author: JONES, Justice.

text:
    OLE SOUTH BUILDING SUPPLY CORPORATION and Wayne Nechy v. James T. PILGRIM and Ester Pilgrim.
    81-608.
    Supreme Court of Alabama.
    Jan. 21, 1983.
    Dan Warnes of Odgen, Warnes & Jones, Guntersville, for appellants.
    Robert W. Hanson, Albertville, for appel-lees.
   JONES, Justice.

This appeal presents three issues. Citing Hamon Leasing, Inc. v. Continental Cars, Inc., 358 So.2d 442 (Ala.1978), Appellants state issue No. 1:

“Did the Trial Court err in denying a motion to strike jury demand, stating the demand was timely made, when the jury demand was made two hundred and eleven (211) days after the original complaint containing an equitable and legal claim which was subsequently amended to include only the legal claim?”

Citing Code 1975, § 12-21-161, Appellants state issue No. 2:

“Did the Trial Court err in allowing an attorney previously employed by the defendants to testify as to what information was or was not supplied to that attorney by the defendants in relation to a transaction that was the subject of the case at hand?”

Citing Mobile Light & R.R. Co. v. Burch, 12 Ala.App. 421, 68 So. 509 (1915), Appellants present the third issue thusly:

“Did the Trial Court err in giving instructions solely related to the principles of agency law approximately twenty-three (23) hours after both defendants and plaintiffs had rested and after the Trial Court had given instructions to the jury in relation to principles of agency and independent contractor law?”

The pertinent factual background giving rise to this appeal will be included in our discussion of the issues.

The Jury Demand

The trial court’s order, denying Defendants’ motion to strike Plaintiffs’ jury demand, recites:

“[T]he plaintiff’s form of action has been changed from one wherein plaintiff was not entitled to a jury trial to a form of action wherein plaintiff is entitled to a jury trial.”

Our careful reading of Plaintiffs’ original complaint, in which no jury trial was demanded, and their amended complaint, which included a jury demand, verifies the correctness of the trial court’s legal conclusion. The original complaint, alleging fraud in the procurement, sought equitable relief by way of cancellation of a mortgage. The gravamen of Plaintiffs’ statement of the claim is capsuled in paragraph 8 of their complaint:

“That the mortgage to Ole South Building Supply Co. assigned to Fidelcor Mortgage Co. of Georgia was obtained by fraud, deceit, misrepresentations or other devices and should be set aside and can-celled by this Court.”

Appellants contend, however, because Plaintiffs’ original complaint sought compensatory and punitive damages, a legal claim was asserted, thereby invoking ARCP 38’s 30-day jury demand rule. Thus, say the Appellants, Plaintiffs’ jury demand, filed when they struck their earlier prayer for equitable relief and claimed damages based solely on a tort claim for fraud, and more than 30 days after the original complaint was filed, was untimely.

That the trial court correctly interpreted Plaintiffs’ amended complaint as stating for the first time a legal claim is demonstrated by their amended paragraphs 7 and 8:

“7. That the mortgage to Ole South Building Supply Co. assigned to Fidelcor Mortgage Co. of Georgia was obtained by deceit, misrepresentations or other devices.
“8. That as a proximate consequence of defendants’ fraud, misrepresentations and deceit the plaintiffs have been denied credit because of the existence of the mortgage obtained by defendants; that the plaintiffs have suffered mental distress and anguish because of the acts of defendants and have had their real property encumbered to the extent of a mortgage in the amount of $6,844.32.”

In contradistinction to their original pleading, the gravamen of Plaintiffs’ amended statement of the claim was for damages resulting from Defendants’ alleged tortious procurement of a mortgage on Plaintiffs’ property.

Hamon Leasing, Inc. v. Continental Cars, Inc., supra, is inapposite. There, Plaintiffs’ amended claim merely restated, in slightly different language, the same issues raised in the original complaint. In other words, the plaintiff in Hamon Leasing, being entitled to demand a jury trial upon its original pleading, could not abort the waiver provisions of Rule 38 by refiling the same claim with a jury demand after the 30-day period for such demand had expired. Here, if Plaintiffs had sought a jury trial as to the issues raised on their initial pleading on the ground that their prayer for relief included legal damages, their demand would have been properly denied, and this for the reason that the averments of their pleading failed to state a claim upon which relief by way of damages could be granted. Therefore, when their amendment eliminated the earlier claim for equitable relief only and substituted a claim for legal damages, they were entitled, upon demand, to a jury trial.

Testimony of Defendants’ Former Counsel

Plaintiffs, the Pilgrims, called as their witness Jimmy Carnes, a lawyer, who had represented Ole South doing title research on the Pilgrims’ property relative to the mortgage transaction and the subject matter of the suit. Carnes was permitted to testify that Ole South did not furnish him a deed from which he could acquire the legal description of the property — the inference being that, consistent with the Pilgrims’ own testimony, Ole South obtained information for the drafting of the mortgage without the Pilgrims’ knowledge or consent. Ole South says that the admission of this evidence contravenes Code 1975, § 12-21-161:

“No attorney or his clerk shall be competent or compelled to testify in any court in this state for or against the client as to any matter or thing, knowledge of which may have been acquired from the client, or as to advice or counsel to the client given by virtue of the relation as attorney or given by reason of anticipated employment as attorney unless called to testify by the client, but shall be competent to testify, for or against the client, as to any matter or thing the knowledge of which may have been acquired in any other manner.”

What Ole South’s argument overlooks is that Carnes’s testimony that he had not obtained a deed from his client, Ole South, was admitted without objection.

Our examination of the record discloses that the only question to which Ole South registered an objection was: “How did you come upon a description of the property?” Rejecting Ole South’s objection, grounded on “confidential relationship between an attorney and his client,” the court stated:

“Certainly we won’t have the conversation or what was going on, but overruled at this stage.”

An earlier question, to which Carnes had responded without objection, was then repeated: “Were you given a deed and a property description by Ole South in the Pilgrim transaction?” Again, without objection, Carnes answered: “No.” He then continued:

“It was obtained from the Tax Assessor’s Office and I went to the Probate Judge’s Office and ran the title from that.”

Even if we take liberties with the record and address the propriety of the trial court’s ruling with respect to the question objected to (“How did you come upon a description of the property?”), including Carnes’s subsequent reply (“It was obtained from the Tax Assessor’s Office”), we, nevertheless, find that this is not the type of evidence embraced within the prohibition of § 12-21-161. Carnes’s testimony that he obtained the legal description for the Pilgrim transaction from the tax assessor’s office, a statement of some act done by him, was in nowise violative of the statutory proscription relating to the incompetency of a lawyer to testify against his client. For a discussion of the lawyer-client privilege, see J. Russell McElroy’s The Law of Evidence in Alabama, § 391.04 (2nd ed. 1959), updated by C. Gamble’s McElroy’s Alabama Evidence, § 391.04 (3d ed. 1977).

Additional Jury Instructions

We agree with Ole South’s assertion that Mobile Light & R.R. Co. v. Burch, supra, stands for the proposition that “[a]n instruction which singles out or gives undue prominence to particular evidence or facts is erroneous.” But that is not the issue here presented.

At the close of the evidence, the judge instructed the jury as to the principles of both agency and independent contractor law. The following day, during its deliberations, the jury requested additional instruction on the law of damages. Specifically, the inquiry was two-fold: First, the jury sought clarification as to its options, if any, to assess damages in different amounts as to the separate defendants; and secondly, it inquired as to whether damages could be assessed against Ole South should the jury return a verdict in favor of Eddie Hendrix (one of the persons who dealt directly with the Pilgrims throughout the mortgage transaction).

Ole South does not question the patient and painstaking manner in which the learned trial judge handled this entire matter, except in one particular — that the trial judge’s additional instruction dealing with Ole South’s potential vicarious liability included, in large measure, a recharge of the jury on the law of agency to the exclusion of the law of independent contractor. The trial judge, rejecting Ole South’s request for a recharge of the jury on the law of independent contractor, stated that because “the jury did not ask for that, [your request] will be denied.”

Ole South’s argument on this issue is not without some degree of persuasion. To be sure, we agree that the trial judge’s stated reason for denying the Ole South’s request is not necessarily controlling. Certainly, the trial judge may not, in all circumstances, confine himself to the precise perimeters of the jury’s inquiry and avoid prejudicial error in his denial of request for additional balancing instructions.

Without placing our stamp of approval on the reason stated for his denial, however, we hold that the action of the trial judge did not constitute an abuse of discretion under the posture of the record before us. Admittedly, the judge would have acted within the bounds of his discretionary prerogatives had he granted the request and repeated the instructions on the law of independent contractor.

Nevertheless, keeping in mind, of course, that initially the jury had been fully and accurately instructed as to both the law of agency and of independent contractor, we are persuaded that the trial court’s additional instructions were not unduly weighted against Ole South. We believe that the following brief extract from the record of the trial judge’s instructions, given in answer to the jury’s inquiry on damages, demonstrates the balanced nature of the agency charge:

“Now, again, I am going to be assuming some things that may or may not be true. Assuming that you are intending to give the Plaintiffs some compensation, the law in the State of Alabama requires that in order to hold a principal liable, you must find the agent liable.
“Now, again, assuming — and whether it’s true or not — this is strictly up to the Jury whether you determine that there was a principal-agent relationship between George Hendrix and Wayne Nechy and Ole South, with George Hendrix and Wayne Nechy being the agents and Ole South being the principal. Assuming that you determine that and are reasonably satisfied from the evidence that that is the case, then you would set an amount of damage, either nominal and punitive, or just nominal, against all three of them in the same amount. In other words, you cannot find the principal Ole South liable unless you first find the agents, George Hendrix and Wayne Nechy liable.
“Now, you can find an agent liable without finding the principal liable. In other words, you could find George Hendrix — Eddie Hendrix and Wayne Nechy liable and responsible for damages and not find Ole South liable, but you cannot find Ole South liable without finding the agents, if they are agents, liable. And you would make one amount for nominal damages for all three and punitive damages, if you find them, for all three. They then would be jointly and severally — they would all be liable for the same amount.”

A fair reading of these instructions, taken in the context of the whole of the court’s oral charge, left the jury free to exercise its factfinding prerogative either for or against the respective parties on the agency issue. If it were determined that Hendrix was not acting as the agent of Ole South, even though the liability issue were resolved against Hendrix, it was clear from the court’s instruction that the jury could not award damages against Ole South. Although the better practice may have been to grant Ole South’s requested additional jury instructions, we decline to hold the trial court, in denying such request, abused its discretion.

