Daniel Flickinger v. Lawrence Tracy King and King Simmons Ford & Spree, P.C. (Appeal from Jefferson Circuit Court: CV-21-226).

Rel: May 9, 2025

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) 229-0650), of any typographical or other
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SUPREME COURT OF ALABAMA
OCTOBER TERM, 2024-2025

_________________________

SC-2024-0153
_________________________

Daniel Flickinger

v.

Lawrence Tracy King and King Simmons Ford & Spree, P.C.

Appeal from Jefferson Circuit Court
(CV-21-226)

McCOOL, Justice. 1

1This case was originally assigned to another Justice on this Court;

it was reassigned to Justice McCool on January 21, 2025.
SC-2024-0153

Daniel Flickinger appeals from a summary judgment issued by the

Jefferson Circuit Court in favor of Lawrence Tracy King and the law firm

of King Simmons Ford & Spree, P.C. ("the King law firm"), which we will

refer to collectively as "the King defendants." For the reasons set forth

herein, we affirm the judgment in part, reverse it in part, and remand

the case for further proceedings.

Facts and Procedural History

This is the second time these parties have been before this Court on

appeal. 2 In Flickinger v. King, 385 So. 3d 504 (Ala. 2023), which involved

the circuit court's dismissal of Flickinger's claims against the King

defendants, this Court set forth the following facts:

"At the time of the events underlying the present
lawsuit, Flickinger had been employed as a full-time litigator
at Wainwright, Pope & McMeekin, P.C. ('WPM'), for
approximately 11 years. According to Flickinger, during the
course of his career with WPM, he had been active on various
social-media platforms and had often posted 'conservative
political and cultural commentary' on those platforms.
Flickinger maintained that, when he posted such
commentary, he always did so in his 'personal capacity' and
that he never 'listed his place of employment on his personal
social media profiles or in conjunction with his personal social
media posts.'

2Flickinger also previously filed a petition for a writ of mandamus

in 2021, in which he sought a change of venue. This Court denied that
petition by order on January 26, 2022. Ex parte Flickinger (No. 1210131).
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"It is undisputed that, in June 2020, Flickinger posted
the following message on his personal Facebook page,
apparently regarding the death of George Floyd[3]:

" 'Things I think about: If I were a seven-time felon,
with my most recent prison stint stemming from
robbing and holding a pregnant woman at
gunpoint in her home, would I choose to die in a
fentanyl and methamphetamine numbed
strangulation if it meant being worshipped in a
nationwide funeral and my family receiving
millions of dollars? Purely hypothetical.'

"On June 9, 2020, Flickinger received a telephone call
from his supervising attorney, Lonnie Wainwright, during
which Wainwright revealed that King had contacted him
regarding Flickinger's social-media post. Wainwright asked
that Flickinger meet with him the following day. According
to Flickinger, shortly after speaking with Wainwright, he
received a 'cryptic tweet' from the King law firm's Twitter
social-media account -- @KingSimmonsPC -- that contained a
'large eyes emoji' along with one of Flickinger's posts from
several days earlier on his personal Facebook page.

"The next day, June 10, 2020, Flickinger met with the
partners of WPM. Although, according to Flickinger, the
WPM partners at the meeting admitted that they 'did not
understand social media' and were 'not on social media,' they
expressed that they were very concerned about the public
connection between his social-media post and their law firm,

3George Floyd, a black man, died in May 2020 while being arrested

by Derek Chauvin, a white police officer. Floyd's death received national
media coverage and sparked nationwide riots and protests. Chauvin was
later convicted of murdering Floyd and was sentenced to 270 months'
imprisonment. See State v. Chauvin, 989 N.W.2d 1 (Minn. Ct. App.
2023).
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and, according to Flickinger, one partner asked: 'How could
you do this to us?'

"After Flickinger asked the WPM partners numerous
times for a copy of the actual images sent to them by the King
defendants, Flickinger says, 'the managing partner …
permitted [Flickinger] to view his phone, which depicted an
image that was generated, manufactured, sent, published,
and/or distributed by Lawrence T. King and King Simmons
Ford Spree, P.C. containing a counterfeit social media profile
using [Flickinger's] professional credentials that [Flickinger]
had never used in conjunction with personal social media
posts.' (Emphasis added.) According to Flickinger, the
allegedly 'counterfeit' social-media profile contained a
professional photograph 'appropriated' from WPM's Web site
that, he said, he had never used on any of his personal social-
media platforms as well as the name of Flickinger's employer,
which, he maintains, he had 'never advertised or shared in
conjunction with any of his personal social media posts.'

"According to Flickinger, digitally merged with this
'counterfeit' social-media profile were additional social-media
posts appropriated from his personal social-media platforms
that were critical of the mass nationwide violence that had
been going on in the wake of George Floyd's death.
Additionally, offensive comments about his initial social-
media post about George Floyd's death had been added to that
'counterfeit' profile to make it appear that third persons were
commenting directly on the social-media post. Those
comments included statements that Flickinger was a 'racist'
and that WPM was 'a business that supports racism.'

"Flickinger was then told that the WPM partners had
had discussions with King about the King defendants' 'ability
and willingness to control the distribution of the false and
defamatory images favorably for WPM.' At the conclusion of
the meeting, Flickinger was informed that either he must

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resign or WPM would pursue 'other [more punitive] options.'
Flickinger resigned.

"After Flickinger resigned, the WPM partners informed
him that they had spoken on the phone with King a second
time and that King had told them again about the King
defendants' 'ability and willingness to control the distribution
of the false and defamatory images favorably for WPM.' The
very next day, the following 'tweet' appeared on the
@KingSimmonsPC Twitter page:

" 'We represent a lot of hurt workers across
Alabama, & spar w/lots of great defense lawyers.
Those @ [WPM] (2 of whom I've know for well over
34 years) are as diligent, fair, upright, honest, &
ethical as are found anywhere. Felt like saying it.
#RESPECT.'

