text:
    Gordon SMITH v. STATE of Mississippi.
    No. 52913.
    Supreme Court of Mississippi.
    Oct. 7, 1981.
    Boyd P. Atkinson, Cleveland, for appellant.
    Bill Allain, Atty. Gen. by Frankie Walton White, Sp. Asst. Atty. Gen., Jackson, for appellee.
   Appeal from Circuit Court, Bolivar County; Elzy J. Smith, Judge.

Before ROBERTSON, P. J., and BROOM and HAWKINS, JJ.

AFFIRMED.


source: Caselaw Access Project

license: Public Domain

text:
    David FLEMING v. STATE of Mississippi.
    No. 52955.
    Supreme Court of Mississippi.
    Oct. 7, 1981.
    John C. Webb, Greenville, for appellant.
    Bill Allain, Atty. Gen. by Billy L. Gore, Sp. Asst. Atty. Gen., Jackson, for appellee.
   Appeal from Circuit Court, Washington County; B. B. Wilkes, Judge.

Before ROBERTSON, P. J. and BROOM and HAWKINS, JJ.

AFFIRMED.


text:
    Bruce Wayne HECKMAN v. STATE of Mississippi.
    No. 52835.
    Supreme Court of Mississippi.
    Oct. 7, 1981.
    Frank R. McCreary, Gulfport, for appellant.
    Bill Allain, Atty. Gen. by Frankie Walton White, Sp. Asst. Atty. Gen., Jackson, for appellee.
   Appeal from Circuit Court, Harrison County; Kosta N. Vlahos, Judge.

Before SMITH, P. J., and WALKER and BOWLING, JJ.

AFFIRMED.


text:
    The HARTFORD ACCIDENT & INDEMNITY CO. v. MITCHELL BUICK-PONTIAC AND EQUIPMENT CO., et al.
    No. 52851.
    Supreme Court of Mississippi.
    Oct. 7, 1981.
    Ralph E. Pogue, Timothy W. Pace, Aberdeen, for appellant.
    Threadgill, Smith, Sanders & Jolly, W. H. Jolly, Jr., Columbus, Heidelberg, Woodliff & Franks, W. Swan Yerger, Jackson, for appellees.
   Appeal from Chancery Court, Clay County; Lenore L. Prather, Chancellor.

Before SMITH, P. J., and WALKER and BOWLING, JJ.

AFFIRMED.


text:
    Robert D. MAYO, et ux. and W. W. Kornegay, d/b/a Kornegay Construction Co. v. FLEMING BUILDING SUPPLY, INC.
    No. 52905.
    Supreme Court of Mississippi.
    Oct. 7, 1981.
    James D. Waide, West Point, Gary R. Parvin, Starkville, for Robert D. Mayo, et ux.
    Richard W. Wise, Starkville, for Korne-gay.
    Stark & McAlpin, Dolton W. McAlpin, Starkville, for Fleming Bldg. Sup., Inc.
   Appeal from Chancery Court, Oktibbeha County; Lenore L. Prather, Chancellor.

Before PATTERSON, C. J., and SUGG and LEE, JJ.

AFFIRMED.


text:
    W. H. INGRAM, Jr., et ux. v. CITY OF LAUREL, Mississippi.
    No. 52859.
    Supreme Court of Mississippi.
    Oct. 7, 1981.
    Ronald C. Brown, A. S. Scott, Jr., Laurel, for appellants.
    Thomas Tucker Buchanan, Billie J. Graham, Laurel, for appellee.
   Appeal from Circuit Court, Jones County; James D. Hester, Judge.

Before SMITH, P. J., and WALKER and BOWLING, JJ.

AFFIRMED.


text:
    CITY OF JACKSON, Mississippi v. APPLE MANOR, LTD., a Mississippi Limited Partnership.
    No. 52872.
    Supreme Court of Mississippi.
    Oct. 7, 1981.
    Howard C. Ross, Jr., Jackson, for appellant.
    Taylor, Covington, Smith & Matriek, James E. Lambert, Jackson, for appellee.
   Appeal from Chancery Court, Hinds County; James Arden Barnett, Chancellor.

Before SMITH, P. J., and WALKER and BOWLING, JJ.

AFFIRMED.


text:
    Annie B. HAWKINS v. Joseph B. HAWKINS.
    No. 52803.
    Supreme Court of Mississippi.
    Oct. 7, 1981.
    Graves, Riley, Meadows & Walker, Joseph R. Meadows, Gulfport, for appellant.
    Hawkins & Henry, Joe Ben Hawkins, Biloxi, for appellee.
   Appeal from Chancery Court, Harrison County; John S. Morris, Chancellor.

Before PATTERSON, C. J., and SUGG and LEE, JJ.

AFFIRMED.


text:
    Deborah Joan Sloan RISK v. Richard D. SLOAN, Jr.
    No. 52920.
    Supreme Court of Mississippi.
    Oct. 7, 1981.
    Rex K. Jones, Hattiesburg, for appellant.
    Gray, Montague & Pittman, S. Joel Johnson, James C. Pittman, Jr., Hattiesburg, for appellee.
   Appeal from Chancery Court, Forrest County; Sebe Dale, Jr., Chancellor.

Before PATTERSON, C. J., and SUGG and LEE, JJ.

AFFIRMED.


author: MADDOX, Justice.

text:
    S. M. HARRISON v. Helen HARRISON.
    79-372.
    Supreme Court of Alabama.
    October 3, 1980.
    J. Stephen Salter of Groenendyke & Salter, Birmingham, for appellant.
    Ronnie E. Keahey of Gilmore & Keahey, Grove Hill, for appellee.
   MADDOX, Justice.

This case arises out of an unusual marital relationship which has precipitated five separate circuit court proceedings in two different circuits. In this action, the husband sued his former wife in the Circuit Court of Clarke County, claiming that she had breached an agreement she had made with him that she would not enforce the provisions of a 1966 divorce decree, which had dissolved their marriage. To this complaint, the former wife filed a motion to dismiss, which by agreement of the parties, was treated as a motion for summary judgment. In support of her motion for summary judgment, she introduced her own affidavit, and affidavits of the Honorable Claud D. Neilson, Judge of the Seventeenth Judicial Circuit of Alabama; the court files of the proceedings had between the parties in the Circuit Court of Marengo County, being DR-78-009; 3576-A; 2266-A; and 2266-A.l. Also, in support of her motion for summary judgment, the former wife filed the sworn testimony of S., M. Harrison and Porter Mathis that was taken in Civil Action No. 2266-A in the Circuit Court of Marengo County on January 29, 1976.

The trial court, after hearing oral argument and after considering the pleadings, affidavits, exhibits and the transcript of the proceedings in the former cases, granted the former wife’s motion for summary judgment, finding that the issues previously litigated between the parties in the Circuit Court of Marengo County were broad enough to have included the issues involved in the instant case.

The parties, in brief, argue the res judica-ta question and the propriety of the trial court’s grant of summary judgment. We note, on our own, a wholly different issue — a fraudulent use of judicial process. For a determination of this appeal on that issue, which we determine is dispositive, we adopt appellee’s version of the facts, as set out in her brief:

The Defendant takes issue and does not agree with the Statement of the Facts as set forth by the Plaintiff in his brief. The facts set forth by the Plaintiff are not complete, nor do they sufficiently apprise this court of all of the facts in this case.
In fact, there are very few facts before the Court. This appeal was taken by the Plaintiff from the adverse ruling to the Plaintiff, when the trial court granted the Defendant’s Motion For Summary Judgment. In support of the Defendant’s Motion for Summary Judgment, Defendant submitted certain affidavits and records of other proceedings between the same parties which took place in the Circuit Court of Marengo County, Alabama, as well as some of the testimony taken in one of these proceedings. The Plaintiff filed two affidavits in opposition.
As indicated, the only testimony before the court Was the testimony taken on the 29th day of January, 1976, in the case styled “Helen M. Harrison, Plaintiff, v. S. M. Harrison, Defendant” being Case No. 2266-A in the Circuit Court of Marengo County. This testimony affirmatively shows that the Defendant moved from Chattanooga, Tennessee, to Thomasville, Alabama, in 1962 or prior thereto. Upon moving to Thomasville, Alabama, she lived with the Plaintiff’s mother and in 1962, they purchased a trailer, and she and the Plaintiff lived off and on in the trailer (R.Vol.II, p. 212). Approximately two years after the trailer was purchased and in 1964, the parties were married in Trenton, Georgia. The Defendant was divorced from the Plaintiff on August 11, 1966, and by virtue of that divorce decree, and the agreement entered into in connection therewith, the Plaintiff was ordered to pay to the Defendant the sum of Eighty Thousand Dollars ($80,000.00) as lump sum alimony.
The Plaintiff prior to this marriage to the Defendant was paying child support to his first wife and when garnishment proceedings were initiated against him for the support of his children born of the first marriage, the divorce between the parties hereto was rendered and a garnishment proceeding was initiated by the Defendant and against the Plaintiff with the money being paid into the Circuit Court of Marengo County, Alabama. Most of the money collected on the garnishment was paid to the Plaintiff (R.Vol.II, p. 215); with the Defendant’s name being endorsed by the Plaintiff (R.Vol.II, p. 210) and the Plaintiff receiving most of the money garnished. The Defendant and the Plaintiff resumed living together after the divorce was granted on August 11, 1966 (R.Vol.II, p. 308).
On January 7, 1976, a Petition for Rule Nisi was filed in the Circuit Court of Marengo County, Alabama, in Civil Action No. 2266-A and subsequently set for hearing on the 29th day of January, 1976. At this time the Honorable Claud D. Neil-son, Judge of the Circuit Court of Maren-go County, Alabama, rendered a judgment against the Plaintiff and in favor of the Defendant for the sum of $75,276.66; this being the amount determined by the Court to be due and owing to the Defendant in accordance with the Court’s decree of August 11, 1966 (R.Vol.I, p. 28). The issues involved in the case at bar were raised at this time, and argued strenuously by the Plaintiff’s Attorney (R.Vol.I, p. 28; R.Vol.I, p. 190 through. R.Vol.II, p. 222).
More than thirty (30) days after the judgment and decree of the Circuit Court of Marengo County, Alabama on the 29th day of January 1976, was rendered, the Plaintiff filed a Motion for a New Trial on March 1, 1976 (R.Vol.I, p. 103). Even though the Motion was not timely filed and more than ninety (90) days had elapsed from the date of the filing of the motion the Court heard arguments by both attorneys and denied said Motion on the 27th day of July, 1976 (R.Vol.I, p. 29; R.Vol.I, p. 103). No appeal was taken from this ruling or from the ruling of the trial court granting Defendant a judgment against the Plaintiff, but on the 12th day of October, 1976, the Plaintiff filed an independent proceeding against the Defendant styled “Petition to Vacate the Decree” and sought by said independent action to vacate and set aside the original court’s decree granting the divorce between the parties of August 11, 1966, and the judgment in favor of the Defendant, and against the Plaintiff on the 29th day of January, 1976. This petition alleges in part as follows:
That there was a connivance on the part of both parties in obtaining the divorce decree in August, 1966, and was entered into for the purpose of preventing the first wife from collecting child support,
thereby raising the fraud or misrepresentations allegation and the breach of contract allegation made the basis of the case at bar (R.Vol.I, p. 76-78; R.Vol.I, p. 29). On the 11th day of April, 1977, Honorable Claud D. Neilson, Judge of the Circuit Court of Marengo County, Alabama, after hearing arguments from the Attorneys and after being presented briefs, granted the Defendant’s Motion to Dismiss the Motion filed by the Plaintiff to vacate the judgment. The defense of res judicata was argued at this time. No appeal was taken from this ruling (R.Vol.I, p. 29; R.Vol.I, p. 88-89).
Another independent action was filed by the Plaintiff on the 9th day of January, 1978, in Civil Action No. DR-78-009 and entitled “Bill of Review” (R.Vol.I, p. 29-30; R.Vol.I, p. 146-148). In the Plaintiff’s Petition or independent action styled “Bill of Review,” it is alleged as follows:
... said divorce decree was obtained through a fraud upon this court in an effort to defeat the financial obligation of the Plaintiff...
obtained said divorce decree through fraud and misrepresentations. . .
On March 17, 1978, the Plaintiff filed a Motion to Vacate the judgment of April 11, 1977 (R.Vol.I, p. 128). On May 12, 1978, Judge Claud D. Neilson, Judge of the Circuit Court of Marengo County, granted the Defendant’s Motion to Dismiss the Motion to Vacate the Judgment (R.Vol.I, p. 89); and granted Defendant’s Motion to Dismiss the Bill of Review (R.Vol.I, p. 127). No appeal was taken from either of these rulings (R.Vol.I, p. 30).
The case at bar was then filed in the Circuit Court of Clarke County, Alabama, on April 5, 1978, and a Summary Judgment granted on January 4, 1980.