AFFIRMED.

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


source: Caselaw Access Project

author: BEATTY, Justice.

license: Public Domain

text:
    Reed WHITE v. CHELSEA INDUSTRIES, INC., et al.
    81-660.
    Supreme Court of Alabama.
    Jan. 21, 1983.
    Bob E. Allen of Boggs & Allen, Clanton, for appellant.
    Robert L. Thompson and Stanford G. Wilson of Elarbee, Clark & Paul, Atlanta, and Wade H. Morton, Jr., Columbiana, for appellees.
   BEATTY, Justice.

Plaintiff in this case claimed that his discharge was a breach of an implied employment contract. Following a grant of summary judgment in favor of defendants, plaintiff appeals. We affirm.

The only question presented to this court is whether summary judgment was properly granted in this case.

Plaintiff, Reed White, was a foreman at Elastic Corporation of America in Colum-biana, Alabama, from August 1975 until his termination on or about March 25, 1981. Mr. White filed a complaint in the Circuit Court of Shelby County against defendants, Chelsea Industries, Inc.; Elastic Corporation of America, Chelsea’s subsidiary doing business in Alabama; Edgar Gaskins, a supervisor employed by Elastic Corporation; and others. Plaintiff sought to be restored to his former employment and to recover lost wages and damages. The complaint alleged an implied employment contract based on an employee handbook distributed to plaintiff by the company. It further alleged this contract was breached when plaintiff was discharged without fair and sufficient cause. A motion for summary judgment supported by an affidavit was filed on behalf of the defendants. The motion was opposed by the plaintiff, but was granted by the trial court. This appeal followed.

Relying on the employee handbook, plaintiff alleges that an implied contract existed between himself and the company and that his employment was not terminable at will. A copy of the handbook was supplied to us with the record on appeal. After reviewing the handbook, we conclude that it does not create a binding employment agreement and that Mr. White’s employment relationship with the company was terminable at the will of either party. Courts faced with claims similar to that in the instant case in which employees contended that a handbook rose to the level of a contract of employment support our conclusion and have held that the handbook does not vary the general common law rule that an employee is terminable at will. See e.g. Johnson v. National Beef Packing Co., 220 Kan. 52, 551 P.2d 779, 781 (1976); Chin v. American Telephone & Telegraph Co., 96 Misc.2d 1070, 410 N.Y.S.2d 737 (1978).

In the present case there is no agreement specifying a definite duration of employment services or limiting defendants’ legal right to terminate such employment; thus there exists an employment at will. This court in Hinrichs v. Tranquilaire Hospital, 352 So.2d 1130, 1131 (Ala.1977), summarized a principle which is well established in Alabama:

“(1) The general rule is that an employment contract at will may be terminated by either party with or without cause or justification. 56 C.J.S. Master and Servant § 31; and 62 A.L.R.3d 271. This means a good reason, a wrong reason, or no reason.
“(2) Alabama has followed the general rule which is that in a contract of employment “at will,” the contract means what it says, that it is at the will of either party. The employee can quit at will; the employer can terminate at will. Alabama Mills, Inc. v. Smith, 237 Ala. 296, 186 So. 699 (1939). This is true whether the discharge by the employer was malicious or done for other improper reasons. Comerford v. International Harvester Co., 235 Ala. 376, 178 So. 894 (1938)....”

The defendants in this ease have met the burden of establishing that there exists no genuine issue of fact. Accordingly, the motion for summary judgment was properly granted.

AFFIRMED.

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

JONES and SHORES, JJ., concur in the result.


text:
    Tommy GARRIGAN, et al. v. HINTON BEEF AND PROVISION COMPANY, INC.
    81-738.
    Supreme Court of Alabama.
    Jan. 21, 1983.

      Charles R. Johanson, III of Engel, Hair-ston, Moses & Johanson, Birmingham, for appellants.
    Pat Nelson of O’Rear, Robinson & Nelson, Jasper, for appellees.
   BEATTY, Justice.

Defendants appeal a grant of summary judgment in favor of Hinton Beef and Provision Company, Inc. (Hinton). We affirm.

In consideration of the forebearance of a lawsuit on a debt owed by them to plaintiff, the defendants signed a promissory note with the plaintiff on May 5, 1981. Later, on December 23, 1981, Hinton filed a complaint against the defendants, Tommy Gar-rigan, Diane Garrigan and Jasper Steaks, Inc., for $10,549.96 due with interest on that note. The action was brought in the Circuit Court of Walker County. Following a denial of defendants’ motion to dismiss, plaintiff moved for summary judgment pursuant to Rule 56, Alabama Rules of Civil Procedure (ARCP). This motion was unopposed by the defendants, and the trial court, based on the pleadings of record and supporting affidavit, granted the motion on March 18, 1982.

Defendants moved to set aside the judgment on April 22, 1982. In a hearing on that motion it was for the first time brought to the trial court’s and plaintiff’s attention that earlier, on February 3, 1982, the defendant, Jasper Steaks, Inc., had filed a voluntary petition under Chapter 11 of the United States Bankruptcy Code. The plaintiff conceded that, because the Bankruptcy Code restrains all creditors from the enforcement of an obligation while a case is pending and voids any judgments entered during the period, Jasper Steaks could not be reached by the March 18 judgment. .Notwithstanding this result plaintiff contended the judgment against Diane and Tommy Garrigan was in no way affected. The trial court denied the motion to set aside the judgment and this appeal ensued.

The sole issue presented for review is whether summary judgment was properly entered in favor of the plaintiff.

When a movant makes a motion for summary judgment, he has the burden of showing there is no genuine issue of material fact left in the case. Mims v. Louisville Title Ins. Co., 358 So.2d 1028 (Ala.1978). Here the plaintiff-movant, by attaching the affidavit of the plaintiff’s attorney, met the burden of establishing that there was no genuine issue of fact. The affidavit reads in relevant part:

“The defendant entered into a Promissory Note with the plaintiff on May 5, 1981, in consideration of the forebearance of a lawsuit on the debt which is the subject matter of this litigation. The said note was executed by each of the defendants in their respective capacities and witnessed by the defendants’ counsel of record, the Honorable James C. King. The said Promissory Note is attached hereto and made a part hereof as if fully set out herein.
“That there is not, nor has there ever been any bona fide defenses presented in this cause.”

The defendants made no response to the motion.

It is well settled in Alabama that, when a motion for summary judgment is made and the moving party has met its burden, the opposing party may not rest upon the mere allegations or denials of the pleadings. The opposing party must instead set forth sufficient facts showing a genuine issue for trial. E.g. Eason v. Middleton, 398 So.2d 245 (Ala.1981); Powell v. South Central Bell Telephone Co., 361 So.2d 103 (Ala.1978); Rule 56(e), ARCP. Furthermore, the purpose of the motion for summary judgment is to test the sufficiency of the evidence to determine if any real issue exists and the court has no alternative but to consider the evidence uncontroverted where, as here, the opponent fails to contradict the evidence presented by the moving party. Mims, supra. Whatley v. Cardinal Pest Control, 388 So.2d 529 (Ala.1980).

Defendants now contend that the order dated March 18, 1982, was ineffective to adjudicate the liability of Jasper Steaks, Inc., and therefore, that it is not a final order and is subject to revision and reconsideration under Rule 54(b), ARCP. We disagree with that contention and we conclude as did the trial court that Rule 54(b) is inapplicable under the stipulated facts, because there was in fact a final judgment entered as to all three defendants even though that judgment is unenforceable as to Jasper Steaks, Inc., at this time.

Finally, there was no error in the trial court’s refusal to set aside summary judgment in this case. Rule 59(e) states:

“A motion to alter, amend, or vacate the judgment shall be filed not later than 30 days after entry of the judgment.”

Judgment was entered on March 18, 1982, and the motion to set aside this judgment was filed on April 22, 1982, more than 30 days later.

For the reasons stated, the judgment against Tommy and Diane Garrigan is due to be affirmed.

AFFIRMED.

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


author: ADAMS, Justice.

text:
    SOUTH CENTRAL BELL TELEPHONE COMPANY, a Corporation v. ALABAMA PUBLIC SERVICE COMMISSION, Billy Joe Camp, its President, and Jim Folsom, Jr. and Lynn Greer, as Assistant Commissioners.
    80-749.
    Supreme Court of Alabama.
    Jan. 28, 1983.

      W.M. Booker, Jr., Peyton D. Bibb, Jr., Robert W. O’Neill, Birmingham, R.E. Steiner, III, Walter R. Byars, and James A. Byram, Jr., of Steiner, Crum & Baker, Montgomery, for appellant.
    Euel A. Screws, Jr., C. Lanier Branch, and James M. Edwards of Copeland, Franco, Screws & Gill, Montgomery, for appel-lees.
   ADAMS, Justice.

This appeal is from an order of the Montgomery County Circuit Court upholding on appeal an order issued by the Alabama Public Service Commission (APSC). The Circuit Court enjoined South Central Bell Telephone Company (Bell) from violating the APSC order, and specifically from “closing its Phenix City business office until it is authorized to do so by either the Commission or upon a final Court Order.” Bell appealed to this court pursuant to Code 1975, § 37-1-132.

The issues raised by Bell are as follows:
1. Did the Circuit Court err in issuing an injunction that enforces an invalid APSC order?
a. Was the APSC without statutory authority, and thereby without jurisdiction, to issue an order, in a rate case, prohibiting or suspending Bell’s consolidation of residence service center offices?
b. Was the APSC without statutory authority to enter an order prohibiting Bell from consolidating residence service center offices without notice or hearing, or when there was no evidence before the APSC that such consolidations would affect Bell’s service to the public?
2. Did the Circuit Court err in allowing on appeal, and over Bell’s objection, an affidavit and testimony not in the certified record of the proceedings before the APSC?

We answer these questions in the affirmative, and reverse.