"Additionally, a Facebook page belonging to an individual who
Flickinger alleges is a 'co-conspirator' with the King
defendants contained the following message:

" 'Now that [Daniel Flickinger] has been erased, I
want to say that the firm he worked for has a great
reputation in town and they are honest,
professional, kind people. Good for them for such
a fast and definitive response.'

"Flickinger subsequently discovered that the King law
firm's Twitter page contained 'tweets' allegedly authored by
the King defendants 'gloating over the employment
termination of private citizens solely on the basis of citizens
expressing thoughts and opinions with which [the King
defendants] disagreed.' For example, Flickinger noticed that,
before the events underlying the present action occurred, the
following post appeared on the @KingSimmonsPC Twitter
page regarding the employment termination of a different
person:
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" '5/12/2020: Here's a white guy that got fired by
his law firm employer. He wouldn't wear a mask
in a "ghetto store" and bragged about his guns and
ammo. What a turd …'

"In addition, Flickinger alleges that he later discovered
that members of a 1,500-plus member 'private' Facebook
group named 'CALLING OUT ALABAMA BUSINESSES
THAT SUPPORT RACISM' had been posting the following
statements accusing him of being a 'racist' and accusing WPM
of being a 'business that supports racism':

"• 'Calling Out Alabama Businesses That Support
Racism … So [Daniel Flickinger] is a lawyer! Who
knows what kinda ethical damage he's done?! He
works at Wainwright, Pope, McMeekin, P.C.'

"• 'I went to school for years with this asshole …
Racist condones running over protestors a few
posts down …'

"• '…. DEFINITELY email [Daniel Flickinger's]
firm. Firms are firing people left and right for
being racist scumbags (and rightfully so)'

"• 'Ugly inside and out'

"• 'What a f***ing piece of s**t'

"According to Flickinger, King was a member of this 'private'
Facebook group, something that King now denies."

385 So. 3d at 507-09 (footnote omitted).

Based on those events, Flickinger sued the King defendants,

asserting claims of defamation, invasion of privacy, and tortious

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interference with a business relationship. On the King defendants'

motion, the circuit court dismissed Flickinger's claims, and, in Flickinger,

this Court affirmed the dismissal of Flickinger's defamation and

invasion-of-privacy claims. However, the Court held that the allegations

in Flickinger's complaint were sufficient to state a claim of tortious

interference with a business relationship, and, thus, the Court reversed

the circuit court's dismissal of that claim and remanded the case for

further proceedings.

In July 2023, the King defendants moved for a summary judgment

on Flickinger's tortious-interference claim, arguing that "there is no

substantial evidence that any of the [King defendants'] asserted conduct

proximately caused any damages of which [Flickinger] complains."

According to the King defendants, "as to employment decisions that were

made affecting [Flickinger] in this at-will employment state, there are

three people alone who can speak to what motivated the employment

decision at issue: the partners at Wainwright, Pope & McMeekin who

made that decision." In support of their motion, the King defendants

provided the affidavits of Lonnie Wainwright, Linda Pope, and Steven

McMeekin, the partners of Wainwright, Pope & McMeekin, P.C.

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("WPM"), who had told Flickinger that "either he must resign or WPM

would pursue 'other [more punitive] options.' " Flickinger, 385 So. 3d at

509.

Wainwright's affidavit states, in relevant part:

"I was one of the decision-makers who made the personnel
decisions involving [Flickinger] and the end to his
employment. He was offered the opportunity to resign his
employment as a matter of his choice, and he did resign of his
choice. To be very clear, the personnel decision that was
unanimously made by the three partners to offer him the
opportunity to resign was not based on any information other
than our personal review with our own eyes of various open
public social media posts that were made by [Flickinger]; the
decision was not made, or suggested, recommended,
approved, solicited, or ratified by the named Defendants or
anyone else.

"….

"When our law firm's three decision-makers reviewed
[Flickinger's] social media posts, we decided upon the
personnel decision to offer [Flickinger] the opportunity to
resign. The unanimous decision was made solely and
exclusively by the firm's three decision-makers. King and the
other Defendants had no input or involvement whatsoever in
the employment decision of our firm.

"King … made very clear that he advocated absolutely no
course of personnel decision-making at all, or that any
decision-making even occur; to the contrary, he expressed
only that he would want to know if one of his lawyers had
made similar such posts."

(Emphasis in original.)
8
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Pope's affidavit states, in relevant part:

"In June of 2020, I was a partner with the law firm of
[WPM]. I was, at the time, one of the decision-makers with
regard to employment personnel decisions. Prior to making
any decisions involving … Flickinger, I did my own
independent research into Flickinger's posting history. It was
that independent research, rather than a single post, which
[led] to any and all personnel decisions that the firm made
with respect to Flickinger.

"I received the same screenshot of a social media post
from two different sources -- King and Don Rhea [--] on the
same night. Thus, even had King not forwarded the
screenshot, I still would have learned all of the same
information which lead me to the independent research that
lead to our firm's personnel decision."

McMeekin's affidavit states, in relevant part:

"On or about June 9, 2020, I learned that … Flickinger
had made several inflammatory posts on social media that
could harm the image of my law firm.

"Prior to making any personnel decision involving
Flickinger, one of the other partners in the law firm, Linda
Pope, did her own independent research into Flickinger's
social media posting history and located numerous additional
inflammatory and divisive posts. In one of those posts,
Flickinger indicated that he had received economic threats
due to his posts. That caused great concern, as economic harm
to Flickinger would necessarily implicate our law firm.

"It is my understanding that this lawsuit i[s] based on
the fact that … King … shared a screenshot of one of
Flickinger's social media posts that was re-posted in a
Facebook group by an individual named Shawn Avery. Each
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SC-2024-0153

of the three partners in the firm, Lonnie Wainwright, Linda
Pope, and myself received the same screenshot from another
source on the same night that the information was provided
by … King. Thus, even had King not provided the screen
shot, we still would have learned the exact same information
and made all the same personnel decisions."

