Helen Kathryn Wheeler et al. v. Randall L. George et al.
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REL: 12/04/2009 Notice: T h i s o p i n i o n i s s u b j e c t t o formal r e v i s i o n b e f o r e p u b l i c a t i o n i n t h e advance s h e e t s o f Southern R e p o r t e r . R e a d e r s a r e r e q u e s t e d t o n o t i f y t h e R e p o r t e r o f D e c i s i o n s , Alabama A p p e l l a t e C o u r t s , 300 D e x t e r A v e n u e , M o n t g o m e r y , A l a b a m a 3 6 1 0 4 - 3 7 4 1 ((334) 2 2 9 - 0 6 4 9 ) , o f a n y t y p o g r a p h i c a l o r o t h e r e r r o r s , i n o r d e r t h a t c o r r e c t i o n s may b e made b e f o r e t h e o p i n i o n i s p r i n t e d i n Southern R e p o r t e r . SUPREME COURT OF ALABAMA OCTOBER TERM, 2009-2010 1070484 Helen Kathryn Wheeler e t a l . v. R a n d a l l L. George e t a l . 1070487 S o u t h d a l e , LLC v. R a n d a l l L. George e t a l . 1070514 Todd Strange v. Helen Appeals Kathryn Wheeler e t a l . from Montgomery C i r c u i t (CV-04-1434) On A p p l i c a t i o n s Court f o r Rehearing LYONS, J u s t i c e . The opinion following Helen trustee of July i s substituted Kathryn dated case R.H. P h i l l i p s February trial court. Board of Thornton, and as mayor Revocable Living court, appeal 1 and from in i n the are the I n d u s t r i a l Development ("the I D B " ) ; and as c h a i r m a n Montgomery County Reuben F. o f t h e IDB; t h e ( " t h e C i t y " ) ; B o b b y N. B r i g h t , of the C i t y ; as Trust of a l lthe appellees Montgomery Jr.,individually C i t y o f Montgomery Phillips, no. 1070487, t h e d e f e n d a n t s Those a p p e l l e e s of Newton i n the t r i a l i n favor and case the City and t h e 21, 2001 ( " W h e e l e r / P h i l l i p s " ) , judgments entered no. 1070484 i s withdrawn, and W i l l i a m Southdale, LLC, t h e p l a i n t i f f s summary 2009, therefor. Wheeler under the Doris Agreement 17, individually ("the C o u n t y " ) ; B o b b y N. B r i g h t i s no l o n g e r t h e mayor o f t h e C i t y . P u r s u a n t t o R u l e 2 5 ( d ) , A l a . R. C i v . P., h i s s u c c e s s o r , Todd Strange, i s automatically s u b s t i t u t e d as a p a r t y inhis 1 2 1070484; the 1070487; Montgomery William F. County ("the 1070514 County Joseph, Commission; AIFA"); Don the Alabama as secretary CSX Real assistant Evans, 2 of Property, vice president Manufacturing Alabama, 4 and official capacity individually. In his p r e s i d e n t of 1975. 2 Todd as position the AIFA. C. Inc. Mabry CSX 3 ("CSX"); of CSX o f CSX as Commission"); chairman Finance III, Strange, mayor. as Transportation, D a v i d W. Hyundai Strange and Inc., Hemphill, J. Motor was an Randall Hyundai individually the former individually Transportation; and of Authority and Transportation; LLC, as See and individually the AIFA; president a vice ("Hyundai"); Henry County Incentives Siegelman, of the AIFA; and ("the Jr., individually president former Commission Motor America and also in his sued governor, Siegelman served as § 41-10-540 e t s e q . , A l a . Code I n h i s p o s i t i o n as f i n a n c e d i r e c t o r d u r i n g t h e n G o v e r n o r S i e g e l m a n ' s t e r m , M a b r y s e r v e d as s e c r e t a r y o f t h e A I F A . See § 41-10-540 e t s e q . , A l a . Code 1975. 3 H y u n d a i M o t o r A m e r i c a i s a w h o l l y owned s u b s i d i a r y o f Hyundai Motor Company and o p e r a t e s as i t s U n i t e d States division. Hyundai Motor M a n u f a c t u r i n g Alabama, LLC, i s a l s o a w h o l l y o w n e d s u b s i d i a r y o f H y u n d a i M o t o r C o m p a n y a n d was designated to own and operate the Alabama automobilemanufacturing plant. 4 3 1070484; 1070487; 1070514 official capacity as appellees will collectively as dismissed denying no. in Southdale and sued Montgomery the from to dismiss. 2001, requesting information locations in Alabama See note but they trial were In case court's reverse in part, contacted and no. order 1070484 and Procedural of case remand; plant in regarding that the 4 who at a that Korean time interest in locating United incentives could 1. History Hyundai, Echols, Hyundai's automobile-manufacturing f a c i l i t y . 5 ADO"), no. and expressing automobile-assembly a former employee of the representative manufacturer, w o r k e d f o r t h e ADO, as affirm. Background a of In case affirm in part, Factual Area are not a p p e l l e e s . cross-appeals 1 0 7 0 5 1 4 , we ("the Chamber i n d i v i d u a l l y and L. G e o r g e , and June automobile an participants." stipulation no. I. In to also h i s motion The 5 referred Office Strange City. be Development by the project "the 1 0 7 0 4 8 7 , we case of o f t h e MACOC; a n d D a v i d E c h o l s , Alabama 1070514, mayor sometimes ("the MACOC"); R a n d a l l president the current hereinafter Wheeler/Phillips Commerce the States and accommodate H y u n d a i was and available a large considering at 1070484; 1070487; 1070514 l e a s t two s i t e s i n A l a b a m a - - M o n t g o m e r y a n d O p e l i k a - - a s w e l l sites in several i d e n t i t y was September other states, kept secret 2001, i n c l u d i n g Kentucky. during officials the i n i t i a l from the C i t y , Commission, a n d t h e MACOC b e g a n options to purchase effort to create persuade Hyundai significant incentive charge to parcel of the during incentive package that of land land" on B.M. site i n the incentive locate package. testified "free an was Hyundai had no to role package city of the letter State," they near Ahn, the Hyundai f o r the the to that an locate the of i n t e n t County area to Hyundai. any representative in States plant, e l e m e n t o f an Ahn the land also and was stated that land the r e s p o n s i b i l i t y of and the IDB " i n partnership an i n d u s t r i a l site Officials signed with a t no J o s e p h , as c h a i r m a n o f t h e C o u n t y C o m m i s s i o n , 5 A of i t s plant. they, an would automobile manufacturer Commission, w o u l d commit t o p r o v i d e in hoped a critical in acquiring s t a t i n g that County to secure or the s t a t e p u t t i n g the package together. City, In Montgomery. United a c q u i s i t i o n f o r an i n c e n t i v e p a c k a g e was the t h e IDB, an e s s e n t i a l c o m p o n e n t his deposition which negotiations. Montgomery i t s plant selection offered Hyundai's making p r e p a r a t i o n s property as a the cost was 1070484; 1070487; 1070514 responsible f o r c o o r d i n a t i n g w i t h C i t y and County o f f i c i a l s develop i n c e n t i v e package Hyundai. the The was to property; the City the C o u n t y was offered provide 62.5% to of the to provide funds 37.5% to of to purchase those funds. However, the o p t i o n a g r e e m e n t s on t h e p a r c e l s o f p r o p e r t y that would in were be included acquired by the primary role which ultimate use involved i n such laws IDB. proposed Thornton Hyundai plant testified that monies flow for in industry." He a process for the tax the course the purchase site the IDB's as t h e i n i n d u s t r i a l p r o j e c t s i s to "serve through tax the entity of land further stated that "to comply w i t h breaks and other state for the the IDB and is federal incentives to the industry." Over options on At time, that the s i x parcels the IDB landowners. Alabama; they Montgomery P.A., to Thornton, option of law of property d i d not Neither retained firm represent in several his agreements on Wheeler behalf nor IDB chairman of 6 a the IDB to resided in lawyer In with for IDB, four of the Garrett, September the site. identity Johnston & of secured industrial Phillips Stakely, interests. as the Williams, of Rushton, capacity for the d i s c l o s e Hyundai's Jesse their months, 2001, executed the six 1070484; 1070487; parcels. The IDB 1070514 agreed to purchase approximately f r o m S o u t h d a l e ; a p p r o x i m a t e l y 807 a c r e s f r o m approximately 328 Russell, coexecutors as testamentary ("the trust Russells"); Parker and acres from and of E a r n e s t and Eugenia G e o r g e E. W. Russell, approximately M. Parker 40 ("the of and Thomas the will and Myrtis acres from days, E. and Russell John Parkers"). a g r e e m e n t s p r o v i d e d f o r an o p t i o n p e r i o d o f 120 C. These and stated: "3. I f P u r c h a s e r e l e c t s t o e x e r c i s e t h i s O p t i o n the purchase price for the Property shall be d e t e r m i n e d as f o l l o w s : "Seller a n d P u r c h a s e r s h a l l e a c h , a t i t s own c o s t and e x p e n s e , s e c u r e a c u r r e n t a p p r a i s a l o f t h e Property. The p u r c h a s e p r i c e s h a l l be t h e average o f t h e two a p p r a i s a l s p r o v i d e d , h o w e v e r , i n no e v e n t s h a l l t h e p u r c h a s e p r i c e be l e s s t h a n $ 4 , 5 0 0 p e r a c r e and f u r t h e r p r o v i d e d t h a t t h e p u r c h a s e price s h a l l i n no e v e n t be l e s s t h a n t h e p r i c e p e r a c r e p a i d t o any o t h e r l a n d o w n e r i n c l u d e d i n t h e p r o j e c t planned f o r this Property. The a c r e a g e shall be d e t e r m i n e d by a good and a c c u r a t e s u r v e y p r o v i d e d by Purchaser. fi "16. This Option constitutes the e n t i r e and complete agreement between the p a r t i e s h e r e t o and supersedes any prior oral or w r i t t e n agreements between the p a r t i e s w i t h r e s p e c t to the P r o p e r t y . It i s e x p r e s s l y agreed t h a t t h e r e a r e no v e r b a l u n d e r s t a n d i n g s o r a g r e e m e n t s w h i c h i n a n y way c h a n g e the terms, covenants, and conditions herein set 7 acres Wheeler/Phillips; Russell cotrustees 320 each 1070484; 1070487; 1070514 f o r t h , a n d t h a t no m o d i f i c a t i o n o f t h i s O p t i o n a n d no w a i v e r o f a n y o f i t s t e r m s a n d c o n d i t i o n s shall be e f f e c t i v e unless made in writing and duly e x e c u t e d by t h e p a r t i e s h e r e t o . " (Emphasis option be added.) agreements less than included clause." land would be w o r t h favored-nation were a s s u r e d might higher because hold by deadline land event landowner f o r the Property" as a "most- purpose clause, of the Alabama quickly, early was t o be any o t h e r allowed agreements out u n t i l Officials the land some t o any o t h e r property than i n no to used as ensure f o r the no o n e p a r c e l o f parcel. officials because The to mostobtain landowners i n the a c q u i s i t i o n who period that they would not r e c e i v e l e s s than a landowner price. securing price more clause option paid shall t h e same p r i c e s o t h a t o f t h e needed executed price and S o u t h d a l e , conveying would r e c e i v e control The by W h e e l e r / P h i l l i p s a l l landowners project "the purchase i n the project planned explained who that the p r i c e per acre favored-nation that The p a r t i e s r e f e r t o t h e p r o v i s i o n i n t h e needed landowners refusing the deadline i n Kentucky were having f o r the proposed were negotiating to execute f o r submitting i n order option the incentive 8 site to seek difficulty i n Kentucky f o r a higher agreements package. a before sales the At the time 1070484; the option lawsuits land 1070487; 1070514 agreements had were a l r e a d y been acquisition being filed entered into i n Kentucky f o r the proposed site in concerning t h e P a r k e r s amended t h e i r option period t o May Russells, o p t i o n agreements to extend 3 1 , 2002. the there. In e a r l y 2 0 0 2 , S o u t h d a l e , W h e e l e r / P h i l l i p s , the and Alabama, the E a c h amended o p t i o n a g r e e m e n t stated: "1. I t i s hereby agreed t h a t the purchase p r i c e f o r t h e P r o p e r t y i s F o u r Thousand F i v e H u n d r e d and No/100 D o l l a r s ( $ 4 , 5 0 0 . 0 0 ) p e r a c r e . The exact number o f a c r e s t o be determined by the survey p r o v i d e d by P u r c h a s e r . " 2 . The o p t i o n p e r i o d i s h e r e b y e x t e n d e d f o r a p e r i o d o f 120 d a y s f r o m t h e E f f e c t i v e D a t e o f t h e O p t i o n , which E f f e c t i v e Date i s October 3, 2001. The e x p i r a t i o n d a t e o f t h e O p t i o n , as e x t e n d e d , i s now May 3 1 , 2 0 0 2 . " 3 . E x c e p t as a m e n d e d h e r e b y , t h e O p t i o n o t h e r r e s p e c t s r a t i f i e d and c o n f i r m e d . " all The amended options Wheeler/Phillips on February and On 1, 2002; February e x e c u t e d two to purchase 22 were January and by executed 31, by 2002; the R u s s e l l s by is in Southdale the on F e b r u a r y Parkers 4, M a r c h 8, 2 0 0 2 , r e s p e c t i v e l y , acres from H. M c L e m o r e , J o h n M c I n n i s , J r . , T i m o t h y 9 Price on 2002. Thornton a d d i t i o n a l o p t i o n a g r e e m e n t s on b e h a l f o f t h e a p p r o x i m a t e l y 54 and IDB McLemore, Mary N. M c I n n i s , C h a r l e s R. 1070484; 1070487; 1070514 McInnis, Williams S. N e w e l l , and t h e Peoples Bank and Trust Company, as t r u s t e e f o r t h e A d a l i n e H o o p e r T r u s t A a n d B ("the McLemore group"), and a p p r o x i m a t e l y Homes, I n c . The t e r m s early 2002, are its of the option identical agreements executed 83 to acres from agreements, the i n September 2001. terms of Pelzer executed i n the The IDB l a t e r option assigned r i g h t s under a l l t h e o p t i o n agreements t o t h e C i t y and t h e County. During t h e time options from representatives neighboring property; City plant she s i x above-referenced landowners, of t h e MACOC approached about Shelton t h e IDB an officials Ellen McNair, t o ask whether would accept option declined Sometime d u r i n g F e b r u a r y o f f " the property site. Shelton acquiring the landowner, and County "square was the however, agreement. i n which whether made Joy to to enter Shelton, purchase into a her an o p t i o n 2002, Hyundai i n q u i r e d o f i t would be p o s s i b l e t o available f o r the potential a n e m p l o y e e o f t h e MACOC, met w i t h her property was f o r s a l e a n d w h e t h e r a p u r c h a s e p r i c e o f $4,500 p e r a c r e . McNair s a i d t h a t S h e l t o n was i n t e r e s t e d i n s e l l i n g b u t t h a t s h e w o u l d not sell calls f o r that to Shelton, price. McNair but Shelton made continued 10 additional to refuse telephone to s e l l her 1070484; 1070487; property. 1070514 By m i d M a r c h property was addition, not to respectively, decided funds site. City The incentive drafted and offered either to County for an of the County, not land plant to proposed the near option State that i f i t chose to b u i l d i t s p l a n t 28, 2002, Ahn any site The package the e v e n i n g of March million, designate subject consideration. incentive $9 t h e n p r e s e n t e d an proposed acreage In already f o r the Commission Shelton package. and would the also would in be Alabama, Opelika. at locate that time i t s United decision the the the million purchase of assembled and they including incentive i n Montgomery or i n was i t would Hyundai access $16 the the S t r a n g e t h a t H y u n d a i was that City that Hyundai to Hyundai On who and consisting agreements, the f o r the package, Montgomery for spending additional t h e IDB d e c i d e d t h a t necessary f o r the officials committed 2002, Hyundai project acquired, announce need desired site the plant in on A p r i l Alabama 1. He additional property i f Montgomery were and t h a t "you m i g h t of ADO. Ahn i n the p r o c e s s of d e c i d i n g States would director telephoned Strange, lose or 11 The whether Kentucky, to a informed Strange f o r the t o be i f the a d d i t i o n a l land the d e a l . " told railway selected for could additional not be property 1070484; 1070487; Hyundai was informed day 1070514 requesting Strange whether the Strange that was he the would additional met during and and the late to by Shelton. Ahn noon the next know b y could be evening S t e v e Cawood Buddy Morgan The S c o t t Abney, a lawyer Cooper acquired. hours of March (an e n g i n e e r & Gale, meeting with Strange w o u l d n o t make a n y land and contained group a l s o c o n s u l t e d by P.C., who that had been then Finance recognized additional the working to the City agreements clauses. clause was with Maynard, advise D i r e c t o r Mabry. that s i x option most-favored-nation hired discuss telephone f i r m of funds a v a i l a b l e most-favored-nation 28 ( c h a i r m a n of the Water Works w i t h the Birmingham law G o v e r n o r S i e g e l m a n and the owned S a n i t a r y Sewer B o a r d of t h e C i t y of M o n t g o m e r y ) t o Hyundai's request. of need property w i t h George, McNair, E c h o l s , on t h e p r o j e c t ) , land and then The the group County f o r the purchase already acquired George t e s t i f i e d that discussed. "But that evening on the 28th, i t was--it was m e n t i o n e d i n t h e c o n t e x t t h a t i f we as l o c a l s b o u g h t i t , i t c o u l d b e - - i t c o u l d be a p r o b l e m . " Strange testified clause during having CSX that that purchase he learned meeting. the The land would 12 of the group trigger most-favored-nation discussed the whether most-favored- 1070484; nation from 1070487; 1070514 c l a u s e , or whether a purchase the other options. Strange by CSX would be separate testified: " I t was o u r u n d e r s t a n d i n g t h a t i f CSX w o u l d p u r c h a s e t h e p r o p e r t y , t h a t t h e y w o u l d n o t be a p a r t y t o t h e o r i g i n a l p u r c h a s e and t h e r e f o r e i t w o u l d be o u t s i d e t h a t agreement." Strange of CSX in the meeting t o d i s c u s s w h e t h e r CSX additional would left be necessary for railway Hemphill, John telephoned a would p r o p e r t y b e c a u s e Ahn Birmingham, Economic and be w i l l i n g t o p u r c h a s e had stated service. Sanford, representative that CSX's advised the representative Strange Department. Because a message and i n charge development. According Hyundai made had configuration additional CSX contact and a asked to Strange left him amount o f t h e p u r c h a s e . Strange w e r e g o i n g t o be wanted whether i f the Evans CSX change in him the could purchase State reimbursed t e s t i f i e d that to purchase r e i m b u r s e d by 13 told CSX the the industrial Strange last-minute property required why not o f r e a l - e s t a t e and Evans, and was then telephoned Hemphill's s u p e r i o r , Evans, v i c e p r e s i d e n t f o r CSX question to Hemphill a v a i l a b l e when S t r a n g e p l a c e d h i s t e l e p h o n e c a l l , the property an a s s i s t a n t v i c e p r e s i d e n t i n C S X ' s I n d u s t r i a l Development the he that rail the CSX for did not property i f the State f o r the purchase 1070484; and 1070487; that his would be only announced to i t present, need." the time was ensuring " i t ' s handled" Strange then Hyundai that situation." L a t e r i n the evening, t h e y had a further additional On "appeared returned and telephoned accommodate Hemphill purchase. the then r e t u r n e d to the meeting additional Evans, that in participated t h a t o b t a i n i n g the and him i f at that Strange those accommodate our told concern reimbursed George t e s t i f i e d and 1070514 i t after "CSX Ahn and would in Korea land necessary be to a doable speaking with Sanford Strange's would CSX telephone call, d i s c u s s i o n r e g a r d i n g CSX's p u r c h a s e of and the land. M a r c h 29, 2002, H e m p h i l l sent the following e-mail Echols: " R e g a r d i n g the [ S h e l t o n p r o p e r t y ] t h a t w i l l need to be p u r c h a s e d , y o u a s k e d i f CSX w o u l d be w i l l i n g t o buy t h i s p r o p e r t y f o r t h e S t a t e and Montgomery a t approximately $8,000.00 an acre. There is no c o n t r a c t o r o p t i o n on t h e p r o p e r t y c u r r e n t l y a n d y o u e s t i m a t e i t w i l l c o s t us a p p r o x i m a t e l y $ 7 5 0 , 0 0 0 . 