author: FAULKNER, Justice.

text:
    Clayborn TERRY and Sallie Genevieve Terry v. Joe Felix TERRY, and Lillian Borden, as next friend of Joe Felix Terry.
    SC 1523.
    Supreme Court of Alabama.
    July 23, 1976.

      Speake & Speake, Moulton, for appellants.
    Kenneth Shelton, Decatur, for appellees.
   FAULKNER, Justice.

This is an appeal from a decree of the Circuit Court of Lawrence County, cancel-ling a deed conveying the grantor’s property to his grandson. We reverse.

On May 11, 1973, Joe Felix Terry conveyed all of his property, approximately 31 acres, including his homestead, to his grandson, Clayborn Terry, and his wife, Sallie Genevieve Terry, for consideration of $3,000. The deed was recorded on the same day.

On August 24, a complaint was filed in the name of Joe Felix Terry, by Lillian Borden, his daughter, as his next friend, against his grandson and wife, alleging that Terry was incompetent to execute the deed and was unduly influenced by his grandson and others, and received no consideration. Terry sought cancellation of the deed, and damages in the amount of $2,500 for the wrongful detention, wrongful and unlawful use, and occupation, and the wasting of the property. The grandson moved to dismiss the petition but the motion was denied. He then filed an answer to the complaint.

On the motion of the next friend to have Terry’s mental condition evaluated, the trial court ordered Terry examined by Dr. Rhyne. Dr. Rhyne’s letter concerning the results of his examination was filed March 26,1974. In that letter Dr. Rhyne stated he was of the opinion Terry was competent to execute a transaction similar to the one in question. The doctor further wrote, “He gave no indication that undue influence had been used in getting him to make the decision [to sell] the way he did.” Dr. Rhyne also stated that, although the grantor was not aware of the day of the week, the month of the year, or the year, he remembered selling his land to his grandson and he said the price was fair and that, if he had it to do over again, he would sell it to him again for the same amount.

After receipt of the physician’s report, the grandson filed a motion for summary judgment, which was overruled by the court on July 23.

The case came to trial before the court and a jury acting in an advisory capacity. Testimony at the trial showed that Terry was approximately 89 years old at the time he executed the deed, and had been in failing health for about five years. Often he did not recognize his children and did not know the current day, month, or year. He could not see or hear well and was unable to read or write.

At the time of the conveyance, Terry had been living with his daughter, Sybil Terry, the mother of Clayborn Terry. Apparently Terry resided with his daughter Sybil for a while and then with his daughter, Lillian Borden. He was living with his daughter Lillian at the time of the trial.

The evidence further shows that on April 24, 1973, two and a half weeks before the execution of the deed, at the request of his grandson, Terry was examined by Dr. Hol-lobaugh. He pronounced him “quite mentally competent” to execute a deed. Terry testified that he had not placed his mark on the deed. But his grandson and an abstracter who drafted the deed said he marked it himself. The deed was witnessed by two persons, one of whom notarized it.

An appraiser stated the value of the land conveyed would be as much as $300 an acre or about $9,000 total. The grandson testified his offer of $3,000 was accepted by Terry, in lieu of his wish to make a gift, and the money was placed in a bank account under the name of his granddaughter, at his request, so that he would not lose his pension and social security checks.

In response to interrogatories propounded to the jury by the court, the jury determined that, although the grantor was mentally capable to execute the deed in question, he was subjected to undue influence by the grantee. On April 3,1975, the court entered a decree cancelling the deed. A motion for a new trial was denied.

The main issue in this case is whether there was undue influence. Terry argues that the conveyance was a product of undue influence on the basis that there was a confidential relationship between the parties to the deed and that the consideration was grossly inadequate. We hold that the facts brought forth at the trial established neither the domination by the grandson necessary for undue influence nor the inadequacy of the consideration to set aside the transaction; therefore, the deed is valid.

It is well established that what constitutes undue influence to procure a deed depends on the facts and circumstances of each case. Orton v. Gay, 285 Ala. 270, 231 So.2d 305 (1970). However, undue influence can generally be defined as influence which dominates the grantor’s will and coerces it to serve the will of another. Wyatt v. Riley, 292 Ala. 277, 293 So.2d 288 (1974).

When the parties stand in a confidential relationship and the evidence tends to show that the beneficiary is the dominant party, the law raises a presumption of undue influence and places on the beneficiary the burden to repel the presumption when the transaction is assailed. Wolfe v. Thompson, 285 Ala. 745, 235 So.2d 878 (1970). Here the parties agree that no presumption of a confidential relationship attends the relationship of a grandfather and grandson.

When no presumption is raised, the burden to prove undue influence is on the one seeking to set aside the deed. Wyatt. Undue influence warranting cancellation of the deed is difficult to prove. Jones v. Boothe, 270 Ala. 420, 119 So.2d 203 (1960). In determining dominance, it is not a question of whether the party knew what he was doing, had done, or proposed to do, but how the intention of the grantor was produced. Wyatt.

In this case Terry claims his intent was produced through his grandson’s actions. His grandson does not contend that he did not influence his grandfather at some point in time. In fact, he initiated the discussion of a possible transaction by requesting to buy the property several days prior to the execution of the deed.

It is not influence which is charged, but undue influence. Mere suggestion does not constitute undue influence, nor does solicitation suffice unless the grantor be worn out with importunities so that his will gives way. Halman v. Bullard, 261 Ala. 115, 73 So.2d 351 (1954). Here the transaction was discussed only once prior to the execution of the deed, hardly enough to wear away the will of the grantor.

Unquestionably, the parties enjoyed a close relationship, one based on, but not limited to, the grandfather-grandson relationship. Terry lived with his grandson’s mother for five years prior to the execution of the deed, and they usually saw each other daily. Terry even had a pet name for his grandson. Relations of friendship between parties to a deed are not sufficient to create a suspicion of undue influence in procuring it. Frederic v. Wilkins, 182 Ala. 343, 62 So. 518 (1913). There existed here only a natural affection between grandfather and grandson. Influence which is the result of sympathy and affection only, is not undue influence to void a conveyance. Fortune v. Boutwell, 271 Ala. 592, 126 So.2d 116 (1961).

Even if Terry can prove his grandson had cultivated this relationship by kindness to win his grandfather’s favor, he has not met the burden of proof required to show undue influence. The fact that a grantee by kindness and attention won the affection of a relative who executed a deed to him does not mean that the grantee obtained the deed by undue influence. Stroup v. Austin, 180 Ala. 240, 60 So. 879 (1912). It is even permissible for the grantee to anticipate a substantial reward for his kindness. Stroup.

Furthermore, the fact that Terry offered to give his grandson the land, instead of sell it to him, shows that it was not against his will to pass the land on to his grandson. The fact that his grandson insisted on paying for the land is evidence that he was seeking a legitimate business deal with no indication of exercising undue influence. If anything, he was attempting to overcome any possibility of favoritism by the grandfather to the grandson.

According to the letter written by Dr. Rhyne, the court-appointed physician, and the only truly disinterested person to present evidence in this case, during the examination, after the complaint had been filed, Terry stated that he remembered he sold his land; the price was fair, and, if he had it to do over again, he would sell it to him again for the same amount. Terry had the right to fix the price of his own property. Burke v. Taylor, 94 Ala. 530, 10 So. 129 (1891). Moreover, mere inadequacy of price is not sufficient to set aside a deed of conveyance. Burke.

Terry was under no financial stress necessitating the disposal of his property. His grandson simply offered to buy the land for a certain sum. He did not offer an opinion on the market value of the property. There was no bickering over price. The only question was whether Terry would accept the offer of $3,000 or give the land to his grandson.

That the $3,000 was placed in a bank account in a name other than that of Terry is insufficient to prove grossly inadequate consideration. Terry had constructive possession of the consideration; the money was put there at his request and there was no evidence that it was unavailable to him. There was no attempt by him to withdraw the money.

Terry intended to convey the property at the time he executed the deed. According to Dr. Rhyne’s letter, Terry maintained this intent as late as seven months after the complaint was filed. The fact that at the trial, nearly two years after the conveyance, his intent had changed is irrelevant. In family squabbles such as this, when all the parties, including the next friend, have an interest in the deeded land, we must look carefully at the transaction at the time it was made, not at a later time when family disputes may have changed feelings and ideas. In this case, prior to the execution of the deed in question, there had been a dispute between the next friend and Terry as to his proposal to sell the same property to another person. Moreover, pri- or to the latter part of 1974, he had not even talked with his attorney, although the lawsuit had been pending since August, 1973, and was filed in his name.

Courts, in determining whether a deed was obtained by undue influence, must be extremely careful not to interfere with the right of free disposal which inheres in the ownership of property and not to defeat the uncoerced wishes of its owner. Smith v. Smith, 221 Ala. 56, 127 So. 815 (1930).

Terry’s grandson took more than the usual precautions to assure the propriety of the transaction and to protect the deed from attack such as made in this very case. He insisted on paying money for the land. He had the grantor examined by a physician prior to the execution of the deed to assure his mental competency. The signing of the deed was not only witnessed by two people, but was also notarized and promptly recorded. He made no attempt to conceal the fact of the conveyance. What more could he do?

The court must uphold a deed where understandingly and voluntarily made by one of sound mind, although the grantee may be a relative, in the absence of evidence of undue influence in fact, or presumption of such arising from the relation of the parties. Abrams v. Abrams, 225 Ala. 622, 144 So. 828 (1932).

The evidence clearly shows that there was no undue influence exercised on the grantor by the grantee. We hold the deed to be a valid conveyance.

REVERSED AND REMANDED.

HEFLIN, C. J., and BLOODWORTH, EMBRY and BEATTY, JJ., concur.

      . This letter was admitted without objection. When Dr. Rhyne was offered as a witness, the trial judge indicated that if he was going to testify to the same facts as stated in his letter, the judge did not want to hear him.


source: Caselaw Access Project

license: Public Domain

text:
    OPINION OF THE JUSTICES.
    No. 228.
    Supreme Court of Alabama.
    July 30, 1976.
   To the Members of the House Of Representatives

State Capitol

Montgomery, Alabama 36130

Dear Sirs and Madam:

We have received House Resolution 288 (adopted July 29, 1976) requesting our advisory opinion relative to House Substitute Resolution to Senate Joint Resolution 93, which states:

“S.J.R. 93 SETTING THE NEXT MEETING DAY OF THE LEGISLATURE. “. . . That when they adjourn today, July 8, that they adjourn to meet again on Tuesday, July 20. Any prior resolution that conflicts herewith is repealed.”

