Ex parte International Refining & Manufacturing Co. d/b/a IRMCO

rel: 06/20/2014

Notice: This opinion is subject to formal revision before publication in the advance
sheets of Southern Reporter. Readers are requested to notify the Reporter of Decisions,
Alabama Appellate Courts, 300 Dexter Avenue, Montgomery, Alabama 36104-3741 ((334) 229-
0649), of any typographical or other errors, in order that corrections may be made before
the opinion is printed in Southern Reporter.

SUPREME COURT OF ALABAMA
OCTOBER TERM, 2013-2014
____________________

1130110
____________________

Ex parte International Refining & Manufacturing Co. d/b/a
IRMCO, et al.

PETITION FOR WRIT OF MANDAMUS

(In re: Bell Carr, Jr., et al.

v.

Arvin Industries d/b/a Arvin-Meritor, Inc., et al.)

(Fayette Circuit Court, CV-03-0142)
____________________

1130111
____________________

Ex parte GE Betz, Inc., et al.

PETITION FOR WRIT OF MANDAMUS
 (In re: Bell Carr, Jr., et al.

v.

Arvin Industries d/b/a Arvin-Meritor, Inc., et al.)

(Fayette Circuit Court, CV-03-0142)

BRYAN, Justice.

International Refining & Manufacturing Co. d/b/a IRMCO,

among others, and GE Betz, Inc., among others, separately seek

mandamus relief from the trial court's denial of a motion for

a summary judgment and a motion to dismiss. Although the

first named petitioner differs in each petition, the

petitioners in both are the same. Therefore, we will

hereinafter refer to the petitioners in case no. 1130110 and

case no. 1130111 collectively as "the new defendants."1 The

two petitions were consolidated for the purpose of writing one

opinion. We deny the petition in case no. 1130110, and in

case no. 1130111 we grant the petition in part, deny it in

part, and issue a writ of mandamus, directing the trial court

to dismiss any conspiracy claims against the new defendants.

Facts and Procedural History

1
These parties are referred to as "the new defendants" in
the two earlier opinions in this Court involving these parties
because they were added as defendants after the filing of the
original complaint. See discussion of those cases, infra.
2
1130110, 1130111

This is the third time this case has come before this

Court. See Ex parte International Refining & Mfg. Co., 972

So. 2d 784 (Ala. 2007) ("International Refining"), and Carr v.

International Refining & Mfg. Co., 13 So. 3d 947 (Ala. 2009)

("Carr"). In Carr, we described the facts and procedural

history as follows:

"'On November 13, 2003, Bell Carr,
Jr., and approximately 320 other former
employees at a manufacturing plant operated
by Arvin Industries d/b/a Arvin–Meritor,
Inc. (hereinafter "the [former
employees]"), sued Arvin–Meritor and six
individual defendants, also former
employees at the plant, where automotive
mufflers were manufactured. The complaint
alleged that up until the closing of the
plant in May 2002, the [former employees]
suffered harm from "exposure to toxic and
dangerous chemicals" that were flushed from
the manufacturing machines and eventually
circulated into a large pit, which the
[former employees] were responsible for
draining and cleaning. In addition to
these seven defendants, the original
complaint fictitiously named 40 other
defendants in the caption and in the body
of the complaint.

"'On May 6, 2005, approximately three
years after their last exposure to the
chemicals, the [former employees] filed
their first amended complaint, seeking to
add 64 new named defendants, including the
petitioners, in place of the fictitiously
named defendants (hereinafter "the new
defendants"), 113 new plaintiffs, as well

3
1130110, 1130111

as additional fictitiously named
defendants. The [first] amended complaint
reasserted the five claims asserted in the
original complaint, but only against the
seven original defendants. The first
amended complaint also alleged claims of
negligence, wantonness, liability under the
Alabama Extended Manufacturer's Liability
Doctrine, civil conspiracy, and the tort of
outrage, but only against the new
defendants.'

"[International Refining,] 972 So. 2d at 787.

"Regarding wantonness, the former employees
alleged in count 6 of the first amended complaint
that the new defendants had 'wantonly engineered,
designed, developed, configured, manufactured,
assembled, distributed, and/or sold the chemicals'
and other products that the former employees were
exposed to through their work at Arvin. The former
employees also alleged in count 13 that 5 of the new
defendants had 'wantonly engineered, designed, ...
manufactured, ... sold, inspected or consulted
regarding the design, engineering, manufacturing,
production, distribution and/or warnings associated
with' the equipment used in Arvin's manufacturing
process.

