author: FAULKNER, Justice.

text:
    DICON, INC., a corp. v. The GREAT ATLANTIC & PACIFIC TEA CO., a corp.
    78-131.
    Supreme Court of Alabama.
    Feb. 22, 1980.

      Emmett R. Cox and E. Elliott Barker, Mobile, for appellant.
    James J. Duffy, Jr., John N. Leach, Jr., and William C. Barclift of Inge, Twitty, Duffy & Prince, Mobile, for appellee.
   FAULKNER, Justice.

Dicon, Inc. appeals from that portion of a judgment awarded against it to The Great Atlantic & Pacific Tea Company (A & P) wherein it was held to owe $18,324.44 plus interest for air conditioning equipment furnished and installed by A & P. We affirm.

On May 21, 1973, A & P as lessee and Vankel, Inc. as lessor executed a lease which provided for the construction of an A & P food store by Vankel as the owner of that store which was to be located in Tillman’s Corner in Mobile County. On July 9, 1973, General Construction Company as contractor entered a written agreement with Vankel whereby as a part of a larger construction project it was to build the A & P food store on Vankel’s property pursuant to plans and specifications prepared by Paul Stewart, architect. Those plans and specifications provided that the air conditioning equipment was to be furnished and installed by A & P. Shortly thereafter A & P prepared the submitted a set of general specifications and drawings for A & P supermarkets to Vankel which were approved by both parties and provided that Vankel as owner was to furnish all the air conditioning equipment to be used in the building. These general specifications stated that they were to be used for negotiating the contract between A & P and the store owner and not for construction purposes. General apparently was aware of this agreement and thereafter it and A & P entered into an oral arrangement whereby A & P would provide and install the air conditioning equipment and General would repay A & P. After partially performing its contract obligations, General defaulted and discontinued work on the project.

Pursuant to an agreement between Vankel and General’s surety, the Travelers Indemnity Company, on July 24, 1974, a construction contract between Vankel and Dicon as the completion contractor was executed. That contract provided that Dicon was to perform the uncompleted construction work described in the architect’s specifications, was not obligated to pay General’s unpaid bills, and could use without any charge such materials as were on the job site to complete the work. At the time Dicon came on the job site in August, 1974, to begin work, the air conditioning equipment was there but had not been installed. Dicon later, during the progress of the work, requested that A & P complete installation of the air conditioning equipment.

On December 31, 1974, Herman Maisel, President of Vankel, was sent an invoice by A & P for the cost of the purchase and installation of the air conditioning system in the store. A & P advised Maisel that they would not open the store until the air conditioning was paid for. Maisel guaranteed refund of payment if Dicon would not pay. Dicon was sent a copy of the invoice sent Maisel accompanied by a cover letter dated February 7, 1975.

After considerable dispute as to what amounts were owed to whom, A & P filed a complaint on May 14, 1975, claiming $29,-293.00 for materials, labor, and supplies furnished by it to defendants Dicon and General, for use in buildings on the property owned by defendant Vankel. It also claimed a lien on Vankel’s property in the above amount. After Dicon’s motion to dismiss was denied, it filed an answer containing a defense of setoff for extras if furnished to A & P in constructing the food store and a counterclaim for those extras in the amount of $16,510.65. General was never served with process.

The case was tried to a judge sitting without a jury and a directed verdict was granted for Vankel on all claims except the lien claim. The court entered findings of fact and a judgment denying A & P’s lien claim against Vankel’s property but decreeing that A & P recover from Dicon $28,-950.24 less an offset due Dicon of $7,026.82 for a balance of $21,923.42 plus interest. Dicon appeals only from that portion of the judgment concerning the air conditioning equipment.

Dicon asserts on appeal that it is not contractually responsible for payment to A & P for the air conditioning equipment furnished and installed by A & P. Specifically, Dicon complains the trial court erred in its finding of fact that Dicon acquiesced in or ratified the agreement between A & P and General regarding the furnishing and installation of the air conditioning equipment. It also argues that its agreement with Vankel expressly precluded it from any obligation to pay any of General’s unpaid debts rather than obligated it to do so as the trial judge stated.

Dicon’s construction contract with Vankel provided:

“CONSTRUCTION CONTRACT
“THIS AGREEMENT, made and executed this 24th day of July. 1974, by and between DICON, INC., a Mississippi corporation (hereafter ‘CONTRACTOR’), and VANKEL, INC., an Alabama corporation (hereafter ‘OWNER’), is as follows:
“WHEREAS, on July 9, 1973, OWNER and GENERAL CONSTRUCTION CORPORATION (hereafter ‘GENERAL’), entered into an ‘Agreement’ under the terms of which GENERAL was to construct shopping center buildings and related improvements in Mobile, Alabama, for the lump sum price of $452,740.00 according to the plans and specifications dated May 22,1973, and prepared by Paul F. Stewart, architect; and * * *
“WHEREAS, it is the intent and purpose of this agreement to set forth the terms and conditions under which CONTRACTOR will perform the contract work obligations of GENERAL under the agreement of July 9, 1973, described above.
“NOW, THEREFORE, for and in consideration of the mutual covenants and conditions set forth herein, the parties agree as follows:
“1. CONTRACTOR shall furnish and pay for all labor, material and equipment and perform the uncompleted construction work described in the plans and specifications prepared by Paul F. Stewart, architect, dated May 22, 1973, (consisting of specifications pages 1 through _ * See attached Exhibit ‘A’ and consisting of pages_), * * *
“2. In consideration for the labor, material and work to be furnished and performed by CONTRACTOR, OWNER shall pay to CONTRACTOR the sum of $345,000.00, subject to additions and deductions by change orders. The contract price set forth above does not include or obligate CONTRACTOR to pay the purported unpaid bills of GENERAL. CONTRACTOR shall have the right, without any charge .by OWNER, to use such materials as are available on the job site and the previously performed work in completing its obligations hereunder.”

The trial court in its findings of fact quoted the following language from the contract:

“WHEREAS, it is the intent and purpose of this agreement to set forth the terms and conditions under which CONTRACTOR will perform the contract work of GENERAL under the agreement of July 9, 1973, described above.”

Dicon contends that language was in the nature of a preamble to the contract, a statement of background, and that the language in Finding No. 2 that it was not obligated to pay the purported unpaid bills of General and it could use without charge any materials available on the job site when it arrived, was more pertinent. It bases this argument on language in Manchester Sawmills Co. v. A. L. Arundel Co., 197 Ala. 505, 73 So. 24 (1916), where Justice Somer-ville states “[a]ll the provisions of a contract must be construed together so as to give harmonious operation to each of them, so far as their language will reasonably permit.”

However, even if Dicon was not bound to pay for the air conditioning equipment by its contract with Vankel, this would not preclude its acquiescence in or ratification of General’s agreement with A & P regarding the air conditioning, as was also found by the trial court as a basis for its finding that Dicon was contractually responsible:

“Furthermore, the Court finds that Mr. Roger Perret, an employee of the Plaintiff, discussed the matter of the air conditioning with representatives of Dicon, and Dicon’s acquiescence in the arrangement between the Plaintiff and General amounts to a ratification of said agreement. Therefore, the Court finds that Dicon is contractually responsible to the Plaintiff for the cost and installation of the air conditioning equipment in the sum of $18,324.42.”

To the extent ratification and acquiescence are factual questions, having heard the case ore tenus, the trial court’s resolution of these issues is given a presumption of correctness and will be disturbed on appeal only if shown to be plainly erroneous or manifestly unjust. E. g., Tanner v. Winfield, 365 So.2d 651 (Ala.1978); Russell v. Russell, 361 So.2d 1053 (Ala.1978); Knighten v. Davis, 358 So.2d 1022 (Ala.1978); White v. White, 350 So.2d 326 (Ala.1977). The judgment is due to be affirmed if, under any reasonable aspect, it is supported by any credible evidence. Raidt v. Crane, 342 So.2d 358 (Ala.1977). In this case the trial court heard testimony setting forth considerably different versions of the contractual relationship between Dicon and A & P. Mr. Ramsey, President of Dicon, testified that he never told A & P or anyone at Vankel he would pay for the air conditioning equipment. Richard Tucker, Dicon’s project manager for the Tillman’s Corner store, stated that he did not agree to pay for the purchase or installation of the air conditioning equipment. He testified later, however, that somewhere down the line he learned of the General-A & P agreement but “not at the front end.” He also stated that he had some discussion with Mr. Per-rett about A & P furnishing and installing the air conditioning but could not recall the details of the conversation. Mr. Perret, A & P’s regional director of design and construction in the Southeastern Region, who was in charge of the Tillman’s Corner store on A & P’s behalf, testified that Dicon requested that A & P secure the same equipment it had furnished in Bogaloosa for the Tillman’s Corner store, as Dicon was the completion contractor in place of General on both jobs. He further stated that Dicon asked that A & P complete installation of the air conditioning equipment on the job site. A letter dated February 12, 1975, in which Mr. Herman Maisel, President of Vankel, guaranteeing payment for the air conditioning equipment if Dicon did not pay, wrote A & P stating, “I am sorry there has been a delay in getting Dicon, the contractor, to pay this bill” (concerning the air conditioning equipment) was admitted into evidence. Dicon was sent a copy of the invoice sent to Maisel and a cover letter. In view of the disputed evidence regarding whether Dicon was to pay for the air conditioning equipment, we cannot say that the trial judge who had the opportunity to hear all the testimony of the witnesses and observe their demeanor entered a judgment that was plainly erroneous or manifestly unjust.