A copy of House Resolution 288 is attached. Your first question is—

“1) Does the passage of the aforementioned House Substitute to Senate Joint Resolution repeal Act Number 25, Third Special Session, 1975, which Act states ‘That the two Houses shall meet in sessions on Tuesdays and Thursdays.’?”

This is the same question you posed in House Resolution 261. On July 28,1976, we respectfully declined to answer that question because the justices, under the mandates of Tit. 13, § 34, Code of Alabama, 1940, may answer only important constitutional questions. (See In re Opinions of the Justices, 209 Ala. 593, 96 So. 487.) We observed that we saw no constitutional issue therein. We remain of the same opinion. In our view, the nature of the question is legal, and we are not authorized to answer solely legal questions in advisory opinions to the legislature or governor. Tit. 13, § 34, supra.

Your second question is—

“2) Does the action by the Senate contravene Section 53 of the Constitution of 1901 in that each House has full authority to determine the rules of its proceedings particularly in light of the Opinion of the Justices No. 185, 278 Ala. 522, 179 So.2d 155 (1965)?”

We are somewhat at a loss to understand what “action by the Senate” is referred to. It is said that judges in court ought not to be ignorant of what everyone else knows to be a fact. Therefore, we take it, and so assume solely for the purpose of answering the question, that what House Resolution 288 is referring to as “action by the Senate” is that the Senate met on Wednesday, July 28, 1976, while the House did not. If this is the “action” the question refers to as we assume, then it does not contravene Section 53, which provides:

“Sec. 53. Each house shall have power to determine the rules of its proceedings, and to punish its members and other persons, for contempt or disorderly behavior in its presence; to enforce obedience to its processes; to protect its members against violence or offers of bribery or corrupt solicitation; and, with the concurrence of two-thirds of the House, to expel a member, but not a second time for the same offense; and the two Houses shall have all the powers necessary for the Legislature of a free State.”

Opinion of the Justices No. 185, 278 Ala. 522, 179 So.2d 155 (1965), strengthens this view.

The third question posed is—

“3) Does any action by the Senate on what it determines to be the Twenty-fourth Legislative Day, to wit, July 28, 1976, contravene Section 63 of the Constitution of 1901?”

Again, we must observe that the question as posed is legal in nature and not constitutional. Although we have said we assume (in order to answer the question) that the Senate did meet on Wednesday, July 28, 1976, we cannot say what legislative day it was. See Opinion of the Justices, 288 Ala. 89, 257 So.2d 336 (1972), in which we were confronted with a similar question as to what legislative day it was. We answered that

“We are unable to state the number of the legislative day on January 20 because the resolution and exhibits attached thereto do not show what numbered legislative day January 19, 1972, was.” Section 63 of our Constitution provides:
“Sec. 63. Every bill shall be read on three different days in each House, and no bill shall become a law unless on its final passage it be read at length, and the vote to be taken by yeas and nays, the names of the members voting for and against the same be entered upon the Journal, and a majority of each House be recorded thereon as voting in its favor, except as otherwise provided in this Constitution.”

We fail to see any contravention of this section by the “action” of the Senate in meeting on Wednesday, July 28,1976, if, as we assume, it did so meet.

We perceive the fundamental issue which is posed by your questions is whether there is any conflict between the two resolutions, namely Senate Joint Resolution 13, Act No. 25, Third Special Session, Acts of Legislature 1975, Yol. 1, p. 248, and House Substitute Resolution to Senate Joint Resolution 93.

If there is no conflict, then must the Senate and House continue to meet on Tuesdays and Thursdays as Act No. 24, S.J.R. 13 requires? If there is a conflict, did the passage of House substitute Resolution and its repealer provisions repeal S.J.R. 13?

As we have already pointed out, resolution of the issues you pose are questions of law not of constitutional construction and we are not authorized to answer the same.

In respectfully submitting this opinion, we think it not amiss to call the House’s attention to the following quotation from In re Opinions of the Justices, 216 Ala. 545, 546, 113 So.2d 621 (1927), quoted with approval in Opinion of the Justices, 288 Ala. 89, 257 So.2d 336 (1972):

‘It is clear, also, that on any day within the period of constitutional limitation, over which there has been no adjournment by the joint or concurring action of both houses, either house may be in lawful session, and may transact all legislative business properly brought before it, even though the other house chooses not to be in session, and has in fact adjourned over. Cushing’s Law and Practice of Legislative Assemblies, p. 206, § 511; State ex rel. Adams v. Hillyer, 2 Kan. 17, 28.’
“ ‘[2] In such a ease, a session by either house — the other house not sitting— makes a legislative day, to be deducted from the 50 days allowed by the Constitution. This conclusion seems obvious, and is not impugned, but rather confirmed, by section 58 of the Constitution, supra, which permits either house to separately suspend its own labors by its own separate adjournment for a period of three days, without the consent of the other house.’ In re Opinion of the Justices, 216 Ala. 545, 546, 113 So. 621, 622.”

In closing, we wish to note that we have answered your inquiries as quickly as possible notwithstanding we were thus limited by time in our research and study. Our response is, of course, directed only to those constitutional provisions to which you referred, as is the practice.

Respectfully submitted,

HOWELL T. HEFLIN, Chief Justice

JAMES N. BLOODWORTH

JAMES H. FAULKNER

RENEAU P. ALMON

ERIC EMBRY Associate Justices


author: EMBRY, Justice.

text:
    HAMMERMILL PAPER COMPANY, a Pennsylvania Corp. v. MONTREAL BOYETTE SANDLIN DAY et al.
    SC 1370.
    Supreme Court of Alabama.
    Aug. 6, 1976.

      M. P. Ames and Reeves & Stewart, Selma, for appellant.
    Speaks & Burnett, Clanton, for appellees.
   EMBRY, Justice.

The issue in this case is whether the doctrine of res judicata, or estoppel by judgment, bars an action seeking to establish title to land by adverse possession where a previous action involved title to the same land.

We hold the action is not barred, therefore, reverse and remand.

On 15 July 1968, W. E. Belcher Lumber Company, a Corporation, filed suit, in equity, in the Circuit Court of Chilton County, case No. 4217. The action sought to quiet title under Code of Ala., Tit. 7, § 1109, et seq., and to remove a cloud on title evidenced by a tax deed. W. E. Belcher Lumber Company claimed ownership because of a warranty deed to it of 30 April 1944. The land in suit was the northeast quarter of northeast quarter of fractional section 24, township 22, range 12, Chilton County, Alabama. Respondents named were Montreal Boyette Sandlin and Thomas Elbert Sand-lin, widow and son of Elbert N. Sandlin, deceased, and his sole surviving heirs.

Answers of the Sandlins’ disputed ownership of W. E. Belcher Lumber Company and claimed to own the land as heirs of Sandlin, deceased, because of a deed to him of 14 September 1960 from the purchaser at a tax sale. Neither W. E. Belcher Lumber Company nor the Sandlins asserted adverse possession for the statutory period of ten years under the conditions of Code of Ala., Tit. 7, § 828, or for the common law prescriptive period of 20 years or more.

On 14 December 1973, the 15 July 1968 suit of W. E. Belcher Lumber Company was, by consent, dismissed with prejudice. Previously, Hammermill Paper Company had acquired all the stock of W. E. Belcher Lumber Company, dissolved it and was conveyed the land on 23 December 1970. On 4 April 1975, Hammermill filed this action in the Chilton Circuit Court. It was against Mrs. Sandlin, now Mrs. Day, and Thomas Elbert Sandlin; it asserted ownership of the same land by virtue of a chain of conveyances beginning with government patents and culminating in conveyance from the trustees of W. E. Belcher Lumber Company, a dissolved corporation (the conveyance of 23 December 1970). In addition, Hammermill specifically claimed ownership by adverse possession for more than 21 years and made both claims the subject of statutory proceedings to quiet title as provided in Code of Ala., Tit. 7, § 1116, et seq.

Mrs. Day and Sandlin filed motions to dismiss, then a motion for summary judgment which was submitted with supporting evidence, heard, granted, and judgment entered accordingly. The basis for the motion was that the previous litigation adjudicated the issues about who owned the land. Hammermill urges to the contrary on this appeal.

Prior judgment will bar a subsequent action if the parties to, and subject matter of, the actions are the same; the point in litigation is directly in question and the judgment is rendered on that point. Quinnelly v. City of Prichard, 292 Ala. 178, 291 So.2d 295 (1974); Bryan v. W. T. Smith Lumber Co., 278 Ala. 538, 179 So.2d 287 (1965); Ivey v. Wiggins, 271 Ala. 610, 126 So.2d 469 (1961).

In this case the parties to, and subject matter of, the two actions are the same. Dismissal with prejudice of the prior action was an adjudication on its merits, both under old Equity Rule 75 and under Rule 41(a)(1), ARCP. The question here is whether the point in litigation in this action was directly in question in the prior action; more importantly, could it have been directly in question? It could not.

In the prior action, W. E. Belcher Lumber Company never asserted title by adverse possession, either for the 20 years prescriptive period or for the ten year statutory period. The Sandlins did not and could not; Sandlins’ grantor did not obtain the tax deed until 12 July 1960, the Belcher suit was filed 15 July 1968. Thus Hammermill’s specific assertion, title by adverse possession for the prescriptive period, could not have been the point on which the prior judgment was rendered. There are questions as to material facts that were not raised in the prior action; indeed, as demonstrated, they could not have been. The questions are: Was Beleher-Hammermill in adverse possession and did they meet the criteria for a right to the property by prescription? In the Belcher case that was not adjudicated; the adjudication there was of the validity of titles derived from chains of conveyances.

There are disputed questions of fact and a trial should resolve them, therefore, summary judgment is inappropriate. Horton v. Northeast Alabama Regional Medical Center, Inc., 10 ABR 1350, Ala., 334 So.2d 885.

REVERSED AND REMANDED.

HEFLIN, C. J., and BLOODWORTH, FAULKNER and ALMON, JJ., concur.


text:
    The FIRST NATIONAL BANK OF MONTGOMERY, as Executor of the Estate of H. G. Bradley, Deceased, v. ARMCO STEEL CORP., a corporation.
    SC 1141.
    Supreme Court of Alabama.
    Aug. 6, 1976.

      Albert W. Copeland, Montgomery, for appellant.
    Steiner, Crum & Baker and M. R. Nach-man Jr., Montgomery, for appellee.
   FAULKNER, Justice.

The executor appeals an order of the Circuit Court of Montgomery County granting summary judgment against it. We affirm.

