the amount owed B & G under the contract. In March 2007, B & G submitted to the American Arbitration Association (“AAA”) a demand for arbitration, in which it stated that it had performed the work required under contract, that it had rendered invoices for all amounts owing under the contract, and that Soho Partners had refused to pay a specific sum due under the contract. Soho Partners moved to dismiss the arbitration proceeding and subsequently sued B & G, seeking, among other things, to enjoin the arbitration proceeding. Specifically, Soho Partners alleged that B & G had failed to satisfy conditions precedent to arbitration in accordance with the terms of the parties’ contract. In May 2007, B & G filed a “Motion to Dismiss or in the Alternative to Stay Action Pending Arbitration,” arguing that the issue whether conditions precedent to arbitration had been satisfied was for the arbitrator to decide. B & G attached an exhibit to its motion in which it argued that the requirement of a decision by the architect was not applicable or, if it was applicable, the condition had been satisfied by various determinations that had already been made by the architect and Soho Partners’ refusal to pay based on those determinations. With respect to the mediation requirement, B & G argued that this requirement had been waived by Soho Partners’ actions or had been satisfied through communications between parties’ counsel and with the AAA in which B & G had made offers to mediate, which offers Soho Partners rejected.

The trial court entered an order denying B & G’s motion. Specifically, the trial court concluded that B & G had failed to make a written request for mediation before initiating the arbitration proceeding:

“It is undisputed that the parties’ contract requires that two conditions precedent must be satisfied before arbitration may be invoked: first, claims must be submitted to the architect, and second, a written request for mediation must be made. This court need not reach the issue of whether claims were submitted to the architect, because the record before the court is clear that [B & G] did not make any request for mediation, much less a written request for mediation prior to its initiating the arbitration proceeding. In fact, there is no evidence in the record that any written request for mediation has been made to date. Therefore, the conditions precedent to invoke arbitration were not met.
“1. The court finds that the matter of whether [B & G] has satisfied conditions precedent to arbitration is for this court to decide.
“2. The court finds that [B & G] did not mediate its claims or request mediation in writing in accordance with the parties’ contract. The [Federal Arbitration Act] has not been triggered because conditions precedent have not been satisfied

B & G appealed. On March 25, 2008, this Court entered an order granting B & G’s motion to stay proceedings in the trial court pending the disposition of this appeal.

II. Standard of Review

At the outset we note that Soho Partners asserts that this Court lacks jurisdiction to entertain B & G’s appeal. Specifically, Soho Partners argues that B & G’s appeal is not from an order compelling or denying arbitration and is, therefore, not proper under Rule 4(d), Ala. R.App. P. The record reveals that after Soho Partners filed its complaint in the instant case, B & G filed a “Motion to Dismiss or in the Alternative to Stay Action Pending Arbitration.” In its motion, B & G specifically stated, among other things, that a dispute had arisen between the parties over the amount due B & G under the parties’ contract; that the contract stated that all disputes were to be resolved by binding arbitration; and that B & G had submitted the dispute to the AAA. It is clear from the language in B & G’s motion that B & G was seeking an order compelling arbitration. Under usual circumstances, the motion is couched in two parts: “to compel arbitration” and “to stay the proceedings pending arbitration.” The two parts of the motion go hand in hand. It is well settled that “[t]his Court will look at the substance of. a motion rather than its title, to determine how that motion is to be considered under the Alabama Rules of Civil Procedure.” Pontius v. State Farm Mut. Auto. Ins. Co., 915 So.2d 557, 562-63 (Ala.2005). We conclude that B & G’s motion was filed pursuant to Rule 4(d), Ala. R.App. P. “Review of a trial court’s denial of a motion to compel arbitration is properly sought through a direct appeal. Rule 4(d), Ala. R.App. P.; A.G. Edwards & Sons, Inc. v. Clark, 558 So.2d 358, 360 (Ala.1990).” Edward D. Jones & Co. v. Wehby, 882 So.2d 832, 835 (Ala.2003). “This Court reviews de novo a trial court’s denial of a motion to compel arbitration.” Dean Witter Reynolds v. McDonald, 758 So.2d 539, 541 (Ala.1999).

III. Substantive and Procedural Arbitrability

In ruling on a motion to stay judicial proceedings following a request for arbitration, the court is required to decide matters of “substantive arbitrability,” that is, (1) whether a valid agreement to arbitrate exists and, if so, (2) whether the specific dispute falls within the scope of that agreement. Dean Witter, 758 So.2d at 542. “Procedural arbitrability,” on the other hand, involves questions that grow out of the dispute and bear on its final disposition, e.g., defenses such as notice, laches, estoppel, and other similar compliance defenses; such questions are for an arbitrator to decide. See Howsam v. Dean Witter Reynolds, Inc., 537 U.S. 79, 84, 123 S.Ct. 588, 154 L.Ed.2d 491 (2002) (“ ‘ “procedural” questions which grow out of the dispute and bear on its final disposition are presumptively not for the judge, but for an arbitrator, to decide’ ”); John Wiley & Sons, Inc. v. Livingston, 376 U.S. 543, 84 S.Ct. 909, 11 L.Ed.2d 898 (1964) (holding that an arbitrator should decide whether the steps of a grievance procedure were completed, where those steps were prerequisites to arbitration).