"'On June 14, 2005, the new defendants
removed the case to the United States
District Court for the Northern District of
Alabama pursuant to the Class Action
Fairness Act ("CAFA"), 28 U.S.C. § 1453.
The district court remanded the [claims] to
the Fayette Circuit Court ....

"'Upon remand, the new defendants
filed motions to dismiss, or, in the
alternative, for a summary judgment, on the
ground that the claims asserted against
them in the amended complaint did not

4
1130110, 1130111

relate back to the date of the filing of
the original complaint and are thus barred
by the two-year statute of limitations.
See § 6–2–38(l), Ala. Code 1975. The trial
court conducted a hearing and denied the
motions. The new defendants sought a
certification to file a permissive appeal
under Rule 5, Ala. R.App. P., but the trial
court denied the request for the
certification. The [new defendants] then
filed [a] petition for a writ of mandamus.'

"International Refining, 972 So. 2d at 787–88
(footnote omitted).

"This Court granted the new defendants' petition
and issued the writ of mandamus. We concluded in
International Refining that the claims the former
employees stated against the new defendants in the
first amended complaint did not relate back to the
claims they stated against the fictitiously named
defendants identified in their original complaint.
972 So. 2d at 791. Because the first amended
complaint was filed in May 2005, three years after
the former employees' last possible exposure to the
allegedly toxic chemicals, any new claims stated in
that complaint, which were subject to a two-year
statutory limitations period, see § 6–2–38(l), Ala.
Code 1975, were time-barred and due to be dismissed.
972 So. 2d at 791.

"We noted in International Refining that the
former employees argued 'that some of their claims
nonetheless survive, because, they say, those claims
fall within a six-year statute of limitations.' 972
So. 2d at 791. See § 6–2–34, Ala. Code 1975.
However, we declined to reach the question whether
a six-year statute of limitations applied to any of
the former employees' claims against the new
defendants, stating:

5
1130110, 1130111

"'That issue ... is not before us; our
mandamus review extends to reviewing the
denial of motions for a dismissal or for a
summary judgment that asserted a statute-
of-limitations defense only as to
fictitious-party practice. See [Ex parte]
Stover, 663 So. 2d [948,] 951–52 [(Ala.
1995)]. The extent to which the amended
complaint, filed within six years of the
events made the basis of the action but not
within two years thereof, states claims not
barred by the two-year statute of
limitations is a question not before us.'

"972 So. 2d at 791. Therefore, we 'reverse[d] the
trial court's order denying the motions to dismiss,
or for a summary judgment, and we remand[ed] the
case for further proceedings, including a
determination of the extent to which any claims are
timely, without the availability of the relation-
back doctrine.' 972 So. 2d at 791.

"On remand, the new defendants filed motions to
dismiss or, in the alternative, for a summary
judgment, on the ground that all the claims asserted
against them were subject to the two-year
limitations period stated in § 6–2–38(l), Ala. Code
1975, and were due to be dismissed pursuant to this
Court's decision in International Refining. The
former employees responded, arguing that their
wantonness claims involved trespass to the person
and, under McKenzie v. Killian, 887 So. 2d 861 (Ala.
2004), were subject to the six-year limitations
period stated in § 6–2–34(1), Ala. Code 1975. The
former employees conceded that their other claims
against the new defendants were subject to the two-
year limitations period and, without the
availability of the relation-back doctrine, were due
to be dismissed.

"On August 16, 2007, the former employees
amended their complaint a second time. The second

6
1130110, 1130111

amended complaint stated that it was 'intended to
clarify the allegations contained in the Complaint
and the First Amended Complaint in the wake of
[International Refining].' It also stated that 'no
new plaintiffs or defendants [were] added by way of
[the] amendment' and that 'all claims stated
[therein arose] out of the conduct, transaction, or
occurrences set forth in the First Amended Complaint
[and] no new causes of action [were] stated by way
of [the] amendment.' The second amended complaint
asserted only a workers' compensation claim against
Arvin, a wantonness claim against the new
defendants, and a separate wantonness claim against
five of the new defendants who the former employees
alleged had provided the equipment Arvin used in its
manufacturing process.

"The wantonness claim asserted against the new
defendants in the second amended complaint stated,
in relevant part:

"'[The new defendants] acted willfully
and/or wantonly, and committed trespass to
the persons of the former employees, in
that the said defendants consciously acted
or omitted to act, and in that they
willfully and wantonly engineered,
designed, developed, configured,
manufactured, assembled, distributed and/or
sold [the chemicals and other products]
that resulted in physical impact to the
persons of the former employees and injured
the former employees, and in that the
defendants acted or omitted a duty, while
knowing of the existing conditions and
being conscious that, from doing or
omitting to do an act, injury would likely
or probably result to the former employees,
in reckless or conscious disregard of the
rights or safety of the former employees.'

