author: BEATTY, Justice. BEATTY, Justice.

text:
    Ada Elizabeth PRUITT v. Johnny Len PRUITT et al.
    SC 1813.
    Supreme Court of Alabama.
    Dec. 30, 1976.
    Rehearing Denied March 11, 1977.

      Donald W. Lang of Bell, Lang, Bell & Fielding, Sylacauga, Alfred W. Goldth-waite, Montgomery, for appellant.
    Lister H. Proctor of Proctor & Vaughn, Sylacauga, for appellees.
   BEATTY, Justice.

This is an appeal from a verdict of a jury in favor of the contestant of a will. We reverse and remand.

The will in question was executed by the testator, John A. Pruitt, on March 22, 1973 and named his sister, Ada Elizabeth Pruitt, sole beneficiary and executrix. On August 2, 1974 the testator was injured in an accident and died on August 24, 1974. Ada petitioned the Probate Court of Talladega County to probate this will and shortly thereafter this contest was filed by Johnny Len Pruitt (alleged to be the son of the testator), by his next friend, Geneva Pruitt; Geneva Pruitt individually (alleged to be the testator’s widow), John Will Saxon, and Otis Burton, Jr. The contest referred to a will of March, 1970 allegedly executed by John A. Pruitt which created a testamentary trust for Johnny Len Pruitt, with Saxon and Burton as trustees. The contesting complaint alleged further that Ada had exercised fraud and undue influence upon John to procure the will of March 22, 1973, and the pretrial order recites these as the issues in controversy.

In response to the complaint of the defendant-contestants, the proponent filed a motion to dismiss on the ground that the court lacked jurisdiction over each of the contestants, and proceeded to attack the standing of each contestant, that is, that Johnny Len Pruitt was not the son of John A. Pruitt, that Geneva Pruitt was never married to John A. Pruitt, that John Will Saxon was removed as trustee of a prior will by “the purported codicil” to that will, and that Otis Burton, Jr. was removed under that codicil because the codicil vitiated the prior will in its entirety. No affidavits, testimony, or other evidence in support of- or in opposition to these grounds was tendered, and the motion was overruled. Because the plaintiff-proponent contends that this was error, in that Geneva Butler and John Will Saxon had no direct legal or equitable interest to litigate, we will attend to this issue first.

A motion to dismiss can never be granted unless it appears that the movant would not be entitled to recover under any theory of the case or any applicable state of facts. Willis v. Buchman, 30 Ala.App. 33, 199 So. 886, rev. on other grounds 240 Ala. 386, 199 So. 892, 132 ALR 1179 (1940). Upon consideration of such a motion, the-allegations of the complaint are construed in a light most favorable to the complainant, with all doubts and allegations resolved in his favor. Willis v. Buchman, supra. If there was any common question of law or fact which would arise with respect to their rights, the defendant-contestants might be joined in one action. Rule 20, ARCP. Thus, if these contestants had an interest in the question whether the will of March 22, 1973, or the will of March, 1970 and its codicil of May 17, 1971, was valid, they had standing to sue. Of course, one question of fact common to all contestants was whether John A. Pruitt executed the will of March 22, 1973 free from fraud and undue influence as alleged in the complaint. Whether they were interested depends upon whether they qualify as contestants under Tit. 61, § 52, Alabama Code:

A will, . . . may be contested . by any person interested therein, or by any person, who, if the testator had died intestate, would have been an heir or distributee of his estate .

Under this statute, if a person has a direct legal or equitable interest in the decedent’s estate, in privity with the decedent, “whether as heir, purchaser, or beneficiary under another will, which would be destroyed or injuriously affected by the establishment of the contested will,” he has standing to contest the will. Allen v. Pugh, 206 Ala. 10, 89 So. 470 (1921); Braasch v. Worthington, 191 Ala. 210, 67 So. 1003 (1915).

Considering the allegations of the contestants’ complaint as true, Johnny Len Pruitt (Butler), as a beneficiary under the prior will of March, 1970, had a direct equitable interest which would have been destroyed by the establishment of the contested will. Geneva Pruitt, who was alleged in the complaint to be the widow of John A. Pruitt, would have been entitled to a distributive share of the personal estate had the testator died intestate, Tit. 16, § 10, Alabama Code, and possibly dower. Tit. 34, § 40, Alabama Code. Thus she had a direct legal interest. John Will Saxon, as testamentary trustee under the March, 1970 will, was a “person interested therein” because as trustee he had a direct legal interest in specific property for the benefit of Johnny Len Pruitt, and active duties under that will. Gunter v. Townsend, 202 Ala. 160, 79 So. 644 (1918). Otis Burton, Jr. alternately alleged to have been appointed trustee under a codicil to the will of March, 1970, would have the same interest. Consequently, the trial court correctly overruled the motion to dismiss.

Numerous reversible errors are claimed by the plaintiff-proponent, among them being the assertion that the evidence does not support the verdict of undue influence or fraud on the part of Ada Pruitt. The evidence was voluminous, and while much of it portrayed John Pruitt as having had an affectionate regard to Johnny Len, whom Geneva Butler claimed was John Pruitt’s son, that evidence was devoid of any quality establishing fraud or undue influence on the part of Ada Pruitt in procuring the will in question. The evidence concerning her conduct consisted of the following facts:

Ada Pruitt had lived in Washington, D. C. for a number of years where she was employed by the British Embassy, and as a labor organization lobbyist. John called upon her often to use her political connections for the benefit of his friends in Tal-ladega County (just how this was accomplished was not established). She sent him money when he needed it, and paid his taxes several times. She moved to Montgomery in 1970, at a time when John Pruitt’s health was bad, fixed a room for him at her house, and attempted to persuade him to leave Sylacauga and live with her. Apparently he never moved from Sy-lacauga. She kept clothes for him, helped him with his divorce; set up receipt books for his business; gave him $1,326.45 before she moved to Montgomery, and she spent $1,069.00 in his behalf afterward, including his 1973 tax bill, $517.50 for an automobile for him, and $75.00 paid to the lawyer who prepared the will in question and a power of attorney authorizing Ada to act for him in the event he became disabled. This latter sum was paid on April 10, 1973, almost three weeks after the execution of the will and after a request made to her by that lawyer. The sum for the car was paid on March 21, 1974, the day before the will was executed.

The will itself was drawn by Alfred Goldthwaite, a Montgomery lawyer who had represented Ada Pruitt since 1967, and for whom she had distributed political literature in 1972 and 1974. Goldthwaite’s secretary had prepared the will approximately three weeks before it was executed. John Pruitt had consulted Goldthwaite in 1972 concerning other transactions, and John and the lawyer had discussed John’s will on two occasions approximately thirty days prior to the day on which John executed it.

There was some evidence that John Pruitt consulted a specialist about his poor health in the fall of 1973, and he had experienced some difficulty with his eyesight at an earlier time, but this condition improved in 1971. On March 22, 1973, Ada accompanied John to Mr. Goldthwaite’s law office and following an explanation of the will by the lawyer alone with the testator, the will was executed in Mr. Goldthwaite’s office, those present at the execution being the testator, the lawyer, and the lawyer’s secretary. The original will, and power of attorney executed contemporaneously, were kept in the lawyer’s offices.

There was also evidence of statements made to others by both John and Ada in the spring of 1974. John characterized Ada as a very shrewd business woman who wanted everything he had. Ada informed a state trooper on the day of the accident, in August 1974, that she had a power of attorney from John, and told some nurses at the hospital where John had been taken following his accident that she was executor of his will. Ada herself testified that she did not learn of the power of attorney until after the accident, and learned of the will on the day after John’s death. She advised John’s physician that she wanted John to have no visitors. Prom the day of the accident to John’s death she and Mr. Goldthwaite were in communication by telephone, in his law office, or on trips to Sylacauga. She made the funeral arrangements. Two of the contestant’s witnesses to whom John and Ada had made statements both testified to John Pruitt’s independence of mind: one stated that John did what he wanted to do, the other that nobody could influence him to do anything he did not want to do. Indeed, Geneva Butler herself testified on cross examination that nobody could influence John Pruitt against his will. There was additional evidence from other witnesses pertaining to John Pruitt’s statements concerning his intentions on behalf of Johnny Len and Geneva, and evidence of John Pruitt’s prior wills designating other and different beneficiaries than those of 1970 and 1973.

The appellee maintains that his evidence establishes fraud and undue influence on the part of Ada Pruitt in procuring John Pruitt’s will in her favor.

Our cases have consistently held that when undue influence is asserted in a will contest, the contestant has the burden, in order to raise a presumption of undue influence, to prove a dominant confidential relationship and undue activity in the execution of the will by or for a favored beneficiary. Wilson v. Payton, 251 Ala. 411, 37 So.2d 499 (1948), citing Hyde v. Norris, 250 Ala. 518, 35 So.2d 181 (1948). In other words, evidence must establish: (1) a confidential relationship between a favored beneficiary and testator; (2) that the influence of or for the beneficiary was dominant and controlling in that relationship; and (3) undue activity on the part of the dominant party in procuring the execution of the will. Wilson v. Payton, supra; Alexander v. Alexander, 208 Ala. 291, 94 So. 53 (1922).

A confidential relationship may spring from “those multiform positions in life wherein one comes to rely upon and trust another in his important affairs.” Raney v. Raney, 216 Ala. 30, 34, 112 So. 313, 316 (1927).

Whether the beneficiary, or one acting for him, was the dominant party in the relationship between the two is usually a question of fact, but in any case there must be some evidence of controlling influence over the testator’s purposes by the other. Little v. Sugg, 243 Ala. 196, 8 So.2d 866 (1942); Kilgore v. Atkinson, 227 Ala. 310, 149 So. 808 (1933).

A “favored beneficiary” has been held to be:

[o]ne who, in the circumstances of the particular case, has been favored over others having equal claim to the testator’s bounty. An unnatural discrimination, leading to a natural inference that advantage has been taken by one in position so to do; and shown to have been busy in getting such will executed. [Cook v. Morton, 241 Ala. 188,1 So.2d 890 (1941).]