The salient facts in this case are as follows:

In January, 1981, Bell announced to its employees its plan to close its business offices in Jasper and Phenix City, consolidating their services with business offices elsewhere. On February 2, 1981, Bell instituted a rate case by filing with the APSC a proposed schedule of new rates and charges. On February 5, the APSC, pursuant to Code 1975, § 37-l-81(b), suspended the effective date of the new rate schedule to September 5, 1981. On March 4, 1981, three Bell customers filed a complaint with the APSC, alleging that the closing of the Bell office in Phenix City would deprive them of adequate access to services presently provided and would be in violation of § 37-2-5 of the Code. On March 23, Bell filed an answer to the complaint, denying APSC’s jurisdiction to hear the customers’ complaints concerning the closing of the Phenix City office. The complaint proceeding was assigned an APSC docket number, but was not set for hearing. However, on May 27 the APSC issued an order in the Bell rate case then pending, stating that the matter of the closings of the two Bell business offices would be investigated in the rate proceeding, and that Bell should not close any offices prior to September 5, 1981. On May 29 Bell filed notice of appeal from that order to the Montgomery County Circuit Court. On June 1 Bell closed its Jasper business office.

The hearings on the Bell rate case began June 2, 1981. At that time Bell presented testimony and evidence regarding planned and past consolidations of business and residence service centers and their economic benefits. The Attorney General and APSC counsel cross-examined Bell’s witnesses, but no evidence was presented in opposition to the consolidation of business offices at that time. The three Bell customers who had filed the complaint did not appear.

In mid-July, 1981, Bell filed its complaint on appeal to the circuit court. With its answer the APSC filed a motion for a preliminary injunction enforcing its May 27 order prohibiting Bell from closing its Phe-nix City office or any other offices pending the APSC’s decision in the rate case, due September 5. The circuit court heard the motion the day it was filed and issued a TRO prohibiting Bell from closing the Phe-nix City office until further order. The trial court set a hearing for July 28 on the motion for a preliminary injunction. At the hearing, at which both the appeal and the motion were heard, the APSC presented a witness and an affidavit over Bell’s objection. The trial court ruled that the testimony would be considered in support of the injunction, but not with regard to Bell’s claim on appeal.

On July 30,1981, the trial court issued its order, in which it found that the subject matter of the May 27 order was within the jurisdiction and statutory authority of the APSC, and that the order was not, on its face, illegal and void. It thereupon enjoined Bell from violating the APSC order of May 27, 1981, and specifically enjoined Bell “from closing its Phenix City business office until it is authorized to do so by either the Commission or upon a final Court Order.”

It is clear that the legislature, by Chapters 1 and 2 of Title 37, has granted to the APSC broad powers of supervision and control over utilities. The general powers, jurisdiction and supervision of utilities are summarized in §§ 37-1-31 and 37-1-32:

§ 37-1-31.
The rights, powers, authority, jurisdiction and duties by this title conferred upon the commission shall be exclusive and, in respect of rates and service regulations and equipment, shall be exercised notwithstanding any rights heretofore acquired by the public under any franchise, contract or agreement between any utility and municipality, county or municipal subdivision of the state, and shall be exercised, so far as they may be exercised consistently with the Constitution of the state and of the United States, notwithstanding any right heretofore so acquired by any such utility.
§ 37-1-32.
The public service commission shall have general supervision of all persons, firms and corporations operating utilities mentioned in this title, shall inquire into the management of the business and shall keep itself informed as to the manner and method in which the business is conducted. It shall examine such utilities as often as may be necessary to keep informed as to their general condition, their franchises, capitalization, rates and other charges, and the manner in which their plants, equipment and other property are owned, leased, controlled, managed, conducted and operated, not only with respect to adequacy, security and accommodation afforded by their service, but also with respect to their compliance with the provisions of this title, and any other law or laws, with the orders of the commission, and with the charter and franchise requirements. It shall assemble and keep on file, available for the use of the public, full statistics on the foregoing, as well as on all other matters or things connected with such utilities as is necessary to a full knowledge of their business and affairs.

More specifically, § 37-1-50 requires that a utility shall not “abandon all or any portion of its service to the public ... unless and until written application is first made to the commission for the issuance of a certificate that the present or future public convenience or necessity permits such abandonment and the issuance of such a certificate.” Section 37-2-5, a similar statute pertaining to transportation companies, which by Code definition includes telephone companies, states that such a company shall not abandon “all or any portion of its service to the public or the operation of any of its lines, properties or plant which would affect the service it is rendering the public,” without a permit from the APSC allowing such an abandonment. However: “A regulatory agency is not the owner of the utility and therefore is not its financial manager. A commission is not empowered to substitute its judgment for that of the owners, who are responsible for the rendition of service, unless the owners have abused their discretion.” Alabama Public Service Commission v. Southern Bell Telephone and Telegraph Co., 253 Ala. 1, 23, 42 So.2d 655, 674 (1949). A managerial decision involving action other than an abandonment of property is to be left to the utility unless there is some abuse of its discretion. The proposed closing of certain of Bell’s business offices, while continuing to provide services formerly provided, is not on its face an abandonment requiring an application for a certificate of abandonment under either § 37-1-50 or § 37-2-5.

On the other hand, § 37-1-83 states:

Upon a complaint in writing made against any utility by ... any affected person, that any rate, service regulation, classification, practice or service in effect or proposed to be made effective is in any respect unfair, unreasonable, unjust or inadequate, or unjustly discriminatory, or unduly preferential, or constitutes unfair competition, or that the service is inadequate or cannot be obtained, the commission shall proceed, . .. after notice as provided in this division, to make such investigation as it may deem necessary or appropriate; but no order affecting such rates, service regulation, classification, practice, or service complained of shall be entered by the commission without notice and a hearing.

This section clearly gives the APSC a mandatory duty, as well as the authority, to investigate the closing of Bell’s service centers once a written complaint is filed. The problem arises with the manner in which the APSC attempted to carry out its duty in this instance. The last clause of the quoted portion of § 37-1-83 specifically prohibits the APSC from issuing an order affecting the action complained of until after a hearing. The clause does not limit its application to a “final order,” nor does it allow for a temporary or interlocutory order. Section 37-1-96 likewise provides: “No order shall be made by the commission affecting any rate or service, except as otherwise specifically provided, unless or until a public hearing has been held in accordance with the provisions of this title.” Section 37-l-81(b) specifically provides that when a utility files with the APSC a new schedule of rates or service regulations, the commission may, for a period not exceeding six months, suspend the operation of the proposed schedule pending its investigation. This provision does not speak to a situation where a complaint has been filed against a utility, and we find no other provision which would remove the case before us from the mandates of § 37-1-83 and § 37-1-96. Thus, we conclude that any order affecting a proposed change of service based on a complaint filed under § 37-1-83 is, prior to a hearing, premature.

The APSC appears to have attempted to bring its order under § 37-1-81(b) by issuing it in the rate case instituted by Bell. This attempt fails, as there are clearly two different matters involved. Bell’s new schedule of rates had already been suspended by the APSC until September 5, 1981. Investigation of the financial impact of the office closings was appropriate in attempting to determine the reasonableness of the proposed schedule of rates. Bell’s customers were protected from that financial impact pending the investigation by the suspension of the effective date of the new rates. But the allegations of inadequacy of service contained in the complaint filed with the APSC called for an entirely different type of hearing. The record indicates that no evidence was presented before the APSC in the rate case, that any service owed by Bell to its customers would be detrimentally affected by the closing of the business offices. The complainants themselves did not testify. In other words, the rate case hearing involved rate issues only, and there never was a hearing on the complaint as contemplated in § 37-1-83, et seq. Because the jurisdiction of the APSC is statutory, compliance with the requirements of the statutes is necessary. “The valid orders of a public service commission will be enforced in the courts, and orders not authorized by law are unenforceable.” Alabama Public Service Commission v. Western Union Telegraph Co., 208 Ala. 243, 94 So. 472 (1922). The APSC has the right to issue orders affecting managerial decisions after a hearing showing that those decisions detrimentally affect a service which the utility has a duty to provide. But such a showing was not made in this case. For the above reasons, we hold that the order of the APSC was invalid and the trial court erred in issuing an injunction enforcing it.

As regards the second issue, whether the trial court should have denied the introduction of new evidence on appeal, § 37-1-124 states:

§ 37-1-124. Proceedings on appeal.
The commission’s order shall be taken as prima facie just and reasonable. No new or additional evidence may be introduced in the circuit court, except as to fraud or misconduct of some person engaged in the administration of this title and affecting the order, ruling or award appealed from, but the court shall otherwise hear the case upon the certified record ....

The trial court admitted new evidence introduced by the APSC in support of its request for an injunction. Inasmuch as the request for an injunction was in the nature of an enforcement of the APSC order pursuant to § 37-1-104, the trial court was limited to the evidence in the certified record “except as to fraud or misconduct....” See Alabama Gas Corporation v. Wallace, 293 Ala. 594, 308 So.2d 674 (1976). Therefore, there was error in the admission of the new evidence.

For all of the above reasons we reverse the trial court, and remand with instructions that the trial court return the matter to the APSC for further proceedings not inconsistent with this opinion.

REVERSED AND REMANDED WITH DIRECTIONS.

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


author: SHORES, Justice.

text:
    Louis J. LANE v. CENTRAL BANK OF ALABAMA, N.A.
    81-301.
    Supreme Court of Alabama.
    Jan. 28, 1983.
    L. Tennent Lee, III, of Cleary, Lee, Evans, Rowe & Bailey, Huntsville, for appellant.

      John M. Heacock, Jr., of Lanier, Shaver & Herring, Huntsville, and Jerry W. Powell, Birmingham, for appellee.
   SHORES, Justice.

Central Bank of Alabama, N.A., brought suit claiming $26,105 plus interest on a promissory note executed by defendant Lane on September 20,1980. Lane answered the general issue and further that $14,-000 of the debt was illegal and unenforceable because that amount represented monies loaned by the bank to Lane, which Lane in turn loaned to an officer of the bank, Charles Mills (Mills).

Lane also filed a counterclaim against the bank, seeking damages for the alleged negligent supervision of Mills by the bank, resulting in injury to Lane.

The trial judge severed the suit on the note and the counterclaim and tried each separately to a jury. At the close of the evidence, he directed a verdict for the bank on both claims. Lane appeals. We affirm.

In September, 1979, defendant Louis J. Lane signed a loan application for a $12,000 loan from Central. Bank. The application stated that the purpose of the loan was for home improvements. Lane signed a promissory note for $12,000. Lane used $5,000 to pay a prior loan, and the balance of $7,000 was deposited in Lane’s checking account at Central. Lane, on that day, wrote a check on his account, payable to an attorney, James R. Sturdivant. Mills executed a demand note to Lane for $7,000 and delivered it to Lane.