7
1130110, 1130111

"The wantonness claim asserted against the five new
defendants who the former employees alleged had
provided equipment to Arvin stated similar
allegations.

"The new defendants moved to strike the second
amended complaint. However, the trial court did not
rule on the motion to strike. Instead, the trial
court concluded in its eventual ruling on the new
defendants' motions to dismiss that, because the
second amended complaint purported to state no new
cause of action and to arise out of the same conduct
and occurrences stated in the first amended
complaint, the claims stated in the second amended
complaint were subject to the same analysis as those
in the first amended complaint. The new defendants
argued that the wantonness claims in the first and
second amended complaints were subject to a two-year
limitations period because, they said, the claims
were based on a products-liability theory. The new
defendants relied on Malsch v. Bell Helicopter
Textron, Inc., 916 So. 2d 600, 601 (Ala. 2005);
Boyce v. Cassese, 941 So. 2d 932, 945–46 (Ala.
2006); Gilmore v. M & B Realty Co., 895 So. 2d 200,
207–09 (Ala. 2004); and Smith v. Medtronic, Inc.,
607 So. 2d 156, 159 (Ala. 1992). Based on this
authority, on February 4, 2008, the trial court
entered an order dismissing all the former
employees' claims against the new defendants. The
former employees' claims against Arvin remained
pending; however, the trial court certified its
February 4, 2008, order as final pursuant to Rule
54(b), Ala. R. Civ. P. The former employees filed
a timely notice of appeal to this Court."

13 So. 3d at 949-52 (footnote omitted). In Carr, this Court

concluded:

"We stated in McKenzie[ v. Killian, 887 So. 2d 861
(Ala. 2004)]: '[W]anton conduct is the equivalent in
law to intentional conduct. Such an allegation of

8
1130110, 1130111

intent renders the six-year statutory period of
limitations applicable.' 887 So. 2d at 870. We
also adopted Justice Jones's conclusion that wanton
conduct, '"resulting in injury, is actionable in
trespass and governed by the six-year statute of
limitations."' Id. (quoting Strozier[ v. Marchich,]
380 So. 2d [804,] 806 [(Ala. 1980)] (Jones, J.,
dissenting) (emphasis added)). Based on the
analysis adopted in McKenzie, because the former
employees have alleged wanton conduct by the new
defendants, which resulted in injury to them, their
wantonness claims are subject to the six-year
limitations period of § 6–2–34(1)."

13 So. 3d at 954. The Court went on to hold:

"We find no rational basis upon which to distinguish
McKenzie so as to render its holding inapplicable.
The former employees can prove a set of
circumstances that would entitle them to relief;
therefore, the trial court erred in dismissing the
former employees' wantonness claims. We reverse its
decision as to those claims and remand the case for
further proceedings consistent with this opinion."

13 So. 3d at 955 (citation omitted).

At a case-management conference in June 2010, the new

defendants raised concerns that the former employees were

trying to allege conspiracy-based and non-bodily-injury

wantonness claims against them, which, they argued, were not

alleged in the second amendment complaint and would be

precluded by this Court's decision in Carr. The new

defendants raised those concerns again in a motion to "dismiss

all conspiracy-based claims or claims for non-bodily-injury,

9
1130110, 1130111

or in the alternative, to preclude [the former employees] from

asserting any such claims at trial." The new defendants

argued, among other things, that after Carr the only surviving

claims against the new defendants were wantonness claims based

on bodily injury.

While the case was still pending on remand, this Court

decided Ex parte Capstone Building Corp., 96 So. 3d 77, 86

(Ala. 2012), in which we overruled McKenzie, stating:

"We are clear to the conclusion that
recklessness and wantonness are fundamentally
different concepts than intent, and that claims
alleging reckless or wanton conduct are
distinctively different types of claims than those
alleging intentional harm to a plaintiff. We
therefore cannot place claims of wantonness within
the governance of § 6-2-34(1), which we interpret as
imposing a six-year statute of limitations on the
intentional torts described therein, i.e., 'trespass
to person or liberty, such as false imprisonment or
assault and battery.' Concomitantly, we conclude
that claims alleging reckless and wanton conduct
fall within the governance of the catchall provision
in § 6-2-38(l) providing a two-year limitations
period for '[a]ll actions for any injury to the
person or rights of another not arising from
contract and not specifically enumerated in this
section.'"

