author: SHORES, Justice.

text:
    Claire PUCKETT, et al. v. Dianne M. RICHARD, as Administratrix of the Estate of Dan Cole Mitchell, deceased.
    80-725.
    Supreme Court of Alabama.
    June 25, 1982.
    Rehearing Denied Aug. 20, 1982.
    Perry Hubbard, Robert C. Tanner & Walter E. Braswell of Hubbard, Waldrop, Tanner & deGraffenried, Tuscaloosa, for appellants.
    B. Don Hale, Cullman, for appellee.
   SHORES, Justice.

Dan Cole Mitchell died in 1977. He left a will leaving his entire estate to his former wife, but by operation of law, the will had been revoked by his divorce from her. Thus, his estate passed by intestacy to his five surviving children in equal shares. His oldest child, appellee Dianne M. Richard, was appointed administratrix by the probate court of Cullman County.

Among the assets of the estate was all of the outstanding stock of Mitchell Motors, Inc. The assets of this corporation were sold in 1980, and the corporation was liquidated and dissolved. As a part of the transaction, the real estate that the corporation had leased from the decedent was sold.

At this time, the administratrix and the other four heirs agreed that the administra-trix would receive her one-fifth distributive share of the estate in cash, and the other four heirs would receive their shares by taking a note from the purchasers of the real estate, which was sold for $514,000, $14,000 of which was paid in cash. A note for $500,000, payable over fifteen years at nine and one-half percent interest, was executed by the purchasers and made payable to the other four heirs as tenants in common. It was agreed that the administratrix would receive some $80,000 in cash at that time, with the remainder of her one-fifth share in the estate to be made up out of the proceeds of the remainder of the estate. The administratrix distributed $2,500 to each heir as a partial distribution at that time.

When the remainder of the estate was liquidated and the entire remaining cash proceeds paid to the administratrix, there was not enough money to bring her share to one-fifth of the entire estate. The trial court found that there was no agreement between the parties “as to what to do when the assets were insufficient to adequately compensate Mrs. Richard.”

The record discloses that as of September 20, 1980, the schedule of beneficiary distribution was as follows:

Claire Mitchell Puckett: Cash, $5,200.00; other distribution including one-fourth mortgage on Ford property, $140,607.58; for a total distribution of $145,807.58.

Homer Wesley Mitchell: Cash, $5,358.95; other distribution, $135,727.49; for a total of $141,086.44.

Dan Cole Mitchell, II: Cash, $3,280.10; other distribution, $138,154.15; for a total of $141,434.25.

Janease Mitchell Hamilton: Cash, $3,020.00; other distribution, $138,455.17; for a total of $138,475.17.

Dianne Mitchell Richard: Cash, $74,-000.00; other distribution, $14,877.00; for a total of $88,877.00.

The trial court, faced with this situation, noted that “it seems manifestly unfair to direct the four heirs or Mrs. Richard to pay in sums of money where a cash shortage has always been a problem for these children.” The court then entered its order:

“IT IS THEREFORE ORDERED AND ADJUDGED THAT:
“1. The interest of the four heirs in the $500,000.00 promissory note to them at the interest rate of 9-1/2% is attached with a constructive trust in favor of Dianne M. Richard and she owns a fractional interest in that note, and interest thereon, equal in value to any deficient amount due her. Dianne M. Richard’s fractional share is due and payable to her as each payment on the promissory note is received.
“2. Should there be any shortage, or an amount owed and not paid Mrs. Richard for her interest in the estate, then the Court on petition may reconsider how to secure her interest at any time.
“3. The accountant that has worked with the estate will continue to do so and under this order of the Court will determine the fractional share of the income from the promissory note due Mrs. Richard, devise a plan for the payment to her, and will submit his bill for payment from estate funds, or from income payable from the promissory note.”

On motion of the four heirs, the court amended its judgment directing the accountant to make his calculations based upon the face value of the note. The four heirs appealed. We affirm.

The heirs contend that the court erred in refusing to give the promissory note its fair market or discounted value in assessing the proper distributive share of each heir. We cannot agree. It is not disputed that Mrs. Richard has not received her full distributive share. As she points out in brief, the court had authority to order this discrepancy corrected in a number of ways: (1) The court could have ordered payment by the four heirs of the deficiency directly and at once; (2) the court could have ordered that all payments on the note be applied to the deficiency until it was eliminated; or (3) the court could have imposed a constructive trust on the note in Mrs. Richard’s favor to the extent of the deficiency, and let her take her pro rata share, plus interest, for the remaining term of the note.

The four heirs argue that the judgment of the court should be reversed and the court should be directed to make a redistribution of all of the assets of the estate, giving each heir an equal one-fifth part of each asset. While we might well have affirmed a decree so holding, we cannot say that the trial court abused its discretion in entering the decree appealed from. It seems to us that the trial court’s decree is fair and equitable, and it should not be reversed merely because some other equitable solution was also possible.

In the exercise of its equity jurisdiction, a circuit court is entirely justified in molding a decree which adjusts the equities of all the parties. Blair v. Morris, 212 Ala. 91, 101 So. 745 (1924). By imposing a constructive trust on the note to assure that the share of each heir in the estate was equal, the court was within its power. As we held recently in Coupounas v. Morad, 380 So.2d 800 (Ala.1980):

“A constructive trust is a creature of equity that operates to prevent unjust enrichment; such a trust will be imposed when a property interest has either been acquired by fraud or where, in the absence of fraud, it would be inequitable to allow the property interest to be retained by the person who holds it. Brothers v. Moore, 349 So.2d 1107 (Ala.1977); Sims v. Reinert, 285 Ala. 658, 235 So.2d 802 (1970); Putnam v. Putnam, 274 Ala. 472, 150 So.2d 209 (1963). It is also clearly inherent in the very nature of equity proceedings that the trial court is authorized to mold its decree so as to adjust the equities of all parties and to meet the obvious necessities of each situation. BBC Investment Co. v. Ginsberg, 280 Ala. 148, 190 So.2d 702 (1966); Bouldin v. City of Homewood, 277 Ala. 665, 174 So.2d 306 (1965) (on rehearing).”

380 So.2d at 803.

The judgment appealed from is affirmed.

AFFIRMED.

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


source: Caselaw Access Project

author: MADDOX, Justice.

license: Public Domain

text:
    James Levi HENDERSON and Mildred Henderson v. Charles SCOTT and Rose Scott.
    81-273.
    Supreme Court of Alabama.
    June 25, 1982.
    Rehearing Denied Aug. 27, 1982.

      Marion F. Walker, Birmingham, for appellants.
    William H. Atkinson of Fite, Davis & Atkinson, Hamilton, for appellees.
   MADDOX, Justice.

The trial court dismissed this action on the ground that it was barred by the doctrine of res judicata. The subject of the controversy is an easement for ingress and egress across appellants’ land which was granted by a different trial judge in a previous action.

Appellants say that the principle of res judicata is inapplicable because (1) there was no showing that the appellees, Charles and Rose Scott, were successors of the parties who obtained the easement, and (2) the easement granted by the court in the earlier action was one of necessity and the necessity no longer exists. We affirm.

The facts are, essentially, as follows:

Appellants, James Levi Henderson and Mildred Henderson, were defendants in an action filed by Mike Kelley and L.J. Mitchell, wherein they sought and were granted an easement across the Hendersons’ property. In that action, the court decreed “[t]hat plaintiff Mike Kelley, also known as Michael B. Kelley, has a right of ingress and egress ... across the north end of the land of defendants Henderson.... ” In that action, the Hendersons filed a motion for a new trial in which they alleged:

“1. The essential issue in this case was whether or not an easement of necessity existed in favor of the Plaintiff Kelley and across the land of the Defendants. The decision of the Court rendered on August 19, 1980 affirmatively held such an easement existed and permanently enjoined Defendants.
“2. Between the time of the trial of this case in the early part of 1980 and the rendition of the decision in the case, new facts and circumstances have arisen which directly affect the central issue in this case and warranting a new trial.”

The trial court denied the Hendersons’ motion for a new trial and the Hendersons filed an untimely appeal, which was dismissed by this Court. Henderson v. Kelley, 406 So.2d 402 (Ala. 1981) (unpublished order).

After this Court’s dismissal of their appeal, the Hendersons filed the present action, in which they characterize the easement for ingress and egress granted by the trial court’s order as one of “necessity,” and in which they aver that the necessity no longer exists because the holders of the easement now have a public way abutting their lot and a driveway which gives them a way of ingress and egress to this public way. In their complaint, the Hendersons claimed that, because of these facts, the court-ordered easement was extinguished under the rule of law set forth in Oyler v. Gilliland, 382 So.2d 517 (Ala. 1980).

With the above-stated facts in mind, we now address the legal question: Was the Hendersons’ action barred?

This Court recently restated the four tests which must be satisfied to determine if res judicata applies. In Waters v. Waters, 387 So.2d 838, 839 (Ala. Civ. App. 1980), the Court said:

“(1) [T]he prior judgment must have been rendered by a court of competent jurisdiction; (2) there must have been a final judgment on the merits; (3) the parties, or those in privity with them, must be identical in both suits; and (4) the same cause of action must be involved in both suits.”

Both parties agree that the first two tests have been satisfied. The disagreement centers around the third and fourth tests.

The third test is that the parties, or those in privity, must be identical. We find that the third test is satisfied. Parties are considered identical when privity exists between a party in the original action and a party in any subsequent action. In the present case, the appellees are in privity with Michael Kelley, the prior property owner who obtained the easement across the Hendersons’ property.

In his decree, in this action, the trial judge found:

“(1) That the Defendants, Charles Scott and Rose Scott, in this present cause of action are the successors in title to that parcel of property previously owned by Make Kelly [sic], one of the Plaintiffs in CV-80-5018.
“(2) That the issues raised and the matters sought to be litigated in CV-81-5211 were before the Court and previously adjudicated by this Court in CV-80-5018.”

This Court has said that “ ‘privity’ denotes mutual or successive relationship to the same right of property.” Watson v. Mills, 275 Ala. 176, 178, 158 So.2d 612 (1963). Because the Scotts are “successors in title” to Kelley, privity exists, and the third test is satisfied.

