text:
    Dudley POWELL, Jr. v. SOUTH CENTRAL BELL TELEPHONE CO., a corporation.
    77-298.
    Supreme Court of Alabama.
    July 28, 1978.
    Dieter J. Schrader, Huntsville, for appellant.
    Harold F. Herring and Thomas R. Robinson of Lanier, Shaver & Herring, Huntsville, for appellee.
   BEATTY, Justice.

This is an appeal by the plaintiff Powell from a summary judgment rendered against him. We affirm.

The plaintiff was the author of a weekly column, “The Entertainment Preview,” which appeared in a daily city newspaper, The Huntsville Times. The column contained a brief survey of and opinion upon local inns, restaurants, movies, etc. The column itself was a promotional venture which derived its revenue from local businessmen solicited by Powell, and whose names or activities would be displayed or discussed either gratuitously or for a price.

In the September 9, 1976 article there appeared a discussion in which the author referred to the defendant as “Mother Bell” and expressed his opinion that the defendant’s personnel were showing “more and more rudeness” to the public. At the top of this particular article, in bold print, appeared this statement:

Brought to you by: Alabama Bike Shop, Woody Anderson Ford, The Huntsville Hilton, Stanlieo’s Sub Villas & Marty Electric, [all in Huntsville] .

Following publication of this article, employees of the defendant contacted these sponsors, and after these contacts all withdrew as sponsor-advertisers. This action was based upon those contacts and withdrawals. In Count I, of his amended complaint against South Central Bell, plaintiff alleged a trespass, in that the defendant coerced these sponsors to withdraw by making statements to the effect that otherwise Bell would cause them financial harm, and that this conduct was wantonly and willfully calculated to interfere with Powell’s lawful employment, trade or calling, proximately resulting in his financial loss.'

Count II essentially contained the same allegations supplemented by a reference to the defendant’s monopolistic position in the telephone communications system and thus to its position as the sole source of telephone service in Huntsville.

To this complaint as amended South Central Bell filed its motion for summary judgment, incorporating affidavits of the five sponsors in question, depositions filed in the action, the pleadings, and the answers to interrogatories propounded by the defendant. In due course the trial court granted summary judgment for the defendant. The propriety of that judgment is the issue before us. The defendant’s position is that there is no factual issue remaining; the plaintiff argues that the affidavits, his response to them, and the defendant’s failure to “close the facts” show that a genuine issue of fact remains, i. e., whether Bell proximately caused the cancellations by its wrongful and coercive interference.

Powell concedes in brief that one of .the elements of his cause of action is the element of proximate cause. And under this requirement it would be insufficient to prove merely that Bell’s employees contacted these sponsors who, additionally, were Bell customers, for in their mere inquiries to the sponsors following any such complaint, Bell’s employees would only be engaging in lawful, and business-like conduct. U.S.F.&G. Co. v. Millonas, 206 Ala. 147, 89 So. 732 (1921). Consequently, our focus must be upon the nature of "the contacts and the inducements which led to the cancellations.

The sponsors’ affidavits reveal that they were contacted by Cleve Earnest, the defendant’s public relations manager in Huntsville, or by Thomas 0. Young, a longtime Bell employee. In Earnest’s deposition, he recalled telephoning persons at Alabama Bike Shop, Stanlieo’s Restaurant, and (possibly) Marty Electric Company, all as part of his routine public relations duties. According to Earnest, his purpose was to maintain good customer relations, to correct service problems, and to determine whether there was in fact any dissatisfaction.

Young deposed that he telephoned sponsor Anderson because he knew him and he “wanted to find out . . . if we had done anything to offend him.” Young acknowledged that following this contact he conversed with Powell privately concerning it while the two of them were in a local restaurant. When Powell asked him whether Bell would “do anything else” to him, Young replied that they “hadn’t done anything to him so far.”

All of the sponsors denied any “pressure” placed upon them by Bell to discontinue their association with Powell.

The president of Alabama Bike Shop, Herman Mullins, by affidavit stated that his name had been mentioned in the column without his consent and that upon learning of this he had told Powell to delete his name. While he recalled talking with a Bell employee about the article, he stated that no pressure of any kind was used. His termination was based upon his opinion that the Powell advertising was not suitable for his business. In fact, he stated that “[M]y decision to cancel the advertising with Dudley Powell was not connected, in any way, with my conversation with whoever called me from the telephone company.”

Likewise, the manager of the Hilton Hotel, Guy Smith, denied in his affidavit that any pressure was used in connection with his decision to cancel. He stated that his decision was related solely to the cost-effectiveness of the advertising, and that “the article was not a part of my decision to terminate our sponsorship.”

The owner of Marty Electric Company, Shelton E. Marty, by affidavit stated that Powell’s fee was more than he wanted to spend for that type of advertising, and he denied any coercion of any kind on the part of anyone from Bell. In fact, he stated that neither the article nor the telephone company had any bearing on his decision to discontinue his sponsorship.

In his affidavit Woody Anderson stated that his company’s name was used by Powell at no expense in order to help get the column started. He denied any threats or pressure upon him by anyone from Bell. There was no relationship, he stated, between any conversation he had with a Bell representative and his decision to discontinue his association with the “Preview.”

The owner of Stanlieo’s Restaurant, Glenn Watson, by affidavit denied any pressure of any kind used by Bell. He stated:

My decision to terminate my association with Mr. Powell’s column had nothing to do with any request by South Central Bell or its people. I was never threatened, intimidated, or coerced in any manner in this matter by any South Central Bell representative. No pressure whatsoever was put on me by any telephone company employee.
My decision to cancel the restaurant’s sponsorship of the article . . . was
purely a personal decision based upon my own principles and opinions.

In response to these affidavits, Powell offered his own affidavit, in part a rebuttal to each of the others offered against him.

He stated that Mullins acknowledged that he did business with Bell and, not wanting to become involved in a controversy, withdrew as a sponsor; that Shelton Marty was afraid of being implicated in a lawsuit, and did not wish to lose the work he did for Bell; that Woody Anderson Food Company does a substantial automotive repair business with Bell; that Guy Smith refused to respond to his question as to whether Hilton Hotel withdrew its sponsorship because of Bell; and that Glenn Watson stated to him, Powell, shortly after having been contacted by Bell’s employee, that his contact was “part of the reason” he withdrew his sponsorship. To this Powell added that because Cleve Earnest deposed the “possibility” that he could have had a conversation with Mrs. Watson, the wife of Stanlieo’s owner, the “possibility” existed that this lady “could become” a witness and corroborate Powell’s allegations.

Considering the presumption which favors the movant’s opponent when summary judgment is prayed, Tolbert v. Gulsby, 333 So.2d 129 (Ala.1976), nevertheless this opponent, Powell, has failed to make a genuine factual issue of either the proximate cause of the cancellations or of any unlawful or coercive force. Each of the sponsors has affirmatively negated any pressure or coercion on the part of Bell to induce such action. The only sponsor to so much as concede a relationship between the Bell contact and his decision to withdraw was Glenn Watson. That contact was “part of the reason.” However, this acknowledgement of the bare contact raises a reasonable inference neither of proximate cause nor of coercion, “pressure,” or any other unlawful inducement on the part of Bell, but is only a speculation. Thus it qualifies, not as a scintilla of evidence, Loveless v. Graddick, 295 Ala. 142, 325 So.2d 137 (1975), but as conjecture only. Cf. Wilson v. Liberty National Life Insurance Co., 331 So.2d 617 (Ala.1976). As we have already noted, Glenn Watson himself denied any pressure of any kind having been exerted upon him by Bell. Cf. Willis v. Demopolis Nursing Home, Inc., 336 So.2d 1117 (Ala.1976).

As we stated in Ray v. Midfield Park, Inc., 293 Ala. 609, 611, 612, 308 So.2d 686, 687, 688 (1975):

When a movant makes a motion for summary judgment, the burden is upon him to show that there is no genuine issue of a material fact left in the case.
When a motion for summary judgment is made and supported as provided in Rule 56, an adverse party may not rest upon the mere allegations or denials of the pleadings. . . . [T]he party moving for summary judgment has the burden to show that he is entitled to judgment under established principles; and if he does not discharge that burden, then he is not entitled to judgment. .