The Court went on to overrule McKenzie but held that the

decision in Capstone should apply prospectively only. The

Court also stated:

10
1130110, 1130111

"This Court's decision today is not based on the
constitution, either state or federal, nor does it
recognize any 'constitutional error' in any prior
decision. Our decision today is simply a matter of
statutory construction. We recognize today that the
statutory interpretation advanced in McKenzie was
incorrect, and we supply today in its place a
correct statutory interpretation. Contrary to the
suggestion made by the invocation of the quoted
passage from Justice Scalia's special concurrence in
American Trucking Ass'n v. Smith, 496 U.S. 167, 110
S. Ct. 2323, 110 L.Ed. 2d 148 (1990), this Court did
not in McKenzie, nor do we in the present case,
engage in some 'interpretation of the Constitution';
rather, the analysis provided in both McKenzie and
in the present case reflects merely an effort to
discern correctly the legislative intent reflected
in the language of §§ 6–2–34(1) and 6–2–38(l)."

Capstone, 96 So. 3d at 92.

In March 2012, the new defendants moved the trial court

for a summary judgment, arguing that the wantonness claims of

certain of the former employees, whose last exposure to the

chemicals was more than two years before McKenzie was decided,

were barred by the two-year statute of limitations that was

applicable to wantonness claims before this Court issued its

opinion in McKenzie. After a hearing, the trial court denied

both the new defendants' summary-judgment motion and their

motion to dismiss the conspiracy-based and non-bodily-injury

wantonness claims. The new defendants have petitioned in two

11
1130110, 1130111

separate petitions for mandamus relief from the denial of

those motions.

Analysis

"A writ of mandamus is an extraordinary remedy
available only when the petitioner can demonstrate:
'(1) a clear legal right to the order sought; (2) an
imperative duty upon the respondent to perform,
accompanied by a refusal to do so; (3) the lack of
another adequate remedy; and (4) the properly
invoked jurisdiction of the court.'"

Ex parte Nall, 879 So. 2d 541, 543 (Ala. 2003) (quoting Ex

parte BOC Grp., Inc., 823 So. 2d 1270, 1272 (Ala. 2001)).

I. Case No. 1130110

The new defendants argue that mandamus is an appropriate

remedy for seeking review of the trial court's denial of their

summary-judgment motion because, they argue, "certain [of the

former employees'] claims of wantonness are governed by a two-

year statute of limitations and are time-barred because those

claims do not relate-back to the date of filing of [the former

employees'] original complaint." Petition (no. 1130110), at

6. The new defendants note that, "[a]lthough denial of a

dispositive motion is generally not considered appropriate for

review by a petition for writ of mandamus, a well-established

12
1130110, 1130111

exception exists when the doctrine of relation back is

implicated."

This Court recently stated in Ex parte Hodge, [Ms.

1121194, February 7, 2014] ___ So. 3d ___, ___ (Ala. 2014):

"'The general rule is that "'a writ of mandamus
will not issue to review the merits of an order
denying a motion for a summary judgment.'" Ex parte
Empire Fire & Marine Ins. Co., 720 So. 2d 893, 894
(Ala. 1998) (quoting Ex parte Central Bank of the
South, 675 So. 2d 403 (Ala. 1996)). In all but the
most extraordinary cases, an appeal is an adequate
remedy; however, there are exceptions –- for
example, when the trial court denies a motion for a
summary judgment that is based on an argument that
governmental immunity bars the plaintiff's claim.
See, e.g., Ex parte Butts, 775 So. 2d 173, 177–78
(Ala. 2000). In such a case, the defendant may seek
pretrial appellate review by petitioning for
permission to appeal an interlocutory order in
accordance with Rule 5, Ala. R. App. P., or by
petitioning for a writ of mandamus. See id.

"'In Ex parte Southland Bank, 514 So. 2d 954,
955 (Ala. 1987), this Court stated that "[t]he fact
that a statute of limitations defense is applicable
is not a proper basis for issuing a writ of
mandamus, due to the availability of a remedy by
appeal." 514 So. 2d at 955. Subject to a narrow
exception, that statement remains true. In a narrow
class of cases involving fictitious parties and the
relation-back doctrine, this Court has reviewed the
merits of a trial court's denial of a summary-
judgment motion in which a defendant argued that the
plaintiff's claim was barred by the applicable
statute of limitations.'"

(Quoting Ex parte Jackson, 780 So. 2d 681, 684 (Ala. 2000).)