Finally, appellants claim that the present cause of action has never been litigated and that the principle of res judicata should not apply because the fourth test has not been satisfied. As is apparent from the court’s order in the first case, the trial court granted a permanent way of ingress and egress across the Hendersons’ property in that initial action between Kelley and the appellants. In the case now before the Court, the Hendersons claim that an easement of “necessity” was created by the first order. We find no indication in the record that the trial court intended to create an easement of necessity, but even if we agreed with the appellants that an easement of necessity was created by the first order, it is readily apparent that facts showing that the necessity for the easement no longer existed were known to the appellants during the first trial, because it was made a ground of their motion for a new trial. They failed to file a timely appeal in that action; therefore, they are estopped to relitigate those facts which were presented in that action.

In determining that the fourth test was satisfied, we have examined the record and we are convinced that the question of the necessity for the easement could have been litigated during the first trial. For example, the right-of-way deed for the public road (which appellants claim extinguished the easement by necessity) was granted to the City of Winfield on April 14, 1980, and the trial court did not grant the easement until August, 1980. Furthermore, it is quite apparent that appellants were claiming at the time of the filing of their motion for a new trial that the easement was one of necessity and that it had been extinguished.

Based on the foregoing, we find that the trial court did not err in applying the principle of res judicata to the facts of this case. The court’s order dismissing the subsequent case is due to be affirmed.

AFFIRMED.

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


text:
    Virgil Howard JEWELL v. Carrie Mae JEWELL.
    81-279.
    Supreme Court of Alabama.
    June 25, 1982.
    Rehearing Denied Aug. 20, 1982.

      Virgil Howard Jewell, pro se.
    Jimmy E. Alexander of Steele, Alexander, Corder & Plunk, Athens, for appellee.
   SHORES, Justice.

This is an appeal from a decree clearing title to a piece of land. The appellant appears pro se.

The record discloses the following:

Clayton B. Jewell died on June 23, 1980. He was the father of Virgil Howard Jewell and the husband of Carrie Mae Jewell. Thus, Carrie Mae Jewell is Virgil Howard Jewell’s stepmother.

Before Clayton married Carrie Mae Jewell and before his wife, Virgil’s mother, died, Virgil built on land owned by his father and mother, but deeded to him, a house for his parents to live in. His mother died before it was finished. His father moved into the house and when he was married again, to Carrie Mae, the two of them continued to live there. Mr. Jewell paid his son rent for a time and when his son decided to leave the state, they agreed that the rent payments would be equal to the mortgage payments, and that the father would pay the monthly payments directly to the mortgagee.

Sometime later, the house and lot were deeded to Clayton and Carrie Mae Jewell, as joint tenants with right of survivorship. This deed was executed by Virgil Howard Jewell’s wife, Barbara Jewell, acting under a power of attorney executed by Virgil Howard Jewell. The senior Jewells continued to make mortgage payments, and when Carrie Mae inherited $6,000 from her father, that amount was applied to the mortgage, and the same has now been satisfied.

After Clayton Jewell died, Virgil Howard Jewell brought an action which sought to have the deed set aside on the grounds of fraud and undue influence. Carrie Mae Jewell filed a counter claim which sought to have any cloud on the title removed and title to the land vested in her, free of all liens or claims by anyone. Virgil Howard Jewell filed several documents in the trial court, all of which were consolidated, and the case was set for trial on November 9, 1981, by order of the court entered on August 28, 1981. Virgil Howard Jewell was notified that the case was set for trial on that date, but he did not appear, either personally or by counsel. He has indicated that he is an inmate in the federal penitentiary and is an indigent. After a hearing held on the date set for trial, the trial court entered its decree vesting title in Carrie Mae Jewell. Virgil Howard Jewell appeals. We affirm.

Mr. Jewell’s single argument seems to be an assertion that the trial court erred in not continuing the case until he could be present. He says he is scheduled for a parole in November of 1983. We cannot reverse the trial court for not continuing this case. No motion for continuance was made, and the appellant instigated the litigation. His complaint did cast a cloud on the title to this property, which the trial court had every right to address on the merits. Mr. Jewell never asked for a new trial. He filed a law suit which remained pending for approximately one year. He had actual knowledge that the case had been set for trial for more than two months. He cannot complain that the trial court disposed of this case on the merits, simply because he was incarcerated in the penitentiary.

We do notice that the record contains several statements by way of affidavits from family members and from Virgil’s former wife, which support his side of the case, factually. However, there was evidence which supports Carrie Mae Jewell’s side of the case. Therefore, the trial court’s conclusion is supported by some evidence, which prevents our reversing its decision. Leslie v. Pine Crest Homes, Inc., 388 So.2d 178 (Ala. 1980).

The judgment of the trial court is affirmed.

AFFIRMED.

MADDOX, JONES and BEATTY, JJ., concur.

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


author: EMBRY, Justice.

text:
    Clinton D. SWAN v. Joe Ed MAGNUSSON and Inge Wurbs Magnusson.
    80-854.
    Supreme Court of Alabama.
    July 2, 1982.
    Rehearing Denied Aug. 27, 1982.

      John Mark McDaniel of McDaniel & McDaniel, Huntsville, for appellant.
    David H. Meginniss of Hornsby, Blankenship & Robinson, Huntsville, for appellees.
   EMBRY, Justice.

Clinton D. Swan appeals from a summary judgment entered in favor of the defendants Joe Ed and Inge Wurbs Magnusson. We reverse.

In 1968, the minor daughter of Swan died as a result of internal injuries she received in an automobile accident involving an automobile operated by Joe Ed Magnusson. Swan brought suit against Magnusson in the Circuit Court of Jefferson County. The trial of that action resulted in entry of judgment awarding him the sum of $50,000 as damages.

On appeal, that judgment was affirmed. Magnusson v. Swan, 291 Ala. 151, 279 So.2d 422 (1973). Subsequently, a certificate of judgment was recorded in the office of the Probate Judge of Madison County. At the time of entry of judgment, Joe Ed Magnus-son and wife Inge Wurbs Magnusson were joint owners, with rights of survivorship, of a home in the Kirkwood Heights area of Huntsville.

For several years Swan was unsuccessful in his efforts to collect the judgment. On 3 July 1979, by means of statutory proceedings provided for under the provisions of Code 1975, § 6-6-200, et seq., Magnusson was required to disclose his assets, and in so doing, it came to light that, on 31 March 1978, Joe Ed Magnusson, and wife Inge Wurbs Magnusson, had sold their Kirkwood Heights home to Michael A. Kalange, Jr. and Connie B. Brooks. The proceeds of the sale were used to purchase other real estate in Madison County. Mrs. Magnusson took title to the latter property in fee simple. Swan contends the purpose of such arrangement was to thwart creditors of Joe Ed Magnusson from subjecting the newly acquired property to execution, levy and sale in satisfaction of debts, including that evidenced by his recorded judgment.

The conveyance of the Kirkwood Heights property to Kalange and Brooks effectively destroyed the joint ownership with rights of survivorship title of the Mag-nussons. Furthermore, utilization of the proceeds from the sale of that property to acquire other real property with fee-simple title conveyed to Mrs. Magnusson, if done in order to fraudulently defeat Swan’s collection of his judgment debt would impose upon the newly acquired property a resulting trust in his favor that may be enforced by prosecution of this action, followed by execution, levy, and sale of that property and application of the proceeds therefrom toward satisfaction of his judgment. The fraudulent grantee occupies the position of trustee and is liable to account as a trustee for such creditors. American Nat. Bank & Trust Co. v. Powell, 235 Ala. 236, 178 So. 21 (1937).

On 7 July 1980, Swan filed this action, asserting that the conveyance of the Kirk-wood Heights property, and the subsequent use of the proceeds from that sale to purchase property only in the name of Inge Wurbs Magnusson, were fraudulent. In response, the Magnussons filed a motion to dismiss. Approximately seven weeks later, they filed a motion for summary judgment based upon the one-year statute of limitations applicable to actions based upon fraud, subject to the discovery exception found in Code 1975, § 6-2-3.

On 29 October 1980, the trial court granted the motion for summary judgment conditionally: Swan was allowed thirty days within which to amend his complaint. Swan did amend, whereupon, the Magnus-sons filed a second motion for summary judgment which stated, in pertinent part, “that there is no genuine issue of material fact and the defendants are entitled to a judgment as a matter of law.” The motion went on to say that such motion is based upon “the law as set forth in the accompanying brief.” The record, however, does not contain any accompanying brief. The trial court entered summary judgment in behalf of the Magnussons on 2 June 1981. At that time Swan filed a motion to alter, amend, or vacate the judgment. That motion was overruled.

The threshold issue is whether Swan commenced his action within the time limitations of the applicable statute of limitations. To answer this question requires consideration of which statute of limitations is, indeed, applicable to actions of the type here involved. We are dealing with a judgment creditor’s action to subject to levy and execution the property of a debtor who is alleged to have fraudulently conveyed such property in order to hinder delay, impede or thwart the creditor's efforts to collect a debt. In this particular case, a conveyance was made by man and wife, of property owned by them as joint tenants with rights of survivorship, to a third party; the proceeds therefrom being used to purchase other property solely in the name of the wife.

Swan contends the trial court erred when it interpreted his action as one based upon fraud, as opposed to the statutory proceedings affording remedies to creditors as set out in Code 1975, § 8-9-6. Under Code 1975, § 6-2-39, the statute of limitations applicable to actions based upon fraud is one year, subject to the exception found in § 6-2-3: one year from discovery or constructive discovery based upon circumstances or the exercise of diligence. The authorities hold that actions brought under Code 1975, § 8-9-6, are governed by the ten-year statute of limitations prescribed by Code 1975, § 6-2-33. Washington v. Norwood, 128 Ala. 383, 30 So. 405 (1901); Van Ingin v. Duffin, 158 Ala. 318, 48 So. 507 (1909).

In determining which statute of limitations should apply, an examination of Swan’s complaint readily discloses that § 6-2-33 applies. Allegations found in that complaint include those stating that the conveyance of the Kirkwood Heights property was fraudulent and made “with the intent to hinder, delay or defraud creditors, purchasers or other persons of their lawful suits, damages, forfeitures, debts, or demands, and [is subject] to § 8-9-6 Code of Alabama, 1975.”