These elements of the presumption go far, of course, in proving the principal charge of undue influence which has been defined in Locke v. Sparks, 263 Ala. 137, 140, 81 So.2d 670, 673 (1955):

Undue influence, . . . must be such as, in some measure, destroys the free agency of the testator, and prevents the exercise of that discretion which the law requires a party should possess as essential to a valid testamentary disposition of his property. .

And it must be kept in mind that not all influence is undue; any influence resulting from sympathy and affection only is not disfavored. See Abrams v. Abrams, 225 Ala. 622, 144 So. 828 (1932).

Assuming arguendo that her history of assistance to her brother established a confidential relationship between Ada Pruitt and this testator, there is no evidence that she was the dominant party in that relationship, or that she was active, directly or indirectly, in procuring execution of the will. No reasonable inference of such activity can be established from the fact that the same lawyer represented both parties at various times, or from the fact that the lawyer kept John Pruitt’s original will in his office. The latter practice is not uncommon. See Hubbard v. Moseley, 261 Ala. 683, 75 So.2d 658 (1954). As we have noted, the contestants themselves produced evidence of the independence of mind of the testator. Moreover, the testimony showed that John Pruitt himself initiated the contact with the drafting lawyer and, though accompanied by his sister on the day the will was executed, he executed it outside her presence after its terms were explained to him. Nothing in those circumstances or others to which we have referred furnish the slightest inference of a dominant influence by Ada over his own intentions, nor was she shown to have engaged in any undue activity in procuring the will, if, indeed, she was active in procuring it at all.

It is not clear, moreover, that Ada Pruitt was a favored beneficiary under the test laid down in our cases. The “equal claim” of others refers not to the laws of descent and distribution, but to the facts of the particular case, Cook v. Morton, supra, and in this case it is not shown that others had an “equal claim” to John’s sympathy or benevolence. Geneva Butler’s opinion that her son, Johnny Len, also was the son of John Pruitt, was excluded from the evidence. There was evidence of John’s interest in the welfare of the boy — he was named as a beneficiary in an earlier will— but no evidence that Johnny Len Butler had an “equal claim.” John Pruitt had several sisters surviving him, and there was, likewise, no evidence that they had “equal claim” to John’s benevolence. But even if those facts had been shown, still Ada was not “shown to have been busy in getting such will executed.” Ibid.

Insofar as the claim of fraud is concerned, contestants only pleaded fraud generally, and so we cannot ascertain the nature of the fraud on which their contest was based. It has been held that undue influence is a species of fraud, Shirley v. Ezell, 180 Ala. 352, 60 So. 905 (1913). To the extent that this principle is applicable, our comments on the lack of proof of undue influence apply with equal force to these facts. If the allegation of fraud is taken to mean that John Pruitt was the victim of a deceit practiced upon him by Ada Pruitt, there was a total failure of proof of any such deceit. Cf. Hornaday v. First National Bank of Birmingham, 259 Ala. 26, 65 So.2d 678 (1953).

Because we have concluded that the case must be reversed for the trial court’s refusal to direct a verdict for the plaintiff-proponent as requested, we have not addressed ourselves to the other points raised by the plaintiff on appeal.

REVERSED AND REMANDED.

MADDOX, FAULKNER and SHORES, JJ., and SIMMONS, retired Circuit Judge, sitting by designation of the Chief Justice, concur.

ON REHEARING

BEATTY, Justice.

In his petition for rehearing, the contestant argues that the proponent was precluded from raising the propriety of the trial court’s refusal to grant the proponent’s request for the affirmative charge because she did not object and give grounds for her objection before the jury retired, as required by Rule 51, ARCP.

First of all, we note that a request for an affirmative charge is the substantial equivalent of a motion for a directed verdict, City of Albertville v. United States Fidelity and Guaranty Co., 272 F.2d 594 (5th Cir. 1960), and “[technical precision is not necessary in stating grounds for the motion so long as the trial court is aware of the movant’s position.” United States v. Fenix and Scisson, Inc., 360 F.2d 260 (10th Cir. 1966). Accordingly, the inquiry is whether a motion for a directed verdict is such a requested action or instruction falling within the purview of Rule 51, ARCP. Put in another way, can a specific objection and stated grounds add to an explanation of such a request? We think not. It would be a vain thing indeed to require counsel to explain a request that is self-explanatory. We can apprehend no misunderstanding by a trial judge of the import of such a motion which calls his attention to the absence of any evidence creating an issue of fact. See 9 Wright & Miller, Federal Prac. and Proc., § 2524.

We are not unmindful of cases decided by the Court of Civil Appeals which have applied the generality of Rule 51, i. e., Curry Motor Co. v. Rebuilt Parts Warehouse, Inc., 53 Ala.App. 719, 304 So.2d 221 (1974), and Cavalier Insurance Corporation v. Gann, 57 Ala.App. 519, 329 So.2d 573 (1976). However, neither of those cases discussed the contents of the requested charges, and hence they cannot be considered as in point here.

Notwithstanding the general application of Federal Rule 51 to similar instances, cf. Guest House Motor Inn, Inc. v. Duke, 384 F.2d 927 (5th Cir. 1967), there have been instances also when the point of the requested charge was deemed sufficient to call a party’s position to the trial judge’s attention, with no “reiterative insistance” being required. Mumma v. Reading Company, 2A1 F.Supp. 252 (D.C.1965).

The substantive spirit of Rule 51 is accommodated when the requested instruction is sufficiently clear to enable the trial judge to cure an error resulting in his refusal to give a written instruction. Committee Comments, Rule 51, ARCP. We consider the requested charges here to qualify under that principle.

But there is an additional reason, should we have needed one, justifying this position. We are enjoined by Rule 61, ARCP to disregard procedural errors which have not affected substantial rights of the parties. As Chief Justice Tray nor has stated:

. it is still the responsibility of the appellate court, once it concludes there was error, to determine whether the error affected the judgment. The Riddle of Harmless Error, 1970, 26.

In this case, the contestant cannot insist that the proponent’s failure to object to the Court’s failure to give the requested charge affected any substantial right of the contestant when the contestant adduced no evidence on the issues of undue influence or fraud to enable the case to go to the jury.

OPINION EXTENDED, APPLICATION FOR REHEARING OVERRULED.

MADDOX, FAULKNER and SHORES, JJ., and SIMMONS, retired Circuit Judge, sitting by designation of the Chief Justice, concur.


source: Caselaw Access Project

author: BLOODWORTH, Justice.

license: Public Domain

text:
    USA PETROLEUM CORP. v. JOPAT BUILDING CORPORATION, etc., et al.
    SC 1865.
    Supreme Court of Alabama.
    Feb. 18, 1977.
    Rehearing Denied April 1, 1977.

      John E. Lunsford, Birmingham, for appellant.
    James A. Harris, Jr. and W. Frank Greenleaf, Birmingham, for appellees.
   BLOODWORTH, Justice.

This is an appeal by subtenant from a judgment ordering it to vacate the property and awarding landlord possession, $14,000 in rental, and title to permanent improvements. We affirm.

In 1973, Daylin, Inc., the lessee of property owned by landlord (“Jopat”), operated thereon a discount store under the name “Miller’s.” In 1974, Daylin sublet a portion of the property to subtenant (“USA”). (The lease neither forbade a sublease nor required the lessor’s approval.) The sublease contained a provision notifying USA that Daylin was not the owner of the leasehold premises, but was a lessee. USA proceeded to operate a self-service gasoline station on the property and undertook the remodeling of the existing station. The remodeling was completed on February 21, 1975, at a cost to USA of $82,016.12.

On February 26, 1975, Daylin filed a Chapter XI Bankruptcy Proceeding in the United States District Court for the Central District of California.

On March 4, 1975, Jopat sent a letter by certified mail, return receipt requested, to Daylin, notifying it that its rental payment for March 1975 was past due and demanding immediate payment. The letter expressly reserved all Jopat’s “rights and remedies arising because of other breaches of said lease.”

On March 14, 1975, Daylin paid the past-due rent. Jopat accepted the payment and regarded it as curing the default referred to in the letter of March 4. When Jopat accepted the rent, it was aware that the Chapter XI petition had been filed.

On March 24, 1975, Jopat sent a second letter to Daylin notifying it that, because of Daylin’s filing of the Chapter XI petition, Jopat was electing to re-enter and take possession of the property. The letter also stated:

“. . . Pursuant to the provisions of the said lease, we may, from time to time, without terminating the said lease, relet the said demised premises, or any part thereof. Such re-entry shall not be construed as an election on our part to terminate the said lease. Under Section 15.2 of said lease, such repossession shall not release you of your liability and obligations under said lease, all of which shall survive such repossession. . . . ”

On March 25,1975, Jopat sent a letter by certified mail, return receipt requested, to USA notifying it of Daylin’s default under the master lease and requesting it to contact Jopat regarding negotiation of a new lease. On April 21, Jopat notified USA by letter that USA was deemed a trespasser as of April 1, when Daylin’s lease was “terminated.”

Jopat did not take possession of the property leased to Daylin on April 1. On May 9, however, Daylin wrote Jopat that it was surrendering possession of the property and further that the lease would be rejected in the Bankruptcy Court. That rejection occurred on August 21.

USA remained in possession of the service station property and tendered to Jopat the rent under the sublease as it fell due. Jopat did not receive the rent, but insisted that the sublease was forfeited and demanded that a new lease be executed providing for an average base monthly rental of $2,475. The base monthly rental under the sublease was $1,000. The trial court found that the reasonable rental value of the premises was $1,000 per month.

When the parties failed to negotiate a new lease, Jopat sent a letter, dated May 1, to USA notifying it that it was not to remove any permanent improvements made on the leasehold premises. In June 1975, Jopat filed suit in circuit court for possession of the premises, for a permanent injunction against removal of permanent improvements, and for unpaid rent. The trial court entered judgment for Jopat. USA appeals.

1. USA’s principal contention is that the only manner in which the estate and rights of a subtenant can be forfeited is by the landlord’s declaring the master lease forfeited for a default under the terms of the master lease and that the evidence clearly shows that Jopat expressly elected not to forfeit the master lease. Jopat maintains the trial court correctly held that USA’s rights were terminated by Jopat’s election to re-enter as indicated by its March 24 letter to Daylin declaring its intention to re-enter. This caused a forfeiture of Daylin’s, and consequently USA’s, rights in the premises.