0 0 which you are w i l l i n g t o r e f u n d t o us i n some f a s h i o n d u r i n g the t r a c k c o n s t r u c t i o n phase. Randy E v a n s , i n p r i n c i p l e a g r e e d t o t h i s and I a s k t h a t you f a x us a l e t t e r o u t l i n i n g e x a c t l y what you h a v e i n mind. The p u r p o s e o f d o i n g i t t h i s way r a t h e r t h a n what you d i d i n g e t t i n g c o n t r o l o f t h e o t h e r 1600 a c r e s i s t o a v o i d p a y i n g t h e o t h e r l a n d o w n e r s $ 8 , 0 0 0 . 0 0 an a c r e w h i c h w o u l d h a v e a n e g a t i v e i m p a c t of $ 1 0 , 0 0 0 , 0 0 0 . 0 0 on t h e s i t e c o s t . The railroad does not get good l a n d v a l u e s i n a s i t u a t i o n like t h i s a n d so I t h i n k t h e r e w i l l be u p w a r d p r e s s u r e on 14 to 1070484; 1070487; 1070514 t h a t $8,000 number. Moreover, the other landowners w i l l g e t w i n d o f t h i s p l o y a n d may c r e a t e n e g a t i v e community p u b l i c i t y . ... I n y o u r l e t t e r t o u s we w o u l d a s k t h a t y o u i n d i c a t e e x a c t l y how y o u i n t e n d to p a y us d u r i n g t h e t r a c k work c o n s t r u c t i o n . " The Hemphill testified action that that he had been he a s k e d letter, went e-mail which along property, concerned shows a copy to Strange, d i d not see t h e e-mail filed i n this case. to Hemphill's e-mail with a d r a f t e d and sent. that the stated Strange Hemphill after Echols t o respond the plan until Strange However, Strange with but When asked f o r i t to purchase t e s t i f i e d that i f i t d i d not why the Shelton i t d i d so b e c a u s e CSX was go along with the plan, M o n t g o m e r y c o u l d l o s e t h e p r o j e c t , a n d CSX w o u l d t h e r e b y the potential On M a r c h f o r extensive 29, 2002, railway business Strange faxed with Hemphill lose Hyundai. the following letter: "Last evening, T h u r s d a y , M a r c h 2 8 , 2 0 0 2 , a t 6:05 p.m. C e n t r a l S t a n d a r d T i m e , I r e c e i v e d a c a l l f r o m Mr. B.M. A h n , P r e s i d e n t H y u n d a i M o t o r C o m p a n y , U.S. from Seoul, Korea. He t o l d me t h e y w e r e i n t h e final stages o f t h e d e c i s i o n a n d n e e d e d t o make modifications to their Montgomery site layout b e c a u s e t h e CSX R a i l r o a d y a r d e s t i m a t e h a d come i n extremely high. I n t h e i r ( H y u n d a i ' s ) r e d e s i g n , he w a n t e d t o do p a r a l l e l t r a c k s r u n n i n g n o r t h a n d s o u t h on t h e e a s t e r n s i d e o f t h e p r o p e r t y b o u n d a r y . His engineers t o l d h i m he w o u l d n o t h a v e e n o u g h r o o m unless [ a d d i t i o n a l property was] obtained i n the southeast corner of the quadrant. This p r o p e r t y had 15 CSX 1070484; 1070487; 1070514 been d i s c u s s e d a couple o f m o n t h s ago b u t we had b e e n t o l d as r e c e n t l y as two w e e k s ago t h a t i t w o u l d n o t be n e c e s s a r y . So a c c o r d i n g l y , we d i d n o t p u r s u e any o p t i o n s . ... "As I i n d i c a t e d to you last night, our option agreements have a 'most f a v o r e d n a t i o n ' c l a u s e where we a g r e e d t o p a y no m o r e f o r a n y one p a r c e l t h a n a n y of the other p a r c e l s . A c c o r d i n g l y , I assembled a working group of the local Chamber of Commerce e x e c u t i v e s , e n g i n e e r i n g e x p e r t i s e , Dave E c h o l s and myself. We d e c i d e d t h e m o s t a p p r o p r i a t e c o u r s e to f o l l o w w o u l d be t o a s k C S X t o o b t a i n a p a r c e l f o r rail access to keep i t outside the project a g r e e m e n t . As y o u k n o w C S X ' s a g r e e m e n t w i t h H y u n d a i i s s e p a r a t e and t h i s p r o p e r t y i n t h e i r v i e w i s f o r r a i l access only. ... fi " D a v e , as d e t a i l s to is f o r CSX a c c e s s and made w h o l e Strange's Governor you can a p p r e c i a t e t h e r e are a l o t of be w o r k e d o u t , b u t t h e s p i r i t a n d c o n c e p t to o b t a i n the needed p a r c e l f o r rail w h a t e v e r t h e p u r c h a s e p r i c e , C S X w o u l d be i n a m a n n e r we m u t u a l l y a g r e e d u p o n . " letter indicated Siegelman, then that copies Finance were sent D i r e c t o r Mabry, to then Abney, and George. On Bright the to meet and he Shelton with option o b t a i n an previous morning on evening. was seen as to sell her of March Shelton the 29, and property George her parents the who land. Before 16 family H y u n d a i had Shelton's person asked knew could Bright in then an effort requested and most liked likely agreed Mayor on to the Bright, persuade t o meet with 1070484; 1070487; Shelton, he County 1070514 r e i t e r a t e d t o S t r a n g e and stood firm i n r e f u s i n g t o pay t h e p r o j e c t ; B r i g h t was n o t be the property either CSX or obtain the option credibility met assured with the to and that i t was "important transaction." and presented line property. Shelton filled Bright the C i t y . t h a t CSX Shelton Shelton, from was then the i n the blank t o be entity that after to lend and option w i t h the that agreed to my agreement the amount $12,000 option on to get He to George purchase p r i c e of to Hyundai. the he t o me an assignable faxed that of behalf of the option d i d not inform a c t u a l l y purchased the property. McNair clause with S t r a n g e came t o t h e MACOC o f f i c e s a g r e e m e n t , w h i c h he Ahn her the would assigned B r i g h t , McNair, indicating executed toward County o p t i o n w o u l d be because a blank acre; the testified the and funds toward the purchase Bright containing per a d d i t i o n a l money State. Shelton t h a t the C i t y t h a t t h e C i t y and e x p e c t e d t o c o n t r i b u t e any Shelton others testified she became m i g h t be i m p l i c a t e d as Shelton. attorney for concerned She the IDB, that the a result informed and returning Thomas Frank 17 from meeting most-favored-nation of the H. with option Gallion obtained I I I , M c P h i l l i p s , another the lawyer 1070484; with 1070487; 1070514 Maynard, Cooper & During her deposition, Gale, P.C., McNair about the Shelton option. stated: "On F r i d a y when ... I came b a c k f r o m v i s i t i n g w i t h Mrs. S h e l t o n , I c o n t a c t e d b o t h Mr. G a l l i o n a n d Mr. McPhillips [one of the attorneys f o r the State i n v o l v e d i n the Hyundai p r o j e c t ] . My c o n c e r n was ... j u s t t o l e t t h e m know w h a t h a d h a p p e n e d , you know, w i t h T h u r s d a y n i g h t b e c a u s e i t h a p p e n e d so fast. They were not aware of i t u n t i l a f t e r the f a c t , so I w a n t e d t o t e l l t h e m w h a t h a d h a p p e n e d . " B u t a l s o I was j u s t a l i t t l e c o n c e r n e d w i t h [ M a y o r B r i g h t ] t a k i n g out the o p t i o n - - b e c a u s e he was a l o c a l p e r s o n , and h i s a c t i o n o f j u s t t a k i n g out the o p t i o n w h i c h w o u l d be a s s i g n e d t o C S X o r s o m e b o d y , t h a t j u s t made me a l i t t l e n e r v o u s . "So I j u s t s a i d - - y o u know, I was, you know, j u s t calling them j u s t t o be sure that that wouldn't t r i g g e r a n y - - y o u know, we j u s t d i d n ' t know w h e t h e r o r n o t t h a t w o u l d , a n d so I j u s t w a n t e d t o be sure. So I c o n t a c t e d b o t h o f t h e m . " On the morning of March F i n a n c e D i r e c t o r Mabry r e g a r d i n g land. Mabry to a s s i s t said i n the that Strange for property. Mabry c o n s u l t e d the necessary. advised at the use Neither that Strange State of to told provide with State Mabry time that then funds nor then Strange 18 telephoned Hyundai's need f o r him p u r c h a s e of the p r o p e r t y necessary approved 29, and then additional that CSX was but that i t might funds to willing be purchase the Siegelman, who the purchase, i f Governor Siegelman was Governor for CSX had entered into an 1070484; 1070487; 1070514 a g r e e m e n t t o h a v e CSX o b t a i n the A b n e y and option Shelton reimbursed property. Also with $12,000 per option agreements prevented acre. the Shelton Abney and State and was a party the property by favored-nation of the Abney the Shelton property agreement w i t h Hyundai d e t a i l i n g of the plant On ("the April 1, project recently testified the the site location and On that he option told of the mostoption a the project development April 8, George i n Southdale, i t had on the McKinney 19 Shelton and automobile- met with and Judge Williams, them of property. Williams selected its r e p r e s e n t i n g W h e e l e r / P h i l l i p s , to inform obtained State the of the the incorporated on w h i c h i t w o u l d b u i l d facility. the other draft at them of purchase an agreement"). Reese McKinney, a s h a r e h o l d e r attorney the because trigger then into purchase 2002, H y u n d a i announced t h a t M o n t g o m e r y as t h e manufacturing in McPhillips in the not contained and nothing Mabry t h a t would property a l l the agreements State clause agreements. purchase option in her to 29, executed reviewed that assisting They a d v i s e d to purchase McPhillips property. i t provided the morning of March determined from funds t h a t B r i g h t had to Shelton Shelton on M c P h i l l i p s were i n f o r m e d agreement not f o r any the the George that Bright had 1070484; 1070487; e x e c u t e d an Shelton assignable option resolve 1070514 the o p t i o n , t h a t he a g r e e m e n t , and problem acquisition of this by what diligence him that CSX needed the because, he said, George by agreement." that the the Shelton Hyundai's was of and time, he meeting 28, i t was his the Shelton conveyed not to be assigned yard. Although February 2002 tell McKinney the p r o p e r t y . " at understanding reimburse CSX and that that f o r the information on CSX explained because aware "square off Shelton's Williams the was had land going known and to the he at CSX he March purchase State would Williams. of that t h a t when of of the about evening purchase p r i c e , to McKinney 20 yard i n f o r m e d them " t h a t CSX i f he told [Southdale's] George t e s t i f i e d MACOC's o f f i c e s course, rail George to to the concerns G e o r g e was and t h a t he his our that of "the us was t h a t George that testified would be satisfied relate testified property that done, explained also rail i n s t e a d , he the to t h e y had not in did t o buy going to of McNair's attempt to o b t a i n going left understood and the agreed to help I property option the had McKinney t e s t i f i e d did request property" request; CSX Williams location that for that." "CSX after property due purchased that gave them a copy of was have 1070484; 1070487; 1070514 Evans t e s t i f i e d 29 letter his that he b e c a m e favored-nation that told property testified him that and asked committed On was landowners to be "a h i s c o n c e r n s were April t o make 15, that 2002, t h r o u g h then Mayor B r i g h t b u t he George said property had already the purchase of the railroad project." satisfied when S t r a n g e option holders Evans that told CSX purchase." the State, acting capacity; the City, then acting the County in his official capacity; the IDB, a c t i n g through Thornton i n h i s o f f i c i a l capacity, entered into acting through the project of the project inhisofficial through capacity; Commission, 3 that stated t h e most- of the Shelton and t h a t Governor Siegelman i n h i s o f f i c i a l and March He about agreements, him the purchase transaction 2002. Strange t h a t George had i n f o r m e d t h e o t h e r "had of Strange's in April i n the option to the other Shelton Strange concerned be a s e p a r a t e explained with clause Strange would learned a n d H e m p h i l l ' s M a r c h 29 e - m a i l when he r e a d t h e m o n way t o a m e e t i n g that he f i r s t Joseph agreement. agreement stated 6 Section that 3.1 o f A r t i c l e " t h e Montgomery IDB The Water Works and S a n i t a r y Sewer B o a r d o f t h e C i t y o f M o n t g o m e r y , a c t i n g t h r o u g h i t s c h a i r m a n R i c h a r d E. Hanan, a l s o executed the p r o j e c t agreement, but n e i t h e r the Board nor Hanan i s a p a r t y i n t h i s c a s e . 6 21 1070484; 1070487; presently holds simple title 1070514 purchase to Project Site." provided that 3.6(a) p r o v i d e d each parcel Section 3.4 the IDB was acquired Section 3.20 of by the the provided of of to t h a t the IDB property Agreement," options necessary real the estate project exercise was to each comprising the further option; section then to t r a n s f e r t i t l e of project agreement, the fee agreement exercise for acquire the options acquisition to of Hyundai. entitled of the "CSX Shelton property: "The S t a t e and L o c a l G o v e r n m e n t s s h a l l use their b e s t e f f o r t s t o c a u s e CSX T r a n s p o r t a t i o n t o e n t e r into an agreement with [Hyundai] in form s a t i s f a c t o r y to [Hyundai], which w i l l provide for r a i l s e r v i c e f o r [ H y u n d a i ] on t e r m s a n d c o n d i t i o n s as f a v o r a b l e t o [ H y u n d a i ] as t h o s e o f f e r e d t o o t h e r automobile manufacturers. I n a d d i t i o n , the State and C i t y s h a l l use t h e i r b e s t e f f o r t s t o c a u s e CSX T r a n s p o r t a t i o n to p r o v i d e the i n c e n t i v e s set f o r t h i n t h e l e t t e r f r o m CSX T r a n s p o r t a t i o n d a t e d D e c e m b e r 17, 2 0 0 1 . The S t a t e r e p r e s e n t s and w a r r a n t s t h a t [Hyundai] w i l l acquire fee simple title to [the Shelton property] for use in connection with c o n s t r u c t i o n of a r a i l s w i t c h y a r d by or before S e p t e m b e r 30, 2 0 0 2 . I f and t o t h e e x t e n t [ H y u n d a i ] makes any payment f o r t h e c o s t o f a c q u i r i n g s u c h acreage, the State s h a l l reimburse [Hyundai] for s u c h c o s t s b y i n c r e a s i n g b y an e q u i v a l e n t a m o u n t t h e m o n i e s made a v a i l a b l e f r o m t h e S t a t e i n T r a i n i n g E q u i p m e n t F u n d p u r s u a n t t o A r t i c l e 4 b y no later than the l a s t q u a r t e r of the c a l e n d a r year 2003. The C i t y agrees t h a t i t w i l l zone such a d d i t i o n a l a c r e a g e t h e same as t h e P r o j e c t S i t e . The Local Governments agree to abate taxes t h a t are a p p l i c a b l e t o s u c h a d d i t i o n a l a c r e a g e i n t h e same m a n n e r a n d t o 22 the 1070484; 1070487; 1070514 t h e same e x t e n t Project Site." The owned IDB by Parkers, the as assigned the Southdale, In mid then deeded deeded the p r o p e r t y i t held Despite about CSX's on May the the property to Hyundai. Shelton purchasing directly because would installation would and be be c o n f i r m i n g t h a t the Shelton property. the late City the City and County and which in the turn never e x e r c i s e d evening property, the expected the State March then Finance reimburse profit 28 CSX not the to of When H y u n d a i l e a r n e d t h a t CSX, property for the rail expected to enter into Hyundai decided On of May letter 23 22, finance, S t a t e w o u l d be Mabry's The IDB, City t h a t H y u n d a i w o u l d be director and the its i t s own the property from rail as the The c o n t r a c t w i t h CSX, capacity to purchasing funds. the Russells, City acre. Shelton a long-term using the the property. the r e l a t i o n s h i p with Hyundai. State, the r e l u c t a n t to have CSX on of P e l z e r Homes t o t h e 2002, discussion in M a b r y was taxes i t held f o r $4,500 per the Director the options of Wheeler/Phillips, purchased the p r o p e r t y option abatement t h e McLemore g r o u p , and County. County ... 2002, sent funding stated: to i n s t a l l the Mabry, his Ahn a in letter the purchase of the 1070484; 1070487; 1070514 "This i s to c o n f i r m t h a t the S t a t e of Alabama w i l l p r o v i d e t h e f u n d i n g f o r t h e p u r c h a s e o f t h e 93 a c r e s set a s i d e f o r H y u n d a i ' s r a i l y a r d on t h e d a t e of closing. T h i s w i l l o b v i a t e any need f o r H y u n d a i t o borrow to pay f o r t h i s a c q u i s i t i o n . In a d d i t i o n , the State w i l l pay the reasonable due diligence costs incurred in connection with Hyundai's acquisition of this property. This letter of assurance i s being provided to you pursuant to S e c t i o n 3.20 of the P r o j e c t Agreement." The o p t i o n on C i t y , and the Shelton i t expired on p r o p e r t y was May 31, never e x e r c i s e d by 2002. Also on May 31, CSX executed a r e a l - e s t a t e s a l e s c o n t r a c t f o r the purchase of Shelton property Hyundai's decision i n s t a l l a t i o n , CSX on May 28, $12,000 not and June acre. involve 2002, As CSX a result in the before was million for Hyundai." and Shelton " f o r the a c q u i s i t i o n Because property industry were u s e d locating to 2002, funds were of rail executed. Mabry the then real-estate contract Governor Siegelman convened a meeting of the A I F A , at which the AIFA v o t e d $1.3 the the r e a l - e s t a t e c o n t r a c t to Hyundai days Shelton 14, per to assigned 2002, three b e t w e e n CSX On at the the of r a i l funds related to for a switch yard the i n A l a b a m a , bond proceeds fund the purchase from the AIFA were 24 of the property. t r a n s f e r r e d to of made h e l d by On pay property purchase commitment to to the the an AIFA July 12, Hyundai, and 1070484; 1070487; Hyundai The used closing After Hyundai, 1070514 those on funds the Shelton a l l the Hyundai to land purchase property the occurred been acquired a l l the property, leased and deeded the IDB s i t e p r e p a r a t i o n on entered into an tax package. incentives provided The tax-abatement Shelton the as property a part was of to the of the agreement t h e p r e v i o u s l y a g r e e d upon a b a t e m e n t f r o m ad v a l o r e m other to including w i t h H y u n d a i p r o v i d i n g t h a t H y u n d a i ' s p r o p e r t y was and 2002. so t h a t t h e A l a b a m a D e p a r t m e n t T r a n s p o r t a t i o n ("ALDOT") c o u l d p e r f o r m Additionally, property. i n August had S h e l t o n p r o p e r t y , t o the IDB property. Shelton receive taxation incentive included in the agreement. On May 28, 2004, Southdale action in the Montgomery and Wheeler/Phillips filed Circuit Court against the an IDB, T h o r n t o n , the C i t y , B r i g h t , the C o u n t y , J o s e p h , the A I F A , then Governor Siegelman, then Finance Director Mabry, CSX T r a n s p o r t a t i o n , I n c . , H y u n d a i , t h e MACOC, and G e o r g e , a l l e g i n g fraud, suppression, conspiracy arising S p e c i f i c a l l y , they to purchase paid for the their breach out of of contract, the alleged that Shelton property the property and that 25 sale rescission, of defendants at a higher the their had and land. conspired p r i c e than defendants did so was to 1070484; 1070487; avoid complying in 1070514 w i t h the m o s t - f a v o r e d - n a t i o n a l l the o p t i o n agreements. filed revisions filed stating to a the the second amended CSX Strange, Echols and identified claim of motion Southdale complaint for the making on February Inc., between c o m p l a i n t s and named adding suppression. the p a r t i e s . On On an of State-agent to a s t i p u l a t i o n defendants additional November to dismiss the claims against 21, t h e MACOC p u r s u a n t February immunity, of the p a r t i e s , 2005, Evans, 22, c o u r t e n t e r e d a summary j u d g m e n t i n f a v o r o f basis minor 22, Hemphill, fictitiously f r a u d and only same and W h e e l e r / P h i l l i p s c o u r t d i s m i s s e d G e o r g e and a stipulation pursuant c l a i m s , and Property, i n the e a r l i e r 2005, the t r i a l the Real intentional the t r i a l same complaint. substituting on and W h e e l e r / P h i l l i p s an a m e n d e d c o m p l a i n t on A u g u s t 2 0 , 2 0 0 4 , n a m i n g t h e defendants, to Southdale clause contained dismissed and d e n i e d him on 2006, Bright Echols Strange's the ground of immunity. Less project than participants removed ("the to a week b e f o r e remaining case i n the was case to be tried, the after Bright was remaining project p a r t i c i p a n t s " ) f i l e d disqualify litigation, this the law firm the Montgomery r e p r e s e n t i n g Southdale law 26 firm of Jemison, a in motion this Mendelsohn & 1070484; 1070487; 1070514 J a m e s , P.C., o n t h e b a s i s Miller, appeared purchase the division to them. The t r i a l firms. of mandamus during Finance law the Birmingham court firm Miller granted directing their obtained Wheeler, new c o u n s e l , On N o v e m b e r judgment 978 court i n this So. firm of Spain & Gillon, documents t o 1 litigation. ( A l a . 