text:
    Lemuel ADAMS, Marcia Adams, John Ballard, Melinda Ballard, Robert Barnette, Phillip Carby, Stella Carby, Cindy Cochran, Ricky Cochran, Cindy Simonton Cooke, Randa Jex, Albert Metcalfe, Gay Metcalfe, Mary Mimi Miller, Ronald Miller, Margaret Moss, Carolyne Priester, Robert Stephens, Jacqueline Stephens and Neil Varnell, Appellants, v. MAYOR AND BOARD OF ALDERMEN OF the CITY OF NATCHEZ, Mississippi and James D. Gammill, II, Appellees.
    No. 2006-CC-00699-COA.
    Court of Appeals of Mississippi.
    Sept. 11, 2007.

      Bruce M. Kuehnle, Philip Elmer Carby, Natchez, attorneys for appellants.
    Everett T. Sanders, Robert C. Latham, Natchez, Jeremy Peter Diamond, attorneys for appellees.
    Before KING, C.J., GRIFFIS and BARNES, JJ.
   KING, C.J., for the Court.

¶ 1. Appellants, a group of residents living near the property that is the subject of this zoning dispute, appeal the trial court’s decision to uphold the action of the Mayor and Board of Aldermen of the City of Natchez to re-zone a parcel of real property from O-L (Open Land) to B-2 (General Business) so that the purchaser, James D. Gammill, II could relocate his business, Fat Mama’s Tamales. Finding no error, this Court affirms.

FACTS AND PROCEDURAL HISTORY

¶ 2. Fat Mama’s Tamales has operated as a restaurant on Canal Street in Natchez, Mississippi, since 1989. The restaurant has grown into a thriving business and is famous for its tamales and margaritas. The restaurant, which features almost exclusively outdoor seating, serves as a tourist destination for the Natchez community.

¶ 3. The dispute arose when the United States Department of the Interior appropriated parcels of land, including the land that houses Fat Mama’s Tamales, for use as a national park. After searching for a suitable place to relocate the business, the owners of Fat Mama’s, including Appellee James D. Gammill, found an available parcel of land on Canal Street at the corner of Washington Street, approximately one-hundred yards from Fat Mama’s original location. The lot, which measures one hundred feet by three hundred twenty feet, was zoned O-L (Open Land) and was used as a paved parking lot. Rezoning the lot to B-2 (General Business) was required in order for Fat Mama’s to build and operate the restaurant on this new parcel.

¶ 4. Gammill applied for re-zoning of the lot from O-L to B-2 with the Natchez Metropolitan Planning Commission under Natchez’s zoning ordinances. The Commission conducted a hearing on the issue of October 20, 2005, in which Gammill and his attorney presented the case for Fat Mama’s. The Commission also heard comments from the public, including several residents of the area who opposed the rezoning. Following the hearing, the Commission denied the application. At the same meeting, however, the Commission, on its own motion, voted unanimously to re-zone the property from O-L (Open Land) to B-l (Neighborhood Business).

¶ 5. The residents appealed the Commission’s decision to the Mayor and the Board of Aldermen, and Gammill also appealed the denial of his application. The Mayor and Board heard the appeal during a public hearing on November 22, 2005. The residents arranged for a court reporter to transcribe the proceedings. During this hearing, both the residents and Gammill had the opportunity, with their attorneys present, to present their respective eases to the Mayor and Board. Following the presentations of the parties, the Mayor and Board voted unanimously to grant Gammill’s application to re-zone the parcel from O-L to B-2. The Mayor and Board then voted unanimously to overturn the Planning Commission’s decision to re-zone the parcel from O-L to B-l.

¶ 6. The residents timely appealed the final decision of the Mayor and Board to the circuit court. The circuit court affirmed the decision of the Mayor and Board. In its decision, the trial court noted that the decision of the Mayor and Board was entitled to a presumption of validity. The trial court held that under the limited standard of review applicable to zoning cases, the decision of the Mayor and Board must be affirmed. The trial court concluded that substantial evidence existed to support the re-zoning decision, that the Mayor and Board’s determination was “fairly debatable,” and that the decision of the Mayor and Board complied with Natchez’s zoning ordinances.

¶ 7. The residents have appealed the circuit court’s decision to affirm the rezoning of the parcel from O-L to B-2. On appeal, the residents raise the following issues, which are quoted verbatim from the residents’ brief:

(1) Whether the Circuit Judge erred as a matter of law in concluding that the decision of the Mayor and Board of Aldermen to rezone the property was not arbitrary, capricious, discriminatory, illegal, and was supported by substantial evidence.
(2) Whether the Circuit Judge erred in failing to reverse and vacate the decision of the Mayor and Board of Aldermen of the City of Natchez because the rezoning decision of the Mayor and Board of Aldermen violate the zoning ordinances of the City of Natchez.
(3) Whether the Circuit Judge erred in failing to reverse and vacate the action of the Mayor and Board of Aldermen of the City of Natchez for the reason that the rezoning decision of the Mayor and Board of Aldermen constituted spot zoning.
(4) Whether the Circuit Judge erred in failing to reverse and vacate the action of the Mayor and Board of Aldermen of the City of Natchez because the Mayor and Board of Aldermen failed to articulate any findings of fact in support of its rezoning decision.

¶ 8. Because the decision of the Mayor and Board of Aldermen to re-zone the parcel from O-L to B-2 did not violate the zoning ordinances of the City of Natchez and because the decision was not arbitrary and capricious and was supported by substantial evidence, this Court affirms.

STANDARD OF REVIEW

¶ 9. In reviewing zoning cases, the appellate court is bound to the same limited standard of review exercised at the circuit court level. Broadacres, Inc. v. Hattiesburg, 489 So.2d 501, 503 (Miss.1986). The Court is limited to a consideration of:

whether the action of the board or commission was arbitrary or capricious and whether it was supported by substantial evidence. Perez v. Garden Isle Community. Ass’n, 882 So.2d 217, 219 (Miss.2004) (citing Broadacres, Inc. v. City of Hattiesburg, 489 So.2d 501, 503 (Miss.1986)). Thus, zoning decisions will not be set aside unless clearly shown to be arbitrary, capricious, discriminatory, illegal or without substantial evidentiary basis. Perez, 882 So.2d at 219; Carpenter v. City of Petal, 699 So.2d 928, 932 (Miss.1997).... Where the point at issue is “fairly debatable,” we will not disturb the zoning authority’s action. Perez, 882 So.2d at 219; Carpenter, 699 So.2d at 932.

Drews v. City of Hattiesburg, 904 So.2d 138, 140 (¶ 5) (Miss.2005).

ANALYSIS

¶ 10. Title 17 of the Mississippi Code Annotated authorizes municipalities to create, implement, and manage comprehensive zoning plans. The purpose of zoning ordinances is to create and maintain a land usage plan that takes into consideration “the character of the district and its peculiar suitability for particular uses” and operates “with a view to conserving the value of buildings, and encouraging the most appropriate use of land throughout such municipality.” Miss.Code Ann. § 17-1-9 (Rev.2003).

¶ 11. The municipality also is vested with the authority to amend the zoning plan, and the decision to do so is a legislative function that is entitled to a presumption of validity. See Drews, 904 So.2d at 140(¶ 5) (Miss.2005); Heroman v. McDonald, 885 So.2d 67, 70(¶ 5) (Miss.2004). Changes in the zoning plan are permissible and are to be expected, as the purpose of the plan is to bring about “coordinated physical development in accordance with present and future needs” of the municipality. Miss.Code Ann. § 17-1-11 (emphasis added). Any changes to a zoning plan, however, must be made after careful consideration because investments in land and property are significant financial decisions, and a landowner should be able to rely upon a zoning plan to maintain the use and value of his property. See Town of Florence v. Sea Lands, Ltd., 759 So.2d 1221, 1228-29(¶ 27) (Miss.2000); Board of Aldermen v. Conerly, 509 So.2d 877, 885 (Miss.1987). Accordingly, the legal standard for amendment of a zoning plan is fairly stringent.

¶ 12. To amend a zoning ordinance, the party seeking the amendment must show, by clear and convincing evidence, “either (1) there was a mistake in the original zoning, or (2) that the character of the neighborhood has changed to such an extent as to justify reclassification, and there was a public need for rezoning.” Conerly, 509 So.2d at 883-84. In the present case, Gammill based his application for re-zoning on the second prong of the Con-erly test.

1. The decision of the Board was not arbitrary or capricious and was supported by substantial evidence.

¶ 13. The residents argue that Gammill failed to provide the board with clear and convincing evidence “that the character of the neighborhood has changed to such an extent as to justify reclassification, and there was a public need for rezoning.” Conerly, 509 So.2d at 883-84. Specifically, the residents argue that Gam-mill failed to produce the type of specific evidence, as enumerated in Conerly, necessary to show a change in the character of the neighborhood that justifies the re-zoning or a public need for the re-zoning. The resident argue that under Conerly, Gammill cannot successfully defend this appeal unless the record contains, at a minimum “a map showing the circumstances of the area, the changes in the neighborhood, statistics showing a public need, and such further matters of proof so that a rational, informed judgment may be formed as to what the governing board considered.” Conerly, 509 So.2d at 885.

¶ 14. In Faircloth v. Lyles, 592 So.2d 941, 945 (Miss.1991), the Mississippi Supreme Court relaxed the strict requirements enumerated in Conerly. The Court cited Conerly as instructive but stated,

[i]n City of Clinton [Conerly ] we simply emphasized the necessity of a record showing the factual basis for the findings of the governing body. Absent a record showing sufficient evidence to support the findings, it is inevitable that reversal will follow. On the other hand, while recognizing the desirability of specific findings by the zoning authority on each considered issue, we will not reverse for a lack of such specificity where a factual basis for the action is disclosed.

Faireloth, 592 So.2d at 945. Under this standard, the record is clear that Gammill did demonstrate, by clear and convincing evidence, evidence of a change in the neighborhood and a public need that supported a re-zoning of the parcel from O-L to B-2.

¶ 15. The Mayor and Board heard the presentation of Gammill, in which he stated that the federal government had taken the current site of Fat Mama’s Tamales for purposes of establishing a national park. Gammill also stated that he had searched for alternative locations in the area, but could not find any in the historic area in which the restaurant was currently located. Gammill also stated that the proposed site was across the street and approximately one hundred yards from the restaurant’s current location. Gammill also discussed his restaurant’s reputation as a tourist attraction and his desire to invest $350,000 to $450,000 into the new building so that he could continue the business. Fat Mama’s Tamales currently employs six to eight people and contributes approximately $30,000 per year to Natchez’s tax revenues.