AFFIRMED.

TORBERT, C. J., BLOODWORTH and EMBRY, JJ., and TYNER, Retired Circuit Judge sitting as Special Justice, concur.


source: Caselaw Access Project

author: EMBRY, Justice.

license: Public Domain

text:
    Carolyn NIX et al., etc. v. Walter L. HOGAN, M.D.
    78-797.
    Supreme Court of Alabama.
    Feb. 22, 1980.
    P. Russell Tarver, Birmingham, for appellants.
    Lionel L. Layden of Moore & Layden, Mobile, for appellee.
   EMBRY, Justice.

Plaintiffs, Carolyn Nix and Kenneth Nix, appeal from the dismissal of their action as to defendant, Dr. Walter L. Hogan, for failing to timely comply with an order of the trial court requiring them to file a second more definite statement of their claim. We reverse and remand.

The Issue

(1) Did the trial court err to reversal by granting Dr. Hogan’s second motion for more definite statement and by later dismissing plaintiffs’ action for failing to comply with that order?

The Facts

This action is brought under the Alabama Medical Liability Act. Dr. Walter L. Hogan, Dr. L. Steve Weinstein, Springhill Memorial Hospital, Inc., Mobile Infirmary, Inc., Dr. C. J. Lilly (added by amendment), and Dr. J. D. Lee (added by amendment) are defendants in this action. The complaint alleges that Dr. Hogan and Dr. Wein-stein negligently performed a laparoscopic tubal ligation on Carolyn Nix for the purpose of sterilization. The complaint further alleges that as a result of those two doctors’ negligence, Carolyn Nix was not sterilized and she later became pregnant. Further, that Dr. Hogan and Dr. Weinstein negligently failed to diagnose the medical fact that Carolyn Nix was pregnant and, thus, negligently ordered X-rays of her during the beginning stage of her pregnancy which proximately resulted in the unborn child being medically aborted, causing the child’s death.

Most of the defendants, including Dr. Hogan, filed motions for a more definite statement under Rule 12(e), ARCP. After the motions were granted, plaintiffs complied with the trial court’s orders requiring more definite statements to be filed.

Dr. Hogan filed a second motion for a more definite statement; the court granted that motion on 14 February 1979. In the order granting the motion, the trial court ordered the Nixes to furnish a more definite statement, giving them sixty days to comply or suffer dismissal, without prejudice, of their action as to Dr. Hogan. Before the end of the sixty day period, Dr. Hogan filed an answer to the Nixes’ complaint. Attorney for the Nixes mailed their second more definite statement on the sixtieth day from the date of the court order: on Sunday, 15 April 1979. On 17 April 1979 the trial court dismissed, without prejudice, the Nixes’ cause as to Dr. Hogan for failing to comply with the 14 February 1979 order. The circuit clerk’s office received the Nixes’ more definite statement on 18 April 1979. The statement was almost identical to the other more definite statement previously filed by the Nixes.

The Nixes’ motion to set aside the order dismissing their action as to Dr. Hogan was denied and a Rule 54(b), ARCP, final order as to Dr. Hogan’s dismissal was entered. This appeal ensued.

The Decision

The Nixes argue that the Rule 12(e), ARCP, motion for more definite statement is quite restrictive in its application and was improperly applied in this case. We agree and reverse.

Rule 12(e), ARCP, states:

“(e) Motion for More Definite Statement. If a pleading to which a responsive pleading is permitted is so vague or ambiguous that a party cannot reasonably be required to frame a responsive pleading, he may move for a more definite statement before interposing his responsive pleading. The motion shall point out the defects complained of and the details desired. If the motion is granted and the order of the court is not obeyed within 10 days after notice of the order or within such other time as the court may fix, the court may strike the pleading to which the motion was directed or make such order as it deems just.”

The Committee Comments to Rule 12 makes the following statement concerning section (e):

“Rule 12(e) provides the only remedy for a pleading thought to be vague or ambiguous. The motion it authorizes is proper only where a responsive pleading is permitted. And the motion may be granted only where it is needed to permit the moving party to prepare such a responsive pleading. The motion may not be granted in order to clarify the issues or to give the moving party information needed to prepare for trial. The bill of particulars is abolished. 5 Wright & Miller, Federal Practice and Procedure, § 1375 (1969).”

It was made known to this court during oral argument that it has become the practice of the trial courts in the Mobile Circuit to utilize the Rule 12(e) motion, as was done in this case, to clarify the issues in cases in order to control the docket. This is clearly in derogation of the principles set forth in Rule 8, ARCP. That rule states in pertinent part:

“(a) Claims for Relief. A pleading which sets forth a claim for relief, whether an original claim, counterclaim, cross-claim, or third-party claim shall contain (1) a short and plain statement of the claim showing that the pleader is entitled to relief, and (2) a demand for judgment for the relief to which he deems himself entitled. Relief in the alternative or of several different types may be demanded.
* * * * * *
“(e) Pleading to be Concise and Direct; Consistency. (1) Each averment of a pleading shall be simple, concise, and direct. No technical forms of pleading or motions are required.
* * * * * *
“(f) Construction of Pleadings. All pleadings shall be so construed as to do substantial justice.” (Emphasis added.)

This is an abuse of the Rules of Civil Procedure which cannot be permitted. The federal courts, likewise, have not allowed Rule 12(e) to be thusly utilized and abused. See generally, 2A Moore’s Federal Practice, ¶ 12.18; 5 Wright & Miller, Federal Practice and Procedure, §§ 1374-1379 (1969). See, e. g., Hodgson v. Virginia Baptist Hospital, Inc., 482 F.2d 821 (4th Cir. 1973); Mitchell v. E-Z Way Towers, Inc., 269 F.2d 126 (5th Cir. 1959).

It is clear to this court that the Nixes’ complaint, pertinent portions of which are attached as Appendix A to this opinion, met the requirements of Rule 8; certainly there could be no question that the complaint complied with Rule 8 after the Nixes filed their first more definite statement, pertinent portions of which are attached as Appendix B to this opinion. This conclusion is supported by the fact that Dr. Hogan filed an answer to their complaint. The Nixes suffered severe prejudice by the dismissal of their action as to Dr. Hogan in light of the fact the statute of limitations had run at the time of the dismissal of the action against him.

For the reasons enumerated, the judgment of the trial court must be, and is hereby, reversed, and the cause remanded for further proceedings not inconsistent with this opinion.

REVERSED AND REMANDED.

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

APPENDIX A

COMPLAINT

1.

Defendants Walter L. Hogan, M.D. and L. Steve Weinstein, M.D., are residents of Mobile County and are subject to the jurisdiction of this Court.

2.

Defendants Springhill Memorial Hospital, Inc. and Mobile Infirmary, Inc. are corporations whose principle [sic] places of business are in Mobile County and are subject to the jurisdiction of this Court.

3.

On or about April 20, 1976 defendants Walter L. Hogan, M.D. and L. Steve Wein-stein, M.D. performed a laparoscopic tubal ligation on plaintiff for purposes of sterilization.

4.

Defendants Walter L. Hogan, M.D. and L. Steve Weinstein negligently performed the laparoscopic tubal ligation in that the procedure did not render plaintiff sterile.

As the proximate cause of the negligence of defendants, plaintiff became pregnant.

k

Defendants Walter L. Hogan, M.D. and L. Steve Weinstein, M.D. further negligently failed to diagnose the medical fact that plaintiff was pregnant. Defendants negligently ordered x-rays of plaintiff taken during the beginning stage of plaintiff’s pregnancy, causing malformation of the unborn child. As the proximate cause of the negligence of defendants the unborn child was required to be medically aborted, causing its death.

6.

The negligence of defendants Walter L. Hogan, M.D. and L. Steve Weinstein, M.D. was a departure from the accepted standards of medical care in the community and as the proximate cause of this departure plaintiff Carolyn Nix was injured and the unborn child was wrongfully killed.

7.

Defendants Springhill Memorial Hospital, Inc. and Mobile Infirmary, Inc., which both rendered health care services to plaintiff before and during the tubal ligation and the giving of the x-rays, negligently provided, as corporations and by and through its agents and servants, health care to plaintiff.

8.

The negligence of defendant Springhill Memorial Hospital, Inc. and Mobile Infirmary, Inc. was a departure from accepted standards of medical care in the community and as the proximate result plaintiff was injured and the unborn child was wrongfully killed.