On appeal, B & G argues that it is for the arbitrator, and not the court, to decide whether conditions precedent to arbitration in a contract have been met. Soho Partners argues that the language quoted above from Howsam, supra, was merely dicta because that case did not involve conditions precedent to arbitration; instead, it involved whether an arbitrator should apply the limitations period set out in the arbitration rules to the controversy. Soho Partners also argues that this case falls under an exception to the general rule that procedural arbitrability is determined by the arbitrator.

In Howsam, the United States Supreme Court determined that the issue whether an arbitration claim was barred by a six-year limitations period in the arbitration rules of the National Association of Securities Dealers (“NASD”), under which the parties had agreed to operate, was an issue to be determined by an arbitrator and not by the court. The Supreme Court noted that the court should decide issues “whether the parties are bound by a given arbitration clause” and “whether an arbitration clause in a concededly binding contract applied to a particular type of controversy.” 537 U.S. at 84, 123 S.Ct. 588. Other “gateway” issues, however, are left to the arbitrator. The Supreme Court noted:

“This Court has determined that ‘arbitration is a matter of contract and a party cannot be required to submit to arbitration any dispute which he has not agreed so to submit.’ Steelworkers v. Warrior & Gulf Nav. Co., 368 U.S. 574, 582 (1960); see also First Options [of Chicago, Inc. v. Kaplan, 514 U.S. 938] at 942-943 [ (1995) ]. Although the Court has also long recognized and enforced a ‘liberal federal policy favoring arbitration agreements,’ Moses H. Cone Memorial Hospital v. Mercury Constr. Corp., 460 U.S. 1, 24-25 (1983), it has made clear that there is an exception to this policy: The question whether the parties have submitted a particular dispute to arbitration, i.e., the ‘question of arbitra-bility,’ is ‘an issue for judicial determination [u]nless the parties clearly and unmistakably provide otherwise.’ AT & T Technologies, Inc. v. Communications Workers, 475 U.S. 643, 649 (1986) (emphasis added); First Options, supra, at 944. We must decide here whether application of the NASD time limit provision falls into the scope of this last-mentioned interpretive rule.
“Linguistically speaking, one might call any potentially dispositive gateway question a ‘question of arbitrability,’ for its answer will determine whether the underlying controversy will proceed to arbitration on the merits. The Court’s case law, however, makes clear that, for purposes of applying the interpretive rule, the phrase ‘question of arbitrability’ has a far more limited scope. See 514 U.S., at 942. The Court has found the phrase applicable in the kind of narrow circumstance where contracting parties would likely have expected a court to have decided the gateway matter, where they are not likely to have thought that they had agreed that an arbitrator would do so, and, consequently, where reference of the gateway dispute to the court avoids the risk of forcing parties to arbitrate a matter that they may well not have agreed to arbitrate.
“Thus, a gateway dispute about whether the parties are bound by a given arbitration clause raises a ‘question of arbitrability’ for a court to decide. See id., at 943-946 (holding that a court should decide whether the arbitration contract bound parties who did not sign the agreement); John Wiley & Sons, Inc. v. Livingston, 376 U.S. 543, 546-547 (1964) (holding that a court should decide whether an arbitration agreement survived a corporate merger and bound the resulting corporation). Similarly, a disagreement about whether an arbitration clause in a concededly binding contract applies to a particular type of controversy is for the court. See, e.g., AT & T Technologies, supra, at 651-652 (holding that a court should decide whether a labor-management layoff controversy falls within the arbitration clause of a collective-bargaining agreement); Atkinson v. Sinclair Refining Co., 370 U.S. 238, 241-243 (1962) (holding that a court should decide whether a clause providing for arbitration of various ‘grievances’ covers claims for damages for breach of a no-strike agreement).
“At the same time the Court has found the phrase ‘question of arbitrability’ not applicable in other kinds of general circumstance where parties would likely expect that an arbitrator would decide the gateway matter. Thus ‘ “procedural” questions which grow out of the dispute and bear on its final disposition’ are presumptively not for the judge, but for an arbitrator, to decide. John Wiley, supra, at 557 (holding that an arbitrator should decide whether the first two steps of a grievance procedure were completed, where these steps are prerequisites to arbitration). So, too, the presumption is that the arbitrator should decide ‘allegation^] of waiver, delay, or a like defense to arbitrability.’ Moses H. Cone Memorial Hospital, supra, at 24-25. Indeed, the Revised Uniform Arbitration Act of 2000 (RUAA), seeking to ‘incorporate the holdings of the vast majority of state courts and the law that has developed under the [Federal Arbitration Act],’ states that an ‘arbitrator shall decide whether a condition precedent to arbitrability has been fulfilled.’ RUAA § 6(c), and comment 2, 7 U.L.A. 12-13 (Supp.2002). And the comments add that ‘in the absence of an agreement to the contrary, issues of substantive arbitrability ... are for a court to decide and issues of procedural arbitrability, ie., whether prerequisites such as time limits, notice, laches, es-toppel, and other conditions precedent to an obligation to arbitrate have been met, are for the arbitrators to decide.’ Id., § 6, comment 2, 7 U.L.A., at 13 (emphasis added).
“Following this precedent, we find that the applicability of the NASD time limit rule is a matter presumptively for the arbitrator, not for the judge. The time limit rule closely resembles the gateway questions that this Court has found not to be ‘questions of arbitrability.’ E.g., Moses H. Cone Memorial Hospital, supra, at 24-25 (referring to ‘waiver, delay, or a like defense’). Such a dispute seems an ‘aspec[t] of the [controversy] which called the grievance procedures into play.’ John Wiley, supra, at 559.”

