author: ISHEE, J., LEE, P.J.,

text:
    In the Matter of the GUARDIANSHIP ESTATE OF Dylan N. BAKER, a Minor Child. Jack W. Harang, Appellant v. Pat M. Barrett, Jr. and Charles Ian Kirtland, Appellees.
    No. 2008-CP-01701-COA.
    Court of Appeals of Mississippi.
    April 6, 2010.

      Jack W. Harang, Appellant, pro se.
    Pat M. Barrett, Jr., Appellee, pro se.
    Richard C. Fitzpatrick, Poplarville, Alfred Harry Davidson IV, attorneys for appellees.
    Before MYERS, P.J., IRVING, GRIFFIS and ISHEE, JJ.
   ISHEE, J.,

for the Court:

¶ 1. On March 20, 2002, Briana L. Kirt-land was killed after an automobile in which she was a passenger collided with a train at a railroad crossing in Pearl River County, Mississippi. Briana was survived by her minor child, Dylan Baker, who was four years old when she died. In April 2002, Brian and Gina Baker (the Bakers), Briana’s parents, filed a wrongful-death action in the Pearl River County Chancery Court on behalf of Dylan against Norfolk Southern Railroad Company (Norfolk). They executed a contingency-fee contract with Jack Harang, a Louisiana attorney. Harang later associated Pat Barrett, Jr., a Mississippi attorney, into the case. Barrett did not have a contingency-fee contract with the Bakers, and all work conducted by him was done through his association with Harang pursuant to the contingency-fee contract executed by the Bakers with Harang.

¶ 2. In March 2007, the parties agreed to settle the case. The settlement was approved by the chancery court in August 2007. In May 2008, Barrett filed a motion for attorney’s fees. Harang filed a motion in opposition, and in June 2008, he filed a motion for approval and recognition of the attorney’s contingency-fee contract.

¶ 3. A hearing on the motion for attorney’s fees and the opposition motion was conducted in May 2008. The chancery judge entered an order in July 2008 and awarded Barrett ninety percent of the total amount of the attorney’s fees recovered in the case and awarded Harang ten percent of the attorney’s fees recovered in the case. Aggrieved, Harang appeals asserting that the chancery court erred in deciding not to recognize the existing contingency-fee contract and awarding Barrett ninety percent of the total amount of attorney’s fees. Finding no error, we affirm.

STANDARD OF REVIEW

¶4. This Court applies a limited standard of review on appeals from chancery court. Reddell v. Reddell, 696 So.2d 287, 288 (Miss.1997). Great deference is given to the chancellor in his findings of fact, and we will not disturb those findings unless they are found to be manifestly wrong or clearly erroneous, or where the chancellor applied an incorrect legal standard. In re Allen, 962 So.2d 737, 741 (¶ 14) (Miss.Ct.App.2007) (citing In re Estate of Ladner, 909 So.2d 1051, 1054 (¶ 6) (Miss.2004)).

DISCUSSION

¶ 5. Harang argues that the chancery court erred in deciding that it did not have to recognize the existing contingency-fee contract and holding that only equitable principles control the division of attorney’s fees. Harang asserts that the chancery court totally disregarded the provision of Rule 1.5(c) of the Mississippi Rules of Professional Conduct which requires that a contingency-fee agreement be in writing. Although it is not made clear in his brief, Harang appears to be asserting that the chancery court recognized an oral contingency-fee contract between Barrett and the Bakers. Harang contends that there is no such provision in the Code of Professional Conduct allowing an oral contingency-fee contract between a client and an attorney; thus, the chancery court was in error to recognize one and to award Barrett ninety percent of the attorney’s fees. However, Harang later admits in his brief that Barrett had no oral contingency-fee contract with the Bakers.

¶ 6. Fee splitting between an attorney licensed to practice in Mississippi and an attorney not licensed to practice in Mississippi, but properly admitted pro hac vice, is governed by Rule 1.5(e) of the Mississippi Rules of Professional Conduct which provides, in pertinent part, that:

A division of a fee between lawyers who are not in the same firm may be made only if: (1) the division is in proportion to the services performed by each lawyer or, by written agreement each lawyer assumes joint responsibility for the representation; (2) the client is advised of and does not object to the participation of all the lawyers involved; and (3) the total fee is reasonable.

¶ 7. Harang, an attorney licensed to practice law in Louisiana, entered into a contingency-fee contract with the Bakers to pursue a wrongful-death suit against Norfolk. In preparation for this suit, Har-ang interviewed witnesses and performed an investigation of the underlying facts surrounding the accident. Harang, through his agent Richard H. Barker IV, then associated Barrett, a Mississippi attorney, into the case to assist with the suit.

¶ 8. The chancery court was provided copies of the correspondence between Barker and Barrett. The correspondence confirmed an agreement that Barrett would be associated with Harang as co-counsel; it provided that the work, expenses, and fees would be divided equally between the two of them. Barrett was given a retainer letter and a $250 firm check from Barker. The $250 check represented fifty percent of the $500 retainer fee that Harang and Barker had received from the Bakers to handle their adoption of Dylan. As evidenced from the exhibits Barrett provided in the record, after he accepted the role as Harang’s co-counsel, Barrett spent a considerable amount of time and money in litigating the Bakers case. According to Barrett’s summary of work done, he spent 726 hours and $32,528.94 on the case. From the record it appears that the $250 firm check from Barker to Barrett was the only money Barrett received. Barrett also provided the chancery court with correspondence he sent through certified mail to Harang where he explained that after several attempts to contact Harang for help with the litigation, Barrett had decided to continue litigating the case as if he were the only attorney retained by the Bakers. The chancery court was not provided with any evidence from Harang to dispute Barrett’s assertion that he had made several attempts to contact Harang with no avail. The chancery court also was not provided with any evidence from Harang disputing the time and money Barrett spent litigating this case.

¶ 9. Barrett also provided an affidavit from Richard A. Follis, the attorney who represented Norfolk. Follis stated that to the best of his knowledge, the case was litigated extensively by Barrett.' He also stated that while Barker and Harang were included as attorneys of record throughout the litigation, he never had any contact or telephone conversation with either of them, nor did he ever receive any correspondence from either of them pertaining to the substance of the litigation of the case. Follis summarized his affidavit by saying that to the best of his knowledge, neither Barker or Harang were ever directly involved in any component of the litigation between the Bakers and Norfolk.

¶ 10. Harang provided the chancery court with an affidavit from Michael B. Martz. Martz had previously served as general counsel for The Mississippi Bar for eight years, and at the time of his affidavit, he was in private practice with his primary focus being ethics, professional responsibility, legal malpractice, and attorney discipline. Martz has served as an expert in these areas. In his expert opinion, Martz stated that the chancery court should recognize the contract between the Bakers and Harang. Martz stated that there is written consent from the Bakers authorizing Harang and Barker to act on their behalf, but that there is no such written consent from the Bakers authorizing Barrett to act on them behalf except through the contract between the Bakers and Harang.

¶ 11. Although Barrett asserts that he performed more of the work and spent the majority of the money in this case, Martz stated that the assumption of joint responsibility does not require that the attorney be actively involved in providing legal services at every stage of the prosecution of the client’s case. He also stated that joint responsibility does not necessarily require that the attorney participate in the decision-making process or the litigation of the case. Martz concludes that a division of attorney’s fees on a quantum-meruit basis would not be equitable.

¶ 12. With regard to minors’ matters in Mississippi, principles of equity govern. In Sunnyland. Contracting Co. v. Davis, 221 Miss. 744, 756, 75 So.2d 638, 639 (1954), the court stated: “Where minors are involved, the courts must [necessarily] determine the fees; and any contract for fees does not bind the minors.” In accordance with Sunnyland, this Court does not have to recognize the existing contingency-fee contract. Thus, only equitable principles control the division of attorney’s fees in this case.

¶ 13. When looking to determine the equitable division of attorney’s fees, this Court looks to Rule 1.5(a) of the Mississippi Rules of Professional Conduct, which provides that “a lawyer’s fee shall be reasonable.” Rule 1.5(a) sets out several factors to be considered in determining reasonableness:

(1) the time and labor required, the novelty and difficulty of the questions involved, and the skill requisite to perform the legal service properly; (2) the likelihood, if apparent to the client, that the acceptance of the particular employment will preclude other employment by the lawyer; (3) the fee customarily charged in the locality for similar legal services; (4) the amount involved and the results obtained; (5) the time limitations imposed by the client or by the circumstances; (6) the nature and length of the professional relationship with the client; (7) the experience, reputation, and ability of the lawyer or lawyers performing the services; and (8) whether the fee is fixed or contingent.

In McKee v. McKee, 418 So.2d 764, 767 (Miss.1982), the supreme court held as follows in regard to attorney’s fees:

The fee depends on consideration of, in addition to the relative financial ability of the parties, the skill and standing of the attorney employed, the nature of the case and novelty and difficulty of the questions at issue, as well as the degree of responsibility involved in the management of the cause, the time and labor required, the usual and customary charge in the community, and the preclusion of other employment by the attorney due to the acceptance of the case.

The court went on to say: “[W]e are also of the opinion the allowance of attorney[’s] fees should be only in such amount as will compensate for the services rendered. It must be fair and just to all concerned after it has been determined that the legal work being compensated was reasonably required and necessary.” Id. It is clear from the record that Barrett performed the majority of the work in this case; therefore, he should be awarded attorney’s fees that reflect such.

¶ 14. This Court finds that the judgment of the chancery court to award Barrett ninety percent of the total amount of attorney’s fees and to award Harang ten percent of the total amount of attorney’s fees is proper. Therefore, we affirm the judgment of the chancery court.

¶ 15. THE JUDGMENT OF THE PEARL RIVER COUNTY CHANCERY COURT IS AFFIRMED. ALL COSTS OF THIS APPEAL ARE ASSESSED TO THE APPELLANT.

MYERS, P.J., GRIFFIS, BARNES, ROBERTS AND MAXWELL, JJ„ CONCUR. IRVING, J„ CONCURS IN RESULT ONLY WITHOUT SEPARATE WRITTEN OPINION. LEE, P.J., DISSENTS WITH SEPARATE WRITTEN OPINION JOINED IN PART BY KING, C.J.

LEE, P.J.,

dissenting:

¶ 16. With respect for the majority, I must dissent. The award of only ten percent of the total attorney’s fees to Jack Harang was patently unfair and should be reversed. While I acknowledge that Har-ang did not fulfill his end of the bargain with attorney Pat Barrett, Jr., Harang was the referring attorney and should be compensated for his services in procuring the case.

