author: SMITH, Judge. BOYER, Chief Judge

text:
    Colon WARD and Wiley Ward, Petitioners, v. STATE of Florida, Respondent.
    No. AA-307.
    District Court of Appeal of Florida, First District.
    March 11, 1976.

      W. Fred Turner, Lynn Haven, Ronald B. Deal, Chipley, and H. Clay Mitchell, Jr., Pensacola, for petitioners.
    Robert L. Shevin, Atty. Gen., and Wallace E. Allbritton, Asst. Atty. Gen., for respondent.
   SMITH, Judge.

We stayed proceedings in the trial court while reviewing, by common law certiorari, petitioners’ claim that the trial court departed from essential requirements of law in transferring this criminal case from Washington County to Calhoun County for trial.

Petitioners were charged in Washington County with buying, receiving or concealing stolen property there, in violation of § 811.16, F.S.1973. Court was convened in Washington County to impanel a jury and try the case. After several veniremen had been examined on voir dire, in which evidence of rather pervasive newspaper accounts appeared, the prosecutor received and advised the court of information that a prospective juror had been threatened by close personal friends of petitioners. The court then privately interrogated approximately 15 of the remaining members of the venire and discovered that “no less than five people had been approached either directly or indirectly and promised punishment or gain of reward if they saw that they were seated as a jury panel or petit jury and sat in trial of this matter [and] that they would be rewarded if they voted right and punished if they didn’t vote correctly.” The court noted that Colon Ward had previously been convicted of a federal jury tampering charge.

In granting the State’s motion for change of venue pursuant to Rule 3.240, R.Cr.P., the court recited that “it would be impossible to try the Defendants in a fair and impartial manner with this jury ve-nire” and that “the Court does not believe that a fair and impartial trial of this cause can be conducted in Washington County .” The case was transferred for trial in Calhoun County.

Since 1885, the Florida Constitution has guaranteed to persons accused of crime “a speedy and public trial by impartial jury in the county where the crime was committed.” Art. I, § 16, Fla.Const. (1968); § 11, Declaration of Rights, Fla.Const. (1885). That guaranty is a legacy of the jurors’ ancient role, until the latter part of the seventeenth century, as witnesses to the disputed facts:

“The jury, then, was a body of neigh-bours called in, either by express law, or by the consent of the parties, to decide disputed questions of fact. The decision upon questions of fact was left to them because they were already acquainted with them, or if not already so acquainted with them, because they might easily acquire the necessary knowledge. For this reason it has been said that the primitive jury were witnesses rather than judges.” 1 Holdsworth, History of English Law 156 (1908).

Among the substantial benefits to the accused of a jury drawn from the “vicinage” was a trial where the accused

“was surrounded by the influences of a good character if he had established one, and where the witnesses were accessible . .” Hewitt v. State, 43 Fla. 194, 198, 30 So. 795, 796 (1901).

That Parliament enacted laws authorizing trials for treason in any county in England, which British authorities threatened to employ against recalcitrant colonists, “was one of the grievances which led to the separation of the American colonies from the British empire.” Swart v. Kimball, 43 Mich. 443, 449, 5 N.W. 635, 638 (1880). Explicit guaranties of trial by a jury of the county or vicinage were therefore written into the original constitutions of Maryland, Massachusetts, New Hampshire, Virginia, Pennsylvania and Georgia. Murphy v. Supreme Court, 294 N.Y. 440, 455, 63 N.E.2d 49, 55, 161 A.L.R. 937, 946 (1945). The local constituency of the jury was thought to be so fundamental that it was held to be implied in the right of jury trial itself. Swart v. Kimball, supra, 43 Mich, at 448, 5 N.W. at 637.

The Florida Supreme Court’s first interpretation of the guaranty in the 1885 Constitution was entirely consistent with the deep concern displayed by the colonists more than one hundred years before. In Hewitt v. State, supra, the Court upheld the transfer of a murder trial from Bradford County to Duval on the State’s motion. A statute permitted transfer when it was “impracticable” to obtain a qualified jury in the county where the offense was allegedly committed, and the Court held it not violative of § 11 of the Declaration of Rights, “limiting it to the impossibility of securing an impartial jury in that county.” Hewitt, 43 Fla. at 199, 30 So. at 796.

Noting that the trial court in Hewitt exhausted a venire of 125 persons without obtaining a qualified jury, the Court in O’Berry v. State, 47 Fla. 75, 36 So. 440 (1904), reversed a trial court determination that it was impracticable to obtain a qualified jury in Osceola County, where O’Berry allegedly committed cattle theft, because his guilt or innocence had been widely debated during his candidacy for the legislature, it had been the subject of public comment and litigation in a replevin action concerning the cattle and O’Berry’s trial for larceny of another animal had been generally discussed. All those facts, the Supreme Court held, did not demonstrate that a qualified jury could not be obtained from the more than 600 citizens of Osceola County who were eligible for jury duty:

“The fact that it might have been difficult or would have consumed considerable time to have procured a qualified jury to have tried the defendant is not sufficient to warrant a change of venue, against the consent of defendant.” O’Berry, 47 Fla. at 86, 36 So. at 443.

In Ashley v. State, 72 Fla. 137, 72 So. 647 (1916), the Court again reversed a trial court’s order transferring a cause on grounds of the impracticability of obtaining a qualified jury and held:

“. . . the matter should be tested in some way so as to make it to clearly appear that it is practically impossible to obtain an impartial jury to try the accused in that county.” Ashley, 72 Fla. at 140-41, 72 So. at 648.

The Court held that the affidavits filed by the state attorney failed to demonstrate that a qualified jury could not be obtained from the 1500 persons who were subject to jury duty.

Again, in Higginbotham v. State, 88 Fla. 26, 101 So. 233 (1924), the Supreme Court reversed another transfer for trial, holding:

“. . . it is the rule in this jurisdiction that this practical impossibility should be determined only after an actual test has been made to obtain an impartial jury.” Higginbotham, 88 Fla. at 37, 101 So. at 237.

This Court has twice applied the rule of Hewitt, O’Berry, Ashley and Higginbotham: in reversing Rhoden v. State, 179 So. 2d 606 (Fla.App. 1st, 1965), in which the trial court had determined it impracticable to obtain an impartial Hamilton County jury after exhausting a panel of 34, all summoned to duty by the defendant’s brother, the sheriff; and in reversing Davis v. State, 256 So.2d 565 (Fla.App. 1st, 1972), in which Judge Wigginton dissented on the ground that an actual attempt to obtain an impartial jury is not essential under Rule 1.240, now Rule 3.240, R.Cr.P.

The State’s motion in this case was accompanied by affidavits satisfying the literal requirements of Rule 3.240, R.Cr.P. As Judge Wigginton stated in Davis, the Rule contains no explicit requirement that the availability of impartial jurors be tested by attempting to select a jury when the State moves for a transfer. It merely states:

“(d) The court shall consider the affidavits filed by all parties and receive evidence on every issue of fact necessary to its decision. If the court grants the motion it shall make an order removing the cause to the court having jurisdiction to try such offense in some other convenient county where a fair and impartial trial can be had.”

The procedure by which the court is thus directed to determine the matter has undergone only slight modification since passage of the Criminal Procedure Act of 1939. See ch. 19554, § 175, Fla.Laws 1939; § 8663 (182), Fla.Comp.Gen.Laws (1940 Supp.); § 911.05, F.S. 1941-1969; Rule 1.-240, Cr.P.R., 33 F.S.A. (1967).

The trial judge in this case encountered shocking evidence of an insidious effort to threaten or buy prospective jurors. The climate in which the Washington County venire assembled was affected by newspaper publicity. The accused are evidently well known and influential in the county. One of them was previously convicted for jury tampering. Certainly by conventional standards of proof it was adequately shown that the availability of an impartial jury, at least from that venire, was problematical. Under the circumstances, there was reason to be uneasy even concerning those veniremen who professed impartiality. See Irvin v. Dowd, 366 U.S. 717, 727-28, 81 S.Ct. 1639, 1645, 6 L.Ed.2d 751, 759, (1961).

Strong as the evidence was of the difficulty of the task, the impossibility of obtaining an impartial jury was not demonstrated by an exhaustive effort to select such a jury from among the citizens of Washington County. The court examined only 13 veniremen in open court, and only three of those were excused for cause suggesting partiality. The court privately identified five more, out of approximately 15 of the remaining venire, whose ability to sit as jurors had been compromised by improper overtures. We believe that the court’s attempt to impanel an impartial jury in Washington County was insufficient. We are without authority to retreat from our Supreme Court’s pronouncements which are so rooted in history and which have been so explicitly followed by our own Court.

The terms of Rule 3.240, R.Cr.P., permit the trial court to pass on a defendant’s motion for change of venue on affidavits and other evidence pertinent to the matter in issue. But when the State seeks to move the trial because it asserts an impartial jury cannot be had, and the defendant objects, there is an obvious conflict between the Rule’s procedures and the rigid requirements of Hewitt, O’Berry, Ashley and Higginbotham, laid down when no rule or statute prescribed how the availability of an impartial jury should be tested. We must assume that our Supreme Court would test its own rule of procedure by the same strict constitutional standard it applied in the cited cases to the earnest efforts of trial courts to determine the disputed issue. By those standards, an exhaustive and unsuccessful attempt to select an impartial jury from Washington County is a necessary predicate for changing venue on application of the State over the defendants’ objection.

The order of the trial court is quashed and the case is remanded for further proceedings in the Circuit Court of Washington County.

MILLS, J., concurs.

BOYER, C. J., dissents.

BOYER, Chief Judge

(dissenting).

I respectfully dissent. The majority opinion is certainly well reasoned and rooted in history. However, I am of the view that no constitutional right had been transgressed and that the able trial judge sufficiently and properly complied with the mandate of Rule 3.240, R.Cr.P., which was promulgated and adopted by the Supreme Court of Florida with the obvious intent, it seems to me, of modifying the historical rule of precedent relied upon by the majority.