Prior to his death, Bradley contracted with the Industrial Development Board of Montgomery to perform certain work related to the Armco Steel Plant construction. His work consisted of grading and paving a large storage area adjacent to the Armco plant. He sub-contracted part of the work to C. F. Halstead, Inc., who sub-contracted the work to South Alabama Construction Company. The paving became defective in June, 1973. The Board called upon Bradley to repave the area; Bradley called upon Halstead, and he refused — contending the paving failed because of inadequate plans and specifications.

Bradley, upon Halstead’s refusal, had the storage area torn up and repaved it. He then sued Halstead on February 6,1974, for $85,000 damages, the cost of repaving. In July, Bradley amended his complaint to join Armco, as an additional defendant. Arm-co’s motion for summary judgment against Bradley was granted by the trial court on January 6, 1975. Bradley did not attempt to appeal the judgment under Rule 54(b) ARCP, and the case against Halstead continued to a jury verdict in favor of Hal-stead.

The principal issue is whether the trial court correctly granted summary judgment. Was there a genuine issue of material fact that should have gone to the jury? Bradley contends that because the jury concluded Halstead did the work properly, this implies the plans and specifications were defective, by omitting to account for the excess moisture. It is without dispute that Armco employed engineers who drafted the plans and specifications, and it employed laboratories that tested the soil. Armco contends the cause of the failure of the pavement is not a genuine issue of fact in the suit against it. The issue, Armco says, is the Construction and application of the written contract between it and Bradley. Did Bradley seek equitable adjustment pursuant to Article 15 of the contract. The relevant portion of the Article provides:

“Should conditions encountered below the surface of the ground be at variance with the conditions indicated by the Drawings and Specifications, the Contract Sum shall be equitably adjusted upon claim by either party made within a reasonable time after the first observance of the conditions.”

There is no evidence that Bradley ever made a claim under Article 15 against Armeo until it was brought in as a party defendant by amendment of the complaint. This court held in Burton v. Steverson, 206 Ala. 508, 91 So. 74 (1921) that when the facts bearing on the matter are full and undisputed, what is a reasonable time is a question of law to be decided by the court. Here, about 14 months elapsed before Bradley made a claim against Armco. The trial judge found as a matter of law that Bradley did not act within a reasonable time under the terms of the contract. We agree.

Article 15 of the contract is not ambiguous, and it was the duty of the court to analyze and determine its meaning. C. F. Halstead Contractor, Inc. v. Dirt, Inc., 294 Ala. 644, 320 So.2d 657 (1975). Here, what was a reasonable time to seek equitable adjustment was a question for the court.

The executor raises other issues not pertinent to deciding the principal issue of this case, i. e. construction of Article 15 of the contract. Consequently, we will not discuss them.

AFFIRMED.

HEFLIN, C. J., and BLOODWORTH, ALMON and EMBRY, JJ., concur.


author: JONES, Justice. ALMON, Justice FAULKNER, Justice

text:
    David E. WEBSTER et al. v. James O. GUNTER et al.
    SC 1578.
    Supreme Court of Alabama.
    July 30, 1976.
    Kenneth L. Funderburk, Phenix City, for appellants.
    Cornett & Perdue, Phenix City, for appel-lees.
   JONES, Justice.

Mr. and Mrs. Webster appeal from an order of the Circuit Court of Russell County granting summary judgment against them. We reverse and remand.

On March 8, 1973, the Websters filed a bill in equity against the Gunters, seeking specific performance of a contract for the sale of land. Equitable relief was denied. On appeal to this Court, the trial Court was affirmed because of the reluctance of this Court to reverse an order based on the exercise of discretionary powers of the equity court. The majority of this Court reasoned that the trial Court’s discretion had not been abused due to the “uncertainty of description” issue made out by the evidence. See Webster v. Gunter, 293 Ala. 282, 302 So.2d 97 (1974).

. Subsequent to the affirmance of the judgment of the trial Court in Webster, the Websters, on November 20, 1974, filed a suit at law against the Gunters, alleging damages for breach of contract.

We note at the outset that the original case was filed as a bill in equity, seeking purely equitable relief of specific performance, prior to the effective date of the Alabama Rules of Civil Procedure which merged the courts of law and equity. Whether this procedural change would have effected a different result had the original suit been filed on or subsequent to July 3, 1973, we need not decide.

We agree with the appellant’s statement of the issue here presented:

“Where a Plaintiff filed a Complaint before the new Alabama Rules of Civil Procedure took effect, seeking only equitable relief in the form of ‘Specific Performance’ of a real estate sales contract and the Court denied all equitable relief sought, is the Plaintiff prohibited by the rule of res judicata from bringing any subsequent action for damages for the breach of the same contract?”

No inference is to be drawn from the phrase “before the new Alabama Rules of Civil Procedure took effect” that we would or would not reach the same result absent this phrase. We note this fact because the substantive law hereinafter set out is based in substantial part on the separation of the law and equity sides of the court.

The legal premise on which the substantive law dispositive of this issue is grounded is stated in Mialhi v. Lassabe, 4 Ala. 712, 714 (1843):

“Ordinarily, when a bill is filed for a specific performance and it is dismissed, nothing more is settled by the decree, than that the case is one in which equity will not interpose its extra-ordinary powers.”

This Court, in the recent case of Rhyne v. Martin, 292 Ala. 163, 290 So.2d 650 (1974), quoted from 1 Pomeroy’s Equity Juris-Pru-dence, 5th Ed. Section 237d, p. 436:

“The doctrine that equity, having once become possessed of a cause, will retain it for the purpose of administering full and complete relief, does not apply when the facts relied on to sustain the equity jurisdiction fail of establishment. The award of mere compensatory damages, which are almost always unliquidated, is a remedy peculiarly belonging to the province of the law courts, requiring the aid of a jury in their assessment, and inappropriate to the judicial position and functions of a chancellor. It may be stated, therefore, as a general proposition, that a court of equity declines the jurisdiction to grant mere compensatory damages, when they are not given in addition to or as an incident of some other special equitable relief, unless under special circumstances the exercise of such jurisdiction may be requisite to promote the ends of justice. This is especially true where such a course would operate to deprive a party of his constitutional right of a trial by jury.”

From this premise, then, evolved the legal doctrine (last reaffirmed in Rhyne) which has been in effect in Alabama since at least 1845:

Where equitable relief which is the basis of the complaint is denied, the court cannot retain jurisdiction and grant relief available at law. City of Huntsville v. Miller, 271 Ala. 687, 127 So.2d 606 (1958); Joiner v. Brightwell, 253 Ala. 569, 45 So.2d 709 (1950); Pritchett v. Wade, 261 Ala. 156, 73 So.2d 533 (1954); Nelson v. Lee, 53 So. 1023 (Ala.1910); Pond v. Lockwood, 8 Ala. 669 (1845).

It follows, therefore, that the case in equity is not res judicata to the subsequent case at law for damages, particularly where the trial Court’s denial of equitable relief is affirmed as not constituting an abuse of discretion for not interposing its extraordinary powers. See Dekle v. Vann, 284 Ala. 142, 223 So.2d 30 (1969).

REVERSED AND REMANDED.

HEFLIN, C. J., and BLOODWORTH, ALMON and SHORES, JJ., concur.

MADDOX, FAULKNER, EMBRY and BEATTY, JJ., dissent.

ALMON, Justice

(concurring specially):

“The doctrine of res judicata . embodies two main rules which may be stated as follows: (1) The judgment or decree of a court of competent jurisdiction on the merits concludes the parties and privies to the litigation and constitutes a bar to a new action or suit involving the same cause of action either before the same or any other tribunal (2) Any right, fact, or matter in issue, and directly adjudicated on, or necessarily involved in, the determination of an action' before a competent court in which a judgment or decree is rendered on the merits is conclusively settled by the judgment therein and cannot again be litigated between the parties and privies whether or not the claim or demand, purpose, or subject matter of the two suits is the same . .” 50 C.J.S. Judgments § 592, p. 11.

The distinction between the two rules is of importance in this case as it appears to explain the difference between the majority and the dissent. For clarity, I shall call the first rule “res judicata” and the second, “collateral estoppel.” The opinion of the majority is framed in terms of the first rule, res judicata, while the dissent’s opinion is framed in terms of the second, collateral estoppel.

The majority stated the issue as follows:

“Where a plaintiff filed a Complaint . seeking only equitable relief in the form of ‘Specific Performance’ of a real estate sales contract and the Court denied all equitable relief sought, is the Plaintiff prohibited by the rule of res judicata from bringing any subsequent action for damages for the breach of the same contract?”

As explained by Justice Jones, Rhyne v. Martin, supra, as well as the other cases cited, disposes of this issue. In Alabama, when equitable relief is denied, a court of equity may not grant relief available at law. Thus, Webster is not precluded by “res judicata” from a second action for damages based on contract. However, that does not answer the question of whether Webster is precluded by the doctrine of “collateral estoppel,” a question to which the dissent is addressed.

To clarify this question, I shall separate it into two questions, both of which have to be answered in the affirmative for the doctrine of collateral estoppel to apply. (1) Was the decision in Webster v. Gunter, supra, (Webster-1) rendered on the issue of certainty of description? (2) Is the issue of certainty of a description in regard to an action for specific performance the same as the issue of certainty of description in an action for breach of contract? (The rule of res judicata (collateral estoppel) is confined to those cases where parties to the two suits are the same, subject matter is the same, the identical point is directly in issue and the judgment must be rendered on that point. Byrd v. Fowler, 50 Ala.App. 596, 281 So.2d 647 (1973). Ivey v. Wiggins, 271 Ala. 610, 126 So.2d 469 (1961).)

One of the trial judge’s findings of fact was “that the description of the land to be conveyed, as to location, is uncertain.” Webster, supra, 293 Ala. at 287, 302 So.2d 97, 100. Another of his findings of fact was “that the contract is impossible for the defendants to perform as to quantity and quality of title.” Id. at 287, 302 So.2d 97, 100.

“Defendants cannot convey more than an undivided one-half interest in and to the' 199 acres of any part thereof. The owner of the remaining undivided one-half interest is unwilling to convey any part of her interest to the 199 acres, or any part thereof.” Id. at 287, 302 So.2d 97, 100.