The record in this case also shows that the appellee, Helen M. Harrison, filed an action for divorce in the Circuit Court of Clarke County on September 30, 1976, in which she averred as follows:

That Plaintiff and the Defendant were lawfully married on December 9, 1964, in Dade County, Georgia, and lived together as man and wife until September 24, 1975, at which time they separated in Clarke County, Alabama, for the reasons hereinafter set forth. Your Plaintiff further shows unto this Court that there is a divorce decree in the Circuit Court of Marengo County, Alabama, dated August 11, 1966, wherein the Plaintiff and the Defendant purported to have acquired a divorce from each other but your Plaintiff would show unto this Court that the parties hereto were never separated and continued to live together prior to August 11, 1966, and after August 11, 1966 as man and wife, and held themselves out to the public as being man and wife during this period of time. Plaintiff further avers and alleges that this divorce was obtained for other means and the parties never intended to severe [sic] their relationship as man and wife.

It is apparent from the record, therefore, that these parties, by their own admission, perpetrated a fraud upon the Circuit Court of Marengo County in obtaining the divorce decree of August 11, 1966. Consequently, we determine that both of these parties are seeking to have us determine legal rights which could only arise out of their fraudulent use of the judicial process. We refuse to expend judicial time for this purpose.

In Hartigan v. Hartigan, 272 Ala. 67, 128 So.2d 725 (1961), this Court, dealing with a divorce decree in which both parties had perpetrated a fraud upon the court, stated:

The public welfare demands that the agencies of public justice be not so impotent that they must always be mute and helpless victims of deception and fraud.

In Crisco v. Crisco, 294 Ala. 168, 313 So.2d 529 (1975), this Court, speaking of the fraudulent use of judicial process, stated:

A court is not without jurisdiction to exercise its inherent power to set aside and vacate at any time a judgment because of supervening invalidity based on fraud practiced on the court by a party in the procurement of the judgment apparent on the face of the record. See Doby v. Carroll, 274 Ala. 273, 147 So.2d 803 (1962); Holden v. Holden 273 Ala. 85, 134 So.2d 775 (1961); McDonald v. Lyle, 270 Ala. 715, 121 So.2d 885 (1960); Vaughan v. Vaughan, 267 Ala. 117, 100 So.2d 1 (1958); Wheeler v. Bullington, 264 Ala. 264, 87 So.2d 27 (1956); Capps v. Norden, 261 Ala. 676, 75 So.2d 915 (1954); Robinson Co. v. Beck, 261 Ala. 531, 74 So.2d 915 (1954), and Griffin v. Proctor, 244 Ala. 537, 14 So.2d 116 (1943).
A natural and logical extension of this proposition is the holding of this Court in Hartigan v. Hartigan, 272 Ala. 67, 128 So.2d 725 (1961). There, in upholding the lower court’s order vacating an original divorce decree, the rule was laid down to the effect that where jurisdiction of the court was fraudulently invoked by the parties and this fact became apparent in a subsequent proceeding, although neither party attacked the validity of the original decree which was regular on its face, the court is empowered ex mero motu to set aside that decree.

As we understand the facts, there is currently pending a proceeding in which both of these parties are seeking a divorce. The court which has jurisdiction of that proceeding, acting under equitable principles, would not be powerless to declare that the 1966 divorce was obtained, based upon the admission of the parties, by perpetrating a fraud upon the court. The court could then, using equitable principles, determine the rights and relations between the parties, including the right of the husband to continue to prosecute the present action and the right of Helen Harrison to obtain any benefits under the 1966 divorce decree. Unless there are facts substantially different from those shown in this record, we frankly do not think that either party can claim any legal rights which are based upon the divorce decree which they obtained by fraudulent use of judicial process.

We specifically point out that the judgment we enter today is without prejudice to the rights of the former wife to enforce the provisions of that decree, and is without prejudice to the rights of the former wife to pursue any remedy she might have as a victim of the fraud we today find was perpetrated upon the trial court by the parties.

This cause is due to be remanded to the trial court for further proceedings not inconsistent with this opinion. The court is directed, after further proceedings are conducted within a reasonable time as herein directed, to file a report with this Court, in which the results of those proceedings shall be stated.

Motion to Dismiss

On September 30, 1980, after the opinion had been written and voted on, this Court received a motion to dismiss the appeal on the ground that the parties had reached a settlement agreement and that dismissal of this appeal was a condition of that settlement agreement.

In view of what we have said in the opinion, and in view of the fact that the motion to dismiss comes too late, it is due to be denied.

REMANDED WITH DIRECTIONS; MOTION TO DISMISS DENIED.

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

       Reporter’s note: On June 30, 1981, the circuit court, pursuant to the order of remand, dismissed the cases which were the basis of this appeal, and the Supreme Court, by order dated July 30, 1981, approved that action.


author: FAULKNER, Justice.

text:
    WURZBURG BROTHERS, INC. v. James F. COLEMAN.
    80-508.
    Supreme Court of Alabama.
    Sept. 4, 1981.
    Robert F. Northcutt of Hardwick, Hause & Segrest, Dothan, for appellant.
    No brief for appellee.
   FAULKNER, Justice.

The issue on appeal is the effect of. a signature on a note by an agent who does not indicate his representative capacity. James H. Coleman, defendant, is the president and 25% shareholder of Coleman American Moving Services, Inc., (Coleman American). Coleman American is a publicly owned Delaware corporation, with several subsidiaries in the south and west. Mr. Coleman is on the board of directors of each corporation and was convicted of securities fraud for activities arising out of his positions with Coleman American. The plaintiff, Wurzburg Brothers, Inc., (Wurzburg) sold supplies to Coleman American on an open account. Coleman American became behind on its payments and issued several checks which were returned to Wurzburg for insufficient funds. The credit manager of Wurzburg feared that Coleman American would become insolvent. On November 14, 1979, the credit manager and the president of Wurzburg procured a note from Coleman to secure the debt. The note stated that “Coleman American Moving Services, Inc. promises to pay” $44,419.68. The note was signed “James H. Coleman.” The note did not indicate that Mr. Coleman signed in his representative capacity as president of Coleman American. Mr. Coleman controlled the drafting of the note. The credit manager of the plaintiff corporation testified that Wurzburg intended that Mr. Coleman personally guarantee the debt of Coleman American. The defendant contends, however, that he signed as representative of Coleman American and that the debt is not his, but that of the corporation. Coleman American defaulted on the payment for the supplies sold to it on open account. Coleman American filed a petition of bankruptcy in the United States Bankruptcy Court for the District of Kansas.

The plaintiff brought an action on the note against James Coleman. After a hearing, ore tenus, the trial judge entered a judgment in favor of the defendant, Mr. Coleman. Wurzburg now appeals. We reverse.

This action presents two basic issues. First, whether parol evidence is admissible by Coleman as the signer of a note to disestablish his liability on the note. Second, assuming that parol evidence is admissible, did Coleman satisfactorily rebut the presumption raised by Code 1975, § 7-3-403(2)(b), that he is personally liable on the note. The construction of § 7-3-403(2) is a question of first impression in Alabama.

Code 1975, § 7-3-403 codifies § 3^03 of the Uniform Commercial Code. Section 7— 3-403 provides:

(1) A signature may be made by an agent or other representative, and his authority to make it may be established as in other cases of representation. No particular form of appointment is necessary to establish such authority.
(2) An authorized representative who signs his own name to an instrument:
(a) Is personally obligated if the instrument neither names the person represented nor shows that the representative signed in a representative capacity;
(b) Except as otherwise established between the immediate parties, is personally obligated if the instrument names the person represented but does not show that the representative signed in a representative capacity, or if the instrument does not name the person represented but does show that the representative signed in a representative capacity.
(3) Except as otherwise established the name of an organization preceded or followed by the name and office of an authorized individual is a signature made in a representative capacity. (Acts 1965, No. 549, p. 811).