Upon the happening of one of the events of default specified in the lease, Jopat had the right, under the lease, to choose either of the following options:

“(1) To give Lessee written notice of intention to terminate this lease on the date of such delivery of notice or on any later date specified therein; and on the date specified in such notice Lessee’s right to possession of the premises shall cease and this lease shall thereupon be terminated; or
“(2) Without demand or notice to reenter and take possession of the Demised Premises, or any part thereof, and repossess the same as of Lessor’s former estate therein and expel Lessee and those claiming through or under Lessee, and remove the effects of both or either (forcibly, if necessary) without being deemed guilty of any manner of trespass and without prejudice to any remedies for arrears of rent or preceding breach of covenants. Should Lessor elect to re-enter as provided in this paragraph (2), or should Lessor take possession pursuant to legal proceedings or pursuant to any notice provided for by law, Lessor may, from time to time, without terminating this lease, relet the Demised Premises, or any part thereof, for such term or terms and at such rental or rentals and upon such other terms and conditions as Lessor may deem advisable, with the right to make alterations and repairs to the Demised Premises. No such re-entry or taking of possession of the Demised Premises shall be construed as election on Lessor’s part to terminate this lease unless a written notice of such termination be given to Lessee or unless said termination be decreed by a court of competent jurisdiction.” [Emphasis supplied.]

As noted already, Jopat, by its letter of March 24, chose the second option — re-entry without termination of the lease. It appears that, by means of this provision in the lease, Jopat was attempting to retain the right to terminate the lessee’s rights without terminating the lessee’s obligations under the lease. We do not find it necessary to decide whether Jopat’s election accomplished that result, because the lessee’s obligations are not at issue in this case. At issue are the lessee’s and the sublessee’s rights.

It seems clear to us that both the first and second options have the same effect on the rights of the lessee and those claiming through him. Under both options, they lose their right to possession.

Consequently, Jopat’s letter of March 24 was notice to Daylin that Jopat was forfeiting Daylin’s right to possession under the lease. As a sublessee, USA’s right to possession was subject to the terms and conditions of Daylin’s lease. The sublessee could stand no higher than the lessee from which its right derived. Brock v. Desmond & Co., 154 Ala. 634, 45 So. 665 (1908). Consequently, forfeiture of Daylin’s right to possession resulted in forfeiture of USA’s right to possession. Because Daylin’s right to possession had been forfeited, Daylin’s surrender of possession to Jopat was not a voluntary surrender. Thus, it was not an infringement on the rights of USA, the subtenant, but was merely a surrender of possession to which Jopat was entitled. Brock v. Desmond & Co., 154 Ala. at 636, 45 So. 665. The remedy of the subtenant for its eviction is confined to its immediate lessor (the lessee) upon covenants in the sublease for quiet enjoyment. Brock v. Desmond & Co., supra.

2. USA further contends that Jo-pat’s acceptance of rent for the month of March 1975 with knowledge of Daylin’s filing a Chapter XI petition waived Jopat’s right to declare a forfeiture by reason of the filing of the petition. The trial court found, as Jopat contends, that there was no waiver because Jopat, in its letter of March 4, expressly reserved all rights that it might have to forfeit or terminate the lease or to re-enter the premises for defaults other than the overdue rent. USA responds that acceptance of rent with knowledge of an act of insolvency operates as a waiver of default despite attempted reservations of the right to terminate.

We have been unable to find any Alabama case which treats the precise question raised here. Cases from other jurisdictions are not in agreement. Some give effect to such reservations; others do not. See 49 Am.Jur.2d, Landlord and Tenant, § 1068; Anno., 109 A.L.R. 1267, 1287-.

Our Alabama case of Dahm v. Barlow & Co., 93 Ala. 120, 9 So. 598 (1891), is cited by USA, but is not in point. Dahm held that a party cannot, by declarations after the acceptance of rent, explain his intention in accepting it. Jopat’s reservation of rights and remedies arising from other breaches was made before it accepted payment of the overdue rent.

We have been impressed by the reasoning and rationale of Re Wil-low Cafeterias, Inc., 95 F.2d 306, 115 A.L.R. 1184 (2d Cir. 1938). Upon authority of that cáse, we hold that Jopat’s reservation of rights and remedies for other breaches, in its letter demanding payment of the overdue rent, permitted it to accept payment of the overdue rent without waiving its right to declare a default for Daylin’s insolvency.

In Wil-low, the court stated:

“Waiver is always a matter of intent and, while an intent to waive may be inferred from the acceptance of rent under certain circumstances, such an inference may be rebutted and is rebutted here by the express agreement between the parties that the rent was paid and accepted without prejudice. Such an agreement was incorporated in the leases. The fourth paragraph quoted provided that ‘the receipt of rent with knowledge of any breach, shall not be deemed to be a waiver as to any breach of any covenant or condition herein contained.’ Thus, notwithstanding knowledge of a breach of condition, the appellant might accept rent without being deemed to waive its right to terminate for such breach.
. . The nonwaiver clauses are equivalent to an express agreement at the time of the payment that such payment was without prejudice.” [Emphasis supplied.]

95 F.2d at 309.

In the present case, the nonwaiver stipulation was not contained in the lease agreement, but was part of the March 24 letter demanding payment of overdue rent. This distinction between Wil-low and the present case is a distinction without a difference, for Wil-low treats a nonwaiver clause in a lease agreement the same as an agreement at the time of payment.

Daylin’s payment of the overdue rent without objection to the nonwaiver provision in the notice letter amounted to consent to the nonwaiver provision and resulted in an agreement at the time of payment that acceptance of payment was without prejudice to Jopat’s rights and remedies arising because of other breaches.

3. Finally, USA contends that, even if Jopat lawfully effected a forfeiture of the master lease, equity should refuse to enforce the forfeiture against it as a subtenant under the facts of this case. The circumstances upon which USA relies are its having completed remodeling of the service station only five days prior to Daylin’s filing of the petition and Jopat’s attempt to extract rents from USA substantially in excess of the provisions of the sublease and the reasonable rental determined by the trial court. In a similar vein, USA contends that granting Jopat title to the permanent improvements would be unjust enrichment and that Jopat should be required to compensate USA for the improvements.

The trial court found that USA failed to prove any fraud, mistake, undue influence, coercion, or duress that would entitle it to an equitable claim to compensation for or removal of the permanent improvements. The court further found that USA made the improvements with knowledge, actual or constructive, of Jopat’s rights under the lease with Daylin and that Jopat never had knowledge, actual or implied, of the improvements until after the bulk of the improvements had already been made.

As a general rule, equity will relieve against the forfeiture of a lease for nonpayment of rent on the theory that the covenant for such forfeiture is intended merely as security and will be relieved against on payment of rent due and any damages sustained by the lessor. Relief, however, will not ordinarily be granted against forfeiture arising from a breach of covenants other than the covenant to pay rent, because no exact compensation can ordinarily be made for other breaches. See Cesar v. Virgin, 207 Ala. 148, 149, 92 So. 406 (1921). See also 49 Am.Jur.2d, Landlord and Tenant, § 1078.

“The question whether a court of equity should relieve against a forfeiture under a provision of a lease authorizing its termination by the lessor in the event of the insolvency, bankruptcy, or receivership of the lessee, either by taking affirmative action or by refusing to enforce such a provision, has arisen in several cases. Where there was no fraud or wrong, courts have refused to enjoin a lessor from taking possession of the premises on the bankruptcy of the lessee, under a provision of the lease that in case of the insolvency or bankruptcy of the lessee, the lessor might terminate it and recover the premises. A bankruptcy court has said, however, that it would refuse, as a court of equity, to enforce a forfeiture under circumstances where it would be inequitable to a sublessee, whom the lessor had approved, and where there could be no injury to the lessor, since the sublessee was financially responsible and had offered to give satisfactory security. . . . ” [Emphasis supplied.]

[Footnotes omitted.] 49 Am.Jur.2d, Landlord and Tenant, § 1084. See also Anno., 115 A.L.R. 1189, 1199, supplemented in 168 A.L.R. 504, 511.

The ease cited for the last sentence óf the above quotation is Re Larkey, 214 F. 867 (D.C.N.J.1914). The facts of Larkey are significantly different from the instant case. As mentioned above, the subtenant in Larkey had been approved by the lessor. In the present case, however, Jopat had not approved the sublease to USA, because the lease did not require Jopat’s consent to a sublease. Further, the subtenant in Larkey subleased the entire premises under provisions identical to those in the original lease and for the same amount of rent. In the present case, USA subleased only a portion of the premises covered by the master lease and at a rental agreed to by Daylin. The court in Larkey was able to protect the rights of the sublessee without substantially affecting the rights of the lessor, since the lessor was getting from the sublessee (whom he had approved) exactly what he had contracted to receive from the lessee. The circumstances of the present case are entirely different. If this Court were to relieve USA from the forfeiture of the lease, Jopat would be forced by the Court into a contract not of its own making. Jo-pat agreed neither to the amount of the subrental nor to the terms and conditions of the sublease.

For this reason and also because there has been no proof of fraud, mistake, undue influence, coercion, or duress, this is not a proper case in which to grant relief from the forfeiture of the lease or the sublease.

We agree with the trial court that USA, having failed to prove fraud, mistake, undue influence, coercion, or duress, is not entitled to compensation or restitution for improvements. Hewett v. McGaster, 272 Ala. 498, 501, 133 So.2d 189 (1961).

For the foregoing reasons, the judgment of the trial court is affirmed.

AFFIRMED.

JONES, ALMON, EMBRY and BEAT-TY, JJ., concur.


author: SHORES, Justice.

text:
    Howard RATLIFF and wife, Hazel Ratliff v. Charles H. GIORLANDO and wife, Mary Ann Giorlando.
    SC 1789.
    Supreme Court of Alabama.
    March 11, 1977.

      B. J. McPherson, Oneonta, for appellants.
    Billy L. Church for Church, Trussed & Robinson, Pell City, for appellees.
   SHORES, Justice.