9.

The fictitious persons named as defendants in this action are providers of health care services whose negligent acts concurrent with those of the other defendants contributed to and were a proximate cause of the injuries to plaintiff and wrongful death of the unborn child. The negligence of the fictitious defendants was a departure from the accepted standards of medical care in the community.

WHEREFORE, plaintiffs Carolyn Nix and Kenneth Nix, father of the unborn child, demand judgment against defendants as allowed by law.

APPENDIX B

IN THE CIRCUIT COURT OF MOBILE COUNTY, STATE OF ALABAMA

CAROLYN NIX and KENNETH NIX, * As the Father of His Unborn Child,

Civil Action No. CV-78-000631

Plaintiffs,

v.

WALTER L. HOGAN, M.D., et al.,

PLAINTIFFS’ MORE DEFINITE STATEMENT TO DEFENDANT WALTER L. HOGAN, M.D.

Defendants

Pursuant to order of the Court dated May 30, 1978 plaintiffs make a more definite statement as to defendant Walter L. Hogan, M.D. as follows:

Defendant Walter L. Hogan, M.D. is a medical practitioner and physician as defined by the Alabama Medical Liability Act. On or about April 19, 1976 plaintiff Carolyn Nix was admitted to Springhill Memorial Hospital for a sterilization procedure known as a laparascopic tubal ligation. On or about April 20, 1976 this procedure was performed at the hospital by defendants Walter L. Hogan and L. Steve Weinstein, M.D. The procedure was negligently performed by the defendant physicians. As the proximate cause of their negligence plaintiff Carolyn Nix was not rendered sterile and thereafter became pregnant. Defendants Walter L. Hogan and L. Steve Weinstein were also negligent in ordering x-rays taken of Carolyn Nix during the very early stages of her pregnancy. The x-rays were harmful to the fetus and as the proximate cause of the negligence in ordering the x-rays the unborn child of plaintiffs had to be medically aborted, resulting in its wrongful death. The negligence of the defendant physicians in failing to successfully perform the tubal ligation and in administering x-rays to the body of the mother while she was pregnant was a departure from and a failure to use that degree of care, skill and diligence used by physicians generally in the community.

Plaintiff cannot make a more definite statement than above until discovery has been completed, particularly as to the specific acts and procedures of the defendant physicians in performing the laparascopic tubal ligation. When discovery is completed plaintiffs expect to amend their complaint further if - necessary to set forth the negligent acts of defendant in greater detail.

      . The pertinent portions of plaintiffs complaint are attached as Appendix A to this opinion.

      . See Appendix B for pertinent parts of the statement filed as to defendant Dr. Hogan.


author: SHORES, Justice.

text:
    Cynthia D. STREET and Robert O. Street v. CITY OF ANNISTON, d/b/a Anniston Memorial Hospital, et al. Dr. A. W. MORRIS v. CITY OF ANNISTON, d/b/a Anniston Memorial Hospital, et al.
    78-521, 78-521X.
    Supreme Court of Alabama.
    Feb. 29, 1980.

      Edward L. Hardin, Jr. and Leon Kelly, Jr., Law Offices of Edward L. Hardin, Jr., P. C., Birmingham, for appellants Street.
    Grover S. McLeod, Birmingham, for appellant Dr. A. W. Morris.
    Eugene D. Martenson of Huie, Fernam-bucq, Stewart & Smith, Birmingham, for appellee City of Anniston, etc.
    Ralph Gaines of Gaines, Cleckler &' Robbins, Talladega, for appellee Dr. Kreing Ra-tanaboul.
   SHORES, Justice.

This is a medical malpractice case. Plaintiffs Robert and Cynthia Street brought suit against Dr. A. W. Morris and the City of Anniston, d/b/a Anniston Memorial Hospital, to recover damages for injuries caused by an incorrect pathology report. In April of 1974, Ms. Street had a black mole removed and sent to Anniston Memorial Hospital for analysis. The hospital rendered a report, printed on stationery bearing Dr. Morris’s name and dated April 15, 1974, which indicated that the mole was nonmalignant. On February 12, 1978, Ms. Street had a lump removed from her right breast which proved to be a malignancy known as melanoma or “black-mole” cancer. The original slide of the tissue and mole excised in 1974 was re-examined and found to be, in fact, malignant. This, action was commenced on August 11, 1978, within six months of the date of the discovery of the melanoma, but more than four years after the erroneous pathology report was issued.

The Streets sued under Code 1975, § 6-5-480, et seq., Alabama’s Medical Liability Act, on a breach of implied contract theory. Ms. Street claimed damages for physical injuries suffered as a result of defendants’ alleged breach of contract; Mr. Street claimed damages for loss of consortium.

Subsequent to the filing of the complaint, it was discovered that Dr. A. W. Morris had ended his employment with Anniston Memorial Hospital prior to the time of the misdiagnosis. The hospital had continued to utilize his stationery, but a Dr. Kreing Ratanaboul had actually performed the pathological examination of the excised mole. The complaint was amended to add him as a party-defendant. Dr. Morris himself then brought a cross-complaint under the Medical Liability Act seeking to recover damages from the City of Anniston for injuries to his reputation caused by the City’s negligence in allowing Dr. Ratana-boul to utilize the stationery of his predecessor.

The defendants moved for summary judgment, contending that these claims were barred by any one of several arguably applicable statutes of limitations:

(1) Code 1975, § 6-5-482(a), the limitation on actions brought under the Medical Liability Act.

(2) Code 1975, § 6-2-39, which provides that actions to recover damages “wherein a principal or master is sought to be held liable for the act or conduct of his agent, servant or employee under the doctrine of respondeat superior” must be brought within one year.

(3) Code 1975, § 11-47 — 23, which requires claims against a municipality for damages arising from torts to be presented for payment within six months from accrual, and all other claims to be presented within two years.

(4)Code 1975, § 11-47-5, which requires contracts entered into by municipalities to be in writing.

The trial court granted summary judgment in favor of Anniston Memorial Hospital against the Streets and Dr. Morris, and dismissed the hospital and Dr. Ratanaboul from the action. Shortly after this appeal was filed, Ms. Street died of cancer.

We direct our attention first to the question of whether the plaintiffs’ claims are barred by Code 1975, § 6-5-482(a), of the Medical Liability Act, for if they are, consideration of the other issues raised is unnecessary.

At the time of the original misdiagnosis, Title 7, § 25(1), Code of Alabama 1940 (Recompiled 1958), the predecessor statute to our current Medical Liability Act, was in effect. It read, in pertinent part:

All actions against physicians and surgeons, and dentists for malpractice, error, mistake, or failure to cure, whether based on contract or tort, must be commenced within two years next after the act or omission or failure giving rise to the cause of action, and not afterwards. Provided that if the cause of action is not discovered and could not reasonably have been discovered within such period, then the action may be commenced within six months from the date of such discovery or the date of discovery of facts which would reasonably lead to such discovery, whichever is earlier, provided further that in no event may the action be commenced more than six years after such act [Emphasis added.]

Under this statute, then, the Streets had six years in which to discover and bring this cause of action. However, in 1975;, Code 1975, § 6-5-480, et seq., our current Medical Liability Act, was enacted. Section 6-5-482(a) differs from its predecessor in two pertinent regards: The six-year limit on suits for undiscovered injuries was shortened to four years, and the following language was added: “except, that an error, mistake, act, omission or failure to cure giving rise to a claim which occurred before September 23, 1975, shall not in any event be barred until the expiration of one year from such date.” Because this action was commenced on August 11, 1978, more than four years after the issuance of the erroneous pathology report and more than one year after September 23, 1975, it is barred if Code 1975, § 6-54l82(a), governs rather than Title 7, § 25(1). This, then is our threshold question: Which statute of limitations applies, that in effect at the time the cause of action arose, or that in effect at the time the action was brought?

For the reasons discussed herein, we conclude that the legislature, by enacting Code 1975, § 6-5-482(a), intended to shorten the time period within which causes of action already in existence at the time of enactment could be brought, and that the plaintiffs’ suits are, therefore, barred.