The issue of whether parol evidence is admissible to disestablish the signer’s liability depends on which provision of Code 1975, § 7-3 — 403(2) applies. Under § 7-3-403(2)(a), parol evidence is inadmissible to nullify the signer’s liability. But, under § 7-3 — 403(2)(b), parol evidence is admissible between the immediate parties to the instrument. In turn, the determination of whether Code 1975, § 7-3-403(2)(a) or § 7-3-403(2)(b) is applicable depends on whether § 7-3 — 403(2) authorizes examination of the entire face of the instrument, or the signature only, to see if the person represented is named.

The purpose of Code 1975, § 7-3-403 is to encourage certainty and definiteness in the law of commercial paper. See Rotuba Extruders, Inc. v. Ceppos, 46 N.Y.2d 223, 413 N.Y.S.2d 141, 385 N.E.2d 1068 (1978). The taker of a negotiable instrument should be able “to tell at a glance whose obligation they hold.” Id. (quoting J. White & R. Summers, Uniform Commercial Code, at 13-2 (1972). While there is authority that only the form of the signature may be examined to determine whether there is ambiguity, see St. Regis Paper Co. v. Wicklund, 24 Wash.App. 552, 597 P.2d 926 (1979), the language of § 7-3-403 indicates otherwise. The statute permits admission of parol evidence between the immediate parties “if the instrument names the person represented but does not show that the representative signed in a representative capacity” (emphasis added). The statute does not say that “if the signature names the person represented” parol evidence is admissible. The language of the section indicates that the entire face of the instrument may be given attention when discovering who is liable on the instrument. See Sullivan County Wholesalers, Inc. v. Sullivan County Dorms, 59 A.D.2d 628, 398 N.Y.S.2d 180 (1977); Citibank Eastern, N. A. v. Minbiole, 50 A.D.2d 1052, 377 N.Y.S.2d 727 (1975); Acme Metals, Inc. v. Weddington, Tenn.App., 575 S.W.2d 15 (Ct.App.1978). This interpretation of Code 1975, § 7 — 3—403, is not inconsistent with the goal of the law of commercial paper to foster certainty and definiteness. Examination of the face of the negotiable instrument is not an undue burden to place on a holder of the instrument. We hold that under Code 1975, § 7-3 — 403, the face of the instrument must put a person on notice as to who is liable on the instrument. If the face of the note names the person represented but does not show the signer’s representative capacity, or vice versa, parol evidence is admissible between the immediate parties to the instrument under § 7-3-403(2)(b). Therefore, the trial judge did not err by admitting parol evidence to determine the intent of the parties.

Although parol evidence is admissible under § 7-3-403(2)(b), the burden remains on the signer of the instrument to disestablish liability. See Byrd Cos. v. Tolbert, 286 Ala. 465, 241 So.2d 840 (1971); Fanning v. Hembree Oil Co., 245 Ark. 825, 434 S.W.2d 822 (1968). The trial court found that the note was evidence of a corporate liability and not the personal obligation of Mr. Coleman. Although the trial judge, who heard the testimony ore tenus is due great deference, see Smith v. McNaughton, 378 So.2d 703 (Ala.1979), the presumption of correctness does not apply when the trial court applied erroneous principles of law. See State Department of Industrial Relations v. Montgomery Baptist Hospital, Inc., Ala.Civ.App., 359 So.2d 410 (1978); St. Clair Industries, Inc. v. Harmon’s Pipe & Fitting Co., 282 Ala. 466, 213 So.2d 201 (1968). The trial judge relied on 19 Am.Jur.2d Corporations § 1346 (1964), which states that when a corporation is named in the body of a contract, it is a contract of the corporation. “[T]he signature in the name of the officer with or without an affix designating his representative capacity does not render it his personal contract.” Id. This statement is contrary to the law under Code 1975, § 7-3-403(2)(b), which provides that the signer is liable unless he or she can show that personal liability of the signer was not the intent of the parties.

This Court finds that Mr. Coleman did not meet the burden imposed by § 7-3— 403(2) of disestablishing his liability. The only evidence that Coleman did not personally guarantee the debt of the corporation is his bare allegation that he did not intend to be bound. In order to meet the burden of proof under § 7-3-403(2)(b), the evidence must be more than the mere self serving allegation of the signer’s subjective intent to sign in a representative capacity. See Rotuba Extruders, Inc. v. Ceppos, 46 N.Y.2d

223, 413 N.Y.S.2d 141, 385 N.E.2d 1068 (1978). This is particularly true when the allegations are made by a person who has recently been convicted of securities fraud and fined $15,000. The evidence shows that the credit manager and the president of Wurzburg Brothers flew to Dothan to procure Mr. Coleman’s signature guaranteeing the debt of the corporation. The credit manager testified that he feared that Coleman American would become insolvent and sought to secure the debt. The defendant is a 25% shareholder of Coleman American and is president of the parent corporation. He is on the board of directors of all subsidiaries of Coleman American. Coleman has been in such a position of authority for almost twenty years, and is an experienced businessman who should know the proper method of signing a contract for his corporation. Mr. Coleman had charge of making out the note and could easily have indicated if he wished to sign in a representative capacity. Under these circumstances, it hardly seems unfair or contrary to the intention of the parties to hold a person of Coleman’s business acumen liable on the debt. See Fanning v. Hembree Oil Co., 245 Ark. 825, 434 S.W.2d 822 (1968); Universal Lighting Rod, Inc. v. Rischall Electric Co., 24 Conn.Supp. 399, 192 A.2d 50 (1963); Citibank Eastern, N. A. v. Minbiole, 50 A.D.2d 1052, 377 N.Y.S.2d 727 (1975).

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

REVERSED AND REMANDED.

TORBERT, C. J., and ALMON, EMBRY and ADAMS, JJ., concur.


author: ALMON, Justice.

text:
    Lilly Pearl JOHNSON, Johnson Insurance Agency, Inc., Auto-Owners Insurance Company v. Paul V. HARRISON.
    79-427.
    Supreme Court of Alabama.
    Sept. 11, 1981.

      McCoy Davidson of Roberts & Davidson, Tuscaloosa, and E. L. Gosa of Young, Gosa & Brown, Vernon, and Max Hudson of London, Yancey, Clark & Allen, Birmingham, for appellants.
    Ronald H. Strawbridge, Vernon, for ap-pellee.
   ALMON, Justice.

This is an appeal from a judgment rendered after a jury verdict for the plaintiff, Harrison, for $125,000 against three defendants; Lilly Pearl Johnson, Johnson Insurance Agency, Inc., and Auto-Owners Insurance Company. Johnson Insurance Agency was awarded $100,000.00 on its cross-claim against Auto-Owners Insurance Company. We reverse.

Paul Harrison, a contractor from Vernon, Alabama, obtained from Lilly Pearl Johnson of Johnson Insurance Agency, a workmen’s compensation insurance policy. This insurance was required before he could get a contracting job with the City of Saltillo, Mississippi, to construct sewer lines. He was issued a policy from Auto-Owners Insurance Company. Harrison testified he told Mrs. Johnson he wanted a policy that would cover him on a job in Mississippi; however, the policy issued by Auto-Owners only applied to Alabama. In other words, it covered Harrison’s employees as long as the employment contract was made in Alabama. Harrison hired two workers from Vernon and a third worker was hired via telephone from Vernon, to begin work on a project in Saltillo, Mississippi. He began work on the project on January 30, 1978, and had 180 calendar days to complete the job. Work progressed until April 24, 1978, when an accident occurred in which one worker was killed and two others were injured. Harrison submitted a claim to Mrs. Johnson on his Auto-Owners policy. Auto-Owners paid the funeral expenses of the deceased worker and made compensation payments to the injured workers. When a question of policy coverage arose, Auto-Owners ceased making payments and canceled the policy.

Harrison then filed suit against the appellants claiming they had negligently failed to issue a policy that covered his work in Mississippi, that they breached an oral contract to supply such coverage, that defendants wrongfully denied coverage under the policy issued and as a result he suffered damages. Harrison amended his complaint to seek a declaratory judgment that the appellants were liable for any liability he might incur as a result of the accident. Johnson Insurance Agency filed a cross-claim against Auto-Owners claiming they wrongfully denied coverage under the policy and were estopped from denying such coverage.

Error is alleged in the failure of the trial court to excuse Mrs. Mildred Brown, an employee of Johnson Insurance Agency, from the rule. Excluding or excusing witnesses from the rule is a matter left largely to the discretion of the trial judge. The trial judge’s rulings as to the rule will only be reversed where there is a gross abuse of discretion. Nationwide Mutual Insurance Co. v. Smith, 280 Ala. 343, 194 So.2d 505 (1966). No abuse of discretion occurred in this case. Mrs. Johnson, who was the president of Johnson Insurance Agency, was present with counsel for Johnson Insurance Agency during the trial. There was testimony to the effect that Harrison dealt with Mrs. Johnson and that she was aware of Harrison’s dealings with Johnson Insurance Agency. Hence, counsel was provided with more than adequate assistance even though Mrs. Brown was not allowed to be present during the trial.

Appellants contend that the appellee’s counsel improperly injected the poverty of Mr. Harrison into the case. The alleged error occurred during the direct examination of Mr. Harrison, the pertinent portions of which are set out below.

Q (By Mr. Strawbridge) Can you finish the job, Paul?
MR. DAVIDSON: We object to that.
THE COURT: Sustained.
Q (By Mr. Strawbridge) Let me ask you this: Has your equipment been repossessed?
MR. DAVIDSON: We object to that.
THE COURT: What grounds?
MR. DAVIDSON: That is not a measure of damages in this lawsuit.
MR. STRAWBRIDGE: Your Honor, it is a measure — Liquidated damages are a measure of damages in this lawsuit, and we have a right to show that he cannot go back and finish the job.
MR. HUDSON: Same objection.
THE COURT: I will overrule that. Q (By Mr. Strawbridge) Have you had any machinery repossessed?
MR. DAVIDSON: We object again for the record.
MR. HUDSON: Same objection.
Q (By Mr. Strawbridge) Have you completed the job, Paul — Are you out of business, Paul?
MR. DAVIDSON: We object to that.
THE WITNESS: Yes.
MR. HUDSON: Same objection.
MR. STRAWBRIDGE: This is the element of our damages. He is out of business. If we cannot prove this, we cannot prove any damages.