I would approve the action of the trial judge here reviewed and deny the writ sought by petitioners.


source: Caselaw Access Project

author: PER CURIAM.

license: Public Domain

text:
    Beauford MacMAINOR, Appellant, v. STATE of Florida, Appellee.
    No. V-213.
    District Court of Appeal of Florida, First District.
    March 11, 1976.
    David J. Busch, Asst. Public Defender, Tallahassee, for appellant.
    Robert L. Shevin, Atty. Gen., and Raymond L. Marky, Asst. Atty. Gen., Tallahassee, for appellee.
   PER CURIAM.

Affirmed. Johnson v. State, 308 So.2d 38 (Fla.1975); State v. Terry, Case No. 46,370 (Fla.1976).

RAWLS, Acting C. J., and MILLS and SMITH, JJ., concur.


text:
    Arthur Lewis CHIEVES, Appellant, v. STATE of Florida, Appellee.
    No. Y-192.
    District Court of Appeal of Florida, First District.
    March 11, 1976.

      Bartley K. Vickers, of Mahon, Farley & Vickers, Jacksonville, for appellant.
    Robert L. Shevin, Atty. Gen., and Richard W. Prospect, Asst. Atty. Gen., for ap-pellee.
   PER CURIAM.

Appellant, charged by information with two counts of manslaughter by culpable negligence and two counts of manslaughter while intoxicated, was convicted of the former charges but acquitted of the latter. From that conviction and the resulting sentence this appeal is taken. The issue for our resolution is whether the trial court erred in failing to grant appellant’s motion for directed verdict of acquittal on the manslaughter by culpable negligence charges. Upon examination of the entire record, we find that said motion should have been granted.

Negligence, sometimes referred to as “ordinary negligence” for the purpose of distinguishing it from culpable negligence, is defined in the Florida Standard Jury Instructions as follows:

“Negligence is the failure to use reasonable care. Reasonable care is that degree of care which a reasonably careful person would use under like circumstances. Negligence may consist either in doing something that a reasonably careful person would not do under like circumstances or in failing to do something that a reasonably careful person would do under like circumstances.”

The term “culpable negligence” was defined by the Florida Supreme Court in Preston v. State, Sup.Ct.Fla.1952, 56 So.2d 543 in this manner:

“The ‘culpable negligence’ required to sustain a manslaughter charge must be of ‘gross and flagrant character, evincing reckless disregard of human life or the safety of persons exposed to its dangerous effects; or that entire want of care which would raise the presumption of indifference to consequences; or such wantonness or recklessness or grossly careless disregard of safety and welfare of the public, or that reckless indifference to the rights of others, which is equivalent to an intentional violation of them.’ Savage v. State, 152 Fla. 367, 11 So.2d 778, 779.” (Emphasis added)

From the above-quoted definition, it is readily apparent that culpable negligence is of much greater import than ordinary negligence. Culpable negligence will support a conviction for a crime. Ordinary negligence will not.

That the defendant had been drinking or was to some degree under the influence is not proof of culpable negligence. (Jackson v. State, Fla.App. 1st, 1958, 100 So.2d 839; Peel v. State, Fla.App.1st, 1974, 291 So.2d 226) As already recited, the jury acquitted appellant of the intoxication counts.

In that regard this case is. extremely similar to Peel v. State, supra, and in this case, as in Peel, we find from an examination of the record that while appellant may well have been guilty of negligence, the evidence is insufficient to prove that high degree of negligence required to sustain a conviction of manslaughter.

Accordingly, appellant’s conviction of manslaughter by culpable negligence and the sentences imposed thereon are reversed, and appellant is ordered discharged.

Reversed with directions.

BOYER, C. J., and RAWLS and Mc-CORD, JJ., concur.


author: BOYER, Chief Judge. McCORD, Judge. BOYER, Chief Judge,

text:
    Roland LEE and William C. Sapp, Appellants, v. STATE of Florida, Appellee.
    No. Z-477.
    District Court of Appeal of Florida, First District.
    Feb. 27, 1976.
    On Rehearing March 30, 1976.
    Richard W. Ervin, III, Public Defender, and Louis G. Carres, Asst. Public Defender, for appellants.
    Robert L. Shevin, Atty. Gen., and Carolyn M. Snurkowski, Asst. Atty. Gen., for appellee.
   BOYER, Chief Judge.

One question is presented for our review on appeal, to wit: whether certain testimony sought to be introduced at appellants’ trial for breaking and entering with intent to commit grand larceny was properly excluded on the basis of the hearsay rule.

Appellants were caught in the act of removing certain items belonging to Randall Knight and Bob Posey which were stored in an old building in Live Oak. Both appellants told Posey and Knight that someone had broken the lock and hasp off the door which secured the front of the storage building, and that they were loading the items from the storage building onto their truck to take to another place for safekeeping. In support of this theory, appellants presented the testimony of Donald Googe who personally knew all four of the individuals involved in the case. Mr. Googe testified that on the day in question, he received two phone calls from appellant Lee. When appellants requested Mr. Googe to relate the substance of the second conversation, the state objected on the grounds that the testimony would be hearsay. On proffer, Mr. Googe testified that appellant Lee told him that the lock had been broken off the door to Mr. Po-sey’s building and that he (appellant Lee) was going to call Posey and let him know that he was going to take the valuable items from the building and move them to another building. The trial court sustained the state’s objections and ruled that the testimony was inadmissible.

The initial question which must be answered is whether the proposed testimony constitutes hearsay at all. Appellants attempted to adduce testimony of the conversations not for the purpose of establishing the truthfulness of the conversations, but for the purpose of proving that the conversations took place and for the further purpose of proving state of mind. As a leading authority on the subject has stated, “If, ... an extrajudicial utterance is offered, not as an assertion to evidence the matter asserted, but without reference to the truth of the matter asserted, the Hearsay rule does not apply.” 6, Wig-more on Evidence, § 1766 (1940). The objection to the evidence proposed in the instant case was sustained on the ground that it was hearsay. It was not. It was direct evidence of the facts sought to be proven thereby: that the conversations did in fact take place and that appellants did not have the requisite intent or state of mind to commit grand larceny. State of mind is an ingredient of intent. Intent is an ingredient of the crime of grand larceny. Mere possession of the property of another is not a crime. The testimony not being properly excluded on the basis of the hearsay rule and being relevant to an essential element of the state’s case (i. e., intent), the cause is reversed and remanded for a new trial. See Brown v. State, Fla. App. 4th 1974, 299 So.2d 37.

Reversed and remanded.

McCORD and MILLS, JJ., concur.

ON PETITION FOR REHEARING

McCORD, Judge.

Upon consideration of the petition for rehearing and reconsideration of this cause, we are of the opinion that the proffered testimony in question was hearsay and did not come within one of the exceptions to the hearsay rule. The statement of what appellant Lee told Googe in a telephone conversation was offered in lieu of appellant’s direct testimony of what he told Googe. (Neither of the appellants took the witness stand.) It was not sought merely for the purpose of showing that a telephone conversation took place and without reference to the truth of the statements made in the conversation. Testimony that the conversation took place was admittted without objection. For the statements to have any materiality, the jury must determine that the statements made by appellant to Googe were true — that appellant told Googe that someone had broken the lock and hasp off the door of Posey’s building and appellant was going to call Posey and let him know that he was going to move the valuable items to another building.

We, therefore, grant the petition for rehearing, recede from our previous opinion, and affirm.

MILLS, J., concurs.

BOYER, C. J., dissents.

BOYER, Chief Judge,

DISSENTS.

I respecfully dissent. I would adhere to our original decision.


author: RAWLS, Acting Chief Judge.

text:
    John SANDERS, Jr., Appellant, v. STATE of Florida, Appellee.
    No. Y-382.
    District Court of Appeal of Florida, First District.
    March 11, 1976.
    C. Wayne Alford and Martin I. Edwards, of Jacobs, Sinoff, Edwards, Alford & Burgess, Jacksonville, for appellant.
    Robert L. Shevin, Atty. Gen., and Richard W. Prospect, Asst. Atty. Gen., for ap-pellee.
   RAWLS, Acting Chief Judge.

Did the trial court err in allowing the state additional peremptory challenges ? This is the primary question posed by appellant, John Sanders, Jr.

A direct information was filed charging Sanders with assault to commit robbery and assault to commit murder in the first degree (two counts). During the selection of the jury, the state and the defendant, after extensive voir dire and each utilizing six peremptory challenges, tentatively selected a petit jury of six veniremen. An alternate juror was then called, and after voir dire by the state was conducted, she was accepted. Upon appellant’s attorney completing the voir dire of this alternate juror, she was accepted by him. After a side bar conference, the court announced a recess. The state then moved the court to “allow up to 9 challenges [peremptory]” on the ground that:

“It would be doing substantial justice, it would be trying to reach a just determination in this case under the purpose and scópe of Rule 3050 [F.R.Cr.P. 3.350] and also with the wise exercise of the Court’s inherent discretion to limit the number of jurors below the cumulative maximum [18].”

Appellant’s attorney vigorously objected to the motion stating that he was satisfied with the six jurors and the alternate selected, and: “This is completely against the request and wishes of the defendant and his counsel, who feel that the Court has no discretion whatsoever to allow the State additional challenges where the defense does not make that request.”

Florida Rule of Criminal Procedure 3.350(e) provides:

“If an indictment or information contains two or more counts or if two or more indictments or informations are consolidated for trial, the defendant shall be allowed the number of peremptory challenges which would be permissible in a single case, but in the interest of justice the judge may use his judicial discretion in extenuating circumstances to grant additional challenges to the accumulate maximum based on the number of charges or cases included when it appears that there is a possibility that defendant may be prejudiced. The State shall be allowed as many challenges as are allowed the defendant.” (emphasis supplied)

The trial judge is authorized to grant additional peremptory challenges “in the interest of justice” when it appears that there is a possibility that defendant may be prejudiced. The rule does not authorize granting to the state additional peremptory challenges upon the state’s motion.