In a recent decision this court addressed, at some length, the nature of these actions and the burden of proof required of the plaintiff in them. See J. C. Jacobs Banking Co. v. Campbell, 406 So.2d 834 (Ala.1981). The allegations of Swan’s complaint, taken alone, clearly show his claim is based upon Code 1975, § 8-9-6. The ten-year statute of limitations applicable to actions for the recovery of lands applies as well to an action brought by a judgment creditor, involving a fraudulent conveyance of property by a debtor, to subject property to his creditor’s rights. Donaldson v. Williams, 284 Ala. 140, 222 So.2d 725 (1969).

Everything the motion for summary judgment was submitted upon shows there are genuine issues of material fact yet to be resolved. Summary judgment was an inappropriate method of disposition of this action.

For the reasons stated, the judgment below is reversed and this action remanded for further proceedings consistent with this opinion.

REVERSED AND REMANDED.

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


author: ALMON, Justice. ALMON, Justice.

text:
    NATIONAL SURETY CORPORATION, a Corporation v. APPLIED SYSTEMS, INC., a Corporation. Max G. COFFEY, Robert S. Sawyer and Data Plus, Inc. v. APPLIED SYSTEMS, INC., a Corporation.
    80-400, 80-402.
    Supreme Court of Alabama.
    July 9, 1982.
    As Corrected on Denial of Rehearing Aug. 27, 1982.

      William E. Johnston, of Johnston, Johnston & Kendall, Mobile, for appellant Nat. Surety Corp.
    Herndon Inge, Jr., of Inge, McMillan & Inge, Mobile, for appellants Max G. Coffey, Robert S. Sawyer, and Data Plus, Inc.
    Gordon O. Tanner of McDermott, Slepian, Windom & Reed, Mobile, for appellee.
   ALMON, Justice.

These are appeals from a judgment finding that Max G. Coffey and Robert S. Sawyer converted certain “property” of Applied Systems, Incorporated, to their own use and finding National Surety Corporation liable to Applied Systems on an indemnity bond as a result of the conversion by Coffey and Sawyer. We affirm.

Mr. W. E. Greer organized Applied Systems, Inc., in September, 1972, to provide computer services to businesses in Mobile. Mr. Greer hired Mr. Max Coffey in January, 1973, to write computer programs, for which he was paid a salary. Mr. Robert S. Sawyer was hired by Applied Systems in mid-1973 as a computer operator.

The customary business procedure was that a customer would bring raw data to Applied Systems and receive output based on the customer’s particular needs. For example, the customer would bring his employee time cards and Applied Systems would have the computer print checks, W-2 forms, and financial statements, depending on the program the customer wanted. All the programs were somewhat unique in that they related to particular customers. Kaiser Aluminum Company was a client of Applied Systems. The Kaiser payroll system alone had approximately 58 programs.

Coffey and Sawyer decided to go into the computer business for themselves and left Applied Systems on December 23, 1977. Early in January, 1978, they incorporated Data Plus, Inc. Several former customers of Applied Systems came to Data Plus to get their payrolls run. Kaiser’s payroll was being run by Data Plus shortly after it was incorporated. When Applied Systems learned this, it applied for and was granted a temporary restraining order and a preliminary injunction. Included in the complaint was a claim against Coffey, Sawyer and Data Plus for damages for the conversion of several of its computer tapes and programs.

On November 27, 1978, Applied Systems filed a complaint against National Surety Corporation on an indemnity bond, alleging fraudulent or dishonest acts committed by Coffey and Sawyer while employed by Applied Systems. The suit for damages and the suit on the indemnity bond were consolidated.

National Surety filed a third-party complaint against Coffey and Sawyer, seeking a judgment against them for any sums that it might have to pay Applied Systems.

The jury rendered three verdicts:

1. Applied Systems was awarded a $25,-000 verdict against Coffey, Sawyer and Data Plus;
2. Applied Systems was awarded $25,000 against National Surety; and
3. National Surety was awarded $25,000 against Coffey and Sawyer on its third-party claim.

The main contention by the appellants is that the trial court erred in submitting the conversion claim to the jury because computer programs cannot be converted, or, in the alternative, because there was no evidence of any “tangible” personal property being taken.

To constitute conversion, there must be a wrongful taking or a wrongful detention or interference, or an illegal assumption of ownership, or an illegal use or misuse. Ott v. Fox, 362 So.2d 836 (Ala. 1978).

“The case law of Alabama establishing the essential requisites for the maintenance of a cause of action in conversion has long been firmly established. There are four different actions which constitute conversion: (1) A wrongful taking; (2) an illegal assumption of ownership; (3) an illegal use or misuse; and (4) a wrongful detention. Only the fourth action requires proof that the plaintiff demanded the return of the converted property and that the defendant refused that return.”

Raley v. Royal Insurance Co., Ltd., 386 So.2d 742 (Ala. 1980) (Torbert, C.J., concurring specially).

After an examination of the record, we are of the opinion that there was sufficient evidence to support the judge’s decision to submit the case to the jury.

Mr. Greer testified that one customer who had taken his business to Data Plus returned to Applied Systems and asked it to continue processing his data. Applied Systems then discovered it did not have the programs or the master files with which to do so. Shortly thereafter Data Plus returned these materials to Applied Systems.

Mr. Greer also testified that after normal working hours on October 25, 1977, he found Mr. Coffey, along with certain employees of the Honeywell Corp., at the office of Applied Systems. There were computer parts on the floor, and Mr. Coffey told Mr. Greer they were merely working on the computer. However, at approximately the same time as the incident with the computer parts occurred at Applied Systems, a computer similar to the one used by Applied Systems was being readied by Honeywell for Coffey and Sawyer. The inference the jury could draw from this, since parts from the two computers were interchangeable, was that parts from the Applied Systems computer were being taken to be used on the computer eventually used by Data Plus. It is significant that the computer bought by Data Plus was compatible with the one used by Applied Systems in that the programs involved could have been run on either computer, and they were the only such computers in the area.

Mr. Herbert Richardson, the president of a computer software specialty house, testified that he had examined the programs in question and estimated that to create the Kaiser programs alone would take 471.70 man days. According to Mr. Richardson the programs were unique and no software house would have these for sale. He also stated that in his opinion the programs would have had to be copied in order to be operational in the time period involved.

There was sufficient evidence of either a wrongful taking, an illegal assumption of ownership, or an illegal use or misuse of the programs and possibly other computer related items, to submit the case to the jury.

A computer program, in appropriate circumstances, can be the subject of conversion. The appellants argue that because Mr. Coffey developed the programs while at Applied Systems he could not convert them because they were his own property. But even though he developed the program, he did not have any property rights or interest in the programs. He developed the programs for Applied Systems, which facilitated the development of the programs and provided financial backing. Applied Systems had a definite property interest in the programs and that interest should be protected.

The appellants rely on Code 1975, § 1-1-1(8), for the proposition that only tangible personal property is subject to conversion. Code 1975, § 6-5-260, states: “The owner of personalty is entitled to possession thereof. Any unlawful deprivation of or interference with such possession is a tort for which an action lies.” Section 6-5— 260 makes no distinction between tangible and intangible personal property. There is case authority to the effect that intangible personal property can be the subject of larceny. Latham v. State, 56 Ala.App. 234, 320 So.2d 747 (1975); Hancock v. Decker, 379 F.2d 552 (5th Cir. 1967); Annot, 18 A.L.R.3rd 1121 (1968). The appellant points out that this Court, in the case of State v. Central Computer Services, Inc., 349 So.2d 1160 (Ala. 1977), held that computer “software” was not tangible personal property for purposes of the state use tax. That case is distinguishable in that the statute involved applied to tangible personal property. We are not so limited here.

There was sufficient evidence from which the jury could have concluded that the actual tapes were converted and then copied and returned. But, if the jury based its decision on the conclusion that only the programs were taken, we could not say they were in error. In appropriate circumstances, intangible personal property can be converted, as would appear to be the case here. Alabama’s Criminal Code, § 13A-8-1(10), defines “property” as “[a]ny money, [or] tangible or intangible personal property . . . . ” It would be inconsistent to say that intangible personal property can be subject to theft and yet not be subject to conversion.

The appellants have raised the point that computer programs are not subject to copyrights or patents. Assuming this to be the case, we nevertheless believe there are other property interests to be protected.

“Improvements in software are necessary to the rapid growth of computer technology; effective protection for those improvements is, by the same token, also necessary. Programs are expensive to develop. Programmers are scarce, and thus relatively well-paid, and the painstaking process of formulation, coding and testing a new program requires much valuable time. Without revenues on the use of its product by others, a company may be reluctant to invest the necessary time and money. Until now any program not of sufficient use to the developer himself to warrant the investment simply was not developed. For without revenues on the use of its product by others, a company would understandably be reluctant to invest the necessary time and money. At present, however, there is a rapidly growing interest in proprietary programs, i.e., “packages” developed primarily for sale. Use of program packages will enable the development of programs of a quality significantly higher than those developed and proliferated under the current system in which, by and large, each must develop every program he uses. The obvious result is duplication and wasted effort. The one essential ingredient of the package concept is a means of protecting the program, for without protection, it ceases to be a commodity. The wise man will not buy the cow when he can get the milk for nothing. The consequence for the software industry will be more expensive (in terms of development costs) but inferior programs.”

Bender, Trade Secret Protection of Software, 38 Geo.Wash.L.Rev. 909 (1970).

We are of the opinion that the court did not err in allowing the conversion claim to go to the jury.

As for the claim by the appellants that the damages awarded by the jury were excessive, there was ample testimony to support the amount awarded. Richardson testified that the value of the programs was $99,000 and Mr. Greer testified the programs cost him $120,000 to develop. This evidence was sufficient to justify the jury’s award of damages.

The final error asserted concerns the verdicts. Appellants Coffey and Sawyer argue that the verdicts make them liable twice for the same wrong. We do not perceive the verdict that way and neither does the other appellant, National Surety. National Surety submits in brief that it “was never contemplated that National Surety Corporation could collect from Coffey and Sawyer the amount of the third party judgment until they had paid out that amount of money in satisfaction of the judgment rendered against them,” in favor of Applied Systems. Applied Systems has, in effect, a $25,000 judgment against the appellants. Only to the extent that it is called on to satisfy the judgment in favor of Applied Systems, can National Surety proceed on its judgment against Coffey and Sawyer.