¶ 17. It must be kept in mind that Barrett had no contractual relationship with Brian and Gina Baker (the Bakers); thus, all actions taken by Barrett were pursuant to the agreement made between Harang and the Bakers. Barrett did not procure the clients, and he had no connection to this case other than the association by Harang. The correspondence between the attorneys stated that the work, costs, and fees were to be split equally. A division of fees between a referring attorney who himself has been retained on a contingency basis and the attorney who handles the case will rarely, if ever, be quantum meruit. The referring attorney might not do a significant amount of work on a case; yet, the referring attorney procured the case, and that action has value. Harang was included as an attorney of record throughout the litigation. Harang still assumed joint responsibility of the case, even though he did not participate in accordance with their agreement of taking on fifty percent of the work and expense.

¶ 18. The majority cites Sunnyland Contracting Co. v. Davis, 221 Miss. 744, 756, 75 So.2d 638, 639 (1954) for the proposition that courts are not bound to follow contingency-fee contracts with minors. The majority also cites to McKee v. McKee, 418 So.2d 764, 767 (Miss.1982), which provides a list of factors to use in determining the amount of attorney’s fees that should be awarded. I find that the majority’s reliance on Sunny land and McKee is misplaced. These cases, which hold that attorney’s fees should be determined in an equitable manner, only refer to the fees a client is to pay his or her attorney. Neither case gives any guidance as to the division of fees between a referring attorney and the attorney who actually sees the case to fruition. I agree with the opinion of Harang’s expert witness, Michael B. Martz. Martz concluded that since there was no consent from the Bakers authorizing Barrett to act on their behalf, except through the contract between the Bakers and Harang, the chancery court should have honored the agreement between the attorneys to split the fee.

¶ 19. It is a very common practice for attorneys to associate other attorneys to handle cases that they themselves may not be able to handle because they practice in another state, may not possess the necessary expertise, or for a variety of other reasons. When an attorney accepts a referral, he or she understands the basis on which they have accepted the case. As in any contingency-fee arrangement, sometimes the attorney is well rewarded and sometimes not so well. It is not out of the question that some associations or referrals are done on a handshake, with no written agreement.

¶ 20. In this case, Barrett would have never had the case had it not been for Harang. While Barrett may have advanced all of the costs contrary to the written agreement, he was reimbursed by the court for every cent he expended. I am reminded of the old adage, “little pigs get fat, hogs get slaughtered.”

¶ 21. Mississippi has become well known, if not infamous, for fee disputes among lawyers. See Scruggs, Millette, Bozeman & Dent, P.A. v. Merkel & Cocke, P.A., 804 So.2d 1000 (Miss.2001). Barrett has converted this case to quantum meruit because Harang did not do half the work or advance half the costs. When you take on an association such as this, you take the bitter with the sweet. Notwithstanding the communication between the attorneys which stated that the work, costs, and fees would be divided equally, it was not practical for Barrett to believe that the work would be divided fifty-fifty. Harang was out of state; thus, it was not practicable for him to do fifty percent of the work as he was not licensed in Mississippi. That is why he associated Barrett. In any law practice, a crucial factor to the business is bringing in cases. This is commonly known as “rainmaking.” A lawyer may have great legal abilities, but without any cases to work on, he or she would profit nothing. While a definite amount cannot be determined, it may very well be that fifty percent of the value of a case should be attributed to the rainmaker.

¶ 22. Barrett did not take this case on a quantum-meruit basis. He knew Harang could not perform fifty percent of the actual work because he was out of state. Therefore, because I find the division of fees between the two attorneys was unfair, I would reverse and remand this case back to the chancellor for reconsideration of the division of attorney’s fees.

KING, C.J., JOINS THIS OPINION IN PART.

      . The Bakers are the parents of Briana L. Kirtland and the maternal grandparents of Dylan Baker. Following Briana’s death, the Bakers adopted Dylan, but the Bakers later divorced. Brian Baker was awarded joint legal custody and sole physical custody of Dylan.


source: Caselaw Access Project

author: STUART, Justice.

license: Public Domain

text:
    Scott McDermott v. Gary TABB.
    1071536.
    Supreme Court of Alabama.
    Aug. 21, 2009.

      Michael L. Jackson of Wallace, Jordan, Ratliff & Brandt, L.L.C., Birmingham; and Cheryl Baswell-Guthrie, Huntsville, for appellant.
    M. Rebecca Hill of Johnston, Moore & Thompson, Huntsville, for appellee.
   STUART, Justice.

Scott McDermott appeals an order of the Madison Circuit Court denying his motion made pursuant to Rule 60(b)(4), Aa. R. Civ. P., to set aside the default judgment entered in favor of Gary Tabb in Tabb’s breach-of-contract action against McDermott. We reverse and remand.

I.

On April 24, 2007, Tabb instituted an action in the Madison Circuit Court against “Scott McDermott d/b/a Coldwell Banker Premier,” alleging, essentially, that McDermott had breached a real-estate contract he had entered into with Tabb to purchase a house Tabb owned in Madison. The action listed the following two addresses for the defendant, and a summons and a copy of the complaint were sent to both addresses via certified mail:

1. Scott McDermott e/o Coldwell Banker Premier 4092 South Memorial Parkway Huntsville, Alabama 35802
2. Coldwell Banker Real Estate Corporation 1 Campus Drive Parsippany, New Jersey 07054-4407

The certified-mail return receipts indicate that the summons and the complaint were delivered to the Huntsville address on April 30, 2007, and to the Parsippany, New Jersey, address on May 15, 2007. The return receipt for the certified mail sent to the Huntsville address indicates that the summons and the complaint were signed for by “J. Tibbs”; it is impossible to discern if there is any signature on the return receipt for the mail sent to the New Jersey address because of the quality of the copy included in the record.

On June 15, 2007, Tabb moved for a default judgment, arguing that McDermott had been served on April 30 but had failed to answer the complaint or otherwise to defend himself within the succeeding 30-day period. Tabb accompanied his motion for a default judgment with an affidavit describing his damage and seeking a total of $184,615 in compensation. On June 20, 2007, the trial court granted Tabb’s motion and entered a judgment in his favor and against McDermott for $184,615.

On October 9, 2007, McDermott moved the trial court, pursuant to Rule 60(b), Aa. R. Civ. P., to vacate the default judgment entered against him. He alleged that the judgment was void because, he said, Tabb failed to effect proper service upon him. Specifically, McDermott alleged that even though one “J. Tibbs” had signed a receipt acknowledging receipt of the summons and complaint sent to the Huntsville address, J. Tibbs was not authorized to accept service on his behalf and McDermott had, in fact, never received the documents. Moreover, McDermott alleged that he did not do business as Coldwell Banker Premier — rather, Coldwell Banker Real Estate Corporation did business as Coldwell Banker Premier — and that he had not authorized Coldwell Banker Premier to accept service on his behalf. Finally, McDermott argued that he had never entered into any real-estate contract with Tabb and that the contract produced by Tabb lacked his signature. Tabb filed a written response with the trial court opposing McDermott’s Rule 60(b) motion, and, on July 17, 2008, after holding a hearing on the issue, the trial court denied McDermott’s motion without stating its rationale. On August 5, 2008, McDermott filed the instant appeal.

II.

On appeal, McDermott repeats the argument made in his Rule 60(b) motion: The default judgment entered against him was void because, he says, Tabb failed to effect proper service upon him. In Northbrook Indemnity Co. v. Westgate, Ltd., 769 So.2d 890, 893 (Ala.2000), this Court explained the standard of review applicable to such a claim:

“This Court has held that ‘[t]he review applicable to a Rule 60(b)(4) motion is de novo.’ Greene v. Connelly, 628 So.2d 346, 351 (Ala.1993); accord Insurance Management & Admin., Inc. v. Palomar his. Corp., 590 So.2d 209, 212 (Ala.1991).
“ *When the grant or denial of relief turns on the validity of the judgment, as under Rule 60(b)(4), discretion has no place. If the judgment is valid, it must stand; if it is void, it must be set aside. A judgment is void only if the court rendering it lacked jurisdiction of the subject matter or of the parties, or if it acted in a manner inconsistent with due process.’
“Palomar Ins., 590 So.2d at 212. ‘Failure of proper service under Rule 4[, Ala. R. Civ. P.,] deprives a court of jurisdiction and renders its judgment void.’ Ex parte Pate, 673 So.2d 427, 428-29 (Ala.1995).”

This Court has also stated that “[w]hen the service of process on the defendant is contested as being improper or invalid, the burden of proof is on the plaintiff to prove that service of process was performed correctly and legally.” Ex parte Volkswagenwerk Aktiengesellschaft, 443 So.2d 880, 884 (Ala.1983). Accordingly, we review de novo the facts to determine whether Tabb has established that McDermott was properly served so as to vest the trial court with the necessary jurisdiction to enable it to enter a default judgment against McDermott.

III.

Rule 4(c)(1), Ala. R. Civ. P., provides that service of process upon an individual, other than a minor or an incompetent person, shall be made in the following manner:

“[B]y serving the individual or by leaving a copy of the summons and the complaint at the individual’s dwelling house or usual place of abode with some person of suitable age and discretion then residing therein or by delivering a copy of the summons and the complaint to an agent authorized by appointment or by law to receive service of process

Tabb does not argue — and there is no evidence in the record indicating — that McDermott was ever personally served or that process was ever left at his “dwelling house or usual place of abode.” Rather, Tabb argues that McDermott was served by certified mail as authorized by Rule 4(i)(2)(C), Ala. R. Civ. P., which provides, in pertinent part, as follows:

“Service by certified mail shall be deemed complete and the time for answering shall run from the date of delivery to the named addressee or the addressee’s agent as evidenced by signature on the return receipt. Within the meaning of this subdivision, ‘agent’ means a person or entity specifically authorized by the addressee to receive the addressee’s mail and to deliver that mail to the addressee. Such agent’s authority shall be conclusively established when the addressee acknowledges actual receipt of the summons and complaint or the court determines that the evidence proves the addressee did actually receive the summons and complaint in time to avoid a default.”

Because the certified-mail receipt indicates that the receipt for the summons and the complaint sent to the Huntsville address was signed by J. Tibbs — not by McDer-mott — Tabb is therefore implicitly arguing that J. Tibbs is McDermott’s agent, that is, that J. Tibbs was authorized by McDer-mott to receive McDermott’s mail and to deliver it to him. However, Tabb has submitted no evidence in support of such a fact. Instead, Tabb argues that the certified-mail receipt that was returned to the clerk’s office is itself evidence indicating that McDermott was properly served and operates to shift the burden to McDermott to refute that presumption of service. Tabb cites Insurance Management & Administration, Inc. v. Palomar Insurance Corp., 590 So.2d 209, 213 (Ala.1991), in support of his argument; however, he has misinterpreted our holding in that case. In Truss v. Chappell, 4 So.3d 1110, 1112 n. 4 (Ala.2008), we specifically noted that the interpretation of Palomar Insurance now advanced by Tabb was erroneous, stating:

“In Insurance Management & Administration, Inc. v. Palomar Insurance Corp., 590 So.2d 209, 213 (Ala.1991), this Court held that the clerk’s notation of proper service creates a presumption of proper service that can be rebutted only by ‘clear and convincing evidence.’ In Northbrook Indemnity Co. v. Westgate, Ltd., 769 So.2d 890, 893 n. 4 (Ala.2000), this Court stated that the Palomar Insurance presumption established only that the ‘clerk mailed the process and the person signing the certified-mail receipt received the process.’ Palomar Insurance did not establish a presumption as to whether the person signing the receipt was a proper person to receive process or whether the place of service was the defendant’s ‘dwelling house or usual place of abode.’ ”

(Emphasis added.) Thus, the certified-mail receipt that has been submitted as evidence in this case does not, in fact, establish that McDermott was properly served; rather, it merely establishes that the summons and the complaint were mailed to the Huntsville address and signed for by J. Tibbs.