¶ 16. The Mayor and Board also received a copy of the zoning map. Additionally, the city planner discussed the nature of the area. He stated that with the development of the area, traffic had increased along Canal Street, that areas of Canal Street had been re-zoned to B-2, and that the area was moving toward an area of increased business as the downtown/waterfront areas expanded.

¶ 17. AH of the above-stated evidence supports the decision of the Mayor and the Board to re-zone the parcel. The zoning map in particular best demonstrates the nature of the area and changes in the neighborhood surrounding the parcel in question. The parcel in question is located at the corner of Canal and Washington streets. Viewing Canal Street only, the zoning map clearly demonstrates that the majority of Canal Street is zoned B-2. Less than a block of R-3 zoning separates the parcel in question from the B-2 district that comprises Canal Street. Additionally, the fact that the new location is approximately one hundred yards down the street from the current location is particularly persuasive.

¶ 18. The city planner clearly stated that Canal Street has always been a mixed-use area, but that recent additions and re-zonings have changed the nature of the neighborhood into more of a business district. The city planner referenced the recent acquisition of land for the national park as an indication that Canal Street is a public use, rather than a residential area.

¶ 19. While the receipt of tax revenue may not be the sole reason for a finding of public need for re-zoning, Fondren N. Renaissance v. Mayor of Jackson, 749 So.2d 974, 979(¶ 16) (Miss.1999), it certainly is a factor for the Mayor and Board to consider. Additionally, the Mayor and Board heard GammilTs statements about the reputation and importance of Fat Mama’s Tamales as a tourist attraction and his inability to find land in the Canal Street or downtown areas to relocate the business. The continued success and growth of this area and this particular establishment’s role in that success, together with the jobs and tax revenue which Fat Mama’s supplies in the area, support a finding of a public need to re-zone this particular parcel.

¶ 20. The residents’ opposition and concerns about the re-zoning of this parcel are evidence for the Mayor and Board to consider in making the determination. As it exists now, the parcel is a paved parking lot, and the residents’ concerns about noise and traffic are well-founded. Notwithstanding those concerns, this Court finds that the decision of the Mayor and Board is fairly debatable and supported by substantial evidence; therefore, the decision cannot be arbitrary and capricious.

2. Decision complied with the existing zoning ordinances.

¶ 21. The residents argue that the decision of the Mayor and Board violates the zoning ordinances requiring minimum lot areas for the creation of a new district. The residents also argue that to re-zone the parcel to B-2 would require that the parcel abut an existing B-2 district or, if it abuts a residential zone, there must be a one hundred foot buffer zone between the residential area and the business area. The residents submitted copies of the zoning map demonstrating that the proposed parcel is surrounded on three sides by R-S zoning and that the buffer zone cannot exist because the lot itself only measures one hundred feet by three hundred and twenty feet. For these reasons, the residents contend, the decision of the Mayor and Board is illegal because it fails to follow the requirements of the zoning ordinances.

¶22. The zoning ordinance provides that for the creation of a new R-2, R-3, B-2 or 1-1 district, the area must contain at least eight acres of land with the following exceptions: “provided, however, that a proposed R-3 district which would abut an existing B-l, B-2, or 1-1 district shall be exempt from any requirement of minimum size; provided, further that a proposed B-2 district shall be exempt from any re quirements of minimum, size.” (emphasis added). This section should be interpreted to mean that a proposed amendment rezoning a parcel to B-2 is permissible, so long as it meets the other requirements listed in the ordinance (error or change in neighborhood or increased need or subdivision of land), regardless of the size of the parcel to be re-zoned. Additionally, the ordinance’s description of the nature and uses of a B-2 district state that “[t]here is no minimum required lot area.” Accordingly, those size restrictions are not applicable in this case.

¶ 23. The zoning map does indicate that the parcel in question abuts an R-3 district. The map also indicates, however, that the parcel also abuts a B-2 district. As the Mayor and Board heard, this abutting B-2 lot contains a warehouse owned and operated by Isle of Capri. As the trial court pointed out in his opinion, both parties are technically correct on this issue. This Court agrees with that assessment and holds that because the parcel in question does abut an existing B-2 parcel of land, the ordinance does not require a buffer zone, regardless of the fact that the opposite end of the lot abuts an R-3 parcel.

3. The decision of the Board does not constitute “spot zoning.”

¶ 24. Spot zoning is defined as “a zoning amendment which is not in harmony with the comprehensive or well-considered land use plan of a municipality.” McWaters v. Biloxi 591 So.2d 824, 828 (Miss.1991). As the Mississippi Supreme Court explained in McWaters,

There is a clear cut distinction between a validly enacted amendatory zoning ordinance and a “spot zoning” ordinance. Not all amendments which change or alter the character of a use district fall within the category of “spot zoning” as we generally understand the term. The term “spot zoning” is ordinarily used where a zoning ordinance is amended reclassifying one or more tracts or lots for a use prohibited by the original zoning ordinance and out of harmony therewith. Whether such an amendment will be held void depends upon the circumstances of each case. The one constant in the cases, as stated by the textwriter, where zoning ordinances have been invalidated due to “spot zoning” is that they were designed “to favor” someone. See 1 Yokley Zoning Law and Practice §§ 8-1 to 8-3 (3rd ed.1965).

Id. This is not a situation in which the Mayor and Board engaged in “spot zoning.”

¶ 25. As discussed supra, a view of the zoning map from the perspective of Canal Street clearly demonstrates that the area is predominantly zoned B-2. It is only when viewing the parcel along Washington Street that the issue of “spot zoning” can even be argued. Gammill’s site plan, however, demonstrates that all traffic will enter from Canal Street and exit onto Canal Street. Further, the site plan demonstrates that Gammill intends to leave the corner of the lot (100’) that fronts Washington Street as “green space.” Given the mixed-use nature of this area and the fact that most of Canal Street is zoned for B-2 use, this Court finds that the Mayor and Board’s decision does not constitute “spot zoning.”

4. The Mayor and Board made sufficient findings of fact to support the re-zoning decision.

¶26. The residents argue that the Mayor and Board were required to make specific findings of fact. They assert that Conerly requires such specific findings and that even the relaxed standard cited in Faircloth does not absolve the Mayor and Board because the record does not clearly disclose the facts and evidence to support their decision.

¶ 27. While Conerly did state that “unless the record contains specific finding by such board that one or both these two criteria have been met, and in addition thereto sufficient evidence to support such finding, we will inevitably conclude that the governing board acted arbitrarily, unreasonably and capriciously,” Conerly, 509 So.2d at 884. The Faircloth decision relaxed that standard. As the Mississippi Supreme Court stated in Faircloth,

In City of Clinton [Conerly ] we simply emphasized the necessity of a record showing the factual basis for the findings of the governing body. Absent a record showing sufficient evidence to support the findings, it is inevitable that reversal will follow. On the other hand, while recognizing the desirability of specific findings by the zoning authority on each considered issue, we will not reverse for a lack of such specificity where a factual basis for the action is disclosed. In this case, the record is replete with factual bases for the Board’s findings and its action. The matter was considered on a petition to rezone because of a mistake made in the original zoning or, alternatively, because of changes which occurred since the enactment. The Board was not required to specifically state in its order whether its action rested on one or both of the asserted grounds because the facts supporting the action are adequately reflected in the record of proceedings.

Faircloth, 592 So.2d at 945.

¶ 28. This Court finds that the Mayor and Board did, in fact, adopt findings of fact in the motion to re-zone the property. The transcript of the meeting indicates that the Mayor and Board moved to rezone the parcel based upon the presentation of the city planner. The city planner’s statement included discussion of the nature of the neighborhood as a mixed-use area, the recent zoning changes to increase the amount of general business parcels, increased traffic along Canal Street, and the addition of the national park as evidence that Canal Street is a public area which will attract tourists. The Mayor and Board adopted the city planner’s position in making their vote.

¶ 29. With such findings of fact enumerated in the record, the Court is not required to reverse the re-zoning decision. In addition to the city planner’s presentation, the record contains evidence outlining the now-public nature of the mixed-use area, the need to maintain businesses such as Fat Mama’s in the area, and Gammill’s uncontradicted statement that without the re-zoning decision, he would be required to leave the historic area and relocate along the interstate. The record contains sufficient evidence to support the re-zoning decision.

¶ 30. THE JUDGMENT OF THE CIRCUIT COURT OF ADAMS COUNTY IS AFFIRMED. ALL COSTS OF THIS APPEAL ARE ASSESSED TO THE APPELLANTS.

LEE AND MYERS, P.JJ., CHANDLER, GRIFFIS, BARNES, ISHEE, ROBERTS AND CARLTON, JJ., CONCUR. IRVING, J., NOT PARTICIPATING.

      . Although neither party submitted the .portion of the zoning ordinance defining Open Land districts during the pendency of the proceedings, from the record, it appears that an Open Land designation was intended as a stop-gap measure to provide parameters for seldom-used properties until a final land-use determination was made. In this case, the property was used as a parking lot, although the record indicates that the lot often stood empty.

      . The portion of the ordinance defining General Business districts was submitted as part of the record. This district is defined, in part, as follows: "These districts are composed of land and structures occupied by or suitable for furnishing, in addition to the retail goods and services found in neighborhood business districts, the wider range of retail goods and services required by transients and by residents of the trade areas, as well as certain wholesale and warehousing establishments. Located where they have direct access from principal highways, the general business districts usually comprise several blocks or several acres....” Restaurants are included in this designation.

      . Following the hearing on November 22, 2005, questions arose regarding the adequacy of the notice of hearing. The Mayor and Board re-set the hearing for January 24, 2006, and properly published notice of the hearing. At the January 2006 meeting, the Mayor and Board continued the meeting until February 14, 2006. The Mayor and Board agreed that the record from the November 22, 2005, meeting would be carried forward and left open for additional evidence at the February 14, 2006, meeting. At the February meeting, the parties presented no additional evidence, and following one additional comment from a resident of the area, the record from the November meeting was submitted to the Mayor and Board. The Mayor and Board again voted unanimously to re-zone the property from O-L to B-2.


source: Caselaw Access Project

author: GRIFFIS, J., for the Court.

license: Public Domain

text:
    Roger Lee MIDDLEBROOK, Appellant, v. STATE of Mississippi, Appellee.
    No. 2006-CP-00344-COA.
    Court of Appeals of Mississippi.
    Sept. 11, 2007.