Accordingly, the judgment is affirmed.

AFFIRMED.

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

ON APPLICATION FOR REHEARING

ALMON, Justice.

The parties are still in disagreement over the effect of three verdicts rendered by the jury. Coffey and Sawyer, as well as National Surety, have filed applications for rehearing, saying that this Court’s resolution of the verdict issue is correct and it is clear from the opinion that Applied Systems is entitled to collect only one award of $25,000. Conversely, Applied Systems argues that it is entitled to collect a total of $50,000.

Ordinarily, we would not further address this issue, because the parties seeking rehearing are contending the original opinion is correct and unambiguous. To prevent further litigation, however, we have again reviewed the record and remain of the opinion that Applied Systems is only entitled to collect $25,000.

The first verdict fixed the total amount of damages for the only wrong committed in this case, i.e., conversion of property. The other two verdicts adjust the rights of the parties regarding the surety bond covering the employees in question and National Surety’s right of subrogation under the contract.

In reviewing the original opinion we noted an error in our recitation of the third verdict. Data Plus was erroneously mentioned in that verdict; that reference is hereby deleted.

OPINION EXTENDED AND CORRECTED; APPLICATION OVERRULED.

TORBERT, C. J. and FAULKNER, EM-BRY and ADAMS, JJ., concur.


text:
    FIRST ALABAMA BANK OF TUSCALOOSA, N.A. v. Frances Wells BROOKER.
    80-323.
    Supreme Court of Alabama.
    July 16, 1982.
    Rehearing Denied Aug. 27, 1982.

      Perry Hubbard and J. Foy Guin, III of Hubbard, Waldrop, Tanner & deGraffen-ried, Tuscaloosa, for appellant.
    Sam M. Phelps and Randolph M. Fowler of Phelps, Owens, Jenkins, Gibson & Fowler, Tuscaloosa, for appellee.
   EMBRY, Justice.

This is an appeal from a judgment entering a permanent injunction in favor of plaintiff Frances Wells Brooker, individually and as trustee for William Todd Brooker and Patrick Blake Brooker, barring foreclosure of a mortgage held by defendant, First Alabama Bank, and enforcing an earlier decree of divorce.

The facts are as follows: On 18 July 1978, Frances Wells Brooker filed suit for divorce against her husband, William Thomas Brooker. In her complaint she alleged, as grounds for the divorce, incompatibility of temperament and irretrievable breakdown of the marriage. She further alleged that two children were born of the marriage, to-wit: William Todd Brooker, age 11 years, and Patrick Blake Brooker, age 9 years, and asked the court for care, custody and control of the children. Additionally, Mrs. Brooker alleged that both she and hér husband had accumulated, during marriage, certain real and personal property which she asked the court to make a division of should a divorce be granted. On 1 August 1978, Mr. Brooker filed his answer, generally admitting all allegations of the complaint.

On 28 September 1978, Mrs. Brooker filed a petition for alimony and child support pendente lite. She was awarded that by decree of the trial court of 10 October 1978. On 6 November 1978, Mr. Brooker filed an amendment to his answer, together with a counterclaim praying for division and allocation of their property, bills, and debts. On 19 March 1979, the court granted a divorce and on 28 December 1979, a final decree was entered confirming the prior decree and awarding custody of the children to Mrs. Brooker, divesting ownership of the jointly owned homestead of the parties, and placing title to it in Mrs. Brooker as trustee for the children. The decree further provided that jurisdiction was retained by the trial court including supervision of the trust so that a home and child support for the minor children might be provided until the youngest reached the age of 19. At that time the trustee would convey title to such real property or any proceeds from a sale thereof, jointly to the two minor children or survivor thereof, with title to such real property to vest immediately under the terms of the decree.

During pendency of the divorce action, on 8 September 1978, in order to secure an antecedent debt owed to First Alabama Bank, the defendant, Mr. Brooker, executed a mortgage of his undivided one-half interest in Lot 49 of High Forest No. 3, and the South half of Lot 50 of High Forest without that instrument being executed by Mrs. Brooker. The mortgage was recorded on 19 September 1978. At the time of recordation, and during the pendency of the divorce proceedings, First Federal Savings and Loan Association of Tuscaloosa held the first mortgage on the above-described property. Mrs. Brooker, the plaintiff, did not receive any of the proceeds of the loans made pursuant to the promissory note executed by Mr. Brooker to First Alabama Bank. At the time Mr. Brooker executed that mortgage, as noted, the property described in the mortgage constituted the homestead of Mr. and Mrs. Brooker and their two minor sons.

As of 28 December 1979, date of the final decree, Mr. Brooker was indebted to First Alabama Bank in the amount of thirty-two thousand dollars ($32,000) principal and four thousand, three hundred, ninety-three and 19/ioo dollars ($4,393.19) interest. The Bank scheduled a foreclosure sale to be held on 14 February 1980. For three weeks pri- or to that date the Bank had advertised the foreclosure sale in a Tuscaloosa County paper.

On 12 February 1980, Mrs. Brooker filed for, and was granted, a temporary restraining order, followed by entry of a preliminary injunction to enjoin the foreclosure proceedings, as well as adding First Alabama Bank as an additional party to the divorce action. Mrs. Brooker filed and served on opposing counsel, on 16 September 1980, an amendment to the application for temporary restraining order, and a motion for a preliminary injunction. The court held a hearing regarding the injunction on 29 September 1980, at which time the parties stipulated to certain facts and placed in evidence the depositions of two witnesses: one of Mr. Brooker and the other of Sam Faucett, who was President of First Alabama Bank at the time of the pertinent transaction involving that Bank. No oral testimony was taken.

On 30 December 1980, the trial court, in its final decree, found that, at the time the Bank obtained from Mr. Brooker his execution of the mortgage on his undivided one-half interest in the real property constituting the homestead, the Bank had actual notice of the pending divorce action wherein Mrs. Brooker, because of her demand for a division of the real property, had placed in issue the ultimate ownership of the homestead property. The court further found the Bank not to be a bona fide mortgagee without notice of possible adverse claims to title to the property at the time it obtained Mr. Brooker’s execution of the mortgage because of actual notice to the Bank of the pending divorce action. Whereupon, the trial court granted a permanent injunction prohibiting the Bank from foreclosing its mortgage. We affirm.

This cause was tried and submitted for final decree on two depositions admitted by stipulation, a written stipulation of facts, and certain oral stipulations made by the attorneys before the court. No oral testimony was taken before the trial court. The rule pertaining to this court’s scope of review is quite clear. When the cause is tried in the court below in the manner described above, this court indulges no presumption that the trial court correctly applied the law to the facts and this court will review the evidence de novo. Stiles v. Brown, 380 So.2d 792 (Ala. 1980); Perdue v. Roberts, 294 Ala. 194, 314 So.2d 280 (1975); Smith v. Dalrymple, 275 Ala. 529, 156 So.2d 622 (1963).

In its assignment of errors, appellant Bank contends the doctrine of lis pendens does not apply because the claim for child support, ultimately granted by vesting title to the subject real estate in trust for the children, did not sufficiently appear in the pleadings at the time the mortgage was taken by the Bank to put it on notice that the real estate, then owned by Mr. and Mrs. Brooker, might be divested from them and vested in the children. Secondly, appellant contends the claim of Mrs. Brooker, found in the pleadings, for a division of the real and personal property lacks sufficient specificity to come within the lis pendens doctrine. We find no merit in these contentions.

The dispositive issue in this appeal is whether a Bank, which has actual knowledge of (1) the fact that property is jointly owned by husband wife and (2) the fact that a divorce action is pending between husband wife, which prays for a division of the property, both real and personal, and accepts a mortgage on the husband’s undivided interest without the wife’s knowledge or consent, is a “bona fide mortgagee” that takes title free from the effect of disposition of the property later made by the trial court in the divorce action.

Section 35-4-131, Code 1975, establishes the procedure for filing of notice of ¡is pendens when any civil action has been brought in any court to enforce any right to, or interest in, land.

Admittedly, in this case no lis pen-dens notice was filed prior to the recordation of the mortgage from Mr. Brooker to the Bank; however, this is not determinative, because from the facts placed in evidence, the lower court justifiably found the Bank, through its officers, Sam Faucett and Boyd Horn, had actual notice of the pending divorce action.

Section 34-4-135, Code 1975, provides:

“If the notice required by subsections 35-4-131 and 35-4-132 shall not be entered in the lis pendens record, the action, proceeding or application shall not affect the rights of a bona fide purchaser, lessee or mortgagee of any interest in any such land or any person then or thereafter asserting a lien against such land unless he or they have actual notice of the action, proceeding, levy or application.” (Emphasis added.)

Several precedents establish that actual notices to the Bank are just as effective as a filed lis pendens to make the Bank’s interest as mortgagee vulnerable to the outcome of the pending divorce action.

In Lee v. Macon County Bank, 233 Ala. 522, 172 So. 662 (1937), this court held that a purchaser at a foreclosure sale who had “actual knowledge” of a pending suit could not be a bona fide purchaser for value in spite of the fact that no lis pendens was filed.

“What, then of actual knowledge, where there was no compliance with the lis pendens statute ... ? If, therefore, there was actual notice, it is immaterial whether the statutory notice was or was not given.” Lee v. Macon County Bank, supra.

See also, Crane v. Wilson Lumber Co., 288 Ala. 439, 261 So.2d 877 (1972), and Batson v. Etheridge, 239 Ala. 535, 195 So. 873 (1940).