In January, 1980, Lane again went to the bank and signed a renewal note for $19,500, which stated that it was for taxes and to renew the $12,000 note. The $19,500 was deposited to Lane’s account, and he wrote a check for $12,529.97, which satisfied the pri- or note. He then wrote a check for $6,970.03 to cash. This, too, was deposited to Sturdivant’s account. Mills marked through the date of September 29, 1979, on the demand note bearing that date and substituted January 28, 1980. The original amount of $7,000 was changed to $14,000. This note was delivered to Lane.

Mills committed suicide on August 13, 1980. Approximately six weeks later, Lane again renewed the loan and executed the note upon which suit was brought. Lane sought to avoid liability on this note by contending that his payments (or loans) to Mills were illegal under 18 U.S.C. § 656 (1976), and that this alleged illegality somehow tainted the renewal note executed by Lane to Central in September, 1980, after Mills’s suicide.

18 U.S.C. § 656 (1976) provides in part: “Whoever, being an officer, director, agent or employee of, or connected in any capacity with any Federal Reserve bank, member bank, national bank or insured bank ... embezzles, abstracts, purloins, or willfully misapplies any of the monies, funds or credits of such bank ... shall be fined not more than $5,000.00 or imprisoned not more than five years, or both;

Lane argues that Mills’s conduct in “requiring customers of the bank to make loans larger than required by them and requiring payment to him of a part of the proceeds” was clearly a violation of this federal criminal statute. We need not decide whether it is or is not, because even if it were, the acts of Mills in no way vitiated Lane’s obligation to the bank under the note he signed. He does not deny that he received the proceeds of the loan, and he does not show that the bank played any role in his lending Mills a part of the loan proceeds. It’is somewhat anomalous that Lane would seek to avoid liability on the note because of the acts of Mills and himself. He, in effect, says that he should be relieved of any liability on the note because an illegal act in which he participated and to which the bank was not a party renders the entire transaction void. He cites no authority for this position, and we have found none.

The rule which renders unenforceable a contract founded upon illegal consideration has no application where the parties are not in pari delicto. American Life Ins. Co. v. Aladdin Temple Benefit Association, 238 Ala. 512, 191 So. 903 (1939). Lane offered no evidence to show that Central was in any way involved in any misconduct with regard to the loan to him and further offered no evidence that the bank was aware of Lane’s loan of part of that money to Mills.

Under these facts, we cannot say that the trial court erred in directing a verdict in favor of the bank in the suit on the note.

Lane next argues that he should have been permitted to go to the jury on his counterclaim in which he sought damages based upon the alleged negligent supervision of Mills by the bank.

Lane argues that Alabama has recognized the independent tort of negligent supervision of an employee, citing Sloss-Sheffield Steel & Iron Co. v. Bibb, 164 Ala. 62, 51 So. 345 (1910), and Thompson v. Havard, 285 Ala. 718, 235 So.2d 853 (1970), where we said:

“In the master and servant relationship, the master is held responsible for his servant’s incompetency when notice or knowledge, either actual or presumed, of such unfitness has been brought to him. Liability depends upon its being established by affirmative proof that such incompetency was actually known by the master or that, had he exercised due and proper diligence, he would have learned that which would charge him in the law with such knowledge. It is incumbent on the party charging negligence to show it by proper evidence. This may be done by showing specific acts of incompetency and bringing them home to the knowledge of the master, or by showing them to be of such nature, character, and frequency that the master, in the exercise of due care, must have had them brought to his notice. While such specific acts of alleged incompetency cannot be shown to prove that the servant was negligent in doing or omitting to do the act complained of, it is proper, when repeated acts of carelessness and incompetency of a certain character are shown on the part of the servant to leave it to the jury whether they would have come to his knowledge, had he exercised ordinary care.”

285 Ala. at 723, 235 So.2d 853.

We are mindful of this rule and the fact that this Court recognizes a cause of action against the master based upon the incompetence of the servant. The rule simply has no application under the facts of this case. Assuming Lane has been damaged by the acts of Mills, which he has not shown, he has not established that the damage occurred because of any incompetency on Mills’s part for which the bank might conceivably be liable. He has not shown that he was forced to accept the loans from the bank with Mills’s self-imposed conditions. He did not report Mills’s conduct to the bank. He simply acquiesced in Mills’s allegedly illegal and certainly unethical conduct. The law will not allow him now to recover damages from the bank.

We also hold that the trial court did not err in disallowing evidence of transactions between Mills and other customers, since it is undisputed that the first customer complaint concerning Mills’s activity came to the attention of Mills’s supervisor on June 10, 1980, nearly six months after the last Lane/Mills transaction and after the bank had loaned Lane an additional $6,000.

Finally, Lane contends that the trial court erred in disallowing certain testimony because it was barred by the dead man’s statute, § 12-21-163, Code 1975. He concedes that in making this argument he urges a construction of that statute never before adopted by this Court. The thrust of his argument is that the dead man’s statute has no application here because Lane’s transaction with Mills was personal to Mills, and Mills was not acting in a representative or fiduciary relationship to the bank. Lane says his claim against the bank is based upon its initial negligence and is not based upon the acts of Mills acting in a representative capacity.

Although we do not agree with this construction of the statute, which expressly provides

“[N]o person having a pecuniary interest in the result of the action or proceeding shall be allowed to testify against the party to whom his interest is opposed as to any transaction with, or statement by, the deceased person whose estate is interested in the result of the action or proceeding or when such deceased person, at the time of such transaction or statement, acted in any representative or fiduciary relation whatsoever to the party against whom such testimony is sought to be introduced ..(emphasis added)

We need not decide the issue because we have held that Lane has not brought himself within the rule which would allow one to recover for the negligent supervision of an employee. Because this is so, the exclusion of the testimony, if error, would be harmless under the facts of this case.

We have carefully considered all of Lane’s contentions, and we are compelled to agree with the trial court that the bank was entitled to a directed verdict on the note and on the defendant’s counterclaim.

The judgment appealed from is affirmed.

AFFIRMED.

FAULKNER, JONES, ALMON and BEATTY, JJ., concur.


author: EMBRY, Justice.

text:
    A.B. PARKER v. BELL FORD, INC. and Ford Motor Company, Inc.
    81-451.
    Supreme Court of Alabama.
    Jan. 28, 1983.
    John L. Jernigan, III of Stokes, Jernigan & Stokes, Brewton, for appellant.
    Joseph B. Brogden, Atmore, for appellee Bell Ford, Inc.
    George M. Walker of Hand, Arendall, Bedsole, Greaves & Johnston, Mobile, for appellee Ford Motor Co.
   EMBRY, Justice.

This appeal is from a judgment entered on a directed verdict in behalf of the defendants Bell Ford, Inc. and Ford Motor Company, Inc. We affirm.

Plaintiff A.B. Parker purchased a 1979 Ford F-100 pickup truck from defendant Bell Ford, Inc. of Atmore, Alabama, on 6 August 1979. The purchase price was $6,155.40. The truck was manufactured by defendant Ford Motor Company, Inc., which provided the new truck warranty on the vehicle. Parker made several complaints to Bell Ford of excessive tire wear requiring replacement of the tires on the vehicle after approximately 4,000 miles of use. Bell Ford gave Parker a purchase order to have the vehicle aligned at Combs & Dailey, an alignment shop in Mobile, where repairs were allegedly made on the vehicle. Parker was not informed as to what had been done to the vehicle at the alignment shop. Whatever work was performed, however, did not cure Parker’s complaint of excessive tire wear and his second set of tires had to be replaced shortly thereafter.

Parker never returned the vehicle to Bell Ford for repairs and never registered any further complaint with Bell Ford until Parker initiated suit against Bell Ford and the manufacturer, the Ford Motor Company. At an inspection of the vehicle after this suit was filed, it was determined by the service manager of Peach Ford, Inc. of Brewton, Alabama, that the vehicle had a defective wheel housing, causing the tires to wear excessively.

On 1 July 1980 Parker filed his complaint containing four counts: one against Bell Ford for misrepresentation; one against Bell Ford for breach of contract; one against Bell Ford and Ford Motor Company for breach of warranty; and one against Bell Ford and Ford Motor Company for breach of implied warranty of merchantability. The trial court granted Ford Motor Company’s motion to dismiss count four involving implied warranty of merchantability whereupon Parker amended his complaint accordingly. Parker originally demanded damages of $20,000; a later amendment increased that demand for damages to $30,000. After trial before a jury, upon motion, the trial court directed a verdict in favor of Bell Ford and Ford Motor Company and entered judgment accordingly.

Parker urges as error the trial court’s direction of a verdict denying his claims. Parker contends there was a scintilla of evidence in support of the allegations of his complaint; therefore, the trial court should have allowed the case to go to the jury. We disagree.

Section 7-2-607(3)(a), Code 1975, describes the buyer’s obligation upon learning of a defect in a product he has accepted:

“(3) Where a tender has been accepted:
“(a) The buyer must within a reasonable time after he discovers or should have discovered any breach notify the seller of breach or be barred from any remedy. . .. ”

The transaction between Parker and Bell Ford and Ford Motor Company was one that required compliance with § 7-2-607.

This court, on several occasions, has characterized notice, such as required by § 7-2-607, as a condition precedent to recovery. See Smith v. Pizitz of Bessemer, Inc., 271 Ala. 101, 122 So.2d 591 (1960).

In Consolidated Pipe and Supply Company, Inc. v. Stockham Valves and Fittings Inc., 365 So.2d 968, 971 (Ala.1978), this court stated:

“Consolidated further contends its cross-claim against Louisiana for indemnity should have been allowed to go to the jury. Consolidated bases its claim on a breach of warranty. Notice is a condition precedent to any claim for breach of warranty. § 7-2-607, Code 1975; Page v. Camper City & Mobile Home Sales, 292 Ala. 562, 297 So.2d 810 (1974). Consolidated offered no evidence to show it had given Louisiana notice of the breach. Therefore, the trial court’s direction of a verdict denying its cross-claim against Louisiana was without error.” (Emphasis added.)