The state argues that “the State has the implicit right to invoke the provisions” of the rule, and if error was committed, such was harmless since appellant has not demonstrated any prejudice.

The only Florida case that we have found in point is that of Savage and James v. State, wherein the court held:

“Where two are jointly indicted and tried for a capital offence each prisoner is allowed twenty peremptory challenges, but the law does not allow more than five to the State as to both. To allow the State to challenge five for each would in effect give the State ten for each prisoner, because each challenge affects each prisoner alike. Counsel for the Plaintiffs in Error cite several authorities to sustain this position: Proffatt on Jury Trials, § 164; Schoeffler [Shoeffler] vs. State, 3 Wis., 823; Mahan vs. State, 10 Ohio, 232; State vs. Earle, 24 La.An., 38; Wiggins vs. State, 1 B.J.Lea.Tenn., 738.
“We have found no other cases directly in point. It is unnecessary to consider this question further. It is clear that the court erred in allowing more than five peremptory challenges to the State, and an exception having been taken to the action of the court there was material error affecting the rights of the defendants.”

It is significant that the Attorney General argued in Savage that:

“By the common law, the prosecution in criminal cases could exercise, on behalf of the crown, peremptory challenges to an unlimited extent without alleging any other reasons than that ‘they are not good men for the King.’ Proffatt on Jury Trial, § 159; 1 Chitty Cr.Laws, 533.”

and then concluded with the observation that: “If no harm has resulted to the prisoners there can be no more reason why a new trial should be granted on account of error as to a peremptory challenge, than in one for cause or a charge to the jury.”

As reflected above, the Supreme Court summarily rejected the state’s “harmless error” argument in Savage. Decisions of other jurisdictions support the Savage view that the granting of an excessive number of peremptory challenges to the state constitutes reversible error per se.

The judgment appealed is reversed with directions that a new trial be granted.

SMITH and McCORD, JJ., concur.

      . At this stage the attorney for the state announced : “The State would be pleased to try this case before this jury at this time.” Shortly thereafter, appellant’s attorney stated: “Mr. Sanders, Your Honor, would be pleased to try the ease before this jury.”

      . The attorney for the state announced: “Once again, the State would be happy to have Mrs. Beckerleg and this jury.”

      . Appellant’s attorney stated: “Mr. Sanders will be pleased to have this alternate on the case.”

      . Savage and James v. State, 18 Fla. 909 (1882).

      .Annot., 95 A.L.R.2d 957 (1964).


author: MILLS, Judge. McCORD, Acting Chief Judge

text:
    DIVISION OF FAMILY SERVICES, DEPARTMENT OF HEALTH AND REHABILITATIVE SERVICES, State of Florida, Appellant, v. In re S. R. et al., Appellees.
    No. X-453.
    District Court of Appeal of Florida, First District.
    March 10, 1976.
    Eve Dunkerley Peck, Duane N. Ivester and Chester G. Senf, Jacksonville, for appellant.
    Raymond Brill, and John J. Kearns, Asst. Public Defender, Gainesville, for ap-pellees.
   MILLS, Judge.

The Division appeals from a final judgment rendered by the Juvenile Court which precludes the Division from filing a future petition for the permanent commitment of five children to the Division for the purpose of adoption, and which directs the Division to place the children in the same licensed foster home located in Northeast Florida. The issue here is whether the Court had authority to preclude the filing of a future petition and to restrict the placement of the children.

The Division is not precluded from filing a future petition, because Section 39.11(4), Florida Statutes, provides that an order such as the one before us may be modified or set aside. It is well established that orders pertaining to the welfare of children may be modified on the basis of a substantial change of circumstances. We reverse.

The Court had authority to direct the Division to place the five children in the same foster home located in Northeast Florida. Keeping the five children together is the intent and goal of Chapter 39, Florida Statutes. The Court has authority under Chapter 39 to impose reasonable conditions and restrictions in custodial orders entered after an adjudicatory hearing. The conditions and restrictions imposed by the order before us are reasonable and did not infringe upon the authority of the Division. The Division may select the foster home as long as it is within the area set by the Court. F. B. v. State, 319 So.2d 77 (Fla.App. 1st, 1975). We affirm.

We reverse in part and affirm in part.

SMITH, J., concurs.

McCORD, Acting C. J., concurs specially-

McCORD, Acting Chief Judge

(concurring specially).

I concur in the foregoing opinion. The two restrictions imposed by the trial court’s order appear to be reasonable though I can visualize that appellant may have some difficulty in placing five children in the same foster home in the area prescribed by the order. If it should develop that it cannot find a suitable foster home, such could form the basis for a modification of the trial judge’s order.


author: DOWNEY, Judge.

text:
    FRANK COULSON, INC.-BUICK, Appellant, v. Florine E. TRUMBULL, as Executrix of the Estate of George T. Trumbull, Deceased, Appellee.
    No. 74-1342.
    District Court of Appeal of Florida, Fourth District.
    Feb. 27, 1976.
    Rehearing Denied March 30, 1976.

      F. Kendall Slinkman of Farish & Farish, West Palm Beach, for appellant.
    Marjorie D. Gadarian of Jones, Paine & Foster, West Palm Beach, for appellee.
   DOWNEY, Judge.

Appellant, Frank Coulson, Inc. — Buick, sued appellee, George T. Trumbull, in two counts, one for libel and the other for intentional interference with an advantageous business relationship. At the end of the plaintiff’s case the trial court directed a defense verdict on the libel count. The interference count suffered the same fate at the close of all of the evidence in the case. Coulson appeals from a final judgment based upon the directed verdicts.

Appellant’s claims arose out of several letters written by appellee to executives of General Motors Corporation in which ap-pellee passed on to General Motors allegedly false information about appellant, a Buick automobile dealership. One of the letters addressed to an executive of the Buick division stated in material part: ^

“Mr. Franklin Clements has informed me of the deplorable conditions existing at the Coulson Buick Agency, Delray Beach, Florida. The physical condition is not properly maintained. The service is very bad and in some instances it has taken six weeks to get parts. The attitude of the personnel is negative. The owner is seldom on the job. In other words, the agency is in a mess.
“Mr. Clements, a close friend is a man of high integrity, not one to find cause of complaint unless justified. He is a person of affluence, being President of one of Delray Beach’s best clubs and a member of many others. He personally informed me that he is the owner of many General Motors products over the years and he is alarmed at such a situation existing in this community of many responsible people. Some friends because of this bad condition have purchased competitive products.”

Appellant alleged that as a result of these communications from appellee (which ap-pellee knew or should have known were false), General Motors became highly critical of appellant’s agency and eventually forced appellant to sell the agency at a price far below its true value.

Our review of the record discloses evidence which, viewed in the light most favorable to appellant, would support findings that: (a) appellee’s informant did not tell him that competitive products were being purchased because of the bad condition of the agency or that the agency was in “deplorable condition” or that it was “in a mess”; (b) appellee had no personal knowledge of the dealership, the attitude of its personnel, its modus operandi, or any of its other features; (c) as a result of the communications in question appellant was virtually drummed out of the corps by General Motors; (d) appellant was forced to sell its Buick agency at a price substantially below the true value of the agency; (e) appellant had legal rights arising out of an existing business relationship and ap-pellee was guilty of an intentional and unjustified interference with that relationship, as a result of which appellant suffered damage. Thus, we conclude that appellant made a prima facie case for intentional inference with an advantageous business relationship, thereby requiring presentation of that issue to the jury for resolution. John B. Reid & Associates, Inc. v. Jiminez, Fla.App.1965, 181 So.2d 575.

In arguing for affirmance appellee contends that as the owner of 90,000 shares of stock in General Motors Corporation he was qualifiedly privileged to publish the communication in question. We think the trier of fact should have been permitted to determine whether appellee proved that his actions were privileged. See, e. g., Collins v. Vickter Manor, 47 Cal.2d 875, 306 P.2d 783 (1957).

Because the jury should have resolved the question whether appellee intentionally interfered with appellant’s advantageous business relationship and the question whether appellee’s actions were privileged, it was error for the trial court to direct a verdict for appellee on either count.

Because the case must be tried again we deem it advisable to treat one additional point on appeal. Appellant contends the trial court erred in precluding it from showing on cross examination that two of appellee’s witnesses harbored bias or prejudice against appellant because of other litigation involving those witnesses. As heretofore mentioned appellant sued General Motors Corporation in the federal court system for damages arising out of this same general factual situation. One of the primary witnesses for General Motors against appellant was a General Motors representative, James Dougherty. Appellant sued Mr. Franklin G. Clement in the Fifteenth Judicial Circuit of Florida for his part in this whole picture. At the trial of the present case the court would not allow appellant to cross examine Dougherty or Clement, in an effort to demonstrate their possible bias against appellant as a result of those other suits. While no great incursion into the detail of those other suits or their result would be appropriate, we feel it was certainly relevant for the jury to consider the witnesses’ involvement in litigation with the appellant in determining the credibility of those witnesses. Thus, on retrial we believe a showing of such involvement would be appropriate.

Reversed and remanded for a new trial.

CROSS, J., concurs.

WALDEN, C. J., dissents without opinion.

      . Such a finding was made on this facet of the case in a similar action by Coulson against General Motors Corporation reported at 488 F.2d 202 (5th Cir. 1974).

      . Since the count of the complaint for libel and the count for interference are based upon the identical publications, those counts would appear to give rise to the same possible damages ; and if appellant upon retrial is able to prove its cause of action and damages for interference such proof would cover any claim inherent in the count for libel. Cf. Orlando Sports Stadium, Inc. v. Sentinel Star Co., Fla.App.1975, 316 So.2d 607; Prosser, Law of Torts, § 128 (4th Ed. 1971).


author: JONES, Justice.

text:
    William SCHAEFERS, Jr. v. Edward H. APEL et al.
    SC 1556.
    Supreme Court of Alabama,
    Feb. 27, 1976.
    Sherman B. Powell, Sr., Decatur, for appellant.
    St. John & St. John, Cullman, for appel-lees.
   JONES, Justice.