The summary-judgment hearing was scheduled to occur on

December 13, 2023, and the circuit court set November 27, 2023, as the

deadline for completing discovery. On October 5, 2023, Flickinger filed

notice of his intent to have the circuit court serve a subpoena to T-Mobile

USA ("T-Mobile"), which is King's cellular-telephone-service provider.

That subpoena, which Flickinger attached to his notice, sought the

production of a "complete copy of cellular telephone records for [King's]

cell phone number" during "the time period of May 25, 2020, to

September 1, 2020." Five days later, the King defendants objected to the

subpoena on several grounds, including that it sought "confidential

information," sought information that was not "reasonably calculated to

lead to admissible evidence," and was overly broad. Thus, the subpoena

did not issue. See Rule 45(a)(3)(B), Ala. R. Civ. P. ("Any person or party

may serve an objection to the issuance of a subpoena for production,

inspection, copying, testing, or sampling within ten (10) days of the

service of said notice and in such event the subpoena shall not issue.").
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On November 28, 2023 -- the day after the circuit court's discovery

deadline -- Flickinger filed a motion "to compel/order the issuance of [his]

October 5, 2023, non-party cell-phone records subpoena to T-Mobile." See

id. (providing that, if there is an objection to a subpoena for production,

the party seeking the subpoena may move for an order to compel

production under Rule 37(a), Ala. R. Civ. P.).

On December 1, 2023, the King defendants filed an amended

summary-judgment motion. In that motion, the King defendants

reasserted the arguments that they had raised in their initial summary-

judgment motion; they further argued that King's act of alerting

Wainwright to Flickinger's social-media post regarding the death of

George Floyd (hereinafter referred to as "the George Floyd post") could

impose "no corporate liability" on the King law firm because, they said,

there "is absolutely no suggestion whatsoever that [King's act] was

within the line and scope of his work as an attorney for the [King] law

firm" or that it "benefit[ed] the law firm." Flickinger filed a response to

the amended summary-judgment motion, but he did not acknowledge the

King defendants' "no corporate liability" argument.

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On December 11, 2023, Flickinger filed a motion to continue the

summary-judgment hearing and asked the circuit court to "reschedule

the hearing at least 90 days after [the court] rule[d] upon [his] pending

Motion to Compel … such that [he] may have sufficient time to complete

discovery." The King defendants objected to Flickinger's motion to

continue, and the circuit court did not rule on the motion before

conducting the summary-judgment hearing. Instead, the circuit court

made the following statement at the beginning of that hearing:

"[W]hen I have this come up in summary judgment
proceedings, motions to continue [and] motions for more
discovery, … which are in the record which I've already read[,]
I do what I'm going to do here which is I just hear everything
and it's only after I've gone through the whole process that I
can really understand whether a certain piece of evidence can
be properly used in summary judgment or not and … whether
it makes a difference; we'll just have to see.

"Same with motions to continue. I really can't fully
understand the import of a [motion to continue] … to put in
additional information or to seek additional information until
I see where we are and what the [movant] is saying and
whether it would make a difference or not, so I am going to
rule on the [motion to continue] before I rule on the summary
judgment, but I'm going to consider all those at the same time
so I can get an understanding of how they interact."

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The circuit court then heard arguments from the parties on all pending

motions, during which the court questioned whether Flickinger's

tortious-interference claim suffered from a lack of "proximate cause."

Following the hearing, the circuit court issued an order denying

Flickinger's motion to compel the production of King's cellular-telephone

records and an order denying Flickinger's motion to continue the

summary-judgment hearing. The circuit court did not provide its reasons

for denying those motions. The circuit court then issued a summary

judgment in favor of the King defendants. That judgment states, in

relevant part:

"The focal point of [the King defendants'] Motion for Summary
Judgment is the issue of causation. Specifically, [the King
defendants] contend that [Flickinger] does not, and cannot,
adduce substantial evidence that the [King defendants]
intentionally interfered with his employment at [WPM]
because Wainwright, Pope, and McMeekin have each
unequivocally and consistently testified that the decision to
ask [Flickinger] to resign from his employment was theirs
alone and that their decision was precipitated by social media
posts [Flickinger] admits he made. [The King defendants']
contention is amply supported by the Record evidence.

"The first time Wainwright, Pope, and McMeekin provided
testimony in this case [was] March of 2021, by sworn
affidavits. Paragraph 6 of the Wainwright, Pope, and
McMeekin affidavits provides:

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" 'I was one of the decision-makers who made the
personnel decisions involving [Flickinger] and the
end to his employment as a matter of his choice,
and he did resign of his choice. To be very clear,
the personnel decision that was unanimously
made by the three partners to offer him the
opportunity to resign was not based on any
information other than our personal review with
our own eyes of various open public social media
posts that were made by [Flickinger]; the decision
was not made, or suggested, recommended,
approved, [or] solicited by the [King defendants] or
anyone else.'

"Additional fact discovery in the years since the Wainwright,
Pope, and McMeekin affidavits were first submitted has
neither diminished the strength of their causation testimony
nor created any genuine issue of material fact regarding the
same.

"WHEREFORE, this Court finds and holds that there
remains no genuine issue of material fact on the issue of
causation and that [the King defendants] are entitled to a
judgment in their favor as a matter of law on the last
remaining claim herein: tortious interference."

(Citations to record omitted.)

Flickinger has appealed, arguing that the circuit court erred by

concluding that the King defendants were entitled to a judgment as a

matter of law on his tortious-interference claim. Flickinger also argues

that the circuit court erred by denying his motion to compel the

production of King's cellular-telephone records and by denying his motion

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to continue the summary-judgment hearing so that he would have time

to obtain those records. The King defendants disagree with Flickinger's

arguments, and they also argue that, even if the summary judgment is

not due to be affirmed as to King, it should nevertheless be affirmed as

to the King law firm.