Howsam, 537 U.S. at 83-85, 123 S.Ct. 588.

Although we recognize that How-sam involved the application of a rule involving a limitations period, our review of Howsam convinces us that Soho Partners’ and B & G’s contractual obligation to submit claims first to the architect for decision and then to mediate before invoking arbitration is the same kind of “condition precedent to an obligation to arbitrate” that Howsam presumed would be decided by the arbitrator. It is clear from Howsam that the Supreme Court was referring to “waiver, delay, or a like defense” that arose out of contractual obligations required before arbitration could be invoked, such as the limitations period involved in Howsam.

We also disagree with Soho Partners’ contention that this case would fall under an exception to the general rule that procedural arbitrability is to be resolved by the arbitrator. In John Wiley, supra, the Supreme Court stated that the general rule that procedural arbitrability is for the arbitrator to decide would not apply if a court could confidently say that a claim was strictly procedural and it should operate as a complete bar to arbitration. The United States Court of Appeals for the Fifth Circuit has interpreted this exception as saying “ ‘a court will not order arbitration if “no rational mind” could question that the parties intended for a procedural provision to preclude arbitration and that the breach of the procedural requirement was clear.’” General Warehousemen & Helpers Local Union 767 v. Albertson’s Distribution, Inc., 331 F.3d 485, 488 (5th Cir.2003) (quoting Oil, Chem. & Atomic Workers’ Int’l Union Local 4-447 v. Chevron Chem. Co., 815 F.2d 338, 342 (5th Cir.1987)). The Fifth Circuit Court of Appeals in Albertson’s declined to apply this “rare exception” because there were in that case factual disputes as to whether the union had failed to comply with the procedural requirements for arbitration and whether the failure to comply was excused by the parties’ own conduct. Similarly, in the present case, there is a question of whether B & G has sufficiently satisfied the conditions precedent or whether those conditions precedent were waived by Soho Partners’ conduct with respect to the mediation requirement, which B & G argued was waived by Soho Partners’ actions in refusing offers to mediate or was satisfied through communications between parties’ counsel.

We recognize that in Ex parte Williams, 591 So.2d 71 (Ala.1991), this Court addressed the effect of a failure to satisfy a condition precedent to arbitration. Specifically, this Court issued a writ of mandamus requiring the trial court to vacate an order compelling arbitration where it was undisputed that the contractor failed to submit known claims to the architect before requesting arbitration. This Court concluded that “failure to submit the dispute to the architect constituted a failure to meet the contractual condition precedent to arbitration.” 591 So.2d at 73. Williams is distinguishable from the present case. First, the evidence of failure to comply with a condition precedent to arbitration was undisputed in Williams, whereas such evidence is disputed in the present case. Second, Williams was issued before the United States Supreme Court’s ruling in Howsam, and it does not appear that either party in Williams argued that an arbitrator, rather than the trial court, should decide whether a condition precedent has been met.

IV. Conclusion

Based on the foregoing reasons, we conclude that this case presents a question of procedural arbitrability that should be decided by the arbitrator. Accordingly, we reverse the judgment of the trial court and remand the case for further proceedings consistent with this opinion.

REVERSED AND REMANDED.