Here the defendant-movant has negated any unlawful or coercive force brought upon the plaintiffs which proximately resulted in a discontinuance of the sponsorships. Through his supporting documents he has shown that there is no genuine issue of fact. To counter the movant, the plaintiff as adverse party has offered his own affidavit in answer to the defendant’s summary judgment motion. But that affidavit fails to establish that a factual issue exists as to whether or not the defendant did use any unlawful “pressure” or coercion which forced a cancellation. “Not wanting to become involved,” “afraid of being implicated,” “not wishing to lose work,” “doing a substantial automotive repair business,” or the “refusal to respond to questions,” do not tend to establish that Bell made coercive representations or used pressure, subtle or otherwise, to effect cancellations. Nor do they infer that the sponsors withdrew because of Bell’s inquiries. Watson’s concession that Bell’s contact was “part of the reason” does not infer that the contact was coercive or unlawful. And being “part of the reason” does not amount to “proximate” reason.

Persons who perpetrate torts are, as a rule, responsible and only responsible for the proximate consequences of the wrongs they commit. In other words, unless the tort be the proximate cause of the injury complained of, there is no legal accountability. . . . Liberty National Life Insurance Company v. Weldon, 267 Ala. 171, 100 So.2d 696 (1958).

Moreover, the possibility that Mrs. Watson might be called as a witness and thus establish that she had a conversation with Earnest, a Bell employee, would not establish an inference that Bell coerced her husband into making his decision to discontinue his sponsorship of his restaurant.

This case is similar in fact and result to Dyer v. MacDougall, 201 F.2d 265 (2 Cir.1952) in which the issue was whether summary judgment had been properly granted in a slander case. In that case the plaintiff claimed that he had been slandered in two instances, once by defamatory words spoken by the defendant to one Almirall, and once by the defendant’s wife, acting at the time as defendant’s agent, who allegedly uttered defamatory words about the plaintiff to one Hope. The defendant’s motion for summary judgment was supported with the affidavits of the defendant, his wife, and Almi-rall, and with the deposition of Hope. The defendant and his wife, denied uttering any slander. Almirall and Hope denied hearing any. The plaintiff responded with affidavits of his own which, the court concluded, would be inadmissible as evidence to prove any utterance. The grant of summary judgment was affirmed because:

[I]f the cause went to trial, the plaintiff would have no witnesses by whom he could prove the slanders alleged . except Almirall and Mrs. Hope; and they would all deny that the slanders had been uttered. .

So in this case, the only persons in a position to disclose the existence of any unlawful, forceful, coercive interference proximately causing withdrawal of sponsorship are the Bell employees and sponsors themselves, and without more, we must assume, as the court did in Dyer, that what they said in their affidavits they would have repeated by deposition or at trial.

The defendant having shown the absence of any genuine issues of material facts, the trial court’s order granting summary judgment for the defendant was proper. Accordingly, that judgment must be, and is, affirmed.

AFFIRMED.

TORBERT, C. J., and MADDOX, JONES and SHORES, JJ., concur.


source: Caselaw Access Project

author: MADDOX, Justice.

license: Public Domain

text:
    Jewell KILGORE v. John BAKER.
    77-302.
    Supreme Court of Alabama.
    July 28, 1978.

      Loma B. Beaty, Fort Payne, for appellant.
    Michael E. O’Dell, Fort Payne, for appel-lee.
   MADDOX, Justice.

This appeal involves a dispute over the amount of an attorney’s fee.

Jewell Kilgore employed John Baker to represent her in a divorce action in 1974. She contends that at her first meeting with Baker, he informed her that he charged $85.00 per hour for his services, but that before she left the office, Baker presented her with a form “he always had his clients sign before commencing a case.” The form was an employment contract which provided, in part:

“For the aforesaid services and undertaking, I, the undersigned, agree to pay the law firm of TRAYLOR, BAKER a fee which shall be an amount between 10% per cent and 20% per cent of the value of any property awarded to me by the equity court as a result of the divorce case. The exact percentage shall be determined by the firm of TRAYLOR, BAKER & COLE upon the conclusion of the case depending upon the amount of work and service required, but must be within these limits. In addition thereto, said firm of TRAYLOR, BAKER shall be entitled to receive as additional attorney’s fee any amount that the Court orders Respondent, my husband, to pay to said law firm as attorney’s fee. Said law firm or any lawyer representing me therein shall have the option of crediting the above percentage with the amount awarded by the Court as attorney’s fee, but this shall be within the discretion of said attorney, provided, however, that in the event of a reconciliation of the parties at any stage of the proceedings, said law firm shall be entitled, and I hereby agree to pay a minimum fee of $175.00 plus $100.00 per day or part thereof in Court or in negotiation with my husband or his lawyer in the prosecution of this cause and, additionally, shall reimburse said law firm for all out-of-pocket expenses in the prosecution of said action. I hereby give said law firm a lien on any money or property awarded to me by the Court or by any agreement for the payment of said fee.”

Jewell Kilgore was granted a divorce in 1976. The dispute over the fee then arose and Baker petitioned the court to set a reasonable attorney’s fee; Kilgore filed a separate suit to recover certain deeds and checks in Baker’s possession and she also requested a trial by jury. The two cases were consolidated for trial, and the jury awarded Baker a fee of $12,500.

Kilgore contends that the written contract is, in effect, an agreement for a fee contingent upon the amount of alimony or settlement which might be allowed in the divorce case, and is, therefore, void as against public policy. For this reason, she says, the trial court erred in charging the jury that the contract, even though not binding, could be considered by them in establishing a reasonable fee. Kilgore also contends: that she believed the fee arrangement was $35.00 per hour; that she did not understand the contract signed by her; that her signature was fraudulently induced in that she was told the document was a form to be filled out by all clients and placed in the files; that Baker’s experience as an attorney and her inexperience created a fiduciary duty which was violated by the “gross misrepresentation” concerning the amount of the fee.

Baker argues that the judge’s charge that the jury could consider the written contract was not erroneous because “any item of evidence admitted by agreement, without objection can be ‘considered’ by the jury.” He also contends that the contract involved is not void as against public policy because it is not contingent upon procurement of a divorce or alimony. His position is that recovery was based upon the theory of quantum meruit as presented in his petition, and was well supported by the evidence. We affirm.

Assuming, without deciding, that the written contract was void, the court did not err in charging the jury that they could consider the written contract in arriving at a reasonable fee. The court adequately charged the jury on the issue presented— the amount of compensation to which Baker was entitled. The court’s charge, in part, was, as follows:

“. . . Ladies and gentlemen, in this case an employment contract was attached; however, I want to charge you, ladies and gentlemen, that this employment contract in this cause is not controlling. That is, you do not have to follow the amount set therein. However, you may consider its terms in fixing what a reasonable compensation in this case would be.
* * * * * *
“Ladies and gentlemen, the question in this case is the reasonable value of an attorney’s fee. Where there is an agreement as to the amount of an attorney’s fee, the agreement would govern. When there is no agreement, then an attorney is entitled to a reasonable fee. The determination of such a reasonable fee or reasonable value is left to the reasonable discretion of the jury in light of the particular circumstances of the case, all of the circumstances. However, it has been recognized that there are several factors that you ladies and gentlemen may consider in passing upon the amount to be allowed as a reasonable attorney’s fee or compensation to the attorney. These include the following: The time and labor involved, the novelty and difficulty of the issues, the customary charges of the bar for similar services, the amount involved, the responsibility assumed, the benefits that result to the client from the services, the contingency of certainty of the compensation, and the ability and standing of the attorney in the community.”

The written agreement was admitted into evidence without objection, and we fail to see how the court’s giving of the charge that the jury could consider the contract so prejudiced the client that she should get a new trial.