It is true as a general rule that statutes will not be construed to have retrospective effect unless the language of the statute expressly indicates the legislature so intended. Baker v. Baxley, 348 So.2d 468 (Ala. 1977); Mobile Housing Board v. Cross, 285 Ala. 94, 229 So.2d 485 (1969). “Remedial statutes,” or those relating to remedies or modes of procedure, which do not create new rights or take away vested ones, are not within the legal conception of “retrospective laws,” however, and do operate retrospectively, in the absence of language clearly showing a contrary intention. Sills v. Sills, 246 Ala. 165, 19 So.2d 521 (1944); Harlan v. State, 31 Ala.App. 478, 18 So.2d 744 (1947); A statute of limitations has generally been viewed as a remedial statute, Henry and Wife v. Thorpe, 14 Ala. 103, (1848), and the statute of limitations in effect at the time the suit is filed, as opposed to one in effect at the time of the accrual of the cause of action, has been held to apply unless the later statute clearly states the contrary. Webster v. Talley, 251 Ala. 336, 37 So.2d 190 (1948); Doe ex dem. Trotter v. Moog, 150 Ala. 460, 43 So. 710 (1907). This is true whether the later statute extends or limits the time within which a cause of action may be brought, for it has frequently been held that the legislature can establish a new limitation where none existed before and make it applicable to a cause of action against which there was no such statute when the right was created, and it may also so change an existing statute and shorten periods of limitation, provided a reasonable time is allowed for the action to be brought. National Surety Co. v. Morgan, 20 Ala.App. 42, 100 So. 460, judgment reversed, Ex parte Morgan, 211 Ala. 360, 100 So. 462, (1924); Cronheim v. Loveman, 225 Ala. 199, 142 So. 550 (1932).

The question, then, becomes one of legislative intent. Was Code 1975, § 6-5-482, intended by the legislature to apply to causes of action which arose prior to its enactment, but were not brought until after? We do not approach this question for the first time. In United States Veterans Administration v. Walker, 356 So.2d 631 Ala. (1978), this Court was asked to determine whether the one-year grace period provided for in Code 1975, § 6-5^482(a), acted to extend the two-year limitations period for discovered actions which would otherwise have been barred by Title 7, § 25(1). We found no legislative intent to distinguish between discovered and undiscovered causes of action relative to the one-year grace period, and held that where Code 1975, § 6-5-482(a), was enacted prior to the running of the two-year limit on a discovered cause of action, the limit was extended by the grace period so that the action would not be barred until September 23, 1976.

Although Walker specifically held only that the grace period provision of Code 1975, § 6-5-482(a), superseded Title 7, § 25(1), and lengthened the limitations period for causes of action which § 25(1) would have cut off, its reasoning supports the conclusion that Code 1975, § 6-5-482(a), was intended to repeal § 25(1) in its entirety, even where that would shorten the limitations period. Walker was based in part on Henry and Wife v. Thorpe, supra, which it quoted extensively, including the following comment:

[T]he best reasoned discussions, maintain that it is competent for the legislature to modify the terms of prescription at pleasure, and where the prescription has not been completed when the law was changed, the past shall be effaced and the substituted law shall determine the time that bars a recovery. It is certainly allowable, and perhaps would be altogether just that effect should be given to the time past, whenever a change is made in the statute of limitations, so that the term may not be protracted; but if no such provision is made in the new law, we cannot perceive by what authority the courts can give to both statutes a proportional operation. The latter, if not an express, will operate an implied repeal of the former, and thus destroy its effect in toto. .
True, the enlarging or lengthening of the term may introduce some seeming incongruities, but these, according to a modification of facts, affect the plaintiff and defendant about equally. Walker, page 633.

Further, if Code 1975, § 6-5-482, were not intended to shorten the period for bringing an already existing cause of action, the one-year grace period would be unnecessary, for it is only where a newly enacted statute of limitations is intended to apply to causes of action existing at the time of its enactment that a reasonable period of time after enactment must be allowed within which such actions may be brought. In recognition of this, some states have adopted a rule that a statute of limitations which permits a reasonable time in which existing causes of action may be sued on its deemed retroactive. 53 C.J.S. Limitations of Actions § 4, and cases gathered under footnote 96, page 914. Therefore, because Code 1975, § 6-5-482(a), was intended by the legislature to limit the time within which causes of' action existing at the time of its enactment could be brought to four years, or one year from enactment, whichever is greater, plaintiffs’ suits are barred.

Plaintiffs contend, however, that Code 1975, § 6-5-482(a), violates Art. IV § 45 of Ala.Const., as interpreted in Bagby Elevator and Electric Co., Inc. v. McBride, 292 Ala. 191, 291 So.2d 306 (1974). Art. IV, § 45, provides that: “Each law shall contain but one subject, which shall be clearly expressed in its title . . . .” Bagby held that a statute which required that actions against architects and builders based on damage arising from acts or omissions in planning or construction of improvements on real property be brought within four years of the act or omission, regardless of when injury occurred, violated § 45. The Court held that the title to the statute indicated that it was a traditional statute of limitations; however, by starting the running of the statute from the time of the negligent act rather than the time of inju‘ry, the statute also operated to abolish substantive causes of action before their accrual. Thus, it was quite possible for a plaintiff to be injured by the collapse of an edifice, for example, years after the tolling of the statute. This is contrary to the usual rule, which commences the running of the statute of limitations from the accrual of the cause of action, which, in tort claims, occurs on the date of injury. Garrett v. Raytheon Co., 368 So.2d 516 (Ala.1979), Brotherhood of Locomotive Firemen & Enginemen v. Hammett, 273 Ala. 397, 140 So.2d 832 (1962). Because the title to the statute did not clearly indicate that it was to operate as a grant of immunity as well as a statute of limitations, it did not pass muster under § 45 of the Alabama Constitution.

Code 1975, § 6-5-482(a), is similarly titled “a statute of limitations,” and commences the running of the statute from the time of the act or omission giving rise to the cause of action. It does not, however, act as a grant of immunity; our case law has established that, in malpractice actions, legal injury occurs at the time of the negligent act or omission, whether or not the injury is or could be discovered within the statutory period. Garrett v. Raytheon, supra, Hudson v. Moore, 239 Ala. 130, 194 So. 147 (1940), Sellers v. Edwards, 289 Ala. 2, 265 So.2d 438 (1972). Thus, the Medical Liability Act contains a traditional statute of limitations, one which commences the running of the statute from the accrual of the cause of action, and is not subject to constitutional infirmity under § 45.

Plaintiffs attempt to distinguish their case from those cited by pointing out that Raytheon, Hudson and Sellers all involved the introduction of a foreign agent into the body of the plaintiff, while the instant case merely involved an omission on defendant’s part. In Sellers, a bulldog clamp was left in the plaintiff’s body after an operation; in Hudson, a gauze sponge was not removed during an operation; in Raytheon, the plaintiff’s injuries resulted from exposure to radiation. This distinction is unpersuasive, however. Raytheon, Hudson and similar cases were not premised on any physical trespass to the plaintiffs’ bodies, but on the occurrence of a legally cognizable injury, no matter how slight, which resulted immediately upon the taking place of the negligent act or omission. In these cases, the Court held that, although the actual injury initially incurred was so slight that it was not discovered until years later, the cause of action accrued, nevertheless, at the time of the act or omission complained of.

Because Code 1975, § 6-5 — 482(a), is thus a traditional statute of limitations, we hold that it is not void for failing to comport with Art. IV, § 45, of Const, of Ala., and that plaintiffs’ causes of action are barred thereby. The judgment below is affirmed.

AFFIRMED.

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

      . All actions against physicians, surgeons, dentists, medical institutions or other health care providers for liability, error, mistake or failure to cure, whether based on contract or tort, must be commenced within two years next after the act or omission or failure giving rise to the claim, and not afterwards; provided, that if the cause of action is not discovered and could not reasonably have been discovered within such period, then the action may be commenced within six months from the date of such discovery or the date of discovery of facts which would reasonably lead to such discovery, whichever is earlier; provided further, that in no event may the action be commenced more than four years after such act; except, that an error, mistake, act, omission of failure to cure giving rise to a claim which occurred before September 23, 1975, shall not in any event be barred until the expiration of one year from such date.

      . Title 7, § 23, Code of Alabama, 1940 (Recomp.1958).


author: PER CURIAM.

text:
    Arthur R. McCAULEY, Administrator of the Estate of Pernie Mae McCauley v. Dr. J. A. CUNNINGHAM et al.
    78-780.
    Supreme Court of Alabama.
    Feb. 29, 1980.
    Van Gamble, Frank O. Burge, Jr., Birmingham, for appellant.
    Herbert W. Peterson, of Rives, Peterson, Pettus, Conway, Elliott & Small, Birmingham, for appellees Dr. J. A. Cunningham, Cunningham Pathology Associates, P. A., Medical Laboratory Associates.
    Lyman H. Harris of Lorant, Harris & Yearout, Birmingham, for appellee Brook-wood Hospital.
   PER CURIAM.

Affirmed on the authority of Street v. City of Anniston, 381 So.2d 26 (Ala. 1980).

AFFIRMED.

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


author: BEATTY, Justice.

text:
    FIRST ALABAMA BANK OF MONTGOMERY, N. A. v. Charlotte Kyle MARTIN et al.
    78-775.
    Supreme Court of Alabama.
    March 7, 1980.
    M. R. Nachman, Jr., R. E. Steiner, III, and Eric G. Bruggink of Steiner, Crufn & Baker, Montgomery, for appellant.
    Richard H. Gill and Albert W. Copeland of Hobbs, Copeland, Franco & Screws, Montgomery; Jack Crenshaw, of Crenshaw & Associates, Montgomery, for appellees.
   BEATTY, Justice.