Standard of Review

" ' "The standard of review applicable to a
summary judgment is the same as the standard for
granting the motion …." McClendon v. Mountain
Top Indoor Flea Market, Inc., 601 So. 2d 957, 958
(Ala. 1992).

" ' "A summary judgment is
proper when there is no genuine issue
of material fact and the moving party is
entitled to a judgment as a matter of
law. Rule 56(c)(3), Ala. R. Civ. P. The
burden is on the moving party to make
a prima facie showing that there is no
genuine issue of material fact and that
it is entitled to a judgment as a matter
of law. In determining whether the
movant has carried that burden, the
court is to view the evidence in a light
most favorable to the nonmoving party
and to draw all reasonable inferences
in favor of that party. To defeat a
properly supported summary judgment
motion, the nonmoving party must
present 'substantial evidence' creating
a genuine issue of material fact –
'evidence of such weight and quality
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that fair-minded persons in the
exercise of impartial judgment can
reasonably infer the existence of the
fact sought to be proved.' Ala. Code
1975, § 12-21-12; West v. Founders Life
Assurance Co. of Florida, 547 So. 2d
870, 871 (Ala. 1989)."

" 'Capital Alliance Ins. Co. v. Thorough-Clean, Inc.,
639 So. 2d 1349, 1350 (Ala. 1994). Questions of
law are reviewed de novo. Alabama Republican
Party v. McGinley, 893 So. 2d 337, 342 (Ala. 2004).'

"Pritchett v. ICN Med. All., Inc., 938 So. 2d 933, 935 (Ala.
2006)."

Burton v. Hawkins, 364 So. 3d 962, 969-70 (Ala. 2022).

Discussion

In Flickinger, this Court set forth the five elements of a claim

alleging a tortious interference with a business relationship, which are

" '(1) the existence of a protectible business relationship; (2) of which the

defendant knew; (3) to which the defendant was a stranger; (4) with

which the defendant intentionally interfered; and (5) damage.' " 385 So.

3d at 515 (quoting White Sands Grp., L.L.C. v. PRS II, LLC, 32 So. 3d 5,

14 (Ala. 2009)). The Court also noted that the fourth element -- whether

the King defendants intentionally interfered with Flickinger's

employment -- is the only element in dispute in this case. However, there

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is no dispute that the act that constituted the alleged interference with

Flickinger's employment was King's act of sending the George Floyd post

to Wainwright.

I.

The first argument we address is the King defendants' argument

that the summary judgment should be affirmed as to the King law firm

regardless of whether it is affirmed as to King. In support of that

argument, the King defendants contend that King's act of sending the

George Floyd post to Wainwright could impose "no corporate liability" on

the King law firm because, they say, there "is absolutely no suggestion

whatsoever that [King's act] was within the line and scope of his work as

an attorney for the [King] law firm" or that it "benefit[ed] the law firm."

King defendants' brief, p. 40. As noted, the King defendants raised this

argument below, but the circuit court did not need to address it -- and did

not address it -- because the court concluded that Flickinger's claim failed

as a matter of law on "the issue of causation." However, this Court may

affirm the circuit court's judgment on any valid legal ground, Murey v.

City of Chickasaw, 385 So. 3d 903, 912 (Ala. 2023), and we agree that the

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King defendants' "no corporate liability" argument provides a basis for

affirming the summary judgment as to the King law firm.

The King law firm is, as Flickinger noted in his complaint, "an

Alabama domestic professional corporation." " 'A corporation or employer

will be liable for the torts of its employee committed while acting in the

line and scope of his employment even though the corporation or

employer did not authorize or ratify such acts and even if it expressly

forbade them.' " QHG of Enterprise, Inc. v. Pertuit, 323 So. 3d 1171, 1180

n.11 (Ala. 2020) (quoting Lawler Mobile Homes, Inc. v. Tarver, 492 So.

2d 297, 305 (Ala. 1986)) (emphasis added). " 'An act is within an

employee's scope of employment if the act is done as part of the duties

the employee was hired to perform or if the act confers a benefit on his

employer.' " Cobbs, Allen & Hall, Inc. v. EPIC Holdings, Inc., 335 So. 3d

1115, 1139 (Ala. 2021) (quoting Hulbert v. State Farm Mut. Auto Ins. Co.,

723 So. 2d 22, 23 (Ala. 1998)) (emphasis omitted). An employee's act is

not within the line and scope of his employment, however, "when the

employee acts on wholly personal motives that would not 'reasonably

further' the employer's business." East Alabama Behav. Med., P.C. v.

Chancey, 883 So. 2d 162, 168 (Ala. 2003) (citation omitted)). See also

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Hendley v. Springhill Mem'l Hosp., 575 So. 2d 547, 550 (Ala. 1990)

(plurality opinion) ("A tort committed by an agent, even if committed

while engaged in the employment of the principal, is not attributable to

the principal if it emanated from wholly personal motives of the agent

and was committed to gratify wholly personal objectives or desires of the

agent."). Thus,

" '[i]f there is any evidence in the record tending to show
directly, or by reasonable inference, that the tortious conduct
of the employee was committed while performing duties
assigned to him, then it becomes a question for the jury to
determine whether he was acting from personal motives
having no relationship to the business of the employer.
Plaisance v. Yelder, 408 So. 2d 136 (Ala. Civ. App. 1981);
United States Steel Co. v. Butler, 260 Ala. 190, 69 So. 2d 685
(1953).' " 4

4King is not a rank-and-file employee of the King law firm because

he is a partner in the firm and "the sole equity owner." Nevertheless, the
dispositive question is still whether King's allegedly tortious act was
within the line and scope of his employment. See Ermert v. Hartford Ins.
Co., 559 So. 2d 467, 475, 476 (La. 1990) (holding that the dispositive
question for purposes of determining whether a corporation was liable for
its employee's tort was whether the employee was acting "within the
scope of his employment" at the time of the tort, even though the case
was "somewhat atypical in that [the employee] was not a rank and file
employee but the founder, majority stockholder …, president and chief
executive officer and primary business generator of [the] closely-held
corporate business"; "managers of great corporations are considered
servants, albeit superior servants, differing only in the dignity and
importance of their positions from those working under them").
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USA Petroleum Corp. v. Hines, 770 So. 2d 589, 591 (Ala. 1999) (quoting

Tarver, 492 So. 2d at 305).