Official notice has been determined to be the degree of notice which at least comports with the notice an ordinary tortfeasor would have of his breach of duty. Page, supra. The evidence adduced at trial reveals that Parker was not satisfied with the repairs made on behalf of Bell Ford by the alignment shop. Parker admits that at no time did he contact Ford Motor Company about this problem, nor did he return the vehicle to Bell Ford after he took the vehicle from the alignment shop.

“. .. Notice of breach serves two distinct purposes. First, express notice opens the way for settlement through negotiation between the parties.... Second, proper notice minimizes the possibility of prejudice to the seller by giving him ‘ample opportunity to cure the defect, inspect the goods, investigate the claim or do whatever may be necessary to properly defend himself or minimize his damages while the facts are fresh in the minds of the parties.’ ”

Standard Alliance Industries, Inc. v. Black Clawson Company, 587 F.2d 813, 826 (6th Cir.1978), cert. denied, 441 U.S. 923, 99 S.Ct. 2032, 60 L.Ed.2d 396 (1979), quoting in part from Note, Notice of Breach and the Uniform Commercial Code, 25 U.Fla.L.Rev. 520, 522 (1973). Bell Ford had no notice that the work performed by Combs & Dai-ley did not eliminate Parker’s tire wear problem. In fact, Bell Ford never heard from Parker again until six months later when it received the summons initiating this lawsuit. This court held in Pizitz of Bessemer, supra, that one reason for the notice requirement is to apprise the vendor that a claim will be made against him and give him an opportunity to prepare a defense or notify his supplier. We expand that rationale to also include the requirement of notice in order to enable the seller to make adjustments or replacements, or to suggest opportunities for cure, to the end of minimizing the buyer’s loss and reducing the seller’s own liability to the buyer. See White and Summers, Uniform Commercial Code, § 11-9 (1972).

This holding is distinguishable from Gigandet v. Third National Bank, 333 So.2d 557 (Ala.1976), which held that the sufficiency of the 7-2r-607 notice is a question of fact for the jury. Gigandet involved a situation in which notice was unquestionably given, but an issue remained as to the timeliness or reasonableness of such notice. In this case no notice was given.

In light of the evidence that Parker failed to give notice of the continuing defect, we agree with the trial court that the motion for directed verdict in favor of defendants Bell Ford and Ford Motor Company was due to be granted. Whether tested by the substantial evidence rule or the scintilla evidence rule, the record reveals no evidence from which the jury could reasonably infer that Parker gave notice of the defect prior to the filing of this suit. Coburn v. American Liberty Insurance Co., 341 So.2d 717 (Ala.1977).

The judgment in this case is due to be, and is hereby, affirmed.

AFFIRMED.

TORBERT, C.J., and FAULKNER, AL-MON and ADAMS, JJ., concur.


text:
    CANTERBURY NURSING HOME, INC., Ottis Cook and Virginia Cook v. ALABAMA STATE HEALTH PLANNING AND DEVELOPMENT AGENCY, et al.
    81-457.
    Supreme Court of Alabama.
    Jan. 28, 1983.

      Alvin T. Prestwood and Claude P. Rosser, Jr., Montgomery, for appellants.
    Charles A. Graddick, Atty. Gen., and Elizabeth N. Petree, Asst. Atty. Gen., for appel-lee.
   ADAMS, Justice.

This is an appeal from a judgment of the Montgomery County Circuit Court, denying attorneys’ fees to the prevailing party in the suit. The fees were claimed pursuant to 42 U.S.C. § 1988.

The sole issue presented on appeal is whether the trial court erred in refusing to award attorneys’ fees to the appellants pursuant to 42 U.S.C. § 1988. We answer in the affirmative and reverse.

The salient facts are as follows: In July, 1977, Ottis Cook and his wife Virginia Cook (the Cooks) purchased 852 shares of Canterbury Nursing Home, Inc. (Canterbury). Canterbury owned an Assurance of Need, issued by the Alabama Board of Health, authorizing the construction of a 100-bed nursing home. At the time of the purchase, the Cooks’ attorney was advised by legal counsel for the Department of Public Health that the stock purchase would not constitute an unlawful transfer of the Assurance of Need. Subsequent to the original purchase, the Cooks arranged to purchase the remaining 150 outstanding shares of Canterbury. On March 26,1980, Canterbury’s Assurance of Need was converted into a Certificate of Need by the Alabama State Health Planning and Development Agency (SHPDA). About the same time the Cooks entered into a contract to sell all of the stock of Canterbury to American Health and Retirement, Inc. (AHR). AHR paid $7,500.00 into escrow as a down payment. On June 12, 1980, the Deputy Director of SHPDA informed the Cooks’ accountant that such a sale would constitute a prohibited transfer of the Certificate of Need. He further advised that Canterbury’s options were limited to (a) building the nursing home facility and selling it to an applicant approved by SHPDA, or (b) surrendering the Certificate of Need and allowing another applicant to apply for another certificate. Based on this development, AHR’s attorney advised the Cooks’ attorney that AHR was no longer interested in purchasing the Canterbury stock, and demanded a return of its deposit.

On July 15,1980, the Cooks’ attorney sent a letter to SHPDA’s administrative officers, in which he advised them that (1) SHPDA’s interpretation of the applicable law, i.e., that a transfer or sale of the corporate stock constitutes a prohibited transfer of the Certificate of Need, was arbitrary, capricious, unreasonable, and without foundation; (2) the individuals responsible for that interpretation of the statutory language were personally liable for the violation of the Cooks’ substantive due process and First Amendment rights; and (3) the Cooks and Canterbury planned to file suit. On July 18, 1980, SHPDA reaffirmed its position that the proposed sale would violate Code 1975, § 22-21-270(e), regarding the prohibited transfer of Certificates of Need.

On July 21,1980, SHPDA filed a declaratory judgment action asking the court to affirm its interpretation of the code section as SHPDA had applied it to the sale of the Cooks’ Canterbury stock. The Cooks answered and filed a counterclaim pursuant to 42 U.S.C. § 1983, claiming that SHPDA’s interference with their stock sale rendered the stock worthless, and amounted to a taking of property without due process. The counterclaim sought a permanent injunction against SHPDA and certain individual officers of the agency, and included a claim for damages against the individual officers, and a request for attorneys’ fees pursuant to 42 U.S.C. § 1988. The trial judge set a hearing “upon the Plaintiffs’ request for a declaratory judgment and upon the Counterclaimants’ request for a permanent injunction ...” and reserved all other questions. Following that hearing, the court issued an order finding that the Cooks’ proposed sale of the Canterbury stock did not constitute a violation of Code 1975, § 22-21-270(e). The order permanently enjoined the counterdefendants from prohibiting the sale. The parties then filed a joint stipulation of dismissal, without prejudice, reserving only the issue of attorneys’ fees. By order dated July 29, 1981, the trial court denied attorneys’ fees, and this appeal followed.

In pertinent part 42 U.S.C. § 1988 states: “In any action or proceeding to enforce a provision of sections 1981, 1983 ..., the court, in its discretion, may allow the prevailing party, other than the United States, a reasonable attorney’s fee as part of the costs.”

In Terrell v. City of Bessemer, 406 So.2d 337 (Ala.1981), we held that § 1983 claims may be brought in Alabama state courts. The United States Supreme Court has ruled that the prevailing party can recover attorney fees pursuant to 42 U.S.C. § 1988 in either a federal court or a state court. Maine v. Thiboutot, 448 U.S. 1, 100 S.Ct. 2502, 65 L.Ed.2d 555 (1980). The discretion of the trial court in denying attorneys’ fees to a prevailing party under § 1988 is extremely narrow, and such party should ordinarily be awarded attorneys’ fees unless special circumstances would render such an award unjust. Supreme Court of Virginia v. Consumers Union, 446 U.S. 719, 100 S.Ct. 1967, 64 L.Ed.2d 641 (1980); Newman v. Piggie Park Enterprises, Inc., 390 U.S. 400, 88 S.Ct. 964, 19 L.Ed.2d 1263 (1968).

The trial court stated in its order denying attorneys’ fees that:

[t]his cause was commenced by Counter-defendants as a Declaratory Judgment Action seeking an interpretation of the State Certificate of Need Law. The Counterclaim filed under 42 U.S.C. 1983 was neither necessary nor indicated for appropriate declaratory and injunctive relief. Counterclaimants, therefore, are not entitled to recover attorneys’ fees and expenses in this action under 42 U.S.C. 1988.

We are of the opinion that the trial court’s conclusion that the counterclaim was “neither necessary nor indicated” is in error. We determine this based on the following reasons:

The declaratory judgment action was not filed by SHPDA until after the Cooks’ attorney had notified the agency of their intent to file their own suit pursuant to 42 U.S.C. § 1983. There is no indication that without this impetus SHPDA would have filed an action at all.

Furthermore, injunctive relief was granted as requested in the counterclaim. Although the court said that the injunction was granted as part of the relief in the declaratory judgment action, there was no request for an injunction in that action. Although we cannot say that the trial judge would not have granted the injunction had the counterclaim not been filed, neither can we conclude that the counterclaim did not influence the determination to grant in-junctive relief.

Even though the trial court chose to tie its grant of the injunction to the declaratory judgment action, it did not dismiss the § 1983 counterclaim, rather avoiding any mention of it, except to state that it had “jurisdiction of the parties and subject matter of thq complaint and counter claim .... ” In Maher v. Gagne, 448 U.S. 122, 100 S.Ct. 2570, 65 L.Ed.2d 653 (1980), the United States Supreme Court stated:

We agree with the courts below that Congress was acting within its enforcement power in allowing the award of fees in a case in which the plaintiff prevails on a wholly statutory, non-civil-rights claim pendent to a substantial constitutional claim or in one in which both a statutory and a substantial constitutional claim are settled favorably to the plaintiff without adjudication.

Maher v. Gagne, 448 U.S. at 132, 100 S.Ct. at 2576, 65 L.Ed.2d at 663.

In support of the trial court’s position, the appellees rely heavily upon Still v. Personnel Board of Jefferson County, 406 So.2d 860 (Ala.1981). There, this court affirmed the trial court’s refusal to award attorneys’ fees to a party who prevailed on state law claims but was unsuccessful on the federal claims. The Still case is not dispositive of the instant case because in the Still case, the trial court specifically found that the federal claim was not justiciable. Justice Jones stated in his special concurrence in that opinion:

I concur specially in order to emphasize the underlying basis for the holding denying an award of attorneys’ fees. Not only did the trial judge grant Plaintiffs’ relief solely on state grounds but he specifically denied relief on all asserted federal grounds. Our holding is not premised on the mere affirmative grant of Plaintiffs’ state grounds relief; rather it is premised on the trial court’s affirmative denial of federal grounds relief. [Emphasis in original.]