      Roger Lee Middlebrook, appellant, pro se.
    Office of the Attorney General by Jacob Ray, attorney for appellee.
    Before KING, C.J., GRIFFIS AND BARNES, JJ.
   GRIFFIS, J., for the Court.

¶ 1. Roger Middlebrook appeals the denial of his motion for post-conviction relief. On appeal, Middlebrook alleges numerous errors, but they can be summed up into three headings: (1) the conviction was based on illegal evidence; (2) he was not afforded effective assistance of counsel; and (3) the trial court was in error when it summarily denied Middlebrook’s motion without an evidentiary hearing. We find no error and affirm.

FACTS

¶2. On August 29, 2003, Middlebrook was indicted for the sale of cocaine to an informant. He entered a plea of guilty to the charge, which following a plea hearing, the trial court accepted. The trial court then sentenced Middlebrook to fifteen years imprisonment with five years to serve and ten years suspended.

¶ 3. On December 14, 2004, Middlebrook filed a motion for post-conviction relief in Forrest County. The trial court, after reviewing the motion, summarily denied it. Middlebrook now appeals.

STANDARD OF REVIEW

¶ 4. A trial court’s denial of post-conviction relief will not be reversed absent a finding that the trial court’s decision was clearly erroneous. Smith v. State, 806 So.2d 1148, 1150(¶ 3) (Miss.Ct.App.2002). However, when reviewing issues of law, this Court’s proper standard of review is de novo. Brown v. State, 731 So.2d 595, 598(¶ 6) (Miss.1999).

ANALYSIS

I. Whether the evidence upon which the conviction is based was illegally acquired.

¶ 5. Middlebrook argues that the conviction was based on two faulty pieces of evidence. The first piece of evidence that he challenges is that the video recording of the sale of cocaine was illegally obtained. He also alleges that the informant provided inaccurate information.

¶ 6. While these allegations may have been valid concerns during a trial, they are of no consequence as Middlebrook pled guilty. As the State aptly points out, the guilty plea constituted a waiver of those issues. Anderson v. State, 577 So.2d 390, 391 (Miss.1991). Further, this Court dealt with a similar allegation in Smith v. State, 845 So.2d 730, 732(¶ 5) (Miss.Ct.App.2003). Smith alleged that he had been illegally searched in violation of his Fourth Amendment right. This Court held that the guilty plea constituted a waiver of similar specific constitutional rights. Id. Likewise, we now hold that Middlebrook waived any challenges to the video recording of the transaction or any discrepancies from the information provided by the informant. Therefore, we find that this allegation of error is without merit.

II. Whether Middlebrook was afforded effective assistance of counsel.

¶ 7. Middlebrook argues that his counsel was ineffective for advising him to plead guilty and for failure to further investigate the background of the criminal informant.

¶ 8. To prevail on a claim of ineffective assistance of counsel, Middlebrook must demonstrate that his counsel’s performance was deficient and that this deficiency prejudiced his defense. Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). The burden of proof rests with Middlebrook, and we will measure the alleged deficiency within the totality of circumstances. Hiter v. State, 660 So.2d 961, 965 (Miss.1995); Carney v. State, 525 So.2d 776, 780 (Miss.1988). However, a presumption exists that the attorney’s conduct was adequate. Burns v. State, 813 So.2d 668, 673(¶ 14) (Miss.2001).

¶ 9. As to the allegation that Middlebrook’s counsel was ineffective for advising him to plead guilty after viewing the videotape, it is without merit. Counsel has “a duty to fairly, even if that means pessimistically, inform the client of the likely outcome of a trial based upon the facts of the case.” Daughtery v. State, 847 So.2d 284, 287(¶ 6) (Miss.Ct.App.2003). If the attorney believes that it is in his client’s best interest to plead guilty, it is his duty to inform him of that fact. Id. (citing Polk County v. Dodson, 454 U.S. 312, 318, 102 S.Ct. 445, 70 L.Ed.2d 509 (1981)). Middlebrook has failed to demonstrate how counsel’s advice, which counsel thought was in Middlebrook’s best interest, was deficient. By giving such advice, counsel fulfilled his duty as required under Daughtery.

¶ 10. As to the allegation for failure to investigate the background of the criminal informant, it is likewise without merit. For failure to investigate to arise to the level of ineffective assistance of counsel, the defendant must state with particularity what the investigation would have revealed and how it would have altered the outcome. Triplett v. State, 840 So.2d 727, 731(¶ 11) (Miss.Ct.App.2002). While Middlebrook states that a background check on the criminal informant would have revealed that he was a prior felon, he fails to explain how such information would have changed the outcome. The evidence against him was still strong since the videotape of Middlebrook selling cocaine still existed and the criminal informant could have potentially testified at trial. Since the outcome would not have changed, the charge of failure to investigate did not rise to the level of ineffective assistance of counsel.

¶ 11. Therefore, we find that Middle-brook was afforded effective assistance of counsel and this issue is without merit.

III. Whether the trial court was in error when it summarily denied Middlebrook’s motion without an evidentiary hearing.

¶ 12. Next, Middlebrook argues that the trial court should have granted an evidentiary hearing on his motion for post-conviction relief. The supreme court has held, “a post-conviction collateral relief petition which meets basic requirements is sufficient to mandate an evidentiary hearing unless it appears beyond doubt that the petitioner can prove no set of facts in support of his claim which would entitle him to relief.” Marshall v. State, 680 So.2d 794, 794 (Miss.1996) (citing Alexander v. State, 605 So.2d 1170, 1173 (Miss.1992)). Here, Middlebrook alleged no set of facts in his motion that would entitle him to relief.

¶ 13. Therefore, the trial court was not in error when it dismissed his motion without an evidentiary hearing.

¶ 14. THE JUDGMENT OF THE FORREST COUNTY CIRCUIT COURT DENYING POST-CONVICTION RELIEF IS AFFIRMED. ALL COSTS OF THIS APPEAL ARE ASSESSED TO FORREST COUNTY.

KING, C.J., LEE AND MYERS, P.JJ., IRVING, CHANDLER, BARNES, ISHEE, ROBERTS AND CARLTON, JJ„ CONCUR.


author: NABERS, Chief Justice.

text:
    Leo E. JOSEPH v. MTS INVESTMENT CORP.
    1050541.
    Supreme Court of Alabama.
    Dec. 8, 2006.
    Rehearing Denied March 23, 2007.

      W. Scott Simpson of Batchelor & Simpson, P.C., Birmingham, for appellant.
    Oliver J. Latour, Jr., Foley; and Daniel G. Blackburn and Cynthia J. Sherman of Blackburn & Conner, P.C., Bay Minette, for appellee.
   NABERS, Chief Justice.

Leo E. Joseph sued a group of Orange Beach property owners seeking specific performance of a real-estate contract in which the property owners had agreed to sell him 14.5 acres of undeveloped property in Orange Beach. Following the close of Joseph’s case-in-chief in a nonjury trial, the trial court entered a judgment in favor of the property owners. Joseph appeals. We affirm.

I.

On May 29, 2004, Joseph submitted a contract, offering to purchase from MTS Investment Corp., Paul L. Smith, M.H. Smith, Jr., Ora Lee Smith, and James H. Massey (“the property owners”) 14.5 acres the property owners owned in Orange Beach. The offering price was $580,000. On June 28, 2004, the property owners accepted the offer and executed the sales contract. The sales contract contained the following provision:

“Closing & possession dates: The sale shall be closed and the deed delivered on or before September 1, 2004, except seller shall have a reasonable length of time within which to perfect title or cure defects in the title to the property.”

The contract also contained an Addendum A. Addendum A stated, in relevant part:

“Feasibility study: Buyer shall have 90 (ninety) days to review all aspects of the property, including, without limitation, all governmental, environmental, zoning, soil, and utility services matters related thereto. If buyer notifies seller and broker in writing within 90 (ninety) calendar days after this instrument becomes a binding agreement that buyer is not satisfied with the results of such review, then this agreement shall automatically terminate and seller shall promptly refund the earnest money to buyer. If buyer fails to provide said notice, then this contingency shall be deemed to have been waived by buyer. Seller acknowledges and agrees that buyer and/or his agents and employees may have free access during normal business hours to visit the property for the purpose of: (1) inspection thereof; and (2) conducting such soil and other tests thereon as are deemed reasonably necessary by buyer. Buyer hereby agrees to indemnify and hold seller, broker, and broker’s affiliated licensees harmless from and against any and all loss, injury, cost, or expense associated with buyer’s inspection of and entry upon property.”

Finally, the property owners attached to the sales contract a typewritten list of “conditions of acceptance.” Those conditions provided that Joseph’s earnest money ($10,000) was nonrefundable and would constitute liquidated damages if the closing on the sale of the property did not take place. The list of conditions was signed by all the parties. Handwritten beneath the signatures was the following statement: “Purchaser has 90 days to close under the terms of the contract including addendum A.” This statement was followed only by Paul L. Smith’s signature, dated June 28, 2004.

Joseph thereafter endeavored to perform a due-diligence investigation on the property, as contemplated by Addendum A. On July 5, 2004, Joseph’s agent, Arthur Follenius of Tratin Development, LLC, went to the property to begin survey preparations. Follenius attempted to enter the property by way of a cul-de-sac in the Terry Cove Harbor subdivision, which was adjacent to the property; however, he was forcibly prevented from doing so by a member of the Terry Cove Property Owners Association (“the TCPOA”), who contended that none of Follenius, Joseph, or the property owners had the right to traverse the cul-de-sac. Subsequently, there was a dispute between the TCPOA and the property owners as to whether the property owners retained an access easement to the property through the cul-de-sac. The property owners had a recorded plat that identified the easement through the Terry Cove Harbor subdivision, but the TCPOA nevertheless refused to recognize it.

Because there was no access to the property other than by way of the cul-de-sac, Joseph was prevented from conducting any further due-diligence investigation on the property until approximately August 20, 2004, when the TCPOA agreed to grant Joseph limited access to the property to conduct his due-diligence investigation. However, the TCPOA continued to refuse to recognize the recorded easement and stated that it would recognize the easement only after Joseph submitted to the TCPOA an acceptable development plan for the property he was planning to purchase.