The court also found “that the lien holder [mortgagee] is unwilling to release any part of the 199 acres, without payment in full of the unpaid mortgage balance due.” Id. at 287, 302 So.2d 97, 100. In this regard, the trial judge added the following:

“This Court cannot, therefore, order the defendants to convey a fee simple title. The Supreme Court in the case cited above Citronelle Turpentine Co. v. Buglig, 184 Ala. 404, 63 So. 951 (1913) speaking to this point stated:
“ ‘Where defendant cannot perform a contract without obtaining the consent of a third person, who is free to withhold his consent, and does withhold it, the decree will not be made.’ ” Id. 293 Ala. at 287, 302 So.2d 97, 100.

The original request for specific performance was for 70 acres in fee simple. For a decree of specific performance to have been made, the best the judge could have done would have been to order a conveyance of a one-half interest in 66.6 acres together with a further order that the seller of this one-half interest pay the mortgage held on the whole interest in 199 acres, of which the half interest in 66.6 acres was a part — and this is true even assuming that the land description was sufficient.

To the above findings the trial judge added the following law:

“The right to specifically enforce the performance of a contract is not absolute. Its enforcement in a measure, at least, rests in the sound discretion of the court, a judicial discretion, of course, to be exercised according to the principles of equity. It has been held that contracts which will be thus enforced must be fair, must be reasonable, and must be just, and not attended with excessive hardships or injustice. Courts of equity have frequently refused to enforce contracts when it appeared that they were founded on mistake or surprise to such an extent that their enforcement would be equitable.” Id. at 287, 302 So.2d 97, 101.

The case of Ivey v. Wiggins, 271 Ala. 610, 126 So.2d 469 (1961) illustrates why the decision in Webster, supra, was not necessarily rendered on the issue of certainty of description. Ivey is a wrongful death action against the driver-appellee of the vehicle which collided with an automobile in which plaintiff’s intestate was riding. The complaint charged negligence and wanton misconduct. In a prior suit the appellant had sued the appellee’s alleged employer. At the trial of the prior suit the jury found a general verdict for the employer. The issue in Ivey v. Wiggins, (Ivey-2) was whether the prior action against the alleged employer was a bar to an action against Wiggins, the alleged employee. The court held that it was not.

In Ivey-1 the issues were (1) whether there was an employer-employee relationship, and (2) whether the employee had been negligent. The general verdict for the employer indicated that either there was no employee-employer relationship or that there was no negligence by the employee, or that neither of these issues could be answered in the affirmative; however, the court could not determine which of these possibilities the decision was rendered on. Such being the case, it could not say that the judgment was rendered on the issue of the alleged employee’s negligence. Hence, the doctrine of collateral estoppel did not bar Ivey-2.

For the doctrine of collateral estoppel to apply in Webster-2, the decision in Webster-1 must have been rendered on the issue of whether the land description was certain. The judge in Webster-1 made three findings of fact, two of which would be irrelevant in a court of law, then rendered his judgment on the judicial discretion granted a court of equity. One of the findings of fact was that the description of the land was uncertain, but making a finding fact is not the same as rendering a decision on that issue.

The judge, sitting as a court of equity, rested his decision on the “sound discretion of the court.” He concluded that this was not an equitable contract; it was not a contract which is “fair, . . . , reasonable, . . . , just, and not attended with excessive hardships or injustice.” In other words, his decision was based on all three findings of fact, rolled into the concept of judicial discretion — a pinch of this and a dash of that.

In Ivey-2 the court could not decide what issue the judgment had been rendered on. Similarly, one cannot say that the judgment in Webster-1 was rendered on the issue of the certainty of the land description; the trial judge could have reached the same conclusion even if he had found that the land description was certain.

The second question is whether the issue of certainty of description in regard to an action for specific performance is the same as the issue of certainty of description in an action for breach of contract. Ordinarily, they would be the same. Alabama Mineral Land Co. v. Jackson, 121 Ala. 172, 25 So. 709 (1898). However, having concluded that the answer to the first question is in the negative, this question need not be addressed.

FAULKNER, Justice

(dissenting).

I respectfully dissent.

In the words of a famous American comedian, “It [the majority opinion] just don’t look right to me.”

The dispute in this case arose over this provision of the contract:

“THIS AGREEMENT: made and entered into this 6th day of January, 1973.
“WITNESSETH: . . . Seller . . . agrees to sell; and . purchaser agrees to purchase approximately 70 acres from Lot # 5, in the South West Quarter of 25, being in township 17 and range 27 of Russell County, Alabama.”

There is no provision in the contract designating who will determine which 70 acres is to be sold, nor is there any reference to something outside the contract where certainty may be attained. This court said in Alabama Mineral Land Co. v. Jackson, 121 Ala. 172, 25 So. 709 (1898):

“Under the statute of frauds the written agreement or memorandum must describe the subject-matter directly, or by reference to something outside of the writing, by resorting to which certainty may be attained.

* * * * * *

“A contract which is so uncertain in respect to its subject-matter that it neither identifies the thing by describing it, nor furnishes any data by which certainty of identification can be attained, is void as well at law as in equity, and is incapable of supporting a bill for specific performance.”

Proceeding to the question of res judica-ta, I find that uncertainty of the description was the principal issue in the equity case, and it will necessarily be the principal issue in the suit at law. That issue has been adjudicated and upheld in Webster. It cannot be relitigated. Corinth Bank & Trust Co. v. Lawler, 218 Ala. 83, 117 So. 620 (1928). Here I note the parties are the same; the subject matter is the same; the same point is directly in question, and judgment has been rendered on that point. Thus, res judicata applies. Bryan v. W. T. Smith Lumber Co., 278 Ala. 538, 179 So.2d 287 (1965); Ivey v. Wiggins, 271 Ala. 610, 126 So.2d 469 (1961); Byrd v. Fowler, 50 Ala.App. 596, 281 So.2d 647 (1973). There is no difference in the proper application of the doctrine of res judicata between a judgment at law and a decree in equity. Sims v. City of Birmingham, 254 Ala. 598, 49 So.2d 302 (1950).


text:
    OPINION OF THE JUSTICES.
    No. 227.
    Supreme Court of Alabama.
    July 28, 1976.
   To the Members of the House of Representatives

State Capitol Montgomery, Alabama 36130

Sirs and Madam:

We acknowledge receipt of House Resolution 261 adopted July 20, 1976 requesting our opinion relative to whether the passage of the Substitute House Resolution to Senate Joint Resolution 93 repealed Act Number 25, Third Special Session, 1975. Act Number 25 states: “That the two Houses shall meet in session on Tuesdays and Thursdays.” The Substitute House Resolution specifies Tuesday, July 20, as the day upon which the Legislature shall meet following adjournment on Thursday, July 8.

*Code of Alabama, Title 13, § 34 (1940) reads as follows:

“The governor by a request in writing, or either house of the legislature, by a resolution of such house, may obtain written opinion of the justices of the supreme court of Alabama, or a majority thereof, on important constitutional questions.” (Emphasis supplied.)

The Court is restricted, we respectfully point out, to questions of a constitutional nature, as this section indicates. In re Opinions of the Justices, 209 Ala. 593, 96 So. 487 (1923); In re Opinion of the Justices, 254 Ala. 177, 47 So.2d 655 (1950); Opinion of the Justices, 280 Ala. 692, 198 So.2d 269 (1967); Opinion of the Justices, 286 Ala. 156, 238 So.2d 326 (1970). We regret, therefore, that we must decline to respond to the question submitted to us as we observe no constitutional issue therein.

If we have erred in our observation, we invite the Legislature to resubmit the question, specifying any stated constitutional section to which it is thought the question refers and we shall be pleased to re-examine it. Therefore, we respectfully decline to render the advisory opinion.

Respectfully submitted,

HOWELL T. HEFLIN, Chief Justice

JAMES N. BLOODWORTH

JAMES H. FAULKNER

RENEAU P. ALMON

JANIE L. SHORES

ERIC EMBRY

SAM A. BEATTY Associate Justices

MADDOX, J., not sitting.


author: PER CURIAM. Faulkner, Justice

text:
    Lester A. STRICKLAND v. Dr. Norman BERGER et al., etc.
    SC 1512.
    Supreme Court of Alabama.
    Aug. 6, 1976.
    Gibbons, Stokes & Clark, Mobile, for appellant.
    Pillans, Reams, Tappan, Wood, Roberts & Vollmer and Abe Philips, Mobile, for appel-lees.
   PER CURIAM.

Strickland, a non-tenured school teacher, appeals from a judgment of the Mobile County Circuit Court, affirming the actions of the Board of School Commissioners of Mobile County, regarding non-renewal of his employment contract. We reverse.

Strickland was employed by the School Board in October, 1972, under a written contract, and taught the remainder of the school year. He was re-employed by written contract for the 1973-74 school year. His contract was not renewed for the 1974-75 year.

On May 22, 1974, at its regular meeting, the School Board, acting on the recommendation of the Personnel Division of the School System, voted not to renew Strickland’s contract for the coming year. This action was 9 days before the close of the current term ending May 31. On May 23, the Assistant Superintendent in charge of the Personnel Division, wrote a letter to Strickland advising him that the School Board had not renewed his employment contract. This letter was addressed to Strickland at 3158 Seabreeze Road, Mobile, Alabama. He testified that he did not receive the letter prior to May 31; that during this time he was living in an apartment at 4003-B Seabreeze Road. However, he testified he had received other mail addressed to him at the incorrect address within a matter of two to five days after they were dated. He further testified that he received the May 23 letter a few days after May 31.

Strickland, having “wind that the axe was about to fall,” reviewed his personnel file on May 24, and did not find a copy of the May 23 letter in it. But, on a similar mission on or about June 4, he discovered a copy of the May 23 letter in his file. Eventually, he obtained a copy of this letter from the custodian after June 4 or 5.

Litigation began when Strickland filed a petition for mandamus against the School Board, the individual members, the Superintendent of the School System, and other administrative employees. The petition alleged arbitrary, capricious, unlawful, and unjust conduct. The defendants responded to a show cause order, and extraneous parties were stricken. The issue was narrowed to whether or not the School Board failed to comply with the requirements of Title 52, § 361(2) of the 1958 Code for the non-renewal of the contract of a non-tenured teacher. Under this section the contract of a teacher is deemed renewed unless the School Board “[S]hall cause notice in writing to be given said teacher on or before the last day of the term of the school in which the teacher is employed . . . ”

The trial court granted the School Board’s motion for a directed verdict because it found: (1) that the School Board had met its statutory obligation [imposed by Title 52, § 361(2), Code of Alabama, 1940 (Recompiled 1958)] to “cause notice in writing to be given” Strickland before May 31, 1974, of the action of the Board not to renew his contract of employment for the ensuing year; (2) that Strickland had admitted that “he had actual knowledge of the action of the Board prior to” May 31, 1974; and (3) that Strickland had “acquired from other sources actual knowledge of the formal action of the School Board.”