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

        . Some courts have held that the statement in Howsam — that generally questions of waiver are presumed to be issues for the arbitrator rather than a court — is merely dicta or that Howsam is distinguishable with regard to waiver. See, e.g., American Gen. Home Equity, Inc. v. Kestel, 253 S.W.3d 543 (Ky.2008); Good Samaritan Coffee Co. v. LaRue Distrib., Inc., 275 Neb. 674, 748 N.W.2d 367 (2008). Those cases concern whether rights under an otherwise binding arbitration agreement have been waived through a party’s conduct in litigating. In Alabama, the issue whether a party has substantially invoked the litigation process is a matter for the trial court to decide. This is so because invoking the litigation process involves matters that occurred before the court or under its watch. In the present case, the issue of "waiver” involves conditions precedent to arbitration and not litigation conduct.


author: PITTMAN, Judge. MOORE, Judge,

text:
    GOLD KIST, INC. v. Denise PORTER.
    2060662.
    Court of Civil Appeals of Alabama.
    Oct. 31, 2008.

      Robert P. Fann and Patricia K. Rea of Fann & Rea, P.C., Birmingham, for appellant.
    James E. Mitchell, Jr., Birmingham, for appellee.
   PITTMAN, Judge.

Gold Kist, Inc. (“the employer”), appeals from a judgment of the Jefferson Circuit Court that, among other things, determined Denise Porter (“the employee”) to have suffered a cumulative-stress injury (i.e., carpal tunnel syndrome) in the course of her employment with the employer and awarding her permanent-partial-disability benefits under the Alabama Workers’ Compensation Act, § 25-5-1 et seq., Ala. Code 1975 (“the Act”). Because the trial court correctly determined that benefits pursuant to the Act were due to be awarded, but erred in failing to award benefits based upon the schedule of injuries in the Act (see § 25-5-57), we affirm in part, reverse in part, and remand.

The employee brought an action in the trial court against the employer in February 2005, alleging that she had suffered various injuries while in the course of her employment. The employer answered the complaint, denying liability and asserting various affirmative defenses. After an ore tenus proceeding, the trial court entered a judgment determining that the employee suffered from carpal tunnel syndrome in her arms that was caused by her employment and that the employee was permanently and totally disabled as a result of that condition so as to warrant a commensurate award of benefits under the Act. In pertinent part, the trial court determined that under Keen v. Showell Farms, Inc., 668 So.2d 783, 785-786 (Ala.Civ.App.1995), “there is no determination required pursuant to § 25-5-57(a)(3) (‘Permanent Partial Disability’).” Following the denial of its postjudgment motion, the employer timely appealed to this court from the trial court’s judgment.

The record reveals the following facts. The employee is a woman in her mid-50s who has a 12th-grade education and a limited history of work outside the home, having worked as a hospital aide before beginning to work for the employer in 1989 at its Trussville poultry-processing plant in the evisceration department. The employee testified that her work for the employer had largely consisted of inspecting, gutting, and making cuts upon 2- to 4-pound chicken carcasses that traveled along a conveyor at a rate of approximately 90 per minute. In 1998, while working for the employer, the employee began to experience tingling sensations and stiffness in her fingers, hands, and arms, at which time she consulted her family physician and was given a splint to wear at night. However, the employee’s symptoms persisted and became severe, prompting her to notify her superiors at work. After a salve recommended by a company nurse had failed to alleviate what the employee stated had become “indescribable” pain, which had begun affecting the employee’s ability to sleep, the employee was referred to Dr. Ekkehard Bonatz in mid-2002, who diagnosed the employee as having bilateral carpal tunnel syndrome.

Dr. Bonatz undertook three surgeries upon the employee: carpal-tunnel-release surgery upon the right wrist in July 2002, carpal-tunnel-release surgery upon the left wrist in February 2003, and a surgery in April 2003 on the employee’s right hand to alleviate “trigger-thumb” symptoms. Dr. Bonatz testified that, after those surgeries, he had observed that the employee had “much improved pain and discomfort,” an “essentially ... full range of motion[,] and no sensory deficit”; he described the employee as having reached maximum medical improvement by May 2003 as to all surgeries and as having suffered 10% impairments to her left and right “upper extremities,” which Dr. Bonatz testified included “[everything from the fingertips to the shoulder.” Dr. Bonatz opined that the primary causes of the employee’s wrist and finger conditions were her age and gender, but he also opined that the employee’s development of diabetes and her work for the employer were contributing factors. Although Dr. Bonatz in May 2003 released the employee from further care with the admonition that she should return to him if she experienced further problems, he testified in November 2005 at his deposition that the employee had not again consulted him, and the employee admitted at trial that she had not returned to Dr. Bonatz. Although there is some dispute concerning whether the employee’s work for the employer after her release from Dr. Bonatz was regular work or “light” work, it is undisputed that the employee returned to work for the employer until the employer closed its Trussville plant at the end of October 2003; since that time, she has not worked in any employment.