2007). i t s order This tort limitations. summary claims court entered project barred on in favor of a l l remaining 27 See Southdale a summary p a r t i c i p a n t s on by t h e a p p l i c a b l e On N o v e m b e r 2 0 , 2 0 0 7 , t h e t r i a l judgment participants were Court proceeded. the t r i a l of the remaining to vacate both f o ra writ S o u t h d a l e a n d W h e e l e r / P h i l l i p s ' s t o r t c l a i m s on t h e b a s i s those he representing and i s s u e d t h e w r i t . and t h e case 2, 2 0 0 7 , i n favor 2d with Department before the motions to d i s q u a l i f y the t r i a l counsel regarding h i s employment had p r o v i d e d Wheeler/Phillips's petition parte advice project participants also the that law f i r m , Lee Wheeler/Phillips p e t i t i o n e d this Court disqualifying granted property legal The r e m a i n i n g on t h e b a s i s law provided disqualify Wheeler/Phillips, L.L.C., a member o f t h a t of the State the law firm. moved Ex have of the Shelton legal joined to that the claims. court remaining that statute of entered a project Southdale and 1070484; 1070487; 1070514 W h e e l e r / P h i l l i p s appeal also pay appeals the f r o m an f r o m t h e summary j u d g m e n t s . order special-master fee disqualify i t s counsel. order the of discovery trial order denying State-agent The and Hyundai, stating that them Shelton in was favor McLemore court's issues 2008). with them to Strange to paid. the the motion be to from produce subject grounded to an in to the from the State and cross-appeals dismiss McLemore per The IDB breach on acre in contract, had for court Hyundai, appealed. This option their and Russells affirmed and reversed i t Motor Mfg. Alabama, LLC, 28 the summary the the the a g r e e m e n t s by part case. breached entered case legal specifically property, Court decision in that raised in this filed They each sued of in their trial also Hyundai and and group transactions. clause Hyundai Our the IDB $12,000 group v. consider alleging the judgment McLemore (Ala. of requiring of these most-favored-nation paying r e q u i r i n g i t to immunity. Russells and they motion a c t i o n s as a r e s u l t IDB court W h e e l e r / P h i l l i p s also appeal privilege. his trial i n connection court materials attorney-client of the Southdale in not price judgments and the the trial part. 7 So. See 3d 318 c o n t r o l s some o f the 1070484; 1070487; 1070514 II. Standard of Summary Judgment A. The s t a n d a r d by w h i c h summary j u d g m e n t is well this Review Court w i l l review a motion for established: "'The p r i n c i p l e s o f l a w a p p l i c a b l e t o a m o t i o n for summary j u d g m e n t a r e w e l l s e t t l e d . To g r a n t s u c h a m o t i o n , t h e t r i a l c o u r t must d e t e r m i n e t h a t the e v i d e n c e does not c r e a t e a genuine issue of m a t e r i a l f a c t and t h a t t h e movant i s e n t i t l e d t o a j u d g m e n t as a m a t t e r o f l a w . R u l e 5 6 ( c ) ( 3 ) , A l a . R. Civ. P. When t h e m o v a n t m a k e s a p r i m a f a c i e s h o w i n g t h a t t h o s e two c o n d i t i o n s a r e s a t i s f i e d , t h e b u r d e n shifts t o t h e nonmovant t o p r e s e n t "substantial e v i d e n c e " c r e a t i n g a genuine i s s u e of m a t e r i a l f a c t . B a s s v . S o u t h T r u s t B a n k o f B a l d w i n C o u n t y , 538 So. 2d 794, 797-98 ( A l a . 1 9 8 9 ) ; § 1 2 - 2 1 - 1 2 ( d ) [ , ] A l a . Code 1975. Evidence i s " s u b s t a n t i a l " i f i t i s of " s u c h w e i g h t and q u a l i t y t h a t f a i r - m i n d e d p e r s o n s i n the e x e r c i s e of i m p a r t i a l judgment can r e a s o n a b l y infer the e x i s t e n c e of the fact sought to be proved." West v. Founders Life Assur. Co. of F l o r i d a , 547 So. 2d 8 7 0 , 871 ( A l a . 1 9 8 9 ) . "'In o u r r e v i e w o f a s u m m a r y j u d g m e n t , we a p p l y the same s t a n d a r d as t h e t r i a l court. Ex p a r t e Lumpkin, 702 So. 2d 4 62 , 465 ( A l a . 1997 ) . Our r e v i e w i s s u b j e c t t o t h e c a v e a t t h a t we m u s t r e v i e w the record in a light most favorable to the nonmovant and must r e s o l v e a l l r e a s o n a b l e doubts a g a i n s t the movant. Hanners v. B a l f o u r Guthrie, Inc., 564 So. 2 d 412 ( A l a . 1 9 9 0 ) . ' " Payton v. Monsanto Co., 801 ( q u o t i n g Ex p a r t e A l f a Mut. (Ala. So. Gen. 2d 829, I n s . Co., 1999)). B. Discovery 29 Order 832-33 ( A l a . 2001 ) 742 2d 182, So. 184 1070484; 1070487; Our standard limited to of review determining discretion Nat'l 1070514 whether of Alabama, appellate court regarding a discovery that trial the 414 will 2d 460 element of costs An on that question Fairfield, III. unjust 396 and So. 2d dealt with court its amendment as do the to most-favored-nation court's discretion. 697 as showing Ex parte fee as the trial Fee reverse the of trial (Ala. the Motor Manufacturing, i n the 30 taxation City of 1981). to Breach-of-Contract option an court's C i t y o f B i r m i n g h a m v. agreements clause An decision is a clear identical case. The agreement original Claims LLC, supra, the to p r o j e c t p a r t i c i p a n t s here, the 1 983). sound d i s c r e t i o n will unfair. 692, First 1982). agreements executed i n the u n d e r l y i n g McLemore, (Ala. trial there R a n k i n v. o n l y upon a s h o w i n g t h a t Hyundai option 503 is exceeded i t s to award a s p e c i a l - m a s t e r Summary J u d g m e n t In McLemore v. we unless i s w i t h i n the appellate o f c o s t s was the Special-Master d e c i s i o n whether court. ruling reverse (Ala. court decision. 2d exceeded involving discovery trial So. matter court So. 437 not C. The the i n making i t s d i s c o v e r y Bank McTier, i n matters option IDB argued i n that the waived option 2002 the agreement. 1070484; 1070487; Southdale that and 1070514 Wheeler/Phillips argue, t h e amendment o f t h e o p t i o n most-favored-nation Southdale purpose the as of Wheeler/Phillips contend option 120 days amendment t o t h e o p t i o n waive clause rely the past remained on that, language "[e]xcept respects option terms agreement and parties" remains the agreement. amended providing unless to the or to waive [of made option the the enforceable. in the writing agreement. option waiver and They agreement most-favored-nation The project i n the of not 31 and by the because that contend price i s unambiguous be specifically clause, participants [the] shall that as purchase of executed i n t h e amendment t o t h e o p t i o n the the original any because the language to delete i s i n a l l other insist did the providing agreement] duly 2002 argue, agreement option extend Wheeler/Phillips the Option "no to sole Because they and option that the specifically clause, Southdale amended h e r e b y , conditions amendment delete effect. in as the February r a t i f i e d and c o n f i r m e d , " and l a n g u a g e effective the in the agreement d i d not most-favored-nation that a g r e e m e n t was e x p i r a t i o n date of the o r i g i n a l o p t i o n or Russells, clause. and the the agreements d i d not waive o f t h e amendment t o t h e o p t i o n date did clause that agreement establishes a 1070484; 1070487; definite 1070514 purchase price most-favored-nation agreements between and of clause the was IDB and $4,500 per eliminated Southdale acre, from and the between the option the IDB to the Wheeler/Phillips. We reversed Russells' the summary breach-of-contract judgment claim for the IDB i n McLemore, as stating: "We h o l d t h a t t h e t e r m s o f t h e amendment t o t h e o p t i o n a g r e e m e n t a r e n o t ' d e f i n i t e a n d c e r t a i n ' as to w a i v e r of the m o s t - f a v o r e d - n a t i o n c l a u s e i n the original option agreement. The language of the o r i g i n a l o p t i o n agreement s p e c i f i c a l l y p r o v i d e d t h a t for a waiver of a term of the agreement to be effective, the waiver must be in writing and e x e c u t e d by b o t h p a r t i e s . A l t h o u g h t h e l a n g u a g e i n t h e amendment t o t h e o p t i o n a g r e e m e n t s e t s f o r t h t h e p r i c e p e r a c r e a t $ 4 , 5 0 0 , we c a n n o t c o n c l u d e t h a t t h e l a n g u a g e i n t h e a m e n d e d o p t i o n as a m a t t e r o f law modified or waived the most-favored-nation c l a u s e i n the R u s s e l l s ' o r i g i n a l o p t i o n agreement. Therefore, a question f o r the j u r y e x i s t s as to whether the amended o p t i o n a g r e e m e n t m o d i f i e d or waived the most-favored-nation clause in the R u s s e l l s ' o r i g i n a l o p t i o n a g r e e m e n t , and a summary j u d g m e n t f o r t h e IDB and a g a i n s t the R u s s e l l s on t h i s ground i s not proper." 7 So. 3d likewise at hold 334. Based in this on case that option agreements m o d i f i e d clause i n Southdale's agreements is a summary j u d g m e n t and question on this or our holding whether waived the the resolved g r o u n d was 32 McLemore, amendment t o we the most-favored-nation Wheeler/Phillips's to in by error. original the jury, option and a 1070484; We 1070487; also 1070514 addressed the in McLemore Russells and McLemore g r o u p t h a t entering a s u m m a r y j u d g m e n t on arguments the trial the clause meaning i n the application of option agreements. In McLemore, the in once the doctrine the erred in of merger the the IDB argued a g r e e m e n t s had delivered. We no stated McLemore: "Thus, t h e mere e x e c u t i o n and d e l i v e r y o f a deed does not merge the consideration in the c o n t r a c t of s a l e i n t o the deed. As we stated in L i p s c o m b v . T u c k e r , 294 A l a . 2 4 6 , 256, 314 So. 2d 8 4 0 , 848 (1975): "'If the receipt of valuable consideration i s r e c i t e d i n a deed, the r e c i t a l i s merely prima f a c i e e v i d e n c e of the full agreed c o n s i d e r a t i o n and parol e v i d e n c e i s a d m i s s i b l e t o show t h a t other and a d d i t i o n a l v a l u a b l e c o n s i d e r a t i o n was t o be received by the grantor such as additional money or credit on a p r e - e x i s t i n g debt or mortgage.' "Here, the deeds i n q u e s t i o n p r o v i d e t h a t the consideration is '$10.00 and other valuable consideration.' This r e c i t a t i o n of consideration p e r m i t s i n q u i r y i n t o l i k e c o n s i d e r a t i o n f o r the s a l e of the properties, and the Russells' and the McLemore g r o u p ' s b r e a c h - o f - c o n t r a c t c l a i m s are not b a r r e d by t h e d o c t r i n e o f m e r g e r . " 33 as most-favored-nation option d e e d s were e x e c u t e d and claim fact exists and t h a t under the effect court by their breach-of-contract because, they s a i d , a genuine i s s u e of m a t e r i a l to made 1070484; 7 So. 1070487; 3d at likewise 1070514 336. Based hold in on this our holding case that Wheeler/Phillips's breach-of-contract the doctrine was o f m e r g e r , and in McLemore, we Southdale's claims and are not b a r r e d error. Finally, we a s u m m a r y j u d g m e n t on by examined the language of this ground the option a g r e e m e n t s i n McLemore t o d e t e r m i n e w h e t h e r t h e y are and whether jury as to "a genuine whether the project planned for property i s part of Russells and per acre." presented, case, we the 7 the issue material Shelton this the of project, vast concluded 3d at 337. majority After of and, whether, McLemore group s h o u l d So. fact exists for property Property' which ambiguous was i f like part the is the identical the $12,000 evidence in i n McLemore: "We a g r e e w i t h t h e R u s s e l l s and t h e McLemore group t h a t the language i n the o p t i o n agreements i s a m b i g u o u s , t h a t i t c a n n o t be r e s o l v e d b y r u l e s o f contract construction, and that they presented s u b s t a n t i a l evidence c r e a t i n g a genuine issue of m a t e r i a l f a c t f o r t h e j u r y as t o t h e m e a n i n g and a p p l i c a t i o n of the m o s t - f a v o r e d - n a t i o n c l a u s e i n the option agreements. S p e c i f i c a l l y , the p r o v i s i o n s , ' [ i ] f P u r c h a s e r e l e c t s to e x e r c i s e t h i s Option the p u r c h a s e p r i c e f o r t h e P r o p e r t y s h a l l be d e t e r m i n e d as f o l l o w s ' a n d 'the p u r c h a s e p r i c e s h a l l i n no e v e n t be l e s s t h a n t h e p r i c e p e r a c r e p a i d t o any other landowner i n c l u d e d i n the p r o j e c t p l a n n e d f o r 34 'the Shelton Shelton, have been p a i d reviewing of the this 1070484; 1070487; 1070514 the Property' are ambiguous because reasonable p e r s o n s c o u l d d i f f e r on w h e t h e r ' t h e p r i c e p e r acre p a i d t o any o t h e r l a n d o w n e r i n c l u d e d i n t h e p r o j e c t ' r e f e r s t o a p u r c h a s e p r i c e p a i d o n l y b y t h e IDB or to a purchase p r i c e paid by any purchaser for property included in the project. If the i m p l i c a t i o n i s t h a t the language r e f e r s to payments o n l y b y t h e IDB, t h e n t h e m o s t - f a v o r e d - n a t i o n c l a u s e i s t r i g g e r e d o n l y i f t h e IDB p a i d o t h e r l a n d o w n e r s more t h a n i t p a i d t h e s e l l e r s - - t h e R u s s e l l s and the McLemore group. If the language refers to a p u r c h a s e p r i c e p a i d b y a n y p u r c h a s e r on p r o p e r t y f o r the p r o j e c t , then the m o s t - f a v o r e d - n a t i o n c l a u s e i s t r i g g e r e d r e g a r d l e s s of whether the p u r c h a s e p r i c e was p a i d b y t h e IDB o r a n o t h e r e n t i t y . Reasonable persons c o u l d d i f f e r over whether the r e f e r e n c e to 'price per acre paid to any other landowner' i n c l u d e s by i m p l i c a t i o n t h e i n t e r l i n e a t i o n of the p h r a s e 'by t h e IDB' so t h a t t h e c o n t r a c t means t h a t the most-favored-nation clause is triggered only when t h e p u r c h a s e p r i c e p a i d b y t h e IDB t o a n y other landowner exceeds the p r i c e p a i d to the seller. Thus, a j u r y q u e s t i o n i s p r e s e n t e d . Additionally, d e p e n d i n g on r e s o l u t i o n o f t h e a b o v e a m b i g u i t y , the e v i d e n c e i s i n c o n f l i c t as t o w h e t h e r S h e l t o n was a 'landowner included in the project.' Because r e a s o n a b l e p e r s o n s c a n d i f f e r on t h e m e a n i n g o f t h e c l a u s e , i . e . , whether the language ' p r i c e per acre p a i d t o any o t h e r l a n d o w n e r i n c l u d e d i n t h e p r o j e c t ' obligated the IDB to pay the Russells and the McLemore g r o u p $12,000 p e r acre and whether the S h e l t o n p r o p e r t y was i n c l u d e d as p a r t o f t h e p r o j e c t s i t e , the evidence p r e s e n t s q u e s t i o n s f o r the j u r y t o r e s o l v e , a n d t h e s u m m a r y j u d g m e n t f o r t h e IDB i s reversed." 7 So. 3d likewise at hold agreements questions 338-39. in is for this Based on case that ambiguous a jury to and our the that resolve. 35 holding in language the McLemore, in the evidence Therefore, the we option presents summary 1070484; 1070487; 1070514 judgment i n f a v o r Southdale's m u s t be and the remaining p r o j e c t p a r t i c i p a n t s as Wheeler/Phillips's breach-of-contract to claims reversed. IV. Section claims of are Summary J u d g m e n t 6-2-38(l), subject to Ala. as to Code a two-year Fraud 1975, Claims provides statute of that fraud limitations. "That statute of limitations i s subject to the 'saving clause' provided by § 6-2-3[, A l a Code 1975]: "'In actions seeking relief on ground of fraud where the statute created a bar, the claim must not considered as having accrued until d i s c o v e r y by t h e a g g r i e v e d p a r t y of f a c t c o n s t i t u t i n g the f r a u d , a f t e r which must have two years within which prosecute his a c t i o n . ' " Ex parte Seabol, 782 So. 6-2-3, A l a . Code 1975, statute of have 782 409, So. 2d 421 at on or, i n the discovered, the 216; (Ala. 212, 216 (Ala. a claim until Foremost c o n s t i t u t i n g the Ins. Co. Therefore, v. the discovers are a reasonable "'which would put 36 the Section tolling the e x e r c i s e of reasonable facts 1997). fraud c o m m e n c e s when t h e p l a i n t i f f known 2000 ). s u p p l i e s an o b j e c t i v e t e s t , limitations party discovers 2d the has be the the he to aggrieved care, fraud. Parham, the 6 93 limitations should Seabol, So. 2d period f r a u d o r when f a c t s mind on notice that 1070484; 1070487; facts support to inquiry.'" 1195 v. 1070514 a claim Auto-Owners ( A l a . 