We have been unable to find in the record sufficient evidence to substantiate these findings.

With respect to the first finding, we opine the learned trial judge was mistaken in his assertion from the bench “that the notice was not given prior to the last day of the school term would not be fatal.” The statute would become meaningless if it is interpreted to mean that the Board discharges its responsibility when it takes action and sends a letter by mail to the nontenured teacher. It must show the notice was given to the teacher before the end of the term in order for the statute to have any meaning whatsoever. The evidence will not support the trial judge’s first finding that the Board discharged its statutory obligation. The evidence will simply admit of the conclusion that the Board sent the notice to Strickland at an incorrect address but it was not timely received, for aught appearing.

As to the second finding by the trial court that Strickland “admits that he had actual knowledge,” we find no evidence at all in the record to substantiate this.

As to the third finding, there is at most the suggestion in the Board’s brief that, because Strickland admits he talked to Dr. Hanebuth about his case, and because Dr. Hanebuth was present at the School Board meeting when the action was taken, Dr. Hanebuth must have told him of the action. As this case went off on directed verdict, there was, of course, no opportunity for Dr. Hanebuth to be called to testify for the Board on this matter.

We conclude that, notwithstanding the ore tenus rule, the trial judge’s findings were plainly and palpably erroneous, and he was in error in directing judgment for the School Board.

REVERSED AND REMANDED.

HEFLIN, C. J., and BLOODWORTH, ALMON and EMBRY, JJ., concur.

FAULKNER, Justice (concurring specially)-

Faulkner, Justice

(concurring specially).

I concur with the holding that the evidence is not sufficient to support the trial court’s finding on notice.

The issue, to me, is whether the School Board complied with the statute by mailing the letter informing Strickland that he was fired. (I realize the term “contract not renewed” is contemplated in the statute, but that is a soft glove term for a bare-knuckled fact, i. e., “You’re fired.”) Is a mailed letter the mode of service of notice contemplated by the statute? I would hold that it is not. This court stated in Naro v. State, 212 Ala. 5, 101 So. 666 (1924):

“It is a well-understood general rule that, where a statute directs notice to be given, and is silent as to the manner of giving it, persona] service is necessary.”

If the Legislature had contemplated notice in any manner other than by personal service, it would have so provided. It would have been a simple matter for the Assistant Superintendent or Personnel Officer to hand Strickland a copy of the May 23 letter when he reviewed his file on May 24.

I would hold that giving notice to a school teacher, under § 361(2), Title 52, that his or her contract of employment is not to be renewed by the School Board, required notice by personal service upon the teacher. I do not intend to infer that service must be performed by the sheriff, or other lawful officer. On the other hand, any agent of the Board could hand the teacher the notice of non-renewal of contract. Mailing a letter of notice by regular mail service is a poor method of complying with the statute.


author: BLOODWORTH, Justice.

text:
    Peter D. PETROFF, etc., et al. v. James B. ARBONA et al.
    SC 1642.
    Supreme Court of Alabama.
    Aug. 6, 1976.

      Humphrey & Smith, Huntsville, for appellant.
    Ford, Caldwell, Ford & Payne and Stanley Rodgers, Huntsville, for appellees.
   BLOODWORTH, Justice.

Plaintiff below, Peter Petroff, trustee in bankruptcy for Care Electronics, Inc., appeals from entry of summary judgment in favor of defendants below, James Arbona and CMP Corporation. We reverse and remand.

Care is a Texas corporation which was formerly engaged in the manufacture and distribution of electric heart monitoring equipment. Care’s operating headquarters were located in Huntsville, Alabama, until March 7, 1973, when S. Lyle, its vice president and general manager, terminated operations due to Care’s inability to purchase necessary supplies and to meet its payroll. Care is a wholly owned subsidiary of Elec-tro/Data, Inc., which went into bankruptcy in April 1973. On May 22,1973, an involuntary petition was filed and Care was declared bankrupt.

In tracing the assets of the bankrupt Care, the trustee discovered an invoice from Care, dated April 11, 1973, purporting to represent a sale of equipment to defendant CMP in the amount of $39,686.00. Other business records showed a sale of other equipment to Borgess Hospital in Kalamazoo, Michigan. Borgess apparently was not satisfied with the equipment and had returned it. The equipment was removed from Borgess on April 12, 1973, by defendant Arbona, who signed a receipt for it as “President, CMP Corp.” Arbona was named as salesman in the original transaction between Care and Borgess and has stated in affidavit and deposition that Lyle, Care’s general manager, had instructed him to remove the equipment and to deliver it to Syntonic Technology, Inc., for refurbishment and installation in another hospital. In his affidavit, Arbona stated that he did as Lyle had instructed and that he also arranged a sale of the equipment to another hospital and received a 20 percent commission on the sale. He further stated that CMP did not participate in the transaction and did not receive any proceeds from it. He produced documents that showed that CMP was not incorporated until June 11, 1973, about two months after the date of the invoice to CMP and of the receipt for the equipment from Borgess. In his deposition, Arbona stated that before Care ceased operations he had discussed with certain Care officers the possibility of his forming CMP Corporation, but he said that when he signed the receipt as “President, CMP Corp.” he was playing “a pompous role” and that “it was just an ego trip.” The Borgess equipment was valued at $25,690.00. The trastee filed suit against Arbona and CMP to recover the amounts allegedly owed to Care from these transactions.

In November 1974, the trial court entered summary judgment for defendants. In January 1975, the court granted defendants’ motion for a protective order that R. Bigoney, Secretary-Treasurer of CMP and former employee of Care, not be required to produce the names of the stockholders of CMP. In February 1975, the court granted the trustee’s motion to set aside the summary judgment and to dismiss the cause without prejudice. In March 1975, the court reinstated the summary judgment for defendants. In April 1975, the trustee moved for the court to set aside its summary judgment order of March 1975 and presented new evidence. That motion was overruled by operation of law. Rule 59.1, ARCP.

The trustee appeals from the reinstatement of summary judgment and from the overruling of its motion to set aside the summary judgment. He argues that there is at least a scintilla of evidence supporting his claim and that there are genuine issues of material fact, even if the new evidence offered is not considered. He also argues that discovery of the ownership of CMP Corporation should have been allowed in order that financial relationships between CMP and persons with an interest in Care might be known.

Defendants Arbona and CMP contend that the trustee has had ample opportunity for discovery and that the evidence offered by the trustee has been so completely discounted by defendants’ evidence that there is no genuine issue remaining as to any material fact. Furthermore, defendants argue that the evidence on which the trustee asserts his right to recover is not admissible, amounting only to speculative statements and suspicions, and is not sufficient to prevent summary judgment.

Under Rule 56(c), ARCP, summary judgment

“. . . shall be rendered forthwith if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law. . . .” [Emphasis supplied.]

Thus, the issue before this Court is whether a “genuine issue as to any material fact” is presented by the evidence.

The trustee has produced an invoice which according to his affidavit he received along with other records of Care from the former president of Care. That invoice indicates a sale of equipment to CMP Corporation. In an attempt to prove that the invoice does not represent an actual sale of equipment to CMP, defendants produced the affidavit of Mary Hawkins, former Director of Manufacturing of Care. She stated: that since the invoice in question does not refer to equipment by serial number it is not a legitimate invoice; that she has no knowledge of a shipment to CMP; and, that to her knowledge there was no equipment available in the plant for shipment as of March 21, 1973, when she delivered the key to the plant to the owner of the building. Other materials offered to counter the invoice consist of statements by Arbona, the President of CMP, denying that CMP received the invoice or the equipment and by R. Bigoney, Secretary-Treasurer of CMP, denying knowledge of any sale by Care to CMP and of the invoice in particular. Defendants further point out that the trustee has produced only the customer’s copy of the invoice and that CMP was not incorporated until two months after the date of the invoice.

Defendants have not borne their burden of showing that there is “no genuine issue” as to the validity of the invoice. Hawkins’ affidavit does not purport to cover the availability of equipment not at the plant, nor does she purport to have any knowledge concerning the operations of Care after her departure on March 21,1973. Although she purports to have personal knowledge of how invoices were made out while she was working there, her affidavit clearly could provide no evidence concerning procedures in effect on the date of the invoice, April 11, 1973. The denials of Ar-bona and Bigoney more properly raise issues of fact than resolve them.

Further, defendants have not borne their burden of showing that there is “no genuine issue” as to whether Arbona received the equipment from Borgess Hospital for CMP. He signed for the equipment as “President, CMP Corp.,” an office he now holds. The only evidence that Arbona offers to counter the implications of his signature is his denial that he received the equipment as “President, CMP Corp.” He stated in his affidavit that he was in fact acting as a representative of Care. His explanation of the manner in which he signed for the equipment is that he was on an “ego trip” and playing “a pompous role”! He denied in his affidavit that CMP has ever had possession of property belonging to Care. Again, Arbona’s statements serve more to raise genuine issues of fact, than to resolve them.

That CMP had not been incorporated at the time of either of the alleged transactions does not necessarily preclude liability on its part, since under proper circumstances a corporation may after its organization adopt or ratify the contracts of its promoters. See Navco Hardwood Co. v. Bass, 214 Ala. 553, 108 So. 452 (1925); 18 C.J.S. Corporations § 122 (1939). It is apparent from Arbona’s statements that he may be regarded as a promoter of CMP Corporation.

The protective order that Bigoney, the Secretary-Treasurer of CMP, not be required to produce the names of the stockholders of CMP was improperly granted. The trustee stated in his affidavit that he had information that certain parties who had a stake in Care also had a financial interest in CMP. In an action which is part of a trustee in bankruptcy’s efforts to trace the bankrupt’s assets, discovery of the interrelationships of the various parties may very well be relevant itself or at least may lead to the discovery of relevant and admissible evidence. See Rule 26(b)(1), ARCP.

We hold that summary judgment and the protective order were improperly granted. We reverse and remand.

REVERSED AND REMANDED.

HEFLIN, C. J., and FAULKNER, AL-MON and EMBRY, JJ., concur.


author: HEFLIN, Chief Justice.

text:
    STATE of Alabama v. Louie C. NEWBERRY and Henrietta Newberry.
    SC 1804.
    Supreme Court of Alabama.
    Aug. 6, 1976.

      William T. Denson, Goodwater, for appellant.
    Robert J. Teel and Prank S. Teel, Rockford, for appellees.
   HEFLIN, Chief Justice.