Appellants, Howard and ■ Hazel Ratliff, filed this action asking the court to declare that the southern boundary line of their property as described in the complaint is the true boundary line separating their property from that of the appellees, Charles and Mary Ann Giorlando. The plaintiffs claimed that they had acquired, through adverse possession, a portion of the adjacent property of which the Giorlandos hold paper title, amounting to nearly ten acres. The plaintiffs also sought $7,500 in damages as the result of the removal of fencing, destruction of timber, and other encroachments by the Giorlandos on that portion of property which the Ratliffs claim by adverse possession. After hearing evidence from both sides and viewing the property, the trial court entered its judgment denying the relief requested. The judgment, in part, provides:

“That upon a view of the property, this Court was not able to ascertain any evidence of an established line or possession line described as the south property line as set out in said complaint.
“The property set out in said complaint are wild lands and this Court does not find that there was clear and convincing testimony establishing title to said lands in the plaintiffs by adverse possession.
“. . . It is therefore further ORDERED, ADJUDGED and DECREED that the relief prayed for in said complaint be and same is hereby denied.”

The Ratliffs appealed contending that the evidence clearly established that they complied with the requirements for adverse possession and, in so doing, were entitled to a judgment recognizing their title to the controverted parcel. The Ratliffs also contend that the trial court erred by failing to establish a boundary line in its judgment.

We must first decide whether the trial court erred in concluding that the Rat-liffs failed to establish by the evidence that they had acquired title to the disputed property by adverse possession. The burden is on the party claiming title by adverse possession to establish, by the evidence, title acquired against the record titleholder. McCulloch v. Roberts, 290 Ala. 303, 276 So.2d 425 (1973); M. G. Dixon Lumber Co. v. Mathison, 289 Ala. 229, 266 So.2d 841 (1972); James v. Mizell, 289 Ala. 84, 265 So.2d 866 (1972). Thus, the Ratliffs had the burden of proving that they had maintained actual possession of the disputed strip under a claim or right openly and exclusively for a continuous period of ten years. Casey v. Keeney, 290 Ala. 94, 274 So.2d 68 (1973); Barnett v. Millis, 286 Ala. 681, 684, 246 So.2d 78 (1971). To constitute actual possession, this court has held that “. ‘. . . it is only necessary to put it to such use or exercise such dominion over it as in its present state it is reasonably adapted to.’ . . . ” Moore v. Malone, 248 Ala. 76, 78, 26 So.2d 558 (1946), quoting from Alabama State Land Co. v. Matthews, 168 Ala. 200, 53 So. 174, 175 (1910). Moreover, questions of adverse possession are questions of fact to be determined by the trial court. Barnett v. Millis, supra. And, of course, where the evidence is taken orally, as here, the trial court’s determination of this question of fact is presumed to be correct and cannot be disturbed on appeal unless plainly erroneous or manifestly unjust. Barnett v. Millis, supra; Butts v. Lancaster, 279 Ala. 589, 188 So.2d 548 (1966).

The evidence in this case was in sharp conflict. Mr. Ratliff testified that he had claimed this land up to a hedgerow since 1958. Others testified to the contrary. The defendants specifically denied the plaintiff’s testimony and denied that a hedgerow existed.

After hearing all of the evidence, the trial court made an actual view of the property in controversy. In its judgment the court stated that, based upon its view of the property, it was “. . . not able to ascertain any evidence of an established line or possession line . . .’’as described in the complaint. The court concluded that the Ratliffs failed to establish, by adverse possession, title to the disputed tract and denied the relief prayed for.

Even if we disagreed with the trial judge on his finding of fact, we would not substitute our judgment for his. But, having reviewed the evidence, we are in agreement that the plaintiffs fell short of establishing title to the property involved by adverse possession.

The only other issue raised on appeal is whether the trial court erred in not establishing a boundary line between the property of the defendants and plaintiffs. The Ratliffs argue that the trial court is required, in a boundary line dispute, to render a judgment establishing a boundary.

Title 13, § 129, Code of Alabama, empowers the circuit court to “. . . establish and define uncertain or disputed boundary lines . . .” This court has held that, in cases between coterminous landowners involving a disputed boundary, it is the duty of the trial court to render a judgment establishing the true boundary. Ryan v. Fulford, 273 Ala. 600, 143 So.2d 452 (1962); Drewry v. Cowart, 250 Ala. 406, 34 So.2d 687 (1948); Edwards v. Smith, 240 Ala. 397, 199 So. 811 (1941). However, this rule, requiring affirmative action by the trial court, presupposes that the evidence establishes the existence of a genuine dispute as to the true boundary between coterminous owners. In the absence of such evidence, the trial court is correct in merely denying relief. See Drewry v. Cowart, supra.

In the case before us, the alleged boundary dispute was created by the Rat-liffs’ claim that they had some ten acres of the Giorlando property by adverse possession. The trial court found that they did not; and, by denying relief, established as the true line the line shown by the record title. The parties are not left, as the plaintiffs assert, without a ruling as to the true boundary.

The judgment appealed from is affirmed. AFFIRMED.

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

      . For a general discussion of the particular problems involving adverse possession by coterminous landowners, see Comment, Adverse Possession in Alabama, 28 Ala.L.Rev. 447, 471-75 (1977).


author: FAULKNER, Justice.

text:
    W. H. McCULLOUGH v. ALABAMA BY-PRODUCTS CORP., a corp.
    SC 1911.
    Supreme Court of Alabama.
    March 11, 1977.

      Clifford W. Hardy, Jr., Bessemer, for appellant.
    Norman K. Brown and Fournier J. Gale, III, Birmingham, for appellee.
   FAULKNER, Justice.

This is an appeal from a judgment on the pleadings, upholding an agreement of the parties to be bound by the findings of an aerial survey. We affirm.

On October 19, 1973, W. H. McCullough and Alabama By-Products Corp. (ABC) agreed that McCullough would clear and windrow approximately 2500 acres of ABC’s land for $43.50 an acre. After performance of the contract had begun, the parties orally agreed that McCullough would not clear certain acres but would be paid as if he had cleared them. ABC also allegedly agreed to pay 10% more to offset increased fuel prices. A dispute arose over how much land had been cleared and what payment was due. On January 31, 1975, the parties agreed to submit the conflict to arbitration and to be bound by the report of Atlantic Aerial Surveyor, Inc. The report favored ABC and McCullough objected to it.

On November 26, 1975, McCullough filed suit in the Circuit Court of Jefferson County, seeking payment for work performed, including payment for the trees required to be left standing, payment for the 10% fuel adjustment increase and a restraining order against ABC to-preserve the status quo of cleared land until the final determination.

The circuit court granted the temporary restraining order. In its answer ABC claimed that McCullough failed to state a claim upon which relief could be granted. ABC later filed a motion for judgment on the pleadings under Rule 12(c) of the Alabama Rules of Civil Procedure (ARCP), on the ground that it appeared from the complaint and the exhibit attached stating that the survey “shall be binding on the parties” that no controversy existed. McCullough in response moved the court to quash ABC’s motion on the grounds that a Rule 12(c) motion is rarely granted and the exhibit does not preclude the bringing of this action.

In its judgment the circuit court stated that an exhibit made the basis of a cause of action and contradicting the averments of the pleadings of which it is a part will control the pleadings. The circuit court granted ABC’s motion and McCullough appeals.

The only issue is whether a motion for judgment on the pleadings was properly granted when an exhibit attached to the complaint contradicted the allegation that a factual issue existed.

A Rule 12(c) motion for judgment on the pleadings disposes of a case when the material facts are not in dispute. C. Lyons, Alabama Practice § 12.10 (1973). See 5 Wright & Miller, Federal Practice and Procedure: Civil § 1367 (1969) (citing J. M. Blythe Motor Lines Corp. v. Blalock, 310 F.2d 77 (5th Cir. 1962)). In order to determine whether there is a dispute as to the material facts, the court considers the contents of the pleadings. Wright & Miller, supra.

McCullough’s pleadings merely alleged that a justiciable controversy existed. They did not contain any definite factual averments. On the other hand, McCullough attached as an exhibit a copy of the agreement to make a “full and final settlement of the dispute” by having an aerial survey made. This exhibit, in contrast to the allegations of the complaint, resolved any and all factual questions raised by the complaint.

Under Alabama law, an exhibit attached to a pleading is not only a part of it, but, in case of a variance between the allegations of the pleading and the exhibit attached thereto, the contents of the exhibit control. Doggett v. Hunt, 93 F.Supp. 426 (S.D.Ala.1950), appeal dismissed, 199 F.2d 152 (5th Cir. 1950). See, e. g., Twine v. Liberty National Life Ins. Co., 294 Ala. 43, 311 So.2d 299 (1975); McCay v. Big Town, Inc., 293 Ala. 582, 307 So.2d 695 (1975).

Allegations of fraud, corruption, collusion, partiality and the like cannot be read into the complaint in arbitration eases. See 5 Am.Jur.2d Arbitration & Award § 186 (1962). Such allegations should have been made in an amended complaint, which McCullough failed to do, even after the circuit court granted the order of dismissal. Without them, no justiciable controversy exists. It is not the duty of the courts to create a claim which the plaintiff has not spelled out in the pleadings. Case v. State Farm Mut. Auto. Ins. Co., 294 F.2d 676 (5th Cir. 1961).

Where the plaintiff includes allegations that show on the face of the complaint that there is an insuperable bar to relief, dismissal is proper. Since the exhibit, which is controlling, fails to state a claim and since the pleadings do not contain sufficient allegations of fraud, collusion or the like, there is no dispute as to the material facts. Thus, the Rule 12(c) motion was properly granted and ABC was entitled to a judgment as a matter of law.

AFFIRMED.

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


text:
    W. O. McCALEB and Mrs. W. O. McCaleb v. MACKEY PAINT MANUFACTURING CO., INC., a corp.
    SC 1995.
    Supreme Court of Alabama.
    March 11, 1977.

      Jack R. Evans and Turner, Turner & Turner, Tuscaloosa, for appellants.
    Robert B. Harwood, Jr., of Rosen, Wright, Harwood & Albright, Tuscaloosa, for appellee.
   SHORES, Justice.