Because McDermott has alleged that he was not properly served, it was Tabb’s burden to show that the service of process was performed correctly and legally. Ex parte Volkswagenwerk Aktiengesellschaft, 443 So.2d at 884. Tabb argues that he properly served McDermott by certified mail pursuant to Rule 4(i)(2)(C), Ala. R. Civ. P.; however, because there is no evidence in the record establishing the identity of J. Tibbs or indicating that he or she was an agent of McDermott within the meaning of Rule 4(i)(2)(C), Tabb has failed to meet his burden. Accordingly, McDermott’s Rule 60(b) motion to vacate the default judgment entered against him should have been granted.

IV.

Tabb sued McDermott alleging breach of contract and obtained a default judgment in the amount of $184,615 after McDermott failed to file a response to his complaint. McDermott subsequently moved to vacate that default judgment, arguing that he had not been properly served. The trial court denied that motion; however, because McDermott’s assertion that he was not properly served placed the burden of establishing proper service on Tabb, and because that burden was not met, the trial court’s decision denying McDermott’s motion to vacate was in error. The trial court’s judgment is reversed, and the cause is remanded for further proceedings consistent with this opinion.

REVERSED AND REMANDED.

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

      . Tabb has not argued to the trial court or to this Court that the summons and the complaint delivered to the New Jersey address of Coldwell Banker Real Estate Corporation on May 15 constituted proper service upon McDermott; rather, he has focused his argument on the April 30 delivery to the Huntsville address. Nevertheless, McDermott has submitted evidence indicating that the registered agent of Coldwell Banker Real Estate Corporation, located in Delaware, has never been served.

      . There is no evidence in the record identifying "J. Tibbs” or explaining his or her relationship to McDermott or Coldwell Banker Premier.


author: WOODALL, Justice.

text:
    WHITE SANDS GROUP, L.L.C. v. PRS II, LLC, et al. White Sands Group, L.L.C., and Jeff Valentine v. Michael Asfour and Peter Sterling.
    1080312 and 1080673.
    Supreme Court of Alabama.
    Sept. 4, 2009.

      George W. Walker III and C. Nelson Gill of Copeland Franco Screws & Gill PA, Montgomery, for appellants.
    Jerome E. Speegle, Anthony M. Hoffman, and Jennifer S. Holifield of Zieman, Speegle, Jackson & Hoffman, L.L.C., Mobile, for appellee PRS II, LLC.
    J. Byron Brackin III and Julian B. Brackin, Jr., of Brackin, McGriff & Johnson, P.C., Foley, for appellees Michael Asf-our and Peter Sterling.
   WOODALL, Justice.

These appeals are brought by Jeff Valentine and White Sands Group, L.L.C. (“White Sands”), a real-estate development company whose members include Valentine and others, from a summary judgment for PRS II, LLC, Peter Sterling, and Michael Asfour, on White Sands’ counterclaim against them alleging tortious interference with a business relationship and from subsequent orders awarding costs. In case no. 1080312, we reverse and remand; in case no. 1080673, we vacate the trial court’s orders awarding costs and remand.

I. Procedural Background

This is the second time this case has been before us. See White Sands Group, L.L.C. v. PRS II, LLC, 998 So.2d 1042 (Ala.2008), for the procedural background of this dispute and a more detailed description of the identity of the parties. At the core of the dispute in that case was correspondence between Valentine and Thomas J. Langan, Jr., dated May 17, 2004 (hereinafter “the Valentine letter”), contemplating the purchase by White Sands of five lots, which were owned by members of the Langan family, including Thomas J. Langan, Jr., in conjunction with Langan Development Company, Inc.; Bar Pilot Land, L.L.C.; and Pilots Pointe Development, L.L.C. (hereinafter collectively referred to as “the Langan entities”). The five lots were a portion of a larger undeveloped tract known as “Pilot Town.” The transaction failed when the Langan entities sold Pilot Town in its entirety, including the five lots, to PRS II.

Litigation ensued. In that litigation, White Sands asserted counterclaims alleging breach of contract and tortious interference with a business or contractual relationship. “More specifically, count one of the counter-complaint asserted a breach-of-contract claim ... against the Langan entities.” 998 So.2d at 1049 (emphasis omitted). Count one alleged that the Valentine letter was a valid purchase contract, which the Langan entities breached by refusing to complete the sale of the five lots to White Sands. Count three alleged that White Sands “ ‘had a valid and existing contract and business relationship’ with the Langan entities” and that “Sterling, Asfour, and PRS II ... wrongfully ‘interfered with said business and/or contractual relations.’ ” 998 So.2d at 1053-54 (emphasis added).

In White Sands, we first affirmed the summary judgment for the Langan entities, holding that “the parties [had] ‘so [indefinitely] expressed their intentions [in the Valentine letter] that the court [could not] enforce their agreement.’ ” 998 So.2d at 1051. Next, we affirmed the summary judgment in favor of PRS II, Sterling, and Asfour (hereinafter collectively referred to as “the counterclaim defendants”) insofar as it related to the interference-with-contractual-relations claim in count three of White Sands’ counter-complaint. However, we reversed in part the summary judgment for the counterclaim defendants and remanded the cause for further proceedings insofar as it related to the interfer-enee-with-a-business-relations claim in count three of the counter-complaint. 998 So.2d at 1058. Our reversal was based on the incomplete arguments of the counterclaim defendants in their summary-judgment motion. Specifically, they had offered as the sole ground for summary judgment the fact that the Valentine letter was not an enforceable contract, thus ignoring the body of Alabama caselaw also protecting business relationships or expectancies. 998 So.2d at 1054-56. Based on the inadequacy of the counterclaim defendants’ arguments as to that issue, we concluded that they had failed to “discharge [their] initial burden[s] to challenge the sufficiency of the evidence of [White Sands’ interference-with-a-business-relations claim]” and, therefore, were only entitled to a partial summary judgment as to count three of the counterclaim. 998 So.2d at 1055.

On remand, PRS II filed a renewed motion for a summary judgment, addressing, for the first time, the legal basis for a claim of tortious interference with a non-contractual business relationship. In conjunction with its motion and accompanying brief, PRS II filed the affidavit of Thomas J. Langan, Jr., and the affidavit of Peter Morris, a member of one of the business entities that constitute PRS II. Sterling and Asfour also renewed their summary-judgment motion and filed a brief. However, they filed no evidentiary material in support of their motion, and, although their brief purported to contain a “narrative summary of undisputed facts,” it contained no citation to any supporting material. For an argument, they relied almost exclusively on the arguments in PRS II’s brief, which they incorporated by reference.

On October 28, 2008, the trial court granted the motions. White Sands filed its notice of appeal in case no. 1080312 on December 1, 2008. Meanwhile, on November 6, 2008, PRS II filed a “motion to tax costs” against not only White Sands, but also Valentine, in the amount of $28,401.72. On January 15, 2009, the trial court issued an order granting that motion (hereinafter referred to as “the PRS II costs order”). Because Valentine was not involved in the summary-judgment proceedings, Valentine and White Sands filed a second notice of appeal on January 27, 2009, in case no. 1080312. Case no. 1080312 thus involves the merits of the tortious-interference-with-a-business-relations claim, as well as the propriety of the PRS II costs order.

On January 28, 2009, Sterling and Asf-our filed a motion to assess costs against White Sands and Valentine in the amount of $4,019.37. On February 27, 2009, the trial court granted that motion (hereinafter referred to as “the Sterling/Asfour costs order”). On March 9, 2009, White Sands and Valentine appealed from the Sterling/Asfour costs order; that appeal is designated as case no. 1080673. This Court consolidated the two appeals for disposition by one opinion.

It is undisputed that a resolution in favor of White Sands of the substantive issues presented by the summary judgment will necessarily resolve the issues regarding the taxation of costs against White Sands and Valentine. Therefore, we first address the substantive aspect of case no. 1080312.

II. The Summary Judgment

“The role of this Court in reviewing a summary judgment is well established — we review a summary judgment de novo, ‘ “applying] the same standard of review as the trial court applied.” ’ ” Horn v. Fadal Machining Ctrs., LLC, 972 So.2d 63, 69 (Ala.2007) (quoting Stokes v. Ferguson, 952 So.2d 355, 357 (Ala.2006), quoting in turn Dow v. Alabama Democratic Party, 897 So.2d 1035, 1038 (Ala.2004)). “ ‘If the movant meets [its] burden of production by making a prima facie showing that [it] is entitled to a summary judgment, “then the burden shifts to the nonmovant to rebut the prima facie showing of the movant.” ’ ” Horn, 972 So.2d at 69 (quoting American Gen. Life & Accident Ins. Co. v. Underwood, 886 So.2d 807, 811-12 (Ala.2004), quoting in turn Lucas v. Alfa Mut. Ins. Co., 622 So.2d 907, 909 (Ala.1993)).

“ ‘ “[T]he manner in which the [summary-judgment] movant’s burden of production is met depends upon which party has the burden of proof ... at trial.” ’ Ex parte General Motors Corp., 769 So.2d 903, 909 (Ala.1999) (quoting Berner v. Caldwell, 543 So.2d 686, 691 (Ala.1989) (Houston, J., concurring specially)). If ... ‘ “the movant has the burden of proof at trial, the movant must support his motion with credible evidence, using any of the material specified in Rule 56(c), [Ala.] R. Civ. P. (‘pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits’).” ’ 769 So.2d at 909. ‘ “The movant’s proof must be such that he would be entitled to a directed verdict [now referred to as a judgment as a matter of law, see Rule 50, Ala. R. Civ. P.] if this evidence was not controverted at trial.” ’ Id. In other words, ‘when the movant has the burden [of proof at trial], its own submissions in support of the motion must entitle it to judgment as a matter of law.’ Albee Tomato, Inc. v. A.B. Shalom Produce Corp., 155 F.3d 612, 618 (2d Cir.1998) (emphasis added). See also Equal Employment Opportunity Comm’n v. Union Independiente de la Autoridad de Acueductos y Alcantarillados de Puerto Rico, 279 F.3d 49 (1st Cir.2002); Rushing v. Kansas City Southern Ry., 185 F.3d 496 (5th Cir.1999); Fontenot v. Upjohn Co., 780 F.2d 1190 (5th Cir.1986); Calderone v. United States, 799 F.2d 254 (6th Cir.1986).”