13
1130110, 1130111

The new defendants argue that this case falls within the

"narrow exception" mentioned in Ex parte Hodge because

"[t]he facts before this [C]ourt show that this
petition for [the] writ of mandamus: (1) is filed by
[the new defendants] who were fictitiously named in
an original complaint and subsequently added after
the two-year limitations period expired; (2)
requests this Court for an order directing judgment
in favor of [the new defendants] on the two-year
wantonness claims of [the former employees] that can
only survive by application of the doctrine of
relation back; and (3) fully establishes that [the
former employees'] claims do not relate back."

Petition (no. 1130110), at 7.

However, this Court has already resolved the question

whether the claims against the new defendants related back to

the original complaint. In International Refining, this Court

determined that none of the claims raised in the first amended

complaint, including the wantonness claims at issue in the

motion for a summary judgment here, related back to the

original complaint. The former employees did not argue in

opposition to the motion for a summary judgment that the

claims related back, nor did the trial court, in its order

denying the motion for summary judgment, find that the claims

related back. Moreover, such a finding was not necessary to

14
1130110, 1130111

the trial court's decision to deny the summary-judgment

motion.2

Although they stated in the summary-judgment motion that

the former employees' claims did not relate back to the

original complaint, the crux of the new defendants' argument

in that motion and to this Court is that "the two year statute

of limitations for wantonness applicable to these [former

employees'] claims expired before [this Court's] ruling in

McKenzie. Therefore, these [former employees] could not have

relied on [this Court's] ruling in filing their claims because

these [former employees'] claims were already time-barred when

McKenzie was released." Petition (no. 1130110), Exhibit 1,

p.3. This argument does not fall within the narrow relation-

back exception for cases involving a denial of a motion for a

summary judgment based on a statute-of-limitations ground.3

2
As will be shown hereinafter, the trial court could have
determined that the six-year statute of limitations in
McKenzie applied to the former employees' wantonness claims
against the new defendants.
3
In Hodge this Court granted a petition for mandamus
relief based on a statute-of-limitations question that did not
involve fictitiously named parties or the relation-back
doctrine. However, we noted in Hodge that

"the defendants ... are faced with the extraordinary
circumstance of having to further litigate this
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1130110, 1130111

The new defendants also argue that "the writ of mandamus

should issue because the trial court failed to comply with the

[Alabama] Supreme Court's mandate to dismiss claims barred by

the two-year statute of limitations." "A petition for a writ

of mandamus is the proper method for bringing before an

appellate court the question whether a trial court, after

remand, has complied with the mandate of this Court or of one

of our intermediate appellate courts." Ex parte Edwards, 727

So. 2d 792, 794 (Ala. 1998). The new defendants argue that,

in International Refining,

matter after having demonstrated from the face of
the plaintiff's complaint a clear legal right to
have the action against them dismissed based on the
four-year period of repose found in § 6-5-482(a)[,
Ala. Code 1975]. Having concluded that an appeal
pursuant to Rule 5[, Ala. R. App. P.,] or an appeal
from a final judgment following further litigation
is not an adequate remedy in this case, we conclude,
based on the particular circumstances of this case,
that mandamus is necessary in order to avoid the
injustice that would result from the unavailability
of any other adequate remedy."

___ So. 3d at ___. Unlike the defendants in Hodge, the new
defendants do not argue and have not demonstrated that their
clear legal right to a statute-of-limitations defense is
apparent on the face of either the first amended or the second
amended complaint. Therefore, they have not demonstrated that
this case falls within the exception recognized in Hodge to
the general rule against review by mandamus of the
applicability of a statute-of-limitations defense.
16
1130110, 1130111

"[t]his Court specifically and unequivocally
remanded this case 'for further proceedings,
including a determination of the extent to which any
claims are timely, without the availability of the
relation-back doctrine.' [International Refining,]
972 So. 2d at 791. This Court also explained that
claims 'governed by a statute of limitations that
require the application of the doctrine of relation
back under fictitious-party practice to survive are
due to be dismissed.' Id. Thus, the trial court
has defied its duties under the mandate by its
failure to enter judgment against certain [of the
former employees] whose claims would have only
survived if relation back applied."

Petition (no. 1130110), at 12.