2001) Tanner, of fraud Ins. (quoting Co. might v. on 341 So. 2d and notice that 485, they of least 2002. October limitations filed two-year argue to argue, April the of the complaint of and the untimely. The trial limitations barred in claims argue, 2004, The in that limitations court tort a well project filed was until at of they within on notice George going to purchase participants the fraud the f o l l o w i n g month that the when project concluded the participants 2002 CSX mind into were put April not statute the the on did O c t o b e r 2002, and May Therefore, McKinney, 1187, a reasonable property Wheeler/Phillips complaint the 2d they further Shelton limitations. representatives counsel that inquire until fraud statute Although argue b e g i n to run property. 2004, Williams, should and So. upon 1977)). they of potential Shelton (Ala. Therefore, Southdale their 488 sale initial statute that notified the the d i d not their 822 f a c t s t h a t would have put circumstances as Abston, Wheeler/Phillips knowledge of discovered J e f f e r s o n County Truck Growers Ass'n Southdale gain be claims the ran statute in was of claims. shareholder in Southdale, and f o r W h e e l e r / P h i l l i p s , were i n f o r m e d i n A p r i l 37 1070484; 1070487; 2 0 0 2 t h a t an George o p t i o n had shared purchase 1070514 with that them as Williams effort to was met McNair with him representing the State to that the Williams represented, for testified t h a t he whether had $12,000 p e r Scott Shelton $4,500 p e r until Abney, not CSX Shelton Williams to from the to seek October option acre but had that O c t o b e r 2 0 0 2 , when one as was through of had the lawyers Abney i n the Hyundai p r o j e c t . purchased the acre. the CSX continued McNair from A p r i l State, property, separate a t more t h a n to Shelton that a "maze" o f c o n f u s i o n referred the transaction discover a c t u a l l y been e x e r c i s e d on understanding a f r o m G e o r g e and 2 0 0 2 i n an he his property Hyundai p r o j e c t . information been o b t a i n e d revealed been property previously i n A u g u s t 2002 then shared h i s knowledge with McKinney. The p r o j e c t p a r t i c i p a n t s a r g u e t h a t M c K i n n e y and were p l a c e d a copy of CSX the w o u l d be also argue copy of document was on the notice Shelton on A p r i l option e x e r c i s i n g the that McKinney project concerning conducted to approve 2 0 0 2 , when G e o r g e g a v e a g r e e m e n t and option and agreement the 8, Shelton the read could the property. project 38 informed i n s t e a d of Williams and Williams the have them City. public agreement, that They obtained provision in A them the a that hearing project 1070484; 1070487; participants 1070514 s a y , and W i l l i a m s , as an a t t o r n e y , and McKinney, as t h e p r o b a t e j u d g e f o r Montgomery County, were i n p o s i t i o n s in which and they have Wheeler/Phillips participants a could straw engaged purchaser favored-nation hidden from learned argue in of the meeting. response i n an a c k n o w l e d g e d i n order clause to avoid and them u n t i l that several property f o r $4,500 p e r a c r e , paid "ploy" the effect this months "ploy" after the project t o u s e CSX a s o f t h e mostwas they carefully sold their Shelton. to In L i b e r t y N a t i o n a l 2d 307 , 308 question of discovered Parker Life ( A l a . 1 997), when the fraud Court Life the t h a n t h e $12,000 p e r a c r e I n s u r a n c e Co. v . P a r k e r , this party Court quoting stated discovered i s generally continued, Insurance rather that Southdale one Kelly or that should f o r the jury." v. C o n n e c t i c u t C o . , 628 S o . 2 d 4 5 4 , 458 (Ala. 1993): " ' " [ F ] r a u d i s d i s c o v e r a b l e as a m a t t e r o f law f o r purposes of the statute of limitations when o n e r e c e i v e s documents t h a t w o u l d p u t o n e on s u c h n o t i c e t h a t t h e f r a u d r e a s o n a b l y s h o u l d be d i s c o v e r e d . " ... H o w e v e r , ... d o c u m e n t s t h a t a r e v a g u e o r that do n o t r e a s o n a b l y indicate that a fraud has occurred, based on the circumstances of each case, will not "warrant a f i n d i n g that the fraud claim i s b a r r e d as a m a t t e r o f l a w . " ' 39 703 S o . "[t]he have The Mutual 1070484; 1070487; 1070514 "628 S o . 2 d a t 458 ( e m p h a s i s a d d e d ; o t h e r e m p h a s i s o m i t t e d ) ( q u o t i n g H i c k o x v . S t o v e r , 551 S o . 2 d 2 5 9 , 262 (Ala. 1989))." (Footnote We omitted.) recently discovered question 1 or affirmed should f o r the jury. S o . 3 d 2 3 , 31 have the concept discovered that fraud when a party i s normally a I n J o n e s v. A l f a M u t u a l I n s u r a n c e Co., (Ala. 2008), we stated: " A l f a notes t h a t t h i s Court has p r e v i o u s l y h e l d t h a t ' " f r a u d i s d i s c o v e r a b l e as a m a t t e r o f l a w f o r p u r p o s e s o f t h e s t a t u t e o f l i m i t a t i o n s when o n e r e c e i v e s d o c u m e n t s t h a t w o u l d p u t o n e on s u c h n o t i c e that the fraud reasonably s h o u l d be d i s c o v e r e d . " ' K e l l y v . C o n n e c t i c u t M u t . L i f e I n s . C o . , 628 S o . 2 d 4 5 4 , 458 ( A l a . 1 9 9 3 ) ( q u o t i n g H i c k o x v . S t o v e r , 551 So. 2 d 2 5 9 , 262 ( A l a . 1 98 9 ) , o v e r r u l e d on other g r o u n d s , F o r e m o s t I n s . C o . v . P a r h a m , 693 S o . 2 d 409 (Ala. 1997)). The s e n t e n c e i m m e d i a t e l y preceding the above-quoted sentence from Kelly, however, states: '"The q u e s t i o n o f when a p l a i n t i f f should h a v e d i s c o v e r e d f r a u d s h o u l d b e t a k e n away f r o m t h e j u r y a n d d e c i d e d as a m a t t e r o f l a w o n l y i n c a s e s where t h e p l a i n t i f f actually knew o f f a c t s that would have p u t a r e a s o n a b l e p e r s o n on n o t i c e o f fraud."' 628 S o . 2 d a t 458 ( q u o t i n g H i c k s v . G l o b e L i f e & A c c . I n s . C o . , 584 S o . 2 d 458 , 463 ( A l a . 1 9 9 1 ) , o v e r r u l e d on o t h e r g r o u n d s , F o r e m o s t I n s . Co., s u p r a ) ; see a l s o G i l m o r e v. M & B R e a l t y Co., 895 S o . 2 d 2 0 0 , 210 ( A l a . 2 0 0 4 ) ( ' " ' [ t ] h e question o f when a p a r t y d i s c o v e r e d o r s h o u l d h a v e d i s c o v e r e d t h e f r a u d i s g e n e r a l l y one f o r t h e j u r y ' " ' (quoting Ex p a r t e S e a b o l , 782 S o . 2 d 2 1 2 , 2 1 6 ( A l a . 2 0 0 0 ) , quoting i n turn Liberty Nat'l Life I n s . Co. v . P a r k e r , 703 S o . 2 d 3 0 7 , 308 ( A l a . 1 9 9 7 ) ) ) . " 40 1070484; 1070487; Under the Southdale circumstances and of of this Wheeler/Phillips would have put undisputed 1070514 a reasonable the Shelton option of the C i t y and actually person that they received assignable the i s whether t h a t document s h o u l d had occurred, explanation was going option one especially George t o buy notice notice to City. the facts that fraud. i t was in true cannot say here but the not--that was CSX t h a t the of i t s e l f put Moreover, the reason at the time to doubt, would l e a d a reasonable implicated CSX, the because, Shelton project." existence later alter status the agreement--as notice that the most-favored-nation upon the would That not other be purchase a documents of of the had no person to the existed was Shelton included or would insufficient in come such n o t i c e reasonably 41 should to put them have been not land does document t h e y saw--the S h e l t o n document fraud Williams clause "landowner t h a t would have a f f o r d e d a and Shelton that would alleged. which McKinney fraud by explanation, that favor question accompanied accompanying conclude It is 2002 a c o p y However, the We fraud that running be the p r o p e r t y . of of of a document a g r e e m e n t i s a document i n and on knew say have a l e r t e d them t h a t a when thought on cannot from George i n A p r i l agreement, by c a s e , we by the into not option on such discovered. 1070484; The 1070487; facts option 1070514 presented agreement at was representatives respectively, that CSX by are Williams that the into the existence McKinney with by at t h a t alarm when Under of these when the ultimate f o r the State. time, they on initially fraud of we claims entering basis the that V. t h e y were b a r r e d though contract we have as as to by the to Each and whether the claims was tolled the judgments on a that trial those summary court erred grounds, we judgment is 42 jury in may erred on in the limitations. Participant whether statute by t h a t must claims of of conclude court fraud Project are therefore the statute concluded occurred fraud whether judgment Summary J u d g m e n t Even the summary trial facts alleged to the and learned be Therefore, of exercised Wheeler/Phillips accrued i s a question a jury. facts: sale notice S o u t h d a l e and presented as McKinney circumstances, the Shelton Williams, t o H y u n d a i and the not, the Wheeler/Phillips, Shelton then assigned caused option. with of and and consistent provided question to a contract funds have Shelton that not were t h e r e f o r e would the Southdale w h i c h was i t , using time disclosed of entered the p r o p e r t y , the of a breach of limitations on questions entering the nevertheless appropriate. This and that summary determine Court's 1070484; review can 1070487; i s not affirm presented by, or limited a by to summary the even 1070514 the trial judgment record, i f i t was court's on whether any that r e j e c t e d by, valid ground the 881 Co. So. v. U n i v e r s i t y of Alabama H e a l t h 2d 1013, 1020 (Ala. A. The City first argues The that the liable was not the City by disagree. the assigned City "the (the have to issued assumed the the liable IDB Found., June IDB not and debt Life P.C., to any in did exercise therefore the 'County'), provide Parcels." As obligations and No. IDB 111-2002, conjunction the purchase t h e C i t y and necessary the IDB's with funds of the options, and County each assignee, liabilities 43 was breach-of-contract the and to circumstances, Resolution 2002 a party i t argues, Under such under Pursuant in unless i t s r i g h t s to purchase thereunder to the C i t y Montgomery County acquired the a c t i n g as t h e C i t y ' s a g e n t . Hyundai p r o j e c t , but by was f o r b r e a c h of c o n t r a c t because, adopted executed City not We court, City agreements theory. considered 2003). option i t i s not we ground Liberty Nat'l Servs. the says, and legal was trial due-process c o n s t r a i n t s require otherwise. Ins. reasoning, the and have the City assigned 1070484; 1070487; contracts. 35 1070514 Meighan v. Watts C o n s t r . Co., 475 S o . 2 d 8 2 9 , 834¬ ( A l a . 1985). The bars City also a l l claims argues against that i t . § 11-47-23, Section A l a . Code 11-47-23 1975, provides: " A l l claims against the m u n i c i p a l i t y (except bonds and i n t e r e s t coupons and c l a i m s f o r damages) s h a l l be p r e s e n t e d t o t h e c l e r k f o r p a y m e n t w i t h i n two y e a r s f r o m t h e a c c r u a l o f s a i d c l a i m o r s h a l l b e barred. Claims f o r damages g r o w i n g o u t o f t o r t s shall be presented within s i x months from the a c c r u a l t h e r e o f o r s h a l l be b a r r e d . " As that to the the breach-of-contract breach occurred more Wheeler/Phillips and S o u t h d a l e the those City City argues, assumes accrued that either claims than filed the two their are barred. City on March executed, the option 29, 2002, o r on A p r i l agreement was when argues years before action; therefore, I n so a r g u i n g , the cause of a c t i o n f o r breach a g r e e m e n t was Shelton claims, the of the contract Shelton option 8, 2 0 0 2 , when t h e c o p y o f given to Williams and M c K i n n e y , o r on A p r i l 1 5 , 2 0 0 2 , when t h e p r o j e c t a g r e e m e n t was signed, 15, and or Southdale We on May 2002, when c l o s e d the sale of t h e i r cannot accept assumes. In C i t y 2005), any stated: we of Mobile of the Wheeler/Phillips land. accrual v . C o o k s , 915 44 dates the City S o . 2 d 2 9 , 33 ( A l a . 1070484; 1070487; 1070514 "A c a u s e o f a c t i o n a c c r u e s u n d e r § 1 1 - 4 7 - 2 3 when an a c t i o n c a n be m a i n t a i n e d . Couch v. C i t y o f S h e f f i e l d , 708 S o . 2 d 144 ( A l a . 1 9 9 8 ) ; H i l l v . C i t y o f H u n t s v i l l e , 590 S o . 2 d 876 ( A l a . 1 9 9 1 ) . This C o u r t h a s s t a t e d t h e f o l l o w i n g w i t h r e g a r d t o when a cause of a c t i o n accrues: "'"The v e r y basic and l o n g settled r u l e of c o n s t r u c t i o n of our courts i s that a statute of l i m i t a t i o n s begins to run i n favor of the p a r t y l i a b l e from the time the cause of a c t i o n 'accrues.' The c a u s e o f a c t i o n 'accrues' as soon as t h e p a r t y i n whose favor i t arises i s entitled to m a i n t a i n an a c t i o n t h e r e o n . " ' " (Quoting quoting Ex parte i n turn Floyd, Garrett 19 (Ala. 1979).) for breach of contract jury breach could Shelton than were closed complaint which This that breached, on t h e s a l e i n May cause 2004, then a cause well that and within i s breached. the f i l i n g 45 Here, i f and Southdale the e a r l i e s t such a 2002, when a n d was p a i d more had been Southdale two y e a r s f o r breach of action (Ala. 1983). of her property and S o u t h d a l e of action has h e l d ( A l a . 2001), would have been August Wheeler/Phillips their Court s e t t l e d that the Wheeler/Phillips occurred Wheeler/Phillips property. 3 0 3 , 308 a c c r u e s when t h e c o n t r a c t i n fact have 2d 429 S o . 2 d 2 7 8 , 280 determines contracts So. v . R a y t h e o n C o . , 368 S o . 2 d 5 1 6 , 5 1 8 ¬ It i s well Stephens v. C r e e l , a 7 96 paid for their filed their of the date of contract o f an a c t i o n on accrued. within the 1070484; 1070487; six-month period 1070514 in which s u f f i c i e n t presentment Diemert v. City Likewise, the Southdale within contract claim against We Mobile, filing comply turn now tort of the claim must be of the c l a i m to comply w i t h 474 the with the C i t y § So. action two-year c l a i m m u s t be f i l e d to claims of a 2d by period was § (Ala. The claims. 1 985). Wheeler/Phillips i n which are not barred was 11-47-23. by and a breach-of- s u f f i c i e n t presentment 11-47-23. to the t o r t 663 filed of the breach-of-contract § This 11-47-23. C o u r t has held: "Some p r e s e n t a t i o n of the c l a i m within six months of i t s a c c r u a l i s mandatory. F r a z i e r v. C i t y of M o b i l e , 577 So. 2 d 439 ( A l a . 1 9 9 1 ) . A cause of a c t i o n a c c r u e s as s o o n as t h e p a r t y i n whose f a v o r i t a r i s e s i s e n t i t l e d t o m a i n t a i n an a c t i o n t h e r e o n . B u c k v . C i t y o f R a i n s v i l l e , 572 So. 2 d 419 ( A l a . 1990). I n D i e m e r t v . C i t y o f M o b i l e , 474 So. 2 d 663 (Ala. 1 9 8 5 ) , we h e l d t h a t t h e f i l i n g o f an a c t i o n within the six-month period was sufficient p r e s e n t m e n t o f t h e c l a i m t o c o m p l y w i t h §§ 1 1 - 4 7 - 2 3 and -192, D i e m e r t , a t 666." Hill In v. Ivory City of H u n t s v i l l e , v. F i t z p a t r i c k , 445 noted that of the n o t i c e - o f - c l a i m l i m i t a t i o n s , but held liable So. So. f o r the 2d 2d 876, 262, statute i s "a s t a t u t e probate nonclaim statute." be 590 876 264 ( A l a . 1991). ( A l a . 1984), i s not merely a intentional torts 46 statute of nonclaim s i m i l a r to Furthermore, a m u n i c i p a l i t y of we the cannot i t s employees. 1070484; See 1070514 11-47-190, § 1070487; Ala. Montgomery, It 779 is So. their mandated all entered tort claims in claims however, the i s due I I I of this t o be to in entering basis of trial his court immunity file acts of on entered until they statutorily bar summary and this nor the The Southdale City to judgment Wheeler/Phillips's alternative i n i t s favor f o r the ground; as to reasons stated the in 7 Bright argue t h a t the a summary j u d g m e n t i n B r i g h t ' s correctly City a procedural as City. Wheeler/Phillips State-agent in his to claim i s reversed B. erred the affirmed opinion. S o u t h d a l e and to the v. Southdale failure summary j u d g m e n t breach-of-contract Part as neither claim s i x months against i t s favor a Cremeens 2000). that This within 1975; (Ala. presented complaint. claim tort 1190 undisputed Wheeler/Phillips filed 2d Code immunity. concluded individual Bright that he trial favor on the that the entitled to contends is court capacity. On r e h e a r i n g , t h e C i t y a r g u e s t h a t i t i s e n t i t l e d t o same i m m u n i t y t h a t i s a c c o r d e d t h e IDB. B e c a u s e t h i s a r g u m e n t was r a i s e d f o r t h e f i r s t t i m e on r e h e a r i n g , we c a n n o t c o n s i d e r i t . D e n n i s v . N o r t h c u t t , 923 So. 2d 275 (Ala. 2005). 7 47 1070484; 1070487; Southdale 792 and W h e e l e r / P h i l l i p s S o . 2 d 392 rule 1070514 (Ala. 2000), governing State-agent in Cranman e x c e p t i o n s is not e n t i t l e d rely i n which immunity. to that rule, on E x p a r t e this Court restated the The C o u r t 8 Cranman, also stated i . e . , when a S t a t e agent t o immunity: "Notwithstanding anything to the contrary i n the f o r e g o i n g statement of the r u l e , a State agent s h a l l n o t b e immune f r o m c i v i l l i a b i l i t y i n h i s o r h e r personal capacity fi "(2) when the State agent acts willfully, m a l i c i o u s l y , f r a u d u l e n t l y , i n bad f a i t h , beyond h i s or h e r a u t h o r i t y , o r under a m i s t a k e n i n t e r p r e t a t i o n of t h e l a w . " 792 So. 2d a t 405. that is Bright, not his i n obtaining entitled willfully, Southdale to and W h e e l e r / P h i l l i p s the option immunity on t h e S h e l t o n because, they contend property, s a y , he m a l i c i o u s l y , f r a u d u l e n t l y , i n bad f a i t h , acted and beyond authority. Bright testified his authority the as f o l l o w s to obtain i n h i s deposition the option from Shelton concerning on b e h a l f of City: E x p a r t e C r a n m a n , 792 S o . 2 d 392 ( A l a . 2 0 0 0 ) , was d e c i d e d by a p l u r a l i t y o f t h i s C o u r t . I n E x p a r t e B u t t s , 775 S o . 2 d 173 (Ala. 2000), the Court adopted the t e s t f o r State-agent i m m u n i t y announced i n Cranman. 8 48 1070484; "Q. 1070487; 1070514 Before y o u w e n t o u t a n d met w i t h - - a n d s i g n e d the Shelton option contract, d i d you get council approval t o buy t h a t p r o p e r t y before you went o u t t h e r e ? fi "A. That m o r n i n g , no. transaction, not-- "Q. do that Okay. "A. --that "Q. A n d I d i d t h e m a t h , a n d I'm r o u n d i n g up B u t 93 a c r e s a t $ 1 2 , 0 0 0 an a c r e was a b o u t million-dollar commitment. Does that about r i g h t ? here. a 1.1 sound "A. I f y o u r numbers "Q. I n order t o s p e n d 1.1 m i l l i o n o f t h e money t o buy land, would you have a u t h o r i z a t i o n from the c i t y c o u n c i l ? I Specifically to recall. are r i g h t , yeah. City's needed fi "A. Yeah, would afterwards. I - -I could have gotten i t fi "Q. B u t i f I'm f o l l o w i n g y o u r t e s t i m o n y , when y o u w e n t o u t t h e r e t h a t d a y ... t o g e t t h a t o p t i o n , y o u w e r e n ' t r e a l l y c o n c e r n e d a b o u t t h e money b e c a u s e y o u knew s o m e b o d y e l s e was g o i n g to a c t u a l l y pay f o r i t ? "A. Right. "Q. So w o u l d i t b e f a i r to say, then, you were g e t t i n g t h i s option e i t h e r f o r the State or f o r CSX? I felt they would. 