Denmark v. Mercantile Stores Co., 844 So.2d 1189, 1195 (Ala.2002). Moreover, we review the evidence in the light most favorable to the nonmovant. Wilson v. Brown, 496 So.2d 756, 758 (Ala.1986).

A. Elements of the Claim

“In order to overcome a defendant’s properly supported summary-judgment motion, the plaintiff bears the burden of presenting substantial evidence as to each disputed element of [its] claim.” Ex parte Harold L. Martin Distrib. Co., 769 So.2d 313, 314 (Ala.2000). The arguments of the parties reveal considerable confusion as to the elements of a cause of action for tortious interference with a business relationship.

According to the counterclaim defendants, White Sands

“must establish by substantial evidence the following:
“1. the existence of a business relation;
“2. the defendant’s knowledge of the business relation;
“3. intentional interference with the business relation;
“4. the absence of justification for the defendant’s interference;
“5. damage to [White Sands] as a result of the interference; and,
“6. fraud, force or coercion on the defendant’s part.”

PRS II’s brief, at 22-23. For these elements, PRS II cites Barber v. Business Products Center, Inc., 677 So.2d 223, 227 (Ala.1996), and Teitel v. Wal-Mart Stores, Inc., 287 F.Supp.2d 1268, 1279, 1282-83 (M.D.Ala.2003).

However, citing Parsons v. Aaron, 849 So.2d 932, 946 (Ala.2002), White Sands contends that justification for the defendant’s interference is an affirmative defense to be proven by the defendant. White Sands’ brief, at 24 n. 8. Moreover, citing Thomas v. Williams, 21 So.3d 1234 (Ala.Civ.App.2008), White Sands contends that “the requirement to prove fraud, force or coercion is not an element of the tort of intentional interference.” White Sands’ brief, at 39. Thus, as a preliminary matter, we must clarify Alabama law as to the elements of a claim alleging wrongful interference with a business relationship.

In Gross v. Lowder Realty Better Homes & Gardens, 494 So.2d 590 (Ala.1986), the progenitor of the modern rule in Alabama, this Court listed both justification and the absence of justification as requiring proof by the defendant and the plaintiff, respectively. 494 So.2d at 597 n. 3. For many years after Gross, this Court was similarly ambiguous as to the elements of the claim. The Court listed— seemingly at random — either four or five elements of the claim. Cases citing five elements made the “absence of justification” an element of the plaintiffs piima facie ease. See, e.g., Ex parte Awtrey Realty Co., 827 So.2d 104 (Ala.2001); Colonial Bank v. Patterson, 788 So.2d 134 (Ala.2000); Folmar & Assocs. LLP v. Holberg, 776 So.2d 112 (Ala.2000); Mutual Sav. Life Ins. Co. v. James River Corp. of Virginia, 716 So.2d 1172 (Ala.1998); Sevier Ins. Agency, Inc. v. Willis Corroon Corp. of Birmingham, 711 So.2d 995 (Ala.1998), overruled on other grounds, Ex parte Howell Eng’g & Surveying, Inc., 981 So.2d 413 (Ala.2006); Soap Co. v. Ecolab, Inc., 646 So.2d 1366 (Ala.1994); Underwood v. South Cent. Bell Tel. Co., 590 So.2d 170 (Ala.1991); Betts v. McDonald’s Corp., 567 So.2d 1252 (Ala.1990); and Valley Props., Inc. v. Stahan, 565 So.2d 571 (Ala.1990).

In theory, at least, the five-element scheme placed the burden on the plaintiff to produce evidence of the absence of justification for the wrongful interference in order to go forward with its case. See Andrew P. Campbell, Interference with Business Relations: the Unified Tort since Gross v. Lowder Realty, 50 Ala. Law. 86, 88 (1989) (“In subsequent decisions after Gross, the Alabama courts have tended to place the burden on the plaintiff to prove absence of justification.”). But see Creel v. Davis, 544 So.2d 145, 151 n. 3 (Ala.1989) (Maddox, J., concurring specially) (“Those decisions should not be read as shifting the burden of proof to the plaintiff, but should be read as holding that the defendant proved, as a matter of law, justification.”).

Simultaneously, the Court was describing the tort as comprising only four elements, thus omitting the absence of justification as an element of the tort. See, e.g., Serra Chevrolet, Inc. v. Edwards Chevrolet, Inc., 850 So.2d 259 (Ala.2002); Ex parte Alabama Dep’t of Transp., 764 So.2d 1263 (Ala.2000); Ex parte Henderson, 732 So.2d 295 (Ala.1999); Wehby v. Turpin, 710 So.2d 1243 (Ala.1998); Regram v. Hebding, 667 So.2d 696 (Ala.1995); McCluney v. Zap Prof l Photography, Inc., 663 So.2d 922 (Ala.1995); Spring Hill Lighting & Supply Co. v. Square D Co., 662 So.2d 1141 (Ala.1995); Bama Budweiser of Montgomery, Inc. v. Anheuser-Busch, Inc., 611 So.2d 238 (Ala.1992); Public Sys., Inc. v. Towry, 587 So.2d 969 (Ala.1991); Utah Foam Prods., Inc. v. Polytec, Inc., 584 So.2d 1345 (Ala.1991); Century 21 Academy Realty, Inc. v. Breland, 571 So.2d 296 (Ala.1990); Henderson v. Early, 555 So.2d 130 (Ala.1989); Williams v. A.L. Williams & Assocs., 555 So.2d 121 (Ala.1989); and Fossett v. Davis, 531 So.2d 849 (Ala.1988).

In more recent cases, however, this Court expressly departed from the curious position of placing the burden of the same proof on both the plaintiff and the defendant. In BellSouth Mobility, Inc. v. Cellulink, Inc., 814 So.2d 203 (Ala.2001), we stated clearly that the absence of justification was not an element of the plaintiffs prima facie case; rather, justification was an affirmative defense. 814 So.2d at 212 n. 5 (“ ‘[W]e recognize today that it is illogical to continue to list an absence of justification as one of the elements of the plaintiffs cause of action and then to place the burden on the defendant to disprove it.’ ” (quoting Breland, 571 So.2d at 298)). In Parsons v. Aaron, 849 So.2d at 946, we said: “We agree with the language quoted in BellSouth Mobility. We reiterate that justification for interference with contractual or business relations is an affirmative defense to be pleaded and proved by the defendant.” We quoted this language with approval in Waddell & Reed, Inc. v. United Investors Life Insurance Co., 875 So.2d 1143, 1153 (Ala.2003), and again, most recently, in Tom’s Foods, Inc. v. Carn, 896 So.2d 443, 454 (Ala.2004). Thus, we consider it now to be well settled that the absence of justification is no part of a plaintiffs prima facie case in proving wrongful interference with a business or contractual relationship. Justification is an affirmative defense to be pleaded and proved by the defendant.

It would be equally illogical to require the plaintiff, as a part of its prima facie case, to produce evidence of fraud, force, or coercion. This is so, because such conduct is subsumed by the “nature of the actor’s conduct,” which is one of the factors to be considered in determining whether the interference is justified as stated in Gross. In adopting Restatement (Second) of Torts § 767 (1979), pertaining to justification, the Court said:

“Whether a defendant’s interference is justified depends upon a balancing of the importance of the objective of the interference against the importance of the interest interfered with, taking into account the surrounding circumstances. Restatement (Second) of Torts § 767 (1979), and Comments. The restatement utilizes the term ‘improper’ to describe actionable conduct by a defendant. Non-justification is synonymous with ‘improper.’ If a defendant’s interference is unjustified under the circumstances of the case, it is improper. The converse is also true. Section 767 of the Restatement lists, and the Comments explain, several items that we consider to be among the important factors to consider in determining whether a defendant’s interference is justified:
“ ‘(a) the nature of the actor’s conduct,
“ ‘(b) the actor’s motive,
“ ‘(c) the interests of the other with which the actor’s conduct interferes,
“ ‘(d) the interests sought to be advanced by the actor,
“ ‘(e) the social interests in protecting the freedom of action of the actor and the contractual interests of the other,
“ ‘(f) the proximity or remoteness of the actor’s conduct to the interference, and
“ ‘(g) the relations between the parties.’
“Restatement (Second) of Torts § 767 (1979).”

494 So.2d at 597 n. B (hereinafter referred to as “the justification factors”).

Comment c to Restatement (Second) of Torts § 767 (1979) states, in pertinent part:

“Nature of actor’s conduct. The nature of the actor’s conduct is a chief factor in determining whether the conduct is improper or not, despite its harm to the other person. The variety of means by which the actor may cause the harm are stated in § 766, Comments ⅛ to n. Some of them, like fraud and physical violence, are tortious to the person immediately affected by them; others, like persuasion and offers of benefits, are not tortious to him. Under the same circumstances interference by some means is not improper while interference by other means is improper; and, likewise, the same means may be permissible under some circumstances while wrongful in others. The issue is not simply whether the actor is justified in causing the harm, but rather whether he is justified in causing it in the manner in which he does cause it. The propriety of the means is not, however, determined as a separate issue unrelated to the other factors. On the contrary, the propriety is determined in the light of all the factors present. Thus physical violence, fraudulent misrepresentation and threats of illegal conduct are ordinarily wrongful means and subject their user to liability even though he is free to accomplish the same result by more suitable means. ... The nature of the means is, however, only one factor in determining whether the interference is improper. Under some circumstances the interference is improper even though innocent means are employed.
“Physical violence. Threats of physical violence were the means employed in the very early instances of liability for intentional interference with economic relations; and interference hy physical violence is ordinarily improper. ... The issue is simply whether the actor induces the third person’s conduct or prevents the injured party’s performance of his own contract by putting him in fear of physical violence.
“Misrepresentations. Fraudulent misrepresentations are also ordinarily a wrongful means of interference and make an interference improper. A representation is fraudulent when, to the knowledge or belief of its utterer, it is false in the sense in which it is intended to be understood by its recipient. (See § 527). ... The tort of intentional interference ... overlaps other torts. But it is not coincident with them. One may be subject to liability for intentional interference even when his fraudulent representation is not of such a character as to subject him to liability for the other torts.”

(Emphasis added.)

Thus, the elements of the tort of wrongful interference with a business relationship do not include a showing of fraud, force, or coercion. Indeed, only two of our post-Gross cases have taken the illogical contrary position. See Barber v. Business Prods. Ctr., Inc., 677 So.2d 223 (Ala.1996), and Joe Cooper & Assocs., Inc. v. Central Life Assurance Co., 614 So.2d 982 (Ala.1992). Neither opinion, however, contains any discussion or analysis of the proposition that the species of improper conduct represented by fraud, force, or coercion is an element of a plaintiffs prima facie case. The only cases cited for that proposition in Joe Cooper are pre-Gross cases, 614 So.2d at 986-87, and Barber merely cited Joe Cooper, 677 So.2d at 227.