In King v. Keith, 257 Ala. 463, 60 So.2d 47 (1952), this Court opined:

“In estimating the value of legal services, following are among the elements material for consideration: (1) the nature and value of the subject matter of the employment; (2) the learning, skill and labor requisite to the proper discharge of that employment; (3) time consumed; (4) the professional ability, experience and reputation of the attorney; (5) the weight of his responsibility; (6) the measure of success achieved; (7) the reasonable expenses incurred. T. S. Faulk & Co. v. Hobbie Grocery Co., 178 Ala. 254, 59 So. 450; Dent v. Foy, supra; Humes v. Decatur Land Improvement & Furnace Co., 98 Ala. 461, 13 So. 368; Frazer v. First National Bank, supra, [235 Ala. 252, 178 So. 441],
******
“Nor are we impressed with the argument that the contingent nature of the employment of appellee by King should be altogether laid out of view in determining the amount of the allowance of the will fee. It is a recognized rule that the certainty or contingency of the compensation affects the amount of a fee, a much larger one being allowable in the latter case. Canons of Professional Ethics of American Bar Association, No. 12; Fee Contracts of Lawyers, by Earl W. Wood (Prentice-Hall, Inc., 1936), § 36, p. 90; 6 Corpus Juris 752, § 331; 7 C.J.S., Attorney and Client, § 191; F. L. Stitt & Co. v. Powell, 94 Fla. 550(6), 114 So. 375; Ex parte Wilkinson, 220 Ala. 529, 126 So. 102; Denson v. Caddell, 201 Ala. 194, 77 So. 720; Willett & Willett v. First National Bank of Anniston, 234 Ala. 577, 176 So. 344.
“And although the claim for attorney’s fee for establishing the validity of the will is rested on a quantum meruit rather than on the contract with King, in the circumstances shown the distinction would seem to be of little moment inasmuch as the right and measure of allowance depended on results obtained in behalf of the common estate. Farmers’ Bank & Trust Co. v. Borroughs, 217 Ala. 97(8), 114 So. 909. The exigencies would have been the same in either aspect — win all or lose all, the chances of any reasonable amount of compensation being entirely contingent upon the successful outcome of the case.”

We find no error in this case, where the agreement was admitted without objection, for the trial court to charge the jury that they could consider the contract in fixing reasonable compensation. We need not, and do not, decide whether the particular agreement here should or should not have been admitted if a proper objection had been made.

AFFIRMED.

TORBERT, C. J., and JONES, SHORES and BEATTY, JJ., concur.


author: JONES, Justice.

text:
    Lands Described in Bill and Larry FAVRE et al. v. Wilmer AUSTIN and Christine Austin, husband and wife and Estelle A. Favre, a widow.
    77-330.
    Supreme Court of Alabama.
    July 28, 1978.

      George Oglesby of Oglesby & Butcher, Mobile, for appellants.
    John A. Courtney, Mobile, for appellees.
   JONES, Justice.

The issue is: Where one party pays the purchase price for land and takes title jointly in the name of himself and others, in the absence of evidence of an intention of payor to make a beneficial gift of an undivided interest in the property to the other persons, will the other grantees be regarded as holding their interest upon a resulting trust for the payor? Or, stated in the context of the holding below: Did the trial court err in declaring, in favor of the payor, a resulting trust in the subject property where the record is devoid of any evidence that the jpayor did not intend to make a gift to the remaining joint grantees? We hold that the trial court erred in so holding; and we reverse and remand.

The facts are without dispute. Appellee, Austin, paid the entire purchase price (down payment plus monthly installments and all the annual taxes subsequent to the purchase) and knowingly and voluntarily took title jointly in himself, his mother and his stepfather, Elmer J. Favre (Appellants are heirs at law and children of a former marriage of Mr. Favre who died intestate).

Appellee, in support of the judgment below, cites Adams v. Griffin, 253 Ala. 371, 45 So.2d 22 (1949), for the proposition that, where one buys land in the name of another and pays the consideration generally the grantee will be regarded as holding the land in trust for the person who paid the consideration. This rule of presumption, argues Appellee, casts the burden on the one who would defeat the trust to prove to the trier of facts by clear and convincing evidence that a gift was intended by the payor.

Appellants, on the other hand, counter by asserting that the facts in the instant case fall within one of the recognized exceptions to this rule, and thus the burden to refute the presumption of a gift is upon the payor, Austin. Because counsel for each party cites Hooks v. Hooks, 264 Ala. 66, 84 So.2d 354 (1955), a detailed analysis of that case is appropriate. Preliminarily, however, we set forth, to the extent here applicable, a brief historical review of the general rule and its recognized exceptions. Professor Scott’s multi-volume treatise on trusts (Scott on Trusts, Vol. V, Resulting Trusts, Topic 4, commencing at p. 3308), tracks and amplifies the Restatement, Second, of Trusts, § 440, which states the general rule thusly:

“Where a transfer of property is made to one person and the purchase price is paid by another, a resulting trust arises in favor of the person by whom the purchase price is paid, except as stated in §§ 441, 442, and 444.”

Section 441 reads:

“A resulting trust does not arise where a transfer of property is made to one person and the purchase price is paid by another, if the person by whom the purchase price is paid manifests an intention that no resulting trust arise.”

“Comment e” thereunder is paraphrased in part by Professor Scott as follows:

“Where one person pays the whole of the purchase price for land and has the conveyance made to himself and another person as joint tenants or tenants in common, the very fact that the title is taken in this way is an indication of an intention to make a beneficial gift of an undivided interest in the property to the other person. It is stated in the Restatement of Trusts [‘Comment e’] that the fact that the payor takes title to property in the names of himself and another jointly is an indication of an intent to make a beneficial gift of an undivided interest to the other person; and the other person does not hold his interest upon a resulting trust for the payor in the absence of evidence that a trust rather than a gift was intended. There is authority to this effect. [Footnote of authorities omitted.] But it has been held that a resulting trust arises if it appears that a gift was not intended [citing in footnote Hooks v. Hooks, 258 Ala. 427, 63 So.2d 348 (1953), an earlier appeal on the pleadings in the same Hooks’ case cited above].” Scott on Trusts, at § 441.4 (pp. 3332-3).

Unquestionably, then, while the Restatement lists the fact situation here presented as “Rebutting the Resulting Trust” and thus places the burden upon the payor to negate the intention of a gift, Professor Scott’s Comment in the first Hooks’ appeal casts Alabama among the ranks of those states holding that these facts give rise to a resulting trust if an intention to make a gift is not shown. In other words, the inference of Professor Scott’s commentary is to the effect that the general rule presuming a resulting trust is not altered by the fact that payor took title jointly in himself and another; and, consequently, an absence of evidence of gift, vel non, would resolve the ultimate issue of resulting trust in favor of the payor. However accurate Professor Scott’s conclusion may appeal from a restricted reading of “Hooks No. I” (where the issue was confined to the pleading), suffice it to say that such conclusion overlooks “Hooks No. II,” affirming the judgment imposing the trust upon the “sufficiency of the evidence” test.

Appellee acknowledges that Hooks applied the “presumption of gift” exception to the general rule, but urges this Court to restrict its application to the Hooks’ facts— purchase in the name of a relative. Otherwise stated, Appellee contends that Mrs. Hooks, the mother, was required to overcome the presumption of gift to her son solely because of their relationship, and not because the payor-mother took title jointly in both names.

The election by the Hooks’ Court to ground its presumption of gift on the “relative” exception can hardly be construed as foreclosing recognition and application to the “joint grantee” exception. Indeed, the Restatement recognizes both exceptions (as well as others); and, as Professor Scott’s treatise on resulting trusts points out, the general rule and its well-established and recognized exceptions represent the majority view of courts in this country and England.

Our holding is no blind adoption of the Restatement; rather, it is based upon our concurrence with the soundness of its propositions and its underlying rationale. Originally, the early common law indulged every presumption favoring the validity of written agreements, which, when combined with the presupposed danger of perjured testimony, compelled the development of the early rule which placed a heavy burden on a payor asserting a resulting trust to disprove his intention to make a gift to the grantee. By the middle of the 16th century, however, it had become common practice for English landowners to place legal title in others for their use. Out of this almost universal practice, the courts evolved a rule of presumption that the transferee of land conveyed without consideration held title for the use of the trans-feror.

Likewise, while the law of modern trusts in America has generally rejected the English doctrine of gratuitous conveyance (except in constructive trust situations), where one person purchased land and took title in another, the rule emerged that the payor was presumed to have intended the grantee to hold to the use of the payor. By the time of the enactment of the original English Statute of Frauds (1677), this rule of presumption favoring resulting trusts was so established that the statute expressly excluded trusts which may “arise or result by the implication or construction of law.” In 1683, the case of Anonymous, 2 Vent. 361, held:

“Where a man buys land in another’s name, and pays money, it will be in trust for him that pays the money, tho’ no deed declaring the trust, for the statute of 29 Car. 2, called the Statute of Frauds, doth not extend to trusts, raised by operation of the law.”

By way of comment on this development, Professor Scott observes:

“It is true that the court here speaks of the trust as arising by operation of law, and in more recent times judges have sometimes so spoken; but other judges recognize that in enforcing such trusts they are in truth carrying out the intention of the parties. The real reason, it would seem, why such trusts are held valid without a writing is that, although they arise out of the intention of the parties, that intention is evidenced by the circumstances of the transaction rather than by the language of the parties. There is not, therefore, as a practical matter the same danger of perjured testimony as in cases where the only evidence of intention is the oral language of the parties.” Scott on Trusts, at 3315.

