author: EMBRY, Justice.

text:
    Dorothy H. CARON, et al. v. Ruth K. TEAGLE, et al.
    80-274.
    Supreme Court of Alabama.
    Dec. 23, 1981.

      J. Conner Owens, Jr. of Owens & Simpson, Bay Minette, for appellants.
    Norborne C. Stone, Jr. and Charles C. Partin of Stone, Partin, Granade & Crosby, Bay Minette, for appellees.
   EMBRY, Justice.

This appeal arises from a retrial of the controversy which was the subject of our decision in Caron v. Teagle, 345 So.2d 1331 (Ala.1977). Upon remand, in this action involving an alleged contract to convey real estate to the Teagles, they amended their complaint to withdraw the claims for specific performance and to add counts sounding in fraud and deceit. The jury in the second trial awarded the Teagles $35,000 compensatory and $10,000 punitive damages. The Carons appeal, complaining of the denial of their motion for a directed verdict and motion for JNOV, or in the alternative, for a new trial, the failure to dismiss the amended complaint, and alleged error in the trial court’s instructions to the jury.

The facts as developed in the second trial are substantially the same as those set out in the earlier opinion. In August of 1973, defendant Central Insurance Agency of Mobile, Inc., through Dorothy Caron, its president, deeded four lots to Ruth Teagle. The Teagles made installment payments on the purchase price of these lots through January of 1975. During the fall of 1974, the parties were negotiating a modification of the purchase agreement. The Teagles asserted that Frank Caron agreed to apply all payments made up to that point to one lot if the Teagles would return the deeds to the four lots. On 22 February 1975, the Tea-gles returned the four deeds and executed a warranty deed reconveying the four lots. They said Frank Caron promised to prepare and execute a deed conveying Lot 11 to them, having, at that time, no intention of doing so, and thereby defrauded them of their interest in the property.

On appeal, the Carons initially contend the fraud action was barred by the Statute of Frauds. However, it is well settled in Alabama that fraud may be predicated upon a breach of contract which is void, because not in writing, where the contract was made for the purpose of perpetrating the fraud. Spry Funeral Homes, Inc. v. Deaton, 363 So.2d 786 (Ala.Civ.App.1978); Spencer v. Spencer, 254 Ala. 22, 47 So.2d 252 (1950).

Turning to the errors allegedly committed during trial, we find the most glaring, and a dispositive one, relates to the trial court’s instructions to the jury. During its deliberation the jury sent the following written question to the trial judge: “Can the Plaintiffs receive Lot Eleven or do we have to award the cash value?” Counsel for the Carons promptly objected to the question being answered, but the objection was overruled. The trial court then wrote upon the same paper by which the jury had sent its question, and while doing so, stated to the parties: “I’m putting down the Plaintiffs cannot receive Lot Eleven. The jury can only award money damages. I will tell them, if you are reasonably satisfied that the Plaintiffs are entitled to damages, too.” To these statements, counsel for the Carons responded, “I specifically object to the second response as being in the nature of a charge of the jury.”

Permitting this written answer, tantamount to “ ‘given’ written instructions” under Rule 51, ARCP, to be sent to the jury was reversible error, per se. Rule 51, in pertinent part, provides: “Neither the pleadings nor ‘given’ written instructions shall go into the jury room.”

In addition to violating Rule 51, the trial court’s written answer was misleading because it permitted the jury to award money damages not limited by definition to the value of the disputed property. This prejudicial effect was demonstrated by the jury’s verdict of $35,000 compensatory damages although the evidence clearly showed the value of Lot 11 was $14,000, in November 1974, when Mr. Caron allegedly promised to apply all payments to one lot. Its value in February 1975, when he accepted a return of the four deeds without delivering a deed to Lot 11, was shown to be $17,000. Therefore, the maximum compensatory damage award supported by the evidence would be the sum of $17,000, the value of the lot at the time the Teagles claim the injury occurred.

In view of the fact that the judgment in this case must be reversed for the error we ha,ve addressed, we do not find it necessary to write to other issues raised by the parties.

This cause is due to be and is hereby reversed and remanded for further proceedings consistent with this opinion.

REVERSED AND REMANDED.

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

      . Although Frank Caron is not a party, we refer to defendants/appellants as the Carons for convenience.


source: Caselaw Access Project

author: FAULKNER, Justice.

license: Public Domain

text:
    ALORNA COAT CORPORATION, INC., et al. v. Jacob S. BEHR and Kay Behr.
    80-496.
    Supreme Court of Alabama.
    Dec. 23, 1981.

      Daniel E. Robison, Dothan, for appellants.
    Richard H. Ramsey, III, Dothan, for ap-pellees.
   FAULKNER, Justice.

Alorna Coat Corporation is a company engaged in the business of selling women’s clothing. Alorna Coat is a foreign corporation incorporated under the laws of New York. Alorna Coat filed an action against the defendants Jacob S. and Kay Behr, and Paulette Tanner to attempt to establish their personal liability for the debts of Behr, Inc., a Georgia corporation doing business in Alabama. Several other plaintiffs, all creditors of Behr, Inc., joined in the action. Alorna Coat, as well as the other plaintiffs, sold merchandise to Behr, Inc. on credit. The corporation never paid these debts. The plaintiffs seek to recover the amount of the debt and punitive damages.

The plaintiffs allege that at the time Behr, Inc. bought merchandise on credit, the corporation was in a serious financial condition. Several suits were pending against the corporation. The corporation failed to pay its franchise tax in 1978 and 1979. The plaintiffs allege that Jacob Behr, Kay Behr, and Paulette Tanner, as agents, officers or directors of the corporation fraudulently concealed this information and induced the various plaintiffs to extend credit to the corporation.

The complaint was amended to add a count alleging that Jacob S. Behr was the alter ego of the corporation and used Behr, Inc. to defraud the creditors. The plaintiffs alleged in paragraph 6 of the amended complaint:

6. The corporation was under the individual domination of Jacob S. Behr. He transferred funds back and forth between the corporate bank accounts and other business accounts. He owned all, or substantially all, of the stock of the corporation. The corporation was under-capitalized. The shareholders and directors did not meet regularly. The other directors had no active voice in running the affairs of the corporation. The corporation has been a shell for the past two years, not even paying the Alabama corporate franchise tax. When the Defendant closed the Dothan store in 1977, he did not notify his creditors as required by the Alabama Bulk Sales Act. The Defendant has been, and is, paying debts of the corporation with funds taken from other businesses which he owns. No corporate formalities have been, or are, observed and the corporation is Jacob S. Behr and Jacob S. Behr is the corporation.

The trial court granted the defendants’ motion to dismiss for failure to state a claim upon which relief can be granted, pursuant to ARCP 12(b)(6). We reverse.

A motion to dismiss for failure to state a claim should seldom be granted. Bragg v. Jim Skinner Ford, Inc., 396 So.2d 1055 (Ala.1981); Winn-Dixie Montgomery, Inc. v. Henderson, 371 So.2d 899 (Ala.1979). A motion to dismiss should be granted only when it appears on the face of the complaint the plaintiff can prove no set of facts entitling him to relief. Id. The issue presented by a motion to dismiss is not the likelihood of the plaintiffs’ prevailing in the action, but whether the plaintiffs should be permitted to present evidence in support of the claim. Schuerer v. Rhodes, 416 U.S. 232, 94 S.Ct. 1683, 40 L.Ed.2d 90 (1976).