The employer asserts that the trial court erred in determining that the employee’s work for the employer caused or contributed to cause her carpal tunnel syndrome and trigger fingers so as to warrant an award of benefits under the Act. The employer further contends that the trial court erred in awarding benefits under the Act for a permanent and total disability (and in considering vocational evidence in making its award) because, the employer says, the employee’s injury should have been treated as a “scheduled-member” injury under the provisions of the Act pertaining to permanent partial disabilities. See § 25-5-57(a)(3). In considering those issues, we are mindful of the pertinent standard of appellate review established by our legislature in Ala.Code 1975, § 25-5 — 81(e): although our review of “the standard of proof ... and other legal issues ... shall be without a presumption of correctness,” our review of “pure findings of fact” is subject to the caveat that reversal of a judgment based upon “pure findings of fact” by a trial court should not occur if those findings are “supported by substantial evidence.”

We will first address the employer’s threshold issue regarding the compensability of the employee’s carpal tunnel syndrome and trigger-finger condition. There being no evidence of a sudden, traumatic injury to the employee’s arms in this case, the employee’s claim for benefits under the Act is properly deemed to be based upon a “gradual deterioration” or “cumulative physical stress disorder,” a class of conditions as to which the Act does not permit an award of benefits in the absence of “clear and convincing proof that those injuries arose out of and in the course of the employee’s employment,” i.e., “evidence that ... will produce in the mind of the trier of fact a firm conviction as to each essential element of the claim and a high probability as to the correctness of the conclusion.” Ala.Code 1975, § 25-5-81(c).

We conclude that the employee adduced sufficient evidence to support the trial court’s compensability determination. The employee testified to having first experienced symptoms of carpal tunnel syndrome and two trigger fingers several years after being hired by the employer to perform manual labor that required frequent repetitive movements of her hands, wrists, and arms upon chicken carcasses moving on a conveyer at a rate of 90 per minute. Furthermore, Dr. Bonatz, in his deposition testimony, opined that the employee’s work as a trimmer and a draw-hand “put repetitive stress” on her hands and wrists; he further opined, based upon his observations of and interactions with the employee, that the employee’s work “would certainly” and “did actually contribute to” the employee’s carpal tunnel syndrome and that the problems with her left ring finger and right thumb were work related. Although Dr. Bonatz identified several additional factors that may also have contributed to the employee’s arm and finger conditions, the foregoing evidence does “tend[ ] to show that the stres-sor, i.e., the repetitive nature of the [pertinent] job ... was at least a contributing cause of the injury,” International Paper Co. v. Melton, 866 So.2d 1158, 1168 (Ala.Civ.App.2003), so as to reasonably support the trial court’s determination that the employee was entitled to benefits from the employer under the Act. See Shoney’s, Inc. v. Rigsby, 971 So.2d 722, 724-25 (Ala.Civ.App.2007); see also Ex parte McInish, [Ms. 1060600, September 5, 2008] - So ,3d-, - (Ala.2008) (holding that lay and medical testimony both may be considered in determining whether the “clear and convincing” evidentiary standard has been met). To that extent, the judgment of the trial court is due to be affirmed.

However, we reach a different conclusion with respect to the correctness of the trial court’s award of benefits based upon a determination that the employee had suffered a permanent and total disability under the Act rather than an award of benefits based upon the schedule of benefits in § 25-5-57 of the Act. The employee contends that the trial court properly posed and affirmatively answered the question of whether she had suffered a permanent total disability (as opposed to a permanent partial disability). However, our recent decision in Advantage Sales of Alabama, Inc. v. Clemons, 36 So.3d 517 (Ala.Civ.App.2008), which likewise involved a judgment awarding permanent-total-disability benefits based upon a claim arising from an employee’s bilateral carpal tunnel syndrome, belies the employee’s contention. Because Advantage Sales aptly summarizes the pertinent statutory language and the applicable caselaw gloss thereupon, we quote it at length here:

“Section 25-5-57(a)(3) provides, in pertinent part:
“ ‘a. Amount and Duration of Compensation. For permanent partial disability, the compensation shall be based upon the extent of the disability. In cases included in the following schedule, the compensation shall be 66% percent of the average weekly earnings, during the number of weeks set out in the following schedule:
“ ‘24. For the loss of two arms, other than at the shoulder, 400 weeks.
“ ‘25. For the loss of two hands,
400 weeks.
“ ‘c. Concurrent Disabilities. If an employee sustains concurrent injuries resulting in concurrent disabilities, he or she shall receive compensation only for the injury which entitled him or her to the largest amount of compensation, but this paragraph shall not affect liability for the concurrent loss of more than one member for which members compensation is provided in the specific schedule.
“ ‘d. Loss of Use of Member. The permanent and total loss of the use of a member shall be considered as equivalent to the loss of that member, but in such cases the compensation specified in the schedule for such injury shall be in lieu of all other compensation, except as otherwise provided herein. For permanent disability due to injury to a member resulting in less than total loss of use of the member not otherwise compensated in the schedule, compensation shall be paid at the prescribed rate during that part of the time specified in the schedule for the total loss or total loss of use of the respective member which the extent of the injury to the member bears to its total loss.’
“In Ex parte Drummond, Co., 837 So.2d 831 (Ala.2002), our supreme court addressed the application of § 25-5-57(a)(3), stating:
“ ‘In Bell v. Driskill, 282 Ala. 640, 213 So.2d 806 (1968), this Court established an exception that removes certain injuries from the workers’ compensation schedule. This Court held in Bell:
“ ‘ “[Although the injury itself is to only one part or member of the body, if the effect of such injury extends to other parts of the body, and produces a greater or more prolonged incapacity than that which naturally results from the specific injury, or the injury causes an abnormal and unusual incapacity ■with respect to the member, then the employee is not limited in his recovery under the [Workers’] Compensation Law to the amount allowed under the schedule for injury to the one member.”
‘“282 Ala. at 646, 213 So.2d at 811....
“ ‘... Specifically, the Bell test permitted an injury to a scheduled member to be compensated outside the schedule if the effect of the injury extends to other parts of the body and produces a greater or more prolonged incapacity than that which naturally results from the injury to the specific member.’
837 So.2d at 833-34.
“After quoting the exception set forth in Bell, the court in Ex parte Drummond renewed its commitment to the policy underlying the Bell test. 837 So.2d at 834. Quoting 4 Lex K. Larson, Workers’ Compensation Law § 87.02 (2001), the supreme court concluded:
“ ‘ “The great majority of modern decisions agree that, if the effects of the loss of the member extend to other parts of the body and interfere with their efficiency, the schedule allowance for the lost member is not exclusive.”
“ ‘(Footnote omitted.) This language remains unchanged from the edition of the Larson treatise on which this Court relied in Bell. Because of the confusion that has developed surrounding the Bell test, we today adopt the language recited above from Larson, Workers’ Compensation Law § 87.02, as the test for determining whether an injury to a scheduled member should be treated as unscheduled; therefore, we overrule Bell insofar as it established a different test
“Ex parte Drummond, 837 So.2d at 834-35 (footnote omitted).
“In Ex parte Drummond, our supreme court recognized that its holding in Drummond was consistent with its 1969 decision in Leach Manufacturing Co. v. Puckett, 284 Ala. 209, 224 So.2d 242 (1969), wherein the court held:
“ ‘[W]here there is an injury resulting in the loss of a member, or the loss of the use of a member, so as to invoke payment of compensation as provided [by the Workers’ Compensation Act], and where this is not accompanied by other physical disability (of the body), the payment of the specified sum is intended to fully compensate the injured employee for the injury sustained.’
“Puckett, 284 Ala. at 214, 224 So.2d at 247.
“In its October 16, 2007, judgment, the trial court concluded that Clemons was permanently and totally disabled. Based on that conclusion, the trial court, citing dicta in Werner Co. v. Williams, 871 So.2d 845 (Ala.Civ.App.2003), found that it did not have to determine whether the injury was scheduled or nonscheduled because, it reasoned, § 25-5-57(a)(3)a. only applies to permanent partial disabilities. The trial court concluded that Clemons was permanently and totally disabled without regard for whether the Drummond test had been satisfied.
“The trial court’s reliance on dicta in Werner Co. v. Williams, supra, is misplaced. Our supreme court’s decisions in Puckett and Drummond dictate that the trial court must first determine whether the permanent injury to the scheduled member extends to and interferes with other nonscheduled parts of the employee’s body. If the injury to the scheduled member does not extend to other parts of the employee’s body, then the injury is classified as a matter of law as a permanent partial disability and the schedule set forth in § 25-5-57(a)(3) governs the amount of compensation due the employee without consideration of any vocational disability. Swift Lumber, Inc. v. Ramer, 875 So.2d 1200, 1205 (Ala.Civ.App.2003). If the evidence does meet the Drummond exception, the employee may present evidence of a vocational disability so as to recover benefits under either § 25-5-57(a)(3)(g) (governing compensation for nonscheduled permanent partial disability) or § 25-5-57(a)(4)a. (governing compensation for permanent total disability).”

36 So.3d at 526-28 (emphasis added); see also Ex parte Baggett, 1 So.3d 1021, 1022 (Ala.2008) (Murdock, J., concurring specially) (only if injury is not compensable under the schedule should the trial court then proceed to consider the degree of disability to the body as a whole; proceeding in reverse order “would negate the intended operation of the schedule”). To the extent that Keen v. Showell Farms, Inc., relied upon by the trial court in its judgment and by the employee on appeal, would indicate a contrary procedure, it has been implicitly overruled by Advantage Sales.