As for the exceptions (“ . except as stated in §§ 441, 442 and 444”) to this general rule, the very statement of the rule itself implies its restrictive scope. As here applicable, the last phrase of the Restatement’s pronouncement of the general rule may be paraphrased thusly: “ . except where the totality of the circumstances is itself indicative of a contrary intention.” In other words, because the reason for the general rule is to create the inference which is more nearly calculated to effectuate the intention of the parties, where the circumstances surrounding the transaction themselves manifest a contrary intention, there arises a corresponding shift of the burden of proof; and, absent any evidence of intention of the parties, the payor’s claim of resulting trust fails.

Admittedly, the exception in § 441 is expressed in broad, general language: “ . . .if the person by whom the purchase price is paid manifests an intention that no resulting trust arise.” But the Restatement does not end there; its Official Comments delineate various fact situations characteristic of such manifestations of intent. “Comment e” (where one person pays the purchase price and has the conveyance made to himself and another) poses the identical facts here presented.

Similarly, the reason for the exception is as clear and sound as is the reason for the general rule to which this exception applies. The unjust enrichment factor, which influenced the courts in evolving the rule of presumption in favor of resulting trusts, most often found its expression in the context of the multitude of various motives for taking title solely in the name of another without intending a gift. When weighed in the balance of ordinary human experience, a gift to the joint grantee emerges as the more probable intention of the payor where he takes title jointly in himself and another. Moreover, except for the most compelling of public policy reasons, the law should sanction only the narrowest of avenues available to those who seek to impugn the validity of a properly executed legal document.

Thus, the presumed intention is reversed; and, under the circumstances on the instant appeal, the burden of proof is placed upon Appellee to prove by clear and convincing evidence that at the time he took title in himself and Appellants’ father, no beneficial gift was intended. Having failed to meet this burden, Appellee cannot sustain the judgment imposing a resulting trust in his favor. Accordingly, the final decree of the trial Court is reversed and this cause is remanded.

REVERSED AND REMANDED.

TORBERT, C. J., and MADDOX and SHORES, JJ., concur.

BEATTY, J., concurs in the result.

      . Professor Scott was the reporter for the Restatement and his earlier work on trusts was cited with approval by this Court in Hooks v. Hooks, 258 Ala. 427, 63 So.2d 348 (1953).

      . See Cole v. Adkins, 358 So.2d 447 (Ala.1978).

      . It should be noted that there is a distinction between a “gratuitous conveyance” and the later practice of the payor purchasing land in the name of another. In the former practice, the grantor conveyed title to another without consideration; while in the latter, the payor furnished the money and title was conveyed to another from a third party.


author: SHORES, Justice.

text:
    James D. MATHIS v. JIM SKINNER FORD, INC., a corp., et al.
    77-333.
    Supreme Court of Alabama.
    July 28, 1978.

      Thomas Coleman, Birmingham, for appellant.
    John Martin Galese, Birmingham, for ap-pellee Jim Skinner Ford, Inc.
    Brittin T. Coleman and Walter J. Sears, III, Birmingham, for appellee Ford Motor Co.
   SHORES, Justice.

This is an appeal by the plaintiff from a partial summary judgment entered in favor of the defendants. We affirm.

Plaintiff bought a new Ford station wagon from Jim Skinner Ford on August 20, 1976. The station wagon vibrated badly and, although both Jim Skinner and Ford Motor Company attempted over a period of months to correct the problem, it was never satisfactorily repaired.

Plaintiff filed suit against Jim Skinner and Ford on June 15, 1977. His complaint, as last amended, is as follows:

“COUNT ONE
“Plaintiff claims of the defendants the sum of Nine Thousand, Two Hundred Thirty-Five and 96/100 ($9,235.96) Dollars for money on, to-wit, August 20, 1976, received by the defendant to the use of the plaintiff, which sum of money, with interest thereon, is still unpaid.
“COUNT TWO
“Plaintiff claims of the defendants the sum of Fifty Thousand Dollars ($50,-000.00), as damages, for that on, to-wit, August 20, 1976, an agent, servant or employee of the defendants while acting within the line and scope of his employment, for the purpose of inducing plaintiff to purchase a certain 1976 Ford Station Wagon, did represent to plaintiff that said Ford automobile, its motor, parts and accessories were mechanically in good working order and condition, and the plaintiff in reliance upon said representation and believing the same to be true, but which was untrue, purchased said Ford automobile for the sum of $9,235.96. And plaintiff further avers that said representation was false, and was then known to be false by said agent, servant or employee of defendant, or ought to have been known by said agent, servant and employee of defendants, acting within the line and scope of his employment as such, to have been false, and that as a proximate result thereof plaintiff was damaged as aforesaid.
“COUNT THREE
“Plaintiff claims of the defendants the sum of Fifty Thousand Dollars ($50,-000.00), as damages, for that on, to-wit, August 20, 1976, an agent, servant or employee of the defendants while acting within the line and scope of his employment, for the purpose of inducing plaintiff to purchase a certain 1976 Ford Station Wagon automobile, did represent to plaintiff that said Ford automobile was free from defects in material and workmanship and that defendants would make good, without charge, any defective part or parts of said Ford automobile which should occur within 12 months of the delivery of said automobile to plaintiff or before said Ford automobile had been driven '12,000 miles, which ever should first occur, and the plaintiff in reliance upon said representation and believing the same to be true, but which was untrue, purchased said Ford automobile for the sum of $9,235.96. And Plaintiff further avers that said representation was false, and was then known to be false by said agent, servant or employee of defendants, or ought to have been known by said agent, servant or employee of defendants, acting within the line and scope of his employment as such, to have been false, and that as a proximate result thereof plaintiff was damaged as aforesaid.” (Emphasis Supplied)

The defendants took the plaintiff’s deposition and filed motion for summary judgment on COUNTS TWO and THREE supported by the plaintiff’s deposition. By deposition, the plaintiff testified that employees of Jim Skinner told him the car had been checked out and everything was okay, “that it was in perfect operating condition and everything.”

He further testified as follows:

“Q All right. Specifically on that occasion, tell me again what you recall being said to you by either this Howard fellow, or, the young salesman regarding the car, not the price, but, regarding the car itself, to the best of your recollection everything that was said.
“A What they said to me?
“Q Yes, sir.
“A They just said it was, the car was loaded, it had everything on it, everything on it that you could put on one, and there wasn’t nothing else that you could put on it, that that was the only station wagon in town like that.
“Q You mean it was fully equipped?
“A Right.
“Q All right. What else do you recall them saying?
“A At the moment I can’t think of anything. There was a lot said, but, I can’t remember at the present time.
“Q Well, what was said as you recall that was important to you, that made some impression on you, or something that you do recall?
“A They didn’t say anything to the car. The looks on it, and what was on it impressed me. They didn’t have to say anything.
“Q And you had decided to buy the car not based on what they told you, but by looking at the car, knowing what it had on it, and the price they gave you? Are those the things that convinced you to buy the car?
“A Yes, sir.
“Q And you bought the car then based on what you saw that the car had and .the price that they quoted you?
“A Yes, sir.”

Skinner and Ford contend that the trial court properly granted summary judgment in their favor because Mathis’ deposition affirmatively shows that no genuine issue of material fact exists in support of the claims asserted in COUNTS TWO and THREE. These counts state a claim for punitive damages based upon fraud. To prove liability on this theory, the plaintiff must show: (1) A false representation; (2) concerning a material existing fact; (3) that was relied upon by the plaintiff as an inducement to act or not to act; and (4) that the plaintiff was damaged as a proximate result. International Resorts, Inc. v. Lambert, 350 So.2d 391 (Ala.1977); Pihakis v. Cottrell, 286 Ala. 579, 243 So.2d 685 (1971).

Assuming that the representations made by Skinner’s employees to Mathis were false, by deposition, he affirmatively asserted that he did not rely upon them as an inducement to purchase the automobile. He offered no evidence that any representation (other than the warranty accompanying the automobile) was made by Ford. He did not offer any evidence to support a claim that Ford had no intention to honor the warranty. In fact, his statements showed that Ford did honor the warranty.