However, on remand from International Refining, the trial

court determined that all the claims against the new

defendants were barred by statutes of limitations and

dismissed those claims. The former employees appealed, and

this Court reversed that judgment as to the wantonness claims,

finding that the wantonness claims were subject to a six-year

statute of limitations. See Carr, supra. Thus, the trial

court complied with this Court's mandate in International

Refining. The new defendants have not pointed to any aspect

of this Court's mandate in Carr related to this issue, with

which, they argue, the trial court failed to comply.4

4
The new defendants do argue that the trial court failed
to comply with this Court's mandate in Carr by denying their
motion to dismiss any conspiracy-based claims or wantonness
17
1130110, 1130111

Moreover, this Court has stated:

"'"Remedial statutes" ... operate retrospectively,
in the absence of language clearly showing a
contrary intention. A statute of limitations has
generally been viewed as a remedial statute, and the
statute of limitations in effect at the time the
suit is filed, as opposed to one in effect at the
time of the accrual of the cause of action, has been
held to apply unless the later statute clearly
states the contrary. This is true whether the later
statute extends or limits the time within which a
cause of action may be brought, for it has
frequently been held that the legislature can
establish a new limitation where none existed before
and make it applicable to a cause of action against
which there was no such statute when the right was
created, and it may also so change an existing
statute and shorten periods of limitation, provided
a reasonable time is allowed for the action to be
brought.'"

Foster v. Hacienda Nirvana, Inc., 32 So. 3d 1256, 1260 (Ala.

2009) (quoting Street v. City of Anniston, 381 So. 2d 26, 29

(Ala. 1980)). See also Schoen v. Gulledge, 481 So. 2d 1094,

1097 (Ala. 1985) (applying the statute of limitations in place

at the time the action was filed rather than the statute of

limitations in place at the time the events giving rise to the

cause of action occurred); Jones v. Preuit & Mauldin, 876 F.2d

1480, 1484 (11th Cir. 1989) ("The general rule under Alabama

claims based on non-bodily injury. That argument will be
addressed later in the opinion.
18
1130110, 1130111

law is that the statute of limitations in effect at the time

an action is brought applies.").

Although a two-year statute of limitations on wantonness

claims may have been in place at the time the former

employees' claims arose, the six-year statute of limitations

adopted in McKenzie was in place at the time the former

employees asserted those claims against the new defendants in

the first amended complaint.5 Thus, the new defendants have

not demonstrated that the trial court failed to comply with

any prior mandate of this Court, nor have they demonstrated a

clear legal right to the dismissal of the wantonness claims

against them by way of a summary judgment. Therefore, the new

defendants' petition for mandamus relief in case no. 1130110

is denied.6

5
The wantonness claims were not asserted against the new
defendants until the first amended complaint was filed in
2005, and this Court noted in International Refining that
those claims do not relate back to the 2003 original
complaint. Therefore, the former employees' wantonness claims
are governed by a six-year statute of limitations in place at
the time the first amended complaint was filed.
6
By recognizing that the former employees' wantonness
claims against the new defendants are governed by the six-year
statute of limitations set forth in McKenzie, which was in
place at the time the claims were alleged, and not the two-
year statute of limitations in place at the time the
wantonness claims accrued, we pretermit consideration of the
19
1130110, 1130111

II. Case No. 1130111

The new defendants argue in case no. 1130111 that the

writ of mandamus should issue because, they argue, the trial

court failed to follow this Court's mandate in Carr by

"allow[ing] [the former employees] to proceed with a

conspiracy-based claim and claims for non-bodily injury."

Petition (no. 1130111), at 10. As noted previously, "[a]

petition for a writ of mandamus is the proper method for

bringing before an appellate court the question whether a

trial court, after remand, has complied with the mandate of

this Court or of one of our intermediate appellate courts."

Ex parte Edwards, 727 So. 2d at 794. "On remand, a trial

court is not free to reconsider issues finally decided by the

appellate court and must comply with the appellate mandate."

Ex parte Mobil Oil Corp., 613 So. 2d 350, 352 (Ala. 1993).

In Carr, the former employees appealed the trial court's

February 4, 2008, order dismissing all the former employees'

claims against the new defendants. The trial court certified

the order as a final judgment, pursuant to Rule 54(b), Ala. R.

issue whether this Court's decision in McKenzie revived
otherwise time-barred claims or whether such a revival would
violate the new defendants' constitutional rights.
20
1130110, 1130111

Civ. P. Although the first amended complaint had included

claims against the new defendants alleging "negligence,

wantonness, liability under the Alabama Extended

Manufacturer's Liability Doctrine, civil conspiracy, and the

tort of outrage," the former employees appealed only the

dismissal of the wantonness claims, arguing that the

wantonness claims were subject to the six-year statute of

limitations set forth in McKenzie.7 This Court agreed,

concluding that "the trial court [had] erred in dismissing the

former employees' wantonness claims. We reverse[d] its

decision as to those claims and remand[ed] the case for

further proceedings consistent with [that] opinion." 13 So.