There was testimony by Mr. Harrison that he was being assessed $25 per day as liquidated damages due to his failure to complete the project within 180 calendar days.

Although generally any references to the wealth or poverty of a party are not permissible, such may be relevant and admissible when it goes to a material issue in the case. The general rule was set forth in Barnes v. Sand Mountain Electric Cooperative, 40 Ala.App. 88, 108 So.2d 378 (1958), as follows: “Ordinarily, unless directly involved in the determination of the measure of damages, the financial status of parties involved in litigation is immaterial, and evidence to such effect is improper.” In Alabama Water Service Co. v. Wakefield, 231 Ala. 112, 163 So. 626 (1935), it is stated: “Obviously, injury to a going business may arise from depriving the party of facilities for its operation, or putting an extra burden of labor and expense upon its operation, although no definite loss of profits can be shown.” Hence, since the questions asked of Mr. Harrison went to the issue of damages, the court did not commit any error in allowing them.

Appellants’ next assignment of error is that the amount of the verdict is out of proportion with the damages proved. In examining this contention it is first necessary to determine the amount of damages that Harrison would have been entitled to if he proved the allegations of his complaint. Harrison presented three grounds for recovery in his complaint; breach of contract, negligence in procuring insurance coverage and wrongful denial of coverage. Based upon the facts presented for review, only compensatory damages would have been recoverable under the breach of contract and negligence counts. because there is no basis for awarding punitive damages. As for the wrongful denial of coverage claim, it has been referred to in previous cases as the tort of “bad faith.” Vincent v. Blue Cross-Blue Shield of Alabama, Inc., 373 So.2d 1054 (Ala.1979). A majority of the court in Vincent, indicated such a tort action might be recognized in appropriate circumstances. The jury was not given instructions on this new theory of recovery and consequently no damages under it could be allowed. As a result, the only damages that Harrison would be entitled to upon proper proof, would have been compensatory in nature. The only damages that were actually proved at trial were his loss on the contract, liquidated damages assessed for failure to complete the job, and attorney’s fees that Harrison incurred as a result of the suit filed against him by one of his injured employees in Mississippi. There was evidence that Harrison had suffered a loss to his business as a result of the defendant’s acts; however, there was no evidence as to the amount of such damage. The rule has long been established that the party claiming damages has the burden of establishing the existence of and amount of those damages by competent evidence. Smith v. Richardson, 277 Ala. 389, 171 So.2d 96 (1965). The award of damages cannot be made upon speculation, and the plaintiff has the burden of offering evidence tending to show to the required degree, the amount of damages allegedly suffered. Great American Insurance Co. v. Railroad Furniture Salvage of Mobile, Inc., 276 Ala. 394, 162 So.2d 488 (1964). There was also testimony to the effect that Harrison had purchased materials and equipment that were not paid for due to the acts of defendants, but there was no testimony as to the amount of the loss.

We do not refer to the above mentioned damages to pass on their validity in such an action, but merely to show that there was inadequate proof of their existence to allow the jury to consider them in their verdict.

As to the liquidated damages, there was evidence that they had been assessed against the plaintiff since August 28, 1978. Hence, from August 28, 1978, until the date of trial, October 3, 1979, $10,000 in liquidated damages would have accrued at the rate of $25 per day.

The attorney’s fees incurred by Mr. Harrison in his defense of the suit filed against him in Mississippi were $1,220, which was uncontradicted.

In regards to the damages Harrison incurred as a result of his failure to complete his contract with the City of Saltillo, Mississippi, Harrison testified the job was 95% complete. Mr. Fred Payne, who was employed by the engineers responsible for inspecting the job Harrison was awarded, testified that Harrison had been paid $109,-531.27 under the contract which had a total price of $150,770. The amount of $12,170.14 had been retained under the terms of the contract to be paid upon completion and henee $121,701.41 had been earned under the contract by Harrison but not paid. There remained to be paid under the contract a total of $29,068.59. However, 5% of the job remained to be completed; therefore, Harrison would have incurred additional expenses in completing the job. Subtracting 5% of Harrison’s total cost of the job (approximately $125,000) or $6,250, would leave a total of $22,818.59 to be paid Harrison. To this total would be added the $12,170.14 he had already earned under the contract which would mean Harrison had lost $34,988.73 on the contract as a result of the defendants’ action. Hence, total proven damages would be approximately:

liquidated damages $10,000.00
attorney’s fees 1,220.00
loss on contract 34.988.73
Total $46,208.73

The jury’s award of $125,000 to Harrison is clearly excessive when compared to proven damages. We do not imply that the above computation of damages is exact or that this is all the damages that Harrison actually suffered. We merely use the computation to illustrate the excessiveness of the verdict. The judgment is reversed and the cause is remanded for a new trial.

REVERSED AND REMANDED.

MADDOX, FAULKNER, EMBRY and ADAMS, JJ., concur.


author: EMBRY, Justice.

text:
    Ruth MARTIN, et al. v. Margaret M. SMITH, et al.
    80-259.
    Supreme Court of Alabama.
    Sept. 11, 1981.

      J. G. Speake of Speake, Speake & Reich, Moulton, for appellants.
    W. H. Rogers, Moulton, for appellees.
   EMBRY, Justice.

This appeal is from a final judgment ordering the public sale of several tracts of land for division of the proceeds among the owners who were tenants in common. The pivotal issue presents a novel question: whether a cotenant who conveys his present and expectancy interests in the lands to his fellow cotenants may thereafter inherit an interest in those lands from a cotenant grantee.

Plaintiffs filed this action seeking the sale for division of approximately 418 acres of land. Defendants answered, alleging that plaintiffs had no standing to seek a sale for division because they had previously conveyed to defendants and others, by warranty deed of 26 February 1959, all their interests in the property in question. Defendants further alleged that plaintiffs were estopped from maintaining the action by virtue of plaintiffs’ previous execution of their deed of conveyance.

After trial without a jury, the trial court entered judgment in which it found all parties to be “joint owners” of the lands and ordered the property sold for division; also delineating the respective interests of the parties in the property.

All parties to this action are either children, or children of deceased children, of James J. Martin. The latter held a life estate in all the tracts of land in question by virtue of a grant from his father, Lewis H. Martin, who granted the remainder interests in the lands to the children of his son, James J. Martin.

James J. Martin was survived by seven children; Abner, Clark, Omar, Roy, Ruth, Vanche and Vivian, each of whom took an equal fractional interest in the lands as cotenants upon their father’s death by virtue of the provisions of Code 1923, § 7373. An eighth child, Palmer had predeceased his father, leaving no wife or children.

After the death of their father, but prior to the execution of the deed of 26 February 1959, Abner, Clark, Omar and Roy died. Omar was survived by two daughters, Annie Garrison and Margaret Smith, the plaintiffs in this action. Abner was survived by two sons, Franklin Dwight Martin and James W. Martin, who along with their aunt, Ruth, the only child of James J. Martin alive at the institution of these proceedings, are the defendants in this action.

Clark and Roy both died without issue or spouses surviving them and, consequently, their interests in the lands were distributed among their surviving brothers and sisters and the children of their deceased brothers and sisters, according to the intestate succession statute then in effect.

Immediately prior to execution of the deed of 26 February 1959, the property in question was owned as follows: the three children of James J. Martin alive on that date, Vanche, Vivian, and Ruth, each held a Vs interest in the property; their four nieces and nephews, Annie, Margaret, Dwight, and James W. each held a Vio interest.

By the granting clause of the warranty deed of 26 February 1959, Annie and Margaret conveyed their combined Vs interest in the lands to the other cotenants; Vanche, Vivian and Ruth each received V* of the Vs interest, while Dwight and James W., each took Vs of the Vs interest conveyed.

Another clause in the deed, that by which defendants allege plaintiffs assigned their expectancy interests in . the property, reads as follows:

The grantors . . . Annie Kathrine Garrison and Margaret M. Smith, do by these presents convey unto the grantees named herein all of their presently owned undivided interest in and to the above described real estate, together with any interest which they may acquire in the future by inheritance or devise, and it being the intention of the parties hereto that this conveyance represents a full and complete settlement of the interest of the grantors in and to the above described real estate, and that this conveyance shall be binding upon the grantors herein, together with their heirs, devise[e]s, executors and administrators, forever.

In the year following the execution of the deed, Vivian died with no husband or children surviving her and without a will. In 1979, Vanche died leaving no husband or children and no will.

Plaintiffs claim that a V12 interest in the disputed lands passed to each of them under Code 1940, Tit. 16, § 1, and Code 1975, § 43-3-1, as a result of the deaths of Vivian and Vanche. Defendants, the surviving grantees of the deed, claim complete title to the property in them, contending, as earlier mentioned, the expectancy interests of plaintiffs in the estates of Vivian and Vanche were validly conveyed to defendants by the deed of 26 February 1959, or, in the alternative, plaintiffs should be es-topped from asserting any rights to the property as a matter of equity because of the clause in the deed purporting to convey their expectancies.

Although the cases in this state dealing with transfers of expectancies are scant, plaintiffs do not take issue with defendants’ assertions that a conveyance of an expectancy in land may be valid in Alabama.

The general rule at common law, recognized in Alabama, is that an assignment by a prospective heir or devisee of his expectancy of acquiring an estate by descent or devise is invalid, and unenforceable at law, unless the expectancy is coupled with an interest in such property, as was done in the deed of 26 February 1959. First National Bank v. Cash, 220 Ala. 319, 125 So. 28 (1929); Skipper v. Stokes, 42 Ala. 255, 94 Am.Dec. 646 (1868); 6A C.J.S. Assignments § 17 (1975).

In equity, however, the courts will enforce an assignment or release of an expectant interest which is based on a valuable consideration and is made in good faith and free from circumstances of fraud or oppression. Cash, supra; Hinkle v. Wanzer, 58 U.S. (17 How.) 353, 15 L.Ed. 173 (1854). This equitable view of the matter is consistent with Code 1975, § 35-4-1, which declares future and contingent interests alienable in Alabama.