Purchasers have a right to assume that new automobiles will perform in accordance with reasonable expectations and in accordance with implied representations inherent in marketing such products. Absent express representation, implied representations are not uncommon in the sale of new products, and reliance thereon may be shown by the totality of the circumstances and the underlying nature of the transaction itself. These concepts have long been recognized in actions based upon breach of an implied warranty and, under proper circumstances, may support a tort action for misrepresentation.

However, no claim based upon this theory was before the trial court when it granted partial summary judgment in favor of Skinner and Ford, the plaintiff having asserted, in addition to the intentional fraud claims, only a claim for money had and received.

The plaintiff offered no evidence by way of affidavit or otherwise in opposition to the motion for summary judgment, which the defendants supported by deposition. On motion for rehearing, he did offer an affidavit in which he contradicted statements made by him in deposition. He offered no explanation of his failure to offer evidence in response to the defendants’ motion and, at that stage, simply relied on his pleading. The propriety of granting motions for summary judgment must be tested by reviewing what the trial court had before it when it granted the motion. Here it had only the pleadings and the deposition of the plaintiff which established the absence of an issue of fact as to the claims asserted. It was, therefore, incumbent upon the plaintiff, on rehearing, to show circumstances which prevented his presenting evidence to counter that offered in support of the motion for summary judgment. Absent that, the trial court did not abuse its discretion in refusing to set aside the summary judgment. Willis v. L. W. Foster Sportswear Co., Inc., 352 So.2d 922 (Fla.App.1977); Rule 56(e), ARCP.

The judgment appealed from is affirmed.

AFFIRMED.

TORBERT, C. J., and MADDOX, JONES and BEATTY, JJ., concur.


text:
    JEFFERSON COUNTY, Alabama v. J. Ben SWINDLE, Director of State Agency for Social Security.
    77-495.
    Supreme Court of Alabama.
    July 28, 1978.
    Edwin A. Strickland, Jefferson County Atty., Birmingham, for appellant.
    William J. Baxley, Atty. Gen. and David W. Clark, Asst. Atty. Gen., for appellee.
   SHORES, Justice.

The question presented by this appeal is whether the state or county is liable for the employer’s share of social security tax on salary supplements paid to state personnel from the county treasury.

The trial court held, in a declaratory judgment action brought by the county, that the county was liable. It appealed. We reverse.

The Federal Social Security Act was amended in 1950 by the inclusion of § 218, 42 U.S.C. § 418, to allow states to contract with the Federal Government for social security coverage for state and local employees. In that same year, the Alabama Legislature passed Act No. 48, Acts of Alabama 1950, Fifth Special Session, page 102, approved November 1,1950, which created the State Agency for Social Security and authorized it to enter into an agreement with the Federal Security Administrator to extend to employees of the state and its political subdivisions the benefits of the Social Security Act. Both § 218 of the Social Security Act and Act No. 48, supra, contemplated a voluntary agreement between the Federal and State Agencies. Section 5 of Act No. 48 provided for an agreement between the State Agency and the county to extend social security benefits through the State Agency to the county (and though not here pertinent, to the municipal level).

Both the Federal-State Agency agreement and the State-Agency-County agreement were executed and implemented.

Thereafter, from time to time, the legislature passed a number of local acts by which the state compensation of certain state officials was supplemented from the Jefferson County Treasury. The state officials whose salaries were supplemented by these acts were circuit judges, the district attorney, the deputy district attorney and their assistants. With the enactment of these supplemental pay bills, the county (according to its allegations unwittingly) began to withhold an employee’s share of FICA tax and to pay in an employer’s share on the amount of supplemental pay in addition to the amount being withheld and paid in by the state on the state salary.

The Social Security Act sets out a maximum amount of salary against which the tax is to be withheld; and there are provisions for reimbursement to the employee of excess withholding. However, the law does not provide for reimbursement of the employer’s part which the county contends it unwittingly paid.

In 1975, the Legislature passed Act 1205, Acts of Alabama 1975, page 2384, approved October 10, 1975, by which county judges became district judges paid by the state and circuit clerks and registers, theretofore county employees, became state employees.

The county then sought an opinion concerning its liability for the payment of FICA on the amount of judges’ salary supplement. The Director of the Bureau of Retirement and Survivors Insurance, Department of Health, Education, and Welfare, Social Security Administration, opined:

“The question of the county liability is an intrastate matter in which SSA is not involved. As you are aware the State is responsible for all contributions due under the Section 218 coverage agreements. We do not know whether the State will look to the county for part of the contributions in this case. The county's should, therefore, be advised to discuss the question with the State Administrator’s office.
“If the allegation is correct [referring to the effect of Act 1205], beginning January 16,1977, the judges will be employees of the State. They will not be county employees. In this case, only the State will report wages for social security purposes. However, as you are aware the source of the compensation does not determine the wage status. Both the compensation paid by the State and the supplement paid by the county must be reported as wages to the extent of the annual maximum. For SSA purposes the fact that the compensation by the State is at least equal to the maximum reportable for each year is inmaterial. The wages (compensation plus supplement) must be accurately reported for each calendar until the maximum is reached.”

When Mr. Swindle, as Director of the State Agency for Social Security, directed Jefferson County to pay a portion of the employer’s contribution of FICA on behalf of circuit judges, district judges, district attorney, assistant district attorney and circuit clerk, the county commenced this litigation.

Both sides agree that the comity’s liability for the employer’s share of FICA depends upon whether the relationship of employer-employee exists between the county and the affected class. The State Agency contends that such relationship does exist and the county contends that it does not. The trial court concluded:

“The Court finds that members of the affected class are employees of the political entity [county] within the meaning of the common law test in that the political entity [county] furnishes the employee a place to work.”

The allusion by the trial court to the common law definition of employee was directed by § 210(k) of the Social Security Act, 42 U.S.C. § 410(j)(2), which provides:

“The term ‘employee’ means—
“(2) any individual who, under the usual common law rules applicable to determining the employer-employee relationship, has the status of an employee

The agreement executed between the Federal Security Administrator and the state defines employee by reference to that section:

“The term ‘employee’ means an employee as defined in Section 210(k) of the Social Security Act and shall include an officer of the State or of a political subdivision thereof.”

The State-County agreement provides for its execution “in order to extend to employees of said political subdivision” and defines employee as follows:

“The term ‘employee’ means an employee as defined in Section 210(k)(2) of the Social Security Act and shall include an officer of the political subdivision.”

Are these affected officials employees of the county under the rules of common law?

The parties stipulated that the county has no supervision, no control, no right to control and does not exercise any control of any individual in the affected class. The county has no right to hire, fire or fill any vacancy of any member of the affected class.

Circuit judges and district attorneys have specifically been declared state officers and not county officers. In re Opinions of Justices, 225 Ala. 359, 143 So. 345 (1932). By legislation, the deputy district attorneys involved are designated state officers. Act No. 523, Acts of Alabama 1975, page 1174; Act No. 245, Acts of Alabama 1975, page 773.

District judges, circuit clerks, registers and court employees are made state officers and employees by Act No. 1205, supra. Even so, can they be considered employees of the county as that term is used in the Social Security Act? We think not. Although, perhaps not completely controlling, the administrative regulations indicate some of the factors which should be considered in determining whether an employer-employee relationship exists for social security purposes. 20 C.F.R. § 404.1004(c)(2), and 26 C.F.R. § 31-3121(d)-l(c)(2), provide:

“Generally such relationship exists when the person for whom services are performed has the right to control and direct the individual who performs the services, not only as to the result to be accomplished by the work but. also as to the details and means by which that result is accomplished. That is, an employee is subject to the will and control of the employer not only as to what shall be done but how it shall be done. In this connection, it is not necessary that the employer actually direct or control the manner in which the services are performed; it is sufficient if he has the right to do so. The right to discharge is also an important factor indicating that the person possessing that right is an employer. Other factors characteristic of an employer, but not necessarily present in every case, are the furnishing of tools and the furnishing of a place to work, to the individual who performs the services.

The United States Court of Appeals, Flemming v. Huycke, 284 F.2d 546 (9th Cir. 1960), considered the question and held that the proper test required a consideration of the totality of the situation as opposed to a single factor.

Considering all of the factors involved in this case, we must conclude that the relationship of employer-employee does not exist between the county and the affected officials. The state is the employer under the Social Security Act and, as such, must bear the employer’s share of the social security tax.

REVERSED AND REMANDED.