On September 10, 2004, Joseph and his attorney met with Paul Smith, who was handling the transaction on behalf of the property owners. The parties agree that, at this meeting, they discussed the ongoing easement problem they were having with the TCPOA and Joseph’s continuing efforts to resolve the matter. There is, however, some dispute as to what else, beyond that subject, was discussed. Smith testified that he did not recall any discussion at the meeting of the time line for the closing of the sale of the property, much less an extension of that time line. However, Joseph testified that, after they discussed the engineering and due-diligence work he still needed to complete before the sale could go forward, he told Smith he could accomplish the work “between November and December,” and, he alleges, Smith told him in reply to “try to keep it ... in November, but as early in December as possible.”

Joseph subsequently prepared another addendum to the contract changing the closing date to “on or before December 17, 2004.” The addendum was dated October 8, 2004, and was signed by Joseph. Although it was sent to and received by the property owners, they neither signed it nor advised Joseph that they objected to its terms.

Paul Smith testified that neither he nor any of the other property owners agreed to delay the closing date to November or December. Smith did state that, after Hurricane Ivan struck the Alabama Gulf coast on September 16, 2004, he orally agreed to extend the closing 30 days until October 28, 2004, because of the damage in the area. However, Joseph denies that such an extension was ever discussed or granted. Regardless, Joseph continued in his attempts to resolve the easement dispute and with his due-diligence investigation of the property.

On approximately November 15, 2004, Miller Acquisitions & Developments (“MAD”) offered to purchase the same 14.5 acres of land the property owners had previously agreed to sell to Joseph. MAD offered to pay $1,036,750 for the property, compared to the $580,000 Joseph had agreed to pay. On November 24, 2004, Paul Smith telephoned Joseph and told him that one of the property owners, M.H. Smith, Jr., considered the sales contract the property owners had entered into with Joseph expired. Joseph immediately sent Paul Smith written notice indicating that he was ready, willing, and able to close on the property as soon as possible. Multiple times over the next several weeks he repeated his request that they close as soon as possible.

On December 16, 2004, the property owners signed a contract agreeing to sell the property to MAD for $1,036,750. The contract stated that the previous agreement to sell the property to Joseph was void, but provided that the contract between the property owners and MAD would be considered only a “backup” contract until the matter of the property owners’ contract with Joseph was completely resolved.

For the rest of December and January, the parties attempted to resolve the matter. The property owners, other than M.H. Smith, indicated that they remained willing to sell the property to Joseph; however, M.H. Smith maintained that Joseph’s contractual right to purchase the property had expired. On February 4, 2005, Joseph sued the property owners in the Baldwin Circuit Court seeking specific performance on the sales contract. The property owners answered, and MAD filed a motion to intervene, seeking a declaratory judgment and injunctive relief.

The trial court granted MAD’s motion to intervene, and, at the close of Joseph’s case-in-chief, both the property owners and MAD moved for a judgment in their favor on the basis that Joseph had failed to prove his case. The trial court granted the property owners’ motion and entered a judgment in their favor and against Joseph. Joseph appeals.

II.

The parties disagree as to the standard of review applicable to this case. The property owners argue that, because the trial court heard ore tenus testimony, this Court should apply the ore tenus rule and reverse the judgment of the trial court only if that judgment is “clearly erroneous or palpably wrong or unjust.” Loper v. Odom, 619 So.2d 1310, 1312 (Ala.1993). Although acknowledging that the trial court’s judgment was based on ore tenus testimony, Joseph nevertheless argues that this Court’s standard of review should be de novo because, he claims, the facts before the trial court were essentially undisputed. See Eubanks v. Hale, 752 So.2d 1113, 1144 (Ala.1999) (stating that the ore tenus rule does not apply to questions of law when the material facts are not in dispute).

However, Joseph’s argument overlooks the fact that the testimony at trial conflicted on several key points. Importantly, perhaps the most pertinent fact — to what date did, if any, the property owners agree to extend the deadline for Joseph to close on the transaction — was heavily disputed. Therefore, the ore tenus standard is appropriate.

In Transamerica Commercial Finance Corp. v. AmSouth Bank, N.A., 608 So.2d 375 (Ala.1992), this Court explained the standard of review appropriate in a case such as this one, where the trial court heard ore tenus testimony and then entered a judgment without making specific findings of fact and without explaining its rationale:

“Because the trial judge made no specific findings of fact, this Court will assume that the trial judge made those findings necessary to support the judgment. Fitzner Pontiac-Buick-Cadillac, Inc. v. Perkins & Assocs., Inc., 578 So.2d 1061 (Ala.1991). Under the ore tenus rule, the trial court’s judgment and all implicit findings necessary to support it carry a presumption of correctness and will not be reversed unless ‘found to be plainly and palpably wrong.’ Fitzner, 578 So.2d at 1063. ‘The trial court’s judgment in such a case will be affirmed, if, under any reasonable aspect of the testimony, there is credible evidence to support the judgment.’ Clark v. Albertville Nursing Home, Inc., 545 So.2d 9, 13 (Ala.1989); see, also, Norman v. Schwartz, 594 So.2d 45 (Ala.1991).”

608 So.2d at 378. Thus, this Court must affirm the judgment in favor of the property owners unless the judgment is “plainly and palpably wrong,” that is, wholly without credible evidence to support it.

III.

The trial court did not explicitly state its rationale for entering a judgment for the property owners at the close of Joseph’s case-in-chief. However, Joseph and the property owners essentially agree that the trial court’s ruling was based on either a finding (1) that the sales contract expired when a closing had not occurred by October 28, 2004, or (2) that the oral agreement to extend the time frame for closing the purchase was unenforceable under the Statute of Frauds. If there is credible evidence in the record that would support either rationale, then, under the ore tenus standard of review, we must affirm the trial court’s judgment. We first consider whether there was credible evidence to support a finding that the sales contract expired on October 28, 2004, when a closing did not occur by that date.

The sales contract Joseph submitted to the property owners on May 29, 2004, and ultimately signed by the property owners on June 28, 2004, stated that “[t]he sale shall be closed and the deed delivered on or before September 1, 2004, except seller shall have a reasonable length of time within which to perfect title or cure defects in the title to the property.” The conditions of acceptance dated June 28, 2004, further stated that the “purchaser has 90 days to close under the terms of the contract including addendum A.” When asked about the closing date at trial, Paul Smith testified as follows:

“Q: When was the closing to take place under this contract?
“A: Originally, it was to take place 90 days from May 29th.- When we signed on June 28th, he asked if we would let that start from June 28th and let it be 90 days from there and we agreed to give him that additional time.
“Q: So under the strict terms of the agreement, the closing should have taken place, if everything went the way it should, 90 days thereafter, which would have been September 28th or 29th, right? []
“A: Well, 90 days from June whatever date we signed.
“Q: 28th?
“A: Yes.”

Paul Smith also testified that the property owners allowed Joseph an additional 30 days within which to close after Hurricane Ivan struck the Orange Beach area, thus extending the closing date from September 28, 2004, until October 28, 2004.

Joseph, however, argues that the sales contract never had a 90-day closing requirement. He notes that although his original offer indicated that closing would take place by September 1, 2004, it also provided for “a reasonable length of time” beyond that date in order to cure defects in the title to the property. Moreover, he argues in his reply brief that the provision in the conditions for acceptance stating that the “purchaser has 90 days to close under the terms of the contract” was handwritten and signed only by Paul Smith; there is no indication, he argues, that he agreed to that condition. This assertion, however, is contradicted by his complaint, which states, in pertinent part:

“Under the terms of the ‘conditions of acceptance’ contained in the sales contract, the purchaser, the plaintiff herein, had 90 days from June 28, 2004, to close under the terms of the contract. Accordingly, the original closing date was to have been September 24, 2004 [sic].”

Regardless, however, of the original closing date contemplated by the parties, Joseph testified that Paul Smith subsequently agreed to delay the closing date until December 17, 2004:

“Q: At any time in [the September 10, 2004,] meeting did Mr. Smith tell you that you had to close by September 28th?
“A: No. I provided him an acknowledgment, the fact that, look, if I’m going to spend the time, the money, and the effort to proceed to fulfill my obligation under the contract, that I felt that I could accomplish it between November and December, late November until December. Of course, this is before the hurricane came.
“Q: Was that discussed?
“A: Yes, it was. He asked me if I could, you know, try to keep it as — you know, in November, but as early in December as possible. And I told him I’d do everything I could.
“Q: Alright. And you prepared this addendum, which is marked as Defendant’s Exhibit 3. I know it’s never been signed, but did you present that to him?
“A: Yes, I did.”

The proposed addendum, which Joseph alleges extended the date as agreed, is dated October 8, 2004, and purports to extend the closing date until December 17, 2004. It is not signed by any of the property owners, although Joseph claims they never formally rejected it. Joseph also denies that there was ever any discussion about an extension to the closing date because of the damage to the area caused by Hurricane Ivan.

The contradictory testimony of Joseph and Paul Smith cannot be reconciled. However, this Court need not determine whose testimony is more credible; that is the province of the trial court. Our sole concern is whether there was evidence in the record from which the trial court could have concluded that the closing date for the sale of the property was October 28, 2004. Clearly, based on the testimony of Paul Smith, there was.

Even though we are assuming that the parties agreed to a closing date of October 28, 2004, we must still consider whether the contract automatically expired if the transaction did not close by that date. The property owners argue that the contract expired on October 28, 2004, because, they say, time was of the essence in the transaction. They acknowledge that the contract did not have a provision stating that time was of the essence, but they argue that the circumstances surrounding the transaction nevertheless made time of the essence. In support of this argument they cite Moore v. Lovelace, 413 So.2d 1100, 1102 (Ala.1982), in which this Court stated:

“It is an axiom of equity that as a general rule time is not of the essence of a contract. Gay v. Tompkins, 385 So.2d 973 (Ala.1980). However, the parties might make time essential by ‘clear manifestation of the intent of the parties in the contract itself, by subsequent notice from one party to the other, by laches in the party seeking to enforce it, or by change in the value of the land or other circumstances which would make a decree for the specific performance inequitable.’ Isom v. Johnson, 205 Ala. 157, 158, 87 So. 543, 544 (192[0]) (quoting Barnard v. Lee, 97 Mass. 92 (1867)).”