We thus first consider, as the trial court should have first considered, whether the schedule applies or whether an exception to the schedule applies. The employee, in defense of the trial court’s judgment that the schedule does not apply, does not contend on appeal that the permanent injury to her arms extends to and interferes with other, nonscheduled parts of her body so as to fit within the first prong of the test in Bell v. Driskill, 282 Ala. 640, 213 So.2d 806 (1968). Rather, she claims that she has satisfied the second prong of the Bell test asserting that her injury “causes an abnormal and unusual incapacity with respect to the member” itself. As Advantage Sales points out, however, the scope of the second prong of Bell has been severely limited, if not abrogated completely, by Ex parte Drummond Co., 837 So.2d 831 (Ala.2002), and subsequent appellate opinions; at most, a vestigial exception may apply to situations “ ‘when an injury ... to a scheduled member[ ] entails ... a debilitating pain ... that impairs the body as a whole in a manner not contemplated by the schedule.’ ” Shoney’s, Inc. v. Rigsby, 971 So.2d 722, 725-26 n. 2 (Ala.Civ.App.2007) (quoting Masterbrand Cabinets, Inc. v. Johnson, 984 So.2d 1136, 1144 (Ala.Civ.App.2005), aff'd, 984 So.2d 1146 (Ala.2007)). However, for that exception to the schedule to apply, “ ‘the pain associated with ... a permanently injured member’ ” must, “ ‘even when the worker avoids the use of that member’ ” as much as would be reasonable, be “ ‘sufficiently abnormal in its frequency or continuity and in its severity’ ” so as to impair the body in a manner beyond that contemplated by the schedule. Shoney’s, 971 So.2d at 727 (quoting Masterbrand, 984 So.2d at 1144-45).

The employee, during her testimony at trial, complained that she was experiencing severe pain in her right wrist (rating it 8 out of a subjective 10-point scale) and more moderate pain in her left arm (rated 7 out of a subjective 10-point scale) that could be alleviated by massage. She testified that she took an over-the-counter brand of naproxen for her pain “every other day” on an off-and-on basis, but she had not taken any other analgesics or any prescription pain drugs. She also testified that her pain no longer awakened her at night, but tended to increase upon use of her hands and arms, and admitted that she had not returned to Dr. Bonatz for further consultation regarding her pain symptoms since 2003.

In General Electric Co. v. Baggett, 1 So.3d 1015 (Ala.Civ.App.2007), cert. denied, Ex parte Baggett, 1 So.3d 1021 (Ala.2008), this court reversed a judgment awarding permanent-total-disability benefits under the Act to a worker who had suffered torn left-knee cartilage while loading refrigerators onto a railroad car. The evidence in that case indicated that after the worker had reached maximum medical improvement, the worker continued to suffer from pain in his left knee that he rated at between 7 and 9 on a 10-point severity scale; however, the worker testified that he used only a prescription anti-inflammatory medication daily and that he soaked his body in a tub with alcohol and Epsom salts in an effort to relieve his pain and swelling. In reversing the trial court’s judgment in Baggett, we concluded that the record did not contain substantial evidence indicating that the worker “experience[d] debilitating pain that, by itself, cause[d] a disability to the body as a whole,” i.e., the record did not indicate that he “experienced] more severe pain from his left-leg injury than would normally be associated with an injury of this nature, an injury listed in the schedule.” 1 So.3d at 1020.

Like the worker whose claim was considered in Baggett, the employee in this case has described having experienced moderate to severe pain as a consequence of a workplace injury to a scheduled member. However, as in Baggett, we are not confronted with a situation in which a workers’ compensation claimant has suffered from abnormally severe pain stemming from an injury to a scheduled member that would render the injury compensable outside the schedule under any vestigial exception to scheduled-member compensation for scheduled-member injuries that may properly be said to exist under Drummond and its progeny. The employee in this case has not sought, or been prescribed, any pain medication beyond an occasional over-the-counter analgesic remedy, and her symptoms are admittedly alleviated to some degree by massage and avoidance of use. We thus conclude that the trial court erred in awarding benefits to the employee outside the schedule in this case and, derivatively, in considering evidence of the employee’s vocational disability. See Gulf States Paper Corp. v. Warren, 979 So.2d 98, 104 (Ala.Civ.App.2007) (“Because the employee’s recovery was limited to compensation for a scheduled injury, evidence concerning the employee’s vocational disability was irrelevant.”).

Based upon the foregoing facts and authorities, we affirm the judgment of the trial court insofar as that court determined that the employee suffered a compensable injury under the Act. Insofar as that court determined that the employee was entitled to benefits outside the schedule of injuries in the Act, that court’s judgment is due to be reversed and the cause remanded for entry of a judgment consistent with this opinion.

AFFIRMED IN PART; REVERSED IN PART; AND REMANDED.

THOMPSON, P.J., and THOMAS, J., concur.

MOORE, J., concurs in part and concurs in the result, with writing.

BRYAN, J., concurs in the result, with writing.

MOORE, Judge,

concurring in part and concurring in the result.