49 1070484; 1070487; 1070514 "A. I was g e t t i n g an o p t i o n . I didn't was getting i t for. And I was b e h a l f of the mayor. know who signing "Q. But you City? i t "A. I knew I was c o m m i t t i n g t h e C i t y , I was p u t t i n g my name as m a y o r on too, because there. "Q. You the do "A. To my k n o w l e d g e , i t had not gone b e f o r e the city council specifically for this transaction. Now, t h e r e may be a r e s o l u t i o n o u t t h e r e g i v i n g me g e n e r a l a u t h o r i t y t o n e g o t i a t e c o n t r a c t s , o r a s t a t u t e , as p a r t o f my j o b as t h e m a y o r . So t h a t may be o u t t h e r e t h a t I'm not even aware about at this point. I need to do some r e s e a r c h to determine t h a t . "Q. The day you went out there s o u n d s t o me l i k e y o u knew y o u t h e C i t y ' s money when y o u g o t "A. Y o u d o n ' t know t h a t . I d i d n ' t know t h a t . A l l I know, t h i s was c r i t i c a l and i m p o r t a n t t o me as m a y o r t o d e l i v e r on b e h a l f o f t h e C i t y an option to t i e t h i s property down t o make t h e knew you weren't d i d n ' t have the C i t y , d i d you? getting authority to for that I on the for t o do that, i t weren't spending that option. deal." Bright Hemphill; "Q. he testified then that he had never seen the e-mail testified: ... [ I ] f y o u h a d Hemphill], would handled t h i s ? been g i v e n t h i s e - m a i l [ f r o m y o u h a v e c h a n g e d t h e way you fl 50 from 1070484; "A. The 1070487; L e t me a n s w e r . No. T h i s was i m p o r t a n t f o r us t o make t h i s f o r o u r S t a t e , a n d I t h o u g h t i t - ¬ this was nothing significant that had any i m p r e s s i o n o n m e - - i m p a c t o n me w h a t s o e v e r . We had p a i d - - o r t h e IDB h a d p a i d t h e l a n d o w n e r s d o u b l e w h a t i t was w o r t h a l r e a d y , a n d t h i s was an 11th-hour transaction t o make the deal happen. E v e r y b o d y has g o t t o keep t h a t i n t h e focus." foregoing Bright 1070514 testimony as s u b s t a n t i a l e v i d e n c e that was a c t i n g b e y o n d h i s a u t h o r i t y . Although Bright agreements contained evidence other serves on denied the parcels t h a t he was a w a r e t h a t other a most-favored-nation indicating that he was than the option the Shelton clause, aware there property i s substantial of the clause i n the option agreements, of the consequences of t r i g g e r i n g i t , and of h i sp a r t i c i p a t i o n the circumstances, of law. judgment capacity, The i n the effort t o c i r c u m v e n t i t . Under he i s n o t e n t i t l e d t o i m m u n i t y as a m a t t e r trial court as t o t h e c l a i m s and t h a t judgment erred against i n entering Bright i s due t o be t h e summary in his reversed. individual 9 O n r e h e a r i n g , B r i g h t a r g u e s t h a t b e c a u s e a l l a c t i o n s he t o o k i n c o n n e c t i o n w i t h o b t a i n i n g t h e o p t i o n were t a k e n i n h i s c a p a c i t y a s m a y o r , no c l a i m s a c c r u e d a g a i n s t h i m i n d i v i d u a l l y ; t h a t any t o r t c l a i m s a g a i n s t h i m a r e b a r r e d by § 11-47-23 b e c a u s e he was a t a l l t i m e s a c t i n g i n h i s c a p a c i t y a s m a y o r ; a n d t h a t he i s n o t a m e n a b l e t o s u i t i n h i s i n d i v i d u a l c a p a c i t y for t h e same r e a s o n s as J o s e p h i s not. Because these a r g u m e n t s w e r e r a i s e d f o r t h e f i r s t t i m e on r e h e a r i n g , we 9 51 1070484; 1070487; Because claims 1070514 Bright against i s no l o n g e r in at a May 2 0 0 4 c o m p l a i n t that complaint higher Southdale nation Strange than to avoid misrepresentations substituted years property to Wheeler/Phillips i n that singular or The "A," d e s c r i b e d as p l u r a l ] who i n relating i n this made making to the sale or case." Wheeler/Phillips and o t h e r s parcels. complaint. participated at issue and the most-favored- defendant to the p l a i n t i f f s named and for fictitious In the Southdale defendant A. a r g u e s t h a t he was named a s a d e f e n d a n t m o r e t h a n t w o after case and t h a t the Strange the Shelton agreements f o rt h e other or complaint, the defendants complying with [whether of the property amended Strange paid d o e s name a f i c t i t i o u s misrepresentations second to purchase that i n the option individuals purchase alleged that was n o t named a s a d e f e n d a n t complaint "those price a r e moot. Strange conspired i n order clause of the City, the him i n h i s o f f i c i a l c a p a c i t y C. The t h e mayor original the statute of limitations had e x p i r e d i n this a s t o h i m t h e amendment d o e s n o t r e l a t e b a c k t o date of the p l e a d i n g . cannot consider (Ala. 2005). them. Dennis 52 The t r i a l v. N o r t h c u t t , court's summary 923 S o . 2 d 2 7 5 1070484; 1070487; judgment i n favor the 1070514 o f t h e p r o j e c t p a r t i c i p a n t s was e x p i r a t i o n of the statute of to that run when t h e s h o u l d be statute of However, Wheeler/Phillips Strange's relation-back Instead, that they their 2 0 0 5 was argue entering We and Southdale argument f o r the first s u b s t i t u t i o n of Strange we can conclude time Southdale to fraud have did in their principal in their began so not reply as a d e f e n d a n t that a s u m m a r y j u d g m e n t on the statute the availability of amended limitations of the Wheeler/Phillips's This Court, 979 i n Lloyd So. 2d 784, does not we Noland trial held. address briefs. briefs i n February of reach Foundation, order i t s rejection relation an back of of the issue omitted briefs. I n c . v. ( A l a . 2007), HealthSouth stated: "The F o u n d a t i o n ' s o r i g i n a l b r i e f t o t h i s C o u r t addresses only the issues of res j u d i c a t a and c o l l a t e r a l estoppel. HealthSouth's b r i e f addresses t h o s e i s s u e s , as w e l l as t h e f o u r g r o u n d s asserted i n i t s motion to dismiss. In i t s r e p l y b r i e f , the Foundation addresses the a d d i t i o n a l grounds argued by H e a l t h S o u t h . This comports with t h i s Court's 53 of principal Southdale's n.3 court's of the e x p i r a t i o n involve cannot and 797 the the b a s i s doctrine complaint, from Corp., as and proper. Unless second limitations f o r the j u r y . a question on limitations. In t h e i r p r i n c i p a l b r i e f s , W h e e l e r / P h i l l i p s argue grounded 1070484; 1070487; 1070514 interpretation of the rules of a p p e l l a t e review. See P a v i l i o n Dev., LLC v . J B J P ' s h i p , 979 So. 2d 24 ( A l a . 2007) (where t h e t r i a l c o u r t s p e c i f i e s a b a s i s for its ruling, the appellant does not waive a d d i t i o n a l arguments not a d d r e s s e d i n i t s p r i n c i p a l brief)." (Emphasis added.) Because the Wheeler/Phillips doctrine b e c a u s e we back is basis of cannot an j u d g m e n t as his trial court's as relate therefore, as him, B e c a u s e we affirm As as for the the claims Strange to to the reasons not a a separate in the against stated and necessary the in the original of not address briefs, of and relation the capacity specified the on summary the second basis amended complaint, limitations summary j u d g m e n t City, moot, statute from must a f f i r m defendant back to the address claims mayor of the is availability r u l i n g , we the the need not are the did principal to Strange i n h i s i n d i v i d u a l substitution we that argument c o m p l a i n t d i d not basis, Southdale back i n t h e i r conclude additional f o r the that relation and and, had run. Strange on this a r g u m e n t s as to him. as remaining to Strange i n his o f f i c i a l capacity claims are Part they sounding i n t o r t V.A. The breach-of-contract remain pending. party 54 in his moot official To the extent capacity to 1070484; 1070487; effectuate 1070514 any judgment Wheeler/Phillips D. Section the County and the is a body c o r p o r a t e , of record." county entity. from the Clair s u e d i n any suit, court therefore, in contract, or must comply this County, 1, 5 2d county claims As So. "Every a l l county commission. 384 involved. However, r e q u i r e m e n t o f a p r e s e n t m e n t o f an to St. in tort and Commission o r be governmental a Southdale provides: immune a county, whether v. County not against claim remains Code 1975, is i t the he w i t h p o w e r t o sue because with of City, 11-1-2, A l a . is favor against The A in itemized, Court (Ala. stated verified i n Cook 1980): " T h e r e i s no r e s t r i c t i o n t o t h e t y p e o f suit t h a t may be brought against the county--tort or contract. The o n l y r e q u i r e m e n t s t h a t m u s t be met r e g a r d i n g a s u i t a g a i n s t a c o u n t y a r e s e t out i n §§ 6 - 5 - 2 0 ( a ) , 1 1 - 1 2 - 5 , 11-12-6, and 11-12-8, Code 1975 requiring presentment of an itemized, verified c l a i m , to the c o u n t y c o m m i s s i o n w i t h i n t w e l v e months o f a c c r u a l , a n d a c t e d on w i t h i n n i n e t y d a y s p r i o r t o commencement o f t h e s u i t . " It is undisputed that neither W h e e l e r / P h i l l i p s p r e s e n t e d a c l a i m to the any time. acts the as This failure a procedural bar County Commission. favor i s due to be to f i l e to The affirmed the against mandated the 55 this alternative in ground. at claim County summary j u d g m e n t e n t e r e d on nor County Commission statutorily a l l claims Southdale and their 1 0 7 0 4 8 4 ; 1 0 7 0 4 8 7 ; 1070514 E. Alabama law i s c l e a r sued in his or M a r s h a l l County the Court her Joseph that a county commissioner individual Commission, capacity. 746 In So. 2 d 1 0 0 1 , 1004 cannot be Smitherman v. ( A l a . 1999), stated: "We f i r s t c o n s i d e r t h e t r i a l c o u r t ' s r u l i n g t h a t the c o u n t y c o m m i s s i o n e r s and t h e c o u n t y e n g i n e e r a r e not amenable to s u i t i n t h e i r i n d i v i d u a l capacities. The t r i a l c o u r t r e l i e d on C o o k v . S t . C l a i r C o u n t y , 384 So. 2 d 1 ( A l a . 1 9 8 0 ) , i n w h i c h t h i s C o u r t h e l d : " ' C o u n t i e s are amenable to s u i t i n t o r t under Code o f A l a b a m a , 1975, § 11-1-2. B e c a u s e c o u n t i e s , as b o d i e s c o r p o r a t e , a c t through t h e i r governing bodies, the county [commissions, t h e ] commissioners likewise are s u b j e c t to s u i t i n t o r t , not i n t h e i r individual capacities but only in their official capacities.' "384 So. 2d at 7 (opinion on application for rehearing). I t i s t h e r e f o r e c l e a r t h a t t h e summary j u d g m e n t was p r o p e r l y e n t e r e d f o r t h e c o m m i s s i o n e r s as t o t h e c l a i m s a g a i n s t them i n t h e i r individual capacities." (Footnote omitted.) We have not been asked to Smitherman. Because J o s e p h , as a c o u n t y c o m m i s s i o n e r , as of be a matter law, summary j u d g m e n t alternative sued in his individual i n his favor i s due ground. 56 t o be overrule cannot, capacity, affirmed on the this 1 0 7 0 4 8 4 ; 1 0 7 0 4 8 7 ; 1070514 Because Commission official we have c o n c l u d e d t h a t h a v e no l i a b i l i t y , capacity are provides, Volunteer Service in pertinent the claims against and the County Joseph i n h i s moot. F. The the County Thornton Act, § 6-5-336, A l a . Code 1975, part: " ( d ) A n y v o l u n t e e r s h a l l be immune f r o m civil l i a b i l i t y i n a n y a c t i o n on t h e b a s i s o f a n y a c t o r omission of a volunteer resulting i n damage o r injury i f : " ( 1 ) The v o l u n t e e r was a c t i n g i n g o o d faith and within the scope of such volunteer's o f f i c i a l f u n c t i o n s and d u t i e s for a nonprofit organization, a nonprofit c o r p o r a t i o n , h o s p i t a l , or a governmental e n t i t y ; and "(2) The damage o r i n j u r y was not c a u s e d by w i l l f u l o r wanton m i s c o n d u c t by such v o l u n t e e r . " When the declared legislature in § passed the Volunteer Service Act, i t 6-5-336(b): " ( 1 ) The w i l l i n g n e s s o f v o l u n t e e r s to offer t h e i r s e r v i c e s has been i n c r e a s i n g l y d e t e r r e d by a p e r c e p t i o n that they put personal assets at r i s k i n t h e e v e n t o f t o r t a c t i o n s s e e k i n g damages a r i s i n g f r o m t h e i r a c t i v i t i e s as v o l u n t e e r s ; " ( 2 ) The c o n t r i b u t i o n s o f p r o g r a m s , activities, and services to communities i s diminished and worthwhile programs, activities, and s e r v i c e s a r e d e t e r r e d by t h e u n w i l l i n g n e s s o f v o l u n t e e r s t o s e r v e e i t h e r as v o l u n t e e r s o r as o f f i c e r s , d i r e c t o r s , o r 57 1070484; 1070487; 1070514 trustees of organizations; nonprofit public and private " ( 3 ) The p r o v i s i o n s o f t h i s s e c t i o n a r e intended to encourage v o l u n t e e r s to c o n t r i b u t e t h e i r s e r v i c e s for t h e g o o d o f t h e i r c o m m u n i t i e s a n d a t t h e same time provide a reasonable basis for redress of c l a i m s w h i c h may a r i s e r e l a t i n g t o t h o s e s e r v i c e s . " It is volunteer own undisputed on business, a Thornton IDB. member o f t h e insurance IDB that He and voluntary he part-time 93, 95 (Ala. See Civ. Appeals quoted with order stating reflect Service actions or Thornton property the that and Act who executed purchase the p r o p e r t y which is a is entitled IDB had on a the owned by Court a is immunity or role Even though the 2d Civil court's "clearly under so long the as willful. limited of Act, So. of a governmental volunteer to the Service boards of S o u t h d a l e and 58 of IDB from a t r i a l wanton site. behalf unpaid E t h i c s Comm'n, 585 development Thornton and the The characteristics f o r Hyundai's plant person in an chairman i n the V o l u n t e e r i n a c t i o n s were not and the a statement industrial Accordingly, Volunteer his approval attributes entity." 1991), as basis. a l s o H a r r i s v. App. as employed f u l l - t i m e i n h i s served " g o v e r n m e n t a l e n t i t y " as d e f i n e d § 6-5-336(c)(1). was served IDB in acquiring Thornton the options was to Wheeler/Phillips, 1070484; 1070487; 1070514 he met the never decisions price concerning that should knowledge of evening of present at when with Bright paid was March not 28. executed Shelton's or t i t l e on to Shelton's the of that months had the Wheeler/Phillips that individually wanton immunity sold in the be acquired or the Thornton had no on the meeting the IDB City the the not Thornton paid for Shelton long their and any or in his or pursuant summary j u d g m e n t alternative taken capacity as to in his the Therefore, the Volunteer favor i s due ground. G. The 59 IDB by option on involved in until We or many Thornton Service and conclude any of that evidence Thornton, be learn Southdale chairman to to property, property property. not Shelton d i d not her after actions willful. was option n e v e r h e l d an T h o r n t o n was price held Mayor B r i g h t and of The of and W h e e l e r / P h i l l i p s have n o t p r e s e n t e d indicating were the involved knowledge then fact, had the property. acquired after Southdale the identity, Hyundai no property. of at behalf property. a c t u a l purchase Shelton's had he property. present He was should f o r the meeting between purchase nor what p r o p e r t y be and the landowners either the is entitled Act, affirmed IDB, to and the on this 1070484; 1070487; Because we 1070514 have immunity under entitled to immunity. 2d 135, 141-42 Brighton, fire at trying the determined that Volunteer In H o l l i s ( A l a . 2004), a l l e g i n g that their house to e x t i n g u i s h Service the Thornton Act, city had i t . This the IDB v. C i t y o f B r i g h t o n , the p l a i n t i f f s and is entitled had failed prevented Court the sued the is also 885 So. City of to e x t i n g u i s h plaintiffs held: "The v i c a r i o u s l i a b i l i t y o f a p u t a t i v e m a s t e r under t h e r u l e of r e s p o n d e a t s u p e r i o r depends upon the l i a b i l i t y of the p u t a t i v e servant. See L a r r y Terry Contractors, I n c . v. B o g l e , 404 So. 2 d 6 1 3 , 614 ( A l a . 1981) ('"[W]hen [a] p r i n c i p a l and h i s a g e n t a r e s u e d i n [a] j o i n t action in tort for m i s f e a s a n c e or m a l f e a s a n c e o f t h e s e r v a n t , and h i s l i a b i l i t y f o r the conduct of s a i d servant i s under the r u l e of respondeat s u p e r i o r , a v e r d i c t i n f a v o r of the servant entitles the master to have the verdict against him set aside."') (quoting L o u i s v i l l e & N.R.R. v . M a d d o x , 236 A l a . 5 9 4 , 600 , 183 So. 849, 853 (1 938 ) ) , and Gore v. C i t y o f H o o v e r , 559 So. 2 d 1 6 3 , 165 ( A l a . 1 9 9 0 ) , o v e r r u l e d on o t h e r g r o u n d s , F r a n k l i n v . C i t y o f H u n t s v i l l e , 670 So. 2 d 84 8 ( A l a . 1995) (holding that a c i t y c o u l d n o t be h e l d v i c a r i o u s l y l i a b l e f o r t h e a c t o f a m a g i s t r a t e who was immune f r o m l i a b i l i t y ) . Thus, i f a p u t a t i v e servant i s not l i a b l e , e i t h e r because he i s i n n o c e n t o r b e c a u s e he i s immune, no l i a b i l i t y e x i s t s t o be v i s i t e d u p o n t h e p u t a t i v e m a s t e r u n d e r the r u l e of respondeat s u p e r i o r . I d . fl "As discussed above, the firefighters, the p u t a t i v e s e r v a n t s i n t h e c a s e now b e f o r e u s , w e r e volunteers who d i d not r e c e i v e compensation f o r their service as volunteer firefighters. 60 to a from 1070484; 1070487; 1070514 C o n s e q u e n t l y , t h e y w e r e immune f r o m l i a b i l i t y for n e g l i g e n c e under the V o l u n t e e r S e r v i c e A c t . Because the firefighters w e r e immune f r o m liability for negligence under the Volunteer Service Act, no liability for negligence c o u l d b e f a l l them t o be v i s i t e d upon the C i t y [of B r i g h t o n ] , the putative m a s t e r i n t h e c a s e now b e f o r e us." The IDB c a n n o t be held v i c a r i o u s l y liable c h a i r m a n b e c a u s e T h o r n t o n was Volunteer of the Service Act. IDB i s due The t o be The AIFA is instrumentality 1975. and By I t was of a created The on the in the favor a l t e r n a t i v e ground. AIFA corporation State. by this of i t s under summary j u d g m e n t e n t e r e d public the acts immune f r o m l i a b i l i t y affirmed H. f o r the See § and 41-10-540 , legislature to fund public Ala. Code incentives commitments to i n d u s t r i e s t h a t agree to l o c a t e i n Alabama. law, state the governor treasurer director as acts its as as vice i t s secretary. the president president, I , § 14, an of arm that the State. AIFA is Southdale and entitled to not legislature has defend proceedings." legal and given i t AIFA, the the § Wheeler/Phillips authority to 41-10-546(2). 