This is an appeal by the State from a condemnation evaluation case.

Landowners Louie C. Newberry and Henrietta Newberry appealed to the circuit court the award by commissioners in the probate court. At the pre-trial hearing it was stipulated that the State had the right to condemn the lands and the only issue for trial was the amount of damages and compensation, if any, to which the landowners were entitled. A jury verdict and judgment on Nov. 15, 1975, placed damages at $95,000.00. On November 14, 1975, the State filed a motion to abandon condemnation proceedings. On December 3, 1975 the State filed a motion for new trial. On January 6, 1976, the trial court overruled the State’s motion for new trial. The State filed notice of appeal within the 42-day appeal period (Rule 4, ARAP), on February 16, 1976, before the trial court ruled on the motion to abandon condemnation proceedings.

The issues presented for review appear as follows in State’s brief:

I.

“Whether the State of Alabama can abandon a condemnation project due to the size of a jury award after the condemnation order has been signed by the Probate Court and Damages paid into the Probate Court and the State has obtained the right to enter into and upon the property condemned.
Alabama Power Company vs. Nichols, 213 So.2d 912, 282 Alabama 704 (1963)
Jefferson County vs. Adwell, 103 So.2d 143, 267 Alabama 544 (1956)
Southern Natural Gas Company vs. Ross, 275 So. 2nd 143, 290 Alabama 195 (1973)”

II.

“Whether a jury award in a condemnation case can stand when the damages are not correctly proven.
Scott Paper Company Vs. State of Alabama, 197 So. 2nd 272, 280 Ala. 621 (1967)”

This court will consider the second issue first. The State’s expert witness was Phillip Fisher, a qualified expert appraiser of real estate. He placed the value of the landowners’ property prior to taking at a figure of $37,065 and after the highway was built the value of the landowners’ property would be $630.00. The landowners’ witnesses’ testimony of the value of the land before the taking varied from $94,192 to $110,000. The witnesses for the landowners did not express opinions as to the value of the land after the taking.

The following from Scott Paper Company v. State, 280 Ala. 621, 197 So.2d 272 (1967), is quoted in the brief of the State of Alabama:

“Measure of damages for taking of portion of entire tract for highway purposes is difference between reasonable market value of entire subject property immediately before the taking, and reasonable market value of the property remaining after the acquisition, taking into consideration any damages or enhancement arising from planned construction.”

The State contends that the landowners’ evidence was not sufficient to establish damages because none of the witnesses for the landowners expressed any opinion as to the value of the remaining lands after the taking.

There is no rule that prohibits a party from proving part of its case by testimony by a witness appearing on behalf of an opposing party.

The State in brief mentions an excessive jury award and damages; however, the motion for new trial did not raise this issue. Since the trial judge did not have an opportunity to act on the issue of excessive damages this court will not consider that issue on appeal. State v. Ferguson, 269 Ala. 44, 110 So.2d 280 (1959); State v. Graf, 280 Ala. 71, 189 So.2d 912 (1966).

The judgment of the trial court and the overruling of the motion for a new trial by the trial court is affirmed.

The motion to abandon the condemnation proceedings does not allege the reason for such motion. In brief the State contends the reason was. excessive damages. The appeal in this case was taken within the 42-day appeal period as allowed by the Alabama Rules of Appellate Procedure and before the trial court ruled on the motion to abandon the condemnation proceedings.

The State filed a brief in support of its motion to abandon condemnation on January 28, 1976 and the landowners filed their brief in opposition on February 3, 1976. At the time that the appeal was taken on February 16, 1976 the trial court had not ruled on that motion. The trial court felt that it could not rule because its jurisdiction had been divested by the appeal. This court is a court of appellate review and will not entertain review proceedings until after the trial court has ruled. 2 Ala. Digest Appeal & Error, <s=» 242(1).

AFFIRMED.

BLOODWORTH, FAULKNER, ALMON and EMBRY, JJ., concur.


text:
    Everett L. ALMON v. William Jack BYRD and Margaret L. Byrd.
    SC 1882.
    Supreme Court of Alabama.
    Aug. 6, 1976.

      J. Wilfred Tucker, Cullman, for appellant.

      Douglas Corretti and Samuel Maples, Birmingham, for appellees.
   BLOODWORTH, Justice.

Plaintiff, a judgment creditor, appeals from dismissal of an action to set aside a deed and to establish a lien on property allegedly conveyed by the judgment debtor to his wife for the purpose of defrauding the judgment creditor. We reverse and remand.

Plaintiff filed a complaint alleging the following: that plaintiff obtained a consent judgment against W. J. Byrd, the judgment debtor, in federal court in 1959; that on July 28, 1975, plaintiff obtained an order in federal court reviving the judgment; that on the same day, the judgment debtor Byrd executed and recorded a deed to his wife which purported to convey to her all his right and interest in their residence property; that the deed was totally without consideration and was executed for the purpose of defrauding the judgment creditor of his security, viz., his lien on the property; that Byrd’s wife was fully aware of all the facts alleged in the complaint, and that she conspired with her husband to defraud plaintiff.

Defendants, the judgment creditor and his wife, filed a motion to dismiss the complaint. The trial court granted the motion for failure to state a claim upon which relief can be granted. Rule 12(b)(6), ARCP.

The first ground for dismissal is that “it affirmatively appears on the face of the Plaintiff’s Complaint that judgment of the Plaintiff . . . was not filed for record in the Office of the Judge of Probate of Jefferson County, Bessemer Division, and that the Plaintiff had no lien on the property of the Defendants.”

Defendants argue that the filing of the judgment with the probate judge is a circumstance constituting the alleged fraud which should have been alleged in accordance with Rule 9(b), ARCP. Defendants cite no authority to support this proposition, but seem to assume that a creditor must have an established lien before he can seek relief for a fraudulent conveyance. That assumption is not the law in Alabama.

Title 20, § 7, Code of Alabama, provides that

“[a]ll conveyances, or assignments in writing, or otherwise, of any estate or interest in real or personal property . made with intent to hinder, delay, or defraud creditors, purchasers, or other persons of their lawful suits, damages, forfeitures, debts, or demands . are void.”

An action to set aside a fraudulent conveyance may be brought even though the debt, claim, or demand has not been reduced to a judgment. Roddam v. Martin, 285 Ala. 619, 622, 235 So.2d 654 (1970). Would the rights of a creditor be diminished because he has reduced his claim to a judgment? Clearly, not.

Furthermore, under Title 7, § 897, “ . . . [a] creditor without ,a lien may file a bill in equity to discover, or to subject to the payment of his debt, any property which has been fraudulently transferred or conveyed, or attempted to be fraudulently transferred or conveyed by his debtor.” [Emphasis supplied.]

“Creditor without á lien” includes a judgment creditor without a lien. Wooten v. Steele, 109 Ala. 563, 565, 19 So. 972 (1896). This statute has been applied to actions to set aside fraudulent conveyances., E. g., Roddam v. Martin, supra; Wooten v. Steele, supra.

These authorities would seem to make it clear that a judgment creditor need not have an established lien before he can bring an action to set aside a fraudulent conveyance. If the law were to the contrary, a judgment debtor could prevent his judgment creditor from subjecting his property to payment of the debt by conveying it before the judgment creditor could file his judgment. See Title 7, §§ 584, 585. Since having a lien is not a condition precedent to a judgment creditor’s bringing an action to set aside a fraudulent conveyance, the acquisition of a lien by filing the judgment is not a circumstance constituting the fraud which needs to be stated with particularity.

In other circumstances, an allegation that the judgment has been filed might serve as an allegation that the transferee had actual or constructive notice of the judgment creditor’s claim. However, in this case, the creditor has alleged that the transferee, the debtor’s wife, was aware of the judgment creditor’s claim and that she conspired to defraud him. That allegation of notice is sufficient. Moreover, the judgment creditor has alleged that the deed was totally without consideration, i. e., that the conveyance was voluntary. Where the conveyance is voluntary, it is not necessary to show that the grantee participated in the actual fraud. Plann v. Morris, 239 Ala. 176, 179, 194 So. 518 (1940).

Defendants’ second ground for dismissal, viz., “that it affirmatively appears on the face of the Plaintiff’s Complaint that if the judgment of the Plaintiff’s was obtained on April 3, 1959, . . . there was no effort on the part of the Defendants to defraud the Plaintiff in any way,” is somewhat obscure. Defendants appear to be arguing that the judgment debtor’s failure to convey the property sooner affirmatively shows that he was not trying to defraud the creditor when he did convey. If that fact has any significance, it is relevant on the question of the debtor’s intent. It does not, however, negate intent to defraud as a matter of law and does not provide a basis for dismissal under Rule 12(b)(6).

Defendants’ third ground for dismissal is “that the Plaintiff’s Complaint fails to state a cause of action against either or both of the Defendants.” Their fourth ground is “that Plaintiff’s complaint fails to allege any fraud by the Defendants on the Plaintiff.” Both of these grounds seem to be based on the contention that plaintiff has failed to state with particularity the circumstances constituting the alleged fraud, as required by Rule 9(b), ARCP.' As already noted, defendants contend that filing of the judgment is a circumstance constituting the alleged fraud and should have been stated with particularity. They point to no other allegation that should have been made by plaintiff.

Rule 9(b), ARCP, provides,

“ . . .In all averments of fraud or mistake, the circumstances constituting fraud or mistake shall be stated with particularity. Malice, intent, knowledge, and other condition of mind of a person may be averred generally.”

As pointed out in the Committee Comments, this rule

“ . . . is a qualification of the generalized pleading permitted by Rule 8(a). But this special requirement as to fraud and mistake does not require every element in such actions to be stated with particularity. It simply commands the pleader to use more than generalized or conclusory statements to set out th.e fraud complained of. The pleading must show time, place and the contents or substance of the false representations, the fact misrepresented, and an identification of what has been obtained. While the requisites of good pleading in an action for fraud and mistake are thus practically the same as under present Alabama decisions, the present rule of construction against the pleader does not apply under these rules. See Rule 8. Thus it should be expected that the courts will strive to find the details necessary for the sufficiency of such a complaint, if the pleading gives fair notice to the opposing party whereas heretofore the same pleading would have been held insufficient. . . . ”

Plaintiff’s complaint states the existence of the judgment debt, the location of the property conveyed, the date of the conveyance, the alleged intent, the absence of consideration, the relationship of the grantor and the grantee, etc. What more could plaintiff have stated as to the circumstances constituting the alleged fraud without being charged with pleading evidence?