The following, from the deposition of Mr. Brooker, supports affirmance of the trial court’s decision:

“Q. Did you tell Sam Faucett or did he know somehow, that you — that a divorce action had been filed and it was pending?
“A. Oh yeah. He knew that.
“Q. He knew that before September?
“A. Well, I don’t know how, you know, how much in advance or anything like that, but—
“Q. At the time you signed the mortgage, did he know you were involved in divorce litigation?
“A. Yes.
“Q. Did Boyd also know that you were getting a divorce?
“A. Yes.
“Q. That a divorce suit had been filed?
“A. Well, they knew I was getting a divorce.”
The following from the deposition of Faucett, President of the Bank, clearly establishes he was unable at the time of his deposition to state with certainty that he did not know of the pending divorce action at the time the mortgage was executed.
“Q. Did Mr. Brooker say anything about the fact that they were in the process of getting a divorce, not that you knew about, but what you were told by him?
“A. He indicated there were some problems. Now, whether he told me they were getting a divorce or not exactly, I don’t remember. Possibly he did.
“Q. Did you make any notices of your conversation with him at that time that you filed?
“A. I don’t have any in here.
“Q. What I’m—
“A. Let me see what this is. No. This may answer the question you asked earlier that I couldn’t recall. I have an appraisal in here that I wrote up for the file on it. In that file I said Mr. and Mrs. Brooker were in the process of getting a divorce so he evidently did mention it. We have a continuing guarantee for her but her attorney refuses to let her sign this mortgage.
“Q. That is the 18th of October?
“A. 18th of October, 1978.
“Q. And it was done after the fact of taking the mortgage, but I assume it represents information that was given to you at the time of the mortgage?
“A. That’s true.
“Q. He didn’t come back in and talk to you?
“A. No.
“Q. So, refreshing your recollection, that would mean Mr. Brooker told you at the time you took the mortgage that he was getting a divorce.
“A. I would assume that from this. I don’t remember him saying so.
“Q. But your note would indicate that?
“A. Well, I’m not sure whether that at the time I asked for the mortgage that I knew it and took the mortgage, when I found out she wouldn’t sign it, I think is where I obtained this information, when I found out she would not sign the mortgage.
“Q. You had to find out she wouldn’t sign it before preparing a mortgage because you only prepared it for half interest?
“A. Yes.
“Q. Apparently it means at the time they took the mortgage, it means you knew they were getting a divorce.
“A. It means I knew she wouldn’t sign it.”

The evidence, as set out above, is uncon-tradicted on the record. We think the testimony, and those legitimate inferences flowing therefrom, are sufficient upon which to base a finding that First Alabama Bank had “actual notice” or “actual knowledge” of the pending divorce action.

In order for the Bank to avail itself of the status of a bona fide purchaser or mortgagee for value, our authorities hold certain facts must be established clearly, distinctly, and without equivocation: (1) that it is the purchaser of the legal as distinguished from the equitable title; (2) that it purchased it in good faith: (3) that it parted with value as consideration therefor by paying money, or some other thing of value, assuming liability or incurring injury; (4) and that it had no notice, and knew no fact sufficient to put it on inquiry as to another party’s equity, either at the time of the purchase, or at or before, the time it paid the purchase money or otherwise parted with such value. First National Bank of Birmingham v. Culberson, 342 So.2d 347 (1977); Borden v. Case, 270 Ala. 293, 118 So.2d 751 (1960). Notice of a claim of interest in real property can be inferred from knowledge of facts sufficient to put a reasonably prudent person on inquiry, which if pursued, would lead to the discovery of the title asserted by some other party, Murphree v. Henson, 289 Ala. 340, 267 So.2d 414 (1972); or otherwise stated: knowledge of facts which would lead an ordinarily prudent person to further inquiry about the title of the vendor. Dewyer v. Dover, 222 Ala. 543, 133 So. 581 (1931).

We find that because the Bank did have notice of the pending divorce action, or sufficient notice to put it on inquiry, it fails to fulfill the fourth element of a bona fide purchaser or mortgagee for value, and therefore cannot claim that status. We need go no further.

Appellant also raises the issue of the correct amount of homestead exemption should the mortgage be held valid. Because we find the mortgage invalid, we need not resolve that question.

We deem it appropriate to observe that this appeal properly should have been taken to the Court of Civil Appeals. The rationale forming the basis of this court’s decision in In re Sandra Hill Tetter v. State, 358 So.2d 1046 (Ala. 1978), and later decisions of this court, the Court of Civil Appeals and the Court of Criminal Appeals, logically dictates that appeals lie to the appropriate appellate court based upon the nature of the underlying action out of which the particular order, judgment, or decree, is entered or issued. In Tetter, the contempt order was entered because of an incident that occurred during the trial of a divorce action.

However, as it has happened all too frequently in the past, it was not noted by the particular justice to whom the appeal was assigned until preparation of an opinion was underway, or in some instances in the past it was not noted until oral argument was taking place. As a result, in an effort to dispose of appeals as expeditiously as feasible, this court proceeded to a decision in those instances, as we do in this case.

The trial court ruled correctly on the issue presented to it and therefore its judgment is due to be affirmed.

AFFIRMED.

TORBERT, C.J., and FAULKNER, JONES and ADAMS, JJ., concur.


author: ALMON, Justice. FAULKNER, Justice

text:
    Betty Sue SANFORD, et al. v. J. T. COLEMAN, et al.
    80-772.
    Supreme Court of Alabama.
    July 30, 1982.
    Rehearing Denied Aug. 27, 1982.

      J. B. Nix, Jr., Evergreen, for appellants.
    David T. Hyde, Jr., Evergreen, for appel-lees.
   ALMON, Justice.

This is a will contest. At issue is the last will and testament of Nancy Beatrice Diamond Odom. The circuit court held the will invalid because it was obtained by undue influence. We reverse.

Mrs. Odom and her husband of more than 20 years, David S. Odom, Sr., were residents of Conecuh County, Alabama. On November 25, 1969, Mr. and Mrs. Odom went to Metairie, Louisiana, where a daughter of Mr. Odom’s by a previous marriage, Betty Sue Sanford, resided. Mrs. Sanford testified that Mrs. Odom told her she had come to Louisiana to make a will, supposedly to keep Mrs. Odom’s two brothers from knowing about the will, because the two brothers had already contested ownership of the land in question which had previously belonged to Mrs. Odom’s father. Mr. Odom is the sole beneficiary under the will.

On November 26, 1969, Mrs. Sanford’s husband took Mr. and Mrs. Odom and L.W. Dixon, Mrs. Sanford’s uncle, to the office of Phillip B. Smith, an attorney. It was in Mr. Smith’s office that the will was executed. The will was handwritten; witnessed by L.W. Dixon and Mr. Odom; and there was an acknowledgment signed by Phillip B. Smith as a Notary Public. The Odoms returned home that same day.

Mrs. Odom died on March 7,1974, but her will was not filed for probate until March 31,1978. On December 1,1978, a complaint was filed by parties who would have had an interest in the estate of Mrs. Odom had she died intestate. The complaint alleged that the will was invalid because the will was not duly executed; the will was not executed by Mrs. Odom; and the signature on the will was not the actual signature of Mrs. Odom. At the time of trial, Mr. Odom and L.W. Dixon were deceased. The court entered a judgment finding:

4. That David S. Odom, Sr., was the husband of Testatrix and therefore enjoyed a confidential relationship with Nancy Beatrice Diamond Odom, the Testatrix.
5. That David S. Odom, Sr., was the favored beneficiary under the alleged will of Nancy Beatrice Diamond Odom.
6. That David S. Odom, Sr., took the Testatrix to Metairie, Louisiana for the purpose of having her will prepared and executed and that David S. Odom, Sr., took the Testatrix to his daughter’s attorney in Metairie, and had the attorney prepare the will for the Testatrix at that time.
7. It is undisputed that David S. Odom, Sr., was present at the time the Testatrix executed her will as it was proven he was one of the witnesses to the will. Another witness to the will was L.W. Dixon, uncle of the children of David S. Odom, Sr., and brother-in-law of David S. Odom, Sr., by marriage to Odom’s sister.
8. The action of David S. Odom, Sr., in taking the Testatrix to Metairie, taking her to his daughter’s attorney and being present at the time the will was prepared and executed, taken together, with the above, show undue activity by David S. Odom, Sr., in procuring the execution of the will.
9. As David S. Odom, Sr., enjoyed a dominant, confidential relationship with Testatrix and there was undue activity on his part in the execution of the will, in which he was the favored beneficiary, a prima facie presumption of undue influence arose, casting on the proponents the burden of proving no undue influence.
10. There was no evidence before the Court to rebut the prima facie presumption of due [sic] influence as raised above

It should be observed that the complaint did not contain a claim of undue influence. We need not address the issue of whether the complaint could be considered to have been amended by implied consent of the parties under ARCP, Rule 15(b), in view of our holding that the evidence is insufficient to support the judgment setting aside the will because of undue influence.

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

Pruitt v. Pruitt, 343 So.2d 495 (1976).

The court was correct in finding a confidential relationship and also that Mr. Odom was a favored beneficiary under the will.

The second requirement for a finding of undue influence is that the beneficiary was dominant and controlling in the relationship. There was no evidence that Mr. Odom was the dominant party in the relationship. The fact that Mr. Odom went with his wife to Louisiana and to the lawyer’s office does not give rise to the inference that he was dominant in the relationship. We suspect the majority of husbands would do the same. It would require more evidence than was presented here to show dominance on Mr. Odom’s part. Whether the beneficiary was the dominant party must be proven by some evidence of controlling influence over the testatrix’s purpose by the other. Smith v. Smith, 384 So.2d 1069 (Ala. 1980).

Additionally, the evidence was insufficient to prove undue activity on Mr. Odom’s part in procuring the execution of the will.

In Brunson v. Brunson, 278 Ala. 131, 176 So.2d 490 (1965), the court stated:

Contestants argue that a jury question on the issue of undue influence was presented because the evidence shows that testator and proponent were husband and wife and were also cousins, that the will was prepared by proponent’s brother-in-law, that brother-in-law was also the brother-in-law of the other attesting witness, and that proponent had testator’s papers immediately after his death but denies knowledge of the will allegedly executed by testator in 1961. Contestants say that these facts “AFFORDED A REASONABLE INFERENCE OF A DOMINATING CONFIDENTIAL RELATIONSHIP BENEFICIAL TO THE FAVORITE AND ONLY BENEFICIARY THEREUNDER, BEING MARY S. BRUNSON, AND THE TESTIMONY AS A WHOLE IN THIS CASE, AFFORDED A JURY QUESTION RELATING TO THE ISSUE OF UNDUE INFLUENCE ...”
There is no evidence that proponent had any connection with or knowledge of the execution of the will. There is no evidence that the draftsman, or the other attesting witness, or any one else, exercised any influence whatever over the mind or will of testator in the procurement or drafting of the will.
“But we need not here do more than repeat the oft-stated rule that the evidence, direct or circumstantial, must go further and afford ground for reasonable inference, not mere suspicion, that the favored beneficiary has been active in the procurement of the will.” East v. Karter, 218 Ala. 366, 367, 369, 118 So. 547, 549.