TORBERT, C. J., and MADDOX, JONES and BEATTY, JJ., concur.


author: HOLMES, Judge.

text:
    Jewell HUGHES v. Tom E. HUGHES.
    Civ. 1425.
    Court of Civil Appeals of Alabama.
    Aug. 2, 1978.
    James H. Weatherford, Jr., Enterprise, for appellant.
    Kenneth T. Fuller, Enterprise, for appel-lee.
   HOLMES, Judge.

This is a divorce case.

The wife appeals. There are two issues on appeal: 1. Did the trial court err to reversal in the amount of the award of alimony in gross? 2. Does the failure of the husband to comply with the wife’s motion to produce certain documents require reversal? We find no reversible error and affirm.

The parties were married for six years. The husband is approximately sixty years of age and the wife is fifty years of age. Each party had a separate estate at the time of marriage.

The decree granting the divorce on the ground of incompatibility of temperament, in effect, restored the parties to their respective financial state prior to the marriage. Additionally, the wife was awarded $1,000 as what we determine to be alimony in gross.

The above does not state all of the facts as presented by able counsel for the wife. We, however, in this instance deem the above sufficient as no precedential or other value would be served by stating additional testimony or evidence.

Suffice it to say, we find no abuse of discretion by the trial court in its award of alimony in gross. As this court has often stated concerning an award of alimony in gross, each case stands upon its own facts and no mathematical formula may be applied; the amount of alimony is a matter of discretion for the lower court and will not be revised on appeal in the absence of abuse. See 8 Ala.Dig. Divorce &wkey;235, 241, and 286(3).

In this instance, considering all the factors including the somewhat limited duration of the marriage, we find no such abuse so as to require reversal. For this court to find otherwise, we would have to substitute our judgment for that of the trial court. This the law does not permit. Scott Paper Co. v. Novay Cherry Barge Service, Inc., 48 Ala.App. 368, 265 So.2d 150 (1972); 2A Ala.Dig. Appeal & Error &wkey;989.

As to the wife’s second contention concerning the motion to produce, the following is revealed by the record:

In September of 1977, the wife filed a motion for the husband to produce certain documents. These documents concern financial records including tax returns. Apparently, no action by the trial court was taken on this motion. The matter came to trial some time thereafter and at the close of the evidence (at the conclusion of the ore tenus hearing), the wife’s counsel stated the following:

“I filed a motion here before trial here to produce that type stuff and I would like to make a motion that everything I have requested in my motion be produced to the Court.”

The husband objected. After some discussion, the trial court sustained the husband’s objection. Thereafter, there was further discussion concerning certain of the requested documents. The following by the wife’s counsel next appears in the record:

“We withdraw our motion. She doesn’t know where any is and she doesn’t have them, she says, so we withdraw.”

Quite frankly, it is not clear to this court precisely what the wife is referring to regarding the “withdrawing of the motion.” However, it could be said that the “withdrawal” refers to the motion to produce.

According the trial court the usual presumption of correctness, we cannot predicate reversible error on the above. Any previous error committed by the trial court concerning the sustaining of the husband’s objection to the wife’s motion to produce would, in view of the “withdrawing of the motion,” be error without injury. See Rule 45, ARAP.

In view of the above, the wife’s request for attorney’s fee on appeal is denied.

The case is due to be affirmed.

AFFIRMED.

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


author: PER CURIAM. ADKINS, Justice, ENGLAND, Justice,

text:
    Riccardo G. CIRAVOLO and Bennett G. Feldman, Petitioners, v. THE FLORIDA BAR, Respondent.
    No. 50249.
    Supreme Court of Florida.
    April 13, 1978.
    Rehearing Denied Aug. 28, 1978.
    Mallory H. Horton of Horton, Perse & Ginsberg, Miami, for petitioners.
    Russell Troutman, President of The Florida Bar, Winter Park, and Wilson J. Foster, Jr., Bar Counsel, Tallahassee, for respondent.
   PER CURIAM.

We must decide a most difficult question: whether or not evidence given by an attorney, following a grant of immunity under Section 914.04, Florida Statutes (1975), may be used against him in a disciplinary proceeding brought by The Florida Bar. We exercise our jurisdiction under Article V, Section 15, Florida Constitution, and answer this question in the affirmative.

Petitioners, Ciravolo and Feldman, are members of The Florida Bar and are subject to the exclusive jurisdiction of this court. They are presently under investigation for professional misconduct and are claiming disciplinary immunity.

Prior to 1971, Ciravolo was a law partner of Thomas O’Malley. In that year, O’Mal-ley was elected Insurance Commissioner and Treasurer for the State of Florida and as a consequence of his election, sold his share of the partnership to Ciravolo and Feldman.

In 1974, an investigation was conducted into O’Malley’s financial affairs for possible criminal charges. During the investigation, the prosecutor subpoenaed Ciravolo and Feldman to appear with their personal and business records before the Leon County Grand Jury. Pursuant to the provisions of Section 914.04, both were granted immunity in exchange for their testimony. Counsel for the state and for petitioners were of the opinion that the immunity granted extended to disciplinary proceedings brought by The Florida Bar. This is shown by the following conversation between counsel:

[Petitioner’s Counsel] It’s our understanding — and I want to confirm it with the state attorney or his assistant — that by this, fact of this subpoena, under Florida law my clients have immunity. That immunity extends to use immunity in the federal courts, and, further, that the immunity is being given for any matter including, but not limited to, any procedures before the Florida Bar—
[Assistant State Attorney] That’s correct.
[Petitioner’s Counsel] —Or any grievance procedures.
[Assistant State Attorney] That’s correct.
[Petitioner’s Counsel] Am I correct so far?
[Assistant State Attorney] If you’ll examine Statute 914.04, you’ll find that it includes the language of any penalty or forfeiture. And the courts have construed this to mean administrative hearings or disciplinary hearings before any professional organization such as the Florida Bar.
[Petitioner’s Counsel] And, Mr. Willis, that’s our understanding here today?
[Assistant State Attorney] Yes, sir. It is.
[Petitioner’s Counsel] And, further, I take it it’s our understanding that [neither] your office nor the grand jury will dilvulge [sic] information before this grand jury voluntarily or involuntarily to the Florida Bar?
Assistant State’s Attorney: Tha.t is correct.

This discussion was followed by a letter of confirmation from the assistant state attorney. In reliance on this broad grant of immunity, petitioners testified as requested and produced their records before the grand jury.

The Florida Bar subsequently commenced disciplinary proceedings against Ciravolo and Feldman based upon those transactions involved in the above mentioned matter. By petition for writ of prohibition, petitioners requested this court to halt further action by the Bar, claiming disciplinary immunity.

In order to determine whether the state attorney was authorized to grant disciplinary immunity to petitioners, we must review our immunity statute and those cases in which it has been considered in the context of professional disciplinary proceedings. Section 914.04, Florida Statutes (1975) provides:

Witnesses; person not excused from testifying in certain prosecutions on ground testimony might incriminate him; immunity from prosecution. — No person, having been duly served with a subpoena or subpoena duces tecum, shall be excused from attending and testifying or producing any book, paper, or other document before any court having felony trial jurisdiction, grand jury, or state attorney, upon investigation, proceeding, or trial for a violation of any of the criminal statutes of this state upon the ground or for the reason that the testimony or evidence, documentary or otherwise, required of him may tend to convict him of a crime or to subject him to a penalty or forfeiture, but no person shall be prosecuted or subjected to any penalty or forfeiture for or on account of any transaction, matter, or thing concerning which he may so testify or produce evidence, documentary or otherwise, and no testimony so given or produced shall be received against him upon any criminal investigation or proceeding, (emphasis added)

Clearly, this statute refers to immunization from more than criminal prosecution. A person compelled to testify or produce evidence cannot be subjected to any “penalty or forfeiture” for those matters concerning which the testimony or evidence is produced. In Florida State Board of Architecture v. Seymour, 62 So.2d 1 (Fla.1952) the terms “penalty and forfeiture” were interpreted as follows:

A penalty generally has reference to punishment imposed for any offense against the law. It may be corporal or pecuniary. A forfeiture is also a penalty and has to do with the loss of property, position or some other personal right for failure to comply with the law. The right to earn a living including other personal rights are protected by the immunity statute. At p. 3.

In Seymour, we held that an architect who had received statutory immunity from criminal prosecution was also immune from license revocation when that revocation was based upon his immunized statements. In its opinion, this court expressly rejected the New York Court of Appeals’ decision in In re Rouss, 221 N.Y. 81, 116 N.E. 782 (1917), which held that disbarment of an attorney was not a “penalty or forfeiture” contemplated by the New York immun^y statute.