This is an appeal from a judgment which denied William Schaefers, Jr.’s bill to set aside a conveyance from Rosemary Schaefers Sandlin to Edward and Arthur Apel and voided, as an illegal restraint on alienation, a restrictive provision in a deed from Mary A. Schaefers to Rosemary Schaefers Sandlin. We affirm the denial of the bill to set aside the conveyance and modify the order declaring the restrictive provision void.

In 1961, Mary A. Schaefers divided her real property and conveyed it to her children, William Schaefers, Jr., Elfreda Schaefers, Julienne Schaefers, and Rosemary Schaefers Sandlin. In 1974, Rosemary conveyed her portion of her mother’s property to Edward and Arthur Apel. William Schaefers initiated this suit to set aside the Sandlin-Apel conveyance.

The 1961 deed from Mary A. Schaefers to Rosemary contained fee simple language in both the granting and habendum clauses, but it also contained a restrictive provision. Omitting the legal description of the property conveyed, the deed reads:

“STATE OF ALABAMA 1 “CULLMAN, ALABAMA/
CORRECTED WARRANTY DEED
“KNOW ALL MEN BY THESE PRESENTS, That Mary A. Schaefers, a widow, for and in consideration of Ten Dollars, love, affection and other valuable consideration to her in hand paid by Rosemary Schaefers Sandlin, the receipt whereof is hereby acknowledged I have this date granted, bargained, sold, and conveyed, and do by these presents grant, bargain, sell, and convey to the said Rosemary Schaefers Sandlin, her heirs, administrators and assigns, the following described tract or parcel of land, to-wit:
“[Legal Description]
“As a part of the consideration the grantor reserves a life estate for herself in hand to the above described property.
“It is further mutually agreed by and between- the grantor and the grantee that as a part of the consideration set out above, the grantee agrees to provide a permanent home for my daughter, Elfreda Schaefers, should she desire or request one and for my son, William Schaefers, Jr., should he desire or request one. However, it is further mutually agreed between the parties that the grantee herein is required only to furnish a permanent home for either Elfreda Schaefers, or William Schaefers, Jr., upon their request, however, this request and requirement will not and shall not apply to either of their dependents or spouse. Failure to perform the above will be considered a material breach of the consideration set out herein.
“TO HAVE AND TO HOLD unto her, the said Rosemary Schaefers Sand-lin, her heirs, executors, administrators, and assigns, forever in fee simple. And I hereby covenant with the said Rosemary Schaefers that I am seized in fee of the aforegranted premises, and have the right to sell and convey the same, and I do hereby warrant the title to the aforegranted premises, and agree forever to defend the same from the lawful claims of all persons whomsoever.
“IN TESTIMONY of all which I have hereunto set my hand and seal this the 22nd day of November, 1961
“WITNESS:
s/ James F. Berry
s/ Mary A. Schaefers L.S. Mary A. Schaefers”

William contends that the 1974 conveyance to the Apels violates the restrictive provision of the 1961 deed. He claims that the provision manifests his mother’s intention that he and Elfreda would retain for life the right to reside in the family house, which is located on the property granted to Rosemary. (Elfreda, who now lives with Rosemary in another house, has granted Rosemary a quit claim deed and is not a party to this law suit.) William supports his contentions by arguing that the restrictive provision in the 1961 deed created a fee simple subject to a condition subsequent, and by conveying to the Apels, Rosemary has broken the condition.

The Apels argue that the restrictive clause is ambiguous since it conflicts with the fee simple language in both the granting and habendum clauses. They also contend that under the rule of construction of Henry v. White, 257 Ala. 549, 60 So.2d 149 (1952), the first clause in the deed, i. e., the grant of an absolute fee simple, prevails. Alternatively, they argue that, even if thef restrictive provision is retained, it does not specify that the permanent home must be the old home place and since such a construction would operate as a restraint on alienation, it should not be found without a clear and unequivocal expression of intent.

We first address the defendants’ argument that the rules of construction obliterate the restrictive provision. We follow the recent case of Wilkins v. Ferguson, 294 Ala. 25, 310 So.2d 879 (1975), which dealt with a fact situation similar to that of the instant case. Wilkins held that reservations or restrictions following a granting clause containing words of inheritance are not necessarily void. In that case, this Court also stated that the arbitrary construction rules, applied to inconsistent clauses in Henry v. White, supra, would not control when the intentions of the parties could be discerned from the instrument.

Following the Wilkins case, we find that Mary Schaefers did intend to solicit Rosemary’s promise to provide a permanent home for William and Elfreda in consideration for the conveyance, and that the provision manifests that intention; therefore, it is not void. This finding brings us to the problems of determining the nature and operation of the provision.

To set aside the Sandlin-Apel conveyance, the plaintiff must prove that the restrictive provision is a condition subsequent. If the provision is a condition subsequent, it creates a right of entry in Mrs. Schaefers’ estate which may be exercised by William for a condition broken. The right of entry is not subject to the rule against perpetuities in Alabama; therefore, it creates a cloud on title which will endure indefinitely. Libby v. Winston, 207 Ala. 681, 93 So. 631 (1922).

Thus, Alabama courts do not favor construing restrictive provisions in deeds of conveyance as conditions subsequent. And in cases where the intention of the grantor is not clear, this Court prefers to construe a restriction as a covenant—not to be confused with a covenant running with the land—rather than a condition subsequent. Hanners v. Hanners, 262 Ala. 143, 77 So.2d 484 (1955).

To be sure, this Court, as recognized in Hanners, has held that a restrictive provision expressing the consideration for a conveyance may constitute a condition subsequent. A conveyance of property made under such circumstances is not absolute, and the title thereto may be divested upon breach of the condition. This exception to the general rule disfavoring conditions subsequent is set forth in First National Bank v. McIntosh, 201 Ala. 649, 79 So. 121, L.R.A.1918F, 353. The restrictive provision in McIntosh—“[Grantee] shall take care of us ... and . . . give us a home with her on said premises”—is materially different from the provision in the instant case as well as the provision in Hanners.

The restrictive portion in Mrs. Schaefers’ deed to Rosemary makes no reference to the property conveyed as the permanent home which Rosemary is required to furnish, nor does it contain a divestiture or re-entry clause. Rather, it uses the language, “Failure to perform the above will be considered a material breach of the consideration.” “[A] material breach of the consideration” connotes the remedy of damages, not the right of entry. Such a drastic remedy as the divestiture of a fee simple estate must be expressed more precisely than this. Following the Alabama cases which hold that the intention to create a fee simple subject to condition subsequent must be clearly and unequivócally expressed (Lowery v. May, 213 Ala. 66, 104 So. 5 (1925)), we find that the restrictive language in the deed to Rosemary is a covenant in the nature of a personal obligation, not a covenant running with the land. We, therefore, affirm the trial Judge’s order upholding the Sandlin-Apel conveyance and turn to the final issue for review — the interpretation of the restriction.

In his decree, the trial Judge held the restrictive provision of the 1961 deed void, finding that it did not specify that the permanent home would be on the property described, and that it did impede alienation. We agree that the restriction does not require the permanent home to be located on the property described; however, since we have held that the restriction is a covenant rather than a condition subsequent, we find no necessity to declare it void. The covenant to provide William a permanent home upon request does not impede alienation of the property because it does not state that the permanent home must be in the family homeplace or on any other part of the property conveyed by Mrs. Schaefers. The covenant, therefore, is not enforceable against the Apels or any subsequent grantees and constitutes no impediment to alienation because it does not “touch and concern” the land in question. See Cribbett, Principles of Real Property at 353 (1975). The covenant is merely a personal obligation from Rosemary to William to provide him a permanent home in some location if he requests one. Since William has made no request, Rosemary has not breached the covenant. The provision remains valid within this context.

The trial Judge’s order, therefore, is modified to hold the restrictive provision of the deed valid insofar as it imposes upon Rosemary a personal obligation to provide William a home at his request.

AFFIRMED IN PART, MODIFIED IN PART, AND RENDERED.

HEFLIN, C. J., and MERRILL, MADDOX, and SHORES, JJ., concur.


author: FAULKNER, Justice.

text:
    Frank ROBERTS, etc. v. Ben W. FREDRICK, etc.
    SC 1167.
    Supreme Court of Alabama.
    March 5, 1976.

      Charles E. Floyd, Phenix City, for appellant.
    Ferrell & Bennett, Phenix City, for ap-pellee.
   FAULKNER, Justice.

This is an appeal from an order of the Circuit Court of Russell County, enjoining the Mayor of Phenix City from removing, or attempting to remove, Fredrick as a Commissioner of the Housing Authority of Phenix City. We affirm.

The issue to be decided is whether the Mayor had the power to discharge a Commissioner of the City Housing Authority.