Defendant, First Alabama Bank of Montgomery, seeks to appeal from an order certifying an action against it as a class action under ARCP 23(b)(1)(A), 23(b)(1)(B) and/or 23(b)(2) and designating two classes of plaintiffs. The purported appeal as of right is dismissed and the alternative request for permission to appeal is denied.

In December, 1978, plaintiffs Charlotte Martin and Kathleen Gerson filed suit against defendant First Alabama Bank [hereinafter “Bank”] charging that the Bank, by making imprudent investments with the assets of two common trust funds controlled by it, had violated its duties as trustee of the common funds. Two other plaintiffs were later added by amendment. The original plaintiffs and the intervenor-plaintiffs all are beneficiaries of trusts of which the Bank is (or was) trustee.

The complaint, as last amended, claims that as trustee of the individual trusts the Bank took from the plaintiffs and others similarly situated instruments under which it was given the discretionary power to invest the assets of the trust in participating units of two Common Trust Funds (the “Bond Fund” and the “Equity Fund”) maintained by the Bank. Plaintiffs averred that from 1971 through 1978 the Bank used substantial portions of the principal of the individual trusts to purchase units in one or both of the common funds, and that in its capacity as manager of the common funds the Bank made imprudent investments with the monies in the common funds, which investments resulted in substantial losses to the funds. Plaintiffs sought an order that the suit could properly be maintained as a class action under ARCP 23(b)(1) or 23(b)(2), a declaration that the defendant “as a paid Trustee was chargeable with the primary duty of maintaining the integrity and safety of the principal of the trust funds” which was invested in each of the common funds, a declaration that the defendant is liable to account to each of the common trust funds “for all losses resulting from the making of imprudent, unsafe, speculative, or risky investments and for loss of income thereon,” and a declaration that certain investments made by the Bank as manager of the common funds were in fact imprudent. The complaint further sought to require the Bank to restore to the common trust funds the losses allegedly sustained because of the Bank’s improper investments.

As we have indicated, plaintiffs seek to maintain this suit as a class action under ARCP 23. They contend that they should be permitted to sue both for themselves and “as representative parties on behalf of all persons similarly situated, who held beneficial interests in participating units” of each of the common trust funds from 1971 through 1978. The Bank has continuously opposed the certification of the action as a class action. After months of discovery regarding the issues posed by the class action allegations, the trial court conducted a hearing on the class action question. The court then entered an order (1) certifying the suit as a class action under ARCP 23(b)(1)(A), 23(b)(1)(B) and/or 23(b)(2), and (2) denominating two classes of plaintiffs: a class composed of beneficiaries whose trust funds were invested in the “Bond Fund” from 1971 through 1978 and a class composed of beneficiaries whose trust funds were invested in the “Equity Fund” during the same period. The trial court accordingly denied defendant’s motion to dismiss the complaint and its motion for partial summary judgment on the class action aspect of the complaint. Defendant then filed a notice of appeal to this Court and, alternatively, submitted a petition for permission to appeal from an interlocutory order.

I

As a general proposition, one has the right to appeal only from a “final judgment” of the circuit court. See Code of 1975, § 12-22-2. The first question presented here is whether the circuit court’s order allowing this suit to proceed as a class action under ARCP 23 was a final judgment which will support an appeal as a matter of right. We hold that it was.not.

A final judgment has been defined by this Court as an order or decree which puts an end to all matters litigated or which ought to have been litigated with respect to a particular controversy. In re Estate of Amason, 347 So.2d 393 (Ala.1977). An order certifying a class is inherently not a final judgment, even regarding the class certified, because ARCP 23(c) expressly permits the trial judge to revise his original order at any time before passing on the merits of the case. As the United States Court of Appeals for the Second Circuit pointed out in Parkinson v. April Industries, Inc., 520 F.2d 650 (2d Cir. 1975):

The granting of a class designation is in no sense an effective termination of any aspect whatever of the litigation, but only directs the form in which the action will proceed. The initial order is strictly provisional and by the terms of Rule 23(c)(1) “may be altered or amended before the decision on the merits.” An order granted prior to discovery may be reevaluated on the basis of facts emerging from a fuller record, and a decision by an appellate court upon an appeal from the initial order would not settle the propriety of the designation once and for all because new information might well require a revision of the original order by the district court. The possible likelihood of successive appeals on the same issue, a concern which lies at the heart of the final judgment rule, exists.

520 F.2d at 653.

The validity of the view that “orders granting class certification are interlocutory” — as has been held in a host of federal appellate court decisions [see, e. g., Re Cessna Aircraft Distributorship Antitrust Litigation, 518 F.2d 213 (8th Cir.) cert. den. 423 U.S. 947, 96 S.Ct. 363, 46 L.Ed.2d 282, reh. den. 423 U.S. 1039, 96 S.Ct. 577, 46 L.Ed.2d 414 (1975); Blackie v. Barrack, 524 F.2d 891 (9th Cir. 1975); Katz v. Carte Blanche Corp., 496 F.2d 747 (3rd Cir.) cert. den. 419 U.S. 885, 95 S.Ct. 152, 42 L.Ed.2d 125 (1974); Bennett v. Behring Corp., 525 F.2d 1202 (5th Cir.) cert. den. 425 U.S. 975, 96 S.Ct. 2175, 48 L.Ed.2d 798 (1976)] — was recently sustained by the U. S. Supreme Court in Coopers & Lybrand v. Livesay, 437 U.S. 463, 476, 98 S.Ct. 2454, 2462, 57 L.Ed.2d 351 (1978). We find the federal cases on this issue most persuasive, and, accordingly, hold that we are without jurisdiction to entertain the Bank’s attempt to appeal as a matter of right. See McKleroy v. Gadsden Land & Development Co., 126 Ala. 184, 28 So. 660 (1900).

II

In addition to asserting that it has a right to maintain an appeal from the trial court’s order allowing this case to proceed as a class action, First Alabama Bank has alternatively petitioned this Court for permission to appeal from an interlocutory order. We deny the Bank’s ARAP 5 petition for permission to appeal.

Rule 5, ARAP, the means by which a party may obtain interlocutory review of a non-final order, is a composite of FRAP 5 and 28 U.S.C. § 1292(b). See ARAP 5, Committee Comments. Because this Court has not previously had occasion to address the question of when, if ever, interlocutory review of an order granting class action status is warranted, we have engaged in a rather extensive review of the federal cases dealing with the appealability vel non under 28 U.S.C. § 1292(b) of class action orders. Our survey of the pertinent decisions of the federal courts, as well as an in-depth analysis of the arguments of the parties, has convinced us that interlocutory orders which grant class certification are not susceptible to effective review.

As is required under ARAP 5, the Bank’s petition for permission to appeal contains the trial judge’s certification that the interlocutory order “involves a controlling question of law as to which there is substantial ground for difference of opinion, that an immediate appeal from the order would materially advance the ultimate termination of the litigation and that the appeal would avoid protracted and expensive litigation. . . This Court, however, is not bound by the trial court’s conclusion that an immediate appeal is desirable, for ARAP 5 mandates that both the trial court and the Supreme Court concur in allowing an appeal from an interlocutory order. See, e. g., Control Data Corp. v. International Business Machines Corp., 421 F.2d 323 (8th Cir. 1970). The discussion which follows is a brief summary of our reasons for refusing to grant permission to appeal in this case.

As we have mentioned, class action determinations are inherently provisional under the terms of ARCP 23. The trial court is at liberty to alter or amend the order granting class action status at any time before deciding the merits of the case. The court may even terminate the class status if further developments so dictate. See Wilcox v. Commerce Bank, 474 F.2d 336 (5th Cir. 1973). Our intervention at this preliminary stage would constitute an uncalled-for encroachment upon the trial court’s power to manage its own cases and would place this Court in the position of an advisory panel. That is not our function.

We are also unable to perceive any “controlling question of law” posed by this case in its present posture that might merit our attention pursuant to Rule 5, ARAP. Determinations allowing class actions to proceed rest largely within the discretion of the trial court; in the words of Judge Frankel of the U. S. District Court for the Southern District of New York, such a decision “involves a particular appraisal of specific facts and is to a measurable extent discretionary.” Shelter Realty Corp. v. Allied Maintenance Corp., 442 F.Supp. 1087, 1089 (1977). As our system of jurisprudence is largely predicated on the studied discretion of trial judges, we are not at all disturbed by the fact that decisions of such moment as orders permitting a class action to proceed must be made by the individual trial judges without the assistance of appellate courts. See Anschul v. Sitmar Cruises, Inc., 544 F.2d 1364 (7th Cir. 1976). Only if it appears that a trial court arbitrarily refused to apply the criteria enunciated in ARCP 23 to the facts of a particular case would we be inclined to permit an interlocutory appeal from an order granting class certification. The lower court’s rather lengthy certification order in this case clearly discloses that each of the factors set forth in Rule 23 was carefully considered before the class action determination was made. The order does not reveal any abuse of discretion.