Plaintiffs, however, contend the warranty deed in question did not operate to convey their expectancy interests. The only interests which were transferred, they argue, were their then present possessory interests designated in the granting clause of the warranty deed as follows:

KNOW ALL MEN BY THESE PRESENTS, That we, Pearl Martin, a widow; Margaret M. Smith and husband, Morris Smith, Annie Kathrine Garrison and husband, Drennon Garrison, for and in consideration of the sum of Twelve Thousand Five Hundred and No/100 ($12,500.00) Dollars, to us in hand paid by Vivian Martin, Ruth Martin, Vanche El-lette, James Wiley Martin and Franklin Dwight Martin, the receipt whereof is hereby acknowledged do grant, bargain, sell and convey unto the said Vivian Martin, Ruth Martin, Vanche Ellette, James Wiley Martin and Franklin Dwight Martin, the following described property, in the following proportions, to-wit: Vivian Martin, a Vtth of a Vsth interest; Ruth Martin, a Vtth of a Vsth interest; Vanche Ellette, a Vith of a Vsth interest; James Wiley Martin, a Vsth of a Vsth interest; and Franklin Dwight Martin, a Vsth of a Vsth interest in and to the following described Lands in Lawrence County, Alabama, to-wit:

Plaintiffs contend the granting clause conflicts with the clause purporting to convey their expectancy interests and, applying our rules of construction, the granting clause should prevail. Furthermore, according to the testimony of one of the plaintiffs, she was told at the time the deed was signed in the office of defendants’ attorney that she was only conveying the interests derived from her father’s and grandfather’s estate.

The principles which guide the courts in construing deeds were set out in Financial Investment Corp. v. Tukabatchee Area Council, Inc. Boy Scouts of America, a Corp., 353 So.2d 1389 (Ala.1977):

It is, of course, a fundamental rule of 'construction that the real inquiry in construing the terms of a deed is to ascertain the intention of the parties, especially that of the grantor, and if that intention can be ascertained from the entire instrument, resort to arbitrary rules of construction is not required. Wilkins v. Ferguson, 294 Ala. 25, 310 So.2d 879 (1975); Gulf Oil Corp. v. Deese, 275 Ala. 178, 153 So.2d 614 (1963).
The courts, in construing conveyances, must ascertain and give effect to the intention and meaning of the parties, “to be collected from the entire instrument.” Brashier v. Burkett, 350 So.2d 309 (Ala.1977); Stratford v. Lattimer, 255 Ala. 201, 50 So.2d 420 (1951).
. . . [Wjhere a deed isrof doubtful meaning, or where the language of a deed is ambiguous, the intent of the parties to the deed as to what property is conveyed may be ascertained by reference to facts existing when the instrument was made, to which the parties may be presumed to have had reference. Lietz v. Pfuehler, 283 Ala. 282, 215 So.2d 723 (1968).
However, if the language is plain and certain, acts and declarations of the parties cannot be resorted to, to aid construction. Id.; Hall v. Long, 199 Ala. 97, 74 So. 56 (1916).
In ascertaining the intention of the parties, the plain and clear meaning of the deed’s terms must be given effect, and parties must be legally presumed to have intended what is plainly and clearly set out. Camp v. Milam, 291 Ala. 12, 277 So.2d 95 (1973).

We find no conflict or ambiguity in the granting clause and the clause conveying the expectancy interests. The latter clause has the special purpose, as stated, to effect a “full and complete settlement of the interests of the grantors” in the subject property. Every distinct provision in a conveyance is presumed to have been inserted for a purpose. Stratford v. Lattimer, 255 Ala. 201, 50 So.2d 420 (1951); Gentle v. Frederick, 234 Ala. 184, 174 So. 606 (1937).

The rule urged by plaintiffs, which would give prevailing effect to the granting clause has application only where a granting clause is sought to be contradicted by subsequent words of doubtful import. Kettler v. Gandy, 270 Ala. 494, 119 So.2d 913 (1960). As the intent of the parties here is plain and clear on the face of the instrument, this rule does not apply; additionally, the testimony of the plaintiff referred to above regarding representations made to her in the office of defendants’ attorney is inadmissible to vary that clearly expressed intent.

Further, plaintiffs assert that, even if the clause conveying their expectancy interests is not repugnant to the granting clause, they should, nevertheless, be permitted to inherit from Vivian and Vanche. To deny plaintiffs from inheriting these interests, they claim, requires the conclusion that Vanche and Vivian could not have freely transferred the fee simple interests which they acquired by the disputed deed because Vanche and Vivian would not have been permitted to allow their interests to pass to plaintiffs according to the laws of intestate succession. The present situation, it is contended, should be treated no differently than if Vanche and Vivian had died testate, devising their interests in the property, or a portion thereof, to plaintiffs.

The cases which have treated transfers of expectancies generally fall into two categories: those dealing with agreements between a prospective heir and the ancestor from whom he expects to inherit, on the one hand, and those concerning agreements between a prospective heir and a person other than the one from whom the property is expected to be derived, on the other hand. 17 A.L.R. 597; 28 A.L.R. 427; 44 A.L.R. 1465; 121 A.L.R. 450.

The term “ancestor” means anyone from whom an estate may be inherited. With reference to realty, the term embraces collaterals as well as lineals through whom an inheritance is derived. Purcell v. Sewell, 223 Ala. 73, 134 So. 476 (1931); 3 Words and Phrases 546 (1953). Thus, the conveyance by plaintiffs of their expectancy interests to Vanche and Vivian was a transfer by prospective heirs to ancestors.

The release of an expectancy share to an ancestor, fairly and freely made for a valuable consideration, excludes the heir from participation in the ancestor’s estate at the latter’s death. ■ A statute of descent and distribution operates to vest title to all the property left by the ancestor in the remaining heirs. 26A C.J.S. Descent and Distribution § 62 (1956).

This rule does not impose an unnatural restraint on subsequent alienation by the grantees when the expectancy interests are transferred to cotenants, as plaintiffs posit; the restriction is self-imposed by mutual agreement to prevent the necessity of a sale for division and to insure that total ownership of the property may be enjoyed by the contenant grantees or, eventually, the survivor of them.

Because it appears from the record that plaintiffs conveyed their expectancy interests in the lands, along with their pos-sessory interests, voluntarily and for a valuable consideration, defendants are entitled to have their bargain, fairly arrived at, kept and honored.

Accordingly, we reverse the judgment of the trial court and hold that plaintiffs effectively conveyed their expectancy interests in the lands in question by the warranty deed of 26 February 1959 and, consequently, were excluded from the distribution of interests in these lands from the estates of Vivian and Vanche, upon their respective deaths. Owning no interest in the property plaintiffs are not entitled to a sale for division. The judgment below is due to be reversed and judgment entered here in accord with this opinion.

REVERSED AND RENDERED.

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


author: HOLMES, Judge.

text:
    Larry Wayne TERRY v. Deidra C. FRISBEE.
    Civ. 2607.
    Court of Civil Appeals of Alabama.
    May 6, 1981.
    Rehearing Denied June 3, 1981.

      Samuel Maples of Corretti & Newsom, Birmingham, for appellant.
    Norman G. Winston of Winston & Winston, Birmingham, for appellee.
   HOLMES, Judge.

Frisbee sued Terry on a check. The District Court of Jefferson County entered a default judgment in favor of Frisbee. Some five months after the entry of judgment Terry filed a rule 60(b), ARCP, motion to set aside the default judgment. The district court, after a hearing, denied the rule 60(b) motion. Terry then appealed directly to this court.

Frisbee filed a motion to dismiss the appeal, contending that Terry’s appeal from the district court’s denial of the rule 60(b) motion does not lie in this court. We agree and find that this appeal is due to be dismissed.

Section 12-12-71, Code of Ala.1975, provides:

Except as provided in section 12-12-72 and in subsection (e) of section 12-15-120, all appeals from final judgments of the district court shall be to the circuit court for trial de novo.

The denial of a rule 60(b) motion is a final, appealable order. Woods v. Hauser Realty Co., Ala.Civ.App., 366 So.2d 731 (1979); Wilger v. Dept. of Pensions & Security, Ala.Civ.App., 343 So.2d 529 (1977). Therefore, we find that the denial of a rule 60(b) motion by a district court is a final order or judgment which, pursuant to § 12-12-71, must on its face be appealed to the circuit court. See, Neal v. Wilson Lumber Co., Civ. 2492 (Ala.Civ.App., April 8, 1981).

However, § 12-12-71 provides two exceptions to the above rule. These exceptions are found in § 12-12-72, Code of Ala. 1975, and § 12-15-120, Code of Ala. 1975. We find neither exception applicable to the instant case.

Section 12-15-120 applies where the case was initially transferred from the district court to the circuit court. There was no transfer in this case.

Section 12-12-72 provides:

Appeals shall be directly to the appropriate appellate court if:
(1) An adequate record or stipulation of facts is available and the right to a jury trial is waived by all parties entitled thereto; or
(2) The parties stipulate that only questions of law are involved and the district court certifies the questions.

Section 12-12-72(1) is applicable in instances where the case is of such nature as to give the parties the right to a jury trial and neither party wishes to avail himself of that right on appeal to the circuit court. In such instances where an adequate record or stipulation of facts is available, the circuit court may be bypassed by a direct appeal to the appellate courts. However, in the instant case, neither party is entitled to a jury trial. The granting or denial of a rule 60(b) motion is a decision for the trial judge. Rule 60(b), ARCP. Therefore, we find that this case does not fall within the exception provided by § 12-12-72(1)

The exception found in § 12-12-72(2) has two requirements: (1) the parties must stipulate that only questions of law are involved, and (2) the district court must certify those questions. In the instant case, there is neither a stipulation by the parties nor a certification of questions by the district court. Section 12-12-72(2) is, therefore, inapplicable.

For the reasons stated above, we find that this appeal does not lie in this court.

The appeal is due to be dismissed.

APPEAL DISMISSED.

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


author: SHORES, Justice.

text:
    Ex Parte Larry Wayne TERRY. (Re Larry Wayne TERRY v. Deidra C. FRISBEE).
    80-646.
    Supreme Court of Alabama.
    July 24, 1981.
   SHORES, Justice.