We conclude that the judgment creditor’s complaint stated a claim upon which relief can be granted and stated the circumstances constituting the alleged fraud with sufficient particularity. We reverse and remand.

REVERSED AND REMANDED.

HEFLIN, C. J., and FAULKNER, SHORES and EMBRY, JJ., concur.

      . Defendants and the trial court assume that the appropriate method for enforcing Rule 9(b) is a motion to dismiss under Rule 12(b)(6). This assumption would appear to be based on the practice of using a demurrer to test the sufficiency of allegations of fraud prior to the adoption of the Alabama Rules of Civil Procedure. For purposes of deciding this case, we do not question this assumption, but we refer the reader to Wright & Miller, Federal Practice and Procedure: Civil § 1300, for a discussion of the problem.


author: BRADLEY, Judge.

text:
    ALABAMA STATE TENURE COMMISSION v. FRANKLIN COUNTY BOARD OF EDUCATION.
    Civ. 833.
    Court of Civil Appeals of Alabama.
    Aug. 4, 1976.

      William J. Baxley, Atty. Gen. and Carol Jean Smith, and Joel E. Dillard, Asst. At-tys. Gen., for appellant.
    Pine, McDowell & Mansell, Russellville, for appellee.

       KENNETH INGRAM, Circuit Judge, sitting by special appointment of the Chief Justice.

   BRADLEY, Judge.

This is an appeal from the grant of a writ of mandamus by the Circuit Court of Franklin County. The petition for writ of mandamus was brought by appellee, Franklin County Board of Education, to review the action of appellant, the State Tenure Commission, in overruling the decision of appellee to transfer a teacher from one school to another within the Franklin County system. We reverse.

Mrs. Ruby S. Bradford was employed by the Franklin County Board of Education (hereinafter Board) during the school year 1974-75 as a classroom teacher at the East Franklin Elementary School. She was at that time a tenured teacher with the Board and held continuing service status under the Teacher Tenure provisions of Chapter 13, Title 52, Code of Alabama 1940 (Re-comp. 1958).

At a regular meeting of the appellee Board held on April 25, 1975, the Board considered and approved the recommendation of the principal of East Franklin Elementary School that Mrs. Bradford be placed in another school for the next school year. Mrs. Bradford was informed in a letter from the superintendent of the appel-lee Board dated April 28, 1975 that the trustees of East Franklin Elementary School had requested that she not return to her responsibilities at the school. On May 13, 1975 she was told that she had been assigned to Tharptown Junior High School for the following school year; no reason was given for the transfer.

Mrs. Bradford duly objected to the transfer and requested a hearing. She was notified that a hearing would be provided, and'that she could be represented by counsel, but that she would have to pay the cost involved in obtaining and serving subpoenas to have witnesses testify in her behalf. This notice did not state the Board’s reasons for the transfer, nor was Mrs. Bradford ever provided with such reasons before the hearing.

The hearing before the Board was held on May 30, 1975. Mrs. Bradford appeared in person and was represented by counsel but did not present witnesses to testify on her behalf because of the expense involved. After refusing several offers by the Board to continue the hearing so that she could obtain witnesses at the Board’s expense, Mrs. Bradford’s attorney sought to ascertain the reasons for her transfer “so that we will be advised as to how to conduct this hearing.” The principal of the East Franklin Elementary School was called as an adverse witness to determine the nature of the reason for her transfer; no other witnesses were called on her behalf and she did not testify. At the conclusion of the hearing, the Board voted to uphold Mrs. Bradford’s transfer to Tharptown Junior High School.

Mrs. Bradford appealed the Board’s action to the State Tenure Commission. The Commission overturned the Board’s decision on the ground that it violated the provision of Title 52, § 356, Code of Alabama 1940 (Recomp.1958) requiring that a teacher being transferred be furnished the reasons for the proposed transfer within five days of the hearing.

The Circuit Court of Franklin County, in granting the Board’s petition for writ of mandamus from the Tenure Commission’s ruling, found that any defect in notice was waived by Mrs. Bradford’s appearance at the hearing on May 30th and her refusal of the Board’s offer of a continuance.

The questions presented for decision by this appeal are whether a teacher contesting a proposed transfer under Title 52, § 356 can waive that statute’s requirement that the employing board furnish such teacher with a written statement of reasons for the proposed transfer at least five days prior to the hearing, and if so whether Mrs. Bradford waived that requirement by refusing the Board’s offer of a continuance and proceeding with the hearing. We hold that a teacher contesting a proposed transfer under Title 52, § 356, Code of Alabama 1940 (Recomp.1958) cannot waive the requirement that she or he be given a written statement of the reasons for the proposed transfer. Thus, we do not reach the second issue.

Title 52, Sections 355 and 356, set forth the procedure which must be followed by a school board in transferring a tenured teacher and by the teacher in contesting the transfer. Section 355 provides that the school board must give the teacher written notice of its intent to transfer the teacher. Section 356 provides that after receiving notice of the board’s intent to effect a transfer, the teacher may request a hearing before the board. If the teacher does request a hearing, then the statute further requires:

“At least five days prior to the hearing the board shall furnish to the teacher by mailing by United States registered mail with postage prepaid thereon to said teacher’s last known address the time and place of said hearing and the reasons for the proposed transfer.” (Emphasis added.)

The statutes speak of different kinds of notice, namely notice of intent by the board to transfer, notice of the time and place of the hearing before the board, and notice of reasons for the transfer. This court has held that because the purpose of sections 355 and 356 is to protect the teacher, the statutory requirements as to form may be waived, State ex rel. Zeanah v. Berger, 55 Ala.App. 246, 314 So.2d 700 (1975), and that the substantive and procedural requirements of both statutes are nonetheless met, Alabama State Tenure Commission v. Board of School Commissioners, 57 Ala.App. -, 332 So.2d 724. We did not intend the broad language of these decisions to encompass all of the notice provisions contained in the two statutes.

Both Berger and Board of School Commissioners involved the same transfer incident. There a teacher was notified by the school board that he had been reassigned to a different school. This court rejected the board’s contention that the notification of reassignment should be treated as notice of transfer required by section 355, but held that the teacher’s demand for a hearing before the board and his subsequent attendance and participation at the hearing constituted a waiver of the defective notice. These two cases hold only, with regard to waiver, that where the board has sent a defective notice of intent to transfer, the teacher may waive the defect by requesting a hearing before the board pursuant to section 356. In such instance it is clear that the teacher has not been harmed by the defect since he or she has received the information that the notice is intended to convey, i. e., that the board contemplates a transfer of the teacher, and has a full opportunity to contest the transfer under the procedure provided by section 356.

However, the requirement that the board must state in writing its reasons for the transfer is notice of a much different nature. The purpose of this notice is to preserve the fairness of the hearing itself. It should not need stating that the right to a hearing includes not only the right to present evidence, but also a reasonable notice of the claims to be considered at the hearing. Morgan v. United States, 304 U.S. 1, 18, 58 S.Ct. 773, 776, 82 L.Ed. 1129 (1938); Dark’s Dairy v. Alabama State Milk Control Board, 278 Ala. 693, 703, 180 So.2d 527 (1965).

The purpose for the requirement under § 356 that notice of reasons for transfer be given is to allow the teacher to examine witnesses and offer testimony in order to test the truth and validity of the reasons, and to determine whether such reasons serve a legitimate or reasonable administrative purpose or whether they are an abuse of administrative discretion and thus arbitrary and unjust. Tenure Commission v. Anniston City Board of Education, 57 Ala.App. 198, 326 So.2d 760, 762 (1976). Otherwise, the hearing is a meaningless formality without substance.

The kind of notice of reasons that is required under section 356 is the same as that in section 359 of Title 52, governing the mode of cancellation of employment contracts, namely a statement in writing detailing the reasons for the proposed board action. Although this court has recognized that the legislature did not intend that teacher transfers and cancellations be treated alike, DeCarlo v. Tarrant City Board of Education, 52 Ala.App. 220, 224, 291 So.2d 155 (1974), there is no distinction with respect to the requirement that the teacher be told of the reasons for the board’s action. That contention was put to rest in Tenure Commission v. Anniston City Board of Education, supra, where the court rejected the school board’s contention that because of the differences in section 355 (pertaining to transfer of teachers) and section 358 (pertaining to dismissal of teachers), the board was not required to have reasons for its transfer of a teacher.

Appellee Board does not dispute that it was required to inform Mrs. Bradford of its reasons for transferring her. Rather it contends that she waived her right to a written statement of reasons mailed within five days prior to the hearing by appearing in person and through counsel at the hearing and electing to proceed with the hearing after the Board had offered to continue the hearing to another time. The offered continuance was not for the purpose of giving notice of reasons. We are referred to decisions in other jurisdictions where in similar circumstances a waiver of the statutory notice of reasons requirement was held to have occurred under teacher tenure statutes such as ours.

We do not consider such rule applicable under our statute. County Board of Education v. Oliver, 270 Ala. 107, 116 So.2d 566 (1959), held that the teacher tenure law contemplates the rudimentary requirements of fair play, including information as to the charges made. There the teacher received written notice of the proposed cancellation of her contract stating that her performance had been “unsatisfactory and incompetent.” The court said that the term “incompetent” was too vague to give sufficient notice and therefore the school board had acted incorrectly in cancelling the teacher’s contract. The fact that she had a hearing did not cure the defective notice. “[The teacher] was entitled to a detailed statement of the reasons why the County Board of Education had concluded that she was incompetent.” 270 Ala. at 109, 116 So.2d at 567.

While it is true that some statutory rights may be waived, and indeed the right to a hearing at all under section 356 may be waived simply by failing to request a hearing, once a teacher has chosen to have a hearing, the right to a fair hearing may not be waived. Notice of the school board’s reasons for transferring a teacher are so essential to preserving the integrity of the hearing that failure to give notice of reasons for transfer results in lack of due process. We hold, therefore, that a teacher must be given written notice of reason for transfer prior to hearing. We do not need to decide under the facts of this case whether the form or time of notice may be waived.

The judgment of the trial court is reversed and the cause is remanded to the trial court for the entry of a judgment affirming the order of the State Tenure Commission.

REVERSED AND REMANDED WITH DIRECTIONS.

WRIGHT, P. J., and INGRAM, J., concur.


author: HOLMES, Judge.

text:
    Walter OWENS v. Marion WALLACE.
    Civ. 808.
    Court of Civil Appeals of Alabama.
    July 21, 1976.
    Von G. Memory, Montgomery, for appellant.
    Robert S. Milner, Reneau & Enslen, Wet-umpka, for appellee.
   HOLMES, Judge.