The property owners argue that they manifested their intent that time was of the essence (1) by providing in the sales contract that Joseph had 90 days from the execution of the contract in which to close (this was not, they argue, an open-ended contract); (2) by not signing, and therefore rejecting, Joseph’s proposed addendum to extend the closing until December 17, 2004; and (3) by extending the closing date 30 days until October 28, 2004, thus demonstrating that closing by that date was essential. Joseph argues that the property owners never manifested an intent to make time of the essence, especially inasmuch as they never formally rejected his proposed addendum extending the time for closing.

The property owners rely on this Court’s previous decisions in Moore and Isom v. Johnson, 205 Ala. 157, 158, 87 So. 543, 544 (1920), in support of their argument. In Moore, the buyer agreed to purchase two parcels of land from the sellers and to close on the sale by October 10, 1979. The sellers later granted the buyer two six-month extensions, which extended the closing date first to April 10, 1980, and then to October 10, 1980. The buyer subsequently sought three more extensions of the closing date, but the sellers refused any more extensions. When the buyer failed to close by October 10, 1980, the sellers refused to complete the transaction thereafter. The trial court denied the buyer’s ensuing action seeking specific performance, and this Court affirmed that judgment, stating:

“We agree with the trial court’s finding that ‘it is clear that the [buyer] knew, or should have known, by [the sellers’] actions, that the [sellers] were demanding strict adherence or compliance with the terms of the contract.’ The granting of the six-month extension made time of the essence. And, under the terms of the contract, the sellers had the right to cancel, at their election, upon the failure of the [buyer] to carry out the terms of the agreement.”

413 So.2d at 1103.

In Isom, the buyer agreed to purchase a parcel of land from the seller and to close on the transaction by December 1, 1919. The seller later agreed to extend the closing date and stated he would accept payment “any time during December.” 205 Ala. at 159, 87 So. at 544. The buyer failed to tender payment during December and, when the seller thereafter refused to complete the transaction, the buyer sued, seeking specific performance on the contract. The trial court ruled in the buyer’s favor; however, this Court reversed, stating “[t]he new agreement averred, extending the time in which the [buyer] might pay, must be accepted as evidence that payment within the month of December was considered to be essential.” 205 Ala. at 159, 87 So. at 544.

As previously discussed, the trial court heard conflicting evidence regarding the closing date but could reasonably have concluded that the property owners set the original closing date as September 28, 2004, and then changed it to October 28, 2004, because of the damage to the area caused by Hurricane Ivan. On the basis of Moore and Isom, the trial court could have therefore also reasonably concluded that the post-Hurricane Ivan agreement extending the closing to October 28, 2004, was “evidence that payment [by October 28, 2004,] was considered to be essential.” Isom, 205 Ala. at 159, 87 So. at 544. Applying the ore tenus standard of review, we cannot say that the trial court’s conclusion that time was of the essence to the sales contract was plainly and palpably erroneous.

We have, therefore, concluded that the trial court had evidence before it from which it could have reasonably entered a judgment in favor of the property owners on the basis that the contract had expired on October 28, 2004. Therefore, it is unnecessary to consider the issue whether the trial court could have also entered a judgment on the basis that the oral agreement to extend the contract was unenforceable under the Statute of Frauds. However, we must still consider Joseph’s argument that the trial court’s judgment is erroneous because, he alleges, notwithstanding the fact that the specified closing date passed without the occurrence of a closing, the property owners still could not legally cancel the contract until they, first, provided him with evidence of marketable title, and, second, demanded that he close the sales transaction and gave him a reasonable amount of time to do so.

Joseph first cites Mid-State Homes, Inc. v. Brown, 47 Ala.App. 468, 471, 256 So.2d 894, 897 (1971), and Cullum v. Branch Bank at Mobile, 4 Ala. 21, 28-29 (1842), for the proposition that, unless otherwise agreed to, a seller of real property must discharge all encumbrances and present the buyer with a clear title before it can compel payment of the purchase price. Because the property owners had yet to resolve the easement issue with the TCPOA, Joseph argues, they had not presented him with a marketable title, and they could not, therefore, cancel or repudiate the contract.

However, Joseph has misapplied the holdings of Mid-State Homes and Cullum. Those two cases stand only for the proposition that a seller of real property cannot compel a buyer to make a payment pursuant to a real-estate contract until the seller has presented good title. The cases might be relevant if the property owners had tried to enforce the contract before the easement issue was resolved; however, as Joseph acknowledges in his next argument, the property owners never made any demand for payment. Moreover, the trial court’s judgment is consistent with a finding that the contract expired by its terms, relieving the sellers of any duty to perform.

Joseph next cites Wilson v. Thompson, 255 Ala. 165, 169, 51 So.2d 20, 24 (1951), Bay Minette Land Co. v. Stapleton, 224 Ala. 175, 180, 139 So. 342, 347 (1932), and J.M. Ackley & Co. v. Hunter, Benn & Co.s Co., 166 Ala. 295, 309, 51 So. 964, 968 (1909), for the proposition that a party cannot rescind a contract before calling upon the other party to close and giving the other party a reasonable time to comply with that request. This principle, Joseph alleges, applies to any contract, real estate or otherwise. Again, however, this argument is premised on the proposition that the property owners canceled or repudiated the contract, not that the contract expired in accordance with its terms. Moreover, this Court specifically stated in Bell v. Coots, 451 So.2d 268, 269 (Ala.1984), that this principle does not apply when time is of the essence in a contract; therefore, it is inapplicable in this case.

Finally, Joseph also argues that this Court should apply the doctrine of equitable estoppel to reverse the trial court’s judgment because, he alleges, the property owners exhibited bad faith by inducing him to expend substantial time and effort conducting a due-diligence investigation and attempting to resolve the easement dispute while they were secretly negotiating with MAD for the sale of the same property. However, regardless of whether the property owners exhibited bad faith, Joseph never raised the issue of equitable estoppel in the trial court. “This Court cannot consider arguments advanced for the purpose of reversing the judgment of a trial court when those arguments were never presented to the trial court for consideration or were raised for the first time on appeal.” State Farm Mut. Auto. Ins. Co. v. Motley, 909 So.2d 806, 821 (Ala.2005) (citing Crutcher v. Wendy’s of North Alabama, Inc., 857 So.2d 82, 97 (Ala.2003)).

IV.

The trial court heard ore tenus evidence from which it could have reasonably concluded that Joseph’s contract with the property owners expired as of October 28, 2004. Even if this Court might not have reached that same conclusion regarding the closing date, under the ore tenus rule we cannot substitute our judgment for that of the trial court. To do so would be to impermissibly reweigh the evidence. Ex parte Foley, 864 So.2d 1094, 1099 (Ala.2003). Accordingly, the judgment of the trial court is affirmed.

AFFIRMED.

SEE, LYONS, HARWOOD, WOODALL, STUART, SMITH, BOLIN, and PARKER, JJ., concur.

      . Although the trial court purported to enter “a judgment as a matter of law” in favor of the property owners, because the case was tried without a jury the judgment was actually a judgment on partial findings pursuant to Rule 52(c), Ala. R. Civ. P. (“If during a trial without a jury a party has been fully heard on an issue and the court finds against the party on that issue, the court may enter judgment against that party with respect to a claim or defense that cannot under the controlling law be maintained or defeated without a favorable finding on that issue_”). However, this Court has stated many times that "[t]he character of a pleading, or of a judgment or decree is determined from its essential substance, and not from its descriptive name or title.” State v. Pettis, 275 Ala. 450, 451, 156 So.2d 137, 138 (1963). Therefore, the trial court’s error is without effect, and we will treat the judgment in favor of the property owners as a judgment on partial findings entered pursuant to Rule 52(c).

      . There was some question as to the date the trial court entered the judgment in favor of the property owners and, accordingly, whether Joseph's notice of appeal filed January 24, 2006, was timely. On February 6, 2006, the property owners moved this Court to dismiss Joseph’s appeal as untimely. On Joseph’s motion, this Court remanded the matter on March 2, 2006, for the trial court to consider Joseph’s motion to extend the time for appeal pursuant to Rule 77(d), Ala. R. Civ. P. The trial court denied Joseph's motion. On July 18, 2006, this Court denied the property owners’ motion to dismiss Joseph's appeal as untimely.
      This Court remanded the case to the trial court for a second time on June 19, 2006, because MAD’s claims were outstanding and the judgment being appealed from was therefore a nonfinal judgement. On July 6, 2006, the trial court dismissed MAD from the case, thereby making the judgment final on July 18, 2006.

      . We note that 90 days from June 28, 2004, would actually be September 26, 2004; however, the parties apparently rounded the time period based on a 30-days-equal-l-month formula.

      . Hurricane Ivan, a Category 3 hurricane, made landfall on September 16, 2004, near Orange Beach, causing significant property damage.

      . The property owners argue that Joseph was required to plead equitable estoppel as an affirmative defense. Joseph concedes that equitable estoppel may be an affirmative defense to certain claims, but he argues that because he is the plaintiff in this case he had no obligation to plead any affirmative defenses under Rule 8, Ala. R. Civ. P. Nevertheless, Joseph could have raised the issue of equitable estoppel in the trial court but failed to do so.


author: STUART, Justice. HARWOOD, Justice

text:
    Steven Allan FIKE et al. v. John Earl PEACE et al.
    1051391.
    Supreme Court of Alabama.
    Jan. 12, 2007.
    Rehearing Denied March 16, 2007.

      Robert B. French, Jr., and Tommy Allen French of Robert B. French, Jr., P.C., Fort Payne, for plaintiffs Steven Allan Fike et al.
    S. Joshua Briskman of Baxley, Dillard, Dauphin, McKnight & Barclift, Birmingham, for plaintiff Jerry Westbrook, as executor of the estate of Billie Nadine Big-ham.
    David S. Elliott and Geoffrey S. Bald of Burr & Forman, LLP, Birmingham, for defendant General Shale Products, LLC.
    Doy Leale McCall III of Hill, Hill, Carter, Franco, Cole & Black, P.C., Montgomery, for amicus curiae Alabama Defense Lawyers Association, in support of the defendants.
   STUART, Justice.

The United States District Court for the Northern District of Alabama, Middle Division, certified to this Court the following questions pursuant to Rule 18, Ala. R.App. P.:

“1. Under Alabama law, does the mere contracting for the hauling of an oversize load make the shipper vicariously liable for the negligence of the independent contractor trucking company?
“2. If there is some general liability for negligence of an independent contractor merely because of the oversize load, does the liability of the shipper extend to causes unrelated to the oversize load per se, such as improper brakes or driving?”