WRIT DENIED — NO OPINION.

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


author: BRADLEY, Judge.

text:
    Stephen Wesley KNIGHT v. Kathy Sue KNIGHT.
    Civ. 2651.
    Court of Civil Appeals of Alabama.
    Sept. 2, 1981.
    Charles Wagner, Birmingham, for appellant.
    Samuel L. Masdon of Manasco & Masdon, Haleyville, for appellee.
   BRADLEY, Judge.

This appeal is from an order overruling a Rule 59(e) A.R.C.P. motion in a divorce case.

The parties to this proceeding were divorced by the trial court on October 3, 1980 and the court ordered that a 1977 Ford pickup truck that apparently belonged to the husband be sold and the proceeds held in trust for the benefit of the parties’ minor child. The husband filed a Rule 59(e) motion to alter this aspect of the divorce decree on the ground that he did not own the truck and the court was, therefore, without jurisdiction to order it to be sold.

The trial court’s order overruling the motion reflects that a hearing was held on this motion at which the parties and other witnesses appeared and testified in open court. There is, however, no transcript of the testimony of these witnesses incorporated in the record on appeal. The only evidence in the record that appears to have been a part of the hearing on the motion is a copy of an instrument entered into by Eugene Knight, the father of Stephen Knight, with the First National Bank of Jasper, Alabama indicating that Eugene Knight had borrowed $500 and had given as collateral for the loan a 1977 Ford vehicle, a copy of a bill of sale of a 1977 Ford truck from Stephen Knight to Eugene Knight on April 22,1980, and a certificate of title to a 1977 Ford truck issued to Eugene Knight and showing that the lienholder, the First National Bank of Jasper, was released on November 11, 1980.

Where the trial court has heard testimony which is not a part of the record on appeal and where it appears that such testimony may have influenced the court’s decision, such testimony is conclusively presumed to support the finding of the trial court and such finding will not be disturbed on appeal. Davenport v. Davenport, 356 So.2d 205 (Ala.Civ.App.1978).

Since it is clear that the trial court heard testimony relating to the ownership» of the vehicle in question which is not before this court, we have no alternative but to affirm the trial court’s decision.

AFFIRMED.

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


text:
    KEMP’S WRECKER SERVICE v. GRASSLAND SOD COMPANY, INC.
    Civ. 2644.
    Court of Civil Appeals of Alabama.
    Sept. 9, 1981.

      E. Ray Large and Joseph L. Boohaker, Birmingham, for appellant.
    Richard Vincent, Birmingham, for appel-lee.
   HOLMES, Judge.

This is a conversion case.

Grassland Sod Company, Inc., sued Kemp’s Wrecker Service, claiming damages for conversion of a mobile home. Kemp counterclaimed to recover towing and storage fees.

The trial court entered a directed verdict against Kemp on its counterclaim and Grassland’s conversion claim was submitted to the jury. The jury awarded $9,944 as damages. Kemp moved for a new trial. This motion was denied. Kemp also filed a rule 60(b), A.R.C.P., motion to set aside the judgment. This motion was denied.

Kemp appeals from the denial of its motion for new trial and from the denial of its rule 60(b) motion to set aside the judgment.

We find no error and affirm.

Kemp raises numerous issues on appeal. These issues will be presented and discussed below.

Viewing the record with the attendant presumption accorded the trial court reveals the following:

Grassland Sod Company was a Florida corporation. The corporation was dissolved by operation of Florida law on September 3, 1976. The instant case was commenced on January 5, 1977.

Doyle Watkins was a part owner, director and employee of Grassland. Charles Williams was employed by Grassland as an assistant manager.

Some time in 1975 Williams purchased a mobile home. In late 1975 he had this mobile home removed from Florida to Winston County, Alabama. A short time thereafter Watkins, without the knowledge or consent of Williams, had the mobile home moved to Jefferson County, Alabama.

Williams, claiming ownership of the mobile home, initiated criminal proceedings against Watkins. Pursuant to these proceedings, a search warrant was duly issued and the Sheriff’s Department of Jefferson County acting under that warrant seized the mobile home.

At the request of the sheriff’s department Kemp’s Wrecker Service transported the mobile home to its storage lot. There was evidence that Kemp was under an ongoing contract with the sheriff’s department to provide towing and storage services.

Grassland was not a party to this criminal proceeding and the charges against Watkins were eventually dismissed.

Kemp retained possession of the mobile home and was in possession of it in 1980, the time of trial. There was evidence that Kemp used the mobile home to store auto parts and that Kemp allowed another business to use the mobile home as its office for a short period of time. There was also evidence that the mobile home was damaged and allowed to deteriorate while in Kemp’s possession.

' At trial, Watkins and other witnesses testified to the effect that Williams, while assistant manager of Grassland, purchased the mobile home using corporate assets and that this purchase was made without the knowledge or consent of the corporation and its officers. The witnesses also testified that a contract showing that Grassland’s assets were used to purchase the mobile home and a certificate of title showing a transfer of title from the mobile home’s previous owner were found in Grassland’s files. The certificate of title was admitted into evidence.

Watkins testified that the discovery of Grassland’s ownership prompted him to have the mobile home moved from Winston County to Jefferson County.

Kemp, through able counsel, first contends that Grassland failed to establish that it was the owner of the mobile home.

To recover for conversion, the plaintiff must have either a general or special title to the property in question and possession or an immediate right of possession. Whitman v. Mashburn, 286 Ala. 209, 238 So.2d 709 (1970); Jones v. Americar, Inc., 283 Ala. 638, 219 So.2d 893 (1969).

Specifically, Kemp contends that Grassland did not prove its title to the mobile home because it failed to produce a valid Florida certificate of title. In short, Kemp, through able and distinguished counsel, argues that valid title can only be acquired by obtaining a Florida certificate of title and that Grassland failed to show that it had done so.

However, under Florida law, the purchaser of a mobile home is not required to rely solely on his possession of a certificate of title to establish his ownership of the mobile home. Harmony Homes, Inc. v. Zeit, 260 So.2d 218 (Fla.App.1972); Platt v. Dreska, 79 So.2d 670 (Fla.1955).

As indicated above, there was evidence from which the jury could reasonably conclude that Grassland, for conversion purposes, was the owner of the mobile home. Specifically, Watkins and other witnesses testified that Williams used corporate assets to purchase the mobile home and the certificate of title admitted into evidence showed a transfer of title from the mobile home’s previous owner and a notarized application for a certificate of title executed by Grassland.

Kemp next contends that since the sheriff’s department seized the mobile home under a duly issued search warrant, it is immune from civil liability under § 36-22-7, Code of Ala. 1975, and that since Kemp acted under the direction of the sheriff’s department, it is likewise immune.

While § 36-22-7 does grant immunity to the sheriff in some instances, it does not do so when the property seized belongs to a person who is not a party to the proceedings which gave rise to the order of seizure. Adamson v. Noble, 137 Ala. 668, 35 So. 139 (1903). See Picket v. Richardson, 223 Ala. 683, 138 So. 274 (1931).

As stated above, Grassland was not a party to the criminal proceedings against Watkins. Since the property of a stranger to those proceedings was seized, § 36-22-7 does not confer immunity upon the sheriff nor upon Kemp, the sheriff’s agent. Adamson v. Noble, supra.

Kemp next contends that since the mobile home was seized pursuant to a duly issued search warrant, there was no wrongful taking. Kemp argues a wrongful taking is a necessary element of the tort of conversion.

A conversion consists either in the appropriation of the plaintiff’s property to the defendant’s own use and beneficial enjoyment, or in the destruction, or in exercising dominion over it, in exclusion or defiance of the plaintiff’s right, or in withholding possession from the plaintiff, under a claim of title inconsistent with his own. Greer v. Car]l Johnson Motor Co., 269 Ala. 617, 114 So.2d 907 (1959); 18A Ala. Digest, Trover & Conversion Keys 1 and 10. In short, there need not be a wrongful taking as Kemp uses the term.

In the instant case, there was evidence from which the jury could have reasonably found that Kemp appropriated the mobile home to its own use after taking. Specifically, there was evidence that Kemp treated the mobile home as its own property by using it as a storage area for auto parts. Kemp also allowed another business to use the mobile home as its office. The jury could have reasonably found conversion consisted in Kemp’s act of appropriating the property to its own use after towing the mobile home to the garage. Russell-Vaughn Ford, Inc. v. Rouse, 281 Ala. 567, 206 So.2d 371 (1968).

There was evidence from which the jury could have determined that Kemp’s use of the property resulted in its destruction. The testimony and exhibits presented by Grassland indicate the appliances, fixtures and frame were damaged, and the plumbing had been removed. The jury could have found from this evidence that Kemp destroyed the property after taking possession of the mobile home. The destruction of property by a defendant amounts to conversion. See Long-Lewis Hardware Co. v. Absten, 235 Ala. 599, 180 So. 261 (1938).

In sum, there was evidence to support the jury’s finding of conversion through Kemp’s acts of appropriating the mobile home to its own after taking and in the destruction of the property after it was in Kemp’s possession.

The question of demand was not discussed by counsel in brief, but was brought to this court’s attention in oral argument. Through able counsel, Kemp contends there can be no conversion because Grassland never made a demand for the mobile home. We disagree. Where there has been a wrongful conversion of property, a demand for surrender of such property is irrelevant. Universal C.I.T. Credit Corp. v. Weeks, 46 Ala.App. 372, 242 So.2d 682 (1970). A demand is only necessary in those cases, unlike the instant action, where the property has come into the possession of the defendant by consent of the plaintiff, and the plaintiff relies on the wrongful detention of the property by the defendant to sustain his action. Clay County Abstract Co. v. McKay, 226 Ala. 394, 147 So. 407 (1933).

As noted above, there was evidence from which the jury could have concluded that Kemp converted the property to its own use after taking possession. Thus, a demand for the mobile home by Grassland was not necessary where there was a wrongful assumption of the property by Kemp. Dixie v. Harrison, 163 Ala. 304, 50 So. 284 (1909). There was also evidence to support the jury’s findings that Kemp converted the property by allowing it to be destroyed after it took possession of the mobile home. No demand is necessary where there has been such a destruction of the property. Cothran v. Moore, 1 Ala. 423 (1840). Therefore, the absence of demand on the part of Grassland did not preclude the jury from finding that there had been a conversion of the mobile home by Kemp after taking.