The complaint in the present action is clearly sufficient to survive a motion to dismiss. If the plaintiffs can prove their allegations that Behr is the “alter ego” of Behr, Inc., they will be entitled to recover.

A complaint states a cause of action if any set of facts can establish that a shareholder, director, or officer is the alter ego of a corporation. Leeward Petroleum, Ltd. v. Mene Grande Oil Co., 415 F.Supp. 158 (D.Del.1976). See Tri-State Building Corp. v. Moore-Handley, Inc., 333 So.2d 840 (Ala.1976); Cohen v. Williams, 294 Ala. 417, 318 So.2d 279 (1975). While the presumption in Alabama is that a corporation is a separate and distinct legal entity from its shareholders, officers and directors, this rule may be disregarded in the appropriate circumstances, such as when the corporate form is being used to evade personal responsibility. Cohen v. Williams, 294 Ala. 417, 318 So.2d 279 (1975). The decision of when to impose personal liability on a shareholder or officer is a question of fact to be determined on a case by case basis. Id. Therefore, a motion to dismiss is seldom proper in such a case.

We hold that the trial court erred in dismissing the complaint for failure to state a claim. The judgment is reversed and the cause remanded.

REVERSED AND REMANDED.

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


text:
    Mary Alice GOODSON and Ed Goodson v. ELBA BAKING CO., et al.
    80-500.
    Supreme Court of Alabama.
    Dec. 23, 1981.

      Griffin Sikes of Tipler, Fuller & Sikes, Andalusia, for appellants.
    A. R. Powell, III of Powell & Powell, Andalusia, for appellees.
   FAULKNER, Justice.

This is an appeal from a jury verdict in favor of the defendants in an automobile accident case. On December 6,1979, Lionel Eugene Glass was driving a truck owned by his employer, Elba Baking Company. It was a wet, rainy day. The plaintiff, Mrs. Mary Alice Goodson, was ahead of Glass. Goodson was attempting to turn left, into her driveway. There was a conflict in testimony concerning whether Goodson made a left turn signal. Mr. Glass and a witness testified that Mrs. Goodson made no turn signal, but angled into the left lane as if to make a turn. Both parties applied their brakes.

Mr. Glass testified that Goodson pulled her car back into the right lane. Mr. Glass was unable to stop, and the truck he was driving struck the vehicle driven by Mrs. Goodson.

Mrs. Goodson did not seek immediate care. Later, she learned from her doctor that she suffered neck and back injuries. Nevertheless, evidence was introduced at trial that less than two months before the accident, Mrs. Goodson was in another automobile accident in which her truck spun and rolled over. Mrs. Goodson was hospitalized and sent to a neurologist in Pensacola, Florida, where she spent additional time in the hospital. There was testimony at trial that this earlier accident could be the cause of her back and neck injuries. Mrs. Goodson had a long history of back problems and had a back operation as a result of an automobile accident in 1957.

Mrs. Goodson underwent another back operation after the accident. Goodson and her husband brought suit against Mr. Glass and Elba Baking Company, seeking damages for negligence. The jury rendered a verdict in favor of the defendants. The plaintiffs made a motion for a judgment notwithstanding the verdict, or in the alternative, for a new trial. The trial court denied the motion. We affirm.

Conflicting evidence was presented at trial on the factual issues of whether Mr. Glass negligently operated the truck and whether the accident caused Mrs. Good-son’s injuries. Both breach of a legal duty and proximate cause are necessary elements of a negligence claim. Quillen v. Quillen, 388 So.2d 985 (Ala.1980). Obviously, the jury resolved these questions of fact in favor of the defendants. It is the function of the jury to resolve controverted issues of fact. Fleming v. Kirkpatrick, 371 So.2d 16 (Ala.1979). The verdict of a jury is presumed to be correct, and will not be set aside unless it is against the preponderance of the evidence, or, viewed in the light most favorable to the non-moving party, is clearly wrong and unjust. Trans-South-Rent-A-Car, Inc. v. Wein, 378 So.2d 725 (Ala.1979). .The verdict of the jury is supported by credible evidence. Therefore, the judgment of the trial court is affirmed.

AFFIRMED.

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


text:
    James W. AIRD, Executor of the Estate of Mary Andrews Horton v. Laura Grace THOMAS.
    80-583.
    Supreme Court of Alabama.
    Dec. 23, 1981.
    James W. Aird, Mountain Brook, for appellant.
    A. Allen Ramsey of Engel, Hairston, Moses & Johanson, Birmingham, for appellee.
   FAULKNER, Justice.

This case originated as a petition to require final settlement and to remove James W. Aird as executor of the estate of Mary Andrews Horton. Laura Grace Thomas brought the petition as sole beneficiary under the will of Mrs. Horton, her mother. The settlement filed by Mr. Aird contained numerous charges against the estate which he claimed for services rendered in perfecting Mrs. Thomas’s title to a fractional interest in a 40-acre tract of land which passed to her under the will. The trial court denied these charges, essentially on the ground that they were chargeable not to the estate but rather to the proceeds of a sale for division of the 40-acres ordered in a separate action; furthermore, it ordered Mr. Aird to pay into the estate $1,778.37, which he had received and which was due to creditors and Mrs. Thomas.

Mr. Aird appeals from this judgment to this Court, arguing that he is entitled to a lien on Mrs. Thomas’s land to satisfy the fees and expenses he claims for his efforts on behalf of the estate and Mrs. Thomas. Mrs. Thomas counters that Mr. Aird did not file a claim against the estate within the time allowed by law, that these charges are not allocable to the estate, and that Aird does not question the correctness of the findings and judgment made by the trial court, without a jury. We agree that the trial court’s judgment is supported by credible evidence and affirm.

The last will and testament of Mary Andrews Horton was admitted to probate on June 18, 1974; it named Mr. Aird as executor. The estate was small, consisting primarily of a two-eighths interest in a 40-acre tract of land in Jefferson County, which Mrs. Horton’s father had left to his eight children. On March 30,1978, Mr. Aird filed an action in his name as executor and in Mrs. Thomas’s name against the remaining partial-interest holders, praying for a sale for division of the 40-acre tract (we will refer to this as the partition action). Also in 1978, the State of Alabama filed a condemnation action against a portion of the 40-acre tract, naming as defendants Mr. Aird as executor, in addition to the other interest holders.

Mrs. Thomas was awarded a three-eighths share of the property by consent decree in the partition action; she asserts that this is the same share to which she was entitled regardless of Mr. Aird’s efforts. The jury awarded $5,200 for condemnation of the parcel sought by the state. From this award, $1,222.37 was paid to Mr. Aird as executor. When Mrs. Thomas petitioned for final settlement of the estate in June, 1980, Mr. Aird included approximately $12,-000 in fees and expenses for his efforts in the partition and condemnation cases. In its final judgment in this case, the trial court noted,

The real estate in [the partition action] has not been sold and there is no reason for holding this case open until it is sold... . Should there be an issue as to his fee in [the partition action] that will be the proper case for it to be resolved in.

We agree with this conclusion.