61 The when i t a c t s immunity the finance immunity p r o t e c t i o n s A l a b a m a C o n s t i t u t i o n o f 1901, the the § 4 1 - 1 0 - 5 4 5 , A l a . Code 1975. AIFA argues t h a t i t i s e n t i t l e d to the Article of of as argue because the "institute and 1 0 7 0 4 8 4 ; 1 0 7 0 4 8 7 ; 1070514 Nevertheless, AIFA of against against a body such the State as t h e within § 14 t h e A l a b a m a C o n s t i t u t i o n , t h e n t h e A I F A may b e e n t i t l e d t o In Armory Commission o f Alabama v. Staudt, 991 ( A l a . 1980), governmental body placed on the "legislature immunity The action i s i n a c t u a l i t y an a c t i o n immunity. 2d i f an this Court i s immune body may by not held from s u i t the deny further "[w]hether cannot turn legislature" immunity from i s c o n s t i t u t i o n a l l y granted." Court that 388 388 S o . and suit on a labels that the when that So. 2d a t 992. stated: "Whether a lawsuit against a body created by l e g i s l a t i v e enactment i s a s u i t against the s t a t e d e p e n d s on t h e c h a r a c t e r o f p o w e r d e l e g a t e d to the body, t h e r e l a t i o n o f t h e body t o t h e s t a t e , and t h e n a t u r e o f t h e f u n c t i o n p e r f o r m e d by t h e body. A l l factors i n t h e r e l a t i o n s h i p must be e x a m i n e d t o d e t e r m i n e w h e t h e r t h e s u i t i s a g a i n s t an a r m o f t h e state or merely against a franchisee l i c e n s e d f o r some b e n e f i c i a l p u r p o s e . S t a t e D o c k s C o m m i s s i o n v . Barnes, 225 A l a . 4 0 3 , 4 0 6 - 0 7 , 143 S o . 581 , 584 (1932)." 388 So. 2d a t 993. The A I F A Staudt factors State. As t o t h e f i r s t granted the authority companies second that factor, to e n t i t l e bring the argues that i t meets i t t o i m m u n i t y as an the arm of the f a c t o r , the AIFA contends that to finance needed AIFA the State's industry contends 62 i t i s obligations to t o Alabama. that three i t is As t o t h e so closely 1 0 7 0 4 8 4 ; 1 0 7 0 4 8 7 ; 1070514 intertwined with the State that i t is entitled to i m m u n i t i e s a f f o r d e d a g e n c i e s a n d arms o f t h e S t a t e . third factor, the AIFA make c o m m i t m e n t s to fund commitments primarily In S t a l l i n g s that i t does but i t i s authorized through the use of AIFA bonds. 689 S o . 2 d 7 9 0 , 792 the As t o t h e not negotiate or & Sons, I n c . v. Alabama B u i l d i n g Finance Authority, stated that on b e h a l f o f t h e S t a t e , existing obligations, states the Staudt test Renovation ( A l a . 1996), "examines the Court the complete r e l a t i o n s h i p between t h e s t a t e and t h e e n t i t y s e e k i n g immunity from the suit " Alabama legislature, State, and The C o u r t Building Renovation the r e l a t i o n s h i p the nature of Authority. After examining Stallings concluded that suit, in examined distinguishing Finance between the the three i n that a case relied Authority performed factors, the Authority the facts delegated to the Authority function S t a t e Docks Commission v. B a r n e s , (1932), t h e powers was case by and t h e by those from found 2 2 5 A l a . 4 0 3 , 143 S o . 581 on b y t h e C o u r t i n Staudt. "The facts in this case are clearly distinguishable from those found i n S t a t e Docks C o m m i s s i o n v . B a r n e s , a c a s e r e l i e d on b y t h i s C o u r t in Staudt, i n which t h i s Court held that the State D o c k s C o m m i s s i o n was an a r m o f t h e s t a t e a n d t h u s 63 the the Court i n n o t immune from the 1 0 7 0 4 8 4 ; 1 0 7 0 4 8 7 ; 1070514 immune f r o m s u i t f o r the following reasons: the s t a t e o w n e d t h e d o c k s f a c i l i t i e s i n i t s own name; t h e C o m m i s s i o n o p e r a t e d t h e d o c k s f a c i l i t i e s as an a g e n t o f t h e s t a t e a n d n o t as a s e p a r a t e e n t i t y ; t h e funds generated by the state docks facilities b e l o n g e d t o t h e s t a t e , and i n t h e l a w s u i t a t i s s u e i n t h a t c a s e , t h o s e funds would have been s u b j e c t e d to l i a b i l i t y , because 'a l a w s u i t d i r e c t l y a f f e c t i n g a s t a t e c o n t r a c t or p r o p e r t y r i g h t i s tantamount to a s u i t a g a i n s t the s t a t e . ' S t a u d t , 388 So. 2d a t 993." Stallings, 689 Article So. I, at 14, § 2d 793. of the C o n s t i t u t i o n of "[T]he State of Alabama s h a l l court or of law equity." of the word " S t a t e " suit only State.'" Alabama Mun. 2d Elec. reviewing AIFA, the the So. the 14 was 628, 631 Auth., So. character in favor has held of 1993) "'the use to p r o t e c t 2d the we 470, power State, conclude immunity. (quoting from 64 Siegelman Thomas (Ala. the and the i t t o be to the nature is the v. 1983)). delegated Therefore, o f t h e A I F A i s due Then G o v e r n o r 480 that a l t e r n a t i v e ground. I. that any governmental agencies of (Ala. 432 i t performs, judgment entered made a d e f e n d a n t i n intended AIFA's r e l a t i o n s h i p to the function provides: C r e e k W a t e r s h e d C o n s e r v a n c y D i s t . v. agency f o r purposes of S t a t e this Court strictly Tallaseehatchie 620 After This in Section i m m e d i a t e and Allred, n e v e r be 1901, a of State summary affirmed on 1070484; 1070487; 1070514 A r t i c l e V, § 1 1 2 , A l a b a m a C o n s t i t u t i o n o f 1 9 0 1 , l i s t s t h e officers embraced w i t h i n t h e e x e c u t i v e department: "The executive department s h a l l c o n s i s t of a governor, l i e u t e n a n t governor, attorney-general, state auditor, secretary of state, state treasurer, superintendent of education, commissioner of a g r i c u l t u r e and i n d u s t r i e s , and a s h e r i f f f o r each county." This Court a sheriff r e c e n t l y addressed i n Ex p a r t e Davis, the individual 9 S o . 3 d 4 8 0 , 483 liability (Ala. of 2008): " A r t i c l e I , § 14, A l a b a m a C o n s t i t u t i o n o f 1 9 0 1 , states simply: '[T]he S t a t e o f Alabama s h a l l never be made a d e f e n d a n t i n a n y c o u r t o f l a w o r e q u i t y . ' Although c o u n t i e s do n o t n e c e s s a r i l y p o s s e s s t h e same s o v e r e i g n immunity a s do s t a t e s a n d s t a t e agencies, county s h e r i f f s are executive o f f i c e r s of t h e S t a t e o f A l a b a m a a n d a r e t h e r e f o r e immune f r o m l i a b i l i t y f o r a c t i o n s taken i n executing the d u t i e s of t h e i r o f f i c e s . B o s h e l l v. Walker County S h e r i f f , 598 S o . 2 d 8 4 3 , 844 ( A l a . 1 9 9 2 ) . T h i s Court has a l s o r e c o g n i z e d t h a t a 'deputy s h e r i f f i s a f f o r d e d t h e same i m m u n i t y f r o m s u i t a s a s h e r i f f i n r e g a r d to claims f o r monetary damages stemming from a c t i v i t i e s p e r f o r m e d w h i l e w o r k i n g i n t h e l i n e and scope of h i s o r h e r employment.' Ex p a r t e P u r v i s , 689 S o . 2 d 7 9 4 , 796 ( A l a . 1 9 9 6 ) . " (Emphasis status added.) as a liability performed while the basis by reason officer, enjoys damages executing a governor made sheriff, constitutional f o r monetary fortiorari, matters If a stemming the duties i s entitled immunity from of the o f f i c e , against from activities then, t o t h e same i m m u n i t y . of the claims 65 of h i s or her then a The Governor 1070484; 1070487; Siegelman, AIFA and i n h i s c a p a c i t y as in causing Shelton property was executing held that i s barred are the the course basis of the scope judgment the in alternative a claim the the president of the purchase of the Alabama i n the his favor on is individual the acts capacity of the that within Ex parte Consequently, f a c t s here to due made employment." individual president have were p e r f o r m e d the be he courts officer's whenever while damages monetary (Ala. 2005). AIFA. then presented, and in The summary affirmed on his this ground. State Then F i n a n c e Director be ego argues he is acting or deputy i n r e v i e w i n g and preparing the under 66 to says, that was granted enjoy Mabry he i n c e n t i v e package p r o v i d e d would first i m m u n i t y b e c a u s e , he alter should Director Mabry the sheriff for officer's governor's a fund immunity the a r g u e s , he officio office. officer 500-01 in his Finance to of former J. Then his is entitled, immunity as to of State 2d 497, Siegelman capacity State ex alleged l i a b i l i t y So. State entitled by and 930 Governor to duties a constitutional capacity Davis, the the f o r Hyundai, stem from a c t i o n s taken the "consistently against 1070514 Hyundai. Therefore, as Mabry same i m m u n i t y t h e g o v e r n o r or similar We circumstances. 1070484; 1070487; disagree. because alter 1070514 A deputy s h e r i f f of ego long-standing of the enjoys the precedent immunity of the treating the sheriff deputy as an sheriff. "We m u s t r e a c h t h e same c o n c l u s i o n w i t h r e g a r d to Deputies Brandon and Finley. In Mosely v. K e n n e d y , 245 A l a . 448 , 4 5 0 , 17 So. 2d 536, 537 (1944), t h i s C o u r t s t a t e d , 'In g e n e r a l , the a c t s of the deputy s h e r i f f are the a c t s of the s h e r i f f . The d e p u t y s h e r i f f i s t h e a l t e r ego of the sheriff.' (Citations omitted.) I n d e a l i n g w i t h t h e same i s s u e t h a t i s present here, the f e d e r a l a p p e l l a t e c o u r t i n C a r r v . C i t y o f F l o r e n c e , A l a b a m a , 916 F . 2 d 1521, 1526 ( 1 1 t h C i r . 1 9 9 0 ) , a f f i r m e d summary j u d g m e n t s f o r t h e L a u d e r d a l e C o u n t y s h e r i f f and h i s d e p u t i e s , stating: " ' [ U n d e r A l a b a m a l a w , a] d e p u t y i s l e g a l l y an extension of the sheriff. If the deputy's a c t s are g e n e r a l l y c o n s i d e r e d the a c t s of the s h e r i f f , i t i s l o g i c a l that those a c t s should a l s o enjoy the immunity c o v e r i n g t h e s h e r i f f ' s own a c t s . ' " Hereford The v. J e f f e r s o n C o u n t y , 586 notion branch are footing, Cabinet that State "deputy and we therefore, they constitutional Siegelman's governors" decline officials are are not officer. immunity officials to not in Part 2d 209, serving has create no i t 210 in the V.I. 67 to the (Ala. 1991). the such in proceeding. officers, State d i s c u s s i o n of herein. executive precedential this constitutional entitled See So. immunity then and, of a Governor 1070484; 1070487; Mabry also 1070514 argues i m m u n i t y b e c a u s e , he duties. or that says, Mabry t e s t i f i e d with then with Mabry were Strange on Hyundai, and CSX Mayor B r i g h t had Mabry and letter on Siegelman property on funds behalf Southdale of and the in his individual to be B e c a u s e we the that on they claims secretary the AIFA March the 29, and Strange, after Shelton not 28 his Siegelman then property. see either the e-mail from Hemphill limited to to making purchase the presented no evidence outside h i s a u t h o r i t y as secretary The Shelton this immunity summary j u d g m e n t i n h i s favor a l t e r n a t i v e ground. have c o n c l u d e d t h a t t h e A I F A has against of of i s e n t i t l e d to State-agent capacity. on him between March did to Wheeler/Phillips affirmed speak w i t h State. o f t h e A I F A ; t h e r e f o r e , he due option available i n d i c a t i n g t h a t Mabry acted is day, M a b r y ' s i n v o l v e m e n t t h e r e a f t e r was appropriate his evening conversations the state not scope of Then G o v e r n o r following obtained State-agent meeting Strange convened, or the the did the from S t r a n g e to H e m p h i l l or the George. the the of to never exceeded the representatives. apprised entitled Siegelman Governor CSX he is that about Hyundai's request, talks he Mabry in are moot. 68 his capacity no as liability, the former 1070484; 1070487; 1070514 K. CSX, and in two arguing collectively individual appellees, i t s f a v o r was option agreements says, their limitations, arguments f o r the the t o be fraud paid claims a r g u m e n t s we made no CSX had no should affirmed brief the I t argues that i t h e r e and says, because, Wheeler/Phillips two CSX vice w i t h whom S t r a n g e spoke to t r y to arrange the purchase of Shelton property were purchase that property most-favored-nation Hemphill CSX of the e-mail to avoid closely purchase clause the the involved in the acutely Shelton other aware property. d e s c r i b i n g t h e p r o p o s e d CSX effect of in the i n a manner t h a t w o u l d not e s p e c i a l l y was having The the option of the He was and presidents the effort to trigger the agreements. reasons for the author p u r c h a s e as a "ploy" most-favored-nation 69 of which because, damages p r e s e n t e d t o them. statute upon proper. d u t y t o S o u t h d a l e and representations and m a k e s two bases the because, CSX be says, and have r e j e c t e d . the it land the alternative unique t o r t Southdale by c o u l d be w e r e no amendment t o barred forth judgment the for their are appellees summary j u d g m e n t price summary j u d g m e n t i n i t s f a v o r there corporate argues t h a t the fixed were setting summary two proper because, i t says, Wheeler/Phillips it CSX clause. He 1070484; knew 1070487; that purchase CSX CSX to would price went a l o n g of with have to that CSX the reimbursed property. the railway in we of Inc., CSX's issue with can for testified Hyundai. be the was fact the that he wanted Under the summary j u d g m e n t affirmed involvement of m a t e r i a l fashion S t r a n g e b e c a u s e he cannot conclude that evidence a genuine some Hemphill business Transportation, the create be t h e p l a n p r o p o s e d by facts presented, as 1070514 on the basis insufficient o r on any to alternative ground. As to however, made b y the CSX CSX Real Property, adopted Strange argument substitution of in in his that CSX Inc., i t s appellee's appellee's Real in their not back the claims late. For doctrine of therefore we hold against came t o o that CSX the Real summary j u d g m e n t Property, as brief, Property, defendant A to brief to i n the the relation t h e m i s due Hyundai 70 the arguments and include Southdale's Hemphill for amended c o m p l a i n t did original complaint reasons stated i n Part E v a n s , and L. Hemphill, and Evans, second and which would Wheeler/Phillips fictitious relate Evans, back barred Hemphill; t o be the V.C., claims therefore, affirmed. and the 1070484; 1070487; 1070514 In McLemore, that the Russells t h e summary judgment and t h e McLemore entered group i n Hyundai's argued favor was i m p r o p e r b e c a u s e , t h e y a r g u e d , t h e IDB, t h e C i t y , the County, and and the State Hyundai This were was e n g a g e d acting as H y u n d a i ' s i n a joint agents venture with Court r e j e c t e d b o t h of those arguments summary j u d g m e n t i n favor of Hyundai. those because entities. and a f f i r m e d t h e Because those arguments are n o t made b y S o u t h d a l e a n d W h e e l e r / P h i l l i p s , M c L e m o r e not provide judgment does i n favor note Hyundai's action. authority the upon of Hyundai paucity of which we i n this can a f f i r m case. evidence In r e j e c t i n g t h e agency argument, t h e summary However, McLemore presented i n v o l v e m e n t i n t h e m a t t e r s made concerning the basis we of stated: " N o t h i n g b e f o r e us c r e a t e s an i n f e r e n c e t h a t H y u n d a i participated i n identifying the location of the p r o p e r t y p r o p o s e d f o r t h e p r o j e c t s i t e , t h a t i t was i n v o l v e d i n d r a f t i n g the option agreements, that i t met w i t h t h e p r o p e r t y o w n e r s , o r t h a t i t was a p a r t y to the option agreements. ... The e v i d e n c e indicates that Hyundai was never involved in selecting the properties f o r a c q u i s i t i o n , that i t d i d n o t p a r t i c i p a t e i n any o f t h e n e g o t i a t i o n s f o r the option agreements, and that no Hyundai r e p r e s e n t a t i v e was e v e r p r e s e n t o r c o m m u n i c a t e d w i t h any property owner. ... Thus, the evidence i n d i c a t e s t h a t t h e IDB, t h e C i t y , t h e County, and the S t a t e were n o t a c t i n g t o a c q u i r e t h e p r o p e r t i e s as an a g e n t o r u n d e r t h e d i r e c t i o n o f H y u n d a i , b u t a t t h e i r own d i r e c t i o n a n d on t h e i r own i n i t i a t i v e 71 does this 1070484; 1070487; 1070514 to e n t i c e Hyundai to b u i l d Montgomery County." 7 So. 3d a t 329. In r e j e c t i n g an automobile plant in the j o i n t - v e n t u r e argument, stated: "Hyundai never had a j o i n t o w n e r s h i p i n t e r e s t w i t h any of t h e a l l e g e d j o i n t v e n t u r e r s i n t h e p r o p e r t y of t h e R u s s e l l s o r t h e McLemore group upon t h e c l o s i n g s on t h e p r o p e r t y . A d d i t i o n a l l y , Hyundai d i d not provide f i n a n c i n g f o r the purchase of the p r o p e r t y , a n d i t h a d no r i s k o r e x p e n s e s w i t h r e g a r d to the purchase. ... "Moreover, the r e c o r d i n d i c a t e s t h a t Hyundai d i d n o t h a v e a r i g h t o f c o n t r o l w i t h r e g a r d t o how t h e property was obtained. Nothing indicates that H y u n d a i c o n t r o l l e d t h e a c t i o n s o f t h e IDB o r o t h e r governmental e n t i t i e s with regard to the s e l e c t i o n of the property for the project site, the negotiation of the option agreements on the property, or the d r a f t i n g of the o p t i o n agreements. Thus, s u b s t a n t i a l e v i d e n c e of r i g h t of c o n t r o l by Hyundai i s not presented i n the r e c o r d . "Although t h e e v i d e n c e does t e n d t o e s t a b l i s h t h a t a j o i n t v e n t u r e may h a v e e x i s t e d b e t w e e n t h e IDB, t h e C i t y , t h e C o u n t y , and t h e S t a t e f o r t h e purpose of enticing Hyundai to locate an automobile-manufacturing p l a n t i n Montgomery County, s u b s t a n t i a l e v i d e n c e does not e x i s t t o c r e a t e a j u r y q u e s t i o n a s t o w h e t h e r H y u n d a i was a p a r t i c i p a n t i n the j o i n t venture. The evidence indicates that Hyundai merely evaluated Montgomery's incentive package, compared i t to the incentive packages o f f e r e d by o t h e r c o m m u n i t i e s , and d e t e r m i n e d t h a t Montgomery p r o v i d e d the best place to b u i l d i t s plant." 7 So. 2d at 331-32. 