The evidence in this case indicates that, at approximately 9:00 p.m.

-- several hours after typical business hours had ended -- King sent the

George Floyd post to Wainwright because King had a long-term

friendship with Wainwright. The evidence also indicates that King sent

the George Floyd post to Wainwright only because King was concerned

about the reputation of Wainwright's law firm and would have wanted to

know if an attorney in his own law firm had posted something of that

nature on a social-media platform. That evidence was sufficient to

establish a prima facie showing that King's act stemmed from "wholly

personal motives" unrelated to his employment and that it did not confer

any benefit on the King law firm. Chancey, 883 So. 2d at 168. Thus,

Flickinger had the burden of presenting substantial evidence that creates

a genuine issue of material fact as to whether King's act was within the

line and scope of his employment or benefited the King law firm.

Pritchett, supra.

In an attempt to satisfy that burden, Flickinger contends that King

is the "sole managing and equity partner" of the King law firm and thus

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had the "sole authority to define the parameters of his employment."

Flickinger's reply brief, pp. 26-27. Flickinger then points to evidence

indicating that, approximately 10 days before King sent the George Floyd

post to Wainwright, King had "announced on his firm's

@KingSimmonsPC Twitter account his mission to '… call out racism …

at home and at work.' " Id. at 27 (emphasis in brief). Flickinger also

argues that the King law firm benefited from King's allegedly tortious act

because, according to Flickinger, "there can be no doubt that" King's act

of "call[ing] out racism" "redounds to the benefit of the [King defendants']

reputation and influence."5 Id. at 30.

Flickinger's arguments are unpersuasive. First, the evidence

indicates that, although the @KingSimmonsPC Twitter account had been

initially established as an account for the King law firm, that account

5We note that Flickinger did not make any attempt in the circuit

court to refute the King defendants' "no corporate liability" argument.
Although the King defendants expressly raised that argument in their
amended summary-judgment motion, Flickinger did not even
acknowledge that argument in his written response to the motion, much
less make any attempt to refute it. Flickinger did state at the beginning
of the summary-judgment hearing that he was "definitely going to" refute
that argument "with evidence from the depositions," but he never relied
on the depositions in an attempt to connect the King law firm to King's
allegedly tortious act.
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had "served as King's personal Twitter account for a long time prior to

May 2020" -- the month before King sent the George Floyd post to

Wainwright -- and Flickinger has not challenged that evidence.

Regardless, King's statement that it was his "mission to … 'call out

racism … at home and at work' " does not demonstrate that his allegedly

tortious act was within the line and scope of his employment because

there is no evidence indicating that King earns his living or otherwise

benefits the King law firm by "call[ing] out racism," even if he does so

while "at work." Indeed, the only "benefit" that Flickinger contends the

King law firm obtained as a result of King's act of "call[ing] out racism"

was a boost to the firm's "reputation and influence," but that argument

is purely speculative and not supported by any evidence. Moreover, such

a benefit would be, at most, an incidental benefit to the King law firm,

and "[t]he mere fact that an employee's independently motivated action

happened to 'result in an incidental benefit to the employer' is not enough

to trigger respondeat superior liability." Madasu v. Shoals Radiology

Assocs., P.C., 378 So. 3d 501, 506 (Ala. 2022) (citation omitted).

In short, even when considered in a light most favorable to

Flickinger, the evidence indicates that King's act of sending the George

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Floyd post to Wainwright was not an act that was within the line and

scope of King's employment and that it did not confer a benefit on the

King law firm. Thus, the King law firm was entitled to a judgment as a

matter of law on Flickinger's tortious-interference claim, which means

that, if there is any liability for that act, the liability rests with King

alone. We therefore affirm the summary judgment as to the King law

firm, although, as noted, we do so for a different reason than the one the

circuit court provided.

II.

We now consider whether the summary judgment should be

affirmed as to King. On appeal, Flickinger challenges the circuit court's

causation finding, i.e., that King's act of sending the George Floyd post

to Wainwright was not what caused the WPM partners to terminate

Flickinger's employment. According to Flickinger, proximate cause is not

an element of a tortious-interference claim, but he argues that, even if it

is, the evidence supports a finding that King's act was "not merely the

'proximate cause,' but the 'but for' cause of [his] termination."

Flickinger's brief, p. 37. In response, King argues that proximate cause

is an "element common to all tort actions," King defendants' brief, p. 27,

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and he argues that his act was not what "caused the damages of which

[Flickinger] complains." Id. at 32. In support of that argument, King

notes that the WPM partners "have sworn to a clear intervening cause

independent of the King-to-Wainwright screenshot as the basis for the

personnel decision" -- namely, their " 'personal review with [their] own

eyes of various open public social media posts that were made by

[Flickinger].' " Id. at 33. Thus, according to King, "[t]he chain of

proximate cause [was] … broken and interrupted." Id.

Flickinger is incorrect in arguing that proximate cause is not a

relevant question in a tortious-interference case. See Rondini v. Bunn,

338 So. 3d 749, 753 (Ala. 2021) (noting that the concept of proximate

cause applies to intentional torts, though it is treated differently than it

is treated in negligence cases). However, King's argument is also flawed

because he fails to recognize that "proximate cause … ha[s] a more

limited application in intentional-tort cases," such as tortious-

interference cases, than it does in negligence cases. Id.