The condemnation action is in a different posture, however. That case is closed and the amount due the estate has been paid to Mr. Aird. The court below ordered him to pay this sum to Mrs. Thomas and allowed him to keep none of it as his fee. Nevertheless, we do not find that the trial court is to be reversed on this aspect of the case either. The code sections which provide for awarding administrator’s commissions, attorney’s fees, and expenses are permissive, not mandatory. Code 1975, §§ 43-2-680 and 43-2-682; Smith v. McNaughton, 378 So.2d 703 (Ala.1979). In view of the small size of the estate, the length of time which the estate was- held open beyond the non-claims period, and the dispute over the need for Mr. Aird’s services, we are unable to say that the trial court abused its discretion.

There are a number of other charges which Mr. Aird makes in his settlement and which the court disallowed. These were disputed for various reasons — a probate fee for which Mr. Aird had been reimbursed, taxes and other expenses for which he had not kept receipts or cancelled checks, long distance phone calls to Mrs. Thomas four years after the estate was opened, etc. The trial court’s decree is not palpably wrong and so will be affirmed under the ore tenus rule. Smith v. McNaughton, supra.

AFFIRMED.

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

      . This Court dismissed an earlier appeal of this case, on the grounds that no final judgment had been entered. Aird v. Thomas, 399 So.2d 844 (Ala.1981). At that time Mr. Aird’s motion to review and revise judgment on final settlement, motion for new trial, motion for relief from judgment, and motion to dismiss motion of Laura Grace Thomas were outstanding. The trial court held a hearing on these motions on May 11, 1981, and denied them on May 19, 1981, while amending its judgment pursuant to Mrs. Thomas’s motion. It is from this decree that Mr. Aird now appeals.


author: ADAMS, Justice.

text:
    Luther J. SHIVER v. Charles A. WAITES.
    80-652.
    Supreme Court of Alabama.
    Dec. 23, 1981.
    Kenneth Cooper, Bay Minette, for appellant.
    Thomas M. Taul, III, Mobile, for appellee.
   ADAMS, Justice.

This appeal comes to us from the Circuit Court for Baldwin County. Waites (plaintiff) brought suit for assault and battery against Shiver (defendant), seeking damages for personal injuries. The case was tried before a jury, which returned a verdict in the amount of $20,000.00 compensatory and $5,000.00 punitive damages. The trial court entered judgment accordingly and defendant appealed after his motions for judgment notwithstanding the verdict, new trial, and remittitur were denied.

In essence, defendant raises three issues on appeal. For reasons discussed below we find all of them to be without merit and we, therefore, affirm. We will consider separately each issue.

On March 9, 1979, defendant went to plaintiff’s home purportedly for the purpose of discussing a disputed amount of money due him from plaintiff’s prior occupancy of his trailer lot. Plaintiff testified that upon arrival the defendant exited from his truck, approached the plaintiff with a claw hammer in hand, and attacked him. The evidence showed that plaintiff was struck with the claw hammer a number of times about his head, receiving cuts and gashes. Plaintiff was hospitalized from March 9 through March 11, 1981. He sustained medical expenses in the amount of $1,375.53. At the time of trial plaintiff testified that he suffered continued problems as a result of the attack. He related that he could not hear as well as he could before the attack. Plaintiff also testified that he had trouble with his balance and that he had impaired vision in one eye.

The first issue raised by the defendant is whether the jury’s award of $20,-000.00 compensatory and $5,000.00 punitive damages was so excessive as to require a new trial. The defendant also contends that the trial court erred in not granting his motion for remittitur. Defendant attempts to support his argument by saying there is nothing in the record to show that plaintiff’s injuries are permanent in nature. Defendant calls to our attention the fact that the eye in which plaintiff testified he had impaired vision is the same one in which he earlier had a cataract operation. Considering those and other points raised by the defendant, we find no error by the trial court. It is well settled that we will not interfere with a jury verdict merely because we believe the jury gave too much or too little, and that great caution is exercised before a verdict is disturbed on the ground of excessiveness. Aspinwall v. Gowens, 405 So.2d 134 (Ala.1981); Carlisle v. Miller, 275 Ala. 440, 155 So.2d 689 (1963). Our review of the facts leads us to conclude that the verdict is easily supported by the evidence and we, therefore, decline to disturb it.

Next, defendant argues that the photographs depicting plaintiff’s injuries are too blurred, fuzzy, and confusing to have been properly admitted into evidence. In Raines v. Williams, 397 So.2d 86 (Ala.1981), we observed:

Photographs and testimony are relevant and admissible to help the jury to better understand the persons, object, locale, or conditions in issue. However, relevancy and introduction of both testimony and photographs are within the sound discretion of the trial court. This discretion is not reviewable in the absence of a gross abuse of that discretion. Costarides v. Miller, 374 So.2d 1335 (Ala.1979); Moon v. Nolan, 294 Ala. 454, 318 So.2d 690 (1975).

Raines v. Williams, at 88. After reviewing copies of the photographs admitted into evidence, we cannot say that the trial court committed a gross abuse of its discretion in admitting them. Although the clarity of the photographs could be better, they, nevertheless, show plaintiff with gashes and cuts on his head. Consequently, we find no error in the trial court’s ruling.

Finally, the defendant, in effect, argues that the verdict is contrary to the weight of the evidence. Defendant apparently argues that the trial court committed reversible error by denying his post-trial motions for JNOV, or in the alternative, new trial. Plaintiff’s testimony, defendant insists, was inconsistent with a statement he had made to his physician concerning the length of time he was unconscious from the attack. The defendant theorizes that the jury should have found plaintiff’s testimony untruthful and, therefore, disregarded it in its entirety. The defendant also argues that the jury apparently disregarded his own testimony. In short, the defendant’s argument reduces itself to the proposition that the jury should have seen things his way. Assuming, without deciding, that they could have returned a verdict for the defendant, the fact remains that they did not. The following principle of law enunciated by this court addresses defendant’s argument.

The ground of the motion that the verdict of the jury is contrary to the law and the evidence presents no other question than a consideration of the evidence to see if allowing all reasonable presumptions in favor of the correctness of the verdict, the evidence against the verdict is so decided as to clearly convince the court that it is wrong and unjust. State v. Boone, 276 Ala. 16, 158 So.2d 658. We have considered the evidence, and it is amply sufficient to sustain the verdict of the jury, and it does not appear wrong or unjust. The verdict will not be disturbed by this court on motion to set it aside on the ground it is contrary to the evidence, unless the evidence clearly convinces us that it is wrong and unjust. Atlantic Coast Line R. Co. v. Burkett, 207 Ala. 344, 92 So. 456.

Water Works and Sanitary Sewer Board of the City of Montgomery v. Norman, 282 Ala. 41 at 46, 208 So.2d 788 at 792 (1968). Where the evidence is conflicting, this court will not substitute its judgment for that of the trier of facts. Tutwiler v. Etheredge, 285 Ala. 219, 231 So.2d 93 (1970). A denial of a motion for a new trial strengthens the presumption of correctness of a jury’s verdict. Cecil Crews Chevrolet-Oldsmobile, Inc. v. Williams, 394 So.2d 912 (Ala.1981); Water Works and Sanitary Sewer Board of the City of Montgomery v. Norman, supra. Our review of this case does not allow us to conclude that “the evidence is so preponderant against the verdict as to clearly indicate that it was wrong and unjust.” Cecil Crews Chevrolet-Oldsmobile, Inc. v. Williams, supra. We are, therefore, unable to reverse. The judgment of the trial court is affirmed.