We observe that there were suspicious circumstances surrounding the execution of the will and its late filing for probate, but suspicion alone is insufficient to set aside a will. It is clear, even to the untrained eye, that the signature of Mr. Odom as a witness to the will did not match the signature on the petition to probate the will. Resolution of this discrepancy does not, however, tip the scales on the issue of undue influence.

The mere fact that Mr. Odom accompanied his wife to Louisiana and to the attorney’s office and that he witnessed the will is not sufficient to establish undue influence. Undue influence involves moral coercion to the extent of destroying or impairing the free agency of the testatrix. Cook v. Morton, 241 Ala. 188, 1 So.2d 890 (1941). There was no contention that Mrs. Odom was not of sound mind. Moreover, it is not unusual for one spouse to leave property to another spouse, especially when there are no children of the marriage. It is not influence that will defeat a will, it is undue influence.

The judgment is therefore reversed and the cause remanded.

REVERSED AND REMANDED.

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

FAULKNER, J., concurs in the result (with opinion).

FAULKNER, Justice

(concurring in the result).

This is an unusual case because the issue decided — undue influence — was not the appealed issue. That issue rested in the mind of the trial judge. Appellants state in brief that the will was not duly executed by the testatrix. They all agree that there was no undue influence. Their complaint is the improper execution of the will. On this issue, if the trial judge had ruled on it, I think that the appellants’ evidence falls short of establishing improper execution of the will.


text:
    STATE of Alabama, et al. v. KINDER-CARE LEARNING CENTERS, INC., a corporation.
    81-118.
    Supreme Court of Alabama.
    Aug. 20, 1982.

      Charles A. Graddick, Atty. Gen., and Herbert I. Burson, Jr., Chief Counsel, Dept, of Revenue, and Asst. Atty. Gen., and Ronald J. Bowden, Asst. Counsel, Dept, of Revenue and Asst. Atty. Gen., for appellants.
    Charles B. Paterson and Clyde C. Owen, Jr., of Ball, Ball, Duke & Matthews, Montgomery, for appellee.
   SHORES, Justice.

Kinder-Care Learning Centers, Inc. (Kinder-Care) filed an action against the State and certain state and local officials, asking the court to declare that the assessments for ad valorem taxes on the property of Kinder-Care during the tax years 1977 and 1978 were illegal and void in that the property of Kinder-Care is exempt from ad valorem taxation as property devoted exclusively to educational purposes. After a trial, the trial court entered its order declaring the property of Kinder-Care exempt from ad valorem taxes, and the State appealed. We reverse and remand.

Section 91, Ala. Const. 1901, provides a limited exemption from taxation for certain property used exclusively for religious worship, for schools, or for purposes purely charitable. Section 40-9-1, Ala. Code 1975, extends this exemption to “all property, real and personal, used exclusively for religious worship, for schools or for purposes purely charitable.” Amendment 373 to the Constitution, which was ratified November 20, 1978, and which amends § 217 of the Constitution, provides an exemption from ad valorem taxation in Section (k) for “property devoted exclusively to religious, educational or charitable purposes.” Similarly, § 40-8-l(d) provides an exemption for “real and personal property devoted exclusively to religious, educational or charitable purposes.” Kinder-Care operates approximately 725 day care centers throughout the nation. Its home office is in Montgomery, and it is regulated in Alabama by the Department of Pensions and Security. It accepts children between the ages of six weeks and twelve years, and the centers are open from 7:00 a.m. to 6:00 p.m. The programs offered are standardized throughout the system. Each center has a director and staff members who receive some training from the educational department, which produces a weekly program for each age group. A pre-school child (i.e., one between the ages of two years and five and one-half years) becomes involved with programs within the pre-school level at the age of four. These four year olds are involved in a pre-reading readiness program called “Happily Ever After.” The five-year-old child is involved in a reading readiness program entitled “Beginning to Read, Write and Listen,” and also in a mathematics program. The five year olds are given a test entitled “The Metropolitan Readiness Test,” which is designed to determine whether the child is ready to proceed to the first grade. Kinder-Care keeps quarterly progress reports or developmental records which indicate each child’s progress. Most of the children at Kinder-Care are enrolled on a yearly basis; however, Kinder-Care does accept “drop-ins” (i.e., children who are there for only a short period of time). Kinder-Care is required by the Department of Pensions and Security to have minimum items of equipment.

The children from six to twelve years of age who are at Kinder-Care only after school, on arriving at Kinder-Care after school, participate in the afternoon snack, after which they go outside for thirty to forty-five minutes. After coming back inside, the children play board games such as jigsaw puzzles and Monopoly.

Kinder-Care is not licensed by the Board of Education and is not accredited by the Department of Education. The majority of children at Kinder-Care are between the ages of two and five. It is the business of Kinder-Care to earn a profit.

The trial court correctly noted that it is the use to which the property is put which determines whether it is exempt from ad valorem taxes. It also correctly observed that the term “education” is a general term and is not a limited one, as we recently held in Clark v. Jefferson County Board of Education, 410 So.2d 23 (Ala. 1982).

The issue, however, is one of constitutional and statutory construction. Did the legislature intend to grant an exemption from the payment of ad valorem taxes for the use made by Kinder-Care of its property? Or, stated differently, is Kinder-Care using its property exclusively for “educational purposes” as that term is used in the statutes creating the exemption, or are Kinder-Care day care centers “schools” within the meaning of those statutes? Those are the criteria established by this Court to entitle one to the exemption. Anniston City Land Company v. State, 160 Ala. 253, 48 So. 659 (1909). That case held that it was the use to which the property was put and not its ownership which determined the exemption issue. There the Court held that property used exclusively for a school was exempt. It also observed:

“The ‘universal rule of construction is that exemptions from taxation, whether statutory or constitutional, are to be strictly construed, against the exemption and in favor of the right to tax, and that no person or property is to be exempted unless the intention to exempt such person or property clearly appears in some statute or constitutional provision. The relinquishment or curtailment of the power of taxation is never presumed.’ Gray, Lim. of Taxing Power, p. 655, § 1321, and cases cited in note 53 to the text, among them being that of Stein v. Mobile, 17 Ala. 234, 239.”

160 Ala. at 256, 48 So. 659.

Kinder-Care aptly points out that a subsequent appeal by the same taxpayer disallowed the exemption only because a part of the building was used as a boarding house and, thus, the property was not used exclusively for a school or for educational purposes. Anniston City Land Company v. State, 185 Ala. 482, 64 So. 110 (1913). It argues that all of Kinder-Care’s property is used for educational purposes and, thus, it is entitled to the exemption.

We agree that the term “education” is a broad one and that much of what Kinder-Care provides is educational. We cannot agree, however, that the term was used in that broad sense in the statutes and constitutional provisions extending the exemptions from ad valorem taxes. The teachers in the Kinder-Care Learning Centers are not certified teachers as defined by Alabama law. The centers are not subject to regulation or certification by the Department of Education. They are not “private schools” as defined in § 16-28-1, Ala. Code 1975, and attendance at such centers would not satisfy the compulsory school attendance laws. Section 16-28-2, Ala. Code 1975.

Because we must strictly construe tax exemption statutes, we conclude that, although much of what Kinder-Care offers is unquestionably educational, neither is its property used exclusively for “educational purposes,” nor are its centers “schools,” within the meaning of the pertinent statutes. Therefore, the decision of the trial court to the contrary must be reversed.

We acknowledge that in Clark v. Jefferson County Board of Education, supra, we held that the county board was authorized to operate day care centers under a broad grant of authority from the legislature to develop “community education.” There, as here, we were called upon to construe a statute consistent with the legislative policy in enacting it. There, as contrasted with this case, we were compelled to liberally construe the language of the legislation. Here, we are bound to narrowly construe the terms “educational purposes” and “schools.”

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

REVERSED AND REMANDED.

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


text:
    Elbert BEARD, et al. v. Virginia BATES, et al.
    81-461.
    Supreme Court of Alabama.
    Aug. 20, 1982.
    Jack Livingston of Livingston, Porter & Paulk, Scottsboro, for appellants.
    Robert S. Thomas of Thomas & Proctor, and Ronald A. Drummond, Scottsboro, for appellees.
   SHORES, Justice.

The plaintiffs brought an action asking the court to order a sale for division of a tract of land in Jackson County. The court ordered the sale, and the defendants appealed. We affirm.

The following, from the decree appealed from, illuminates the facts and issues involved:

“DECREE
“The plaintiffs claim that they are joint owners with the defendants in a forty-acre tract of real property located near Scottsboro in Jackson County, Alabama, and they seek a sale of the property for division of the proceeds. The defendants deny that the plaintiffs own any interest in the property and contend that they are the sole owners of the property.
“In 1901, the property was owned by Silas Childress, who died that year. Several years later, a homestead proceeding was commenced in the probate court which resulted in a decree dated December 22,1916, setting aside the forty acres to Silas Childress’s widow, Mattie Chil-dress, and minor daughter, Johnnie Chil-dress.
“There are two sets of plaintiffs in this case, each claiming title from a different source. The Bates plaintiffs claim an interest in the property as descendants of Mattie Childress. The White plaintiffs claim an interest in twenty acres only, their claim being by virtue of a sheriff’s deed dated November 27, 1916, which conveyed to their ancestors, Gayle and White, the interest of S. P. Childress, a son of Silas Childress.
“The defendants are the descendants of Johnnie Childress. They claim that a one-half interest in the forty-acre tract descended to them from Johnnie Chil-dress. Additionally, they claim that they have acquired complete ownership of the tract by adverse possession.
“The first issue to be addressed is the claim of the White plaintiffs whose claim is dependent upon the validity of the 1916 sheriff’s deed to Gayle and White. The deed resulted from an execution sale to satisfy a judgment rendered against S. P. Childress. The deed sought to convey any interest which S. P. Childress had in the subject property. The only evidence that S. P. Childress had an interest in the property is that he was an heir of Silas Childress. However, any interest which he might have acquired by descent from Silas Childress was subject to the homestead rights of Silas Childress’s widow and minor child. As a result of the homestead proceeding in the probate court, title to the property vested in the widow and minor child, thus defeating any claim of right held by S. P. Childress and destroying any interest conveyed by the sheriff’s deed. It follows that the source of title relied upon by the White plaintiffs fails and their claim is due to be denied.
“The other primary issue presented by this litigation is whether the defendants have proved their claim of adverse possession.
“Following the death of Silas Childress, the widow, Mattie, and daughter, Johnnie, who later married Roy Beard, lived on the property and possessed it until Johnnie’s death in 1948 and Mattie’s death in 1949. Roy Beard continued living on the land and possessing it until 1954 at which time he remarried and moved away. One or more of Roy Beard’s children either lived on the land or cultivated it until this lawsuit was filed in May, 1979. Roy Beard died in 1977.
“The defendants contend that the continuous possession from 1949 to 1979 by Roy Beard or one of his children gives rise to ownership by adverse possession.
“The plaintiffs contend that possession by Roy Beard and his children prior to Roy Beard’s death in 1977 was not adverse because Roy Beard acquired a right of curtesy upon the death of his wife, Johnnie, which gave him the right of possession during the remainder of his life.”