In the case before us, the court did not specifically deny relief on the asserted federal grounds, but held a hearing “upon the Counterclaimants’ request for a permanent injunction” and granted an injunction. We, therefore, conclude that the holding in Maher v. Gagne, supra, applies, and that an award of attorneys’ fees under 42 U.S.C. § 1988 is appropriate.

The trial judge adds in his order denying the fees, however, that this is a case where special circumstances exist which would render the award of attorneys’ fees to the prevailing party unjust. As special circumstances he lists the following:

1. A finding of good faith of the plaintiffs/counterdefendants;
2. A finding of financial ability of the corporate counterclaimant to pay attorneys’ fees and expenses;
3. A finding that it would be unjust to put the burden of attorneys’ fees upon the state agency, and ultimately the public.

IriJ determining that these factors, taken together, constitute special circumstances which would render an award of attorneys’ fees unjust, the trial judge relies on Concerned Democrats of Florida v. Reno, 493 F.Supp. 660 (S.D.Fla.1980). The Federal District Court in that case stated:

■ The Fifth Circuit has rejected (1) good faith on the part of defendants; (2) a finding of unintentional discrimination; (3) plaintiff’s financial ability to pay counsel fees; (4) defendant’s good-faith belief that a challenged statute is valid; and (5) that the burden of a fee award will fall on the taxpayers, as insufficient to constitute special circumstances rendering an award of attorney’s fees unjust. However, this ease combines all five of these factors with the added ingredient of a plaintiff who is a partisan, political organization. Added together they rise to the level of “special circumstances”.

493 F.Supp. at 664. As pointed out in Reno, the individual factors enumerated have been rejected by the Fifth Circuit, and the trial court counted on the combination of factors to constitute special circumstances. However, in an unpublished opinion of the United States Court of Appeals for the Fifth Circuit, issued December 8, 1980, the court reversed the trial court in Reno, and awarded attorneys’ fees to the prevailing parties. See 634 F.2d 629 (5th Cir.1980), cert. denied, 455 U.S. 938, 102 S.Ct. 1426, 71 L.Ed.2d 647 (1982).

In the case before us, there are fewer facts considered jointly to comprise “special circumstances” than in Reno. The opinion in Eilwest Stereo Theatre, Inc. v. Jackson, 653 F.2d 954 (5th Cir.1981), contains the following:

The good faith of government defendants acting in their official capacity is not a relevant factor for the district court to consider when determining whether special circumstances exist, see, e.g., Aware Woman Clinic v. City of Cocoa Beach, 629 F.2d 1146,1149 n. 3 (5th Cir.1980); Robinson v. Kimbrough, 620 F.2d 468, 478 (5th Cir.1980).... Moreover, prevailing plaintiffs’ ability to pay is not a special circumstance rendering an award under § 1988 unjust, International Oceanic Enterprises, Inc. v. Menton, supra, 614 F.2d [502] at 503, nor is defendant’s decision not to appeal the injunction, cf. Aware Woman Clinic, supra; International Oceanic Enterprises, supra (defendants elected not to appeal merits yet panel reversed denial of attorneys’ fees).

Eilwest Stereo Theatre v. Jackson, 653 F.2d at 955-956.

In Hutto v. Finney, 437 U.S. 678, 98 S.Ct. 2565, 57 L.Ed.2d 522 (1978), the United States Supreme Court upheld an award of attorneys’ fees pursuant to § 1988 against a State agency, saying:

When it passed the Act, Congress undoubtedly intended to exercise that power and to authorize fee awards payable by the States when their officials are sued in their official capacities. The Act itself could not be broader. It applies to “any” action brought to enforce certain civil rights laws. It contains no hint of an exception for States defending injunction actions; indeed, the Act primarily applies to laws passed specifically to restrain state action. See, e.g., 42 U.S.C. § 1983.
The legislative history is equally plain: “[I]t is intended that the attorneys’ fees, like other items of costs, will be collected either directly from the official, in his official capacity, from funds of his agency or under his control, or from the State or local government (whether or not the agency or government is a named party).” S.Rep. No. 94-1011, p. 5 (1976) (footnotes omitted).

Hutto v. Finney, 437 U.S. at 693-694, 98 S.Ct. at 2575, 57 L.Ed.2d at 536.

We conclude that the Cooks and Canterbury are entitled to an award of attorneys’ fees under 42 U.S.C. § 1988, and that there are no special circumstances present which, either individually or collectively, would render such an award unjust. Therefore, we reverse the decision of the lower court, and remand for further proceedings.

REVERSED AND REMANDED.

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


text:
    Hoyt JOHNSON v. Jewell KEENER.
    81-525.
    Supreme Court of Alabama.
    Jan. 28, 1983.
    William L. Irons, Birmingham, for appellant.
    Ralph L. Armstrong, Bessemer and George Andrews, III, Birmingham, for ap-pellee.
   BEATTY, Justice.

The question presented by this appeal is whether a 1971'conveyance to the parties created an indestructible remainder in the survivor, thus rendering void the plaintiff-appellee’s 1977 conveyance of the same property. We conclude that the earlier conveyance is governed by Bernhard v. Bernhard, 278 Ala. 240, 177 So.2d 565 (1965), which requires that the defendant-appellant’s interest be held indestructible.

The plaintiff-appellee, Jewell Keener (“aunt”), owned two plots of land, one in Chilton County and one in the city of Bessemer. She conveyed these parcels (in 1969 and 1971, respectively) to herself and her nephew, Hoyt Johnson, the defendant-appellant (“nephew”). In the Bessemer deed the granting clause reads:

“Jewell Keener, a widow (herein referred to as grantors) do grant, bargain, sell and convey unto Jewell Keener and Hoyt Johnson, (herein referred to as Grantees) for and during their joint lives and upon the death of either of them, then to the survivor of them in fee simple, together with every contingent remainder and right of reversion, the following described real estate.... ”

The habendum clause of the deed similarly reads:

“TO HAVE AND TO HOLD to the said GRANTEES for and during their joint lives and upon the death of either of them, then to the survivor of them in fee simple, and to their heirs and assigns of such survivor forever, together with every contingent remainder and right of reversion.”

In earlier litigation the aunt sought unsuccessfully to have both deeds set aside on the ground of undue influence. Johnson v. Keener, 370 So.2d 265 (Ala.1979). Upon losing that case the aunt began the present action for a partition sale of both parcels, alleging joint ownership of each. The nephew filed a notice of election to purchase his aunt’s half interest in both parcels under Code of Ala.1975, § 35-6-100. The trial court found that the parties “each own a fifty percent interest jointly with right of survivorship” in both parcels and that the nephew was entitled to purchase his aunt’s interest. The nephew thought he concluded the matter when on February 5, 1982, he paid into court $30,500 for his aunt’s interest in the Chilton County property, $1,150 for her interest in the Bessemer property, and the appraisal costs.

However, on the day before, the aunt had filed a motion to strike the portion of her complaint relating to the Bessemer parcel. She alleged that she was “mistaken in the allegation of ownership of the [Bessemer] parcel,” because she had conveyed her interest in it to Richard and Edna Cruce on December 14, 1977. This deed was not recorded until February 4,1982, the same day the motion to strike was filed. At a hearing on the aunt’s motion to strike, the nephew filed a “counterclaim” alleging that the 1977 deed “is void under the laws of the State of Alabama and otherwise fails to convey the interests and property set out in the purported conveyance.” The trial court summarily denied the counterclaim and granted the motion to strike, finding “that the plaintiff-aunt owned no interest in the [Bessemer] parcel at the time she filed this lawsuit.” The nephew then took this appeal.

The nephew’s “counterclaim” and his argument on appeal contest the validity of the 1977 conveyance in two respects. First, the nephew argues that the 1977 deed would have the effect of destroying his survivorship interest and is thus void under Bernhard v. Bernhard, supra. Second, the nephew contends that the 1977 deed was void because it was never delivered, a claim on which the nephew says the trial court denied him an evidentiary hearing. In order to explain our conclusion respecting the first argument, it is necessary to summarize our recent cases on the subject.

Where a conveyance provides for concurrent ownership with the survivor to receive the fee, analysis of the survivor’s interest must begin with determining whether the grantees took as tenants in common or as joint tenants. See Durant v. Hamrick, 409 So.2d 731, 738 (Ala.1981). If they took as tenants in common, then the estate created is characterized as a tenancy in common with indestructible cross-contingent remainders in fee to the survivor. Indestructibility means that such an interest may not be terminated by the act of one cotenant. Id.

Unlike the language construed in Durant v. Hamrick, supra, and in Yates v. Guest, 416 So.2d 973 (Ala.1982), the 1971 deed here makes no reference to tenants in common. Instead the deed grants the property to the aunt and nephew “for and during their joint lives ... then to the surviv- or.” Thus, the parties took the property as joint tenants. In any conveyance by which grantees receive concurrent ownership as joint tenants, the nature of the survivor’s interest is determined by Code of Ala. 1975, § 35-4-7. This statute modifies the corn-mon law estate of joint tenancy with right of survivorship. Whether the survivor’s interest is destructible depends upon which of our cases construing the statute governs the conveyance to the grantees.

The case that created controversy in this area of Alabama law was Bernhard v. Bernhard, 278 Ala. 240, 177 So.2d 565 (1965). We have recently summarized its holding as follows:

“In Bernhard this Court held that language in a deed conveying property to grantees as joint ténants with rights of survivorship effectively created a tenancy in common with cross-contingent remainders in each of the tenants. The Court further held that the cross-contingent remainders were indestructible, except with the consent of both cotenants.”

Yates v. Guest, supra, at 975. In Summerlin v. Bowden, 286 Ala. 391, 240 So.2d 356 (1970), we construed a deed with language identical to that used in the aunt’s 1971 conveyance, concluding that Bernhard barred an action for compulsory partition, which would have destroyed the cotenant’s remainder interest. Clearly, if these cases are to control the aunt’s 1971 conveyance to herself and her nephew, then her 1977 conveyance is ineffective to convey the fee to the Cruces and destroy the nephew’s remainder interest.