AFFIRMED.

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


text:
    Alfred W. GOLDTHWAITE v. DISCIPLINARY BOARD OF the ALABAMA STATE BAR.
    80-177.
    Supreme Court of Alabama.
    Jan. 8, 1982.

      E. C. Hornsby of Hornsby & Schmitt, Tallassee, for appellant.
    William H. Morrow, Jr., General Counsel, Montgomery Alabama State Bar, for appel-lee.
   ADAMS, Justice.

Alfred W. Goldthwaite, a Montgomery attorney, appealed from an adverse decision of Panel II of the Disciplinary Board of the Alabama State Bar, in which he was found guilty on two counts of an eleven-count complaint alleging various violations of the Alabama Code of Professional Responsibility. He was suspended from practicing law for ninety days by the Disciplinary Board. The first count on which Goldthwaite was found guilty alleged that he solicited employment in contravention of DR 2-103(A)(1). The other count on which he was found guilty alleged that he represented parties to a cause after having represented a party with an adverse interest in the same cause, and that he did so through the actions of another attorney and thereby attempted to circumvent a disciplinary rule. This latter count is founded on alleged violations of DR 5-101(C) and DR 1-102(A)(2), respectively.

Although Goldthwaite raises numerous issues, two issues and the questions posed thereby are dispositive of this appeal. The first is: Did Goldthwaite’s act of suggesting his own employment to a layman violate DR 2-103(A)(l), or did it come within one of the exceptions provided in DR 2-105(A)(1), thereby bringing it outside the proscription of the former rule? The second issue is: When Goldthwaite changed sides and became a party contestant of the will after previously having been employed by the bank which was executor of the estate, did he violate the proscription against representing parties to a cause after previously representing an adverse interest and further, did he do so through the actions of another attorney and thereby attempt to circumvent a disciplinary rule? After careful consideration of the issues presented in the two counts on which Goldthwaite was convicted, we are unable to find that he violated any provisions of the applicable disciplinary rules. Accordingly, we reverse the decision of the disciplinary board. We will consider separately the two counts on which Goldthwaite was convicted.

I. The Charge of Solicitation: DR 2-103(A)(1) and DR 2-105(A)(l)

Goldthwaite was charged and convicted of soliciting his employment as attorney for Alabama National Bank of Montgomery in the Estate of William Pelzer Arrington. The charge stems from a conversation between Goldthwaite and Louie H. Moore, Chief Executive Officer and Chairman of the Board of the Alabama National Bank. Shortly before Arrington’s death, Goldth-waite went to see Moore and informed him that Arrington was dying. Goldthwaite testified he advised Moore, “I don’t know if there is a will whether the bank will be named executor ... if you need an attorney I’m Billy’s first cousin and bear me in mind.” Testimony at the disciplinary hearing established that Goldthwaite and Ar-rington were also close friends and had been since just after the end of World War II. Additional testimony revealed the following facts. Arrington’s maternal grandfather, who died in 1931, was William K. Pelzer, one of the founders of the Alabama National Bank and a majority stockholder in it. He also was a “big” stockholder in the Durr Drug Company. Archie Arring-ton was the father of William Pelzer Ar-rington, and was Goldthwaite’s guardian. Goldthwaite was born and reared in the Goldthwaite-Arrington home in Montgomery. Archie Arrington totally supported Goldthwaite while he was growing up. Relatives of Goldthwaite and the Arringtons had a close and often interwoven relationship with the Alabama National Bank and the Durr Drug Company. Goldthwaite testified that he was the only male in his family who was not on the payroll of either one.

Louie H. Moore acknowledged at the disciplinary hearing that he and Goldthwaite were close friends and that he was a former attorney for the Alabama National Bank and a good customer of it. Goldthwaite also testified to his close relationship with the Alabama National Bank. He explained that while he was Montgomery County Attorney he resisted an attempt to move the county’s account away from the Alabama National Bank. Goldthwaite further related that he had sent clients to the bank and had chosen it for the purpose of closing business transactions and Farmers Home Administration loans. Goldthwaite recalled that when he was nine years old, the president of the Alabama National Bank showed him how to fill out a deposit slip. At the time of Goldthwaite’s conversation with Moore, he was aware of the fact that the Montgomery law firm of Jones, Murray, Stewart and Yarbrough was employed by the Alabama National Bank on a regular retainer basis.

The starting point for our inquiry into whether Goldthwaite is guilty of solicitation begins with an examination of the relationship between DR 2-103(A)(l) and DR 2-105(A)(1). The rule against solicitation is contained in the provisions of DR 2-103. DR 2-103(A)(l) provides:

(A) A lawyer shall not:
(1) Solicit his employment or professional employment or engagement of another whose partner he is, or from whose employment there is an expectation of profit or benefit, directly or indirectly, to himself.

Exceptions to the proscription against solicitation are contained in DR 2-105. DR 2-105(A)(l) provides:

(A) A lawyer who has given unsolicited advice to a layman that he should obtain counsel or take legal action shall not accept employment resulting from that advice, except that:
(1) A lawyer may accept employment by a close friend, relative, former client (if the advice is germane to the former employment), or one whom the lawyer reasonably believes to be a client.

Goldthwaite contends that DR 2-105(A)(1) operates to modify DR 2-103(A)(1) so that, within the provisions of DR 2-105(A)(l), an attorney may suggest his employment to a close friend, relative, or former client, without being guilty of solicitation. The Bar, however, argues that DR 2-105(A)(l) permits an attorney to give unsolicited advice to anyone, but that he may accept employment resulting from such unsolicited advice to a close friend, relative or former client only when such advice was given to prevent a miscarriage of justice or irreparable harm. We find the Bar’s argument untenable and we agree with Goldthwaite. The Bar correctly notes that the rule against solicitation should be enforced strictly. Dodd v. Board of Commissioners of the Alabama State Bar, 365 So.2d 975 (Ala.1979); See Ex parte Newton, 265 Ala. 650, 93 So.2d 164 (1957). However, we find that the very wording of DR 2-105(A)(1) creates exceptions to the general proscription against solicitation in the cases of “a close friend, relative, former client (if the advice is germane to the former employment), or one whom the lawyer reasonably believes to be a client.” The restrictive interpretation that the Bar urges we place on DR 2-105(A)(l) conflicts with the clear intent of that disciplinary rule, and is inharmonious with the fundamental nature of the relationships listed as exceptions to the proscription against solicitation. We perceive a valid distinction between those coming within any of the categories listed as exceptions in DR 2-105(A)(l) and other laymen. In the case of “a close friend, relative, [or] former client,” such an individual is less likely to be the subject of unethical practices or pressures. Presumably such an individual knows the competence and integrity of the advising attorney and can better evaluate the propriety of employing him than can laymen who are not within those categories. Additionally, the exceptions provided by the rule allow an attorney’s conduct to comport with the demands of the relationships involved in the cases of close friends and relatives, and with the propriety of fulfilling one’s professional role in the cases of former clients and those reasonably believed to be clients. Reason, therefore, compels us to conclude that the exceptions provided in DR 2-105(A)(l), are a modification of DR 2-103(A)(l), and that the operation of DR 2-105(A)(l) is not dependent upon exceptional circumstances necessitating that an attorney offer unsolicited advice, and accept employment therefrom, only in situations manifesting a miscarriage of justice or irreparable harm. This does not mean that an attorney may engage in conduct that is champertous or otherwise unethical. Nevertheless, it does mean that DR 2-105(A)(l) means what it clearly says in that an attorney may accept employment from unsolicited advice to anyone within one of the designated categories in that rule.