It is conceded by all parties that the decree allotting the homestead entered by the judge of probate in 1916 had the legal effect of establishing an undivided one-half interest in the forty-acre tract in the widow, Mattie Childress, and an undivided one-half interest in the minor child, Johnnie Childress. Johnnie Childress married Roy Beard, and they had eight children. These are defendants and are referred to for convenience as the Beard group. After Silas Childress died, his widow Mattie and Johnnie continued to live on the property and, after Johnnie married Roy Beard, all of them continued to live on it. Johnnie died intestate in 1948. Her husband Roy and eight children survived her (the Beard group).

Mattie Childress, Mrs. Johnnie Beard’s mother, from whom all of the remaining parties to this action (for convenience, this group, the plaintiffs, will be referred to as the heirs of Mattie Childress), claim their interests died intestate in 1949. The parties all agreed that, from this time, the plaintiff group, claiming through Mattie, and the Beard group, claiming through Johnnie, were tenants in common. The Beard group contended at trial and contend here that the possession by Roy Beard from 1949 until the present was adverse to the plaintiff group and, thus, the Beard group now owns the entire tract by adverse possession to the exclusion of the heirs of Mattie Childress.

The trial court disagreed, and we affirm.

It is not disputed that, at the death of Johnnie Childress Beard in 1948, she left a surviving husband, Roy Beard, who had a curtesy right to the use of her undivided one-half interest in the forty-acre tract during his lifetime, under then Tit. 16, § 12, Ala. Code 1940, and now codified as § 43-3-12, Ala. Code 1975. Roy Beard died in 1977. Of course, Beard’s possession of the one-half interest in his wife’s real estate was not adverse to her heirs. Beason v. Bowlin, 274 Ala. 450, 149 So.2d 283 (1962). But the Beard group contends that his possession and theirs was adverse to the heirs of Mattie Childress. We cannot agree. After Mattie died, the Beard children had an interest in the tract through their mother Johnnie Beard and also as heirs of Mattie Childress. Therefore, both groups were tenants in common of the whole tract. The possession of the entire tract by the Beard group is presumed in law to be for the benefit of all cotenants. Monte v. Montalbano, 274 Ala. 6, 145 So.2d 197 (1962).

Stated differently, Roy Beard’s possession of the land owned by his wife was not adverse to her heirs, the Beard group. Taylor v. Russell, 369 So.2d 537 (Ala.1979). Possession by Roy and the Beard group of the undivided one-half interest owned by Mattie, they being cotenants of the heirs of Mattie Childress after her death in 1949, cannot without strong evidence of ouster of the interests of their cotenants be considered hostile to those interests. As we recently held in Tyson v. Jackson, 364 So.2d 1140 (Ala. 1978), following long-settled law:

“The rule has long been established in this jurisdiction that the possession of one tenant in common is presumed to be the possession of all; and such possession does not become adverse to the cotenant until he is actually ousted or short of ouster, the adverse character of the possession of one is actually known to the other, or the possession of one is so open and notorious in its hostility and exclusiveness as to put the cotenant on notice of its adverse character. Foshee v. Foshee, 278 Ala. 205, 177 So.2d 99 (1965); Barry v. Thomas, 273 Ala. 527, 142 So.2d 918 (1962); Markstein v. Schilleci, 258 Ala. 68, 61 So.2d 75 (1952); Hames v. Irwin, 253 Ala. 458, 45 So.2d 281 (1949); Ratliff v. Ratliff, 234 Ala. 320, 175 So. 259 (1937).
“Before the possession of a cotenant may be regarded as adverse to his coten-ant, he must repudiate the cotenant’s interest in the property by act or declaration. Livingston v. Livingston, 210 Ala. 420, 98 So. 281 (1923). This means that there must be some express denial of title and right to possession of the fellow co-tenant brought home to him openly and unequivocally. Williams v. Sinclair Refining Co., 39 N.M. 388, 47 P.2d 910 (1935); 86 C.J.S. Tenancy in Common § 27. In Ratliff v. Ratliff, supra (234 Ala. at 322, 323, 178 So. at 261), this court stated the rule as follows:
*“. . . The possession of a tenant in common exercising the customary acts of ownership does not alone operate as a disseisin of cotenants; but there must be positive information of the facts, however informally communicated or acquired....’”

364 So.2d at 1141-1142.

In the instant case, there was evidence to justify the trial court’s holding that the possession of the interest of Mattie Chil-dress by Roy Beard and the Beard group was not adverse to the interests of the heirs of Mattie.

The decree appealed from is, therefore, affirmed.

AFFIRMED.

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


text:
    FIRST STATE BANK OF ALTOONA v. Ray D. BASS, Individually, and as Former Director of Alabama State Highway Department.
    81-544.
    Supreme Court of Alabama.
    Aug. 20, 1982.
    F. Wayne Keith of Keith, Keith & Keith, Birmingham, for appellant.
    William P. Cobb, II of Smith, Bowman, Thagard, Crook & Culpepper, Montgomery, for appellee.
   SHORES, Justice.

The plaintiff, First State Bank of Altoo-na, Alabama, appeals from the granting of a motion to dismiss on the ground that its claim against the defendant, Ray D. Bass, is barred by the doctrine of res judicata. We affirm.

First State Bank of Altoona, as the as-signee of two state construction contracts, originally filed suit against Ray D. Bass, in his capacity as state highway director, alleging breach of contract. On May 29, 1981, the trial court granted defendant’s motion to dismiss the complaint, ruling that the bank’s suit was a claim against the state and, as such, was barred by the doctrine of sovereign immunity. Ala. Const. 1901, Art. I, § 14. The bank appealed, and we affirmed. First State Bank of Altoona v. Bass, 406 So.2d 896 (Ala. 1981).

During the pendency of the first appeal, the bank filed a second suit against the defendant, again claiming breach of the same two construction contracts made the subject of the first complaint. The second suit differed only in that it alleged Bass acted fraudulently, in bad faith, and beyond his authority by agreeing to the assignment of the contracts.

On January 19, 1982, Bass filed a motion to dismiss, which included the following ground:

“Said complaint is barred by the doctrine of res judicata. On May 29, 1981, this Court dismissed an action brought by the same Plaintiff, against the same Defendant, based on identical facts and circumstances in CV-81-392-G. The dismissal was appealed by Plaintiff. The Supreme Court of Alabama affirmed the dismissal on December 9, 1981. As the facts and circumstances of the instant case are the same as the prior one, this is a matter which could have been litigated in the prior action. It is thus barred by res judicata.”

The trial court granted the defendant’s motion to dismiss. We affirm. Res judica-ta clearly bars this action, which involves identical facts, identical parties, identical subject matter, and resulted in a judgment on the merits. Hester v. City of Birmingham, 402 So.2d 930 (Ala. 1981).

The doctrine of res judicata rests upon the primary principle that matters once adjudicated are settled and determined. McGruder v. B & L Construction Co., Inc., 331 So.2d 257 (Ala. 1976); Irwin v. Alabama Fuel & Iron Co., 215 Ala. 328, 110 So. 566 (1925). As this Court recently said in Century 21 Preferred Properties, Inc. v. Alabama Real Estate Commission, 401 So.2d 764 (Ala. 1981):

“This doctrine is based on the notion that ‘ [a] party ... is not at liberty to split up his demand and prosecute it by piecemeal, or present only a portion of the grounds upon which special relief is sought, and leave the rest to be presented in a second suit, if the first fail. There would be no end to litigation if such a practice were permissible.’ Baltimore Steamship Company v. Vernon Phillips, 274 U.S. 316 [47 S.Ct. 600, 71 L.Ed. 1069] (1926).”

401 So.2d at 768.

To sustain a plea of res judicata, the parties must be the same, the subject matter the same, the point must be directly in question, and the judgment must be rendered on that point. Suggs v. Alabama Power Co., 271 Ala. 168, 123 So.2d 4 (1960). All of these elements were present in the first case between these parties. Appellant has had its day in court, and the same issues were adjudicated, settled, and determined, and this is dispositive of this case. A judgment in a former action between the same parties is not only conclusive of the questions actually litigated, but also of any matter that could have been litigated in that prior suit. Owen v. Miller, 414 So.2d 889 (Ala.1981); Century 21 Preferred Properties, Inc., supra; Hester, supra.

The judgment of the trial court is affirmed.

AFFIRMED.

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


text:
    Ex Parte: Ruth T. TIDMORE. (In re: Ruth T. TIDMORE v. The TUSCALOOSA NEWS, INC., a corporation; Atlanta Newspapers, a corporation; The Birmingham Post Company, a corporation; The Advertiser Company, a corporation; Bill Berkeley; and Howell Raines).
    81-751.
    Supreme Court of Alabama.
    Aug. 20, 1982.

      Mark A. Stephens of Stephens & Gunter, Tuscaloosa, for petitioner.
    Perry Hubbard and Jay Guin of Hubbard, Waldrop, Tanner & deGraffenried, Tuscaloosa, for respondents.
   SHORES, Justice.

The sole issue presented by this petition for writ of mandamus is whether the trial court abused its discretion in disallowing an amended complaint. We hold that, under the facts of this case, it did not, and we deny the petition.