Twelve years later, in Florida Bar v. Massfeller, 170 So.2d 834 (Fla.1964), the court distinguished Seymour in a case where disciplinary proceedings were brought against an attorney who claimed disciplinary immunity. Adopting some of the reasoning of Rouss, the court held that Florida’s immunity statute could not prevent disciplinary action against an attorney because the Florida Constitution conferred on this court the “exclusive jurisdiction” to admit and discipline attorneys. Article V, Section 23, Florida Constitution (1885).

Later, in Headley v. Baron, 228 So.2d 281 (Fla.1969), the court expressly overruled Seymour and held that a police officer, granted statutory immunity, could be discharged from office for conduct which had been the subject of his grand jury testimony. The effect of Headley was to limit the scope of statutory immunity to criminal penalties and forfeitures.

Four years later, in Lurie v. Florida State Board of Dentistry, 288 So.2d 223 (Fla.1973), a divided court overruled Headley and resurrected Seymour. Grounding its decision on statutory construction, and without any mention of Massfeller or 'its constitutional implications, the majority returned to a broad statutory reach for all immunized professionals stating:

Immunity extended by the State under Section 932.29, F.S., F.S.A., 1967 in surrender of the Fifth Amendment privilege is not divisible so that the protection vouchsafed thereunder is only from criminal prosecution.
* * * * * *
To be efficacious in securing testimony of a citizen the immunity extended must be coextensive with all possible governmental penalties and forfeitures, criminal or civil. Persons holding professional licenses cannot be excepted from total immunity protection. At p. 226.

It is upon Lurie that petitioners base their claim to disciplinary immunity. The following language from that case supports their contention:

Fifth Amendment freedoms are never lightly surrendered. Consequently, the state on its part should not be technically “sharp” or narrow in honoring its immunity commitment. When it professes to extend total immunity by statute its judiciary should not circumscribe or hedge or renege in part its solemn promise with exceptions permitting imposition of certain penalties and forfeitures in administrative proceedings. To do so would not only debilitate the effectiveness of the immunity grant; it would also invariably serve to engender distrust for a state officer’s promise. Fundamental fairness dictates an open and aboveboard agreement between both parties, the state and the witness. No hypocrisy or pretense can be indulged in by the state to break so solemn a pledge when a witness is compelled by law to testify.
There are those who would hyperbolically parade the horribles of felons disguised as physicians or lawyers preying on unsuspecting patients or clients under a cloak of governmental immunity. Such feared abuses and evils ordinarily never transpire because prosecuting officers exercise reasonable discrimination in granting statutory immunity. A certain degree of confidence must be placed in state attorneys and other officials by assuming they will not recklessly grant immunity to the extent of opening flood gates for great numbers of the unscrupulous to professionally victimize the public. It is to be assumed that such officials will act so as to use this bargaining tool to the state’s greatest advantage without appreciable victimization of the public. At p. 227.

Respondents argue that the above cited language is dicta and is not controlling here. The actual holding in Lurie is much narrower. In that case, disciplinary immunity was extended to a dentist whose license was subject to revocation by an agency of the executive branch of government. The holding in Seymour, which was revived by Lu-rie, also concerned a professional subject to executive branch supervision. In that case, disciplinary immunity was extended to a state licensed architect. In Massfeller, however, the court held that the discipline of an attorney was an exception to the rule announced in Seymour by virtue of the exclusive jurisdiction' of this court over members of the legal profession. Respondents argue that by reviving Seymour, the exception in Massfeller was also revived, and conclude that petitioners were on notice that the immunity granted under Section 914.04 did not extend to disciplinary proceedings brought by The Florida Bar. Massfeller is not controlling. In that case, the petitioning attorney responded to a rule to show cause issued by a circuit court judge who was conducting an inquiry into petitioner’s alleged misconduct as an attorney practicing in his circuit. That proceeding was not one in which the immunity statute applied. It was not an “investigation, proceeding, or trial, for a violation of any of the statutes of this state . . ..” Thus, petitioner was not compelled to testify by force of the statute. His statements were not exempt from use in future criminal prosecutions or any other type of action, including Bar disciplinary proceedings. In the present case, petitioners were compelled to appear by subpoena and to testify by statute. Massfeller, as distinguished above, is not dispositive.

Petitioners’ reliance on Lurie was not misplaced. The majority’s broad sweep of explanatory language and express, but unfortunate, reference to attorneys, supports petitioners’ contention that a grant of immunity under Section 914.04 extends to disciplinary proceedings brought by The Florida Bar. Since the testimony given in this case was predicated on a justifiable interpretation of this court’s strong language in Lurie, and the court’s imperfect handling of precedents, we are bound by the understanding reached by counsel in this case. This court supplied the material that misled.

We now limit Lurie and hold that a grant of immunity under Section 914.04 does not immunize attorneys from disciplinary proceedings instituted or imposed by or under authority of the rules of this court.

The meaning of Article II, Section 3 of the Florida Constitution is clear:

No person belonging to one branch shall exercise any powers appertaining to either of the other branches unless expressly provided herein.

The constitution of this state vests exclusive jurisdiction over the admission and discipline of attorneys in this court. Article V, Section 15, Florida Constitution. .

Is there any way in which an attorney may be granted immunity from disciplinary proceedings? Yes, by application to and order of this court. Where it appears that the greater good to society will be served by granting immunity from disciplinary action to an attorney, we will do so. But, we will not allow officials of other branches to tread on the constitutional power vested in this court by the people of this state. It is disquieting having attorneys who may have engaged in serious misconduct handling the affairs of clients. It is this disturbing feature that motivated The Florida Bar to take action in this ease. The Bar has acted responsibly and in accord with the highest traditions of the profession. Immunity is an important tool in a prosecutor’s workshop. It allows him to obtain and utilize evidence which would otherwise be unavailable because of important and cherished federal and state constitutional freedoms. The court is concerned about the practice of law by those involved in wrong doings of a criminal nature, but, we are also mindful that this court and the profession should not place a stumbling block in the path of the citizens of this state who strive mightily to uncover and rid our communities of criminal acts.

Accordingly, The Florida Bar is prohibited from proceeding further with charges against these petitioners.

It is so ordered.

OVERTON, C. J., BOYD and HATCH-ETT, JJ., and PEARSON, District Court Judge, concur.

ADKINS, J., concurs in result only with an opinion.

ENGLAND, J., concurs in part and dissents in part with an opinion, with which SUNDBERG, J., concurs.

ADKINS, Justice,

concurring in result.

I concur in the result, but would recede from Florida Bar v. Massfeller, 170 So.2d 834 (Fla.1964).

There should be no impediment placed in the path of prosecutors who feel it necessary to grant immunity to one in order to convict another.

ENGLAND, Justice,

concurring in part and dissenting in part.

I readily concur with the Court’s exclusion of attorney disciplinary proceedings from the immunity statute, and I approve the procedural means now devised by which this Court may confer immunity from professional discipline in situations where the testimony or records of an attorney are deemed indispensible to some public purpose. I do not agree, however, with the Court’s exoneration of Ciravolo and Feld-man. My disagreement centers around the binding effect which the majority has attributed to this Court’s dicta in Lurie v. Florida State Board of Dentistry, 288 So.2d 223 (Fla.1973), and to the significance accorded petitioners’ “justifiable interpretation of this court’s strong language” in that case. I suggest that the admittedly “unfortunate”, one-word reference to lawyers in Lurie pales in comparison with the resonant pronouncements on the same subject in Massfeller, and that petitioners’ interpretation was not genuinely justified.

My first point of departure from the Court’s decision today is its view of The Florida Bar v. Massfeller, 170 So.2d 834 (Fla.1964). The majority has fairly traced this Court’s checkered treatment of professionals under the immunity statute — a history with little consistency save only, until today, the treatment of attorneys. Massfeller is the genesis of the notion that attorneys cannot claim the benefits of an immunity statute in disciplinary proceedings. As the majority notes, the Court in Mass-feller held the immunity statute inapplicable to the circuit court disciplinary proceedings on the ground that the proceeding was not an “investigation, proceeding, or trial, for a violation of any of the statutes of this state.” Rut the Court also had some very strong things to say about the reach of any legislative enactment which might be viewed as limiting the Court’s disciplinary power over attorneys.