Our decision to refuse to grant permission to appeal in the instant case is buttressed

by some of the language employed by the Third Circuit Court of Appeals in Link v. Mercedes-Benz of North America, Inc., 550 F.2d 860 (3rd Cir. 1977). The Link case was an attempted appeal under 28 U.S.C. § 1292(b) of an interlocutory order certifying a plaintiff class of some three hundred thousand persons pursuant to FRCP 23(b)(3). Although the district court had certified certain questions as “controlling” the Court of Appeals refused to review the order determining the class. After pointing out that acceptance of 28 U.S.C. § 1292(b) appeals in unexceptional cases would constitute an “erosion of the prohibition against ‘piecemeal’ appellate review,” the court ruled that:

[A class action] determination, in and of itself, does not present a “controlling question of law” to which this court should be hospitable under § 1292(b). If the district court has qualms about determining the class, because it has a serious question whether it is “applying] the correct criteria to the facts of the case,” . (a) it should hesitate in determining the class until reasonably assured of the correctness of its ruling and (b) it should not certify for § 1292(b) consideration without stating persuasive reasons why the particular class action question is so unusual as to demand the intervention of an appellate court. In affording immediate appellate review of “controlling questions of law,” § 1292(b) was not designed to substitute wholesale appellate certainty for trial court uncertainty under circumstances where, as here, the Rule gives broad discretion to the district court to revise its class action determination at any time prior to the decision on the merits.

550 F.2d at 863.

The considerations articulated by the Link court concerning 28 U.S.C. § 1292(b) appeals apply with equal force to appeals under ARAP 5. The trial judge here did not specify what questions of law he felt were controlling, and the arguments advanced by the Bank regarding the alleged misapplication of the Rule 23 criteria by the trial court have not persuaded us that any such questions exist. As a result we deny the Bank’s request for permission to appeal.

APPEAL DISMISSED; REQUEST FOR PERMISSION TO APPEAL DENIED.

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


author: BEATTY, Justice. SHORES, Justice

text:
    Rex RAINER, as Highway Director, etc. v. TILLETT BROTHERS CONSTRUCTION COMPANY.
    78-871.
    Supreme Court of Alabama.
    March 7, 1980.
    Sterling G. Culpepper, Jr., and David R. Boyd of Smith, Bowman, Thagard, Crook & Culpepper, Montgomery, for appellant.
    Albert W. Copeland and Calvin M. White-sell of Hobbs, Copeland, Franco & Screws, Montgomery, for appellee.
   BEATTY, Justice.

The defendant, Rex Rainer, as Highway Director of the State of Alabama, appeals from the grant of a writ of mandamus directing him to pay Six Hundred Thirty-Five Thousand Dollars ($635,000.00) to the plaintiff. We reverse and remand.

Tillett Brothers Construction Company, Inc., plaintiff, entered into a contract with the State of Alabama on May 1, 1972 to construct a segment of public highway near Sylacauga. During the course of the work the plaintiff encountered more rock than was originally anticipated and requested an extension of one hundred days for performance. At that time no claim for any additional compensation was made. Although the then highway director, Ray Bass, held the opinion that the project could have been completed in the allotted time, nevertheless an extension of seventy days was granted. Later, another extension of seventy-five days was requested and at that time the plaintiff expressed an intention to make a claim for extra compensation. Bass responded to the request by denying the extension and urging completion of the job. The project engineer recommended to Bass that the claim for extra compensation be denied. The job was completed and accepted by the highway department, and the plaintiff filed a claim with the department for additional compensation. This claim was denied on June 17, 1977. The plaintiff then requested that a claims committee be convened to consider its claim. This committee also denied the claim, reporting:

It is the feeling of the Committee that any loss encountered by the contractor was a combination of his error in hot investigating the job prior to bidding and a lack of prosecuting of the work.

Being dissatisfied with this decision the plaintiff requested that the matter be referred to an advisory board, the provision for which was included in the specifications which were a part of the original contract. That committee was appointed on October 7, 1977 and on January 24, 1978 it recommended paying the plaintiff the sum of $585,235.58. Although under the contract specifications this report was not binding on the highway director, nevertheless in a March 3, 1978 letter to the department’s construction engineer, Page Bass directed:

Please take the necessary steps to have the final estimate prepared to reflect the monetary award in the Advisory Board’s review as final settlement for this claim. This amount is not to include any interest. This final should be forwarded to the contractor as soon as possible in order to expedite the final settlement of this matter. [Emphasis added.]

A supplemental contract was prepared in order to effectuate this decision but a dispute arose concerning its execution. Bass left the office of highway director and was replaced by Dan Turner who in turn was succeeded by the present defendant, Rex Rainer. Turner refused to allow the claim. The plaintiff filed this action against the former and incumbent highway directors to recover damages based upon alleged fraudulent misrepresentations made in connection with the invitation to bid on the job. Later the complaint was amended to include a prayer for a writ of mandamus for the amount awarded by the advisory board. The Fifty Thousand Dollars retainage was claimed in a later amendment. Turner was removed as a party by the grant of his motion to dismiss. Following a hearing, the trial court found that:

Although the evidence is in dispute, the Court finds that Bass, who resigned as Highway Director on March 31,1978, executed the Supplemental Agreement while he was still in office and did so in his capacity as Highway Director.
In this connection the Court finds that Bass approved the claim in early March when he instructed the Highway Department personnel to proceed with the mechanics for the payment of the claim or, alternatively, he approved the claim when he signed the Supplemental Agreement in his capacity as Highway Director.

In the view of the trial court, this action on the part of Bass obligated the present highway director to pay the amount of the advisory board’s award. In issuing the writ of mandamus to the present highway director, Rainer, ordering him to take action to have plaintiff paid, the trial court also included the amount of the retainage. An appropriate Rule 54(b) order was entered allowing this appeal from the grant of the writ.

The testimony upon which the alternative finding of the trial court was based dealt primarily with two factual questions: (1) whether on March 3, 1978, before his departure as highway director, Bass had made a final approval of the claim of the plaintiff for additional compensation, and (2) whether, if he had not done so, Bass nevertheless had executed the supplemental contract pertaining to that additional compensation while still holding the position of highway director. It is unnecessary for us to comment upon the trial court’s assessment of .that evidence because we are convinced that the requirements of law to have made that compensation a binding obligation of the State were not met. In coming to that conclusion we refer to the defendant’s contention that, in any event, the decision to pay the additional compensation to Tillett Brothers required the approval of the governor (which was never given) in order to make it a binding obligation. We agree, with that position.

At least since the Code of 1923 the Alabama' Legislature has enacted statutes denominating the authority and management of the State Highway Department. See generally Code of 1975, Title 23, Chap. 1-5. That title extensively governs all phases of management, expressly creating the position of director and setting forth his duties and the sphere of his authority (“All the powers, authority and duties vested in the highway department shall be exercised by the highway director.” — § 23-1-21). The authority of the department, through its director, to enter into contracts for the procurement of equipment is specifically provided (§ 23-1 — 50), as is the purchase by the department of motor fuels and lubricants (§ 23-1-51). It is statutorily allowed to contract with the cities and counties to perform work on the roads, bridges and highways within the state (§ 23-1-47, 23-1-48, 23-1-53). And without exhaustively surveying the many other statutory authorizations (and controls) with which the department and its director are vested, it must be pointed out that the legislature has given the department the authority to construct roads (§ 23-1-40), to determine the qualifications of bidders (§ 23-1-56), and to adopt rules and regulations in connection with road construction (§ 23-1-59).

In the matter of contracts entered into by the department for road construction, the legislature has been explicit, for it has mandated that:

Every contract for road . . . construction . . . shall be made in the name of the state of Alabama, approved by the highway department and the governor. [Emphasis added.] [§ 23-1-54.]

The legislature has declared, in fact that:

No contracts for construction . of highways . . . shall be let without the approval of the governor . . . [Emphasis added.] [§ 23-1-55.]

Even when a road is to be constructed under the authority of the Alabama Highway Authority (§ 23-1-150 through 23-1-155), its contracts for road construction are to be approved by the governor (§ 23-1-156). See also § 23-1 — 157 requiring the governor’s approval of the Authority’s bonds. Likewise, the approval of the governor is required for road construction contracts entered into by the Alabama Highway Finance Corporation (§ 23-1-170) and of its bonds (§ 23-1-177).

It is clear that the legislature has fixed as a condition precedent to their validity the approval by the governor of monetary payments arising out of contracts for road construction entered into by the highway department through its director. In other words, the legislature has recognized that the governor, as chief executive officer of the state, has a direct fiscal responsibility over the payment of state funds under road contracts made by his appointed subordinates.