The Mayor’s evidence chows that he told Mr. Fredrick that he was going to remove him from the office of Commissioner of the Phenix City Housing Authority because no report of Housing Authority activities had been filed in the Mayor’s office. Subsquently, the Mayor sent Mr. Fredrick the following letter:

“OFFICE OF THE MAYOR FRANK ROBERTS
“Phenix City, Alabama
November 25, 1974
“Mr. Ben Fredrick
Member of Board of Directors
The Housing Authority of the
City of Phenix City, Alabama 36867
“Dear Mr. Fredrick:
“By the powers invested in me as the Mayor of the City of Phenix City, Alabama, under Title 25, Section 11 of the Code of Alabama, 1940, as amended, I hereby request that you voluntarily resign from the position which you now hold as Member of the Board of Directors of the Housing Authority of the City of Phenix City, Alabama, for inefficiency and neglect of duty while holding said office and for failure to comply with Title 25, Section 29, of the Code of Alabama, 1940, as amended, whereby the Housing Authority of the City of Phenix City, Alabama, is required to file a report of the activities of the Housing Authority of the City of Phenix City, Alabama, at least once a year to me as the Mayor of the City of Phenix City, Alabama, and for the legislation or other action that may be necessary in order to carry out the purposes of the laws of the State of Alabama.
“Should you refuse to voluntarily resign as a Member of the Board of Directors of the Housing Authority of the City of Phenix City, Alabama, then I have no alternative other than to replace you on the Board of Directors of the Housing Authority of the City of Phenix City, Alabama, commencing immediately.
“Should you desire to contest this matter, then you should request a formal hearing in my office within ten (10) days from the date of this letter.
“Sincerely,
/s/ Frank Roberts
Frank Roberts, Mayor
City of Phenix City, Alabama”

Mr. Fredrick’s evidence shows that the Mayor told him that if he did not vote to remove the Executive Secretary of the Housing Authority, Fredrick would be removed by the Mayor as Commissioner. None of the other Commissioners of the Authority were asked to resign by the Mayor, and none of them were threatened to be removed by the Mayor.

Mr. Fredrick, as were the other Commissioners, was appointed to the Authority for a 5-year term. Fredrick’s term ends in 1977.

Title 25, § 8, Code of Alabama, provides :

“An authority shall consist of five commissioners appointed by the mayor . to serve for terms of one, two, three, four and five years Thereafter, the term of office shall be five years.”

This court has said “appointed by the May- or” means just that, and does not mean that the City Board of Commissioners has the authority to appoint Commissioners of the Housing Authority. Wilson v. Lowe, 278 Ala. 578, 179 So.2d 324 (1965). Wilson dealt only with the power to appoint by the Mayor. The court did not rule specifically on the question of removal, even though § 11, Removal of Commissioners, was set out in the opinion, and emphasis placed on “the Mayor” appearing thereon. This apparently led the Mayor in this case to conclude that the power to appoint carried with it the power to remove.

The issue in this case boils down to a single question, viz., is a Commissioner of a City Housing Authority an officer of an incorporated city or town? This court opined in In re Opinion of the Justices, 235 Ala. 485, 179 So. 535 (1938) that a Housing Authority is an administrative agency of a city and performs city functions. The court has held that City Boards of Education act as free and independent agencies of a city school system, Day v. Andrews, 279 Ala. 563, 188 So.2d 523 (1966); and, that members of a City Board of Education are officers of the city, and cannot be removed, except for causes specified in § 173, Constitution of Alabama, 1901, and in the manner provided by § 175, i. e., impeachment.

We are of the opinion that a Housing Authority Commissioner is an officer of the city. Therefore, his removal can only be for causes specified in § 173 of the Constitution, by impeachment under § 175. Title 25, § 11 of the Code giving the May- or power to remove a Commissioner is repugnant to the Constitution.

AFFIRMED.

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


author: MERRILL, Justice.

text:
    DIRECT OIL CORPORATION, INC., a corporation, v. CITY OF HOMEWOOD, a Municipal Corporation, et al.
    SC 1284.
    Supreme Court of Alabama.
    Feb. 27, 1976.

      Lewis K. Cato and James B. Morton, II, Birmingham, for appellant.
    Irvine C. Porter, Birmingham, for appel-lees.
   MERRILL, Justice.

The decree in this declaratory judgment proceeding is reversed and the cause is remanded on authority of McKenna v. City of Homewood, 295 Ala.-, 324 So.2d 770, decided December 18, 1975.

In the instant case, the proceeding was brought to test the validity of Ordinance 1265 of the City of Homewood which prohibited the sale of wine or malt beverages at any drugstore, gasoline service station, or delicatessen, grocery store or convenience store where gasoline was sold to the public, unless the consent and approval of the city council was first obtained.

At the time of the oral argument, appel-lees’ brief was limited to its motion to dismiss the appeal on the ground that the question was moot. This was because Ordinance 1265 had been superseded by Ordinance 1271, which was passed January 27, 1975, and the instant case was not tried in circuit court until March, 1975, when the court dismissed the cause on authority of USA Oil Corporation v. City of Lipscomb, 293 Ala. 103, 300 So.2d 362. At that time, McKenna, supra, had not been decided.

In McKenna, there is no mention of Ordinance 1271, but it is referred to in the pleadings as “the amendment to Ordinance 1265” adopted on January 27, 1975, the same date that Ordinance 1271 was adopted. Actually, 1271 is identical to 1265 except that the last 45 words of 1265, requiring approval of the city council, are omitted from 1271.

So this court had both ordinances in the record before it in McKenna and it remanded the cause after it had been dismissed on motion based on ARCP 12(b)(6). When the instant case was argued and submitted here, the record did not even contain a copy of Ordinance 1271.

The only material difference between McKenna and the instant case is that the place of business was a convenience store in McKenna and it is a gasoline service station in this case.

At oral argument in the instant case attorneys for both sides requested us to go ahead and decide the question of the validity of Ordinance 1271. Since submission, the City of Homewood has filed a supplemental brief which is the brief the city filed in McKenna. While the request offers some advantage in time, we are persuaded that it would be fairer to follow the same action as taken in McKenna. We never properly had Ordinance 1271 before us in the instant case; the supplemental brief is addressed to McKenna and not this case; we would have to completely disregard the question of mootness; and counsel representing McKenna have not been consulted, insofar as we are informed, and they certainly would be inclined to believe that this court would follow McKenna as to procedure. In addition, one panel of this court could be charged with going counter to the other in the treatment accorded to the parties on the same question of law and procedure.

The judgment of the trial court is reversed and the cause is remanded.

REVERSED AND REMANDED.

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


author: JONES, Justice. SHORES, Justice

text:
    M. M. MILES v. BANK OF HEFLIN.
    SC 1315.
    Supreme Court of Alabama.
    Dec. 18, 1975.
    Rehearing Denied March 5, 1976.

      Rives, Peterson, Pettus, Conway & Burge, Birmingham, and James D. Pruett, Gadsden, Rutledge & Pruett, Birmingham, for appellant.
    Steiner, Crum & Baker, Montgomery, and John S. Casey, Heflin, for appellee.
   JONES, Justice.

This is an appeal from a summary judgment denying M. M. Miles and other stockholders of the Bank of Heflin the 10% penalty provided under Tit. 10, § 21(46) for the refusal of the Bank of Heflin to allow them to inspect its corporate records. We reverse and remand.

The stockholders requested permission for their accountants to examine the books and records of the Bank of Heflin pursuant to Tit. 10, § 21(46). The Bank told them that certain limitations would be placed upon their access to the Bank’s records. Among the things the Bank wanted to prevent the stockholders from inspecting were financial statements of borrowers, reports of examinations of the Bank by federal and state regulatory authorities, and information which would disclose the salaries paid to individual employees of the Bank. To limit the scope of inspection, the Bank filed a declaratory judgment action. The stockholders filed a counterclaim for the statutory 10% penalty. Both parties filed motions for summary judgment upon affidavits and depositions.

The trial Court agreed with the Bank that the inspection should be limited and appointed a Master to determine the scope of permissible inspection. The Court then granted the Bank’s motion for summary judgment against the stockholders’ counterclaim for the penalty. The stockholders brought mandamus to enforce their right to full inspection of the records and filed an appeal to review the summary judgment denying the penalty. A writ of mandamus requiring the trial Court to order the Bank to permit full inspection was granted on August 21, 1975, in Ex parte Miles, 294 Ala. 462, 318 So.2d 697 (1975). The case now before us is the appeal from the summary judgment on the penalty. The Bank has filed a motion to dismiss the appeal.

There are two issues for review. First, whether the Bank’s motion to dismiss the stockholders’ appeal is due to be granted. Second, if the appeal is not dismissed, whether the trial Judge erred in granting a summary judgment against the stockholders’ counterclaim for the statutory penalty.

I.

On the Motion to Dismiss Appeal

The Bank contends that the stockholders are attempting to appeal from an incomplete adjudication of the case below. It contends that ARCP 54(b) prevents the appeal because, when the stockholders appealed, the trial Judge had entered a judgment only upon the counterclaim for the penalty, and the trial Judge had not made “an express determination that there is no just reason for delay and an express direction for the entry of judgment.” ARCP 54(b).

This Court, m Cates v. Bush, 293 Ala. 535, 307 So.2d 6 (1975), discusses the effect of Rule 54(b) and is relationship to Alabama’s prior statutory provisions for appeal and holds that Rule 54(b) neither superseded, nullified, nor modified Tit. 7, § 754, Code, relating to the finality of judgments. Cates further observes, “Title 7, Section 754, provides that, except in unusual circumstances, appeal must be only from a final judgment. Rule 54(b) merely sets out one instance where a judgment may now be made final although it would not have been final prior to the adoption of the new rules.” Therefore, to determine whether the stockholders’ appeal should be dismissed, we must not confine our inquiry to the language of Rule 54(b), but we must look to all applicable Alabama law.

Our inquiry must begin with a review of the procedural posture of this case at the time of the stockholders’ appeal. The order of the trial Judge, the subject of this appeal, primarily did two things. First, it denied the stockholders’ demand for unlimited inspection and appointed a “Special Master” to inspect the Bank’s records to determine which records the stockholders should be allowed to inspect. Second, it granted the Bank’s motion for summary judgment on the counterclaim for the statutory penalty.

The stockholders brought mandamus to compel full inspection and brought appeal to revise the order denying the statutory penalty. A writ of mandamus was granted in Ex parte Miles, supra. The rationale for granting mandamus in that case was that the stockholders were being denied “a clear legal right, the allowance of which is a matter of peremptory duty, and not of judicial discretion,” citing Ex parte Watters, 180 Ala. 523, 61 So. 904 (1913), and Ex parte Weissinger, 247 Ala. 113, 22 So. 2d 510 (1945).