We answer the first question in the negative. Because of our resolution of the first question, we need not address the second question.

Facts

This Court has no record from which to determine its own statement of the facts presented by the certified questions; we rely on the following statement of the facts as provided by the federal district court:

“On July 14, 2003, Steven Allan Fike (‘Fike’), Billie Nadine Bigham (‘Big-ham’), Andrea Raiford Doxtator (‘Doxtator’), April Gowen (‘Gowen’) — Doxtator’s minor daughter — and two other minor children of Doxtator, not party to this suit, were driving in a 1997 Ford pickup truck on Alabama State Highway 35 in Cherokee County, Alabama. As traffic began backing up because of a slow vehicle, Fike, the driver of the truck, pulled into the left hand lane to pass. A tractor-trailer being driven by John Earl Peace (‘Peace’) pulled into the left lane at about the same time, behind the truck being driven by Fike. The brakes on the tractor-trailer failed to function properly, and the tractor-trailer began to pick up speed. Noticing that the tractor-trailer appeared to be out of control, Fike pulled his truck as far left off of the road as he could. Peace, not wanting to run his tractor-trailer off the road, attempted to squeeze through the gap made by Fike on the far left and the lane of slowed traffic on the right. The tractor-trailer’s load was oversized, and Peace was unable to navigate the gap. The load struck Fike’s truck on the right side, instantly killing Bigham, and injuring Gowen, Doxtator, and Fike, as well as destroying the pickup truck.
“Defendant General Shale Products, LLC (‘General Shale’) is in the business of manufacturing brick. In the summer of 2008, General Shale hired Defendant DG Trucking [and Equipment Sales, Inc.,] to haul equipment from the General Shale plant in Kentucky to its new plant in Georgia. The cargo in question was large steel kiln cars used in the manufacture of brick. Due to the size of the kiln cars, they are considered to be an oversized load. General Shale, though a licensed motor carrier, generally does not haul oversized loads; DG Trucking is a licensed motor carrier that specializes in hauling such loads. General Shale has had a fifteen-year relationship with DG Trucking, using them to haul oversize loads when necessary. There is no evidence that General Shale has ever had any problems with DG Trucking and its methods, safety history, or observation of legal requirements for a commercial motor carrier. At the time of the Fike accident, Peace was driving a DG Trucking tractor-trailer loaded with General Shale’s kiln cars. After the accident, an inspection of the tractor-trailer by the Alabama State Troopers revealed several violations of the federal safety regulations applicable to motor carriers, including brakes that were out of adjustment.
“On August 28, 2008, Fike, Bigham, Doxtator, and Doxtator as next friend of Gowen, filed suit against Peace, DG Trucking, and General Shale in the Circuit Court of DeKalb County, Alabama. In Count I of the complaint, titled ‘Negligence or Willful and Wanton Misconduct,’ the plaintiffs allege that Peace negligently, or willfully and wantonly, operated a tractor-trailer that was overloaded, without the required escort of a pilot vehicle, and attempted to navigate down the middle of the road, instead of risking injury to himself by pulling his own truck off the road. The plaintiffs further allege that DG Trucking negligently, or willfully and wantonly, entrusted the tractor-trailer into the hands of Peace in a defective and substandard condition — not having been properly inspected and maintained. The plaintiffs also allege that both DG Trucking and General Shale were negligent or willful and wanton when they contracted with each other to haul the oversized load, that DG Trucking was negligent or willful and wanton in allowing Peace to drive an overloaded tractor-trailer, and that General Shale breached its duty to operate in a safe manner when it ‘accepted without objection’ goods that had been unsafely transported by DG Trucking.
“In Count II of the Complaint, titled ‘Wrongful Death,’ the plaintiffs allege that the defendants’ behavior resulted in the death of Billie Nadine Bigham. Fike, as administrator of the estate of Bigham, his mother, claims to bring the action pursuant to Alabama Code § 6-5-410 (1975). The plaintiffs demand money damages in an amount to be determined by a jury. On October 9, 2003, the defendants removed this action to the Northern District of Alabama, Middle Division, based on diversity jurisdiction as outlined in 28 U.S.C. § 1332.”

Relevant Caselaw

Although this Court has not had an occasion to address the precise question presented by the first certified question, we have, in previous cases, concluded that an entity or person may be liable for the negligence of an independent contractor under limited circumstances. In Boroughs v. Joiner, 337 So.2d 340 (Ala.1976), this Court stated:

“The general rule in this state, and in most others, is that:
“‘... one is not ordinarily responsible for the negligent acts of his independent contractor. But this rule, as most others, has important exceptions. One is that a person is responsible for the manner of the performance of his nondelegable duties, though done by an independent contractor, and therefore, that one who by his contract or by law is due certain obligations to another cannot divest himself of liability for a negligent performance by reason of the employment of such contractor. [Citations Omitted].’
“It is also generally recognized that one who employs a contractor to carry on an inherently or intrinsically dangerous activity cannot thereby insulate himself from liability.”

337 So.2d at 342.

This general rule was applied by this Court in General Finance Corp. v. Smith, 505 So.2d 1045 (Ala.1987), which held a secured party vicariously hable for a breach of the peace by its independent contractor, which resulted when the independent contractor attempted to repossess the collateral used to secure the debt. This Court recognized that § 7-9-503, Ala. Code 1975 (now repealed), allowed a secured party to avoid judicial process by repossessing its collateral, but only if that repossession could be done without a breach of the peace. The Court concluded that, even if the secured party relied on an independent contractor to repossess the collateral, the secured party could not disclaim liability for any breach of the peace resulting from that attempted repossession. The Court in General Finance Corporation stated:

“The legislature, in enacting § 7-9-503, supra, did not attempt to set out with specificity the safeguards or precautions which a secured party must take in order to effect a peaceful repossession. By implication, however, a secured party is under a duty to take those precautions which are necessary at the time to avoid a breach of the peace. It is axiomatic that this duty is based on sound public policy.
“Assuming, without deciding, that the status of H & B Recoveries as an independent contractor was undisputed by the evidence, the defendant could not delegate to H & B Recoveries its liability for the wrongful manner in which the repossession was accomplished.”

505 So.2d at 1048. In reaching its conclusion, the Court in General Finance Corporation relied on, among other things, the Restatement (Second) of Torts § 424 (1965), which provides:

“ ‘One who by statute or by administrative regulation is under a duty to provide specified safeguards or precautions for the safety of others is subject to liability to the others for whose protection the duty is imposed for harm caused by the failure of a contractor employed by him to provide such safeguards.’ ”

505 So.2d at 1048.

In Jones v. Power Cleaning Contractors, 551 So.2d 996 (Ala.1989), this Court recognized that the use of a highly caustic paint remover was an inherently dangerous activity and that the general contractor could not disclaim liability for its subcontractor’s negligence in the use of the remover. In Jones, the University of North Alabama (“UNA”) contracted with Sequoia Construction Company, a general contractor, to refinish one of its buildings. In order to perform the job it had contracted to do, Sequoia had to remove the old paint from the building. Sequoia subcontracted the entire project to another contractor, who, in turn, subcontracted the entire job to Quality Waterproofing, another contractor.

As Quality proceeded to remove the paint, one of Quality’s employees was injured when “PC X-25” — the highly caustic paint remover Quality selected to use for the project — splashed in his eye. The worker was blinded in that eye as a result. The injured worker sued Sequoia, Quality, and the supplier of the paint remover.

In analyzing whether the worker had a viable claim against Sequoia, this Court reviewed the law of negligence, stating that “[a]s a general rule, a contractor must accept responsibility for the negligent acts of his independent contractor if the independent contractor is engaging in inherently or intrinsically dangerous acts.” 551 So.2d at 998. The Jones Court noted that all parties had admitted that the chemical selected for use by Quality was extremely dangerous; as a result, the Court concluded that “[tjhere is no doubt that the application of PC X-25 would fall within the ambit of’ an intrinsically dangerous act. 551 So.2d at 999. The Court also observed that the contract between UNA and Sequoia specified that Sequoia would be responsible for the “acts and omissions of subcontractors” and that Sequoia would “take all necessary precautions” to provide a safe workplace for the workers. 551 So.2d at 999. For these reasons, the Court in Jones concluded that Sequoia, the general contractor, was liable for the negligence of Quality, the subcontractor.

In Boroughs v. Joiner, supra, this Court recognized that the use of pesticides and insecticides was an inherently dangerous activity. In reaching this conclusion, the Court noted:

“The Legislature of Alabama has recognized that insecticides and pesticides are intrinsically dangerous and has adopted statutes regulating the sale, distribution and application of those products in this state. The legislature stated its purpose in enacting the Alabama Pesticide Act of 1971 (Title 2, § 337(9a), et seq.). § 337(12a) is as follows:
“ ‘The purpose of this article is to regulate, in the public interest, the application of pesticides.... [S]uch materials when misused may seriously injure health, property, crops, wildlife, bees, and fish. Pesticides may also injure man and animals, either by direct poisoning or by gradual accumulation of poisons in the tissues.... A pesticide applied by aircraft or ground equipment for the purpose of controlling diseases, insects or weeds in a crop which is not itself injured by the pesticide may drift, sometimes for miles, and injure or contaminate other crops and other things with which it comes in contact. Therefore, it is deemed necessary and in the public interest to provide some means of regulating the application of pesticides.’
“Under the statutory scheme adopted by the legislature, such products must be registered with the Department of Agriculture and Industries. Each must bear a label describing the degree of toxicity, and each must bear warnings of the dangers inherent in the use thereof. One must have a permit to purchase such products. Aviators must be licensed to engage in crop dusting or spraying and must pass an examination satisfactory to the Commissioner of Agriculture demonstrating knowledge of the dangers involved in the application thereof.
“We hold that aerial application of insecticides and pesticides falls into the intrinsically or inherently dangerous category and, therefore, the landowner cannot insulate himself from liability simply because he has caused the application of the product to be made on his land by an independent contractor.
“The test of liability on the part of the landowner is one of reasonableness. Liability is not absolute but is imposed on the landowner for his failure to exercise due care in a situation in which the work being performed is sufficiently dangerous that the landowner himself has a duty to third persons who may sustain injury or damage from the work unless proper precautions are taken in the performance thereof.”