The plaintiffs, Mr. and Mrs. McCaleb, were the owners of a commercial building in Fayette, Alabama, which they leased to the defendant, Fayette Fabricators, Inc. for $280 per month. The building was destroyed by fire in September, 1972. Fa-yette Fabricators manufactured bumpers to be used on motor vehicles.

The plaintiffs originally brought suit against the City of Fayette and various individual defendants, alleging that they were negligent in failing to utilize water which was under pressure at a nearby fire hydrant to extinguish the fire. Later the complaint was amended to strike the City of Fayette and the other individual defendants and to add Union Oil Company of California, Mackey Paint Mfg. Co., and American Mineral Spirits Company as defendants. The complaint charged that Fa-yette Fabricators negligently conducted the operation of its business by negligently placing a hot automobile bumper or causing sparks to be thrown into a flammable liquid solution, negligently causing the solution to catch fire, as a proximate result of which the plaintiffs’ building was destroyed. Mackey Paint Mfg. Co. was charged with negligence in selling Xylol to the defendant Fayette Fabricators, since Mackey knew or should have known or should have determined by reasonable diligence that the Xy-lol would be used around operations which produced substantial heat and sparks. Union Oil and American Mineral Spirits were charged with negligence in marketing a flammable liquid when they knew or should have known that the product would be used in operations where there were sparks, thereby creating a safety hazard. Mackey, Union Oil and American Mineral were charged with negligence in failing to adequately warn ultimate users of the dangerous propensity of Xylol.

The case went to trial on these theories. At the conclusion of the evidence presented by all parties, the defendants, Mackey Paint Mfg. Co., Union Oil and American Mineral Spirits Company moved for a directed verdict in their favor on the ground that the plaintiffs had not produced any evidence of negligence on defendants’ part. The court directed a verdict for these three defendants and submitted the case to the jury against Fayette Fabricators. The jury returned a verdict against Fayette Fabricators in favor of the plaintiffs in the amount of $25,000.

The plaintiffs appeal the judgment in favor of Mackey Paint Mfg. Co. On appeal, they concede that they “are unable to make out a prima facie case against the defendants, American Mineral Spirits Company and Union Oil Company of California” but insist that they were entitled to go to the jury with their case against Mackey Paint Mfg. Co. We must, therefore, determine whether the trial court erred in directing a verdict in favor of Mackey Paint Mfg. Co.

The plaintiffs presented two theories of liability against Mackey. First, it was their contention that Mackey was negligent in selling Xylol to the defendant, Fayette Fabricators, since Mackey knew or should have known that Fayette Fabricators would use it around operations which produced heat and sparks. They also charged negligence on the part of Mackey in failing to adequately warn the user of the product, Fa-yette Fabricators, of the dangerous propensities of Xylol. They limit their argument on appeal to the latter. They insist that there was evidence from which the jury could have found the warning inadequate.

Mr. McKinney, the president of Fayette Fabricators, testified that he manufactures bumpers which are used on motor vehicles. The bumpers are stamped out of metal by a hydraulic press, then put through a welding process, and finally buffed by using a grinding wheel. They are then dipped in a vat to be cleaned, then primed and painted and lettered out with red letters. They are then ready for shipment.

Some three months before the fire which destroyed the building involved in this litigation, another fire had occurred in the plant. Employees of Fayette Fabricators testified that the first fire was caused by a spark. The grinding wheels are located eight or ten feet from the dipping vat. When they are being operated, sparks fly off “like the sparklers that you have at Christmas time.” Five grinding operations were going on at the time the fire occurred. Two were grinding about seven or eight feet from the vat and sparks were flying in the direction of the vat. The sparks were hot enough to burn the operator’s clothes. The grinding wheels were not relocated after the first fire.

Mr. McKinney designed the dip vats and had been buying Xylol from Mackey Paint Mfg. Co. for a long time to be used as a paint thinner. He bought the paint used to paint the bumpers from Mackey Paint Mfg. Co. and Xylol came with it as a paint thinner. He, Mr. McKinney, started using Xy-lol as a reducing agent to clean the bumpers, but he never discussed this use with Mackey and never asked them whether he should or should not use it for that purpose. He had been using the dipping vats two or three months before the fire occurred. A salesman from Mackey would come to the plant about once a month. Mr. McKinney had no idea whether salesmen had ever seen the dipping vats. A Mackey salesman would never have had an occasion to see the grinding operations.

Mr. McKinney knew that Xylol was flammable. It came in 55-gallon drums and each drum carried a red label marked:

In addition to these labels, each bill of lading carried a similar warning. Besides the warnings, Mr. McKinney knew enough about the paint thinner to know that it was flammable and he knew that it would catch fire.

The plaintiffs called Mr. William Mackey, a member of the board of directors of Mackey Paint Mfg. Co., as an adverse witness. He testified that Xylol is a trade name. It is chemically an aliphatic solvent, which is used primarily in making paint. He bought Xylol from several suppliers. It is bought in 5,000-gallon tanks and Mackey sells it in 55-gallon drums. His suppliers describe the chemical nature of the product. When shipped in Interstate Commerce, any product which has a flash point of 80° or under must carry a red label. Xylol has a flash point over 80° and, therefore, is not required by Interstate Commerce Regulations to carry a red label, but it is the practice of Mackey to label the drums which they ship with a red label anyway. The red label attached to each drum of Xylol is not required but is only required for products shipped in Interstate Commerce which are extremely flammable and dangerous. In other words, the red label attached to the drums of Xylol carries a warning which is required by the Interstate Commerce Commission only for more dangerous products. Mackey just uses them anyway “as an ounce of precaution.” They also put on each bill of lading a warning that the. product is a flammable liquid. Xy-lol is very much like mineral spirits.

The thrust of plaintiffs’ argument is that Mackey should have included on the label an indication of the flash point of Xylol.

The flash point is the lowest temperature at which the vapors above a volatile combustible substance ignite momentarily in air when tested under controlled conditions. The degree of flammability of a liquid is expressed in terms of its flash point.

Under these facts, which were not disputed, we do not believe a jury issue was made out as to the adequacy of the warning. The testimony of Mr. McKinney and other of his employees was not disputed. They testified that they knew that the Xy-lol would catch fire when sparks from the grinding wheels hit it. They knew that that was what caused the earlier fire. We fail to see what the failure of the warning to carry the flash point of Xylol in anywise affected Fayette Fabricators’ use of that substance. Such a warning would not have supplied Fayette Fabricators with any information its employees and officers did not already have.

There is an additional reason for affirming the trial court in granting Mackey’s motion for directed verdict. The evidence is undisputed that Fayette Fabricators did not put the product involved here to its intended use. Mr. McKinney testified that he bought Xylol from Mackey to thin paint. He began using it to dip the bumpers in without discussing that use with Mackey. The duty to warn users of the dangerous propensities of a product applies only when such products are dangerous when put to their intended use. Norton Co. v. Harrel-son, 278 Ala. 85, 176 So.2d 18 (1965); Defore v. Bourjois, Inc., 268 Ala. 228, 105 So.2d 846 (1958).

Although this case was tried long before this court adopted the extended manufacturer’s liability doctrine, Casrell v. Altec Industries, Inc., Ala., 335 So.2d 128 (1976), we note that the result would be the same had it proceeded under that theory. There we held that a “. . . manufacturer, or supplier, or seller, who markets a product not reasonably safe when applied to its intended use in the usual and customary manner, constitutes negligence as a matter of law.” (335 So.2d at 132) The user’s misuse of the product constitutes a valid defense under the “extended manufacturer’s liability doctrine.” Atkins v. American Motors Corp., Ala., 335 So.2d 134 (1976).

We have carefully read the evidence in this case and are convinced that the plaintiffs failed to prove any theory of liability insofar as Mackey Paint Mfg. Co. was concerned. We find no error in the trial court’s directing a verdict in favor of Mack-ey-

The only other alleged error complained of by the plaintiffs on this appeal is the refusal of the trial court to permit them to call Mr. McKinney, the president and managing officer of Fayette Fabricators at the time of the fire, as an adverse witness under ARCP 43(b).

Mr. McKinney was no longer employed by Fayette Fabricators at the time of the trial. The appellee argues, therefore, that the plaintiffs were not entitled to call him as an adverse witness under Rule 43(b). Clearly, Mr. McKinney was a hostile witness under Ride 43(b) and, as such, the plaintiffs were entitled to ask him leading questions. Although the trial court refused to allow the plaintiffs to call Mr. McKinney as “an adverse party” under the third sentence of Rule 43(b), it did allow the plaintiffs to fully and completely examine him, including the use of leading questions. In fact, it was Mr. McKinney’s testimony which, for the most part, made out the plaintiffs’ case against Fayette Fabricators. Under these circumstances, we do not think error requiring a new trial is apparent. We' agree with the plaintiffs that Mr. McKinney was an adverse witness under Rule 43(b); but, since the trial court allowed the same treatment of him as would have obtained had the plaintiffs been allowed to call him as such, we find no error to reverse.

AFFIRMED.

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


text:
    OPINION OF THE JUSTICES.
    No. 233.
    Supreme Court of Alabama.
    March 22, 1977.
   To the Honorable Speaker and Members of the House of Representatives

State Capitol

Montgomery, Alabama

Dear Sirs and Madam:

By resolution of 10 March 1977 you requested the Justices of this Court to give their advisory opinion on certain questions relating to the constitutionality of the substitute for House Bill 501 of the present session of the Alabama Legislature. The questions are:

“1. Is the law proposed by the substitute for the bill, H. B. 501, a local or a general law under Section 110 of the Constitution?”

Because of the failure to add the words “or any subsequent Federal Census” to the words “the most recent Federal Census,” where the latter appears in Section 1 of the Substitute Bill, the proposed law is a local one. The addition of that phrase will make the law a general one and meet the requisite test that allows other counties to come within the 600,000 inhabitant population classification as they attain that number of inhabitants by subsequent censuses. Opinion of The Justices, No. 223, Ala., 335 So.2d 376.

“2. If the answer to question one is that the substitute for H. B. 501 proposes a local law, then will such law be invalid since notice of intention to introduce it was not published as required by Section 106 of the Constitution?”