The plaintiff does not dispute the requirements of § 23-1-54 but argues that it has no applicability because the State’s obligation here arose out of a “claim.” We are not cited to and have not found any statute in the Highway Code pertaining to “claims” per se. The provisions in that Code deal with payments under the various types of road construction and the like, and as we have shown, these are valid obligations only if approved by the governor. The only “claims” of the nature suggested by the plaintiff falling outside the Highway Code are those referred to in Code of 1975, § 41-9-62, giving the board of adjustment jurisdiction to consider:

(8) All claims for underpayment by the state of Alabama or any of its . departments to parties having dealings with the state ... or any of its . departments;

But if this were a claim cognizable under that statute, it would fall within the purview of that board, not the highway director, to grant relief, when no court has jurisdiction. Hawkins v. State Board of Adjustment, 242 Ala. 547, 7 So.2d 775 (1942).

The plaintiff also maintains that the “Supplemental Agreement” utilized by Bass was merely an internal method which Bass selected to implement his decision to pay the plaintiff. That reasoning falls for two reasons. One pertains to what we have discussed, that is, such a conclusion reduces the obligation to a mere claim, unrelated to a contract dispute and therefore properly a matter for the board of adjustment. Another pertains to the nature of the “Supplemental Agreement” itself.

The authority of the highway director to make a supplemental contract is statutory. Code of 1975, § 23-1-60(3). That entire Code section is adopted from the highway department’s standard specifications for highways and bridges, and allows the director to make changes in construction as may be necessary, to determine the need for new or additional work not contemplated in the original contract, and to enter into a supplemental contract with the prime contractor reflecting those changes. In other words, the legislature has stated that after the original highway contract has been executed, the director may determine that previously uncontemplated work must be done to complete a project, he may amend the “construction details,” and he may make the changes binding on the State by entering into a supplemental contract. That is precisely what Bass did in this case. Even though the extra work claimed by Tillett had already been done when Tillett Brothers made its “claim,” Bass was obliged by law to find that at the time it was done it was necessary for the completion of the project. The only statutory method available for authorizing payment was § 23-1-60, and Bass complied with those provisions by using the supplemental contract to reflect the work done under the “claim.” Indeed, the supplemental agreement prepared at his direction and later signed by him proceeds on the basis of work to be performed to complete the project. That agreement recites that:

WHEREAS, certain items of construction encountered necessary to the project are not covered by the original contract on the above project, and
WHEREAS, in compliance with Act No. 228, 1969 Regular Session, Alabama Legislature, approved by the Governor July 29, 1969 (now § 23-1-60), the following items of work constitute that which is to be performed by the contractor under this supplemental agreement, to-wit: Payment of claim approved by the Advisory Board. Lump Sum $585,235.58.

The supplemental contract continues:

NOW THEREFORE, the parties above mentioned do hereby agree to this supplemental agreement consisting of the above mentioned items of work and prices, and agree that this supplemental agreement is hereby made a part of the original contract on the above project to be performed under the Specifications hereof, and that the original contract is in full force and effect except so far as it might be modified by this supplemental agreement. [Emphasis added.]

Following this clause were express provisions made for the signatures of the highway director, the contractor, its surety, and the governor, and approvals by the division engineer and the department’s construction, engineer.

These facts belie any suggestion that this procedure was only a ministerial method for processing the payment of the sum claimed. Nor was it considered such by Bass’s own construction engineer who advised plaintiff’s certified public accountants by letter:

This is to advise that the Highway Department is in the process of preparing a supplemental agreement to pay Tillett Brothers Construction Company, Inc. the lump sum amount of $585,235.58 as final settlement of his claim on the above referenced project. This is the amount recommended by the Advisory Board and approved by Mr. Ray D. Bass, Highway Director.
This amount will be paid on the final estimate after the supplemental agreement has been approved. The retainage being withheld in the amount of $50,-000.00 will also be released on the final estimate. [Emphasis added.]

The record shows that Bass was sent a copy of this letter which viewed the supplemental agreement as one of the final steps necessary to payment. Bass’s own memorandum of March 3, 1978 recognized that “final steps” and “final settlement” would be necessary, and his own approval of the supplemental agreement also recognized as much.

The plaintiff’s suggestion that the standard specifications, which provided for the resolution of disputed claims for extra compensation, somehow allowed the creation of a “claim” unrelated to the highway contract or to other statutorily authorized methods of payment likewise is untenable. The standard specifications themselves were incorporated into the original contract by reference. Thus they became a part of the original contract, one subject to the governor’s approval. § 23-1-54. Under the plain terms of the supplemental contract, that supplemental contract was made a part of the original contract. Because the supplemental agreement dealt with highway construction, and in words and in effect supplemented the original contract, it was one which required approval by the governor. §§ 23-1-54, 23-1-55. To construe the requirements of the statutes otherwise would not only offend the statutory mandate described but would allow an incongruous result, viz. the governor’s approval would be required for highway construction contracts but for “claims” for money arising out of those contracts, which might even exceed the sum of money originally agreed upon, only the signature of his subordinate would be necessary. We cannot believe that the legislature intended such a result when it adopted the statutory scheme manifested by the Highway Code.

The cases cited to us by the plaintiff in support of a contrary view are inapposite. Hardin v. Fullilove Excavating Co., Inc., Ala., 353 So.2d 779 (1978) did not involve a payment arising out of a road construction contract. State Board of Administration v. Rocquemore, 218 Ala. 120, 117 So. 757 (1928) was decided under a provision of the Highway Code which presently is § 23-1— 50, and which authorizes payments out of the highway fund for purchases of supplies and materials by the department. By statute such purchases need not be approved by the governor. McFarland v. McKee, 252 Ala. 439, 41 So.2d 574 (1949) actually supports the conclusions we have reached. That case held that the highway director could by supplemental agreement modify his previously agreed upon specifications in order to pay a claim which had arisen under the performance of the original highway construction contract. It is important to note that in McKee the director approved a supplemental contract which was approved by the governor and which changed an original contract which had been approved by the governor.

The most recent decision of this Court analogous to the instant case is McDowell-Purcell, Inc. v. Bass, Ala., 370 So.2d 942 (1979). In that case a claim for additional money following performance under a highway contract was denied by the highway director. This Court agreed with the lower court’s decision to deny mandamus because the director, having possessed the discretion to either approve or deny, was shown to' have denied the claim without arbitrariness. It is true that the Court, by dictum, did observe that had the department approved the “payment request” the writ would have issued because nothing more would have remained to be 'done but pay. However, this Court did not purport to discuss what would have constituted final approval. Consequently, it would be wrong to interpret that opinion to have dispensed with the statutory requirement of the governor’s signature in an instance like the present.

Because the defendant presented no issue on appeal on that part of the trial court’s order pertaining to the retainage, we pre-termit discussion on that aspect.

For the reasons we have expressed the judgment must be, and is, reversed and the cause remanded.

REVERSED AND REMANDED.

TORBERT, C. J., and MADDOX, FAULKNER, JONES, ALMON and EM-BRY, JJ., concur.

SHORES, J., dissents.

SHORES, Justice

(dissenting):

I respectfully dissent. There is no question that Tillett did the work and that it was accepted by the state. The Advisory Board recommended that Tillett be paid $585,235.58. The trial court found that the highway director approved this recommendation. Although the evidence was disputed, there is evidence which supports the trial court’s finding. I am not convinced that it is palpably wrong and would, therefore, affirm.

I cannot agree with the majority that Tillett cannot be paid by the state because the contract it seeks to enforce was not signed by the governor. In the first place, Tillett does not claim under a contract. This case involves a claim by Tillett for work done and a claim made therefor pursuant to procedures outlined in the “Standard Specifications.” Tillett followed these procedures and filed his claim for supplemental payments after having done the work. Under the “Standard Specifications” when a claim has been filed, a two-step administrative procedure for review is provided for. This was followed. First, a claims committee within the department passes on the claim. If it denies it, the contractor may ask for the appointment of an Advisory Board. This was done, and the board recommended payment of the claim. These facts are undisputed. The only dispute involved the issue of whether the highway director then approved the recommendation of the Advisory Board. The trial court found that he did. In this circumstance, I think affirmance is required by this Court’s holding in McDowell-Purcell, Inc. v. Bass, 370 So.2d 942 (1979), where we said:

McDowell-Purcell contends that because the required rock bolting has been completed and accepted by appellee Bass, all that remains is for Bass to perform a ministerial act: paying McDowell-Purcell for all rock bolting at four dollars per linear foot. Were one other circumstance present we would be compelled to agree. The payment request for the rock bolting by McDowell-Purcell has never been approved by the Highway Department. Had it been, mandamus would lie because all that would remain would be for Bass to make payment. .
. In this case Bass had a duty to either approve or disapprove payment according to one of two different interpretations of the contract. Performance of that duty rested upon his judgmental or discretionary ascertainment of facts or existence of conditions to be applied under the terms of the contract. . [Emphasis added.]