The year after the aunt’s 1971 deed, we overruled Bernhard in Nunn v. Keith, 289 Ala. 518, 268 So.2d 792 (1972), holding that under Code of Ala. 1975, § 35-4-7, a conveyance* to joint tenants with right of sur-vivorship created a destructible interest in the survivor, as at common law. Subsequently, in Jackson v. Fillmore, 367 So.2d 948 (Ala.1979), we held that the overruling effect of Nunn v. Keith is prospective only.

The aunt argues that despite Jackson v. Fillmore, Nunn v. Keith should apply retroactively to her 1971 conveyance, because here, unlike Jackson, specific evidence of reliance on Bernhard is lacking. Thus, the aunt reads Jackson v. Fillmore as permitting retroactive application of Nunn v. Keith when reliance on Bernhard has not been shown by specific evidence. Indeed, the Jackson opinion does cite such evidence, id. 367 So.2d at 950, and concludes:

“In light of the evidence in this case demonstrating reliance upon the rule of Bernhard, the decision of the trial court to apply Nunn v. Keith in this case prospectively, rather than retrospectively, is due to be affirmed.”

Id. at 951-952. This conclusion, however, is preceded by discussion of our “sound and settled principles of law” regarding prospective application of judicial decisions that affect property rules. Id. at 950-951. That discussion makes clear that the basis of the decision in Jackson v. Fillmore is not the specific evidence of reliance but rather the following principle:

“When a rule established by judicial decision has existed long enough to be relied upon by those acquiring rights to, or title in certain property, courts should be loath to destroy such rights when overruling prior decisions.”

Id. at 950. Accordingly, we must apply Bernhard to the conveyances in this case.

Although Bernhard renders the 1977 deed ineffective to convey the fee and destroy the nephew’s remainder interest, the parties have not considered whether that deed would nevertheless be effective to convey to the Cruces a life estate pur autre vie (i.e. for the aunt’s life). If the deed is effective to this extent, then the trial court must consider the nephew’s contention that the 1977 deed was void because it was never delivered. We therefore order that the judgment below be reversed and remanded for the trial court to consider these matters and any others that may arise in disposing of the remaining claims to the property.

REVERSED AND REMANDED WITH DIRECTIONS.

FAULKNER, JONES, ALMON and SHORES, JJ., concur.

      . Section 35-4-7, Code of Ala. 1975: “When one joint tenant dies before the severance, his interest does not survive to the other joint tenants but descends and vests as if his interest had been severed and ascertained; provided, that in the event it is stated in the instrument creating such tenancy that such tenancy is with right of survivorship or other words used therein showing such intention, then, upon the death of one joint tenant, his interest shall pass to the surviving joint tenant or tenants according to the intent of such instrument. This shall in: elude those instruments of conveyance in which the grantor conveys to himself and one or more other persons and in which instruments it clearly appears that the intent is to create such a survivorship between joint tenants as is herein contemplated.”

      . We have since held that Nunn v. Keith governs pre-Bernhard conveyances to joint tenants. Bringhurst v. Hardin, 387 So.2d 186 (Ala. 1980).


author: PER CURIAM.

text:
    Toby FOX as Executor of the Estate of Fannie V. Fox, deceased v. Judy Gibbs McLENDON.
    81-592.
    Supreme Court of Alabama.
    Jan. 28, 1983.
    Joel Robinson of O’Rear, Robinson & Nelson, Jasper, for appellant.
    J.A. Keller of Keller & Cochran, Florence, for appellee.
   PER CURIAM.

This appeal attacks, on a claim of insufficiency of evidence, the trial court’s final judgment setting aside a deed on the ground of actionable fraud. We affirm.

We set forth the pertinent portions of the challenged decree:

This cause coming on to be heard upon the petition of the plaintiff, Fox, seeking to quiet the title to the property described in the Bill of Complaint and other relief, and upon the Answer and Cross-claim of the defendant, McLendon, and upon the oral testimony of the witnesses and exhibits admitted into evidence and the entire file.
The evidence in the case establishes, without dispute, and the Court so finds, that the defendants, Gibbs and McLen-don, each owned an undivided one-half interest in and to the land described in the Bill of Complaint.... [A]nd the evidence further establishes, and the Court so finds that in July, 1970, the defendant, Susie E. Gibbs, [Defendant McLendon’s mother, now deceased] conveyed to the plaintiff, Fox, an undivided one-half interest in and to said property.
The evidence further shows, and the Court so finds, that on or about the 26th day of December, 1980, the plaintiff, Fox, approached the defendant, McLendon, requesting the defendant, McLendon, to sign a quitclaim deed and represented at said time and place that the sole purpose of the quitclaim deed was in order to clear a technicality in title, and so that the plaintiff could “obtain an abstract.” The Court finds as a fact that said representation was material and false, and was relied upon by the defendant, McLendon, in executing the quitclaim deed; that as soon as the defendant, McLendon, discovered the fraud, she demanded the deed be returned and held for naught, and this was refused by the plaintiff, Fox. The Court finds that the deed executed by the defendant, McLendon, on the 26th day of December. 1980 that is recorded in Book 183. Page 775 of the Office of the Probate Judge of Lamar County was obtained by fraud, and is due to be set aside and held for naught.
IT IS THEREFORE ORDERED, ADJUDGED AND DECREED that said deed is hereby set aside and held for naught, and an undivided one-half interest in and to the property above described is vested in the defendant, Judy Gibbs McLendon.

It is not necessary or beneficial to cite the myriad of Alabama cases dealing with the law of misrepresentation. Indeed, counsel for the respective parties are essentially in agreement as to the applicable legal principles, relating both to the law of fraud and the standards of appellate review.

The factual dispute below centered around the permissible inferences to be drawn from the testimony of plaintiff Fox and defendant McLendon concerning a conversation between the two on December 23, 1980. To understand the import of this testimony, we need to review the background facts leading up to the December 23rd conversation.

In 1962, Susie E. Gibbs conveyed to McLendon, her daughter, a one-half interest in the subject property. In 1970 Mrs. Gibbs, by way of statutory warranty deed, purported to convey the entire property to Fannie Fox and her husband, both now deceased.

In 1980, when Fox retained a real estate agent to sell the property, she was informed that there was a “problem” with the title, and before the property could be sold, she would have to obtain a quitclaim deed from McLendon. It is this deed that became the subject of the December 23rd conversation.

It will suffice for our purposes of review to concentrate on the testimony of the plaintiff Fox. The issue presented — the sufficiency of the evidence — is dramatized in the following excerpts from the briefs of the respective parties:

Appellant's Summary of Fox’s Testimony-
In 1980 the plaintiff, Fannie Fox, contacted real estate agent to sell property. The real estate agent informed her of a problem with title. Plaintiff, Fox, contacted McLendon and Gibbs and informed them of problem with title, and that it would be necessary for defendant, Judy Gibbs McLendon, to sign a paper before the plaintiff, Fox, could sell her property. After conversation at home of defendant in Florence, Alabama, Plaintiff, Fox, returned to Jasper, and had quit claim deed prepared. Plaintiff, Fox, returned to Florence, Alabama, to the business establishment of the defendant, McLendon and her husband, Alvin McLendon, approximately four (4) days later with deed.
The McLendon’s [sic], husband and wife, executed deed conveying all their right, title and interest in subject property to plaintiff, Fox. A Mr. Nelson Smith, and a Ms. Cherly Wilkes signed the deed as witnesses. The deed conveyed all right, title and interest of subject property to Fannie Fox.
Defendant, McLendon, called plaintiff, Fox, by telephone asking for return of deed. Fox refused.
Appellee’s Summary of Fox’s Testimony.
In December of 1980, the Appellant, Fox, after telephoning the Defendant, McLendon, came to Florence, and stated to her in substance that she needed “a paper” signed so she could get an abstract, and clear up a technicality as to the property. The Appellant, Fox, knew at this time that McLendon owned an undivided one-half interest in the property, and that McLendon was unaware of it, and she did not communicate this fact to McLendon. On a subsequent trip, the instrument was presented to McLendon at her husband’s business the day after Christmas, when they were extremely busy, and McLendon relied on the representations of Fox and signed the same without reading it.
That within six (6) hours after the Plaintiff, Fox, had tricked and defrauded the Defendant, McLendon, into signing the quitclaim deed, the Defendant, McLendon, after calling her counsel, realized what had happened, and demanded that the same be returned.

In the argument section of his brief, appellant, Fox’s executor, persuasively contends:

[W]here is the evidence of fraud or misrepresentation? Trial court found that Fox did on or about 26th day of December, 1980, approach the defendant, McLendon, requesting the defendant, McLendon, to sign a quit claim deed, and representing at said time and place that the sole purpose of the quit claim deed was in order to clear a technicality in title, and so the plaintiff could, “obtain an abstract.”
The evidence simply does not exist for that finding to be had by the trial court.
Both parties testified that Fox needed a paper signed by McLendon so that Fox could sell her land. There was no question in these peoples [sic] minds that Fox had purchased the property, and was claiming to be the owner.. ..
There is no testimony to any conversation between Fox and McLendon where Fox said to McLendon, or in presence of McLendon, that the purpose of the quit claim deed was to clear a technicality in title. How could one represent what one does not say?

It is the gist of appellant’s argument that the only permissible inference which the trial court could have drawn from the evidence precluded, as a matter of fact and law, a finding of actionable fraud voiding the deed in question. According to the appellant’s version of the evidence, Fox made no active misrepresentation respecting the ownership or title to the property. She merely requested the defendant to sign the “paper” so she, the plaintiff, could sell the property. The defendant and her husband did sign the deed before two subscribing witnesses. Therefore, says the appellant, the trial court’s order impairing the validity of the deed is not sustainable under the evidence.

Citing Roberts v. Carroll, 877 So.2d 944 (Ala.1979) appellee counters thusly:

We submit that all of [the] elements [of fraud] are present in this case, and they were established without dispute by the testimony of the Plaintiff-Appellant, Fannie Fox, herself, as follows:
A. Mrs. Fox admitted that she knew that Mrs. McLendon owned an undivided one-half interest in the property and that Mrs. McLendon did not remember her ownership by Mrs. McLendon’s repeated statement “that she would not sell if she had any part in it.”
B. Mrs. Fox deliberately and intentionally withheld this information from Mrs. McLendon.
C. The false representation that she made to Mrs. McLendon was: “I merely want a paper so as to get an abstract and to correct a mistake.”
D. Mrs. McLendon signed the deed without reading it, relying on the representations of Mrs. Fox so that Mrs. Fox could get an abstract.
These were wilful and deliberate and fraudulent misrepresentations....