337 So.2d at 343. For these reasons, the Court held that a landowner who contracted for the spraying of pesticides or insecticides was subject to liability if the contractor failed to use proper precautions in connection with the spraying.

Conversely, this Court has applied these general rules in other contexts to find the employer not vicariously liable for the negligence of an independent contractor. For example, in Stovall v. Universal Construction Co., 893 So.2d 1090 (Ala.2004), this Court recognized that the painting of the interior of a “rocket replica” at night was not an inherently dangerous activity when the issue before the Court was whether the general contractor should be held liable for the injuries sustained by an employee of the subcontractor who died after falling off a ladder. The Court stated:

“[A] general contractor is liable for injuries to a third person where the work is ‘ “of such kind or class that the doing of it, however carefully or skillfully performed, will probably result in damage, or is necessarily and intrinsically dangerous.” ’ ...
“We explained the concept of ‘intrinsically dangerous’ work in Boroughs v. Joiner, 337 So.2d 340 (Ala.1976). The risk posed by such an activity ‘ “inheres in the performance of the contract and results directly from the work to be done, not from the collateral negligence of the contractor.” ’ Boroughs, 337 So.2d at 342 (quoting 41 Am.Jur.2d Independent Contractors § 41) (emphasis added). Such work involves a ‘ “special danger” ’ that is ‘ “inherent in or normal to the work.” ’ Boroughs, 337 So.2d at 342 (quoting Restatement (Second) of Torts § 427 (1965)). Intrinsically dangerous work is work fraught with danger, ‘no matter how skillfully or carefully it is performed.’ 41 Am. Jur.2d Independent Contractors § 54.
“We cannot say that any work done by [the employee] on the night of his death constituted ‘intrinsically dangerous’ work. First, common sense dictates that painting from a ladder is simply not dangerous work, so long as the most rudimentary care is taken. Thus, this is not the sort of work where there is some risk of injury even when the worker exercises the utmost care and attention.”

893 So.2d at 1099.

In Pope v. City of Talladega, 602 So.2d 890 (Ala.1992), the City of Talladega hired an independent contractor to perform construction work; this construction work required the contractor to excavate certain sites. Under his contract with the City, the independent contractor was liable for all “conditions of the job site, including safety of all persons and property....” The independent contractor hired another contractor to assist him. This subcontractor was killed when the wall of an excavation sight caved in.

The decedent’s widow sued, among others, the City of Talladega, claiming that the excavation work was inherently dangerous and that the City was therefore vicariously liable. However, the Court rejected that argument, holding that the cave-in would not have happened if the contractors had shored or sloped the walls as required by OSHA regulations. Because the danger could have been avoided by the use of reasonable care, the Court refused to find the excavation work at issue in Pope to be inherently dangerous. Pope, 602 So.2d at 893.

In Williams v. Tennessee River Pulp & Paper Co., 442 So.2d 20 (Ala.1983), this Court concluded that a logging company that had hired an independent contractor to haul logs could not be held liable for damage proximately caused by the contractor’s failure to properly maintain his truck. The Court noted that an accident involving the log truck and a vehicle was caused when a hub and a wheel of the truck fell off as a result of improper maintenance and repairs. The Court specifically noted that the accident was not caused by the manner in which the logs had been loaded onto the trailer portion of the truck.

After considering other theories of liability, the Court addressed the plaintiffs claim that the hauling of logs presented a “peculiar risk of physical harm” and, therefore, that the general contractor could be held liable for damages caused by the subcontractor’s negligence in performing that act. In support of this argument, the plaintiff relied upon the Restatement (Second) of Torts § 416 (1965).

The Court in Williams v. Tennessee River Pulp & Paper Company rejected this theory, stating:

“No Alabama case has formally adopted § 416 and we do not need to reach the issue in this case.[] Rather, we hold, as a matter of law, that the faulty maintenance of wheels and the hauling of pulp timber do not constitute a peculiar risk of physical harm which requires special precautions. Comment d. of § 416 illustrates our view:
“ ‘[I]f a contractor is employed to transport the employer’s goods by truck over the public highway, the employer is not liable for the contractor’s failure to inspect the brakes on his truck, or for his driving in excess of the speed limit, because the risk is in no way a peculiar one, and only an ordinary precaution is called for.’
“Tennessee Paper [the logging company] may be responsible for special precautions to anchor a load of giant trees which constitute a peculiar risk, but it is not responsible for the independent contractor’s compliance with simple maintenance procedures and load factors.... Hence, appellants cannot impose liability under § 416 upon Tennessee Paper under the facts in this case.
“We hold that the trial court correctly granted summary judgment [to Tennessee Paper] on the grounds of Mauldin’s independent contractor status and liability under Restatement (Second) of Torts § 416 (1965).”

442 So.2d at 23 (footnote omitted).

Analysis of the Instant Case

We must determine whether General Shale Products, LLC, is subject to liability for the damage caused to the third parties as a result of DG Trucking’s negligence to properly maintain its truck. Applying the principles stated above to the facts presented in these certified questions, in order to find General Shale subject to liability for DG Trucking’s negligence, we must find (1) that General Shale owed a nondel-egable duty to those third parties injured as a result of DG Trucking’s negligence; or (2) that General Shale caused DG Trucking to engage in an inherently dangerous activity.

We first consider the nondelegable-duty theory. We note that the legislature has enacted statutory limits applicable to the hauling of an oversized load by motor carrier. Chapter 9 of Title 32 of the Alabama Code 1975 addresses “Trucks, Trailers and Semi-Trailers.” Specifically, § 32-9-20, Ala.Code 1975, provides, in pertinent part:

“It shall be unlawful for any person to drive, or move on any highway in this state any vehicle or vehicles of a size or weight except in accordance with the following:
“(1) Width. Vehicles and combinations of vehicles, operating on highways with traffic lanes 12 feet or more in width, shall not exceed a total outside width, including any load thereon, of 102 inches, exclusive of mirrors or other safety devices approved by the State Transportation Department. The Director of the State Transportation Department may, in his or her discretion, designate other public highways for use by vehicles and loads with total outside widths not exceeding 102 inches, otherwise; vehicles and combinations of vehicles, operating on highways with traffic lanes less than 12 feet in width, shall not exceed a total outside width, including any load thereon, of 96 inches, exclusive of mirrors or other safety devices approved by the State Transportation Department. No passenger vehicle shall carry any load extending beyond the line of the fenders. No vehicle hauling forest products or culvert pipe on any highway in this state shall have a load exceeding 102 inches in width.”

Section 32-9-29, Alabama Code 1975, is also applicable to this case; that section reads as follows:

“(1) The Director of the Department of Transportation or the official of the department designated by the director may, in his discretion, upon application and for good cause being shown therefor, issue a permit in writing authorizing the applicant to operate or move upon the state’s public roads a vehicle or combination of no more than two vehicles, and loads whose weight, width, length or height, or combination thereof, exceeds the maximum limit specified by law; provided, that the load transported by such vehicle or vehicles is of such nature that it is a unit which cannot be readily dismantled or separated; provided however, that bulldozers and similar construction equipment shall not be deemed readily separable for purposes of this chapter; and further provided, that no permit shall be issued to any vehicle whose operation upon the public roads of this state threatens to unduly damage a road or any appurtenances thereto.”

Finally, the penalties imposed for violation of Chapter 9 are set forth in § 32-9-5, Ala.Code 1975. That section provides:

“The operation of any truck, semitrailer truck or trailer in violation of any section of this chapter or of the terms of any permit issued under this chapter, shall constitute a misdemeanor, and the owner thereof, if such violation was with his knowledge or consent, and the operator thereof shall, on conviction, be fined not less than $100.00 nor more than $500.00 and may also be imprisoned or sentenced to hard labor for the county for not less than 30 days nor more than 60 days.”

(Emphasis added.)

In Heathcock v. State, 415 So.2d 1198 (Ala.Crim.App.1982), the Court of Criminal Appeals discussed the purposes underlying these statutes:

“We have no doubt that one intention of the Legislature in enacting the law as now found in Code of Alabama 1975, § 32-9-20, a lengthy section governing the size and weight of trucks, trailers, and semi-trailers traveling on highways of Alabama, was, as appellant says, ‘to prevent injury to the roads,’ but we do not agree with appellant that this was the only intention of the Legislature:
“ ‘The obvious purposes for enacting truck weight laws is for the safety of the public, and keeping highways in good condition for the traveling public. Travel upon the highways must be as safe as it can reasonably be made consistent with their efficient use. Any overloaded truck creates a safety hazard upon the public highway as well as contributing to a bad state of repair.’ ”

415 So.2d at 1203, quoting State Dep’t of Public Safety v. Scotch Lumber Co., 293 Ala. 330, 302 So.2d 844, 846 (1974). See also Leonard v. State, 38 Ala.App. 138, 142, 79 So.2d 803, 807 (1955) (“ ‘The purpose of statutes prohibiting the use of public highways by motor vehicles of excessive weight is to prevent injury to the public property in the form of damage to roads, bridges, etc., and further to insure the safety of persons traveling such highways.’ ”)

Thus, as did the legislature in Boroughs v. Joiner and General Finance Corp. v. Smith, supra, the legislature found it appropriate to regulate the activity at issue in this case: the transport of oversized loads by motor carrier. However, the express language of the statutes does not impose any duty upon the shipper of that oversized load. The relevant statutes impose a duty of compliance upon the operator of the truck, semitrailer truck, or trailer, and possibly upon the owner of such truck or trailer. See § 32-9-5, § 32-9-20, and § 32-9-29, Ala.Code 1975. Thus, we conclude that General Shale was not subject to a nondelegable duty as a result of Chapter 9 of Title 32 of the Alabama Code 1975. Because we find no other duties imposed upon General Shale by statute, caselaw, or common law that are relevant to the issues before us, we must conclude that General Shale is not subject to liability for the negligence of its independent contractor on the basis of a nondelegable duty.

We next consider whether this case involves an inherently dangerous activity, thereby imposing liability upon General Shale for the negligence of DG Trucking in the performance of that inherently dangerous activity. An “intrinsic danger” or “inherent danger” in an undertaking “ ‘is one which inheres in the performance of the contract and results directly from the work to be done, not from the collateral negligence of the contractor, and important factors to be understood and considered are the contemplated conditions under which the work is to be done and the known circumstances attending it.’ ” Boroughs v. Joiner, 337 So.2d at 342 (quoting 41 Am. Jur.2d, Independent Contractors § 41).