Because that proposition is contrary to the Restatement rule as adopted in Gross, Barber and Joe Cooper are, to that extent, overruled. Also overruled are cases cited above, namely, Ex parte Awtrey Realty Co.; Colonial Bank v. Patterson; Folmar & Assocs. LLP v. Holberg; Mutual Sav. Life Ins. Co. v. James River Corp.; Sevier Ins. Agency, Inc. v. Willis Comoon Corp.; Soap Co. v. Ecolab, Inc.; Underwood v. South Cent. Bell Tel. Co.; Betts v. McDonald’s Cotp.; Valley Props., Inc. v. Stahan; and Gross v. Lowder Realty Better Hom.es & Gardens, to the extent those cases list the absence of justification as an element of the plaintiffs prim,a facie case.

In the process of defining the tort of wrongful interference with a business relationship, we deem it prudent to reiterate that one of the elements is that the defendant be a stranger to the relationship. See Tom’s Foods, Inc. v. Carn, 896 So.2d at 454; Waddell & Reed, Inc. v. United Investors Life Ins. Co., 875 So.2d at 1153-56; Parsons v. Aaron, 849 So.2d at 946-47; and BellSouth Mobility, Inc. v. Cellulink, Inc., 814 So.2d at 212; see also Colonial Bank v. Patterson, 788 So.2d at 137-38. Thus, properly stated, the elements of the tort are (1) the existence of a protectible business relationship; (2) of which the defendant knew; (3) to which the defendant was a stranger; (4) with which the defendant intentionally interfered; and (5) damage. In its summary-judgment motion, PRS II challenged the sufficiency of White Sands’ evidence of the first, fourth, and fifth elements. We first address White Sands’ prima facie case against PRS II as it concerns those elements.

B. White Sands’ Burden — Prima, Facie Case Against PRS II

1. Evidence of a Business Relationship

White Sands argues that the evidence “conclusively establishes both an existing business relationship [and the] expectation of a future relationship,” White Sands’ brief, at 35, while PRS II contends that negotiations over the purchase of the five Langan lots had not reached “a level of maturity” sufficient to support an “interference claim [that] is cognizable.” PRS II’s brief, at 23.

In Alabama, “ ‘protection is appropriate against improper interference with reasonable expectancies of commercial relations even when an existing contract is lacking.’” Ex parte Alabama Dep’t of Transp., 764 So.2d at 1270 (citing Restatement (Second) of Torts § 766 cmt. c (1979)). Indeed, “[i]t is not necessary that the prospective relation be expected to be reduced to a formal, binding contract.” Restatement § 766B cmt. c. “It is the right to do business in a fair setting that is protected.” Utah Foam, 584 So.2d at 1353.

However, “greater protection is given to the interest in an existing contract than to the interest in acquiring prospective contractual relations.” Restatement § 767 cmt. j. The existence of a binding contract is one factor for consideration in the “determination of whether the actor’s conduct is improper.” Id. Thus, the inquiry in this tort is “which interests along the continuum of business dealings are protected.” Orrin K. Ames III, Tortious Interference with Business Relationships: The Changing Contours of this Commercial Tort, 35 Cumb. L.Rev. 317, 330 (2004-2005) (emphasis added). The question, in other words, is when has “an expectancy ... matured to the stage that it is deemed worthy of protection from interference.” Id. at 331.

Despite our holding in White Sands that the Valentine letter did not contain all the necessary elements of a contract for the effective conveyance of real estate, the relationship between White Sands and the Langan entities had progressed far along the continuum. The Valentine letter, which was signed by Jeff Valentine as the purchaser and initialed by Thomas J. Langan, Jr., as the seller, revealed a late-stage negotiation process for the purchase of real estate. It purported to be a “formal offer” to purchase five specifically identified lots. A base price of $85,000 was stated. It indicated agreement as to the disposition of a number of intricate details, including “environmental, wetlands delineation, archeological, beach mouse, and ... other issues.” White Sands, 998 So.2d at 1046. On May 18, 2004, the day after the date of the Valentine letter, Thomas J. Langan, Jr., sent Valentine a facsimile message explaining that he had that day paid a $2,500-per-lot assessment for water and sewer service on the five lots, and he invited Valentine to telephone him with any questions.

The relationship between White Sands and the Langan entities was further evidenced by a letter to Valentine from the Langans, dated October 11, 2004 (“the Langan letter”), which referred to the Valentine letter as “ ‘your option letter.’ ” 998 So.2d at 1047. The Langan letter advised White Sands that, following installation of “the roadways” contemplated in the Valentine letter, White Sands would “need to close on the lots.” 998 So.2d at 1047 (emphasis added).

In this Court, the Langan entities characterized the Valentine letter as a “ ‘letter of intent.’” 998 So.2d at 1051. Such a characterization buttresses White Sands’ argument that it was engaged with the Langan entities “in an ongoing business relationship” and that the parties had negotiated a “prospective contract.” White Sands’ brief, at 26-27. Indeed, “letters of intent may be binding, [and] authorities are quick to warn parties of the risks involved with their use.” Gurley v. King, 183 S.W.3d 30, 36 (Tenn.Ct.App.2005) (emphasis added). See Andrew R. Klein, Devil’s Advocate: Salvaging the Letter of Intent, 37 Emory L.J. 139, 143 (1988) (“A well-drafted letter of intent should explicitly state that the parties do not intend to be bound.”).

On October 21, 2004, in response to the Langan letter, White Sands sent the Lan-gan entities a $10,000 “deposit” on the five Langan lots. By affidavit, Chris Rolison, the “managing member of White Sands,” testified:

“In conjunction with purchasing the lots, White Sands agreed to be involved in the development of the property and agreed to build structures on the lots as soon as feasible to help market the entirety of the Langan property. Based upon this relationship, White Sands decided to devote its full attention to Pilot Town and to not seek any other business at that time. I had complete expectation that the Langans would complete their business deal with White Sands, sell the lots to White Sands, and that White Sands needed to devote its full attention to this project.”

However, on February 11, 2005, after accepting PRS IPs offer to purchase Pilot Town in its entirety, the Langan entities returned White Sands’ deposit, stating that they had “decided not to pursue the subdivision.” 998 So.2d at 1048.

These facts sufficiently evidence a relationship based on a reasonable expectation of a commercial benefit. Consequently, White Sands carried its burden of production as to the first element of its claim.

2. Interference with the Relationship

White Sands contends that PRS II places undue reliance on this Court’s holding that the Valentine letter was unenforceable and on the statement that the Langan entities had the “unbridled right to determine the nature of [their] performance.” White Sands, 998 So.2d at 1052. According to White Sands, this position is essentially a rehash of the one-dimensional argument this Court rejected in White Sands, namely, that there was no contract, thus, ipso facto, no tort. We agree.

In fact, there is substantial evidence of interference. In White Sands, we quoted an e-mail from Morris to Sterling that stated, in pertinent part:

“ ‘Tommy [Langan] received a very hostile lawyer letter from Chris [Rolison] and his partner regarding the five lots on which they ([Rolison] and partner) had conditionally entered into an understanding to acquire said lots on a very advantageous basis a little while ago. I have read the documents carefully and am very comfortable with the fact that there were so many conditions which we unilaterally imposed upon Tommy and his family regarding condition of land, subdivision, achievement along with subdivision restrictions, and other items (all which were exclusively in [Ro-lison] and partner’s domain) to accept or walk away from the deal — none of which had been accomplished by Tommy or his family at the time of, what I consider, a non-binding statement of facts and understanding to try to agree to go forward.
“ ‘In my opinion, the Langans have total discretion to make the subdivision and to create whatever conditions they want and, obviously, this would not be considered a one-way option for [Rolison] and his partner to cherry-pick their visions and get in or out. In my mind, the understanding has so much ambiguity in open trading yet to go that it never roles [sic] through level specificity. Therefore, it is not binding and more an expression of intent. Now, all of a sudden since we have closed, mysteriously, this guy and his partner and lawyer surface, acting as if there was a binding contract with all of the facts fixed and no open-ended variables, with demands of a closing and threats to sue. You have repeatedly told Tommy, and several times told me, that you can handle Mr. [Roli-son] and his partner and move him into another direction, as it makes no sense for a guy, who turns out to have very little pull with Volkert [ & Associates, Inc., an engineering firm hired to perform services for improvements to Pilot Town], very little standing in the community, and has provided no real palpable service or benefit, to somehow potentially hijack a $500 million project, with five misapplied, misdesigned, mismark-eted, and misplaced, out of context units, with a tail to wag the proverbial dog of our master planned project. It is demonstrably not in your interest to allow this to happen and you have repeatedly reflected and represented to Tommy and to me that you can control the situation. I think it would be a show of good faith to intervene, prior to an unnecessary lawsuit — which, in my opinion, this gentleman and his partner will lose— and move this forward so we don’t have this level of contention with a bunch of third parties .... I think this would avoid messy litigation, which, of course, none of us are afraid [of] and will take in stride, but is truly not necessary for anyone’s relationship or for the Venture on these deals we do have.’ ”

998 So.2d at 1048-49 (some emphasis added).

The e-mail evidences interference with various aspects of the relationship between White Sands and the Langan entities. Moreover, Morris conceded that he “ ‘put pressure on’ the Langans to include in the sale of Pilot Town some or all of the [five lots],” id. at 1047, to the destruction of the relationship between White Sands and the Langan entities. Also, Michael Langan, a member of two of the Langan entities, testified that, as far as he knew, the only reason the Langan entities-White Sands transaction did not close as anticipated was because the Langan entities accepted PRS II’s offer to buy Pilot Town. White Sands has thus carried its burden as to this element.

3. Damage

In Alabama, one who wrongfully interferes with the business relationship of another is subject to liability for “(1) the pecuniary loss of the benefits of the ... relation; (2) consequential losses for which the interference is a legal cause; ... (8) emotional distress or actual harm to reputation if either is reasonably to be expected to result from the interference,” KW Plastics v. United States Can Co., 131 F.Supp.2d 1265, 1268 (M.D.Ala.2001); and (4) punitive damages. Restatement (Second) of Torts § 774A cmt. a (1979). White Sands need not “establish that ‘but for’ the interference [it] would have been awarded [a] contract.” Utah Foam, 584 So.2d at 1353. “The damage resulting from interference can occur regardless of the fact that the [plaintiff] would not have been awarded the contract, and it can also take other forms.” Id.

In his e-mail to Sterling, Morris acknowledged that the Valentine letter evidenced an understanding for the acquisition by White Sands of the five Langan lots on a basis “very advantageous” to White Sands. In addition, Rolison testified that “[d]ue to the loss of business relation, White Sands lost all investment opportunities from 2004 to 2005, which just preceded the decline of the real estate market.” He also stated that “White Sands had planned to build residential structures on the lots and had an expectation to make at least 20% profit on each lot” and that “White Sands’ business and reputation [have] been damaged greatly on account of the” loss of the business relationship with the Langan entities. White Sands thus carried its burden as to the element of damage.