This is a suit for work and labor. The issue is whether the suit was due to be dismissed, as the trial court found, because of the applicability of the principle of res judicata.

In July of 1974, the plaintiff, appellant here, filed the following complaint in the Elmore County Law and Juvenile Court:

“IN RE:
“WALTER OWENS ’
“VS.
“MARION WALLACE
“Plaintiff claims of the defendant the sum of $1,318.90 for work or labor done by the plaintiff at the request of Marion Wallace on a building or improvement on the following described property, viz.,
Lot 25, Plat B, Broadmoor Estates, Millbrook, Elmore County, Alabama. As same is shown by a plat made by P. J. Jennings, Registered Land surveyor, dated September 16,1965 (Revision No. 1, dated April 6, 1966) recorded in Probate Office of Elmore County, Alabama iri' Plat Book 5, at page 112.
which said indebtedness accrued on, to-wit: the 15th day of December, 1973, and is now due and unpaid.
“Plaintiff alleges that the above described property is the property of the defendant, Marion Wallace, that said work or labor was done or performed on said buildings or improvement on said land under and by virtue of a contract with the said Marion Wallace, the owner or proprietor thereof; that within six months after the said indebtedness had matured, on, to-wit: the 8th day of January, 1974, plaintiff did file in the office of the Judge of Probate in the county wherein said land is situated, verified statements as required by law, copies of which are attached hereto, made a part hereof, and marked Exhibits ‘A’ and ‘B’, wherefore, plaintiff claims a lien for said amount upon said land and buildings and improvements situated thereon.”

In October of 1974, after argument before the court the defendant-appellee’s motion to dismiss the aforementioned complaint was granted. No appeal was taken from this action of the Law and Juvenile Court of Elmore County. However, in June of 1975, the plaintiff filed a motion to set aside the dismissal. This motion was filed in the Law and Juvenile Court of Elmore County. That same month the Law and Juvenile Court overruled the motion to set aside the dismissal.

In July of 1975, the plaintiff again filed suit against the defendant. This suit was brought in the Circuit Court of Elmore County and is as follows:

“WALTER OWENS,
Plaintiff,
VS.
MARION WALLACE,
Defendant.
“COMPLAINT
“Plaintiff claims of Defendant the sum of One Thousand Three Hundred Sixty and 08/100ths ($1,360.08) DOLLARS Plus costs on account of the following:
“1. Plaintiff is a resident of Autauga County, Alabama. Defendant is a resident of Elmore County, Alabama.
“2. Defendant, Marion Wallace, owns or is in possession of the following described property:
Lot 25, Plat B, Broadmore Estates, Mill-brook, Elmore County, Alabama. As same is shown by a plat made by P. J. Jennings, Registered Land Surveyor, dated September 16, 1965 (Revision No. 1, dated April 6, 1966) recorded in the Probate Office of Elmore County, Alabama, in Plat Book 5 at Page 112.
“3. Heretofore, on, to-wit, the 31st day of October, 1973, the indebtedness, hereinbefore described, accrued and is due and owing on an open account.
“4. Heretofore, on, to-wit, the 31st day of October, 1973, the indebtedness, hereinbefore described, accrued and is due and owing on an account stated.
“5. Heretofore, on, to-wit, the 31st day of October, 1973, the indebtedness, hereinbefore described, accrued and is due and owing for work and labor done.”

The defendant in response to this second complaint filed a motion to dismiss. The basis of defendant’s motion is that the actions in both suits are the same and therefore the doctrine of res judicata is a bar to the second suit. The motion was argued before the Circuit Court of Elmore County and the trial court’s order indicates that testimony was taken. The trial judge granted defendant’s motion to dismiss. Hence, this appeal.

Able counsel for plaintiff’s basic contention urging reversal is that an adjudication of the first suit was not a bar to the second suit because the second suit is an action in contract whereas the first suit was an action to enforce a materialman’s lien. We cannot agree.

It is appropriate to note at the outset that to this court the dismissal of the prior suit by the Law and Juvenile Court was an adjudication of the merits, whatever they might be, of that lawsuit. Rule 41(b), ARCP, provides in pertinent part as follows:

“Unless the court in its order for dismissal otherwise specifies, a dismissal under this subdivision and any dismissal not provided for in this rule, other than a dismissal for lack of jurisdiction, for improper venue, or for failure to join a party under Rule 19, operates as an adjudication upon the merits.”

As seen from the above facts, the dismissal was clearly an involuntary one.

In McGruder v. B. & L. Construction Company, Inc., Ala., 331 So.2d 257, rendered on April 16 ..of .1976, the Supreme Court of Alabama, speaking through Mr. Justice Merrill, stated the following in discussing the principle of res judicata:

“It has long been the policy in the courts of Alabama to provide a claimant a day in court, but he will not be allowed to continue to relitigate his claim. The underlying principle of res judicata or estoppel by judgment is based upon public policy and necessity, because it is to the interest of the state, that there should be an end to litigation, and that the individual should not be vexed twice for the same cause. Savage v. Savage, 246 Ala. 389, 20 So.2d 784.
“The doctrine of res judicata rests upon the primary principle that matters once adjudicated are settled and determined. Irwin v. Alabama Fuel & Iron Co., 215 Ala. 328, 110 So. 566; Suggs v. Alabama Power Co., 271 Ala. 168, 123 So.2d 4. Those cases are also authority for the rule that to sustain a plea of res judicata or judgment by estoppel, the parties must be the same, the subject matter the same, the point must be directly in question, and the judgment must be rendered on that point.” (331 So.2d 259)

It is interesting to note that in McGruder the complaint in the first lawsuit was dismissed on motion, as is the case here.

This court in this instance finds as the supreme court did in McGruder that the necessary elements were present in the first case filed in the law and juvenile court. Again, we quote from McGruder as it is applicable to the instant appeal:

“Appellant has had her day in court and the same issues were adjudicated, settled and determined, and that is dispositive of this case. We note that our cases also state that a judgment in a former action between the same parties is not only conclusive of the questions actually litigated, but which could have been litigated in the former suit. Reid v. Singer Sewing Machine Co., 218 Ala. 498, 119 So. 229; Hathcock v. Mitchell, 277 Ala. 586, 173 So.2d 576.” (331 So.2d at 259)

As seen from the complaint in the first action filed in the law and juvenile court, and as set out below, a personal judgment could have been rendered if the debt was established even though the lien had not been established. In Crosby v. Hale, 277 Ala. 542, 173 So.2d 85, we find the following:

“The jurisdiction conferred upon courts of equity by § 48, Title 33, supra, being concurrent with a proceeding at law, the complainant may have a general judgment against the contracting owner for the agreed price for the work and material furnished under the contract, though he may not be able to establish the mechanic’s lien under the statute. Floyd v. Rambo, [250 Ala. 101, 33 So.2d 360], supra, and cases cited.” (277 Ala. at 545, 546, 173 So.2d at 88)

We therefore find that the controversy contained in the second suit could have been litigated in the first suit and the trial court did not err in granting defendant’s motion to dismiss.

While the above is dispositive of this appeal, the following in the trial court’s order of dismissal is noted:

“This cause coming on to be heard on motion of the Defendant to dismiss the action, comes the Defendant by his Attorney. Also comes the Plaintiff by his Attorney.
“The Defendant offers evidence in support of his motion to dismiss. In addition to such evidence, it is stipulated by counsel for both sides that the claim attempted to be stated in this cause is based on the same transaction involved in Case No. 249 previously filed by the Plaintiff in the Law and Juvenile Court of Elmore County, Alabama, which case was dismissed by that Court and from which Order of dismissal there was no appeal.”

It therefore appears that evidence was taken before the trial court. Such evidence is not included in the record before this court. We are informed that the testimony was not transcribed.

We call to the attention of those interested this court’s discussion of the relationship between Rule 10, ARAP, and the well settled principle of law that the trial court’s finding and conclusions on the facts will not be reviewed when it affirmatively appears there was evidence before the trial court that is not in the record on appeal. This discussion may be found in Adams v. Adams, Ala.App., 335 So.2d 174 released by this court on June 30, 1976. Our conclusions in Adams, supra, would to this court require affirmance of the instant appeal.

This case is due to be and is accordingly affirmed.

AFFIRMED.

WRIGHT, P. J., and BRADLEY, J., concur.


text:
    Frankie HIGGINS v. Charles HIGGINS.
    Civ. 719.
    Court of Civil Appeals of Alabama.
    July 21, 1976.
    Larkin Radney, Alexander City, for appellant.
    Robert J. Teel, Rockford, for appellee.
   HOLMES, Judge.

This is a divorce case.

The Circuit Court of Coosa County awarded custody of the parties’ six minor children to the father. The ages of the children range from age 13 to age 3. The mother appeals from this award.

The only issue presented to this court is whether the trial court erred in awarding custody of the children to the father. We find it did not, and affirm.

The parties were married for 15 years. At the time of the ore tenus hearing, both parties were employed. The divorce was granted on the ground of incompatibility of temperament. The homeplace was awarded to the father.

The testimony presented on behalf of the mother consisted of her own testimony and that of one witness who in essence testified that the mother was in fact a “good mother.” The testimony presented on behalf of the father consisted of his own testimony and that of twelve other witnesses.

At the outset, we note that this court is required to view the trial court’s decree with the presumption of correctness attendant in this type of case. Blankenship v. Blankenship, 266 Ala. 182, 94 So.2d 743.

So viewing, there are tendencies of the evidence which reveal that the mother frequently left her children, on one occasion for an extended period of time; that she “pull a gun” on the father in the presence of the children; that she smoked marijuana; that she did not prepare meals for the children; and that her reputation in the community was “bad.” Additionally, the two older children, while not expressing any preference as to which parent they would prefer to live with, did state they preferred to live in the town where the father resided.

Suffice it to say, there was ample evidence that the father was a good provider and a good father.

As is so often stated by this court, in cases involving child custody the paramount issue is the best interest of the children. Linderman v. Linderman, 49 Ala.App. 662, 275 So.2d 342.

In view of the above, this court cannot say the trial judge erred in his determination that the best interest of the children would be for the father to have custody. For this court to reverse, in this instance, would be to substitute our own judgment for that of the trial judge. This the law will not allow. Sutton v. Sutton, 55 Ala.App. 254, 314 So.2d 707.

This case is due to be and is affirmed.

AFFIRMED.

WRIGHT, P. J., and BRADLEY, J., concur.