Granting mandamus, says the Bank, on the issue of inspection operates to preclude the instant appeal under Rule 54(b). The Bank contends, by granting mandamus, this Court acknowledged that the entire case had not been fully adjudicated below; therefore, the appeal on the penalty is an appeal from a nonfinal judgment; and, without the express direction for entry of judgment under Rule 54(b), it is due to be dismissed. We disagree.

Our holding that mandamus was proper in Ex parte Miles, supra, did not necessarily mean that appeal was not also available. It only meant that appeal was not adequate because of the exigencies of the situation and because of the peremptory, nondiscre-tionary duty violated by the trial Judge. To determine whether appeal is proper in the instant case, it is necessary to determine whether the trial Judge’s order, in all its component parts, was appealable when he entered it. If it were appealable at that time, then the “express determination” and “express direction” requirements of Rule 54(b) are unnecessary. Cates v. Bush, supra.

We hold that the trial Judge’s order appointing a Master to determine which records the stockholders could properly inspect is a final judgment for purposes of appeal; therefore, the summary judgment on the penalty is not a partial judgment and it is appealable without a Rule 54(b) determination and direction.

A large body of case law has developed around the problem of when an order which refers part of a case to a register or master is a final judgment. Chadwick v. Town of Hammondville, 270 Ala. 618, 120 So.2d 899 (1960). The first Alabama cases on the problem are now over 130 years old and their rules have been followed consistently. The earliest statement is “that a decree ‘is final when it ascertains all the rights of the parties in litigation,’ although there may be a reference to the master to ascertain facts for an account between the parties.” Bank of Mobile v. Hall, 6 Ala. 141 (1844), and Weatherford v. James, 2 Ala. 170 (1841).

The rule arose in equity jurisprudence because old Equity Rules 79 through 88 were the only effective vehicle for appointing masters prior to the adoption of the Alabama Rules of Civil Procedure. As the equity rule developed, it was broadened to apply to various equity situations. The most common statement is, “The test of the finality of a decree sufficient to support an appeal is that it ascertains and declares the rights of the parties and settles the equities, and is not controlled by the fact that the cause remains in fieri in respect to other matters.” McCulloch v. Roberts, 290 Ala. 303, 276 So.2d 425 (1973); Moorer v. Chastang, 247 Ala. 676, 26 So.2d 75 (1946); Carter v. Mitchell, 225 Ala. 287, 142 So. 514 (1932).

ARCP 53 has now superseded old Equity Rules 79 through 88, and ARCP 2 has merged the procedural distinction between law and equity into one form of action— the “civil action”. Rule 53 provides for reference to a master in any civil action in which the presiding judge finds it necessary. It is now incumbent upon this Court to determine whether the equity case law allowing appeal after a reference to master should be extended to the Rule 53 situation. The rationale for the equity rule was articulated in one of the early cases. That rationale is: If the chancellor has erroneously ascertained the merits of the case, the delay, expense, and trouble attending the ascertainment of facts and preparation of a report by the master are unnecessary and profitless. Bank of Mobile v. Hall, supra.

We find that the policy articulated by this Court in Bank of Mobile case is as applicable today as it was in 1844. Rule 53(a) provides that “the compensation to be allowed to a master shall be fixed by the court, and shall be charged upon such of the parties ... as the court may direct.” In the instant case, the Court ordered the Bank of Heflin, Miles, and the Woods to pay $400 each to defray expenses of the Master. If it is determined that the trial Judge adjudicated all of the merits of the case, and the stockholders were going to appeal regardless of the content of the Master’s report, it would be “unnecessary and profitless” for them to await the Master’s report before appealing. This is the same situation this Court faced when appeals were brought from equity trials after reference to a master and the same rule must apply here.

We now address the question of whether the instant case falls within the scope of the rule allowing appeal from orders which include references to masters. The purpose of this inquiry, it must be remembered, is not to determine the propriety of our granting mandamus in Ex parte Miles, supra, but rather, it is to determine whether the trial Judge’s order constituted a final judgment in all of the claims, thereby taking this case beyond the scope of Rule 54(b). The mere fact that the Court has ordered a reference to a Master is not, of itself, sufficient to make out a final judgment for purposes of appeal. It is also necessary that the trial Judge has decided “the substantial merits of the controversy — the material issues of fact and law litigated or necessarily involved in the cause, which determine the legal rights of the parties, and the principles by which such rights are to be worked out.” Adams v. Sayre, 76 Ala. 509 (1884).

In the instant case, we can determine what material issues of fact and law are involved in the controversy from the pleadings of the parties. The Bank’s complaint prayed that the Court set forth in detail the books, records of account, memo-randa, and other information that the stockholders were entitled to see, but that it deny the stockholders access to confidential information and information held by the Bank in its fiduciary relationship with its customers. The stockholders’ answer denied that the Bank had a right to withhold any records from stockholder inspection based on its claim of confidential relationship and prayed that the Court direct the Bank to immediately make available all of its books and records of account for their examination.

In its order, the Court found:

(1) That the Bank’s fiduciary relationship and duty to its customers did place limitations upon the access to all writings or records of the Bank.

(2) That the stockholders could not have access to the individual files and memoranda from which the books and records are prepared.

(3) That the Bank should not reveal such things as amount on deposit or savings of customers, individual certificates of deposit, and private memoranda of customers.

After making these findings, the Court referred the matter to a Special Master who was directed to return a report specifying which of the Bank’s records did not fall within the category of confidential information and were, therefore, available for inspection.

When the Court made its findings and issued its decree in accordance therewith, including reference to the Master, it adjudicated the substantial merits of the con-troversey. It granted the Bank’s request to limit the inspection and denied the stockholders’ demand for complete inspection. All that remained was for a Master to determine exactly which of the Bank’s records fell within the prohibited category. Regardless of what the Master reported, he could not have broadened, or otherwise en-. larged upon, the limited right of inspection as decreed by the Court. Thus, the stockholders lost their case on the merits and their right of appeal necessarily accrued at that time. Indeed, had the stockholders awaited the Master’s report, they would have risked the running of the statutory period for appeal. O’Rear v. O’Rear, 227 Ala. 403, 150 So. 502 (1933).

This situation falls exactly within the policy behind allowing appeals, under certain circumstances, from reference to masters. We find that it would have been “unnecessary and profitless” for the stockholders to have awaited the Master’s report to appeal; and we hold that, under the adjudication of substantial merits rule set out in McCulloch, the order appointing the Master was final and would have supported an appeal. Therefore, the stockholders’ appeal from the summary judgment entered against their counterclaim for the statutory penalty is not an appeal from a nonfinal judgment and it is not due to be dismissed. Motion to dismiss the appeal is denied.

II.

On the Merits of the Appeal

The trial Judge granted the summary judgment and dismissed the stockholders’ counterclaim because he found that “the filing of the declaratory judgment action does not constitute a refusal or denial of the records.” Our review of the trial Court’s order granting a motion for summary judgment requires us to address two issues.

First, whether the trial Judge’s decision is legally correct. Second, whether affidavits and depositions of the parties show there was no genuine issue of material fact as required by Rule 56(c).

On the first issue, we must decide whether a declaratory judgment filed by a corporation to limit stockholders’ inspection of corporate records is a “refusal” of the stockholders’ demand as a matter of law. The purpose of the statutory penalty is to make corporate records more accessible to stockholders. If there were no penalty, the usual course for a stockholder seeking inspection would be to file suit to enforce his right. The expense of such litigation would discourage many stockholders from pursuing their rights. The penalty forces a corporation to assume financial responsibility for its refusal.

If we were to hold that filing of declaratory judgment action was not a refusal as a matter of law, then the Board of Directors can easily circumvent the penalty provision while still putting the stockholders to the expense of litigation to enforce their inspection rights. By rendering the penalty provision, inoperative, declaratory judgment actions would shield the Board from the demands of those stockholders who cannot afford to pursue litigation.

Therefore, we cannot agree that filing a declaratory judgment action is not a refusal to allow inspection. The fact that the Board of Directors, rather than the stockholders, has instituted the litigation cannot exonerate the Board of its duty to allow inspection. We therefore hold that when the Board forced the stockholders to litigate in order to pursue their rights, it effectively refused to allow inspection.

The remaining issue for liability under the penalty statute is whether the Bank’s refusal to allow full inspection of its books and records was “without reasonable cause.” Tit. 10, § 21 (46). Ordinarily, this question of reasonable cause is a disputed factual issue to be determined with reference to the facts and circumstances in each case. As the Committe Comments to Rule 56 state: “The summary judgment procedure is not a substitute for the trial of disputed issues of fact. On a motion for summary judgment, the court cannot try issues of fact.” 10 Wright and Miller, Federal Practice and Procedure, § 2712.

The posture of the record in the instant case, however, reveals an out of the ordinary situation. Following responsive pleadings, including counterclaims for the statutory penalty, filed by the stockholders to the Bank’s Bill for Declaratory Judgment, each of the parties, with supportive affidavits and depositions, moved the Court for summary judgment. Understandably, when the trial Court denied the stockholders the right of full inspection, it likewise denied their motions for summary judgment and, consistent therewith, granted the Bank’s motion for summary judgment. This had the effect of dismissing the stockholders’ counterclaims.

Unquestionably, had the trial Court denied the Bank’s sought for relief limiting the stockholders’ right of full inspection, it likewise would have denied the Bank’s motion for summary judgment. Ex parte Miles, supra, revised the trial Court’s order denying full inspection on the basis of the clear and nondiscretionary mandate of the statute. Moreover, the right of a stockholder, within reasonable limits and for proper purposes, to inspect the books and records of the corporation in which he owns an interest, absent a contract to the contrary, is hardly dependent upon legislative expression. Indeed, any effort to statutorily limit such right by arbitrarily excluding certain books and records from the scope of full inspection would raise serious constitutional questions.