72 we 1070484; 1070487; The the 1070514 lack of evidence concerning e v e n t s made Hyundai representatives negotiations not a party the option Hyundai deeded not the basis with were no and not a party any land area, engaging site the position. any that funds to obtained was That's [the] contenders. acquire them. was n o t i t . " would weaken that he w o u l d because, Either the not concerned a l l o w any p r i v a t e d i s c u s s i o n s . Cannot 73 Hyundai's n e v e r have stage, they w i l l site. the t o i t . "But provide He made i t c l e a r the property "at that land with t o us j u s t a s t o how p r o p e r t y as t o o b t a i n i n g officials i n drafting d i d n o t even p a r t i c i p a t e we d o n ' t l o o k a t , b e c a u s e local H y u n d a i was o r amendments t o t h a t made up t h e l a n d p r o v i d e d Ahn t e s t i f i e d discussions of the u l t i m a t e l y u s e d as t h e p l a n t i n any d i s c u s s i o n s be i n any transactions, used Hyundai Hyundai w h i c h we n e e d . would role to the sale f o r the project. testified had as c l e a r . by S o u t h d a l e or W h e e l e r / P h i l l i p s , and d i d of individual parcels land, involved agreements in identifying the property the i s just agreements provide actual not involvement i n Southdale or W h e e l e r / P h i l l i p s . any p r o p e r t y Ahn action t o any o f t h e o p t i o n was necessary of this Hyundai's for a win or lose. happen l i k e plant negotiating engaged i n with Alabama that State or i s one o f I d i d not that." Ahn 1070484; 1070487; 1070514 elaborated on why discussion concerning "[P]urchasing their job. he land, They would not have been involved the will used this do methods do i t ' s not buy that, or whatever to and in obtain my then any land: job. It's transfer to us." Hyundai participant the in option the the the refused agreements Hyundai how how the that any by Shelton property. additional to the option intent the merit, argues to clause land no in implicated Hyundai from obtain project m i g h t be had CSX argues contract further clause i t wanted that other a most-favored-nation p r o p o s e d by that the merely i n order knowledge Shelton, to about and they claims against Hyundai r e p r e s e n t a t i v e ever options were i t argues, obtained with that interfere Southdale i t could with The because or not or i t have knew t h e communicated H y u n d a i was not have formed and the with claims a party Wheeler/Phillips. no details breach-of-contract Southdale 74 the Strange. fraud S o u t h d a l e or W h e e l e r / P h i l l i p s . h a v e no any along w i t h the mechanism f o r the purchase of b e c a u s e no about of with Its representatives devised t o go or of deal. property merit discussed existence Strange plan rail the purchase notified close never to Hyundai necessary Wheeler/Phillips's 1070484; 1070487; contractual conspiracy never the claims other i n any to t o be any of because, course with there The of i t this i s no instead, genuine and action others on August 20, referred phrase, was May initially 28, 2004. to 2004. The engaged was of in issue of "f/k/a Southdale, complaint, the following that The other Southdale, claims i n i t s favor i s Southdale Strange urges us to commenced An amended LLC, of the as a Inc." by affirm complaint LLC, was but on again added At paragraph 3 of the 1 0 and filed amended c o m p l a i n t plaintiff the standing. Southdale, the amended appears: "3. The plaintiff Southdale, LLC Southdale, I n c . ( ' S o u t h d a l e ' ) i s an A l a b a m a 1 0 material Wheeler/Phillips's of caption Southdale, Hyundai any s u m m a r y j u d g m e n t a g a i n s t S o u t h d a l e b a s e d on l a c k o f This the a l t e r n a t i v e ground. Standing cross-appeal, says, conduct with summary j u d g m e n t e n t e r e d on argues, them. Southdale's affirmed his merit Hyundai p a r t i c i p a n t s but, VI. In no concerted that against Hyundai. due Finally, negotiations conclude as have project length We fact relations. engaged arm's 1070514 project participants joined in LLC, does not have s t a n d i n g . 75 f/k/a limited the argument 1070484; 1070487; 1070514 l i a b i l i t y corporation with i t s principal b u s i n e s s i n Montgomery, Alabama. place of 1 " On J u n e 24, 2 0 0 2 S o u t h d a l e , I n c . was d i s s o l v e d a n d on J u n e 12, 2 0 0 2 S o u t h d a l e , LLC was f o r m e d and a s s u m e d a l l r i g h t s t o p u r s u e t h i s a c t i o n on behalf o f S o u t h d a l e I n c . as p r o v i d e d f o r by A l a . Code § 10-2B-14.05(6) (1975)." 1 There i s no Presumably, provides the that "[p]revent a c t i o n was against reference the in is to dissolution its of a in Code 1975. 10-2B-14.05(b)(6), § which of the a corporation does not or against the However, because the proceeding corporate name." Alabama by n e v e r c o m m e n c e d i n t h e name o f S o u t h d a l e , entity, Strange alleged: 10-2B-14.05(6) commencement corporation dissolved § this moved Code s e c t i o n d o e s n o t to dismiss lack[s] "[Southdale] standing amended to assert claims s u b s e q u e n t memorandum i n s u p p o r t o f t h e m o t i o n t o d i s m i s s does not address filed a standing the the motion of issue for Southdale, complaint. caused of standing. a summary LLC, a l l e g e d ; or and A conduct not complaint injury." Strange's has] apply. that of [Southdale the shown, any Strange. the Inc., them On any J u l y 11, judgment, to a s s e r t the 2006, Strange challenging claims contained In the m o t i o n S t r a n g e a l l e g e s t h a t at the 76 the in time 1070484; of the 1070487; commencement o f dissolved that to City On on and that Southdale, the and the October 2, filing a Southdale, arising out the 2007, any LLC, affidavit described of himself LLC, to Southdale, judgment submissions motion. i n the the after Strange motion record 28, 2007, and and/or the its the sale action of any Southdale, McKinney, J r . , i n which stated i t was the trial court the hearing CSX filed Southdale, personal, and Southdale corporation. did to on file the motions striking between inconsistencies time to convey to assets--"real, he at the that citing 77 which assets, in same t i m e , these a d d i t i o n a l e v i d e n t i a r y materials, untimeliness, in choses and further nothing evidentiary Strange's of S o u t h d a l e , Inc., mixed"--retaining from agreement. LLC, At property transferred option on been supplemented the i n t e n t of S o u t h d a l e , I n c . , permission the had the Southdale, o f R e e s e H. i t s undistributed seek to sell Inc. a l l of not owned assets to as p r e s i d e n t Inc., corporation, September i t s d i s s o l u t i o n i n 2002 and p u r p o s e and never a hearing dated contract by an after a l l personal real property filed LLC, dissolved transferred and of Southdale, County pursuant document any action, 2007, S o u t h d a l e , LLC, Inc., including the Southdale, Inc., September 21, by 1070514 as these summaryto strike grounds the for affidavit 1070484; and 1070487; the previous hearsay. time of to assignments certain basis that the real alleging dissolved on own the out property this not of involved action. the ownership corporation, name a n d failed court a final that so. judgment on one and refer other Inc., than transaction that are actions personal actions and court are Inc., not as a action in never month l a t e r , other is that property trial at not t o commence t h e The instead, do Southdale, standing t o do motions to s t r i k e ; the Inc., contends deceit of argues had i n the Strange and McKinney, documents e x e c u t e d Southdale, assets Strange entered the of with court that of Southdale, misrepresentation run testimony d i s s o l u t i o n of of assignable. its deposition Strange points 1 1 the the 1070514 ruled trial The grounds. the trial stated: " B e c a u s e t h e C o u r t f i n d s t h a t t h e r e has been no b r e a c h o f c o n t r a c t as t o [ S o u t h d a l e ] , a n d because a l l t o r t c l a i m s a r e d i s m i s s e d by a p p l i c a t i o n o f t h e Statute of L i m i t a t i o n s , i t i s not necessary to address [Southdale's] standing to bring this action." On appeal, S o u t h d a l e , LLC, document e x e c u t e d a f t e r the 11 The IDB and Thornton relies upon the i s s u e had joined 78 transfer-of-assets been r a i s e d i n i n the motions to Strange's strike. 1070484; motion in 1070487; filed i n J u l y 2006 and September motion evidence Southdale, action, after t h e a r g u m e n t on t h e motion 2007. Strange's ample 1070514 of LLC, f o r a s u m m a r y j u d g m e n t was the i n the thereby lack of any transaction shifting the interest that burden supported by the of on part i s the b a s i s of Southdale, LLC, to adduce s u b s t a n t i a l e v i d e n c e i n o p p o s i t i o n . Bass v. Bank this to ( A l a . 1989). of motion on Baldwin remained September response filed CSX or County, 538 pending 21, additional f o r over 2007, evidence. 2d As that 794 a year. Southdale, LLC, previously evidence moved t o s t r i k e So. after The Before the hearing offered no written noted, Southdale, t h e h e a r i n g , and evidence, SouthTrust n o t i n g the LLC, Strange absence of and any e v i d e n c e i n o p p o s i t i o n b e f o r e t h e h e a r i n g and t h e u n t i m e l i n e s s of the evidence o f f e r e d a f t e r the h e a r i n g . b e f o r e t h i s C o u r t , S o u t h d a l e , LLC, the belated participants made s u c h We due an submission the at the h e a r i n g that In i t s r e p l y brief o f f e r s as j u s t i f i c a t i o n f o r argument Southdale, of the project I n c . , c o u l d have assignment. do n o t r e a c h t h e i s s u e w h e t h e r t h e s u m m a r y j u d g m e n t i s t o be a f f i r m e d on t h e b a s i s o f S o u t h d a l e ' s a l l e g e d l a c k standing, in view of the trial 79 court's having deemed of i t 1070484; 1070487; unnecessary to 1070514 reach this issue and the pendency of the motions to s t r i k e the evidence b e l a t e d l y o f f e r e d i n o p p o s i t i o n to the motion. explains the t r i a l The permit trial a 38, discretion evidence after has to to reach failure reopen Green 46 court's court party evidence. 2d Its failure case Tree Acceptance, ( A l a . 1990). i n favor a h e a r i n g on and Without Such entry by discretion the these rules within time allow filed under Rule time, the court of the s p e c i f i e d the f a i l u r e "). a of to that submit motion until failure on the H a r r i s v. H e a l t h Care ( A l a . 2008). tardy response must before ordinarily C i v . P. be the invoked ("When b y ... a n a c t i s r e q u i r e d o r a l l o w e d t o be d o n e a t o r a specified expiration exercise 6 ( b ) , A l a . R. in i t sdiscretion where a to additional the f a i l u r e 6 S o . 3d 4 6 8 , 4 7 7 - 7 8 to whether offer constitutes o f a j u d g m e n t on t h e m o t i o n a motion to t o t h e summary-judgment the motion of H u n t s v i l l e , motions. I n c . v . S t a n d r i d g e , 565 S o . nonmovant's p a r t t o s u s t a i n i t s burden. Auth. standing i n deciding of t h e nonmovant, i n opposition of on t h e s e to rule discretion a the issue However, (2) period t o a c t was a response f o r cause upon m o t i o n made a t any after p e r m i t t h e a c t t o be the r e s u l t of excusable to a motion 80 s h o w n may to strike the done neglect can be 1070484; treated 1070487; as a motion under Rule of pursuant v. to the standard Sunbelt 2009) Rentals, (not analogous strike filing to so under the Plaintiff's motion remand, Southdale's Supp. R. to disposed See Hardwick (C.D. 2d), on Civ. will I l l . May dealing Plaintiff's points out to request P. with that, f o r d e f a u l t judgment to file before an untimely reaching In view to be court, of the Although decline response a Rule merits of the issue of r e s o l v e d by reach not the yet question the affirm the trial court's VII. After motion to the trial disqualify judgment as Special-Master court granted Southdale's 81 the to of motions an to to answer."). c o u r t m u s t r u l e on t h e issue of 6(b)(1)(B) evidence whether i s s u e o f s t a n d i n g i s an a p p r o p r i a t e a l t e r n a t i v e b a s i s on to Court unsettled status considered, we the as to before l e a v e of Union's 13, the motion 6(b)(1)(B). construe s t a n d i n g , the t r i a l strike. trial F. Union f a i l e d Court for leave properly be o b s e r v a t i o n a p p e a r s t o be c o r r e c t , f o r p u r p o s e s efficiency, On should 09-CV-1106) Plaintiff Fed. and established therein. ("Moving Answer, i t s Answer l a t e , 6(b)(2) (No. in federal rule Plaintiff's to Inc., reported Union's do motion 1070514 the the which Southdale. Fee project initial participants' counsel, the trial 1070484; 1070487; 1070514 court appointed a files and materials the other s p e c i a l master replacement law from firm materials information or affiliation with Department of information the were the special information to was to review order forwarded to acquired, the that that no no oversight trial court fee and the argues subsequent initiated by the Southdale law that to of the were any files Lee Miller's such were of over fee have been project p a r t i c i p a n t s or split i t is investigation was unfair that not w a r r a n t e d . to by the the the or Although materials review fee the materials counsel. and pay with or time- $28,000. special-master motion special to disqualify master p r o j e c t p a r t i c i p a n t s , the master that should because efforts remaining to firm in i t s entirety. Southdale ordered of such consuming, r e s u l t i n g i n a s p e c i a l - m a s t e r The of employment replacement reported transfer there because following his in the the whether acquired firm oversee disqualified determine Finance master the and firm disqualified to borne between require showed, either S o u t h d a l e c i t e s no 82 them and Southdale i t argues, entirely that to specialby Southdale pay were for the and an disqualification authority in i t s brief, 1070484; 1070487; 1070514 h o w e v e r , t o s u p p o r t i t s a r g u m e n t , as r e q u i r e d b y R u l e 2 8 , R. App. The P. i n c l u s i o n of costs taxed will not against reverse indulging the unless element of i s " e n t i r e l y d i s c r e t i o n a r y , and we i t appears intendments in costs was unjust 459, 171 So. 2d C i t y of F a i r f i e l d , 396 277 Ala. 459, 171 So. fee and 851 an the of record, the (1965)." 2d at 697. (1965), after ruling, unfair. 851 So. 2d as from favor Ala. 277 Walden, special-master of B i r m i n g h a m v. v. a a party a l l fair taxation Walden, Ala. Walden v. City of In Walden this stated: "The t h r e e c a s e s c i t e d b y a p p e l l e e s h o l d t h a t i n e q u i t y the matter of c o s t s r e s t s l a r g e l y i n the d i s c r e t i o n o f t h e c h a n c e l l o r and t h a t t h e t a x a t i o n o f c o s t s may be v a r i e d as t h e j u s t i c e o f t h e c a s e may require. T h o m p s o n v . B r y a n t , 251 A l a . 5 6 6 , 38 So. 2d 590 [ ( 1 9 4 9 ) ] ; P l a t e a u Community A s s o c i a t i o n v . G r e e n , 243 A l a . 5 3 1 , 10 So. 2d 860 [(1942)]; and Kennedy v. Sorsby, 209 Ala. 188, 95 So. 891 [(1923)]. E q u i t y u s u a l l y f o l l o w s the g e n e r a l r u l e a t law t h a t c o s t s a r e a w a r d e d i n f a v o r o f and not a g a i n s t the s u c c e s s f u l p a r t y i n the s u i t . L u c a s v. L u c a s , 258 A l a . 5 1 5 , 64 So. 2d 70 [ ( 1 9 5 3 ) ] ; Dozier v . P a y n e , 244 A l a . 4 7 6 , 14 So. 2d 376 [(1943)]. An i m p r o p e r e x e r c i s e o f d i s c r e t i o n a p p e a r s when the record, after indulging a l l fair intendments in f a v o r of the r u l i n g , d i s c l o s e s the t a x a t i o n of c o s t s was u n j u s t a n d u n f a i r ; o t h e r w i s e , t h e a c t i o n o f t h e trial court should not be disturbed. Dozier v. P a y n e , 244 A l a . 4 7 6 , 14 So. 2d 376." 83 that Court 1070484; 277 of 1070487; 1070514 A l a . a t 4 6 2 , 171 S o . 2 d a t 854 the t r i a l court's order of d i s q u a l i f i c a t i o n , m a s t e r f e e as c o s t s unjust or adverse to Southdale we do n o t f i n d In view on t h e i s s u e t h e award of t h e s p e c i a l - i n f a v o r o f t h e p r o j e c t p a r t i c i p a n t s t o be unfair. discretion (emphasis added). The i n ordering trial court Southdale d i d not to pay the exceed i t s special-master fee. VIII. Attorney-Client Privilege Wheeler/Phillips interests respect and to negotiate to the sale compel retained Williams with of t h e i r the property. moved to the production file, i n c l u d i n g h i s correspondence Wheeler/Phillips. file law objected work p r o d u c t . waived the submitted to IDB represent and of Williams's and Product The t r i a l court communications to producing the f i l e was CSX legal with the Williams's attorney found t h a t W h e e l e r / P h i l l i p s had attorney-client Williams's that with 2007, entire of a t t o r n e y - c l i e n t p r i v i l e g e ; on t h e g r o u n d their others In August Wheeler/Phillips objected on t h e g r o u n d firm a n d Work privilege affidavit because they had i n o p p o s i t i o n to motions f o r a summary j u d g m e n t f i l e d b y t h e p r o j e c t p a r t i c i p a n t s a n d b e c a u s e Wheeler had submitted found that h e r own a f f i d a v i t . Wheeler/Phillips had waived The t r i a l court also the a t t o r n e y - c l i e n t p r i v i l e g e because they had produced a l e t t e r W i l l i a m s wrote t o 84 1070484; 1070487; McKinney, who 1070514 was n e v e r one of W i l l i a m s ' s clients. The court r e a s o n e d t h a t because W i l l i a m s had n e g o t i a t e d w i t h the p r o j e c t participants agreements dispute and and that had participated amended option in drafting a t t o r n e y - c l i e n t communications option " i t is agreements, the beyond between Williams and W h e e l e r / P h i l l i p s a r e r e q u i r e d f o r t h e t r u t h f u l r e s o l u t i o n of this parte 1357 case." Relying Great American ( A l a . 1989), on Rule Surplus the t r i a l Lines court had used p r i v i l e g e d communications and A l a . R. Evid., I n s u r a n c e Co., held that 510 states that o n l y where the h o l d e r Ex So. 540 2d Wheeler/Phillips "as b o t h s w o r d and the waiver disclosed matter." or information. McKinney about merely to argue sets out the that a shield," significant argue disclosure the letter information of Williams was obtained communications Although the l e t t e r 85 between the never Williams had Shelton of what by t h e could Williams to McKinney to learned and t h e p u r c h a s e o f t h a t p r o p e r t y privileged Wheeler/Phillips. of privileged to the S t a t e a n d t h a t i t made no d i s c l o s u r e t o M c K i n n e y considered discloses they any from occurs part that the c i r c u m s t a n c e s under which the o p t i o n property file. privilege "voluntarily Wheeler/Phillips consented They of of the p r i v i l e g e c o n s e n t s t o t h e d i s c l o s u r e o f any privileged be and i t ordered W h e e l e r / P h i l l i p s to d i s c l o s e Williams's Rule or 510, and included a 1070484; small 1070487; excerpt 1070514 from Wheeler/Phillips, a portion the excerpt what George had t o l d and, they Williams communication. ("Disclosure matter contained Moreover, See R u l e only a description of 510, A d v i s o r y part privilege must argue, be made the v. Terry, consent. Swain Wheeler/Phillips maintain indicating the that they against communications Richards v. Lennox privilege that there and and without (Ala. i s no evidence waiving any p a r t that them as t o a d v i c e Inc., the c l i e n t 454 S o . 