C. Justification — PRS IPs Burden

White Sands contends that “justification is a question for the jury, and summary judgment could not be appropriate [on that basis] under the facts of this case.” White Sands’ brief, at 41. More specifically, White Sands argues that PRS II’s actions cannot be justified as “legitimate business competition.” White Sands’ reply brief, at 22.

Because justification is an affirmative defense, PRS II bore the burden of “presenting] evidence in the nature of ‘the material specified in Rule 56(c), [Ala.] R. Civ. P.,’ such as depositions and affidavits, that would entitle it to a judgment as a matter of law ‘if this evidence was not controverted at trial.’ ” Jones-Lowe Co. v. Southern Land & Exploration Co., 18 So.3d 362, 367 (Ala.2009) (quoting Denmark v. Mercantile Stores Co., 844 So.2d at 1195) (emphasis omitted). In other words, PRS II had to “affirmatively show that it is entitled to a judgment as a matter of law on its [affirmative defense of justification].” Jones-Lowe Co., 18 So.3d at 369. Justification is generally a jury question. Specialty Container Mfg., Inc. v. Rusken Packaging, Inc., 572 So.2d 403, 408 (Ala.1990); Gross, 494 So.2d at 597 n. 3.

PRS II neither discusses nor cites any of the justification factors set forth in Restatement § 767 and adopted in Gross. Instead, it relies entirely on the so-called “competitor’s privilege defense,” Restatement (Second) of Torts § 768 (1979), which this Court adopted in Soap Co. v. Ecolab, Inc., 646 So.2d at 1370. However, the justification factors are not so easily dismissed.

Under the competitor’s privilege defense:

“ ‘One who intentionally causes a third person not to enter into a prospective contractual relation with another who is his competitor or not to continue in an existing contract terminable at will does not interfere improperly with the other’s relation if
“ ‘(a) the relation concerns a matter involved in the competition between the actor and the other, and
“‘(b) the actor does not employ wrongful means and
“ ‘(c) his action does not create or continue an unlawful restraint of trade and
“ ‘(d) his purpose is at least in part to advance his interest in competing with the other.’ ”

646 So.2d at 1369 (quoting Restatement § 768) (emphasis added).

“ ‘The rule stated in [Restatement § 768] is a special application of the factors determining whether an interference is improper or not, as stated in § 767.’ ” 646 So.2d at 1369 (quoting Restatement § 768 cmt. b) (emphasis added). In other words, the competitor’s privilege defense is merely a “special application” of the justification factors considered in determining whether the defendant’s conduct is not justified or improper. It directly involves at least six of those seven factors, namely, (1) the nature of the defendant’s conduct, (2) the defendant’s motive, (3) the interests with which the defendant’s conduct interferes, (4) the interests sought to be advanced by the defendant, (5) the respective social interests affected, and (6) the relations between the parties.

White Sands challenges the contention that it was a competitor of PRS II’s. Assuming, without deciding, that PRS II and White Sands are competitors, “chief’ among the factors to be considered in this affirmative defense is “the nature of the defendant’s conduct.” Restatement § 767 cmt. c. Although “ ‘competitors and their allies are not necessarily [expected to be] gentlemen,’” 646 So.2d at 1370 (quoting Great Escape, Inc. v. Union City Body Co., 791 F.2d 532 543 (7th Cir.1986)), “[t]here is no privilege for self-enrichment by devious and improper means.” Kinco, Inc. v. Schueck Steel, Inc., 283 Ark. 72, 77, 671 S.W.2d 178,181 (1984).

In this case, Rolison testified, in pertinent part:

“Later in 2004, I was at a planning meeting for the development of Pilot Town, when I noticed a proposal that provided for condominiums to be built on the entire property, inclusive of the lots covered in the [Valentine letter]. This was a departure from any prior plans. I immediately asked Peter Sterling about this, and, in response, Mr. Sterling informed me that the plan was currently just a proposal, but that if they (PRS II) decided to continue with that plan, White Sands would be taken care of. Sterling made multiple representations to me that should anything happen, White Sands would be compensated for its loss in regard to Pilot Town. Based upon Sterling’s assurances, I believed that White Sands’ business relation with the Langans was not going to be interfered with.
“However, by the end of 2004 and the beginning of 2005, it became increasingly difficult to get in touch with either Sterling or Asfour. I left telephone messages and emails, but I was left out of meetings and generally excluded from the progress of the development. Then, suddenly, in February ... 2005, White Sands received a letter from the Lan-gans stating that they would not complete the business transaction for the [five Langan lots].”

White Sands contends that “Sterling’s intentional misleading assurances to lull White Sands into inaction were a prime example of fraud.” White Sands’ reply brief, at 23. Viewing the evidence in a light more favorable to White Sands, these “assurances” resemble conduct at issue in Utah Foam and Kinco.

In Utah Foam, this Court affirmed a judgment entered on a jury verdict for Polytec, Inc., in Polytec’s counterclaim against Utah Foam Products, Inc., for (1) misrepresentation and (2) tortious interference with Polytec’s roofing business. 584 So.2d at 1347-48. The aborted business relationship was between Polytec and Teledyne Continental Motors (“Teledyne”) for the installation by Polytec of a urethane-foam roof on a building owned by the City of Mobile and leased to Teledyne. Utah Foam, 439 So.2d at 684-85. The same allegedly wrongful conduct was central to both the misrepresentation and the interference claims. Essentially, Polytec alleged that Utah Foam, by its actions, induced Polytec to believe that Utah Foam “would do nothing to prevent Polytec from being awarded the contract if a foam roof were to be used by Teledyne.” Utah Foam, 584 So.2d at 1351 (emphasis added). According to Polytec, “the conduct of [Utah Foam] induced them to act to their detriment in putting forth substantial effort and time in formulating data on foam roofing systems, knowing full well that [it] intended to prevent Polytec from being awarded the contract.” Id.

Although the Court noted the absence of evidence indicating that Utah Foam had “verbally misrepresented, or for that matter made any verbal representation of, any facts as to the award of the contract,” it explained that “[t]he statements and conduct of the parties as a whole ... [were] such that a jury could reasonably find that Utah Foam ... [had] led Polytec to believe that [it] would do nothing to prevent its obtaining a contract with Teledyne.” 584 So.2d at 1351. In the context of the interference claim, the Court said:

“In the present case, a jury could conclude that, while outwardly operating in a role of assisting Polytec in making its presentations in an attempt to secure the contract with Teledyne, Utah Foam actually engaged in tactics behind Poly-tec’s back to prevent Polytec from getting the contract, in order to secure the contract for itself. ... Utah Foam continually gave the outward appearance of playing a role of assistance toward Poly-tec, but the jury could conclude that Utah Foam at every opportunity sought to turn Teledyne away from Polytec and to secure the job for itself. ...
“Regardless of the fact that Teledyne maintains that it would not have awarded the contract to Polytec, Utah Foam’s conduct thwarted Polytec’s ability to adequately present its products and services and virtually eliminated any remaining possibility that Polytec could have been awarded the contract. Thus, we conclude that the plaintiffs presented sufficient evidence for the jury to find that Utah Foam tortiously interfered with Polytec’s business relationship and that Polytec was damaged as a result of that interference.”

584 So.2d at 1353. See also Kinco, 283 Ark. at 77, 671 S.W.2d at 181 (competitor’s privilege defense did not shield the defendant from liability, where the defendant, among other things, gained information about prices of the plaintiffs product by “concealing] from [the plaintiff] the fact that it was competing against him”).

In this case, Rolison’s affidavit testimony and Morris’s e-mail suggest that there was concealment, similar to that in Utah Foam and Kinco, as to PRS II’s true intentions toward the five Langan lots and the disputed business relationship between White Sands and the Langan entities. In other words, there was evidence indicating that PRS II concealed the fact that it was a competitor of White Sands for the Lan-gan lots. “[V]iewing the statements and the conduct of the parties as a whole,” Utah Foam, 584 So.2d at 1351, it could be inferred that PRS II intentionally “lull[ed] White Sands into inaction,” White Sands’ reply brief, at 23, delaying efforts that could have firmed up the negotiations and dispelled critical uncertainties regarding the proposed transaction, thus resulting in an enforceable contract for the purchase by White Sands of the five Langan lots. Consequently, PRS II has failed to carry its burden of showing that it is entitled to a judgment as a matter of law on its affirmative defense of justification.

The trial court erred, therefore, in entering a summary judgment in favor of PRS II. That judgment is reversed, and the case is remanded for further proceedings against PRS II.

D. Prima Facie Case Against Sterling and Asfour

Sterling and Asfour also jointly filed a “renewed motion for summary judgment.” However, they filed no supporting, evidentiary material. As a corollary, although their brief contains a section entitled “narrative summary of undisputed facts,” the brief contains not a single citation to any evidentiary material for factual support as required by Rule 56, Ala. R. Civ. P.:

“Rule 56(c) ... requires that the mov-ant’s narrative summary of facts “‘include specific references to pleadings, portions of discovery materials, or affidavits for the court to rely on in determining whether’ ” a summary judgment is proper. Horn v. Fadal Machining Ctrs., LLC, 972 So.2d 63, 69-70 (Ala.2007) (quoting Northwest Florida Truss, Inc. v. Baldwin County Comm’n, 782 So.2d 274, 277 (Ala.2000)). This requirement is not satisfied if the materials on which the movant purports to rely have not been filed with the court.
“ ‘ “[T]he party moving for summary judgment has the burden to show that he is entitled to judgment under established principles; and if he does not discharge that burden, then he is not entitled to judgment. No [response] to an insufficient showing is required.” Horn, 972 So.2d at 69 (quoting Ray v. Midfield Park, Inc., 293 Ala. 609, 612, 308 So.2d 686, 688 (1975)). Otherwise stated, ‘[a] motion that does not comply with Rule 56(c) does not require a response ... from the nonmovant,’ and a judgment may not be entered on such a motion even in the absence of a response from the nonmovant. Horn, 972 So.2d at 70.”

Jones-Lowe Co., 18 So.3d at 367.

Moreover, although Sterling and Asfour incorporate by reference the arguments set forth in PRS II’s renewed summary-judgment motion, that motion does not refer to Sterling or Asfour. Sterling and Asfour have not, therefore, met their initial burden by reliance on the filings of PRS II. For these reasons, the burden never shifted to White Sands to oppose the motion filed by Sterling and Asfour. Because the trial court was not authorized to enter a judgment on their noncompliant motion and brief, the judgment in favor of Sterling and Asfour is, likewise, reversed, and the case is remanded for further proceedings against Sterling and Asfour.