Given the revision of the trial Court’s order denying full inspection affected by Ex parte Miles, and given our conclusion that in the context here presented the Bank’s filing of a declaratory judgment action was an effective denial of the stockholders’ request for such inspection, we necessarily must reverse the order below granting the Bank’s motion for summary judgment and dismissing the stockholders’ counterclaims. This is not to say that the Bank’s mere filing of a declaratory judgment action in itself is an effective denial of the right of inspection. Rather, we say that the basis for the denial was the defense of confidentiality and upon that basis there was an effective denial of the right of inspection resulting in the right to recover the statutory penalty under Tit. 10, § 21(46).

The only basis for the Bank’s refusal is summed up in its President’s deposition when he states that the Bank’s confidential relationship with its customers made a declaratory judgment action reasonable, and thus its refusal was with reasonable cause. Since this constitutes a legal contention merely, which has been rejected by Ex parte Miles and the instant appeal, the trial Court is directed on remand to grant the stockholders’ motions for summary judgment and assess against the Bank in favor of each stockholder respondent a penalty equal to 10% of the value of the stock owned by each respective stockholder.

Reversed and remanded with instructions.

MERRILL, BLOODWORTH, MADDOX, FAULKNER, ALMON and EM-BRY, JJ., concur.

SHORES, J., concurs specially.

HEFLIN, C. J.„ not sitting.

SHORES, Justice

(concurring specially) :

I agree with the result and agree that Rule 54(b), ARCP, has no application since, in my view, the order entered by the trial court, granting the bank’s motion for summary judgment and limiting the appellants’ right to full inspection, was a judgment which was final and therefore ap-pealable.

As to these appellants, stockholders, the ruling of the trial court could not have been more adverse, nor final. The ruling denied every aspect of relief which they sought without reservation. It was their contention that they were entitled to full inspection of the records of the bank. The appointment of a master to select what parts of those records could be inspected was, as far as the stockholders were concerned, a denial of their claim of right to inspect all of the records. Regardless of what the master produced, it would necessarily be less than they sought to inspect. Therefore, I think appeal was proper and that the method of review should have been utilized to test the propriety of the trial court’s refusal to permit full inspection of the records. The fact that the court has granted a petition for writ of mandamus, as to the right to inspect, does not destroy the finality of the judgment entered and appealed from here, but candor requires us to admit that piecemeal review has been the result.

On Rehearing

This Court notes that the Bank has retained new counsel who has filed an extensive brief in support of its application for rehearing. For that reason, we feel constrained to file an extended written opinion, addressing the important points raised in the application.

The arguments urging our modification of the original opinion fall into three categories :

1. The trial Court did not consider the stockholders’ motion for summary judgment on their counterclaim for the penalty; therefore, the issue was not before this Court for review.

2. Regardless of whether the trial Court considered the stockholders’ motion, this Court erroneously remanded the cause with instructions to enter a summary judgment in favor of the stockholders because the questions of the stockholders’ “proper purpose” and the Bank’s “reasonable cause” for refusal are issues for trial, and because the stockholders did not assign as error the- trial Judge’s denial of their motion for summary judgment.

3. The 10% penalty prescribed by Title 10, § 21(46), is a maximum figure, not an absolute standard; therefore, the trial Court is authorized to set the penalty on a continuum up to 10%.

We will address each of these arguments separately.

First, the record sets out the stockholders’ motion for summary judgment on their counterclaim for the penalty. The motion is accompanied by affidavits which include the stockholders’ letters to the Bank demanding inspection of books and records and the depositions of the Bank’s stockholders, president, attorney, and public relations officer. The trial Judge’s order is prefaced with the following statement: “This is a declaratory judgment and is submitted on motions by the respective parties for a summary judgment on the pleadings, affidavits and depositions on file in this case.” There is no order in the record striking the stockholders’ motion for summary judgment and whether the trial Judge, in fact, did consider the motion is not material to this Court’s review of the trial Court’s propriety in not granting it.

Where the parties have moved for summary judgment under Rule 56 and submitted supporting affidavits, which establish that there is no genuine issue of material fact, appellate courts are authorized to remand the case with instructions for entry of summary judgment. Sayre v. City of Cleveland, 493 F.2d 64 (6th Cir. 1974). We therefore find no merit in the Bank’s first argument.

The Bank’s second argument is that determinations of “proper purpose” and “reasonable cause” were genuine issues of material fact. Smith v. Flynn, 275 Ala. 392, 155 So.2d 497 (1963), explains that the burden is on a corporation to prove improper purpose; therefore, if the corporation does not question the stockholders’ purposes, there is no issue for trial. The stockholders’ demand for inspection alleged proper purposes such as inquiries into: misuse of corporate funds,, the abuse of corporate office, the diversion of corporate assets to the personal benefit of any officer, director, employee or stockholder, and the favoring of certain customers of the Bank because of their personal connections with the officers or directors. The depositions of the stockholders which accompanied their motion for summary judgment set forth specific occurrences which made them suspect corporate mismanagement. Two examples of the suspected mismanagement were the Bank’s purchasing land from a board member at more than its market value and the Bank’s making a substantial loan to a board member who could offer only a second mortgage as security.

The Bank offered no affidavits to establish improper purpose. Rule 56(e), in pertinent part, provides:

“When a motion for summary judgment is made and supported as provided in this rule, an adverse party may not rest upon the mere allegations or denials of his pleadings, but his response, by affidavits or as otherwise provided in this rule, must set forth specific facts showing that there is a genuine issue for trial. If he does not so respond, summary judgment, if appropriate, shall be entered against him.”

The last sentence of 56(e) has been interpreted to mean that even if the adverse party files no affidavits opposing the motion, a summary judgment can be entered against him only if “appropriate.” Dawk-ins v. Green, 412 F.2d 644 (5th Cir. 1969). We hold that this is an appropriate case for the entry of summary judgment for two reasons. First, the president of the Bank on direct examination by the stockholders’ attorney admitted that he had no reason to believe that Mr. Miles had some purpose for asking to see the records other than to determine the way the bank had been operated. Second, the burden is on the corporation to prove that the stockholders’ demand is not for a proper purpose. Smith v. Flynn, supra. Therefore, if the Bank offers no evidence of improper purpose and in fact admits through its president that there is no reason to suspect improper purpose, the question of purpose is not an issue for trial.

On the “reasonable cause” issue, again, the burden rests with the corporation. The trial Judge found that the peculiar fiduciary relationship between a Bank and its customers created a reasonable cause for the Bank’s refusal to permit inspection. This Court, however, reversed that finding in Ex parte Miles, 294 Ala. 462, 318 So.2d 697 (1975), holding that the inspection rights of stockholders of a bank are the same as stockholders of a corporation generally. Thus, Ex parte Miles finally resolved the question of “reasonable cause”, and that issue is not before the trial Court on remand. Since all of the triable issues —issues of law, not of fact — are resolved in this Court, the only proceeding remaining for the trial Court is to grant a summary judgment in favor of the stockholders. Millworth Converting Corp. v. Slifka, 188 F.Supp. 629 (S.D.N.Y.1960).

As to the propriety of our instructions to grant a summary judgment, the Bank argues that the issue of the trial Judge’s denial was not before this Court on appeal because it was not assigned as error. Our instruction, however, is not grounded upon a reversal of the trial Judge’s erroneous denial of the stockholders’ motion for summary judgment. Rather, our instruction is an acknowledgement that the trial Judge correctly found that there were no triable issues. Our authority for the instruction is not the rules of appellate procedure, as the Bank assumes, but rather the mandate of Rule 1 of ARCP. Rule 1 requires that the rules “shall be construed to secure the just, speedy and inexpensive determination of every action.” Since the material issues of this case have been disposed of by the affidavits of the parties, by Ex parte Miles, and by our original opinion, a trial is unnecessary.

This situation falls squarely within the purpose of Rule 56 to “improve the machinery of justice, promote the expeditious disposition of cases, and avoid unnecessary trials where no genuine issues of fact are raised.” 10 Wright and Miller, Federal Practice and Procedure, § 2712 (1973). Where there are no triable issues of fact, as here found by the trial Court and with which finding we agree, and the legal issue presented has been resolved against the Bank, our mandate on reversal for the entering of a summary judgment in favor of the stockholders necessarily follows.

Finally, the Bank takes issue with the latter portion of the last sentence of our original opinion: “. . . and assess against the Bank in favor of each stockholder respondent a penalty equal to 10% of the value of the stock owned by each respective stockholder.” Of the three points raised, the first two were treated, at least to some degree, in the original opinion. While, in deference to counsel’s earnest insistance, we have not considered the first two points lightly, it is this 10% penalty issue — treated only summarily in the original opinion — to which we have devoted the most time and effort in our consideration of this cause on rehearing.

We find ourselves in substantial agreement with the policy arguments advanced by counsel for the Bank that the penalty should be up to 10% with guidelines for the discretionary fixing of the amount according to the gravity and circumstances of the wrong for which the penalty is imposed. To eliminate all discretion and require the imposition of the penalty by an absolute standard, says counsel for the Bank, treats all refusals to allow inspection of corporate books and records, not sustained on “improper purpose” grounds, as equal in degree and severity. It would further encourage refusal to a relatively small stockholder as opposed to the request of a large stockholder where the risk of refusal would prohibit a contest even in legitimate “improper purpose” cases. Our prerogatives on appellate review, however, do not extend to policy making but rather to judicially interpreting the legislative policy.

The primary authority cited by the Bank in support of its proposition that the penalty statute should be interpreted as a maximum rather than an absolute standard is the case of McCormick v. Statler Hotels Delaware Corporation, 55 Ill.App.2d 21, 203 N.E.2d 697 (1964). In upholding a penalty award of less than 10% under an identical statute, this intermediate appellate court observed:

“. . . the statute says an officer or corporation, ‘. . . shall be liable . in a penalty of ten per cent of the value of the shares owned by such stockholder. . . .’ The question here is the meaning of ‘shall be liable.’ “. . . The [Illinois] Supreme Court said in that case [People v. Elgin Home Protective Ass’n, 359 Ill. 379, 194 N.E. 584 (1935)], ‘The words “may” and “shall,” when used in a statute, will sometimes be read interchangeably, as will best express the legislative intent.’ On this basis, it is possible for us to find that the imposition of a penalty rests in the discretion of the Court below.
“We can reach this same result through interpreting the word ‘liable.’ Being liable for a ten per cent penalty could mean the defendants are subject to a fine up to ten per cent of the value of the stock . . .”