“The power of courts to discipline attorneys at law is as ancient as the common law itself. . . . The constitutional power contained in Art. V, Sec. 23 of the Florida Constitution is but a recognition of this already existing authority of the Florida Courts. The independence of the Courts of the other two coordinate and equal branches of our state government does not permit of any interference by either of said branches in the exercise by the Courts of this state of their inherent and constitutional power to discipline members of the Bar. Any statute enacted by the Legislature which attempted to do so would of necessity be stricken down as unconstitutional. . . . [W]e hold that [the immunity statute] has no applicability to disciplinary proceedings of members of the Florida Bar and . . . [i]n so holding, we find ourselves in accord with the decisions of the highest courts of appeal of other states . In re Rouss, 221 N.Y. 81, 116 N.E. 782. In the case from New York, In Re Rouss, supra, the Court of Appeals of that state was construing the effect of an immunity statute in words almost identical with the Florida statute. There the Court, speaking through Mr. Justice Cardozo, stated that disbarment was not a penalty or forfeiture against which the statute immunized a member of the Bar.”

If the majority feels bound by one unfortunate reference to lawyers in the hyperbolic statement in Lurie, I fail to see why it feels any less bound by Massfeller’s clear enunciation that so far as immunity for lawyers is concerned, the constitutional “separation of powers” presents an insurmountable barrier.

My second point of departure from the majority is its attribution of binding effect to counsel’s interpretation of Lurie. Article II, Section 3 of the Florida Constitution states with unmistakable clarity:

“No person belonging to one branch shall exercise any powers appertaining to either of the other branches unless expressly provided herein.”

The authority to impose or withhold attorney discipline is a power which reposes by Constitution in this Court. Article V, Section 15, Florida Constitution. I know of no way in which the legislature by statute, or an official of the executive branch by promise or conduct, could legitimately exercise that power on our behalf. It follows that the assistant state attorney was in no way empowered to forestall our power to discipline Ciravolo and Feldman.

Lurie is really not in derogation of this separation of governmental powers doctrine. That case involved disciplinary action against a dentist brought by the state’s licensing board — the executive branch agency then charged with statutory licensing and disciplinary responsibilities. Whatever may be the appropriate judicial construction of the legislature’s grant of immunity for professionals regulated by the executive branch of government, Lurie in fact did not involve the rationale previously considered and adopted in Massfeller for attorney immunization — the independent constitutional assignment of “exclusive jurisdiction” in this subject area to this Court.

My colleagues and I ultimately disagree, it seems to me, not on what this Court has done in the past but on what it has said. The prosecutor’s “promise” of disciplinary immunity to Ciravolo and Feldman (if such it was) may well have been prompted by the Lurie majority’s broad sweep of explanatory language and the express (but unfortunate) reference to lawyers. Were it not for these statements, the unique constitutional position of lawyers that was recognized in Massfeller would not only have prevailed in this case but, as is equally important, would have appeared to be prevailing. Lurie would properly have been seen as involving no more than a return to Seymour’s more liberal construction of the statutory terms “penalty or forfeiture” for non-lawyer professionals.

Yet another compelling reason exists as to why Ciravolo and Feldman were not entitled to rely on what this Court offhandedly said in Lurie. At the time that their counsel and the assistant state attorney discussed disciplinary immunity, neither Cira-volo nor Feldman had any legal alternative to the production of their records or testimony. They did not then possess something which they any longer had a right to withhold, for they had already received immunity from criminal prosecution. They were not constitutionally free at that juncture to refuse either their testimony or their records. This is precisely why Mass-feller is relevant, because, as it announced, the immunity statute is simply not available to an attorney who is not facing criminal prosecution when his records and testimony are sought. The United States Supreme Court, the United States Court of Appeals for the Seventh Circuit, and several state high courts have also held that once criminal responsibility is no longer a threat, testimony may not be withheld. No decisions to the contrary have been called to my attention, or discovered by independent investigation. In this case, Ciravolo and Feldman could not have refused to testify because immunity from criminal prosecution was unequivocally conferred. Any additional promises or beliefs as to the incidental effects of their immunized status were then legally irrelevant.

For these reasons, I conclude that neither the purported promise of disciplinary immunity nor the beliefs or reliance of counsel is adequate to oust the disciplinary jurisdiction of this Court, and that the petition of Ciravolo and Feldman to halt the investigation of The Florida Bar should be denied.

SUNDBERG, J., concurs.

       It is the State’s position that, even absent a subpoena commanding the appearance of Messrs. Ciravolo and Feldman, our proposed discussion will inherently confer upon Messrs. Ciravolo and Feldman full and complete transactional immunity as contemplated by Florida Statute 914.04 as to each and every transaction, matter or thing concerning which they may offer testimony or information.

      . 170 So.2d at 838-39. Precisely the same issue as governed in Rouss — whether disbarment is a “penalty or forfeiture” within the meaning of the immunity statute — governs this proceeding. Rouss, incidentally, was recently reaffirmed in In re Anonymous Attorneys v. Bar Ass’n of Erie County, 41 N.Y.2d 506, 393 N.Y.S.2d 961, 362 N.E.2d 592 (1977).

      . The majority, of course, actually does embrace the rationale of Massfeller for Florida attorneys, but only prospectively. It has simply made an exception to the doctrine announced in 1964, and now reasserted, for Messrs. Ciravolo and Feldman.

      . Nothing else in the Constitution otherwise expressly provides.

      . See In re The Florida Bar, 316 So.2d 45 (Fla.1975), holding that the legislature lacks authority to enact a statutory code of ethics for the judiciary, and citing Massfeller with approval. The jurisdictional situation here is no different from any other attempt by one branch to exercise another’s powers. For example, the legislature could not by statute authorize its members or any member of the judiciary to grant clemency, which is assigned by the Constitution to the executive branch, and no member of the judiciary could, by promise under a statute which purported to grant such authority, in fact grant executive clemency.

      . Cf. Stancel v. Schultz, 226 So.2d 456 (Fla.2d DCA 1969), holding that a state attorney cannot grant immunity beyond the scope of his express authority.

      . §§ 466.06 and 466.08, Fla.Stat. (1969).

      . Immunity, of course, is a creature of statute. State v. Schroeder, 112 So.2d 257 (Fla.1959). The differing views on the reach of the immunity statute for non-lawyer professionals are juxtaposed in the majority and dissenting opinions in Lurie.

      . Lurie also suggested that any authorized official of one branch acts for the “total state”, and can obligate all public officials of the other branches. That statement was obviously hyperbole. Under our scheme of explicitly separate powers, I reject the notion, as do my colleagues prospectively, that any one of 20 state attorneys, or any one of their innumerable assistants, can divest this Court of its bar disciplinary responsibilities under any set of circumstances. Obviously, Lurie cannot justifiably be read literally on this point.

      . They could have refused to testify or to produce records, of course, if they were willing to risk a jail sentence for contempt of court. Their status as attorneys may then have been jeopardized, however, if they were in fact found to be in contempt of court.

      . Ullmann v. United States, 350 U.S. 422, 76 S.Ct. 497, 100 L.Ed. 511 (1956).

      . In re Daley, 549 F.2d 469 (7th Cir.), cert. denied, 434 U.S. 829, 98 S.Ct. 110, 54 L.Ed.2d 89 (1977).

      . In Re Schwarz, 282 N.E.2d 689 (Ill.), cert. denied, 409 U.S. 1047, 93 S.Ct. 527, 34 L.Ed.2d 499 (1972); Maryland State Bar Ass’n, Inc. v. Sugarman, 273 Md. 306, 329 A.2d 1 (1974), cert. denied, 420 U.S. 974, 95 S.Ct. 1397, 43 L.Ed.2d 654 (1975); In Re Epstein, 37 A.D.2d 333, 325 N.Y.S.2d 657 (1971), cert. denied, 405 U.S. 1046, 92 S.Ct. 1313, 31 L.Ed.2d 588 (1972); In re Klebanoff, 21 N.Y.2d 920, 289 N.Y.S.2d 755, 237 N.E.2d 75, cert. denied, 393 U.S. 840, 89 S.Ct. 118, 21 L.Ed.2d 110 (1968); Committee on Legal Ethics of West Virginia State Bar v. Graziani, 200 S.E.2d 353 (W.Va.1973), cert. denied, 416 U.S. 995, 94 S.Ct. 2410, 40 L.Ed.2d 774 (1974).