In Shades Ridge Holding Co. v. Cobbs, Allen & Hall Mortgage Co.,

390 So. 2d 601 (Ala. 1980), this Court provided a thorough discussion of

how the element of proximate cause is applied in intentional-tort cases:

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"There is … an explicit recognition that the meaning and
effect of 'proximate cause' changes in relation to the context
in which a case is brought. … Dean Prosser addresses this
issue squarely. In discussing the foreseeability requirement
usually imposed on liability for negligent conduct he states:

" 'One area in which it may be especially
likely that the "foreseeability" limitation will be
cast aside is that of intentional torts, as to which
it has been said often enough that there is more
extended liability.' Prosser, Law of Torts (4th Ed.
1971), § 43 at p. 263.

"This trend is dictated by the policy that liability even though
potentially tremendous should be imposed on the wrongdoer
rather than the victim be uncompensated. Hence, even very
remote causation may be found where the defendant acted
intentionally.

"The Restatement (Second) of Torts, § 435A (1966), also
recognizes this distinction between causation in cases of
intentional and negligent torts. It states that even though the
consequences were unexpectable, with an intentional tort, the
defendant is liable for it even though had he been negligent
he would not be so liable.

"There are a few cases which also address this issue
directly: In Johnson v. Greer, 477 F.2d 101 (5th Cir. 1973), at
pp. 106-107, the court stated:

" '… [T]he courts have generally held that
where the acts of a defendant constitute an
intentional tort or reckless misconduct, as
distinguished from mere negligence, the
aggravated nature of his action is a matter which
should be taken into account in determining
whether there is a sufficient relationship between
the wrong and plaintiff's harm to render the actor
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liable. Specifically, the factors to be taken into
account are the tort feasor's intention to commit a
wrongful act, the degree of his moral wrong in so
acting, and the seriousness of the harm intended.'

"This same view was expressed by the New Jersey
Superior Court in a case of malicious prosecution. After
discussing proximate cause at length the court stated:

" 'A different matter is presented where
intentional acts are involved and it is clear that
the rules of causation are more liberally applied to
hold a defendant responsible for the consequences
of his acts. It is well settled that where the acts of
a defendant constitute an intentional tort or
reckless misconduct, as distinguished from mere
negligence, the aggravated nature of his acts is a
matter to be taken into account in determining
whether there is a sufficient causal relation to
plaintiff's harm to make the actor liable therefor.
His intention to commit a wrongful act, the degree
of his moral wrong in acting, and the seriousness
of the harm[] which he intended are important
factors in determining whether he is liable for
resulting unintended harm. In applying concepts
of "foreseeability" and "proximate cause" in such
cases there is more extended liability, and in a case
involving such aggravated acts a fact finder may
be permitted to find that the actor's conduct bears
a sufficient causal relation to a plaintiff's harm so
as to make him liable, although no such finding
would be permissible if defendant's conduct were
merely negligent. …' Seidel v. Greenberg, 108 N.J.
Super. 248, 260 A.2d 863 (1969).

"In that case the court went on to say: 'Indeed, it appears
likely that many of the limitations upon liability that are
subsumed under the doctrine of "proximate cause", as usually
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expounded in negligence cases, do not apply to intentional
torts.'

"The Mississippi Supreme Court has also recognized
this distinction. In State ex rel. Richardson v. Edgeworth, 214
So. 2d 579, 587 (Miss. 1969), that court stated:

" 'In short, the defendants' intentional
conduct is a legal cause of harm to plaintiffs if their
individual acts were substantial factors in
bringing about the harm. … A higher degree of
responsibility is imposed upon a wrongdoer whose
conduct was intended to cause harm than upon
one whose conduct was negligent. Lyons v. Zale
Jewelry Co., 246 Miss. 139, 150 So. 2d 154 (1963)
…."

390 So. 2d at 609-10 (emphasis added).

In this case, the circuit court concluded that Flickinger's tortious-

interference claim failed as a matter of law because each of the WPM

partners had attested that their "decision to ask [Flickinger] to resign

from his employment was theirs alone," that the decision was

"precipitated by social media posts [Flickinger] admits he made," and

that "the decision was not made, or suggested, recommended, approved,

[or] solicited by the [King defendants]." (Emphasis in original.) However,

it undisputed that the WPM partners were not monitoring Flickinger's

social-media posts and had no knowledge of his social-media activity

before King sent the George Floyd post to Wainwright. In addition,
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Wainwright admitted in his deposition that he "immediately" telephoned

King after receiving the George Floyd post because he was "a little shook

up," was "very concerned about [the WPM] firm," and was "thinking

about damage control." Pope likewise contacted King "some few minutes

… after [Wainwright] did" and was "upset" and "asked [King] what

[WPM] should do about [its] reputation." Thus, although the WPM

partners later conducted their own research into Flickinger's other social-

media posts, the evidence, when viewed in a light most favorable to

Flickinger, indicates that they were considering terminating Flickinger's

employment before they ever conducted that research. Indeed,

Wainwright testified that it was his receipt of the George Floyd post that

prompted the WPM partners to "start looking to see what else was out

there." Also, as this Court explained in Flickinger, we "cannot ignore the

fact that the termination of Flickinger's employment occurred almost

immediately after WPM was contacted by King." 385 So. 3d at 517.

Granted, the circuit court correctly found that there is no evidence

indicating that King recommended or suggested that the WPM partners

terminate Flickinger's employment. However, as this Court explained in

Shades Ridge, supra, a defendant's acts in an intentional-tort case need

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not be the "proximate" cause of the plaintiff's harm, at least as that term

is used in negligence cases. Rather, a defendant's acts may subject him

to liability for an intentional tort if the acts " 'were substantial factors in

bringing about the harm,' " 390 So. 2d at 610 (citation omitted), and "even

very remote causation" may be a basis for imposing liability in such cases.