Section 106 is emphatic in imposing the requirement of advertising local acts prior to their passage. It mandates that the courts shall pronounce void every local law which the journals (of the legislature) do not affirmatively show was passed according to the advertising requirements of that section. Ala. Const, of 1901, § 106, Jefferson County Board of Health v. City of Bessemer, 293 Ala. 237, 301 So.2d 551.

“3. If your answer to question 1 above is that the substitute for the bill, H. B. 501, proposes a general bill, then is the title sufficient to comply with section 45 of the Constitution?”

Section 45 requires that each law, general or local, shall contain but one subject. The subject of the proposed bill is one; the maintenance and operation of county departments of health. Boswell v. State, 290 Ala. 349, 276 So.2d 592; Opinion of the Justices, No. 224, Ala., 335 So.2d 373.

“4. Does the substitute for H. B. 501 so alter or amend the bill as to change its original purpose in contravention of Section 61 of the Constitution?”

The original purpose of H. B. 501 was to provide for the maintenance and operation of county departments of health in counties of 600,000 or more inhabitants; that is the purpose of the substitute for H. B. 501, therefore the substitute does not alter or amend the original bill to change its original purpose in contravention of Section 61 of the Constitution. Opinion of the Justices, No. 224, Ala., 335 So.2d 373.

Respectfully submitted,

C. C. TORBERT, JR., Chief Justice

JAMES N. BLOODWORTH

HUGH MADDOX

JAMES H. FAULKNER

RENEAU P. ALMON

JANIE L. SHORES

ERIC EMBRY

SAM A. BEATTY

Justices.


text:
    OPINION OF THE JUSTICES.
    No. 234.
    Supreme Court of Alabama.
    March 22, 1977.
   To the Honorable Speaker and Members of the House of Representatives

State Capitol

Montgomery, Alabama

Dear Sirs and Madam:

By resolution of 10 March 1977 you requested the Justices of this Court to give their advisory opinion on certain questions relating to the constitutionality of the substitute for House Bill 502 of the present session of the Alabama Legislature. The questions are:

“1. Is the law proposed by the substitute for the bill, H.B. 502, a local or a general law under Section 110 of the Constitution?”

Because of the failure to add the words “or any subsequent Federal Census” to the words “the most recent Federal Census,” where the latter appears in Section 1 of the Substitute Bill, the proposed law is a local one. The addition of that phrase will make the law a general one and meet the requisite test that allows other counties to come within the 600,000 inhabitant population classification as they attain that number of inhabitants by subsequent censuses. Opinion of Justices, No. 223, Ala., 335 So.2d 376.

“2. If the answer to question one is that the substitute for H.B. 502 proposes a local law, then will such law be invalid since notice of intention to introduce it was not published as required by Section 106 of the Constitution?”

Section 106 is emphatic in imposing the requirement of advertising local acts prior to,their passage. It mandates that the courts shall pronounce void every local law which the journals (of the legislature) do not affirmatively show was passed according to the advertising requirements of that section. Ala.Const. of 1901, § 106, Jefferson County Board of Health v. City of Bessemer, 293 Ala. 237, 301 So.2d 551.

“3. If your answer to question 1 above is that the substitute for the bill, H.B. 502, proposes a general bill, then is the title sufficient to comply with Section 45 of the Constitution?”

The mandate of Section 45 is that the title to each local or general law shall contain but one subject. The title to the substitute for H.B. 502 relates only to the funding for transit authorities in counties of not less than 600,000 inhabitants, one subject. Boswell v. State, 290 Ala. 349, 276 So.2d 592; Opinion of Justices, No. 224, Ala., 335 So.2d 373.

“4. Does the substitute for H.B. 502 so alter or amend the bill as to change its original purpose in contravention of Section 61 of the Constitution?”

The original purpose of H.B. 502 was to provide funding for transit authorities in counties of the designated population classification; the substitute for H.B. 502 has that same purpose. Opinion of Justices, No. 224, Ala., 335 So.2d 373.

Respectfully submitted,

C. C. TORBERT, JR., Chief Justice

JAMES N. BLOODWORTH

HUGH MADDOX

JAMES H. FAULKNER

RENEAU P. ALMON

JANIE L. SHORES

ERIC EMBRY

SAM A. BEATTY

Justices.


author: HOLMES, Judge.

text:
    ALABAMA STATE TENURE COMMISSION v. MOUNTAIN BROOK BOARD OF EDUCATION.
    Civ. 627.
    Court of Civil Appeals of Alabama.
    March 3, 1976.
    Rehearing Denied March 31, 1976.

      Judgment reversed and remanded, Ala., 343 So.2d 528, confirmed to, Ala.Civ. App., 343 So.2d 522.
    William J. Baxley, Atty. Gen., and Carol Jean Smith, Asst. Atty. Gen., for Alabama State Tenure Commission, appellant.
    James E. Simpson, Birmingham, for ap-pellee.
    William M. Dawson, Jr., Birmingham, for Dorothy Greenberg, amicus curiae.
   HOLMES, Judge.

This is an appeal from the Circuit Court of Jefferson County’s action vacating an order of the Alabama State Tenure Commission. The order of the tenure commission reinstated a teacher whose employment contract had been cancelled by the Mountain Brook Board of Education.

In July of 1974, under the authority vested in it by Tit. 52, § 358, Code of Ala.1940, the Mountain Brook Board of Education cancelled the employment contract of Ms. Dorothy Greenberg, a teacher on continuing service status. Greenberg then appealed to the State Tenure Commission as provided by Tit. 52, § 360, Code of Ala.1940. The commission reversed the board’s action and reinstated the teacher. Pursuant to § 361 of Tit. 52, Code of Ala.1940, the board by appropriate writ petitioned the Circuit Court of Jefferson County for review of the commission’s action. As noted above, the circuit court vacated the commission’s reinstatement order, and this appeal by the commission ensued.

The commission urges error in that the record compiled by the board and forwarded to the commission contained no documents showing that notice of the proposed cancellation and the reasons therefor were provided to Greenberg. The commission further contends that it properly determined there was insufficient evidence presented for the board to cancel Green-berg’s contract.

I

Title 52, § 359, Code of Ala.1940, provides in pertinent part as follows;

“The employing board of education shall give notice in writing to the teacher stating in detail the reasons for the proposed cancellation and naming the exact time and place at which the teacher may appear before the board to answer said notice, . . . ”

Additionally, Tit. 52, § 360, Code of Ala. 1940, provides:

“Upon notice of appeal, the board shall cause to be made sufficient copies of the record of proceedings to provide a copy for each of the members of the commission and one for the teacher. The record shall consist of all notices given to the teacher, all papers filed with the board by the teacher in compliance with the provisions of this chapter, transcript of testimony and other evidence and the findings and decisions of the board. . . .”

This court has diligently searched the record for the notices described by the above quoted statutes, and we can find none. However, from our examination of the record we find it to be clear that Green-berg did in fact receive the requisite notice of the proceedings against her.

The following letter was sent by Green-berg to the board:

“Dr. William N. Eddins, Superintendent Mountain Brook Board of Education 3 Church Street Birmingham, Alabama “Dear Dr. Eddins:
“This is to notify you that I plan to contest the Mountain Brook Board of Education’s plans to consider cancellation of my teaching contract.
“Very truly yours,
“/&/ Dorothy Greenberg
“Dorothy Greenberg”

In our opinion, this letter is indicative that Greenberg received the notice contemplated by Tit. 52, § 359, Code of Ala.1940. The record also reveals a letter from Green-berg’s lawyer to the board, dated prior to the hearing, in which he requested information pertinent to the pending proceedings. This letter further militates against the conclusion that Greenberg received no notice.

Additionally, the record shows that at the commencement of the proceedings before the board the chairman thereof stated that due notice had been given to Greenberg pursuant to statute. The teacher was then present, as was her attorney, and no objection was made to this statement. The character and length of the proceedings then conducted, which required two volumes in transcription, demonstrate that Greenberg was- adequately prepared to contest the charges. The qircuit court in its final order also specifically found that Greenberg received due notice.

We do not feel that the provision of Tit. 52, § 360, Code of Ala.1940, requiring all notices given the teacher to be a part of the record on appeal, mandates reversal of this cause when the record is literally replete with evidence that the said notice was in fact given. This is especially true in view of the fact that lack of notice has been raised for the first time on this appeal. See 2 Ala.Dig. Appeal & Error keys 169, 173, and cases cited thereunder. Cases cited in the above mentioned Alabama Digest enunciate the established principle of law that issues not raised in the trial court will not be considered on appeal.

II

Title 52, § 360, Code of Ala.1940, provides that the action of the board shall be conclusive upon the commission if made in compliance with the procedural provisions of the appropriate code sections and unless the action taken was “arbitrarily unjust.” As seen from the above, the procedural requirement placed upon the board has been met. Our inquiry thus becomes whether the board’s decision was arbitrarily unjust. The trial court found that it was not, and that the commission’s determination was therefore erroneous. We believe that the trial court was correct in its findings.-

The State Tenure Commission specifically found as follows:

“IN THE MATTER OF DOROTHY GREENBURG v. MOUNTAIN BROOK BOARD OF EDUCATION BEFORE THE ALABAMA STATE TENURE COMMISSION
“A meeting of the Albama State Tenure Commission was held in Montgomery, Alabama on August 29, 1974, at 9:40 a.m. for the purpose of considering the above matter.
“After reviewing the record of the hearing before the Mountain Brook Board of Education and hearing arguments of counsel for both parties, the Commission finds that the record contained insufficient evidence to support the decision to terminate the employment of Mrs. Dorothy Greenburg and, therefore, orders her reinstated to her former position.
“The Commission found evidence in the record that the teacher may have used indiscretion in some instances, but upon a full consideration of the transcript felt that such conduct was insufficient to support termination of Mrs. Greenburg’s contract.
“Done this- 29th day of August, 1974.
“/s/ Oscar M. Zeanah “Oscar M. Zeanah, Chairman “Alabama State Tenure Commission”

Title 52, § 358, Code of Ala.1940, provides that the employment contract of a teacher on continuing service status may be can-celled for incompetency, insubordination, neglect of duty, immorality, justifiable decrease in the number of teaching positions, or other good and just cause. The statute also states that cancellation may not take place for political or personal reasons.