Our next inquiry is: Did Goldth-waite come within one of the exceptions to DR 2-103(A)(l) as provided in DR 2-105(A)(1)? We hold that he did. We have reviewed the evidence and arguments supporting both sides and conclude that the evidence overwhelmingly places Goldth-waite’s action within the scope of DR 2-105(A)(1). Goldthwaite’s action whereby he suggested his employment to Moore can be sanctioned in a number of ways. It is undisputed that Goldthwaite and Moore were close friends, as reflected in their testimony. Moore testified that he was not offended by Goldthwaite’s suggestion that the bank employ him as the attorney for Ar-rington’s estate, and that he did not feel his privacy had been invaded by Goldthwaite’s suggestion. That certainly is consistent with a close friendship between the two. We observe also that Goldthwaite could be described as a close friend of the Alabama National Bank. (Moore, in fact, testified that the bank considered Goldthwaite a friend.) His personal efforts on behalf of the bank, the fact that he previously represented it, and his family’s connection with it, dictate that we view Goldthwaite’s request to the bank (through Moore) for employment differently than if the request were made by a stranger to that entity. Goldthwaite’s request for employment, therefore, could be justified within the scope of DR 2-105(A)(l) by viewing that request as one made to the Alabama National Bank.

Lastly, although not coming within the scope of DR 2-105(A)(l), Goldthwaite’s request for employment if viewed as motivated by a desire to help the estate of his dying cousin might also provide an independent defense to the charge of solicitation. At the time of Goldthwaite’s conversation with Moore, Goldthwaite already was representing Arrington on other matters. Goldth-waite and Arrington had been close friends for a long time. The record reflects the fact that Goldthwaite was concerned about Arrington’s impending death, and had several conversations with Moore regarding it. The record discloses that Goldthwaite and Moore had several conversations in which Goldthwaite indicated his desire to move Arrington to another hospital during his last illness. Arrington had named the Alabama National Bank as executor under his will. He designated Goldthwaite as his alternative choice for an attorney to assist the bank in carrying out its duties under his will. As it turned out, Arrington’s first choice for an attorney predeceased him. Goldthwaite’s designation as attorney for the estate was unknown to him until after Arrington’s death. Considered in their entirety, the above facts do not show prohibited solicitation in Goldthwaite’s actions.

II. The Charge of Representing Parties to a Cause After Representing an Adverse Interest and Attempting to Circumvent a Disciplinary Rule: DR 5-105(C) and DR 1-102(A)(2)

Several hours after Arrington’s funeral, Goldthwaite was hired to represent the bank which was executor of Arrington’s estate. Arrington’s will and codicil were admitted to probate on July 19, 1977. On September 16, 1977, the bank paid Goldth-waite a fee in the amount of $10,000.00. On January 9 or 10, 1978, Goldthwaite discussed with J. Paul Lowery, Esq., (Lowery) his willingness to become a party contestant if others decided to commence action. Some of Arrington’s heirs filed a petition on January 17, 1978, to contest his will. The following day Goldthwaite realigned his position from that of party proponent to party contestant. Goldthwaite testified that he realigned his position because he did not want to be on the opposite side of the action from all the members of his family. On January 19,1978, Goldthwaite wrote to Alabama National Bank advising that he had joined in the will contest and could not represent the estate at that time.' At the disciplinary hearing, Goldthwaite acknowledged that as one of Arrington’s heirs at law, he would have received more than he would have under the provisions Arrington made for him in his will. The value of Arrington’s estate exceeded several million dollars.

The will contestants hired Lowery to represent them. That contest eventually came before this court in Arrington v. Working Woman’s Home, 368 So.2d 851 (Ala.1979), in which this court affirmed the trial court’s grant of summary judgment against the contestants. Apparently Lowery also subsequently defended the contestants in an action by the bank for attorney’s fees, which action was unsuccessful. Goldth-waite took no part in assisting the will contest until June 1978, when he provided Lowery with an affidavit for the trial court’s consideration of the motion for summary judgment which was pending at the time. Goldthwaite acknowledged that when the will contest was appealed to this court, he wrote most of the appellate brief for Lowery. In addition, Goldthwaite further acknowledged that the appellate brief may have been typed in his office.

The Bar alleges that Goldthwaite violated DR 5-101(C) by representing the will contestants after having been the bank’s attorney in Arrington’s estate. DR 5-101(C) provides:

A lawyer shall not represent a party to a cause or his successor after having previously represented an adverse party or interest in connection therewith.

The Bar further alleged that Goldthwaite acted through Lowery and, thereby, attempted to circumvent a disciplinary rule through the actions of another in contravention of DR 1-102(A)(2):

(A) A lawyer shall not:
(2) Circumvent a Disciplinary Rule through actions of another.

In Ex parte Taylor Coal Company, 401 So.2d 1 (Ala.1981), we adopted the “substantial relationship” test, which is used in deciding disputes as to the propriety of an attorney’s representing a party to a cause after having represented the other side. An attorney who has dealt with matters substantially related to his former client may not later represent the former client’s adversary in the same matter.

[T]he former client need show no more than that the matters embraced within the pending suit wherein his former attorney appears on behalf of his adversary are substantially related to the matters or cause of action wherein the attorney previously represented him, the former client. The court will assume that during the course of the former representation confidences were disclosed to the attorney bearing on the subject matter of the representation. It will not inquire into the nature and extent. Only in this manner can the lawyer’s duty of absolute fidelity be enforced and the spirit of the rule relating to privileged communications be maintained.

T. C. & Theatre Corporation v. Warner Brothers Pictures, Inc., 113 F.Supp. 265 at 268-69 (S.D.N.Y.1953), cited in Ex parte Taylor Coal Company, at 6. The test is used to determine if an attorney’s representation of his former client’s adversary is permissible. The rule also may be applied to aid in determining the propriety of an attorney’s action in the setting of an alleged violation of DR 5-101(C). With the rule we noted some exceptions to it.

Let us hasten to add that there are many exceptions to the rule. Some of the exceptions occur where there exist: (1) two or more clients employing the same attorney as in business transactions (drafting of deeds, execution of real estate agreements, etc.), (2) waiver, and/or (3) no public sense of impropriety involved in an attorney’s representing a client whose interests are hostile to those of his former client where the subject matter of the litigation is substantially the same. The attorney’s lips are not completely sealed in these exceptional situations, and the attorney may sue the former client concerning substantially the same subject matter.

Ex parte Taylor Coal Company, at 8. If an attorney’s actions are not improper under the “substantial relationship” test for purposes of disqualifying him from continuing in the cause in dispute, then there is no violation of DR 5-101(C). In that light we will consider the Bar’s charge against Goldthwaite.