3d at 955.

After the remand in Carr, the new defendants moved the

trial court "to enter an order dismissing any and all (a)

conspiracy-based claims or (b) claims for non-bodily injury

that [the former employees] may seek to assert, or, in the

alternative, precluding [the former employees] from asserting

7
In fact, as we noted in Carr, the former employees had
"conceded that their other claims against the new defendants
were subject to the two-year limitations period and, without
the availability of the relation-back doctrine, were due to be
dismissed." Carr, 13 So. 3d at 951.
21
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any such claims hereafter and from arguing any such claims at

the trial of this case." The trial court denied that motion,

and the new defendants argue that, in doing so, it violated

this Court's mandate in Carr by allowing the former employees

to proceed with claims other than those included in the remand

order in Carr. With regard to the conspiracy claims, we

agree.8

The former employees' conspiracy claims were alleged as

separate claims in the first amended complaint and were

dismissed by the trial court along with the other claims

against the new defendants in its February 4, 2008, order,

which was certified as a final judgment pursuant to Rule

54(b). As noted previously, the former employees appealed

only the wantonness claims, and this Court reversed the trial

8
It is worth noting that the former employees have not
moved the trial court to amend the pleadings to assert any new
claims alleging conspiracy or non-bodily injury. Instead,
they argue that the conspiracy claims alleged in the first
amended complaint remain intact because, they say, those
claims "travel with" and "proceed in tandem" with the
wantonness claims. Response to petition (no. 1130111), at 18.
They also argue that their wantonness claims incorporated both
claims for bodily and non-bodily injuries. Thus, although the
motion to dismiss was framed in future terms (i.e., claims
that "may be asserted"), the former employees appear to
consider conspiracy and non-bodily-injury claims to be among
the claims currently before the trial court in this case.
22
1130110, 1130111

court's judgment only as to those claims. See Carr, 13 So. 3d

at 955 ("[T]he trial court erred in dismissing the former

employees' wantonness claims. We reverse its decision as to

those claims and remand the case for further proceedings

consistent with this opinion."). We did not, as the former

employees argue, "return[] to the trial court all claims

stated by the [former employees,] which could be subject to a

six-year statute of limitations, clearly regarding all

allegations and damages within the constellation of [the

former employees'] claims as likewise within the operation of

that mandate." Response to petition (no. 1130111), at 9.

The former employees argue, however, that the conspiracy

claims "are wholly derivative of and dependent on their

wantonness claims," response to petition (no. 1130111), at 9;

that "[the former employees] pleaded facts and allegations in

the first amended complaint sufficient to state claims for

conspiracy that travel with the wantonness claims"; and that

"[t]he allegations of civil conspiracy present no separate,

independent cause of action subject to resolution or dismissal

apart from wantonness, and proceed in tandem with the

wantonness claims." Response to petition (no. 1130111), at

23
1130110, 1130111

18. In support of these arguments, the former employees cite

cases indicating that "[c]onspiracy is not an independent

cause of action; therefore, when alleging conspiracy, a

plaintiff must have a viable underlying cause of action,"

Drill Parts & Serv. Co. v. Joy Mfg. Co., 619 So. 2d 1280, 1290

(Ala. 1993), and that "a conspiracy claim must fail if the

underlying act itself would not support an action." Triple J

Cattle, Inc. v. Chambers, 621 So. 2d 1221, 1225 (Ala. 1993).

Although these cases demonstrate that a conspiracy claim

cannot exist independently of a viable cause of action, they

do not indicate that conspiracy claims automatically "travel

with" or "proceed in tandem" with other causes of action such

that, where both the conspiracy claim and the claim in the

underlying cause of action have been dismissed, an appeal

challenging the claim in the underlying cause of action is,

effectively or implicitly, an appeal of the conspiracy claim

as well. The former employees have cited no authority

supporting the latter proposition, and we know of none.