III. Costs

The only issue presented in case no. 1080673 is the propriety of the Sterling/Asfour costs order. Costs are generally allowed “to the prevailing party” in civil litigation. Ala. R. Civ. P. 54(d). “ ‘The assessment of costs is ... incidental to the [final] judgment ....’” Ford v. Jefferson County, 989 So.2d 542, 545 (Ala.Civ.App.2008)(quoting Littleton v. Gold Kist, Inc., 480 So.2d 1236, 1238 (Ala.Civ.App.1985)). Because we are reversing the summary judgment for PRS II, Sterling, and Asfour, we must vacate the PRS II costs order and the Sterling/Asfour costs order.

IV. Conclusion

In summary, the trial court erred in entering a summary judgment for PRS II, Sterling, and Asfour. That judgment is, therefore, reversed. Consequently, the trial court’s orders taxing costs against White Sands and Valentine are vacated. This case is remanded for further proceedings consistent with this opinion.

1080312 — REVERSED AND REMANDED.

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

MURDOCK, J., concurs in the result.

1080673 — ORDER VACATED; CASE REMANDED.

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

      . Valentine is not involved in the appeal from the summary judgment.

      . This argument speaks more appropriately to the issues of whether a protectible interest exists and to justification than to the question whether there was, in fact, interference.


text:
    Ex parte State of Alabama. (In re STATE of Alabama v. James Bonard FOWLER).
    1081021.
    Supreme Court of Alabama.
    Sept. 4, 2009.

      Michael W. Jackson, dist. atty., Selma, for petitioner.
    George L. Beck, Jr., and Terrie S. Biggs of Capell & Howard, P.C., Montgomery, for respondent James Bonard Fowler.
    J. Doyle Fuller and Susan G. Copeland of Law Office of J. Doyle Fuller, Montgomery, for respondent Judge Thomas ap R. Jones.
   STUART, Justice.

The State of Alabama petitions this Court for a writ of mandamus directing the Perry Circuit Court to vacate its order of September 23, 2009, directing the State to “provide to [James Bonard Fowler] a witness list of possible witnesses the State intends to call at trial, together with a summary of the testimony of the witnesses.” We grant the petition and issue the writ.

Facts

On February 18, 1965, a group of Alabama State Troopers, including the defendant in this case, James Bonard Fowler, assisted local city and county law-enforcement officers in dispersing an assembly of persons protesting the jailing of a civil-rights worker in Marion. During the confrontation, Fowler shot Jimmie Lee Jackson; Jackson died a few days later.

In the fall of 1965 a Perry County grand jury and a federal grand jury, after hearing testimony concerning Jackson’s shooting, returned “no bills” in the case, thus declining to indict Fowler. In January 2005 or soon thereafter the Jackson “cold case” was reopened, and in May 2007 a Perry County grand jury indicted Fowler for Jackson’s murder.

In preparation for trial, Fowler has filed numerous discovery requests and motions. In his motion to dismiss on the grounds of preindictment delay, Fowler raised due-process concerns over the delay between the alleged offense and the date of the indictment (some 42 years). On June 6, 2008, to assist in determining the validity of these concerns and yet not violate the sanctity of the grand-jury proceeding, the trial court ordered the State to produce for in camera inspection, the following:

“1. For all persons presently known to the district attorney’s office to have personal knowledge of any facts relevant to this prosecution, but who were unknown to the State prior to January 15, 2005, their names and addresses and a copy of all written and recorded materials reciting or memorializing any of these facts communicated to the State since January 15, 2005.”

To comply with the order, the State provided the trial court with a document entitled “District Attorney Michael W. Jackson’s brief notes on Grand Jury testimony on Jimmie Lee Jackson’s death investigation and other newly discovered evidence.” The list contained the names of six individuals and included a brief description of their testimony. The State also submitted a newspaper article for the trial court’s consideration.

On September 19, 2008, the trial court conducted a hearing at which the State’s compliance with its June 6, 2008, order was discussed. On September 29, 2008, the trial court issued the following order:

“The State of Alabama is ordered to provide to [Fowler] any and all statements in its possession of any and all witnesses the State intends to call at the trial of this case, and is further ordered to provide the defendant, a witness list of possible witnesses the State intends to call at the trial of this case, together with a summary of the testimony of the witnesses.
“The State was ordered on June 6, 2008, to provide to the Court for in camera inspection, information in the possession of the State .... The State failed to adequately comply with the Court’s order ....
“Given the extraordinary nature of this case, that two separate Grand Juries returned ‘No Bills,’ and the delay in prosecution since the shooting on February 18, 1965, the State shall be required to provide [Fowler] any and all newly discovered evidence in its possession which has been obtained since January 15, 2005.”

At the hearing the trial court explained the reason for the above order, stating:

“I want the record to be very clear that [the above order] was precipitated by the lack of response from the district attorney’s office in response to my order. And I had given the district attorney’s office a full 30 days in my order to respond to my request for an in camera inspection. And on the 30th day I was given a one-page summary of six witnesses and a magazine article or a newspaper article.”

The State moved the trial court to vacate its order. The trial court denied the motion.

The State then petitioned the Alabama Court of Criminal Appeals for a writ of mandamus ordering the trial court to vacate its order directing the State to disclose to Fowler its witness list and a summary of the testimony of the witnesses. The Alabama Court of Criminal Appeals denied the petition in an order, citing Rule 16.5, Ala. R.Crim. P., and Ex parte King, 23 So.3d 77 (Ala.2009). State v. Fowler (No. CR-07-2281, April 30, 2009), — So.3d-(Ala.Crim.App.2009)(table).

The State now petitions this Court for a writ of mandamus directing the Pei'ry Circuit Court to vacate its discovery order insofar as it requires the State to “provide [Fowler] a witness list of possible witnesses the State intends to call at the trial of this case, together with a summary of the testimony of the witnesses.”

Standard of Review

“ ‘ “The writ of mandamus is a drastic and extraordinary writ, to be ‘issued only when there is: 1) a clear legal right in the petitioner to the order sought; 2) an imperative duty upon the respondent to perform, accompanied by a refusal to do so; 3) the lack of another adequate remedy; and 4) properly invoked jurisdiction of the court.’ Ex parte United Serv. Stations, Inc., 628 So.2d 501, 503 (Ala.1993); see also Ex parte Ziglar, 669 So.2d 133, 134 (Ala.1995).” Ex parte Carter, [807 So.2d 534] at 536 [ (Ala. 2001) ].’
“Ex parte McWilliams, 812 So.2d 318, 321 (Ala.2001). ‘A petition for a writ of mandamus is the appropriate vehicle for challenging a trial court’s ruling on a discovery motion.’ Ex parte Steiner, 730 So.2d 599, 600 (Ala.1998).”

Ex parte Perkins 941 So.2d 242, 245 (Ala.2006). A writ of mandamus will not issue to compel a trial court to change its discovery order unless the appellate court concludes, based on all the facts that were before the trial court, that in the discovery order the trial court clearly exceeded the scope of its discretion. Ex parte Fuller, 600 So.2d 214 (Ala.1992).

Discussion

The State contends that it has a clear legal right to the relief it seeks because, it says, the trial court exceeded the scope of its discretion by ordering the State to produce for Fowler its witness list for trial and a summary of the testimony of the witnesses. According to the State, witness lists and summaries of witness testimony are excluded from discovery by the defendant. See Rule 16, Ala. R.Crim. P.

Before we address the merits of the State’s argument, we must first determine whether the State is entitled to mandamus review of the trial court’s discovery order in this case, which, as discussed below, was issued to sanction the State for not complying with a prior discovery order. In Ex parte King, supra, this Court addressed whether the State was entitled to seek mandamus review of a trial court’s pretrial denial of the State’s motion in limine. In Ex parte King, the State moved in limine to bar King from admitting at trial evidence that it considered irrelevant and confusing. The trial court denied the State’s motion. The State then petitioned the Court of Criminal Appeals for a writ of mandamus directing the trial court to vacate its order denying the State’s motion in limine and to enter an order granting it. The Court of Criminal Appeals issued the writ. State v. King, 23 So.3d 72 (Ala.Crim.App.2008). King then petitioned this Court for a writ of mandamus directing the Court of Criminal Appeals to vacate its order. We held that even though the trial court’s order denying the State’s motion in limine was not an appealable order the State was not entitled to mandamus relief, stating:

“ ‘The Court of Criminal Appeals has authority to issue such remedial and original writs as are necessary to give it a general superintendence and control of the circuit courts in criminal matters, over which it has exclusive appellate jurisdiction.’ Ex parte Nice, 407 So.2d 874, 876 (Ala.1981). However, ‘[mjanda-mus cannot be used as a substitute for appeal, when no appeal is authorized by law or court rule .... ’ Nice, 407 So.2d at 879 (emphasis omitted). Instead, mandamus ‘is appropriate in exceptional circumstances which amount to judicial usurpation of power.’ Nice, 407 So.2d at 878 (emphasis omitted). Moreover, ‘mandamus can be used to prevent a gross disruption in the administration of criminal justice.’ Nice, 407 So.2d at 879 (emphasis omitted). Thus, when the trial court has acted without lawful authority, the State has been afforded mandamus relief. See, e.g., State v. Blane, 985 So.2d 384 (Ala.2007)(directing circuit court to vacate order expunging criminal record); D.B.Y. v. State, 910 So.2d 820 (Ala.Crim.App.2005)(directing trial court to reinstate juvenile’s probation and direct that juvenile undergo sexual-offender risk assessment before being released from probation).
“King argues that the Court of Criminal Appeals, by granting the State’s petition for a writ of mandamus, ‘has granted to the State ... the ability to file what amounts to an interlocutory appeal under the guise of mandamus relief.’ King’s petition, at 4. On the other hand, the State argues that it was entitled to the writ of mandamus, because, according to the State, the trial court’s denial of its motion in limine ‘presents a gross disruption in the administration of criminal justice that justified the appellate court’s exercise of its supervisory authority.’ State’s brief, at 15. We agree with King.
“It is beyond cavil that the trial court acts within its lawful authority in deciding issues concerning the admissibility of evidence. Indeed, ‘[w]e review issues concerning the admission of evidence [only] to determine whether the trial court exceeded its discretion.’ Ex parte Key, 890 So.2d 1056, 1059 (Ala.2003). Obviously, ‘simply because an order may have been erroneous does not mean that an inferior court lacked the power to enter it.’ Nice, 407 So.2d at 878. Consequently, ‘circumstances involving alleged errors of judgment, or errors in the exercise of judicial discretion, [do] not constitute grounds for invoking supervisory mandamus.’ Nice, 407 So.2d at 882.
“According to the State, if the trial court allows the jury to consider the evidence at issue, there will be ‘a gross disruption in the administration of criminal justice.’ State’s brief, at 15. Although the trial court denied the State’s motion in limine, ‘ “ ‘the material against which the objection has been made has not yet been heard by the jury and may never be heard by them.”” Parks v. State, 587 So.2d 1012, 1015 (Ala.1991)(quoting White v. State, 527 So.2d 1349, 1350 (Ala.Crim.App.1988), quoting in turn Brooks v. State, 443 So.2d 1301, 1303 (Ala.Crim.App.1983)). If the trial court allows the jury to consider the evidence the State seeks to keep out, it will be acting within its lawful authority, and the State will have no right of appellate review. Such an outcome would reflect the ordinary and proper administration of criminal justice, not a disruption thereof.”