Kemp next contends the trial court erred in excluding from evidence the search warrant and the affidavit for the search warrant. We find that any error in this regard would be harmless. The fact to be proven, namely the existence of the warrant, was established through the admission of other evidence. Rust Engineering Co. v. State, 286 Ala. 589, 243 So.2d 695 (1971).

Kemp finally contends the trial court erred in entering a directed verdict against it on its counterclaim. In that counterclaim, Kemp sought to recover towing and storage fees.

A motion for directed verdict may be granted where there is no evidence tending to support the plaintiff’s case. United States Fidelity & Guaranty Co. v. Jones, 356 So.2d 596 (Ala.1977).

In the instant case, there was no evidence showing that Grassland was liable to Kemp for the payment of the towing and storage fees. On the contrary, there was evidence that Kemp was acting pursuant to an ongoing contract with the sheriff’s department when it moved and stored the mobile home.

We find no error in this regard.

As indicated above, Kemp also appeals from the denial of its rule 60(b), A.R. C.P., motion to set aside the judgment.

The record reveals that Kemp after filing its notice of appeal sought the permission of this court to file a rule 60(b) motion. That permission was granted.

In its motion, Kemp established that the Grassland corporation was dissolved by operation of Florida law on September 3, 1976; that Florida law allows a dissolved corporation to continue in existence for three years for the purpose of prosecuting any causes of action it may have; and that Grassland’s three year period of continuation terminated on September 3, 1979.

Grassland’s complaint in the instant case was filed on January 5, 1977 but judgment was not entered until 1980. Kemp through counsel contends that Grassland’s cause of action abated on September 3, 1979, at the termination of the three year period and that the judgment was therefore void.

The trial court in denying Kemp’s motion found that the issue was governed by Florida law and that under Florida law, so long as the action is commenced within the three year period following the dissolution of the corporation, the termination of the three year period has no effect on the litigation.

After reviewing Florida law, specifically Florida Statutes, § 607.297 (1977) and Haitian Ventures, Inc. v. Wisniewski, 376 So.2d 424 (Fla.App.1979), we agree with the trial court and find that it did not err in denying Kemp’s rule 60(b) motion to set aside in judgment. Put another way, Grassland filed its complaint against Kemp within the three year time period allowed by Florida law and the termination of that period did not abate Grassland’s cause of action.

For the reasons set forth above, the case is due to be affirmed.

AFFIRMED.

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


author: PER CURIAM.

text:
    Joseph BRAYTON, Appellant, v. STATE of Florida, Appellee.
    No. 79-2322.
    District Court of Appeal of Florida, Fourth District.
    April 15, 1981.
    Rehearing Denied Oct. 28, 1981.
    Richard L. Jorandby, Public Defender, and Bruce Zeidel, West Palm Beach, for appellant.
    Jim Smith, Atty. Gen., Tallahassee, and Max Rudmann, Asst. Atty. Gen., West Palm Beach, for appellee.
   PER CURIAM.

Reversed with directions that appellant be granted a new trial in accordance with the Supreme Court’s decision in Tascano v. State, 393 So.2d 540 (Fla.1980), rehearing denied February 27, 1981.

BERANEK, HERSEY and HURLEY, JJ., concur.


author: DAUKSCH, Chief Judge. PER CURIAM.

text:
    Dennis P. DILLON, Jr., a minor, by and through Dennis P. Dillon and Aurelia M. Dillon, his parents, etc., Appellants, v. Frederick W. CHAPMAN and Liberty Mutual Insurance Company, etc., Appellees.
    No. 80-853.
    District Court of Appeal of Florida, Fifth District.
    May 13, 1981.
    Rehearing Denied July 7, 1981.
    Motion to Stay Denied Aug. 19, 1981.

      Sammy Cacciatore and James A. Sisser-son of Nance, Cacciatore & Sisserson, Melbourne, for appellants.
    Janet R. DeLaura of Smalbein, Eubank, Johnson, Rosier & Bussey, P.A., Rockledge, for appellees.
    Larry Klein, West Palm Beach, for ami-cus curiae The Academy of Florida Trial Lawyers.
   DAUKSCH, Chief Judge.

This is an appeal from an order which found sections 627.737 et seq., Florida Statutes (1979), (the 1979 no-fault act) to be constitutional, granted defendants’ Motion for Judgment on the Pleadings and, in the alternative, granted defendants’ Motion to Dismiss with Prejudice. Defendants’ motions were granted because plaintiffs’ pleadings did not meet the tort threshold required by section 627.737, Florida Statutes (1979), in order to sue for plaintiffs’ damages.

Plaintiffs sued for damages arising from severe and significant injuries sustained by Dennis P. Dillon, Jr., a minor, in an automobile accident. Plaintiffs’ pleadings stated that Dillon was not permanently injured, did not sustain permanent and significant scarring and/or disfigurement, had not incurred a significant and permanent loss of a bodily function, and had not suffered an aggravation of a pre-existing condition. The pleadings also stated that Dillon sustained a loss of earning capacity while recovering from the accident and had incurred medical expenses in excess of $1,000.00.

Plaintiffs advance three arguments in support of their contention that the trial court erred in finding various provisions of the no-fault act to be constitutional: (1) the provisions deny their constitutional right of access to the courts; (2) the provisions violate their due process rights as guaranteed by the Florida Constitution and the Fourteenth Amendment to the United States Constitution, and (3) the provisions violate their rights to equal protection under the laws. Although we are well aware of our supreme court’s opinions concerning our no-fault act in Lasky v. State Farm Insurance Company, 296 So.2d 9 (Fla.1974), and Kluger v. White, 281 So.2d 1 (Fla.1973), we find that various legislative changes have substantially altered this law so as to cause it to be violative of plaintiffs’ due process rights and their right of access to Florida courts for redress of injuries.

DENIAL OF RIGHT OF ACCESS TO THE COURTS

The complaint in the instant case alleged Dillon had experienced extreme mental pain and physical suffering, intangible injuries for which damages have historically (before “no-fault”) been recoverable through an action in tort. However, since this complaint clearly showed that the plaintiffs did not meet the threshold required by section 627.737(2), Florida Statutes (1979), the trial court found plaintiffs to be precluded from maintaining their action for redress of Dillon’s injuries.

Florida’s Constitution contains a guarantee of “redress of any injury”:

The courts shall be open; to every person for redress of any injury, and justice shall be administered without sale, denial or delay.

Art. I, sec. 21, Fla.Const. However, the guarantee contained within this provision is not absolute. Rather, this provision has been interpreted as meaning that the Legislature may only abolish the right of access to the courts for redress of a particular injury if it provides a reasonable alternative, unless it shows “an overpowering public necessity for the abolishment of such right, and no alternative method of meeting such public necessity can be shown.” Kluger v. White, 281 So.2d 1, 4 (Fla.1973).

Since the Legislature has abolished plaintiffs’ right for redress for Dillon’s injuries of pain and suffering, this court must consider whether the 1979 no-fault act provides a reasonable alternative or whether the Legislature has shown an overpowering public necessity for the abolishment of this right with no alternate method being available to meet this necessity. See Lasky v. State Farm Insurance Company, 296 So.2d 9 (Fla.1974).

In Lasky, our supreme court found that the denial of recovery to certain injured persons for pain and suffering under the 1972 no-fault act did not deny them their right of access because the Legislature had established a reasonable alternative. The court first noted that the exemption for tort liability only applied to owners of motor vehicles who maintained security as required by the no-fault act. Sec. 627.737, Fla.Stat. (1971). The court then found that the security maintained by these owners, together with the provisions of the 1972 no-fault act, provided a reasonable alternative to traditional actions for pain and suffering because there was only a limited class of cases barred from recovery, the injured party was assured of recovery of all his major and salient economic losses even when he was at fault, there would be a speedy payment by the insured’s own insurer of medical costs and lost wages, and the injured party himself was immune from suits for pain and suffering of the other parties to an accident to the limited extent provided by the no-fault act.

Amendments to the 1972 act have removed some of the very provisions which the Lasky court relied upon in finding a reasonable alternative. The change most inimical to any finding that the 1979 act constitutes a reasonable alternative is the provision which only allows an injured party to collect part of his medical expenses and lost income. Sec. 627.736(1), Fla.Stat. (1979). When the Lasky court considered the 1972 no-fault act, it provided 100% recovery for medical expenses and 85% or 100% recovery for lost income, less deductibles. Chapter 77 — 468, Laws of Florida, amended these recovery provisions and the present no-fault act allows an injured party to only recover 80% of his medical expenses and either 60% or 80% of his lost income. However, the injured party may recover the remaining percentage of his expenses through litigation because section 627.-737(1), Florida Statutes (1979), only grants an exemption from tort liability for damages “to the extent that the benefits described in s. 627.736(1) are payable for such injury, or would be payable but for any exclusion or deductible authorized by ss. 627.730-627.741 _”

Another change which diminishes from the adequacy of the 1979 no-fault act is the increase of the allowable deductibles. Under the 1972 act, the required personal injury protection (PIP) coverage was $5,000.00 with a maximum deductible of $1,000.00. Sec. 627.739(1), Fla.Stat. (1971). The 1979 no-fault act requires PIP coverage of $10,-000.00 but the maximum allowable deductible is $8,000.00. Sec. 627.739(1), Fla.Stat. (1979). This change means that the 1979 act allows for decreased PIP coverage.

These changes to sections 627.736, 627.737 and 627.739 mean that these provisions no longer provide a reasonable alternative for redress of injuries suffered in automobile accidents. Injured parties no longer receive full compensation for their expenses or lost income. Increased deductibles result in decreased PIP coverage and diminish the likelihood that an injured party will promptly recover his major out-of-pocket expenses arising from the accident. Injured parties are now able and are being forced to resort to the courts to recover that portion of their damages not payable by insurance carriers by reason of the no-fault act — remaining uncovered expenses, lost income and deductibles. One of the most strident arguments in favor of no-fault type insurance legislation has been that the multitude of suits unnecessarily crowds the courts with injured persons’ lawsuits. This legislation does not reduce the number of lawsuits, then, but merely reduces the amount to be sued for. Of course, we cannot ignore the very practical consideration that some lawsuits will not be filed because they are not “worth it” but that is certainly not the way our society views redress for injured persons; the constitution and our very makeup requires every person to be redressed for wrongs against him. We find that these sections thereby violate plaintiffs’ constitutional right of access to Florida courts for redress of their injuries.