2 d 948 might p r e j u d i c e Indus., of the the c l i e n t consented to Williams's attorney-client compelled to t e s t i f y that waiver by representing client's Committee of the p r i v i l e g e d any c a n n o t b e made b y t h e l a w y e r other meeting the p r i v i l e g e . " ) . Wheeler/Phillips attorney-client of wrote t o and McKinney i n a p r i o r o f an i n s i g n i f i c a n t does n o t waive 1984). Williams argue, does n o t c o n s t i t u t e a s i g n i f i c a n t p a r t o f t h e privileged Notes of a l e t t e r he cannot be he g a v e t h e m o r them i n t h i s 574 S o . 2 d 736 (Ala. case. 1990). F i n a l l y , W h e e l e r / P h i l l i p s a r g u e , W i l l i a m s ' s a f f i d a v i t was offered a i n o p p o s i t i o n to the p r o j e c t p a r t i c i p a n t s ' motion f o r summary judgment. between W i l l i a m s inject and W h e e l e r / P h i l l i p s , they privileged affidavit merely I t d i d n o t d i s c l o s e any communications matter addressed into these disclosures 86 s a y , and d i d n o t proceedings. made to Williams The by 1070484; certain 1070487; project 1070514 p a r t i c i p a n t s or t h e i r representatives which the p r o j e c t p a r t i c i p a n t s had a l r e a d y Wheeler's a f f i d a v i t , had had w i t h November another that concerning what pertinent affidavit when agreement and had affidavit The to her i n had been p a i d to p a r t i c i p a n t s seek and h i s c l i e n t s knew a b o u t matters of the statute of l i m i t a t i o n s of the fraud received the steps a he exercised. Williams i n this copy took of to has given case concerning the Shelton determine Wheeler what W i l l i a m s on t h e That i s s u e i s c r i t i c a l t o claims. as e v i d e n c e he information has facts option whether also an given the an t o l d her about the Shelton agreement. trial court has g r a n t e d his entire legal too broadly; by investigation alleged Williams been sweeps learned he i n f o r m e d p r i c e per acre the project concerning produce file a higher submitted as option to say that a n d when t h e y knew i t . viability option except to the t o l l i n g fraud claims such As t o landowner. Essentially, the deposed him. she d i d n o t r e v e a l any c o m m u n i c a t i o n she Williams 2002 about fraud, Williams dealing matters t h e motion t o compel file. Production documents relating from with third the timing highly 87 relevant parties Williams of the e n t i r e to information during his of h i s knowledge to the issue of of the 1070484; tolling 1070487; 1070514 of the statute of l i m i t a t i o n s constitute h i s work litigation or f o r t r i a l . Of some o f t h o s e course, this litigation not v. E l Paso of t h e document (quoting United parties motivating of during without litigation.'" that the project p a r t i c i p a n t s are hardship learned Williams's Ex p a r t e by Williams files Alabama ( A l a . 2005) . the s u b s t a n t i a l from entitled relating Dep't to such of Youth Servs., 927 Because i t i s a practical f o r the project p a r t i c i p a n t s to speculate all sources such sources trial court is required of information as t o c o n t a c t with a n d t o make Williams, 88 that dealing with as t o i n q u i r y of the order i s due t o be a f f i r m e d t o t h e e x t e n t t o produce work p r o d u c t third t o see impossibility possible ... the creation future h i s i n v e s t i g a t i o n are they 80 9 (5thC i r . 636 F . 2 d 1 0 2 8 , 1 0 4 0 ( 5 t h C i r . undue information in 805, purpose behind to a i d i n possible S t a t e s v. Davis, obtain investigation. 2d was C o . , 682 F . 2 d 5 3 0 , 5 4 2 - 4 3 Only to the extent information So. t h e t i m e when n e e d n o t [ n e c e s s a r i l y ] be i m m i n e n t as t h e p r i m a r y equivalent A l a . R. C i v . P. See long to 26(b)(3), of does as unable i n anticipation documents might predate was i m m i n e n t . ("'[L]itigation 1981))). See R u l e claims, However, t h a t c i r c u m s t a n c e States 1982) i f prepared the fraud t h e s t a t u s o f t h e documents as work p r o d u c t . preclude United product on of the Williams information 1070484; 1070487; developed from aforementioned Williams 1070514 and disclosure third investigation. his clients, by other that the information than to information, that and to that summary there is no such order allowed has between been any evidence disclosure. requires herein, the of To the disclosure the trial the trial court's order of court i n g r a n t i n g t h e m o t i o n t o c o m p e l as i s reversed to as in entered a f f i r m the favor of against i t , and Joseph, Thornton, Finance Hemphill, and Conclusion 1070484 and judgment B r i g h t ; we c a s e no. on 1 0 7 0 4 8 7 , we February 22, 2006, summary j u d g m e n t e n t e r e d the City as to the tort reverse in the IDB, of on N o v e m b e r 20, claims Hyundai; CSX i n a l l other I n c a s e no. i n p a r t the t r i a l compel the p r o d u c t i o n Real Property, court's order of W i l l i a m s ' s the case f o r f u r t h e r proceedings 89 Siegelman, Inc., r e s p e c t s , we 1 0 7 0 4 8 4 , we asserted Commission, the AIFA, then Governor D i r e c t o r Mabry, the favor i n f a v o r of the County, the County summary j u d g m e n t . reverse extent any to information. I n c a s e no. then respect communications there IX. 2007, to the court's exceeded i t s d i s c r e t i o n that to consent trial with As Williams, Wheeler/Phillips's extent parties Evans, reverse affirm that in part g r a n t i n g the motion legal file, and consistent with this we and to remand opinion. 1070484; 1070487; 1070514 In case n o . 1 0 7 0 4 8 7 , we a f f i r m the order to pay the s p e c i a l - m a s t e r fee. We also further proceedings consistent with this 1070514, 20, we 2007, a f f i r m t h e summary i n favor of Strange 1070484--APPLICATION judgment Stuart, I n c a s e no. on November i n h i s individual capacity. OF JULY 17, 2009, I N PART; REVERSED B o l i n , a n d Shaw, Murdock, J . , concurs i n p a r t , p a r t , and d i s s e n t s i n p a r t . Cobb, C . J . , r e c u s e s entered GRANTED; O P I N I O N Smith, Southdale remand t h e case f o r opinion. WITHDRAWN; O P I N I O N S U B S T I T U T E D ; A F F I R M E D PART; AND REMANDED. Woodall, requiring concurs IN J J . , concur. i n the r e s u l t i n herself. 1 0 7 0 4 8 7 - - A P P L I C A T I O N GRANTED; O P I N I O N OF J U L Y 1 7 , 2 0 0 9 , WITHDRAWN; O P I N I O N S U B S T I T U T E D ; A F F I R M E D I N PART; REVERSED I N PART; AND REMANDED. Woodall, Bolin, part, Stuart, Smith, J . , concurs a n d Shaw, i n part and d i s s e n t s Murdock, J . , concurs i n p a r t , and d i s s e n t s i n p a r t . Cobb, C . J . , r e c u s e s J J . , concur. concurs Stuart, Murdock, J . , concurs Smith, Cobb, C . J . , r e c u s e s i n the r e s u l t i n herself. 1 0 7 0 5 1 4 - - A P P L I C A T I O N GRANTED; O P I N I O N WITHDRAWN; O P I N I O N S U B S T I T U T E D ; A F F I R M E D . Woodall, i n part. OF B o l i n , a n d Shaw, i n the r e s u l t . herself. 90 JULY 17, 2009, J J . , concur. 1070484; 1070487; 1070514 BOLIN, J u s t i c e ( c o n c u r r i n g c a s e no. 1070487). I Part concur VII A. of 2003. a l l aspects concerning Lee the in in part the Miller as of from Finance A f t e r r e s i g n i n g from the P.C. ("the LLC, Southdale, in this Shortly before participants filed firm impermissible that of Miller from had Department of representing firm had Miller Jemison in his joint representing the January law legal 1987 fee. division to September f i r m Jemison, Mendelsohn which this N. represented case, Bright, favor on to the who the motion Finance. the project had basis had of a State- disqualify the a l l e g i n g that furnished The an purchase project participants also of employment Spain because closely documents project the his firm worked regarding during The law advice Wheeler/Phillips firm. of Southdale, legal property allegedly had except special-master chief in Bobby a provided Shelton's disqualify opinion c o n f l i c t of i n t e r e s t e x i s t e d because i t appeared Joy to the firm"), trial entered immunity) to the than agent majority in litigation. the (other dissenting in part Department of F i n a n c e i n 2003, Jemison summary j u d g m e n t Jemison of I I I served Department James, the payment M i l l e r became " o f c o u n s e l " & of and to & the with them Gillon, Miller while he and was asked the sought LLC, attorneys participants also 91 with from in that because at the that the 1070484; 1070487; plaintiffs' c l a i m s a g a i n s t them be d i s m i s s e d as a s a n c t i o n f o r the v i o l a t i o n relation o f t h e Alabama Rules to Miller's alternative, records and by or f i l e s reviewed and transfer of case." two both files to replacement this 18, 2007, obtained In the t h a t any and a l l sequestered Southdale new court master from a counsel. petition granted for a writ then Spain the that Jemison Wheeler/Phillips's 978 S o . 2 d 1 proceeded. no m a t e r i a l s o r i n f o r m a t i o n h a d b e e n firm because of M i l l e r ' s 92 of & Gillon. u n d i s p u t e d t h a t i n r e v i e w i n g t h e documents, t h e s p e c i a l found this directing the Ex p a r t e W h e e l e r , case the in d i d n o t s e e k mandamus r e v i e w , The the disqualified f o r the P l a i n t i f f s r e q u e s t i n g an o r d e r Court granted " t o oversee i t s order d i s q u a l i f y i n g this reviewed and W h e e l e r / P h i l l i p s ' s materials counsel and i s s u e d t h e w r i t . 2007). trial special other Court, court to vacate petition asked a t t o r n e y s be Southdale's a and the Wheeler/Phillips filed May i n the l i t i g a t i o n . by t h e p l a i n t i f f s . hearings, appointed mandamus w i t h (Ala. hired to disqualify counsel Conduct i n by a s p e c i a l m a s t e r b e f o r e t h e y c o u l d be counsel trial participation of the p l a i n t i f f s ' a n y new c o u n s e l motion of Professional the project participants Following On 1070514 employment. and i t It i s master a c q u i r e d by 1070484; On 1070487; November requiring, 1070514 2, amend, 13, or the things, that the special master 2007, W h e e l e r / P h i l l i p s special-master 'the court pay vacate appointing trial other among Wheeler/Phillips November 2007, the fee November on the 2, orderly transfer disqualified counsel, replacement of counsel Wheeler/Phillips 2007, f o r the discovery hereinafter for the order trial other argued t h a t because the s p e c i a l master e x i s t e d only to f a c i l i t a t e order, and petition because and issued disqualification reviewed no November 20, require this the order Southdale a l l the entering disqualify eve of trial given and to the that trial i t the appoint when t h e the this the special order master its to order fee. is unjustly court was harsh exceeded master been p e n d i n g court's On special 93 the counsel. participants' c a s e had to appointing project a from case.'" trial amended trial overseeing the special-master court's order Wheeler/Phillips's firm, court the disqualification Wheeler/Phillips's trial that discretion, i t s law pay to granted alter, counsel," order vacating the that in to from I believe and writ as documents 2007, Court On materials in the to court's "former Plaintiffs and regarding "purpose of and order $28,198.74. a motion the an Southdale filed ground that a s p e c i a l m a s t e r was entered motion filed f o r two its to on the years and 1070484; 1070487; substantial 1070514 d i s c o v e r y had a l r e a d y o c c u r r e d . A l s o , the Jemison f i r m a r g u e d a t t h e h e a r i n g on t h e m o t i o n t o d i s q u a l i f y t h a t documents had employment special been with master Additionally, participants before the of such for at least Miller's deference to awarding special-master overcome. its However, discretion master in a of was trial one previous judge's I the trial Southdale fee i n i t s e n t i r e t y . 94 indeed, the employment recognize a the found. project a year that is entitled heavy court to previous were of decision imposes I believe requiring documents filed. fees Miller's F i n a n c e , and, no motion which of that counsel joint because Department found knew the acquired pay no burden the in to here exceeded the special- 1070484; 1070487; 1070514 MURDOCK, J u s t i c e ( c o n c u r r i n g i n p a r t , c o n c u r r i n g i n t h e r e s u l t i n p a r t , and d i s s e n t i n g i n p a r t i n c a s e no. 1070484 and c a s e no. 1070487, and c o n c u r r i n g i n the result i n case no. 1070514). In special writings JBJ Partnership, J., concurring disagreement dissenting this brief court in ruling which i n that fails the transform a basis rule the valid validity an a r g u m e n t trial court to upon by t h e may P a v i l i o n was a c a s e judgment context, affirm ground," allow an trial we I reasoned a trial court's "should appellate was [not] court to j u d g m e n t on a n y g r o u n d d e t e r m i n e d t o b e requires of the ground, an a p p e l l a t e court merely so long as by t h e p r e v a i l i n g a d d r e s s e d b y t h e a p p e l l a n t on a p p e a l . " omitted). that upon t h e court to affirm j u d g m e n t on a n y g r o u n d , w i t h o u t r e g a r d i n the t r i a l emphasis urged court's In that legal designed a rule that in his So. 2d a t 45-47, but not r e l i e d the record. "any a lower court's raised to address of a f f i r m a lower court's into and I e x p r e s s e d our a n a r g u m e n t w a i v e d when a n a p p e l l a n t ' s a l t h o u g h an a p p e l l a t e on See 979 v. (See, J . , and Murdock, i n favor of the appellee. from judgment valid case, by t h e a p p e l l e e discernible that, Justice L.L.C. t h e p o s i t i o n t a k e n by J u s t i c e Lyons opinion court in specially), with trial Development, 979 S o . 2 d 2 4 , 3 7 - 4 5 Court should hold principal in Pavilion I also suggested 95 that party f o r the ground a n d was n o t 979 S o . 2 d a t 42 that was t h e same (some concerns 1070484; 1070487; 1070514 s h o u l d a p p l y e v e n when t h e g r o u n d f o r the t r i a l is trial not discernible otherwise things, from t h e need Southworth, In the the t r i a l base i t s summary that the February previously among 22, disagreement that affirm legal (Ala. 1983). that the t r i a l ground." judgment. rule "an a p p e l l a t e the judgment valid I write begins taken i n the t h e r e c o r d and the t r i a l of Strange of court d i d not on a Strange C i v . P., to express with the court w i l l appealed c o u r t made t h o s e my from rule findings 96 of disagreement opinion. recognition of the n o t presume e r r o r and i f supported on a n y 431 S o . 2 d 1 2 6 3 , 1 2 6 5 i s that we do p r e s u m e necessary to support See, e.g., Ex p a r t e B r y o w s k y , ( A l a . 1996). for a to the f i l i n g employed by t h e main to this finding named p a r t y d i d n o t r e l a t e Tucker v. N i c h o l s , A corollary from substitution 9 a n d 1 5 , A l a . R. the use of a waiver principle that i n favor 2005, complaint, other h o l d i n g i n F o g a r t y v. i t i s not d i s c e r n i b l e judgment or (Ala. 2006)). described f i c t i t i o u s l y original My 1324 judgment (discussing, Court's c o u r t ' s judgment back under Rules its court's t h e p r e s e n t case, even a c c e p t i n g t h e view from will Id. this 953 S o . 2 d 1 2 2 5 opinion that with the record. to l i m i t main the from court's ruling 676 S o . 2 d 1 3 2 2 , 1070484; 1070487; These of two the 1070514 rules, i n turn, provide "long-standing, appellant has record." T u c k e r , 431 from judgment the trial an court may ground and that brief, then failed to erred. and the ground it i s not based is dependent the trial attributes not and, i t s burden this failure properly a t i s s u e was valid on legally the the are allow us therefore, could have not p r e s e n t , to made then to impute such a failure by 97 particular appellant's the has trial consistent the t r i a l This record other court with the court means n o t that ground, court the but extent those the the that, may have only that and that trial also the court that the ground is i s such findings. If that these above-quoted p r i n c i p l e s a ground an the the appellant on f a c t u a l f i n d i n g s , t h e f a c t u a l r e c o r d court that t h e g r o u n d m u s t be one upon. and, a the presented to the t r i a l some upon record in that occur however, relied the that showing to d i s c e r n i b l e from on of notion of the Where i t i s d i s c e r n i b l e contested appears from the record, i t s judgment ground the that error i t s judgment i s not accept rule showing remainder have based quoted above, a l lthat actually do meet of 2d a t 1264. the ground can For principles for I So. well for application well-established a f f i r m a t i v e duty and context to the appellant to trial court, address the 1070484; 1070487; 1070514 ground does not logically an trial e r r o r by the Notwithstanding waiver constitute a failure court. the above-described employed by the reasons explained below I concur the main o p i n i o n the affirmance in his favor. opinion's entered For to the of and 3d 318, 339 dissenting 2002 main same r e a s o n s , amendment part), to governmental e n t i t i e s for the Russells' land In the present agreements as i n the of case, between and at the the the as by judgment to summary the main judgments defendants. reached the Alabama, agreement the the reached summary option a for (Murdock, J . , c o n c u r r i n g I the the result I dissent of to Strange, to Hyundai Motor Manufacturing ( A l a . 2008) in objection opinion c e r t a i n other In McLemore v. 7 So. the r e v e r s a l i n some r e s p e c t s i n favor demonstrate 1 2 rule as to conclusion R u s s e l l s set the fixed amount 2002 amendments governmental of LLC, in part that between the the purchase price $4,500 p e r acre. to entities the and option the I n a d d i t i o n , as I s u g g e s t e d i n P a v i l i o n , a w a i v e r r u l e o f t h e n a t u r e e m p l o y e d by t h e main o p i n i o n t o d a y g i v e s a p a r t y some i n c e n t i v e t o " s p r e a d " u p o n t h e r e c o r d o f t h e t r i a l court a multitude of v a r i o u s arguments, even those known t o be w i t h o u t m e r i t , i n the hope t h a t , i f the p a r t y p r e v a i l s a t t r i a l , an a p p e l l a n t w i l l f a i l t o a d d r e s s a l l o f t h e m i n i t s initial appellate brief. Concomitantly, i t forces a l l appellants to spend time and money a d d r e s s i n g in their p r i n c i p a l a p p e l l a t e b r i e f arguments t h a t c o u l d not have s e r v e d as t h e b a s i s f o r t h e r u l i n g a g a i n s t t h e m i n t h e c o u r t b e l o w . 1 2 98 1070484; 1070487; landowners 2002 contained amendment entities 1070514 and t h e same a m e n d a t o r y to the the Russells respectfully dissent the judgment summary breach-of-contract agreement in between claims by the and, by their landowners were contractually entitled I per acre concur viability for their i n Parts opinion trial court extension, for on the to governmental Accordingly, t h e main dependent $4,500 the McLemore. to the extent entered l a n g u a g e as d i d t h e any reverses as to tort 99 the claims notion that the receive more than land. V I I and V I I I I of the main opinion.
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