Against the factual background described above, Goldthwaite’s actions are better placed in perspective by an analysis of what he did not do. Goldthwaite did not appear as an attorney of record in the will contest. There was no evidence that he had a contract of employment. No evidence was presented at the disciplinary hearing to show that Goldthwaite advised or counseled any of the contestants. Just the opposite, Goldthwaite’s uncontradicted testimony related that he had not advised them. Testimony from Louie H. Moore and David Thomas (trust officer), both of the Alabama National Bank, established that Goldth-waite, in the course of representing the bank, received no confidential information that would have helped the will contestants. Both Moore and Thomas testified that Goldthwaite’s realignment of himself with the will contestants had no effect upon the outcome of the will contest proceeding. There was no evidence to show that Goldth-waite attended any of the depositions in the will contest other than his own. Goldth-waite was charged $1,500.00 by Lowery for his legal services as were the other will contestants. Goldthwaite received no discount for assisting Lowery in preparing the appellate brief.

The Bar insists that by Goldthwaite’s action he violated DR 5-105(0) by representing the will contestants. At the outset, we are obliged to make a fundamental observation. There is no evidence to support a finding that Goldthwaite entered into an attorney-client relationship with any of the will contestants. We appreciate and understand the Bar’s argument. In essence, it insists that Goldthwaite’s work on the appellate brief inured to the benefit of the will contestants, and that Goldthwaite thereby represented them. The Bar’s argument overlooks the fact that Goldthwaite was one of Arrington’s heirs at law and was also a legatee and beneficiary under his will and testamentary trust therein. It also overlooks Code 1975, § 43-1-80, which requires that all parties interested in a will must be made parties to a will contest. Goldthwaite certainly had a right to protect his own interest in the estate. His work on the appellate brief did just that. It is true that Goldthwaite’s work also benefited the other will contestants. However, under the facts and circumstances of this case, we are unable to conclude that Goldthwaite intended to, or did in fact, represent the other will contestants.

Even if we were to agree with the Bar’s contention that Goldthwaite represented the will contestants, that still would not change the outcome. Under the facts and circumstances of this case, we would conclude that Goldthwaite’s actions came under the third exception to the “substantial relationship” rule. We would discern “no public sense of impropriety” in his actions, thereby bringing him within that exception. Additionally, this case also might come within the second exception to the rule: that of a waiver by the former client.

Because we have found no attorney-client relationship between Goldthwaite and the other will contestants, Goldthwaite cannot be guilty of violating DR 5-105(C). Our finding necessarily dictates that consequently he cannot be guilty of attempting to circumvent a disciplinary rule through the actions of another, DR 1-102(A)(2).

III. Conclusion

Our holdings discussed above allow us to pretermit discussion of the other issues raised by this appeal. The judgment of the disciplinary board is hereby reversed and judgment is entered in accordance with this opinion.

REVERSED AND RENDERED.

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

      . Neither Moore nor the Alabama National Bank was responsible for instituting the disciplinary proceeding against Goldthwaite.


author: TORBERT, Chief Justice.

text:
    FIRST ALABAMA BANK OF MONTGOMERY, N. A., Co-Executor Under the Last Will and Testament of W. C. Adams, Deceased v. Adelia Adams COKER, as Guardian for Vera W. Adams.
    80-477.
    Supreme Court of Alabama.
    Jan. 8, 1982.

      John F. Dillon, IV, Jennie Lee Kelley, of Dillon & Kelley, Alexander City, for appellant.
    Thomas Reuben Bell of Bell & Bell, Syla-cauga, and Tom Radney of Radney & Morris, Alexander City, for appellee.
   TORBERT, Chief Justice.

This is an appeal from a decision of the trial court allowing Vera W. Adams, an incompetent widow, to dissent, by her only child, Adelia Adams Coker, as guardian, from the will of her deceased husband. For the reasons set out below, we reverse.

On August 26, 1978, W. C. Adams died, leaving one child, Adelia Adams Coker, and an incompetent widow, Vera W. Adams. His last will and testament named Adelia and First Alabama Bank as co-executors and named the bank as trustee of the two trusts created by the will. The will consisted of two trusts, providing Vera with a right to one-half of the estate’s income for life and making the remainder of the income and corpus available to her at the discretion of the trustee, First Alabama Bank. At the death of Vera, the daughter, Adelia, is to become the income beneficiary of one trust, while the remainder of the estate is to be distributed by a general testamentary power of appointment according to Vera’s last will and testament.

Following the death of W. C. Adams, Adelia filed a petition with the probate court seeking letters of administration upon the estate, alleging that the will was void as violating the Rule Against Perpetuities. A number of bearer bonds were also sought by Adelia on behalf of her mother. The trial court held for Adelia and Vera, but this Court reversed, First Alabama Bank of Montgomery v. Adams, 382 So.2d 1104 (Ala.1980), holding that the trusts were valid and that the bearer bonds properly belonged to the estate of W. C. Adams.

Subsequently, Vera was declared incompetent and Adelia was appointed as her guardian. At this point, Adelia, as guardian, filed a dissent from the will. The trial court, after hearing the ore tenus testimony of two of Vera’s sisters-in-law, Adelia, and a representative of First Alabama Bank, held that it was in the best interest of the widow to dissent from the will. First Alabama Bank, as executor and trustee, appeals.

The procedure for the filing of a dissent for an insane widow is set forth in Code 1975:

If the widow is insane, or if she be under the age of 18 years at the time the will is admitted to probate, or if she dies after the death of her husband and before the time for her dissent expires, upon a petition filed by her guardian or next friend, or, if dead, by her personal representative, within the time prescribed in section 43-1-16, alleging that it would be to her interest, or, in case of her death, to the interest of her estate to dissent from the will of her husband, the probate court of the county in which the will is probated has authority to declare dissent from such will for her; and upon the filing of such petition, the court must appoint a day for the hearing, not more than 20 days from the filing thereof, and if the widow is insane, or was under the age of 18 years at the time the will was admitted to probate, a guardian ad litem must be appointed for her. If upon the hearing the court is satisfied from the testimony of at least two disinterested witnesses, taken by deposition upon written questions, that it is to the interest of such widow, or, in case of her death, of her estate, to dissent from the will, an order shall be made declaring such dissent. The costs of the proceeding must be paid by the person filing the application.

Code 1975, § 43-1-17.

This section does not give the guardian of the insane widow the right to make an election to dissent. The guardian is merely given the right to petition the probate court for an order allowing such a dissent. The probate court will allow the dissent only if it is satisfied from the testimony of two or more disinterested witnesses that it is in the widow’s best interest to dissent from the will. Copeland v. Turner, 273 Ala. 609, 143 So.2d 625 (1962).

In Copeland, this Court set out the factors that should be examined by the trial court to determine what is in the “best interest” of the insane widow. The Court stated:

[I]n determining whether or not it is to the interest or “best interest” of an insane widow to dissent from a will, no hard and fast rule should be laid down. Whether or not her interest will be best subserved by a dissent must be determined from all the facts and circumstances in a particular case. It seems to us that a test which is valuable in one case might lead to a ridiculous result in another case.
So, then we must inquire as to the situation in which [the insane widow] is placed by reason of the provisions of her husband’s will and whether it is to her advantage to take under it or to dissent and take under the statute.