It is appropriate to note at the outset that there is no creditable testimony indicating the cancellation was for political or personal reasons.

There is considerable testimony to the effect that the teacher engaged in behavior which can best be described as mocking and holding up to ridicule many of her students. Students who had been made the object of this type of conduct so testified, and one witness testified that Greenberg on one occasion called her a “smart ass” before the class.

The principal of Mountain Brook Junior High School testified that before the commencement of the school year he received requests from a minimum of thirty parents that their children not be placed in Green-berg’s classes. He further testified that more parents and students had consulted him concerning Greenberg than was the case with any other teacher and that these visits had been without exception of a disapproving nature. His recommendation was that her employment contract be terminated.

Former students of Greenberg testified that they did not learn comparably with students in other classes and that Green-berg’s behavior tended to so intimidate her students as to discourage them from asking questions.

There was further testimony that Green-berg unjustifiably refused to release a cheerleader from her class to attend a cheerleading function.

Finally, there was considerable testimony that Greenberg made extended remarks to one of her classes which may sufficiently be described as racial slurs, having no place in a junior high schoolroom.

As previously noted, in order for the commission to properly overturn an action of the board, that action must have been “arbitrarily unjust.” Tit. 52, § 360, Code of Ala.1940. We construe the commission’s finding that there was insufficient evidence to cancel Greenberg’s contract to be a finding that the board’s action was arbitrarily unjust in that there was insufficient evidence for the board’s action of dismissal.

Our supreme court, in Van Antwerp v. Board of Com’rs, 217 Ala. 201, 206, 115 So. 239, 243, in discussing arbitrary action said: “It may well be said all cases of arbitrary action, that is to say, action based on no sound basis of reason, . . . ” (Emphasis added.) A federal district court, in United States v. Lotempio, 58 F.2d 358, 360 (2 Cir.), quoted with approval the definition of “arbitrarily” as found in 4 C.J. 475 which is, “without fair, solid, and substantial cause and * * * without any reasonable cause.”

Webster’s Third New International Dictionary defines “arbitrary” as, “based on random or convenient selection or choice rather than on reason or nature.” This same dictionary defines “unjust” as, “deficient in justice and fairness.”

As the evidence set out above indicates, we find the record belies the conclusion that the board’s action was based on, “no sound basis of reason,” or was, “without any reasonable cause.”

When the evidence is viewed as mandated by Tit. 52, § 360, Code of Ala. 1940, this court must conclude as did the trial court that the Tenure Commission erred in finding the action of the school board to be unsupported by sufficient evidence. The Tenure Commission in effect substituted its view of the evidence for that of the board. We do not find such as act to be the statutory function of the commission.

We would finally note that this court permitted Greenberg to file a brief in this cause as amicus curiae. Amicus contends that the circuit court committed reversible error by not allowing Greenberg to intervene in the mandamus action brought by the board. Greenberg was represented by counsel, other than amicus counsel, before the board and the Tenure Commission.

The parties on this appeal are the school board and the Tenure Commission. The refusal to allow intervention was not raised by the Tenure Commission or the school board. We cannot consider questions presented by amicus curiae which are not raised by the parties to the cause. Corning v. Patton, 236 Ala. 354, 182 So. 39.

Furthermore, Rule 24(a)(2) of the ARCP provides a right to intervention “when the applicant claims an interest relating to the property or transaction which is the subject of the action and he is so situated that the disposition of the action may as a practical matter impair or impede his ability to protect that interest, unless the applicant’s interest is adequately represented by existing parties." (Emphasis added.) Here, the Tenure Commission advocates Greenberg’s position. The Commission is represented by the Attorney General, who has filed a thorough brief with this court. The entire thrust of the Attorney General’s brief is to the effect that Greenberg should be reinstated. As such, we believe in this instance that Greenberg’s interest in the litigation was adequately represented by an existing party, so that no reversible error was committed by the circuit court in refusing to allow her intervention.

This case is due to be and is affirmed.

AFFIRMED.

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


author: EMBRY, Justice. ALMON, Justice EMBRY, Justice. BLOODWORTH, Justice

text:
    In re ALABAMA STATE TENURE COMMISSION v. MOUNTAIN BROOK BOARD OF EDUCATION. Ex parte Alabama State Tenure Commission.
    SC 1800.
    Supreme Court of Alabama.
    Dec. 10, 1976.
    Rehearing Denied Feb. 11, 1977.

      William J. Baxley, Atty. Gen., and Carol Jean Smith and Joel E. Dillard, Asst. Attys. Gen., for the Ala. State Tenure Commission, petitioner.
    James E. Simpson, Birmingham, for respondent.
    William M. Dawson, Birmingham, for Dorothy Greenberg, amicus curiae.
   EMBRY, Justice.

The issue here is the scope of inquiry of the courts when reviewing actions of the Alabama State Tenure Commission taken by it on appeals from orders of Boards of Education cancelling contracts of tenured teachers.

The Mountain Brook Board of Education cancelled the employment contract of Mrs. Dorothy Greenberg, a tenured teacher in its school system. She appealed to the Alabama State Tenure Commission which reversed the Board’s action and ordered that she be reinstated. In turn, the Board petitioned the Circuit Court of Jefferson County for writ of mandamus seeking to compel the Commission to vacate its order and to uphold the action of the Board terminating Greenberg. The Circuit Court granted that relief. The Commission appealed to the Court of Civil Appeals, which affirmed.

We granted the writ of certiorari and now review the Court of Civil Appeals.

It was alleged that (a) Greenberg failed to send a student to the principal’s office as requested, (b) that children could not learn in her class, (c) that she could not get along with other teachers, (d) she refused to help students with their studies, (e) she allegedly made derogatory remarks concerning Blacks and (f) she was rude to, and treated students unfairly.

Code of Ala., Tit. 52, § 358, states:

“Grounds for cancellation of employment contract. — Cancellation of an employment contract with a teacher on continuing service status may be made for incompetency, insubordination, neglect of duty, immorality, justifiable decrease in the number of teaching positions, or other good and just cause; but cancellation may not be made for political or personal reasons.”

All the procedural requirements of Tit. 52, § 359, were complied with by the Board and after a full hearing, at which Green-berg was represented by counsel, her contract was cancelled. None of the grounds enumerated in § 358 were cited as bases for the cancellation. Evidence, pro and con, as to the allegations against her was hotly disputed, was largely subjective, and different conclusions could reasonably be reached from ■ it.

The overall impression is that Greenberg was possessed of an abrasive personality, not a tactful individual, a strict disciplinarian, but not an incompetent teacher. The Tenure Commission, after review of the record of the hearing before the Board of Education, concluded that

“ * * * the record contained insufficient evidence to support the decision to terminate the employment * * *
“The Commission found evidence in the record that the teacher may have used indiscretion in some instances, but upon a full consideration of the transcript felt that such conduct was insufficient to support termination of Mrs. Greenberg’s contract.”

The Circuit Court, on review of the action of the Tenure Commission (on the record), concluded the scope of its inquiry to be whether the action of the Board of Education was “arbitrarily unjust” as that phrase is used in § 360 of Tit. 52. The Court of Civil Appeals perceived its scope of inquiry to be the same.

The Alabama State Tenure Commission was created by the legislature as the administrative agency which, among other functions, reviews actions of Boards of Education cancelling tenured teachers’ contracts. Tit. 52, § 360. Under § 360, the Board’s action in this case was final if in compliance with provisions of Chapter 13 of Tit. 52 (§ 351, et seq.) and not arbitrarily unjust. However, by § 361, the action of the Tenure Commission on review is final unless unjust.

For an erudite and full discussion of the role of the State Tenure Commission see Justice Kohn’s opinion, for this court, in State Tenure Commission v. Madison County Board of Education, 282 Ala. 658, 213 So.2d 823.

Judicial review of the Commission’s decisions is provided by Tit. 52, § 361:

“Finality of action of state tenure commission; review. — The action of the state tenure commission in reviewing transfers of teachers or cancellation of teacher contracts, if made in compliance with the provisions of this chapter, and unless unjust, shall be final and conclusive. Whether such action complies with the provisions of this chapter and whether such action is unjust, may be reviewed by petition for mandamus filed in the circuit court of the county where said school system is located.”

A fundamental concept of judicial review of administrative action is that it is a limited review, delineated by statute and court-established standards relating to the nature of the issues or questions open to judicial review, or to the particular method or means by which review can be had. See 2 Am.Jur.2d, §§ 612, 614, 626 (1962).

The statute here provides for judicial review of actions of the Commission by mandamus; an extraordinary remedy which, traditionally, will not lie for the purpose of review, nor to revise or control, the exercise of discretion reposed in administrative or other governmental bodies. Jones v. Jones, 249 Ala. 374, 31 So.2d 81 (1947); Gardner v. Stevens, 269 Ala. 213, 111 So.2d 904 (1959). The concept of the limited nature of review by mandamus was recognized by the Court of Civil Appeals in a case involving a teacher transfer under Tit. 52, § 361. Lamar County Board of Education v. Steedley, 45 Ala.App. 672, 236 So.2d 337 (1970).

Prior to the establishment of the Tenure Commission it was proper for a circuit court to entertain a petition for writ of mandamus directed against the Board of Education. Cooper v. Perry County Board of Education, 264 Ala. 251, 86 So.2d 832 (1956).

By amendment to § 360, the legislature created an administrative agency, the Tenure Commission, which has succeeded to the role of circuit courts in reviewing certain decisions of Boards of Education, and has provided that the role of the trial court now is to review the action of the State Tenure Commission upon petition for mandamus. The Court of Civil Appeals adopted this view in Cullman City Board of Education v. Buchanon, 45 Ala.App. 357, 231 So.2d 134, cert. den., 285 Ala. 754, 231 So.2d 137 (1970):

“ * * * We think that by creating the State Tenure Commission the Legislature intended to set it up as an intervening agency between the board of education and the aggrieved teacher * * and that the review provided for by the above quoted statute [Tit. 52, § 361] was of the findings of the State Tenure Commission on appeals from boards of education and not for a direct review of the action of the boards of education. * * (emphasis added)

Further scrutiny of § 361 reveals that the trial court’s right to review the decision of the State Tenure Commission is limited to a determination of whether the Commission’s action was made in compliance with the requirements of the law governing teacher tenure, and whether the action was unjust. State Tenure Commission v. Madison County Board of Education, supra. The trial court’s first inquiry should be whether the procedural requirements of Chapter 13, Tit. 52, were complied with; they were and it so found.