We hasten to acknowledge that if our scope of review were confined to appellee’s contention for fraud of the “intent to deceive” variety, our decision to affirm would be much more difficult. Indeed, our careful reading of the record confirms appellant’s accusation that the trial evidence does not support the finding that Fox represented to McLendon “that the sole purpose of the quitclaim deed was in order to clear a technicality in Title.... ”

What the record does support, however, is misrepresentation of the “innocent” variety. Whether Fox intended to deceive McLen-don through a preconceived plan to misrepresent the true nature of the “paper” which she requested her cousin to sign is not the issue before us. Even if a reasonable view of the preponderance of the evidence precludes a finding of evil intent or design on the part of Fox, there is ample evidence to support the ultimate holding, setting aside the deed on the ground of misrepresentation, though innocently made.

Fox may have had every reason to believe when she received the deed from McLendon’s mother in 1970 that she was the sole owner of the property; but when she requested McLendon to sign the quitclaim deed so she could sell the property in 1980, she was aware that McLendon was the owner of a one-half interest. Fox admitted that it was clear from what McLen-don told her on December 23rd that, if she had known that she owned an interest in the property, she would not have signed the deed. Fox also assured McLendon that if “anything comes of the place, you won’t lose out."

The evidence supports the trial court’s finding that McLendon relied on Fox’s representation that she needed her to sign the “paper” so that she, Fox, could obtain an abstract in preparation for the sale of the property. At the very least, all of the elements of innocent misrepresentation are made out by this evidence. Code 1975, § 6-5-101. Edmundson v. Mullen, 215 Ala. 297, 110 So. 391 (1926).

The suppression of a material fact, which the party is under an obligation to communicate, constitutes fraud. Code 1975, § 6-5-101. Jackson Company v. Faulkner, 55 Ala.App. 354, 315 So.2d 591 (1975).

AFFIRMED.

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

      . Suit was filed by Fannie V. Fox on February 2, 1981. After her death in November of that year, her executor, Toby Fox, was substituted as plaintiff, and subsequently filed this appeal.


author: FAULKNER, Justice.

text:
    Marseille HOUSTON and Elaine Houston v. John T. McCLURE and Christine McClure.
    81-652.
    Supreme Court of Alabama.
    Jan. 28, 1983.

      M.A. Marsal and George L. Simons, Mobile, for appellants.
    John D. Richardson and David F. Daniell of Brown, Hudgens, Richardson, Whitfield & Gillion, Mobile, for appellees.
   FAULKNER, Justice.

Marseille and Elaine Houston appeal from a summary judgment granted in favor of John T. and Christine McClure and against them for specific performance of a contract to convey real property. We reverse.

Briefly, the facts are as follows: In July 1981, the McClures entered into several discussions with the Houstons concerning a waterfront lot located on Dauphin Island in Mobile County, Alabama. The lot is more specifically described as Lot 12, Block 1, Aloe Bay Addition. On July 9, the Hous-tons and the McClures agreed on the terms of the sale of the lot. The McClures were to pay the Houstons the sum of $10,000.00 at the time of the sale and an additional and final payment of $10,000.00 on December 15, 1981.

On July 10, the McClures delivered a cashier’s check to the Houstons for the initial payment of $10,000.00. The Houstons accepted the check and executed a written document acknowledging the receipt of the check as a deposit from the McClures on the sale of the property. The text of this document appears in the record as follows: “July 10, 1981

“Received from John T. and Christine McClure ten thousand dollars deposit on Lot 12 Block 1 Aloe Bay Addition balance due on December 15, 1981, Oil right not been sold.”

During the next three days, July 11 through 13, 1981, the McClures went on the property, cut the grass, cleaned the grounds, and added onto an existing pier. The work on the pier consisted of the following: The McClures hired a Mr. Evans to drive two pilings and Mr. McClure added two stringers and some deck boards. The McClures paid Mr. Evans a total of $204.00 for one of the pilings and for his services. The other piling was already on the property. The McClures also placed two diesel fuel tanks on the property.

On July 14, 1981, Mr. Houston told Mr. McClure that he had changed his mind about selling the lot. Mr. Houston tried to return the cashier’s check to the McClures, along with a check for the improvements, but the McClures refused to accept both checks. The Houstons then ordered the McClures to remove the fuel tanks and posted “no trespassing” signs on the property-

The McClures on August 3, 1981, filed a complaint seeking specific performance of the contract. The Houstons filed a motion to dismiss the complaint, but the motion was denied. The Houstons’ filed their answer on January 26, 1982.

On January 27,1982, the McClures filed a motion for summary judgment based upon the pleadings, the affidavits of John T. McClure and Christine McClure, and the deposition of Marseille Houston. The Hous-tons filed a motion in opposition to the McClures’ motion for summary judgment. The Houstons’ motion in opposition was based upon the pleadings, the affidavits of Marseille and Elaine Houston, and the deposition of John T. McClure.

On March 9, 1982, the trial court granted the McClures’ motion for summary judgment and ordered the Houstons to convey the property to the McClures. The Hous-tons filed a motion to reconsider and set aside the order, but the motion was denied. On April 6, notice of appeal was filed. The trial court’s order of March 26 was received in the register’s office on May 3 and the judgment was entered and filed on that date. The Houstons refiled their notice of appeal on May 10, 1982.

The determinative issue raised on appeal is whether the circuit court exercised proper judgment in granting the McClures’ motion for summary judgment. The summary judgment standard established in Rule 56 of the Alabama Rules of Civil Procedure has two parts: the trial court must determine (1) that there is no genuine issue of a material fact and (2) that the moving party is entitled to a judgment as a matter of law. Worley v. Worley, 388 So.2d 502, 505 (Ala.1980). This standard is conjunctive. McGuire v. Wilson, 372 So.2d 1297 (Ala.1979).

The burden of proving the non-existence of any genuine issue of material fact rests upon the moving party. City of Rainbow City v. South Hawk, Inc., 394 So.2d 10 (Ala.1981). In determining whether the moving party has met his burden of establishing the absence of any genuine issue of material fact, the trial court must view the evidentiary material offered in support of the motion in the light most favorable to the opposing party. Fulton v. Advertiser Co., 388 So.2d 533 (Ala.1980).

The validity and enforceability of a contract for the sale of land is governed by § 8-9-2, Code 1975, the Statute of Frauds, which states in pertinent part:

“In the following cases, every agreement is void unless such agreement or some note or memorandum thereof expressing the consideration is in writing arid subscribed by the party to be charged therewith or some other person by him thereunto lawfully authorized in writing.
“Every contract for the sale of lands, tenements or hereditaments, or of any interest therein, except leases for a term not longer than one year, unless the purchase money, or a portion thereof is paid and the purchaser is put in possession of the land by the seller....”

Turning to the facts of the instant case, there are two documents in the record before this Court. The cashier’s check does not comply with the Statute of Frauds, for it does not bear the signatures of Mr. and Mrs. Houston, the parties to be charged. Moss v. Cogie, 267 Ala. 208, 101 So.2d 314 (1958). The second document, the receipt, is also insufficient in that it does not express the consideration. Rains v. Patton, 191 Ala. 349, 67 So. 600 (1914). Even though the second document acknowledges the receipt of $10,000 and further provides for the payment of the “balance” on December 15, 1981, the document’s failure to express the entire consideration renders it defective with regard to the requirements of § 8-9-2, Code 1975. This omission of the consideration cannot be supplied by pa-rol evidence. Jones v. Pettus, 252 Ala. 12, 39 So.2d 12 (1949).

Turning to the evidence concerning the part performance exception of § 8-9-2, Code 1975, this Court finds that the McClures’ acts of possession are not so clear and definite as to entitle them to a judgment as a matter of law. As this Court stated in Hagood v. Spinks, 219 Ala. 503, 122 So. 815, 816 (1929):

“To take a case out of the statute of frauds ... upon the ground of part performance, the acts of possession must be clear and definite, and referable exclusively to the contract, and by authority of the vendor. The existence of the contract and its terms should be established by competent proof to be clear, definite, and unequivocal in all its terms. If its terms, or the necessary acts of part performance, are not sustained by satisfactory proof, specific performance will not be decreed.”

Mere possession of the land without proof that the seller consented to the possession is not sufficient. Danforth v. Laney, 28 Ala. 274 (1856).

The McClures submit that they meet the requirements of this exception. The record reveals that the McClures gave the Hous-tons a cashier’s check for $10,000, for partial payment of the lot, on July 10, 1981. The McClures further argue that they were put in possession of the property at that time and there is testimony that the McClures cut the grass, cleaned the grounds, and added on to an existing pier between July 11 and July 13.

There is evidence, however, that the Houstons have allowed the McClures to use their lot free of charge during the Alabama Deep Sea Fishing Rodeo that is held each summer. During this time, the McClures were permitted to tie their boat at the Houstons’ pier, cut the grass, clean the area, and hold fish fries on the property. The record reveals that the Houstons gave the McClures permission to go on the lot in July 1981, to cut grass and clear up in preparation for the Deep Sea Fishing Rodeo. There is testimony that the Houstons did not give the McClures exclusive and permanent possession of the property. Thus, there is conflicting evidence as to whether the McClures’ acts of possession are referable exclusively to the contract.

In ruling on a motion for summary judgment the trial court cannot try issues of fact. Shades Ridge Holding Company, Inc. v. Cobbs, Allen & Hall Mortgage Company, Inc., 390 So.2d 601 (Ala.1980). A summary judgment is properly granted only if the pleadings, affidavits and other materials on file show that there is no genuine issue of material fact. Oliver v. Taylor, 394 So.2d 945 (Ala.1981).

This Court is of the opinion that there was an unresolved factual issue before the trial court as to whether the McClures’ alleged acts of possession were referable exclusively to the contract. Therefore, the trial court erred in granting the McClures’ motion for summary judgment.

REVERSED AND REMANDED.

ALMON, EMBRY and ADAMS, JJ., concur.

TORBERT, C.J., concurs in the result.