When considering the other activities previously recognized in this State as inherently dangerous—the aerial spraying of pesticides and insecticides, the use of a highly caustic chemical, and the use of dynamite as an explosive—we must conclude that the shipping of an oversized load does not rise to the same level. We agree with the statement in the brief submitted by the amicus curiae in support of Peace: “There is nothing to suggest that if the proper precautions are in fact taken in regard to [the shipping of an oversized load], that this activity is hopelessly fraught with danger, no matter how skillfully or carefully it is performed.” (Brief of amicus curiae Alabama Defense Lawyers Association at p. 9.)

We find the analysis and reasoning of Inland Steel v. Pequignot, 608 N.E.2d 1378 (Ind.Ct.App.1993), particularly on point. In that case, Inland Steel contracted with a motor carrier to ship a 48,000-pound coil of steel from Illinois to Ohio. While hauling the steel coil, the motor carrier’s driver ran a red light and collided with Pequignot, who was on a motorcycle. Pequignot was seriously injured. Pequig-not sued Inland Steel, asserting, among other theories, that because of the size and weight involved, the hauling of the steel coil was an inherently dangerous activity for which Inland Steel was vicariously liable.

In analyzing the liability issue, the Indiana Court of Appeals stated:

“Although the parties use the terms ‘inherently dangerous or intrinsically dangerous’ interchangeably, it is apparent to us they are alluding to what the First Restatement of Torts § 519 (1938) referred to as ‘ultra-hazardous’ activity and which the Restatement (Second) §§ 519 & 520 (1977), calls ‘abnormally dangerous’ activity to impose strict liability. ... This doctrine, which evolved from Rylands v. Fletcher (1868), L.R. 2 H.L. 330, provides:
“ ‘(1) One who carries on an abnormally dangerous activity is subject to liability for harm to the person, land or chattels of another resulting from the activity, although he has exercised the utmost care to prevent the harm.
“ ‘(2) This strict liability is limited to the kind of harm, the possibility of which makes the activity abnormally dangerous.’
“Restatement (Second) § 519.
“Section 520 of the Second Restatement provides:
“ ‘In determining whether an activity is abnormally dangerous, the following factors are to be considered:
“ ‘(a) Existence of a high degree of risk of some harm to the person, land or chattels of another;
“ ‘(b) Likelihood that the harm that results from it will be great;
“ ‘(c) Inability to eliminate the risk by the exercise of reasonable care;
“ ‘(d) Extent to which the activity is not a matter of common usage;
“ ‘(e) Inappropriateness of the activity to the place where it is carried on;
“‘(f) Extent to which its value to the community is outweighed by its dangerous attributes.’
“Restatement (Second) § 520. ‘The general principle derived from Rylands is that where a person chooses to use an abnormally dangerous instrumentality, that person is strictly liable without a showing of negligence for any injury proximately caused by that instrumentality.’ 57A Am.Jur.2d Negligence § 396 (1989).
‘We find that § 520(c) as well as our reasoning in Erbrich Products [Co. v. Wills, 509 N.E.2d 850 (Ind.Ct.App.1987),] is dispositive of this question. Hauling steel, or any other heavy load, is not ‘inherently dangerous,’ ‘intrinsically dangerous,’ ‘ultra-hazardous’ or ‘abnormally dangerous’ as these terms are used in strict liability. It is readily apparent that if the driver of the truck, Hinds, had used reasonable care, this tragic accident would not have happened. It is undisputed that Hinds ran a red light at 40 [miles per hour.] It is also clear to us that the coil of steel was not the proximate cause of Pequignot’s injuries. While riding a motorcycle, he hit a tractor-trailer carrying 48,000 pounds of steel and traveling at 40 mph. He hit the trailer — the coil of steel did not fall off the trailer and hit him. It would make no difference if the tractor-trailer was carrying 48,000 pounds of steel or sand or even wood chips. When a motorcycle strikes or is struck by a tractor-trailer running a red light, especially one traveling at 40 mph, the motorcyclist is going to come out the loser — if at all.”

608 N.E.2d at 1384-85. For these reasons, the Indiana Court of Appeals held that Inland Steel was entitled to a summary judgment on Pequignot’s claims of liability.

Like the accident in Inland Steel, supra, the accident in this case was not caused by the oversized load but by the “collateral negligence” of the owner and/or operator of the tractor-trailer. See Boroughs v. Joiner, 337 So.2d at 342 (quoting 41 Am. Jur.2d Independent Contractors § 41); see Inland Steel, 608 N.E.2d at 1385 (referring to the independent contractor’s failure to use reasonable care). It is undisputed that the brakes on Peace’s truck failed and that an inspection of Peace’s truck after the accident revealed numerous violations of the applicable Federal Department of Transportation regulations, including a failure to properly adjust the brakes. The fact that Peace was hauling an oversized load played no role in the accident, and there is no evidence to indicate that this accident would have occurred if Peace or DG Trucking had maintained the brakes on the tractor-trailer, as they had a duty to do. Thus, the hauling of this heavy load does not meet the definition of an “inherently dangerous” activity because the major risk of harm from the oversized load could have been alleviated if Peace and DG Trucking had used reasonable care.

Conclusion

Under the facts as presented to us by the district court, we conclude that General Shale did not owe a nondelegable duty to the third parties injured as a result of DG Trucking’s negligence. We also observe that the hauling of the kiln cars did not constitute an inherently dangerous activity. Therefore, we find no basis upon which to impose vicarious liability upon General Shale for the alleged negligence of DG Trucking. For these reasons, we answer the first certified question in the negative. Because of our resolution of the first certified question, we need not address the second certified question; we therefore decline to answer the second question.

QUESTION NO. 1 ANSWERED; QUESTION NO. 2 DECLINED.

NABERS, C.J., and WOODALL, BOLIN, and PARKER, JJ., concur.

SEE, LYONS, HARWOOD, and SMITH, JJ., concur specially.

HARWOOD, Justice

(concurring specially).

I concur specially. Rule 18(d), Ala. R.App. P., specifies that when a federal court certifies a question of law to this Court, the certification should contain “a statement of facts showing the nature of the cause and the circumstances out of which the questions or propositions of law arise and the question of law to be answered.” The main opinion points out that this Court has no record from which it can determine the underlying facts and necessarily must rely on the statement of facts as provided by the federal district court. The main opinion sets those facts out completely, and it is to be noted that the facts contain no reference whatsoever to the width of the oversized load of steel kiln cars being carried on the tractor-trailer. The particulars of the load, so far as its size is concerned, do not form a part of the certified questions. Rather, the district court phrases its two questions entirely in the abstract, and asks in the first one only about the legal implications of “the mere contracting for the hauling of an oversize load.” The main opinion properly responds to this generic, generalized question, expressly stating that the conclusion reached is premised “[u]nder the facts as presented to us.” 964 So.2d at 662. I agree that under the facts as provided by the district court, “the hauling of the kiln cars did not constitute an inherently dangerous activity.” 964 So.2d at 662.

However, the parties volunteer additional facts in their briefs, and they agree that the width of the kiln cars as loaded on the tractor trailer was 17 feet 8 inches, or 212 inches, and that the two-lane road on which the collision occurred was not more than 24 feet wide. Further, they agree that General Shale Products, LLC, loaded the kiln cars onto the tractor-trailer using its own crane, so that it was aware of the configuration of the load, including its width, when the tractor-trailer left its premises carrying the load. If the district court had included these facts in its certification, thus particularizing the situation, I would be inclined to answer the question thus shaped in a somewhat different fashion.

SEE, LYONS, and SMITH, JJ., concur.

      . In its brief filed with this Court, General Shale Products, LLC, indicates that the district court entered a summary judgment in favor of General Shale as to all claims asserted directly against it. (See General Shale’s brief at p. 19.) Although the district court’s recitation of the facts does not expressly include this statement, the court’s statement of the facts does intimate that General Shale is subject to liability only if it may be held liable for DG Trucking's negligence, if any. We will not address the question of General Shale’s liability based on alleged negligent selection of DG Trucking.

      . Section 7-9-503, Ala.Code 1975, which has since been repealed, stated, in pertinent part: "Unless otherwise agreed a secured party has on default the right to take possession of the collateral. In taking possession a secured party may proceed without judicial process if this can be done without breach of the peace or may proceed by action.” The Court in General Finance Corporation defined "breach of the peace” to mean “without risk of injury to the secured party, the debtor, or innocent bystanders.” See 505 So.2d at 1048.

      . Additionally, this Court has held that the use of dynamite as an explosive is an inherently dangerous activity. See Bankers Fire & Marine Ins. Co. v. Bukacek, 271 Ala. 182, 123 So.2d 157 (1960). The opinion in Bankers Fire addressed insurance-coverage issues in the context of a constable who used dynamite to destroy an. illegal still and thereby damaged the house in which the still was located. Because of the issues presented in Bankers Fire, the analysis and reasoning used by the Court in that opinion are not relevant here, and no further discussion of that case is necessary.

      . The Restatement (Second) of Torts § 416 provides:
      “One who employs an independent contractor to do work which the employer should recognize as likely to create during its progress a peculiar risk of physical harm to others unless special precautions are taken, is subject to liability for physical harm caused to them by the failure of the contractor to exercise reasonable care to take such precautions, even though the employer has provided for such precautions in the contract or otherwise.”

      . The Court in Williams v. Tennessee River Pulp & Paper Co., indicated in a footnote that "[e]ven though we have not embraced § 416, we have adopted its general principles in an earlier case.” See 442 So.2d at 23 n. 2 (citing and quoting from Thomas v. Saulsbury & Co., 212 Ala. 245, 246-47, 102 So. 115, 116 (1924)).

      .In the facts provided to this Court by the federal district court, the district court observed that "[t]he brakes on the [DG Trucking] tractor-trailer failed to function properly, and the tractor-trailer began to pick up speed.... After the accident, the inspection of the tractor-trailer by the Alabama State Troopers revealed several violations of the federal safety regulations applicable to motor carriers, including brakes that were out of adjustment.” Certification of question of law, at 2-3.

      . We recognize that the duty to exercise due care was applicable to General Shale under the common law. However, the facts as stated by the district court indicate that General Shale complied with that duty. We also interpret the questions certified to us to require the presumption that General Shale has not acted in a negligent manner.