The former employees do cite DGB, LLC v. Hinds, 55 So. 3d

218 (Ala. 2010), in which, they argue, "this Court reversed

[the] dismissal of [the] plaintiffs' conspiracy count when it

24
1130110, 1130111

found the tort underlying the conspiracy to have been

erroneously dismissed." However, unlike the former employees,

the appellants in DGB had appealed the dismissal of the

conspiracy claims, as well as the dismissal of the underlying

tort claims. This Court reversed the trial court's judgment

as to the underlying tort claims and went on to state:

"Because the investors have alleged valid underlying causes of

action ..., the investors have stated a claim of civil

conspiracy upon which relief may be granted against each of

these defendants. Accordingly, the trial court erred in

dismissing this claim." DGB, 55 So. 3d at 234. Here,

however, the former employees did not appeal the dismissal of

the conspiracy claims and, in fact, had "conceded that their

other claims against the new defendants [besides the

wantonness claims] were subject to the two-year limitations

period and, without the availability of the relation-back

25
1130110, 1130111

doctrine, were due to be dismissed." Carr, 13 So. 3d at 951.9

DGB is distinguishable on that basis.

The former employees also argue that, "[e]ven if the

[former employees'] allegations of ... conspiracy were

dismissed, the trial court could consider such allegations

within this Court's mandate to the extent Carr was not a final

adjudication." Response to petition (no. 1130111), at 19.

The former employees cite Ex parte Insurance Co. of North

America, 523 So. 2d 1064, 1069 (Ala. 1988), for the

proposition that "a trial court [has an] inherent ability to

take up new claims, either of its own volition or on motion,

after remand where there has been no final adjudication of the

claims." However, as the former employees themselves assert,

their conspiracy claims are not "new claims" but were raised

initially in the first amended complaint. Moreover, the trial

9
The former employees now argue that the conspiracy claims
related to wantonness are governed by the six-year statute of
limitations applicable to the wantonness claims. This
argument was not raised during the appeal of the February 4,
2008, judgment, which dismissed all the former employees'
claims, including the conspiracy claims, as barred by the
applicable statute of limitations. Thus, that argument was
waived and will not be considered here. See Muhammad v. Ford,
986 So. 2d 1158, 1165 (Ala. 2007) ("'An argument not made on
appeal is abandoned or waived.'" (quoting Avis Rent A Car
Sys., Inc. v. Heilman, 876 So. 2d 1111, 1124 n.8 (Ala.
2003))).
26
1130110, 1130111

court's February 4, 2008, judgment, which was made final

pursuant to Rule 54(b), dismissed all the claims against the

new defendants, and the former employees did not appeal the

dismissal of any claims except the wantonness claims. "In

cases where an appeal is taken with respect to only a

particular issue or issues, there can be no retrial after

remand of issues previously tried and determined but not

appealed from." Ex parte Army Aviation Ctr. Fed. Credit

Union, 477 So. 2d 379, 380-81 (Ala. 1985). Because the

conspiracy claims were dismissed in the trial court's February

4, 2008, judgment and because this Court's decision in Carr

reversed that judgment as to the wantonness claims only, this

Court's decision in Carr was a final adjudication of the

conspiracy claims, and allowing those claims to proceed is a

violation of this Court's decision in Carr.

The new defendants also argue that the trial court erred

by failing to dismiss any wantonness claims for non-bodily

injury. However, in reversing the trial court's judgment as

to the wantonness claims, this Court in Carr did not

distinguish between claims based on bodily injury and those

based on non-bodily injury. Instead, we held that "the trial

27
1130110, 1130111

court erred in dismissing the former employees' wantonness

claims." 13 So. 3d at 955. The wantonness claims as set

forth in the first and second amended complaints listed

"mental anguish, humiliation, and embarrassment" among the

injuries allegedly caused by the new defendants' wantonness.10

Thus, the former employees' wantonness claims included

allegations of non-bodily as well as bodily injury, and the

trial court did not violate this Court's mandate in Carr by

denying the new defendants' motion to dismiss the former

employees' non-bodily-injury wantonness claims.

Conclusion

For the foregoing reasons, we conclude that the trial

court erred by allowing the former employees to proceed

against the new defendants on the conspiracy claims, and the

new defendants are entitled to have any such claims dismissed.

Therefore, we grant the petition in case no. 1130111 in part

and issue the writ of mandamus, directing the trial court to

dismiss all allegations of conspiracy against the new

10
The new defendants argue that the second amended
complaint superseded the first amended and original complaints
and "displace[d]" the claims alleged in those complaints.
Because the wantonness claims in both the first and second
amended complaints included claims for non-bodily injury, we
need not address this issue at this time.
28
1130110, 1130111

defendants. The petition in case no. 1130111 is denied in all

other respects. The petition in case no. 1130110 is denied.

1130110 -- PETITION DENIED.

1130111 -- PETITION GRANTED IN PART AND DENIED IN PART;

WRIT ISSUED.

Moore, C.J., and Stuart, Bolin, Parker, Murdock, Main,

and Wise, JJ., concur.

Shaw, J., concurs in the result.

29