The second inquiry is whether there was sufficient evidence before the Commission to support its conclusion that the decision of the Board of Education should be reversed. Thus limiting the scope of the court’s inquiry is consistent with our traditional concept of review by mandamus. If there was sufficient evidence to support such a conclusion, then the decision of the Commission must be affirmed as not unjust. See Steedley, supra. There is sufficient evidence to support the Commission’s findings and conclusion.

Under § 361, the trial court was not entitled to institute a direct review of the action of the Board of Education, but should have limited its review to the action of the State Tenure Commission. In re Marshall County Board of Education v. State Tenure Commission, 291 Ala. 281, 280 So.2d 130 (1973); Lamar County Board of Education v. Steedley, supra; Cullman City Board of Education v. Buchanon, supra.

The judgment of the Court of Civil Appeals is reversed and the cause is remanded to that court with directions to reverse the judgment of the trial court and reinstate the order of the State Tenure Commission reversing the decision of the Mountain Brook Board of Education.

REVERSED AND REMANDED WITH DIRECTIONS.

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

BLOODWORTH and ALMON, JJ., dissent.

ALMON, Justice

(dissenting).

The court has in my judgment improperly changed the scope of review in this type of case. I would affirm the Court of Civil Appeals.

BLOODWORTH, J., concurs.

ON REHEARING

EMBRY, Justice.

After a full review upon the petitioner’s application for a rehearing a majority of the court is of the opinion that this case should be remanded to the Court of Civil Appeals and that Court is to conform its opinion to the scope of review as we have determined it in this opinion.

OPINION EXTENDED, APPLICATION FOR REHEARING OVERRULED.

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

BLOODWORTH and ALMON, JJ., dissent.

BLOODWORTH, Justice

(dissenting).

I joined in Mr. Justice Almon’s dissent when the original opinion in this case was released. He wrote that the court has “improperly changed the scope of review in this type of case.” I am now more than ever convinced that this is correct. I wish to expand on this view.

First, let us review the chronology of this case. By letter, dated May 30, 1974, Mrs. Greenberg, a tenured teacher, was notified by the Mountain Brook Board of Education that her contract was to be terminated, with reasons given for the termination. She requested a hearing.

On June 26, 1974, a hearing was held before the Mountain Brook Board of Education. At that hearing, evidence was presented that Mrs. Greenberg (a junior high-school teacher) had made racial slurs, e. g., that blacks would have to learn to take baths if they moved into Mountain Brook and that they would have to learn to act like white people. There were complaints from parents and evidence of unfair treatment of students and of refusal to help students. There was further evidence that she had made fun of a student because he or she was fat or walked differently. The Court of Civil Appeals’ opinion discloses that the following evidence was also presented before the Board:

“There is considerable testimony to the effect that the teacher engaged in behavior which can best be described as mocking and holding up to ridicule many of her students. Students who had been made the object of this type of conduct so testified, and one witness testified that Greenberg on one occasion called her a ‘smart ass’ before the class.
“The principal of Mountain Brook Junior High School testified that before the commencement of the school year he received requests from a minimum of thirty parents that their children not be placed in Greenberg’s classes. He further testified that more parents and students had consulted him concerning Greenberg than was the case with any other teacher and that these visits had been without exception of a disapproving nature. His recommendation was that her employment contract be terminated.
“Former students of Greenberg testified that they did not learn comparably with students in other classes and that Greenberg’s behavior tended to so intimidate her students as to discourage them from asking questions.
“There was further testimony that Greenberg unjustifiably refused to release a cheerleader from her class to attend a cheerleading function.”

By letter dated July 3, 1974, Mrs. Green-berg was notified that the School Board had voted unanimously to cancel her contract.

Mrs. Greenberg appealed to the State Tenure Commission, which considered the case on August 29, 1974. It found that the record of the proceedings before the School Board contained insufficient evidence to support Mrs. Greenberg’s termination and ordered her reinstatement.

On October 1, 1974, the School Board filed a petition for writ of mandamus in the circuit court. A hearing was held but no additional evidence was taken. On May 30, 1975, the circuit court entered final judgment vacating the Tenure Commission’s order and reinstating the school board’s order.

On appeal by the Tenure Commission of the circuit court’s judgment, the Court of Civil Appeals, on March 3, 1976, affirmed. Rehearing was overruled on March 31,1976.

On April 14,1976, the Tenure Commission filed petition for writ of certiorari in this Court. The petition was sought on two grounds only: (1) “first impression”— whether the Court of Civil Appeals erred in holding there was no error even though the record did not contain the notice to the teacher showing the reasons for her contract termination; and (2) “conflict”— whether the Court of Civil Appeals’ decision conflicts with State Tenure Commission v. Madison County Board of Education, 282 Ala. 658, 213 So.2d 823 (1968). The conflict alleged is that the Court of Civil Appeals held that its inquiry was whether the Board’s decision was “arbitrarily unjust” while Madison County held that the test is whether the conclusion of the Tenure Commission was “unjust,” i. e., the Court of Civil Appeals used the wrong rule of review.

Ground (2) for issuance of the writ could not be a “good” ground for the simple reason that the Madison County decision is a plurality decision, i. e., a majority of the then Court did not join in the opinion, but joined only in the result. Therefore, it is not an opinion of this Court and could not be the basis for a “conflict.”

When less than a majority of the Court concurs in an opinion, no disqualification existing, the statements of law and application of the law to the facts contained in the opinion are not the “law of the case.” The opinion stands solely for the result of the case, either affirmed or reversed. Phoenix Insurance Company v. Stuart, 289 Ala. 657, 270 So.2d 792 (1972).

Therefore, the petition for writ of certio-rari could not have been granted on the alleged “conflict” basis because' there simply was no part of the Madison County opinion with which the Court of Civil Appeals’ opinion could conflict.

Thus, the only ground for our review is the first — (1) that an alleged question of “first impression” has been raised because the record did not contain the notice. That issue is not addressed by the majority opinion. Should it be reached I would have to say I agree with the conclusion reached by the Court of Civil Appeals — that Mrs. Greenberg did have notice.

Mr. Justice Embry, for the majority, writes that the principal issue in this case is the “scope of inquiry of the courts when reviewing actions of the Alabama State Tenure Commission . . ” I agree. The following sets out this scope of review.

The scope of review by the Tenure Commission of the Board’s action is whether the Board’s action was arbitrarily unjust. Tit. 52, § 360, Code. Marshall County Board of Ed. v. State Tenure Com’n., 291 Ala. 281, 280 So.2d 130 (1973). “Review” means to re-examine judicially, not trial de novo. Greene v. Washington County Bd., 45 Ala. App. 216, 228 So.2d 829 (1969). This review is based on the record before the Board of Education.

The scope of review by the circuit court of the Tenure Commission’s action is by mandamus and is limited to two considerations — whether such action by the Tenure Commission complied with the provisions of Chapter 13, Tit. 52, “Tenure of Employment of Teachers”; and, whether such action was unjust. Tit. 52, § 361; Lamar County Bd. of Educ. v. Steedley, 45 Ala.App. 672, 236 So.2d 337 (1970); Cullman City Bd. of Educ. v. Buchanon, 45 Ala.App. 357, 231 So.2d 134 (1970). This review by the court is based on the record made before the Board of Education. Steedley, supra.

The scope of review by the Court of Civil Appeals is to determine from a review of the evidence taken before the County Board whether there was compliance with Chapter 13 (“Teacher Tenure”) and whether the record will support the Tenure Commission that the action of the Board was arbitrarily unjust. Marshall County Board of Ed. v. State Tenure Com’n, supra.

The task of reviewing all the evidence to make these determinations, formerly placed by law on the Supreme Court, is now placed by law on the Court of Civil Appeals. Marshall County, supra.

The scope of review by the Supreme Court is limited to certiorari and the limited review provided by that vehicle. Marshall County, supra.

The Court of Civil Appeals reviewed the evidence in this case and found that “the record belies the conclusion that the board’s action was based on, ‘no sound basis of reason,’ or was, ‘without any reasonable cause.’ ”

So, the Court of Civil Appeals, upon reviewing the evidence, found that the record did not support the Tenure Commission’s action but did support the Board’s findings and that “[t]he Tenure Commission in effect substituted its view of the evidence for that of the board.”

We do not re-examine these findings under our rules of review. Ex parte McCleney, 286 Ala. 288, 239 So.2d 311 (1970).

In summary, it is thus I conclude, first, that we are limited in our review to the “notice” question. On this question the Court of Civil Appeals is correct and should be affirmed.

Second, we cannot review the other question raised on certiorari as to the scope of review by the Court of Civil Appeals because, as I have demonstrated, there is no basis for a “conflict” upon which a writ could be granted.

Third, assuming arguendo that scope of review is an issue, the Court of Civil Appeals is correct and, having reviewed the evidence before the Board (its duty) and found it to be sufficient to support the Board’s action in terminating Mrs. Green-berg’s employment, should be affirmed. We do not re-examine these findings.

The Court of Civil Appeals’ decision should be affirmed.

In conclusion, the effect of this decision is far reaching. Sub silentio the Court has overruled the following cases:

Phoenix Insurance Company v. Stuart, supra,
Marshall County Board of Ed. v. State Tenure Commission, supra.

This Court has now completely changed our scope of review of the Courts of Appeal as to “conflict” basis and as to review of the Courts of Appeals’ findings on the facts.

ALMON, J., concurs.


text:
    ALABAMA STATE TENURE COMMISSION v. MOUNTAIN BROOK BOARD OF EDUCATION.
    Civ. 627.
    Court of Civil Appeals of Alabama.
    March 9, 1977.
   HOLMES, Judge.

The prior opinion of this court has been reversed and remanded by the Supreme Court. On remand to this court, and in compliance with the Supreme Court’s opinion of December 10, 1976, 343 So.2d 522, this cause is reversed and remanded.

REVERSED AND REMANDED.

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