273 Ala. at 612-13, 143 So.2d 625. This is the legal standard the trial court should have followed here.

It is the policy of this Court to presume correct the findings of the trial court based upon competent evidence, when the evidence is presented ore tenus. Such findings will not be disturbed on appeal if supported by the evidence or any reasonable inference therefrom, unless they are plainly and palpably erroneous and manifestly unjust. Knapp v. Knapp, 392 So.2d 527 (Ala.1981); Mayo v. Andress, 373 So.2d 620 (Ala.1979); League v. McDonald, 355 So.2d 695 (Ala.1978); Kjelstrom v. First National Bank of Montgomery, 335 So.2d 647 (Ala.1976). The presumption of correctness, however, is rebuttable and may be overcome where there is insufficient evidence presented to the trial court to sustain its judgment. In such instances where the proof at trial fails to support the material allegations on which the suit is based, the judgment rendered cannot be upheld on appeal. Cougar Mining Co. v. Mineral Land & Mining Consultants, Inc., 392 So.2d 1177 (Ala.1981); Mid-State Homes, Inc. v. Cone, 294 Ala. 310, 316 So.2d 333 (1975).

We hold that the evidence was not sufficient as a matter of law to sustain the trial court’s finding that it was in the best interest of the widow for the court to authorize a dissent. The two “disinterested witnesses” who testified that it was in Vera’s best interest to dissent were both Vera’s sisters-in-law who knew little of the facts and consequences of the will. Emma Jean Adams Warren testified that she knew Vera for forty-five to fifty years. When questioned about the estate, she testified as follows:

Q. Are you in general terms familiar with the business affairs of the estate of your late brother, W. C. Adams?
A. No. I don’t know too much about it. Because as long as he lived he handled his own affairs. But I’m under the impression that when the will was made by my brother did not read it—
MR. DILLON: Just a minute, please, Your Honor. We would object to her—
THE COURT: Sustain your objection.
Q. Have you seen the list of the assets in his estate?
A. No, I surely haven’t.
Q. Are you familiar with the business affairs of Vera?
A. Well, am under the impression that her daughter has been able to meet her needs since she’s been in the rest home.
Q. Do you know whether she has any property or not, any assets of her own?
A. I imagine that Crayton left ever-thing [sic] to her as long as she lives.
Q. Do you know whether she owns anything other than what she may have gotten from him?
A. I do not know.
Q. Do you have an opinion as to whether or not it would be in her interest, Vera W. Adams’ interest, to dissent from the will of your brother, W. C. Adams and take what the law would give her as opposed to taking it under that will? That’s yes or no. Do you have an opinion as to that?
A. I don’t see why she didn’t get it all. I’m sure that would have been my brother’s way of doing things.
Q. Well, if she was not left all of the property under his will and if she would take a part of his property by dissent from the will, then I’ll ask you on that hypothesis do you have an opinion as to whether it would be in her interest to dissent from the will?
MR. DILLON: We object to that, Your Honor, based on supposition not in evidence.
MR. BELL: I believe it’s based entirely on the evidence, Your Honor.
THE COURT: I’m going to overrule at this time because we’re not operating with a jury. I think I can separate things.
Q. Would you answer?
THE COURT: You may answer.
A. What?
MR. BELL: Would you read that question back?
(LAST QUESTION READ BACK.)
A. Yes.
Q. Would you tell the Court what that opinion is?
A. Well, I can’t understand why it was left like it was. I don’t see why she couldn’t get it all. It’s to her advantage to have had it. And my brother would turn over in his grave if he could.
Q. Well, I’ll ask you if you think it is in her best interest or to her advantage to dissent from the will and take the part of the property that the law would then give to her as if there had been no will?
MR. RADNEY: She said yes to that.
MR. BELL: I wasn’t sure if there was a direct answer.
A. Yes.
Q. Could you explain to the Court your reasons for that answer of that opinion?
A. I guess part of it is better than nothing. I don’t know.
Q. Is she capable of handling her business affairs at the present time?
A. Well, dt belongs to her.
Q. Is she capable?
A. That’s her affairs. It is not mine.
Q. Is she in your judgment capable of handling her business affairs?
A. Well, I’m not capable. So I wouldn’t comment on her.
Q. From her mental standpoint?
A. Well, you would have to see her and discuss it with her.
Q. Give you your judgment?
A. I don’t have any judgment.
Q. Have you got any estimate as to the total amount of money that may be required to care for her the rest of her life?
A. I don’t know.

Vera’s other sister-in-law, Robbie Mae Warren, likewise testified that she had known Vera for some seventy years, but knew very little about the estate. Relevant portions of her testimony were as follows:

Q. How familiar are you with the financial affairs of the estate of W. C. Adams and the financial affairs of Vera W. Adams?
A. Well, I don’t know any more about it than I have learned in the court since we have been coming.
Q. Well, if Vera Adams were left some income for life under the will of W. C. Adams, but under the law would take a portion of the estate if she dissented from the will, on that hypothesis do you have an opinion as to whether it would be in her interest to dissent from the will of W. C. Adams and to take a portion of the estate for herself?
A. I think it would be in her interest.
Q. Could you explain your reasons for that answer to the Court?
A. Well, speaking from myself and I feel like that you should have — do what you want with your estate or whatever is left to you.
Q. When you say “you”, do you mean everybody and anybody?
A. Everybody and anybody.
MR. BELL: No • further questions. Answer Mr. Dillon’s questions, please, Mam.
Q. Would you describe her present condition and health, physical and mental, to the Court, please?
A. Well, now, Vera knows me when I go out there. It takes her some time to place you. But she does know you. And then after you have visited with her and talked to her if you went back in there and asked her a question had you been in there and then she maybe wouldn’t remember it.

It is clear that the testimony of these two witnesses simply does not show that it is in the best interest of Vera to dissent from the will. The bare statements that it would be in Vera’s best interest to dissent are not sufficient as a matter of law to warrant the dissent, particularly in view of the witnesses’ explanations of their recommendations. All this testimony shows is that the two ladies knew nothing about the provisions of the will and how it would operate to provide income to Vera. Emma Jean Adams Warren stated in essence that she knew nothing of the financial affairs of the parties and that Vera should dissent because “I guess part of it is better than nothing. I don’t know.” Similarly, Robbie Mae Warren stated that her only familiarity with the financial affairs of the estate of W. C. Adams was what she had heard in court, but that she believed the dissent to be proper because “you should have — do what you want with your estate or whatever is left to you.” Without doubt, these statements are insufficient to show that it is in Vera’s best interest to dissent from the will.

Appellee contends that if the dissent is allowed, Vera would be entitled to one-third of the rents under current leases, to stocks and bonds with a book value of about $150,-000, and would be able to produce a higher yield from them than would the bank. In support of this, appellee cites the testimony of Allen Rushing, vice president and trust officer of First Alabama Bank, who stated that six-month money market certificates were presently yielding fourteen to fifteen percent, with certain investments (in excess of $100,000.00) yielding eighteen percent. Other testimony, however, shows that this higher rate of return would not be possible, given the composition of the estate. Allen Rushing also testified that the gross estate of W. C. Adams, based upon the estate tax return, had a face value of $467,399.29. Because of the composition of the estate, Rushing estimated that the annual income from the estate would be $24,047. With the dissent, Vera would be entitled to personalty with a book value of approximately $154,700, plus one-third of the rent under the current leases. This would generate around $12,200 per year. Rushing also stated that at the current rate of return, and at the current withdrawal rate of $2,000 per month, Vera’s share in the estate, were the dissent allowed, would be completely exhausted in seven to eight years. Additionally, to allow the dissent would subject the estate to $13,600 more in estate taxes.