Plaintiff/petitioner filed suit on November 5, 1980, alleging invasion of privacy against The Tuscaloosa News, Inc., a corporation, Atlanta Newspapers, a corporation, The Birmingham Post Company, a corporation, The Advertiser Company, a corporation, Bill Berkeley, and Howell Raines. No fictitious party defendants were named or described. The suit was based upon articles published by the various newspapers at different times, the Tuscaloosa paper having carried the article on December 2, 1979. Thus, the statute of limitations as to that publication ran on December 2, 1980.

Defendant The Tuscaloosa News, Inc., filed its answer on December 18, 1980, in which it answered:

“2. Defendant admits that The Tuscaloosa News, Inc., is a corporation duly organized and existing under the laws of the State of Delaware, but denies that Defendant is engaged in the business of publishing and distributing newspapers in Alabama and throughout the United States, and denies that its principal place of business is located at 2001 6th Street, in the City of Tuscaloosa, Alabama. Defendant denies that it operates and publishes a newspaper known as The Tuscaloosa News. To the contrary, Defendant alleges that it is the Lessor of certain business premises located at 2001 6th Street, in the City of Tuscaloosa, Alabama, which premises are leased to an Alabama corporation, “Tuscaloosa Newspapers, Inc.,” which operates and publishes a newspaper known as The Tuscaloosa News. The Tuscaloosa News, Inc., and Tuscaloosa Newspapers, Inc., are separate and distinct corporations, which are not affiliated with each other, and they bear the sole relationship of Lessor and Lessee.”

Plaintiff/petitioner did not attempt to amend her complaint to meet the defect pointed out by the answer of The Tuscaloosa News, Inc., which clearly indicated that she had sued the wrong defendant.

Thereafter, on March 30, 1981, The Tuscaloosa News, Inc., filed a motion for summary judgment, based upon the single ground that it was not the entity which published The Tuscaloosa News. The motion was supported by an affidavit by the editor and publisher of The Tuscaloosa News, which again pointed out that the newspaper was leased and operated by a corporation known as “Tuscaloosa Newspapers, Inc.,” a corporation.

Again, the plaintiff/petitioner offered no amendment to change and correct the name of the defendant newspaper corporation, nor did she file any affidavits or offer any evidence to refute the facts offered in support of the motion.

The trial court entered its order granting summary judgment in favor of The Tuscaloosa News, Inc., on December 4,1981. The plaintiff did not seek a Rule 54(b), Alabama Rules of Civil Procedure, order and did not appeal. She alleges that she did file a motion to set aside the order granting summary judgment in favor of The Tuscaloosa News, Inc., on December 7, 1981, but does not include that motion in her exhibits to the petition for mandamus.

She filed an amendment to her complaint on December 17, 1981, for the first time naming Tuscaloosa Newspapers, Inc., and Charles H. Land, its editor, as defendants.

On January 19,1982, the trial court overruled the plaintiffs motion to set aside the summary judgment in favor of The Tuscaloosa News, Inc. On January 21,1982, Tuscaloosa Newspapers, Inc., filed its motion to strike the amended complaint which, after allowing a hearing, the court granted on April 27, 1982. Plaintiff filed this petition for writ of mandamus in this Court on June 8, 1982.

Amendments are to be freely allowed when justice requires. Rule 15, Alabama Rules of Civil Procedure. The amendment involved here is not one of right granted by ARCP 15(a), but is one changing parties, as opposed to substituting one party for another. It is, therefore, one within the discretion of the trial court under Rule 15(a), which permits the trial court to disallow it of its own motion or that of the adverse party unless justice will be denied by disallowing the amendment. Moreover, because the statute of limitations has run, the amendment relates back only if the requirements of ARCP 15(c) are met. The plaintiff/petitioner argues that those requirements are met and appears to assume that, if they are, the amendment is one of right and not one within the trial court’s discretion. In this assumption, she is wrong. Only those amendments allowed by ARCP 15(a) are permitted as a matter of right. All others are discretionary, with the admonition that they should be freely allowed if justice so requires. In Stallings v. Angelica Uniform Co., 388 So.2d 942 (Ala. 1980), we quoted from Stead v. Blue Cross-Blue Shield of Alabama, 294 Ala. 3, 310 So.2d 469 (1975), where the Court said:

“ ‘We simply state here that if Rule 15 is to be of any benefit to the bench, bar and the public, trial judges must be given discretion to allow or refuse amendments. However, we state that amendments are to be freely allowed and refusal of an amendment must be based on a valid ground.’ ”

The Court went on to say:

“Rule 15, ARCP, is not carte blanche authority to amend a complaint at any time. Discretion rests in the trial judge to deny amendments for good cause. In Walker v. Traughber, Ala. Civ. App., 351 So.2d 917 (1977), the court said: ‘[I]f the court determines, as it apparently did here, that a party has had sufficient opportunity to state a claim or revise his answer to a complaint but has failed to do so,, leave to amend may properly be denied.’ Cf. McElrath v. Consolidated Pipe & Supply Co., Ala. 351 So.2d 560 (1977), which is distinguishable on the facts. McElrath held that leave to amend pleadings should be liberally granted and that a court should not deny such amendments unless prejudice would result to the opposing party or unless there is an unexplained delay on the part of the moving party. In McElrath, however, inter alia, there was no evidence in the record that the amendments which were sought at the beginning of (and during) the trial could have been made at an earlier time.
“In the instant case, the plaintiff had sufficient opportunity to discover the facts and to amend her complaint earlier and failed to do so. In view of this unexplained delay, leave to amend was properly denied.”

388 So.2d at 946-947.

In this case, the plaintiff amended her complaint to bring in the proper defendant one day short of one year after she had been informed that the defendant originally named was not the proper party and more than a year after the statute of limitations had run. Additionally, in this case, the defendant promptly and correctly advised the plaintiff that she had sued the wrong entity and promptly and correctly advised the name of the correct entity. Thus, it was not a question of discovery, but merely one of amending to comport with information freely given. The plaintiff not only did not amend at that stage of the proceedings, but, instead, waited until summary judgment was granted on the identical ground. She took no steps to appeal that order, nor the order entered on her ARCP 59(e) motion, which was denied.

Given the facts here and the long delay on the part of the plaintiff in offering the amendment, we cannot say that the trial court abused its discretion in striking the amendment. As stated in 6 C. Wright and A. Miller, Federal Practice and Procedure § 1488 (1971):

“Nonetheless, in keeping with the purpose of Rule 15(a), which is to facilitate a determination of the action on its merits, a motion to amend should be made as soon as the necessity for altering the pleading becomes apparent.”

In accord: Kuhlman v. Keith, 409 So.2d 804 (Ala. 1982).

Where a party adding the correct party unduly delays filing an amendment after having notice that he has sued the wrong person or entity, the trial court will not be reversed in disallowing the amendment, particularly where, as here, the party sought to be added would be prejudiced thereby.

The plaintiff/petitioner argues that Tuscaloosa Newspapers, Inc., has not been prejudiced by the delay in naming it as a defendant because it knew or should have known about the transaction made the basis of the suit. Rule 15(b), ARCP. Had the amendment been timely, we might have agreed. But, where the plaintiff has delayed until more than two years after the publication of the articles to bring in the proper entity and a year after receiving knowledge of the fact that she had sued the wrong defendant, Tuscaloosa Newspapers, Inc., might well have assumed that the plaintiff had abandoned her claim against it, especially where there were other defendants remaining in the case.

For the foregoing reasons, the writ of mandamus is denied.

WRIT DENIED.

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


author: ALMON, Justice.

text:
    UTILITY SERVICE CORPORATION OF HUNTSVILLE d/b/a Peterson Electric Co. v. ALUMINUM INTERNATIONAL CORPORATION.
    79-773.
    Supreme Court of Alabama.
    Aug. 27, 1982.
    L. Vastine Stabler, Jr., and William K. Thomas of Cabaniss, Johnston, Gardner, Dumas & O’Neal, Birmingham, for appellant.
    Philip A. Geddes, Huntsville, for appellee.
   ALMON, Justice.

This is a contract case. The trial judge, sitting without a jury, resolved all issues in favor of the appellant but failed to award any damages on its counterclaims.

The plaintiff-appellee, Aluminum International Corporation (hereafter AIC), was the prime contractor with the United States Navy, which in turn had a contract with the country of Iran and its Imperial Iranian Navy. The purpose of this contract arrangement was to supply prefabricated aluminum buildings for missile stations for the prerevolutionary government of Iran.

The defendant-appellant and counter-claimant, Utility Service Corporation of Huntsville, Inc., d/b/a Peterson Electric Company (hereafter Peterson), contracted with AIC as an electrical subcontractor. None of the contracts were completed because the prime contract has been the subject of a United States government imposed “Termination for Convenience” resulting from the fall of the Imperial Iranian Government and the consequent deterioration in relations between the United States and the new revolutionary government of Iran.

AIC brought an action against Peterson for breach of contract; an accounting; misrepresentation; and injunctive relief. Peterson answered and asserted counterclaims for breach of contract; work and labor done; and fraud and misrepresentation.

The trial court rendered the following judgment:

“This cause was submitted upon the pleadings and the evidence; and upon consideration of same, the Court finds the issues in favor of defendants.
“Judgment in favor of the defendants Peterson and Utility Supply Co. Costs taxed to plaintiff.”

The judgment was later amended to correctly name the appellant Utility Service Corporation, but no other findings of fact or conclusions of law were made. The court also denied a motion to alter or amend the judgment to include damages.

Peterson’s sole contention is that the court erred in failing to award damages. We have reviewed the record and conclude there is evidence which entitles Peterson to damages. The state of the record and briefs leave us somewhat in doubt as to why the trial court failed to award damages. We note that the briefs make no argument with reference to federal law or government procurement regulations and there is no suggestion that this case was decided on any basis other than general contract law. We have reviewed the pretrial order and the judgment of the court, which had the effect of ruling against AIC on its claim and for Peterson on its counterclaims. With the record in this posture we have no alternative but to reverse the judgment and remand the cause for the trial court to award an appropriate sum in damages to Peterson.

REVERSED AND REMANDED.

TORBERT, C.J., and FAULKNER, EM-BRY and ADAMS, JJ., concur.