Howard Michael Warren appeals from a summary judgment in favor of the defendant, John Scott Hooper. We reverse and remand.

On November 19, 2004, Hooper filed a motion to dismiss on the following grounds: (1) that Warren could not prove damages; (2) that the statute of limitations barred all claims except the breach-of-contract claim; (3) that the Statute of Frauds barred the breach-of-contract claim; (4) that the doctrine of laches barred all claims; and (5) that Warren's failure to join Hooper as a necessary party pursuant to Rule 19(a), Ala. R. Civ. P., in Warren's *Page 1120 action against Eason for default on the loan now barred the present action. The trial court subsequently denied the motion.

Before any discovery was taken, Hooper moved for a summary judgment on the same grounds as set out in his motion to dismiss. Following a hearing, of which there is no transcript in the record, the trial court entered a summary judgment in favor of Hooper, stating, in pertinent part:

"There is no allegation(s) plead[ed] or fact pattern stated in the hearing that [Hooper] was a facilitator to the mortgage loan agreement between [Warren] and Mr. Eason, and therefore there is no general fiduciary or agency relationship or duty established between [Warren] and [Hooper]. Thus, after considering the above stated facts and applicable law the court finds that there is no genuine issue of material fact, and that [Hooper] is entitled to judgment as a matter of law."

Warren appeals.

"In reviewing the disposition of a motion for a summary judgment, we use the same standard the trial court used in determining whether the evidence before it presented a genuine issue of material fact and whether the movant was entitled to a judgment as a matter of law. Bussey v. John Deere Co., 531 So.2d 860, 862 (Ala. 1988); Rule 56(c), Ala. R. Civ. P. When the movant makes a prima facie showing that no genuine issue of material fact exists, the burden then shifts to the nonmovant to present substantial evidence creating such an issue. Bass v. SouthTrust Bank of Baldwin County, 538 So.2d 794 (Ala. 1989). Evidence is `substantial' if it is of `such weight and quality that fair-minded persons in the exercise of impartial judgment can reasonably infer the existence of the fact sought to be proved.' West v. Founders Life Assurance Co. of Florida, 547 So.2d 870, 871 (Ala. 1989). This Court must review the record in a light most favorable to the nonmovant and must resolve all reasonable doubts against the movant. Hanners v. Balfour Guthrie, Inc., 564 So.2d 412 (Ala. 1990)."

"This Court will not consider facts not in the record in its review of cases on appeal." Ex parte General MotorsCorp., 769 So.2d 903, 907 (Ala. 1999). Notably, Warren does not argue on appeal that he was entitled to discovery before Hooper's summary-judgment motion was granted;¹ he asserts only that the affidavits he presented in opposition to the summary-judgment motion create genuine issues of material fact that preclude summary judgment and that the trial court improperly entered the summary judgment on a ground Hooper did not raise. *Page 1121 Accordingly, although summary judgment was entered before the parties engaged in discovery, we will not consider whether Warren was entitled to additional discovery, and we will review only the evidence that was before the trial court when it granted the motion. McGinnis v. Jim Walter Homes, Inc.,800 So.2d 140, 145-46 (Ala. 2001).

The affidavits submitted to the trial court are in conflict as to whether Eason and Warren communicated through Hooper or directly with one another regarding the $200,000 loan. Eason stated that he and Warren "talked at length about all issues of the note and mortgage." Warren stated that "there were no negotiations between [him] and [Eason]" and that he "never spoke with [Eason]. [Hooper] handled all the communication between the *Page 1122 two of [them] regarding the lending of the money and the signature of the note." The affidavits also conflict regarding the substance of Hooper's advice to Warren. Hooper stated that he advised Warren that he could not participate in, generate documents related to, or represent either party with respect to the loan transaction. Eason's affidavit asserts that Hooper made these statements to him and that Hooper did not represent him or Warren with respect to "any of the details of the note or mortgage." However, although Warren does not expressly state that Hooper represented him, he denies that Hooper made similar statements to him. Additionally, it is undisputed that Warren asked Hooper "if it was a safe deal." Warren stated that Hooper told him regarding the transaction that "he would `stake his reputation on it.'" Hooper, however, stated: "I told Warren that I had not looked up any chain of title or mortgages on the properties. . . . I advised [Warren] that he should get one of his other attorneys to advise him on the issues of this deal."

Warren states in his affidavit, contrary to the facts as stated in Hooper's affidavit, that Hooper handled all the communications between Warren and Eason and that Warren never spoke to Eason; that Hooper came to his house (Warren is a quadriplegic) to work out the details of the loan and to pick up a check representing the proceeds of the loan, which he then delivered to Eason; and that Hooper recorded the mortgage for him. Accordingly, the trial court erred both as a matter of procedure and as to the merits in entering a summary judgment in favor of Hooper on this ground.