There remains the question of whether the Legislature has shown an overpowering public necessity and no alternative method of meeting this necessity which requires the abolishment of plaintiffs’ right of access to the courts for redress of injuries. See Kluger, 281 So.2d at 4. We find that the Legislature has not shown any public necessity different from that which was present when the Lasky court considered the 1972 no-fault act. The provisions upheld in La-sky thereby constitute an alternative method for meeting such necessity.

DUE PROCESS

We also find that sections 627.736(1), 627.737(1), and 627.739(1), Florida Statutes (1979), cause plaintiffs’ due process rights to be violated and are thus unconstitutional. The provisions of these sections do not bear a reasonable relationship to permissible legislative objectives and are discriminatory and oppressive.

The Lasky court found the 1972 no-fault act to be reasonably related to a number of permissible legislative objectives: (1) a lessening of the congestion of the court system with a reduction in concomitant delays in the court calendars; (2) assurance that persons injured in vehicular accidents would receive some economic aid in meeting medical expenses and the like, in order not to drive injured persons into dire financial circumstances with the possibility of swelling the public relief rolls; (3) correcting the traditional tort system of reparations which supposedly led to inequalities of recovery; (4) modifying the tort system of reparations which was unduly slow and inefficient; (5) correcting the pre-existing automobile insurance system which was supposedly unduly costly; and (6) correcting the situation in which the pressing necessity of paying medical bills often forced an injured party to accept an unduly small settlement for his claim.

The changes to sections 627,736, 627.737 and 627.739 noted above cause the 1979 no-fault act to no longer be reasonably related to several of the permissible legislative objectives noted in Lasky: (1) injured parties are able to initiate suits for expenses not payable by an insurer thereby obviating the objective of lessening court congestion; (2) the inability of injured parties to receive full compensation and the larger amounts of the deductibles increase the likelihood that injured parties will be forced into dire financial circumstances; (3) the provisions enabling injured parties to sue for that portion of their medical expenses and lost income not payable by an insurer causes it to be inordinately expensive to recover damages for these injuries; and (4) the provisions precluding full compensation for medical expenses and lost income but enabling suit for part of these damages establishes a slow and inefficient tort system for reparations.

The increase of the permissible amount deductible as provided by section 627.739(1), Florida Statutes (1979), is also discriminatory and oppressive. Poor persons are now able to obtain less costly insurance coverage by opting for the maximum deductible of $8,000.00. If these persons are in an accident, they would be least likely to be able to afford to pay their medical expenses and at the same time would be the most affected by their loss of income. Yet, if they have the maximum deductible, their recovery under the 1979 no-fault act could be negligible. This situation would drive these poor persons into dire financial circumstances with the possibility of swelling the public relief rolls.

EQUAL PROTECTION

The plaintiffs also contend that the threshold provisions of the 1979 no-fault act requiring a permanent injury violate their constitutional right to equal protection. Under the 1972 no-fault act an injured party was able to bring suit in tort for pain and suffering in instances where the benefits for medical expenses were greater than $1,000.00. In order to recover for pain and suffering under the 1979 no-fault act an injured party must show one of the following:

(a) Significant and permanent loss of an important bodily function.
(b) Permanent injury within a reasonable degree of medical probability, other than scarring or disfigurement.
(c) Significant and permanent scarring or disfigurement.
(d) Death.

Sec. 627.737(2), Fla.Stat. (1979).

It is argued that this threshold classification bears a reasonable relationship to a permissible legislative purpose; that the legislative purpose is to decrease court congestion and reduce the concomitant delays in court calendars. A reasonable relationship does not require perfection, it only requires a set of facts which reasonably may be conceived to justify it. In re Estate of Greenberg, 390 So.2d 40 (Fla.1980). The supreme court in Lasky found:

It is not arbitrary to differentiate between persons permanently injured and those who will recover from their injuries insofar as allowing only the former group to recover . . . for pain and suffering. Rather, this is a reasonable classification allowing those most likely to incur substantial and prolonged pain to recover damages to recompense them, while not granting such right of recovery to those substantially less likely to incur any prolonged pain.

296 So.2d at 19. We must follow this declaration of our supreme court in Lasky supporting the conclusion that the threshold provisions of the 1979 no-fault act do not deny plaintiffs their right to equal protection.

Accordingly, the order of the trial court which found sections 627.737 and 627.739, Florida Statutes (1979), constitutional, granting defendants’ summary judgment and in the alternative granting defendants’ motion to dismiss is reversed and the cause remanded for. further proceedings.

REVERSED AND REMANDED.

FRANK D. UPCHURCH, Jr., and CO-WART, JJ., concur.

ON MOTION FOR STAY

PER CURIAM.

Appellees have filed a Motion to Stay the issuance of the mandate in this case alleging that “much judicial confusion and waste of money and legal efforts will occur” if we do not issue a stay order and the opinion in this case is later reversed. The motion alleges “Stay is warranted here to avoid conflict between and chaos among the trial courts of the Fifth District and the trial courts of sister districts within which this court’s judgment is persuasive only.”

This latter allegation is not true.

A trial court not in this district is obliged to follow the dictates of our decision until told otherwise by its own district court or the supreme court. Holmes v. Blazer Financial Services, Inc., 369 So.2d 987 (Fla. 4th DCA 1979); State v. Hayes, 333 So.2d 51 (Fla. 4th DCA 1979). See also Stanfill v. State, 384 So.2d 141 (Fla. 1980).

The Motion for Stay is denied.

DAUKSCH, C.J., FRANK D. UP-CHURCH, Jr., and COWART, JJ., concur.

      . §§ 627.730 et seq., Fla.Stat. (1971), effective January 1, 1972.

      . Injured parties who do not meet the threshold requirement of section 627.737(2), Florida Statutes (1977).

        .See sec. 627.737(1), Fla.Stat. (1977).


author: COBB, Judge.

text:
    DEAN MARTIN LEASING CO., INC., Petitioner, v. Roy E. WALLIN, Respondent.
    Case No. 81-393.
    District Court of Appeal of Florida, Fifth District.
    May 13, 1981.
    Edwin D. Davis, II, of Chanfrau & Chan-frau, Daytona Beach, for petitioner.
    No appearance for respondent.
   COBB, Judge.

The petition for writ of certiorari is denied. See City of Winter Park v. Jones, 392 So.2d 568 (Fla. 5th DCA 1981).

DAUKSCH, C. J., and FRANK D. UP-CHURCH, Jr., J., concur.


author: COWART, Judge.

text:
    SCHOOL BOARD OF MARION COUNTY, Florida, a Body Corporate, Petitioner, v. The Honorable Carven D. ANGEL, Circuit Court Judge of the Fifth Judicial Circuit in and for Marion County, Florida, Respondent.
    No. 81-534.
    District Court of Appeal of Florida, Fifth District.
    May 13, 1981.

      Gary C. Simons of Savage, Krim, Simons & Fuller, P. A., Ocala, for petitioner.
    No appearance for respondent.
   COWART, Judge.

In this original proceeding (Fla.R.App.P. 9.100(a)) for a writ of prohibition, petitioner, The School Board of Marion County, seeks to restrain the respondent trial judge from exercising jurisdiction over an action brought against the school board.

A group of citizens instituted a class action seeking to quash portions of the school board’s resolution levying a tax. The school board moved to dismiss the complaint on the ground that section 194.171, Florida Statutes (1979), provides that an action seeking to contest a tax assessment shall be dismissed unless the taxpayers involved shall have paid to the collector all taxes which the taxpayer in good faith admits to be owing. The trial judge denied the motion to dismiss. The school board now seeks to prohibit the trial court from proceeding in the matter, alleging that the trial court’s erroneous ruling on the motion of dismiss deprives it of jurisdiction.

The purpose of prohibition is for a superior court to prevent an inferior court from exceeding its jurisdiction or usurping jurisdiction over matters not within its jurisdiction. English v. McCrary, 348 So.2d 293 (Fla.1977). Prohibition is only available where no other adequate remedy, such as appeal, is available. Id. at 297. In determining whether to grant the writ, “a clear distinction is drawn between assumption of jurisdiction to which the court has no legal claim and erroneous exercise of jurisdiction with which it is invested.” Id. at 298. Therefore, the writ will lie to prevent an inferior tribunal from acting in excess of its jurisdiction, but will not be available to prevent an erroneous exercise of that jurisdiction.

Here, prohibition is improper for two reasons. First, the court’s denial of the motion to dismiss does not affect its subject matter jurisdiction over the substance of the complaint. See State ex rel. Eli Lilly and Co. v. Shields, 83 So.2d 271 (Fla.1955); State ex rel. Atlantic Paper Co. v. Herin, 80 So.2d 331 (Fla.1955) (prohibition is not available to review the correctness of a ruling on a motion to dismiss raising personal jurisdiction over the defendant); Hendry v. Lewis, 59 So.2d 854 (Fla.1952) (prohibition is not available to review granting of motion to set aside judgment); Gay v. Ogilvie, 47 So.2d 525 (Fla.1950) (denial of a motion to dismiss because of improper venue is not reviewable by prohibition). Second, prohibition is not available here because the denial of the school board’s motion to dismiss is an error properly raised on appeal.

Florida Rule of Appellate Procedure 9.130(a)(3) authorizes review of only a few designated interlocutory non-final orders. Orders denying motions to dismiss complaints are not included. An appeal after judgment is considered an adequate remedy for other ordinary reversible errors. A trial court’s jurisdiction either as to subject matter or over the person of a defendant never depends on whether a ruling it makes is correct or not. Prohibition, like certiorari, is an extraordinary remedy that is concerned with the jurisdiction or authority of the trial court to act and should not be used to circumvent the rule limiting appeals of non-final orders. The petition for writ of prohibition is

DENIED.

DAUKSCH, C. J., and ORFINGER, J., concur.

      . See The Hawaiian inn of Daytona Beach, Inc. v. Snead Const. Corp., 393 So.2d 1201 (Fla. 5th DCA 1981).