I fully concur in all portions of the main opinion except in regard to the discussion of the so-called pain exception to the schedule set out in Masterbrand Cabinets, Inc. v. Johnson, 984 So.2d 1136, 1144 (Ala.Civ.App.2005) (plurality opinion), aff'd, 984 So.2d 1146 (Ala.2007). Johnson is a plurality opinion that was authored by Judge Murdock when he was a member of this court; only Presiding Judge Crawley fully concurred in the main opinion. Plurality opinions have questionable precedential value at best. Ex parte Discount Foods, Inc., 789 So.2d 842, 845 (Ala.2001). See also Ex parte Achenbach, 783 So.2d 4 (Ala.2000).

Johnson was affirmed by our supreme court without an opinion, citing Rules 53(a)(1) and 53(a)(2)(A), Ala. RApp. P. Rule 53(a)(1) specifically states that a judgment may be affirmed without an opinion if the court determines “[t]hat an opinion in the case would serve no significant precedential purpose.” Rule 53(d), Ala. RApp. P., further provides:

“An order of affirmance issued by the Supreme Court ... by which a judgment or order is affirmed without an opinion, pursuant to subsection (a), shall have no precedential value and shall not be cited in arguments or briefs, and shall not be used by any court within this state, except for the purpose of establishing the application of the doctrine of law of the case, res judicata, collateral estoppel, double jeopardy, or procedural bar.”

Since the issuance of Johnson, this court has cited the case on several occasions and has even analyzed subsequent cases based on its reasoning, but this court has never applied the Johnson rationale to conclude that an injury to a scheduled member could be compensated outside the schedule. See, e.g., Advantage Sales of Alabama, Inc. v. Clemons, 36 So.3d 517 (Ala.Civ.App.2008); Shoney’s, Inc. v. Rigsby, 971 So.2d 722 (Ala.Civ.App.2007).

Based on the fact that Johnson is a plurality opinion that was affirmed by the supreme court without an opinion and because its rationale has never been applied to award benefits outside the schedule in any subsequent case, I question whether Johnson has any binding effect, an issue that was left unanswered by this court’s recent decision in Norandal U.S.A., Inc. v. Graben, [Ms. 2061070, Oct. 17, 2008] (Ala.Civ.App.2008). I agree that the evidence in this ease does not meet the Johnson standard, but until we receive some definitive guidance from our supreme court, I hesitate to join in any decision that implies that the schedule would be avoided if the Johnson test was met. Therefore, I concur only in the result as to that portion of the opinion discussing Johnson.

BRYAN, Judge, concurring in the result.

The main opinion states:

“[The employee] claims that she has satisfied the second prong of the Bell [v. Driskill, 282 Ala. 640, 213 So.2d 806 (1968),] test, asserting that her injury ‘causes an abnormal and unusual incapacity with respect to the member’ itself. As Advantage Sales [of Alabama, Inc. v. Clemons, 36 So.3d 517 (Ala.Civ.App.2008),] points out, however, the scope of the second prong of Bell has been severely limited, if not abrogated completely, by Ex parte Drummond Co., 837 So.2d 831 (Ala.2002), and subsequent appellate opinions; at most, a vestigial exception may apply to situations ‘ “when an injury ... to a scheduled memberf ] entails ... a debilitating pain ... that impairs the body as a whole in a manner not contemplated by the schedule.” ’ Shoney’s, Inc. v. Rigsby, 971 So.2d 722, 725-26 n. 2 (Ala.Civ.App.2007) (quoting Masterbrand Cabinets, Inc. v. Johnson, 984 So.2d 1136, 1144 (Ala.Civ.App.2005), aff'd, 984 So.2d 1146 (Ala.2007)).”

35 So.3d at 613-14 (emphasis added).

In Ex parte Drummond Co., 837 So.2d 831, 835 n. 10 (Ala.2002), our supreme court stated:

“Bell [v. Driskill], relying on the A.L.R. note, added to the Larson language a second basis for departing from the workers’ compensation schedule: ‘or the injury causes an abnormal and unusual incapacity with respect to the member.’ 282 Ala. [640] at 646, 213 So.2d [806] at 811 [ (1968) ]. It is unclear what conditions this second prong of the Bell test was intended to cover. We note that this Court has not applied this second prong and that where the Court of Civil Appeals has purported to have applied it, that court has actually gone well beyond the language of the test and considered other characteristics of the claimant.... This additional language appears to add nothing but ambiguity to the thoughtful language of Larson’s treatise; therefore, we decline to consider the so-called second prong of the Bell test a part of the test that we adopt today.”

I believe that this passage in Ex parte Drummond Co. completely abrogated the second prong of the Bell test. Accordingly, I must view the so-called “pain exception” to the schedule as being completely distinct from the second prong of the Bell test, despite similarities between these two standards