Ex parte King, 23 So.3d at 79-80.

Like the State in Ex parte King, the State in this case is not entitled to appeal the trial court’s order. Additionally, just as the trial court in Ex parte King acted within its lawful authority in deciding admissibility-of-evidence issues, the trial court in this case acted within its lawful authority in resolving discovery issues. Ex parte Harwell, 639 So.2d 1335, 1336 (Ala.1993)(“Discovery matters are within the sound discretion of the trial court, and this Court will not reverse a trial court’s rulings on discovery issues unless there has been a clear abuse of discretion.”). However, unlike Ex parte King, in which the trial court’s determination with regard to the admissibility of evidence did not present “a gross disruption of the administration of criminal justice” or judicial usurpation of the executive branch’s power, here the trial court’s order requiring the State to produce its witness list for trial and a summary of each witness’s testimony will result in a gross disruption in the administration of justice. Indeed, this Court has recognized the crucial role discovery plays in the administration of justice and has held that a trial court’s decisions resolving discovery matters may be challenged by the State in a petition for a writ of mandamus. See State v. Isbell, 985 So.2d 446 (Ala.2007)(holding the trial court exceeded its discretion in ordering the State to produce certain documents and issued a writ of mandamus directing the trial court to vacate its pretrial order requiring the State to produce various documents).

Additionally, this case provides an example of the acknowledgment in the law of the role of discovery in the administration of justice. The Alabama Rules of Criminal Procedure recognize the importance of the witness list to the prosecution of a case and specifically provide that that information is not discoverable by a defendant. Rule 16.1, Ala. R.Crim. P., provides, in pertinent part:

“(c) Documents and Tangible Objects. Upon written request of the defendant, the prosecutor shall, within fourteen (14) days after the request has been filed in court as required by Rule 16.4(c), or within such shorter or longer period as may be ordered by the court, on motion, for good cause shown, permit the defendant to analyze, inspect, and copy or photograph books, papers, documents, photographs, tangible objects, controlled substances, buildings or places, or portions of any of these things, which are within the possession, custody, or control of the state/municipality and:
“(1) Which are material to the preparation of defendant’s defense; provided, however, that the defendant shall not be permitted to discover or to inspect reports, memoranda, -witness lists, or other internal state/municipality documents made by the prosecutor or the prosecutor’s agents, or by law enforcement agents in connection with the investigation or prosecution of the case, or statements made by state/municipality witnesses;
“(e) Information Not Discoverable.
... [T]he discovery or inspection of reports, memoranda, witness lists, or other internal state/municipality documents made by the prosecutor or the prosecutor’s agents, or by law enforcement agents, in connection with the investigation or prosecution of the case, or of statements made by state/municipaMy witnesses or prospective state/municipality witnesses, is not authorized.”

(Emphasis added.)

We recognize that the trial court did not order the discovery of the State’s witness list for trial and a summary of the testimony of the witnesses in response to a request made by Fowler. The materials before us clearly establish that the trial court’s order that the State produce its witness list for trial and a summary of the testimony of the witnesses was issued as a sanction for the State’s failure to comply with a prior discovery order.

Rule 16.5, Ala. R.Crim. P., states:
“If at any time during the course of the proceedings it is brought to the attention of the court that a party has failed to comply with this rule or with an order issued pursuant to this rule, the court may order such party to permit the discovery or inspection; may grant a continuance if requested by the aggrieved party; may prohibit the party from introducing evidence not disclosed; or may enter such other order as the court deems just under the circumstances. The court may specify the time, place, and manner of making the discovery and inspection and may prescribe such terms and conditions as are just.”

However, the fact that the order was issued pursuant to Rule 16.5, Ala. R.Crim. P., does not negate the fact that it ordered the production of discovery and that it impacted the administration of criminal justice. Therefore, the State is entitled to mandamus review of this discovery issue.

We now address the merits: Whether the trial court exceeded the scope of its discretion in ordering the State to produce its witness list and a summary of each witness’s testimony. The trial court has filed an answer to the State’s petition. In its answer, the trial court admits that the production of the State’s witness list for trial and a summary of the testimony of the witnesses was ordered as a sanction, under Rule 16.5, Ala. R.Crim. P., for the State’s failure to comply with the trial court’s June 6, 2008, order. The trial court explains:

“When employing the sanction chosen by the [trial court] in this case, the [trial court] was well aware that it ‘should not impose a sanction which is harsher than necessary to accomplish the goals of the discovery rules.’ McCrory [v. State], 505 So.2d [1272,] 1279 [ (Ala.Crim.App.1996) ]. The [trial court] did not dismiss the case nor forbid the State from using any evidence or witnesses it has at trial. The [trial court], as a sanction for not complying with the [trial court’s] June 6, 2008, order, merely required the State to produce to Fowler statements in its possession, a list of the State’s witnesses and a summary of their expected testimony and any newly discovered evidence in the State’s possession. The [trial court] believed that this remedy was the least harsh sanction possible and that pursuant to the discretion granted in Rule 16.5, Ala. R.Crim. P., the September 29, 2008, order was ‘just under the circumstances.’ Because of the unique nature of this case, the [trial court’s] action was not ‘unreasonable, arbitrary or unconscionable.’ ”

The trial court further states:

“Had this case been tried in 1965 when the alleged crime occurred, it would have been a capital case. However, because of the United States Supreme Court’s decision in Furman v. Georgia, 408 U.S. 238, 92 S.Ct. 2726, 33 L.Ed.2d 346 (1972), Fowler can no longer receive the death penalty. However, this circumstance does not diminish the uniqueness of this case or the seriousness of the offense with which Fowler is charged and the fact that he was charged some 42 years after the offense occurred and after most of the critical witnesses had died and much of the critical evidence had been destroyed. Rule 16.1(f), Ala. R.Crim. P., provides that ‘[n]othing in this Rule 16.1 shall be construed to limit the discovery of exculpatory material or other material to which a defendant is entitled under constitutional provisions or other provisions of law.’ The commentary to the rule recognized the trend throughout the country toward more extensive discovery in criminal cases ‘to assure that justice be done.’
“Because of the uniqueness of this particular case and the due process concerns of [the trial court, the trial court] certainly did not abuse [its] discretion by entering the September 29, 2008, order directing the State to produce certain documents to Fowler as a sanction for its failure to comply with the Court’s June 6, 2008, order. Further, even if the [trial court] had not entered the September 29, 2008, order as a sanction, the [trial court] would not have abused its discretion by entering the September 29, 2008, discovery order based on the [trial court’s] inherent power to compel discovery based on the concerns of the [trial court] that a fair trial be conducted in the case below.”

Initially, we note that “[t]here is no general constitutional right to discovery in a criminal case ...; ... ‘the Due Process Clause has little to say regarding the amount of discovery which the parties must be afforded....’” Weatherford v. Bursey, 429 U.S. 545, 559, 97 S.Ct. 837, 51 L.Ed.2d 30 (1977) (quoting Wardius v. Oregon, 412 U.S. 470, 474, 93 S.Ct. 2208, 37 L.Ed.2d 82 (1973)). This Court views with disfavor any failure by a party to comply with Rule 16, Ala. R.Crim. P., and we recognize that a trial court has broad discretion in imposing sanctions on a party who fails to comply with the trial court’s discovery order. The sanction, however, should not be harsher than necessary to satisfy the discovery rules. McCrory v. State, 505 So.2d 1272 (Ala.Crim.App.1986).

Like the trial court, we recognize the unusual circumstances surrounding this case, and, after reviewing the materials submitted by the trial court with its answer, we agree that the trial court’s due-process concerns are genuine. We conclude, however, that the trial court exceeded the scope of its discretion in imposing the sanction of ordering the State to produce to Fowler a list of possible witnesses the State intends to call at trial and a summary of each witness’s testimony. Rule 16.5, Ala. R.Crim. P., clearly authorizes a trial court to issue relief for noncompliance with a discovery order; Rule 16.5, however, does not authorize a trial court to provide relief that is specifically prohibited by the discovery rules. Our rules and caselaw clearly establish that the names of prosecution witnesses for trial are not discoverable. See Rule 16, Ala. R.Crim. P.; Ex parte Bell, 475 So.2d 609 (Ala.1985); Jackson v. State, 650 So.2d 593 (Ala.Crim.App.1994). A defendant is not constitutionally entitled to the State’s witness list before trial. Weatherford,, supra; Gowens v. State, 639 So.2d 524, 527 (Ala.Crim.App.1993).

Here, the trial court concluded that the State violated its order when it failed to produce for in camera inspection any evidence newly discovered since January 15, 2005, with regard to statements made by witnesses communicated to the State. We agree with the trial court that the discovery provided by the State for in camera inspection was inadequate to address the trial court’s due-process concerns and to provide a basis for determining the merits of Fowler’s motion to dismiss. Rule 16.5 permits the trial court to enter a “just” sanction, not one that is prohibited by rule. Because the trial court ordered the production of information specifically prohibited from production by the Alabama Rules of Criminal Procedure, the trial court exceeded its discretion.

We recognize that this case is unusual and that the challenges to the defense in light of the 42-year delay are unique. However, the unusual nature of this case does not authorize the trial court to order discovery that is prohibited by the rules. A sanction for the State’s violation can be imposed that is just, that is not prohibited by our rules, and that meets the needs of discovery.

Conclusion

The State has satisfied the requirements for mandamus relief; therefore, we issue the writ and direct the Perry Circuit Court to vacate that portion of its discovery order directing the State to provide Fowler with its witness list and a summary of each listed witness’s testimony.

PETITION GRANTED; WRIT ISSUED.

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

MURDOCK, J., concurs in the result.

      . The date and contents of this article are not disclosed in the materials before this Court.

      . The State does not object to the portion of the trial court’s order directing that the State produce "any and all newly discovered evidence in its possession which has been obtained since January 15, 2005.”

      . We disagree with the State that the order required the State to produce the names and testimony of witnesses before the grand jury. The State on its own accord decided to provide for in camera inspection the district attorney's notes from the grand-jury proceeding. Although the trial court did order for in camera inspection the production of the evidence upon which the indictment was based, the trial court’s order did not violate of the sanctity of the grand-jury proceeding. See State v. Matthews, 724 So.2d 1140, 1141-42 (Ala.Crim.App.1998) (holding that defendant was not entitled to discovery of names and addresses of grand-jury members).