We cannot accept either basis for interpreting “shall be liable . . . in a penalty of ten per cent . . .’’as permitting a discretionary penalty imposition not to exceed 10%. The interchangeability of “may” and “shall” to effect legislative intent is a sound rule; but it can be given a field of operation only where the overall expression of the legislative enactment evidences an intent and purpose contrary to the term employed. See Morgan v. State, 280 Ala. 414, 194 So.2d 820 (1967). Here, no contrary intent which permits “may” to be substituted for “shall” is manifest.

Perhaps the word “liable” could be interpreted as subject to a fine up to 10% (one of its secondary meanings being “likely to”) except that it is preceded by the words “shall be.” To be subject to a “likely to” connotation, the sentence would read, “A corporation is liable to a fine of 10%.” This interpretation is precluded, however, by the phrase “shall be liable . in a penalty of 10%,” particularly where this is the only expression of legislative intent and its mandatory imposition is in harmony with the overall spirit of the “right of stockholders to inspect corporate records” statute.

Opinion extended and application for rehearing overruled.

All the Justices concur, except HEFLIN, C. J., not sitting.

      . Moreover, it has long been recognized that mandamus is the appropriate remedy whenever a board of directors refuses its stockholders the right to inspect corporate records. Alabama Gas Corporation v. Morrow, 265 Ala. 604, 93 So.2d 515 (1957), and Loveman v. Tutwiler Inv. Co., 240 Ala. 424, 199 So. 854 (1941).

      . For an in depth discussion of the objective test applicable to the statutory requirements that the examination of the books and records by a stockholder be for a “proper purpose” and that the penalty be imposed for an officer’s refusal of such examination “without reasonable cause”, see Smith v. Flynn, 275 Ala. 392, 155 So.2d 497 (1963).


text:
    Carolyn F. ROBINSON v. Leroy BROWN, Individually and as Superintendent of Education.
    SC 1477.
    Supreme Court of Alabama.
    Feb. 27, 1976.
    Rehearing Denied March 26, 1976.
    •Carolyn F. Robinson, pro se.
    T. W. Thagard, Jr., Montgomery, for ap-pellee.
   MERRILL, Justice.

Appellant, Carolyn F. Robinson, filed a suit in circuit court against Leroy Brown, individually and in his capacity as Superintendent of Education of the State of Alabama. She asked for a declaratory judgment concerning Dr. Brown’s responsibilities to her, as a non-tenured teacher, under the obligatory duties of his office defined constitutionally, statutorily and administratively. The trial court dismissed the case. We affirm.

A background statement is necessary to a clear understanding of this case. Ms. Robinson taught for one year in the Jefferson County School System. She was not tenured and her contract of employment was terminated after that year. She filed suit in the United States District Court for the Northern District of Alabama unduer 42 U.S.C. § 1983, alleging that the Jefferson County Board of Education’s refusal to renew her contract was unconstitutional because it (1) denied her a right to a hearing under the Fourteenth Amendment and (2) was taken in retaliation for her exercise of protected First Amendment rights. The district court granted Brown’s motion for summary judgment on the first claim and a nonjury trial on the second claim. The district judge found that the board’s action was taken for constitutionally permissible reasons. The Fifth Ciricuit affirmed at 485 F.2d 1381, reh. den. en banc, 488 F.2d 1055 (1973). The United State Supreme Court denied certiorari, 419 U.S. 862, 95 S.Ct. 115, 42 L.Ed.2d 97. The reasons given for the dismissal are stated in 485 F.2d 1381.

Ms. Robinson admitted in oral argument that she brought suit against Brown — or as she phrased it: “got a new defendant”— in order to circumvent a defense of res judicata or estoppel. The fact that her “new defendant” was the State Superintendent of Education adds no strength to her case. Had she sued the Jefferson County Board of Education in this state suit, all the essential elements of judgment by estoppel or res judicata would have been present and the principle that matters once adjudicated are settled and determined would apply. Irwin v. Alabama Fuel & Iron Co., 215 Ala. 328, 110 So. 566; Suggs v. Alabama Power Co., 271 Ala. 168, 123 So.2d 4.

The Legislature has not given the power or authority to employ or discharge teachers in elementary and secondary state schools to the State Board of Education or to the State Superintendent of Education. That power and authority was given, insofar as this case is concerned, to the County Boards of Education. Tit. 52, § 86, Code 1940.

The thrust of Ms. Robinson’s claim is that she was discharged without cause. She chose the federal forum and she went through the District Court, the Fifth Circuit Court of Appeals and applied for cer-tiorari to the Supreme Court of the United States, where it was denied. She then started the same suit with the same subject matter and the same issues in State Circuit Court with the exception that she had a new defendant who had no duty or responsibility in her suit.

In the federal case, the defendant was the Jefferson County Board of Education, the only body in Alabama which had the power to employ Ms. Robinson in the teaching position she held, and the only body which could discharge her. It was the only possible defendant whether the suit had been started in federal court or state court. Appellant has had her day in court in the forum of her selection.

The circuit court correctly dismissed the case because the issue had already been determined by courts of concurrent jurisdiction, and there was no proper party defendant.

AFFIRMED.

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


author: BRADLEY, Judge.

text:
    THOMAN ENGINEERS, INC., a corp. v. John W. McDonald, Jr.
    Civ. 566.
    Court of Civil Appeals of Alabama.
    Feb. 25, 1976.

      Odom, Robertson, Groenendyke & Thompson, Birmingham, for appellant.
    Norman K. Brown, Bessemer, for appel-lee.
   BRADLEY, Judge.

Plaintiff appeals from a judgment of $600 in his favor. Although this appeal was initiated prior to December 1, 1975, the record on appeal was completed after November 1, 1975. Therefore, all subsequent steps and stages of review are governed by the Alabama Rules of Appellate Procedure (ARAP). Rule 49(3), ARAP.

Plaintiff’s complaint, filed in the Circuit Court of Jefferson County, sought from defendant damages in the amount of $18,593.44 for labor done and materials furnished in constructing improvements on property owned by defendant. Plaintiff also sought the imposition of a mechanic’s and materialman’s lien on the property in question. Defendant answered by denying that he owed the amount claimed or any other amount and asks for removal of the lien. Trial was had before the court sitting without a jury and, at the conclusion thereof, judgment was rendered in favor of plaintiff for $600 and a lien was imposed on the subject property to aid the satisfaction of the judgment. Thereafter a motion for new trial was filed and later overruled.

The bond for costs on appeal filed in the trial court, and the citation of appeal issued by the register, show that the appeal was from the judgment on the merits and did not include the ruling on the motion for rehearing or new trial.

Plaintiff’s brief includes under “Statement of the Issues” the following:

“The Court erred in failing to grant appellant’s motion for new trial in that the preponderance and great weight of the evidence did not support the trial Court’s decree. [Citations omitted.]”

However, it can be inferred from the argument in this brief that plaintiff seeks relief only from an alleged inadequacy of damages awarded in the judgment. Strictly speaking, the language in the statement of issues is far more general than this specific claim in the argument and cannot be viewed as pointing to the same error. Under prior practice, wherein assignments of error were required, such a variance would automatically preclude review of the question of adequacy of damages, Western Steel Car & Foundry Co. v. Cunningham, 158 Ala. 369, 48 So. 109. However, assignments of error are no longer required, Rule 20, ARAP.

The new appellate rules place emphasis on reaching the merits of litigation. We therefore construe the. provisions of Rule 28(a)(3), ARAP, in light of this emphasis: it is incumbent on the appellate court to determine from appellant’s brief whether an issue on the merits has been raised in a manner which is fair to all concerned.

The requisite statement of issues should be expressed tersely, with clarity and without ambiguity, and it must be informative in the sense that it provides to adverse parties in capsule form a fair basis for response and suggests to the appeals court an outline sketch of the relief available in the context of the existing scope and principles of review. Correspondingly, the argument of issues should be a complete expression of appellant’s position regarding the stated issues. Formal inconsistency between the statement of issues and the argument of issues should not prevent us from reaching the merits of the argument unless the inconsistency is inexcusably pronounced, misleading, confusing, or otherwise prejudices an adverse party’s ability to frame a response to the argument. The determination of these factors lies with the court to whom the brief is presented. In some respects, the brief before us is an example of the above mentioned departures from prescribed practice.

Taking this brief as an entirety, the only question on the merits fairly presented by plaintiff is whether or not the trial court erroneously denied the motion for new trial, a motion which the record discloses made no reference to the issue of adequacy of damages. We do not think that this brief fairly presents the issue of whether the decree below, independent of the ruling on the motion for new trial, granted damages inadequate on the weight of the evidence. We are thus not required to review this point. However, despite the apparent handicap, defendant did respond to this issue in his brief, and, in these circumstances, defendant suffering no actual hardship due to plaintiff’s omissions, we determine that it is in keeping with the spirit of the ARAP to decide this question on its merits.

The evidence as to amount of damages was heard ore tenus by the trial judge sitting without a jury. His findings should be reversed only if clearly and palpably erroneous, Department of Industrial Relations v. Price, 42 Ala.App. 57, 151 So. 2d 797. Here the evidence is in conflict: several witnesses testified as to the amount owed plaintiff for labor and materials. Some of this testimony set the damages at several thousand dollars. Defendant’s own testimony was to the effect that he paid everything he owed for work already completed, and that some of the completed work was unsatisfactory and had to be redone at his expense. In light of the testimony of damages ranging from zero to several thousand dollars, we perceive no palpable error in the trial court’s award.

AFFIRMED.

WRIGHT, P. J., and HOLMES, J., concur.