Here, even though discovery had not even been commenced, much less completed, Hooper could still pursue a summary judgment concerning Warren's alleged failure to show proof of damages because, as noted earlier, Warren presented no affidavit pursuant to Rule 56(0, Ala. R. Civ. P., stating the reason (i.e., lack of discovery) he could not present essential facts relative to his proof of damages.

However, Hooper's argument seeking a summary judgment on this ground does not afford an alternate basis upon which to affirm the trial court's judgment. Even though Warren failed to file a motion to strike, either as to Hooper's unauthenticated documents concerning the appraised valuations of the mortgaged properties or as to Eason's affidavit in the form of a challenge to Eason's expertise and ability to assert the valuations made in that affidavit, Warren did specifically argue that Hooper's ground concerning his failure to show proof of damages was speculative. Assuming that the trial court had properly before it evidence as to the value of the real properties subject to Warren's mortgage, Hooper failed to provide any evidence of the balance owed on the mortgages that were superior to Warren's mortgage. The only evidence as to the amount owed on the senior mortgages was Eason's unsupported and uncorroborated statement that "[t]he liens ahead of [Warren] total near $3,000,000.00." Accordingly, Hooper never made a sufficient showing that there was no genuine issue as to Warren's proof of damages so as to shift the burden to Warren, because the amount of equity available to Warren in the mortgaged properties to satisfy his damages could not have been accurately determined without first deducting the payoffs on the mortgages senior to Warren's mortgage.³

REVERSED AND REMANDED.

COBB, C.J., and SEE, STUART, SMITH, PARKER, and MURDOCK, JJ., concur.

LYONS and WOODALL, JJ., dissent.

For the reasons set forth in my dissent in PavilionDevelopment, LLC v. JBJ Partnership, 979 So.2d 24 (Ala. 2007), I respectfully dissent from the main opinion's reversal of the judgment of the trial court. Warren has waived the issue of the invalidity of the alternate ground relied upon by Hooper by failing to address it in his reply brief. I would affirm the trial court's judgment based solely on Warren's procedural default.

Hooper's motion for a summary judgment relied upon, among other grounds, the absence of any damages as a basis for his defense to Warren's claim. In entering the summary judgment in his favor, the trial court relied upon a ground not asserted by Hooper. In his opening brief to this Court, Warren failed to address any of the alternative grounds asserted by Hooper in his summary-judgment motion. Hooper asserts in his appellee's brief the defense of lack of proof of damages and argues the merits of that issue. Warren's reply brief merely notes that Hooper makes an argument as to lack of proof of damages. He fails to address the merits of that issue, contending that Hooper's discussion of that issue "misses the mark."

The main opinion deems Hooper's argument as to lack of proof of damages insufficient to satisfy the requirements of Rule 28(a)(10), Ala. R.App. P., dealing with the content of argument in an appellant's brief. The main opinion then cites several cases in which we have affirmed a trial court's judgment where an appellant has failed to present sufficient argument and then notes that Rule 28(b) makes the requirements of Rule 28(a)(10) applicable to an appellee. Of course, Rule 28(a)(10) requires an argument "as to the issues presented." Warren wholly failed to address the issue of lack of proof of damages in his opening brief. Thus, if Hooper had also wholly failed to address the issue of lack of proof of damages in his brief he would not have been in violation of Rule 28(a)(10) because that issue had not been presented by Warren. Further, even where an appellee files no brief whatsoever, we assume that the appellee seeks an affirmance. Tri-City Gas Co. v. Britton, 230 Ala. 283,160 So. 896 (1935). Nevertheless, assuming that Hooper subjected himself to the requirements of Rule 28(a)(10) by opening the door to the issue of lack of proof of damages, I cannot agree with the rejection in the main opinion of the sufficiency of Hooper's brief on this issue. Hooper cites Baker v.Metropolitan Life Insurance Co., 907 So.2d 419, 420 (Ala. 2005), in which this Court referred to the necessity for proof of damages to sustain a fraud claim and noted that the trial court could properly consider the lack of proof of damages in granting a summary-judgment motion. Hooper also argues in support of his contention that Warren failed to show proof of damages that, for all that appears, Warren "remains with the option to foreclose the properties." Hooper further argues: "There remains the possibility of [Warren's] recovering his monies and the realization of a profit if [he] chooses to exercise his rights to collect on his judgment [against Eason] at this time." Although Hooper's brief is by no means a model for others to follow, it stands head and shoulders above Warren's reply brief, which addresses the issue of lack of proof of damages by dismissing it solely on the contention that Hooper "misses the mark." Yet the main opinion rewards Warren's laxity with a reversal while applying a more stringent standard to Hooper, the appellee.

WOODALL, J., concurs. *Page 1125