This case is distinguishable only in that here, unlike McDowell-Purcell, the trial court found that Bass had approved the payment. The majority opinion effectively, therefore, overrules McDowell-Purcell.


text:
    ETOWAH COUNTY COMMISSION et al. v. Dolores PARSONS
    79-11.
    Supreme Court of Alabama.
    March 7, 1980.
    Michael L. Roberts of Floyd, Keener & Cusimano, Gadsden, for appellants.
    Rowan S. Bone, Edward Cunningham, and Hubert L. Taylor, Gadsden, for appel-lee.
   PER CURIAM.

The facts of this case as stipulated to by the parties are as follows:

Act 795, Acts of Alabama, 1973, applicable to Etowah County, provided an expense allowance for “elected or appointed county officials,” defined as “persons who might otherwise be considered State officers and whose salaries are paid fully or partially by the State but who are elected by or appointed by persons elected by the electors of such counties and whose salaries are set by local act of by general act of local application.” After passage of this act, the Circuit Clerk of Etowah County began receiving an expense allowance. Since January 17, 1977, the effective date of the Judicial Article Implementation Act, the Circuit Clerk has not received an expense allowance.
The issue before the Court is whether the Act 795 expense allowance, as applicable to the Circuit Clerk, was abrogated by the passage of the Judicial Article Implementation Act. Plaintiff contends that the Legislature did not intend to affect her expense allowance by passage of the Act. Defendants contend that Plaintiff’s office no longer comes within the express definition of offices which receive the expense allowance under Act 795.

The trial court held that the plaintiff, Dolores Parsons, was entitled to a sum equivalent to the amount she would have received under the expense allowance previously payable to her pursuant to Act 795, reasoning as follows:

The Court is of the opinion and concludes that, at the time of its passage in 1973, Act 795 applied to authorize an expense allowance to be paid to the Circuit Clerk of Etowah County and that § 7 — 104 of the Judicial Article Implementation Act has not “abrogated” or rendered ineffective such expense allowance to the office of Circuit Clerk of Etowah County.
The Court is of the opinion and concludes that § 7 — 104(b) of the Judicial Article Implementation Act [§ 12-17— 92(b) Code of Alabama 1975] manifests an intention by the Legislature to preserve such expense allowance as was provided by Act 795 for the Circuit Clerk of Etowah County; that by employing the words “supplemental salary” the second time in said § 7-104(b) of the Judicial Article Implementation Act, the word “salary” was not used in such a limited sense as to exclude legal expense allowance.

We do not deem it necessary to decide whether § 7-104(b) of the Judicial Article Implementation Act (Code 1975, § 12-17-92(b)) manifests an intention by the Legislature to preserve the expense allowance as provided for in Act 795, by employing the term “supplemental salary” in a broad enough sense so as to include the term “expense allowance.” We hold that Act 795 no longer applies to the circuit clerk of Etowah County and therefore reverse and render. Section 5 of Act 795, Acts of Alabama, 1973, provides:

In all counties having a population of not less than 90,000 nor more than 100,-000, according to the most recent federal decennial census, all elected or appointed county officials shall receive an expense allowance in accordance with the provisions of Sections 6, 7 and 8 of this act to cover the expenses associated with their offices. “Elected or appointed county officers” is to be interpreted so as to include persons who might otherwise be considered state officers and whose salaries are paid fully or partially by the state, but who are elected by or appointed by persons elected by the electors of such counties and whose salaries are set by local act or by general act of local application. “Elected or appointed county officers” shall not be interpreted to include the county superintendent of education, members of the county board of education, or any employee of the county board of education, nor shall same be deemed to include any attorney, engineer, architect or other professional consultant employed on a part time basis by any county board or body, or the members of any appointed board. There shall be a conclusive presumption of law that there is a reasonable relationship between the allowances received in accordance with the provisions hereof and the expenses associated with the offices of the persons receiving such allowances.

Act 795, Acts of Alabama, 1973 (emphasis added).

Since the passage of the Judicial Article Implementation Act, the salary of the plaintiff, circuit clerk of Etowah County, has no longer been set by a local act or a general act of local application, but rather by general act. Section 7-104, Act 1205, Acts of Alabama, 1975. Thus, the office of circuit clerk is presently not one of the described offices entitled to receive the benefits of § 5, Act 795, Acts of Alabama, 1973.

REVERSED AND RENDERED.

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

BLOODWORTH, J., not sitting.


author: PER CURIAM. MADDOX, Justice

text:
    FAMILY HEALTH, INC. v. MARION COUNTY, a Political Subdivision of the State of Alabama.
    79-134.
    Supreme Court of Alabama.
    March 7, 1980.
    George R. Stuart, III, and James S. Ward of Baxley, Stuart, Ward & Dillard, Birmingham, for appellant.
    James K. Davis of Fite, Davis & Fite, Hamilton, for appellee.
   PER CURIAM.

The Marion County Circuit Court order of November 14, 1979, granting a temporary injunction, is due to be, and hereby is, reversed, and this cause is remanded for further proceedings on the merits, on the authority of ARCP 65(d)(2); International Brotherhood of Electrical Workers, etc. v. Morton, 365 So.2d 662 (Ala. 1978); and First National City Bank of Oxford v. Whitmore, 339 So.2d 1010 (Ala. 1976).

REVERSED AND REMANDED.

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

MADDOX, J., dissents.

BLOOD WORTH, J., not sitting.

MADDOX, Justice

(dissenting).

The trial court’s order in this case reads:

“This cause coming on to be heard on the application for temporary relief and the Court proceeded to hear testimony orally, and upon consideration of the same:
“IT IS HEREBY ORDERED, ADJUDGED, AND DECREED
“That the Defendant be removed from the managerial position it is now exercising at Lister Hill Hospital and Marion County Nursing Home until further order of the Court.
“That the Defendant be enjoined from interfering with the management operations of the Plaintiff at Lister Hill Hospital and Marion County Nursing Home until further order of the Court.
“Done this 14th day of November, 1979.
/s/ Bobby R. Aderholt
Bobby R. Aderholt, Judge
“Filed: Nov. 14, 1979
Willouise Harper
Register”

The majority treats this order as one for injunction and reverses the trial court because the court failed to comply with procedural rules for the issuance of an injunction.

The trial court’s order, if characterized as an injunction, suffers from the deficiencies pointed out by the majority, but whether it was an injunction or not, I do not believe that the order should be set aside, because I do not think that Family Health had a right to operate the hospital during the time this matter was here on appeal.

As I understand the facts, Family Health’s contract was one for personal services for a five-year period, to expire on March 1,1981. Marion County claimed that Family Health had breached its contract; therefore, it sought to remove Family Health as the operator of its hospital.

The trial court issued an order which “removed [Family Health] from the managerial position it is now exercising at Lister Hill Hospital and Marion County Nursing Home until further order of the court.” This Court stayed that order, and Family Health was allowed to operate the hospital while the matter was pending here.

Whether Family Health breached its obligation under the contract, or whether the County had a right to remove Family Health as its operator are questions which are yet to be decided in view of the majority decision. By reason of this Court’s decision and the earlier stay order, Family Health has, in effect, been allowed to continue to operate under the contract, even though the County claims that it has breached its obligations thereunder. In short, Family Health has received specific performance of the contract. I do not believe that this contract is one which can be specifically enforced, either directly or indirectly. I believe that the County had the right, if it was willing to suffer the consequences, to remove Family Health as the operator of its hospital.

The question of whether a court of equity may specifically enforce a contract for personal services was cogently discussed in Roquemore and Hall v. Mitchell Brothers, 167 Ala. 475, 52 So. 423 (1910). There, this Court held that “[s]uch contracts are not susceptible of specific performance.”

In the instant case, this Court required Family Health to post a bond when it issued its order staying the execution of the trial judge’s order. It is my personal opinion that if the trial court determines, upon a complete hearing on the merits, that Marion County had a right to remove Family Health as its operator, Marion County should be allowed to recover such damages at law which it may have suffered because of Family Health’s occupation of the premises after November 14, 1979, the date of the trial court’s order which removed it from the managerial position it was then exercising at Lister Hill Hospital and Marion County Nursing Home. On the other hand, if the trial court finds that Marion County wrongfully breached its contract with Family Health, Family Health would be entitled to such damages at law for breach of the contract.

This proceeding was one for a declaratory judgment. The purpose of the declaratory judgment act is a speedy determination of rights without long and expensive litigation. That purpose is somewhat frustrated in this case, because of this Court’s grant of a stay. I dissented at that time.

While I recognize that a contract of employment, involving personal services, which is not specifically enforceable, does not necessarily make declaratory relief improper, I do believe that the trial court, having exercised its discretion to entertain the declaratory -judgment proceeding, can proceed with a determination of the entire controversy, including any legal claims for damages by either party. See 26 C.J.S. Declaratory Judgment § 56, pp. 155, 156; cf., Alabama Football Inc. v. Stabler, 294 Ala. 551, 319 So.2d 678 (1975).

In short, I do not believe that Family Health has a legal right to enjoin the termination of the contract by the County, or has the right to specific performance of its contract.

I respectfully dissent.