Id. at 609. Viewed in a light most favorable to Flickinger, the evidence

provides a basis upon which a jury could find that King's act of sending

the George Floyd post to Wainwright was one of the "substantial factors"

-- if not the primary factor -- "in bringing about" the WPM partners'

decision to terminate Flickinger's employment. Id. at 610. The fact that

the WPM partners claimed that the decision to terminate Flickinger's

employment was "theirs alone" and had not been recommended or

suggested by King does not change the fact that King set in motion the

chain of events that culminated with that decision. Likewise, the fact

that another attorney, Don Rhea (who is not from the King law firm), also

sent the George Floyd post to the WPM partners approximately 30

minutes after King sent the post to Wainwright does not necessarily

absolve King of liability because the evidence indicates that Rhea

received the post from King. In other words, for all that appears in the

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record, Rhea was able to provide the George Floyd post to the WPM

partners only because King had provided the post to Rhea.

For the foregoing reasons, the circuit court erred by concluding that

there is not a genuine issue of material fact as to the causation element

of Flickinger's tortious-interference claim. Cf. Glennon v. Rosenblum,

325 F. Supp. 3d 1255, 1268 (N.D. Ala. 2018) (concluding that, under

Alabama law, the defendant was liable for tortious interference with a

business relationship because she had published a false story about the

plaintiff on a website and the plaintiff had "lost business relationships at

least in part because of [the] story"). That conclusion does not end our

analysis, however, because King argues that he was justified in sending

the George Floyd post to Wainwright, which, according to King, means

that a summary judgment in his favor was proper regardless of any

causation issues.

In EPIC Holdings, supra, this Court provided the following

explanation regarding a justification defense in a tortious-interference

case:

"[I]n Gross v. Lowder Realty Better Homes & Gardens, 494
So. 2d 590 (Ala. 1986), this Court adopted a balancing test of
factors provided in Restatement [(Second) of Torts] § 767

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[(Am. L. Inst. 1979)], as well as the comments to that section,
for evaluating a justification defense.

" 'We retain the principle that justification is
an affirmative defense to be pleaded and proved by
the defendant. Whether the defendant is justified
in his interference is generally a question to be
resolved by the trier of fact. Polytec, Inc. v. Utah
Foam Products, Inc., 439 So. 2d 683 (Ala. 1983).
Whether a defendant's interference is justified
depends upon a balancing of the importance of the
objective of the interference against the
importance of the interest interfered with, taking
into account the surrounding circumstances.
Restatement (Second) of Torts § 767 (1979), and
Comments. The restatement utilizes the term
"improper" to describe actionable conduct by a
defendant. Non-justification is synon[y]mous with
"improper". If a defendant's interference is
unjustified under the circumstances of the case, it
is improper. The converse is also true. Section 767
of the Restatement lists, and the Comments
explain, several items that we consider to be
among the important factors to consider in
determining whether a defendant's interference is
justified:

" ' "(a) the nature of the actor's
conduct,

" ' "(b) the actor's motive,

" ' "(c) the interests of the other
with which the actor's conduct
interferes,

" ' "(d) the interests sought to be
advanced by the actor,
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" ' "(e) the social interests in
protecting the freedom of action of the
actor and the contractual interests of
the other,

" ' "(f) the proximity or remoteness
of the actor's conduct to the
interference, and

" ' "(g) the relations between the
parties.

" 'Restatement (Second) of Torts § 767 (1979).'

"Gross, 494 So. 2d at 597 n.3, overruled on other grounds by
White Sands Grp., L.L.C. v. PRS II, LLC, 32 So. 3d 5 (Ala.
2009) …."

335 So. 3d at 1131-32 (emphasis omitted). The Court also went on to

"expressly hold that § 772 [of the Restatement (Second) of Torts (Am. L.

Inst. 1979)] should be applied in appropriate factual scenarios that

implicate the defense of justification." 335 So. 3d at 1134. Section 772 of

the Restatement states:

"One who intentionally causes a third person not to
perform a contract or not to enter into a prospective
contractual relation with another does not interfere
improperly with the other's contractual relation, by giving the
third person

"(a) truthful information, or

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"(b) honest advice within the scope of a
request for the advice."

(Emphasis added.)

In this case, King argues that he was justified in sending the George

Floyd post to Wainwright because, according to King, he merely relayed

truthful information to Wainwright, i.e., what Flickinger had

undisputedly posted about George Floyd's death. In other words, King

argues that § 772 of the Restatement applies in this case and that, as a

result, his conveyance of truthful information is an absolute bar to

Flickinger's tortious-interference claim. Flickinger argues in response,

as he did in Flickinger, that, although he undisputedly posted the

statement about George Floyd, the information King sent to Wainwright

was not truthful because it came from "a 'counterfeit' social-media profile

that appeared to show that Flickinger was making a controversial

political statement on behalf of WPM." 385 So. 3d at 512-13.

Even if we assume that this case involves one of the "appropriate

factual scenarios" in which § 772 of the Restatement applies, EPIC

Holdings, 335 So. 3d at 1134, the problem with King's argument is that

this Court has already held in Flickinger that the information he sent to

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Wainwright does not constitute "truthful information." Specifically, the

Court stated:

"Flickinger alleged in his complaint that the King defendants
had shared a 'counterfeit' social-media profile that appeared
to show that Flickinger was making a controversial political
statement on behalf of WPM. Although Flickinger does not
dispute that the statement in the post that was shared was
his and was, therefore, truthful, he pleaded that the
remainder of the post -- coupled with the 'counterfeit' social-
media profile -- falsely associated his political views with
WPM.

"The affirmative association of a potentially incendiary
social-media post with the employer of the writer of the post
could be relevant to a reader and would certainly be relevant
to the employer. In fact, one of WPM's partners admitted to
Flickinger that he 'did not understand social media' and was
not 'on social media.' It would be reasonable to conclude that
he believed that readers of the post might make this false
association. Thus, under these circumstances, we agree with
Flickinger that the nature of this social-media post was in fact
'false.' "

Flickinger, 385 So. 3d at 512-13.

Because this Court has already held that King did not relay truthful

information to Wainwright, § 772 of the Restatement does not apply in

this case. Rather, whether King was justified in sending the George

Floyd post to Wainwright is to be evaluated in light of the factors set forth

in § 767 of the Restatement, and, as noted, the evaluation of those factors

" 'is generally a question to be resolved by the trier of fact.' " EPIC
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Holdings, 335 So. 3d at 1131 (citation omitted). See also Ex parte BTC

Wholesale Distribs., Inc., 400 So. 3d 561, 571 (Ala. 2023) ("[T]his Court

continues … to apply the 'justification factors' set forth in § 767 of the

Restatement to cases in which a justification defense has been raised and

… to recognize that justification as a defense to a tortious-interference

claim is ordinarily a question for the jury.").

For the foregoing reasons, the circuit court erred by issuing a

summary judgment in King's favor because there are genuine issues of

material fact as to both the causation element of Flickinger's tortious-

interference claim and King's justification defense. Thus, we reverse the

summary judgment with respect to King and remand the case for further

proceedings. We of course express no opinion on the ultimate merits of

Flickinger's claim; that is a question for a jury to resolve. We merely hold

that there is enough evidence for Flickinger's tortious-interference claim

to survive King's summary-judgment motion.

III.

Flickinger has raised one other argument on appeal, which is that

the circuit court erred by denying his motion to compel the production of

King's cellular-telephone records and by denying his motion to continue

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the summary-judgment hearing so that he would have time to obtain

those records. The decision to deny those motions was a decision within

the circuit court's discretion, and its rulings on those motions will not be

reversed unless the court clearly exceeded its discretion. See Ex parte

CSX Transp., Inc., 374 So. 3d 690, 703 (Ala. 2022); and Alabama River

Grp., Inc. v. Conecuh Timber, Inc., 261 So. 3d 226, 255 (Ala. 2017).

Regarding a motion to compel discovery, this Court has explained

that, "[i]n order for … matter to be discoverable, the information sought

must … be relevant." Zaden v. Elkus, 881 So. 2d 993, 1005 (Ala. 2003).

Flickinger filed a motion to compel the production of King's cellular-

telephone records during "the June 2020 timeframe when he was

terminated from WPM" because, he says, those records are "crucial to

[his] tortious interference claim where he is alleging that his termination

was the product of [King's] communications." Flickinger's brief, p. 64.

Specifically, Flickinger argues that King sent "misleading and

disparaging text messages" about him to "WPM and others" around that

time. Flickinger's reply brief, p. 24. However, Flickinger has failed to

demonstrate how King's cellular-telephone records from June 2020 (or

any other time) would provide him with any relevant information.

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First, as we have already noted, it is undisputed that King sent the

George Floyd post to Wainwright, and Flickinger conceded during the

summary-judgment hearing that he was "not asking for the content of

[King's] text messages" and that "[t]hese subpoenas never produce the

content of the text messages." Thus, we fail to see how records showing

merely that King sent a text message to Wainwright would be relevant

when it is undisputed that King sent the George Floyd post to

Wainwright, especially given that Flickinger has conceded that King's

cellular-telephone records would not yield any information beyond the

fact that King sent a text message containing an image.

That said, it is also undisputed that King deleted other text

messages that he had sent around the same time that he sent the George

Floyd post to Wainwright, and Flickinger argued during the summary-

judgment hearing that he would "be able to tell through cell phone

subpoenas who [King] texted" and "whether there were images attached

to text messages." However, we fail to see -- and Flickinger has failed to

explain -- how King's cellular-telephone records could provide him with

any evidence indicating that King had sent other "misleading and

disparaging text messages" when Flickinger has conceded that the

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records would not provide him with the content of King's deleted text

messages. Flickinger also argued at the summary-judgment hearing that

"[g]eolocation data is important … because maybe [King] was with

[Wainwright] and [Pope] and [McMeekin] when he texted images to

them." However, Flickinger did not explain to the circuit court, nor has

he explained to this Court, why it would be relevant that King and the

WPM partners were together when King sent them the George Floyd post

or any other text messages. Finally, Flickinger argued at the summary-

judgment hearing that King's cellular-telephone records would indicate

whether King had sent the George Floyd post or other "misleading and

disparaging text messages" to other lawyers, which, he argued, was

"important information to know." However, Flickinger did not explain to

the circuit court, nor has he explained to this Court, why it would be

relevant that King sent such messages to other lawyers. Moreover, even

if that fact would be relevant, we once again note Flickinger's concession

that King's cellular-telephone records would not provide him with the

content of King's deleted text messages, so, at most, those records would

indicate only that King had sent text messages containing images to

other lawyers; the records would not, by Flickinger's own admission,

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indicate that King had sent the George Floyd post or "misleading and

disparaging text messages" to other lawyers.

Because Flickinger has not demonstrated that King's cellular-

telephone records would provide him with any relevant information, we

cannot say that the circuit court exceeded its discretion by denying

Flickinger's motion to compel the production of those records. As for

Flickinger's argument that the circuit court erred by denying his motion

to continue the summary-judgment hearing, the purpose of that motion

was to afford Flickinger time to obtain King's cellular-telephone records,

which, as we have just explained, Flickinger failed to prove would be

relevant. Thus, because that was Flickinger's only basis for seeking a

continuance, the circuit court did not exceed its discretion by denying

Flickinger's motion to continue the summary-judgment hearing.

Conclusion

For the reasons set forth in this opinion, we affirm the summary

judgment with respect to the King law firm. However, we reverse the

summary judgment with respect to King and remand the case for further

proceedings consistent with this opinion.

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AFFIRMED IN PART; REVERSED IN PART; AND REMANDED.

Stewart, C.J., and Wise, Sellers, and Mitchell, JJ., concur.

40