As stated, W. C. Adams’s estate is valued at approximately $467,000. Included in that estate are seven parcels of real property valued at over $150,000, with several of the lots subject to long-term leases. The income from these properties can not be increased until the terms of the leases have expired, or until the land is sold. Because of the long-term leases, sale of the properties would drive their values downward. Another $150,000 is tied up in bonds, which are mostly long-term, low-yield, tax-free debentures that can be converted into cash only at substantial discounts. The majority of the estate’s remainder consists of various blocks of stocks. Thus, it is quite apparent that the rate of return on the estate can not reach the high percentages of certificates of deposits from which the appellee has based her comparisons.

For the reason that the evidence presented to the trial court was insufficient as a matter of law to sustain its judgment, the presumption generally accorded its finding has been rebutted. This being the case, the decision of the trial court is due to be reversed and the case remanded for the entry of a judgment consistent with this opinion.

REVERSED AND REMANDED.

MADDOX, JONES, SHORES and BEAT-TY, JJ., concur.

      . For two recent cases involving the interplay between the sufficiency of the evidence ground and the weight and preponderance of the evidence, see, Casey v. Jones, 410 So.2d 5 (Ala.1981), and Garmon v. King Coal Company, Inc., 409 So.2d 776 (Ala.1981). As these two cases point out, the “palpably wrong, manifestly unjust” standard by which the latter is tested is not invoked where the evidence is sufficient to support the judgment.


author: WRIGHT, Presiding Judge.

text:
    Willie Earl KING v. STATE, ex rel. Mary STALLWORTH.
    Civ. 2697.
    Court of Civil Appeals of Alabama.
    Aug. 19, 1981.
    Rehearing Denied Sept. 23, 1981.

      Richard H. Sforzini, Jr. of McDermott, Slepian, Windom & Reed, Mobile, for appellant.
    Charles A. Graddick, Atty. Gen., Mary Lee Stapp, Clyde P. McLendon and Roger J. Burnett, Asst. Attys. Gen., for appellee.
   WRIGHT, Presiding Judge.

This is a paternity case.

Mary Stallworth gave birth to an illegitimate child and assigned her rights to child support to the State Department of Pensions and Security pursuant to 42 U.S.C.A. § 602(a)(26). DPS filed suit against Willie Earl King alleging him to be the child’s father and seeking support payments on behalf of the child. The case against King was dismissed without prejudice in the Juvenile Division of the Mobile County Circuit Court. The State, ex rel Mary Stallworth, appealed to the circuit court for trial de novo.

After trial, the court, sitting without a jury, found King to be the father of the child and ordered support payments of $50 bi-weekly. King’s motion for new trial was denied and he appeals.

Appellant raises two issues. The first arose out of the following sequence of events:

Mary Stallworth, the mother, along with one other witness, testified on behalf of the State. After the State rested, Willie Earl King testified on his own behalf. Defendant then attempted to call Tom Wright, the assistant district attorney prosecuting the case, to testify. Wright objected to being called. The court sustained the objection. Defendant explained that he intended to call Wright for the purpose of impeaching the testimony of the mother. The court again sustained. No other witnesses were called on behalf of the defendant. At issue is the propriety of the trial court’s sustaining the prosecuting attorney’s objection to being called as a witness for the purpose of impeaching the mother.

While there is little authority on the matter in Alabama, we have found, as a general rule, that the trial court has wide discretion respecting the calling and examination of witnesses; that whether the defendant in a particular case should be allowed to call a prosecuting attorney to the stand is a matter largely within the discretion of the trial court. Gajewski v. United States, 321 F.2d .261 (8th Cir. 1963), cert. denied, 375 U.S. 968, 84 S.Ct. 486, 11 L.Ed.2d 416 (1964); Maund v. State, 254 Ala. 452, 48 So.2d 553 (1950); State v. Stiltner, 61 Wash.2d 102, 377 P.2d 252 (1962), cert. denied, 380 U.S. 924, 85 S.Ct. 928, 13 L.Ed.2d 810 (1965).

It is our experience that courts have generally been, and should always be, we think, especially reluctant to allow lawyers, including prosecuting attorneys, to be called as witnesses in trials in which they are advocates. Though an attorney is not rendered incompetent as a witness by virtue of his advocate’s role, his competence does not lend itself to making the attorney automatically available as a witness at the request of a party to the proceedings. See, State v. Stiltner, supra. It is our view, reinforced by the cases cited above, that the circumstances of the particular case must be such that a compelling reason exists for using an attorney to attempt impeachment of the party he is representing. The trial court should have broad discretion in determining whether such circumstances exist. We find noteworthy the ease of People v. Nelson, 89 Ill.App.2d 84, 233 N.E.2d 64 (1967).

In Nelson, as in the instant ease, the defendant’s counsel sought to call as a witness the State attorney prosecuting the case for the purpose of impeaching certain witnesses. Stating that the propriety of such a move is for the discretion of the trial court, and noting that defense counsel neither demonstrated the necessity of calling the State’s attorney nor indicated the nature of the impeachment hoped to be accomplished, the trial court’s not allowing the attorney to be called was affirmed.

In this case, appellant’s trial counsel apprised the court that he was calling the prosecuting attorney for impeachment purposes. The nature of the impeachment hoped to be accomplished, though stated in brief to be through showing prior inconsistent statements of the mother at a previous hearing in the ease, was not disclosed. (We note that the questions appellant states would have been asked would not have been relevant to the issue of paternity in this case, but would have been, if at all, only for impeachment purposes. In addition, our review of the record does not convince us that the proper foundation for impeachment was laid; i.e., it is unclear whether the responses made by the mother to questions at trial would have been inconsistent with those given at any prior hearing.) Likewise, at trial, no demonstration of the necessity of calling the attorney was made by appellant. No “showing” was offered. Appellant merely stated that “Mr. Wright needs to testify.” Rule 43(c), A.R.C.P. Neither is the necessity of having Wright called as a witness evident from the record.

Under these circumstances we cannot say the trial court abused its discretion in not allowing the prosecuting attorney to be called as a witness.

The remaining issue, as stated by appellant, is whether the “judgment of the circuit court was contrary to the weight of the evidence.” The ore tenus rule is applicable in this case. The judgment is accorded a presumption of correctness and will not be reversed if supported by legal evidence and not plainly and palpably wrong. Walton v. Walton, 387 So.2d 847 (Ala.Civ.App.1980); Walker v. Dancer, 386 So.2d 475 (Ala.Civ.App.1980). Our review of the record indicates evidence supportive of the trial court’s judgment. The evidence was conflicting in many respects and those conflicts were for the court to resolve. Tucker v. Garrett, 361 So.2d 374 (Ala.Civ.App.1978). This it did. We find no abuse of discretion in the court’s judgment.

The case is due to be affirmed.

AFFIRMED.

BRADLEY and HOLMES, JJ., concur.

      . See, § 12-21-161, Code of Alabama (1975)


author: ALMON, Justice.

text:
    Ex parte Willie Earl KING. (Re Willie Earl King v. State, Ex Rel. Mary Stallworth).
    81-2.
    Supreme Court of Alabama.
    Jan. 8, 1982.
   ALMON, Justice.

WRIT DENIED — NO OPINION.

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


text:
    Richard BOACKLE v. JEFFERSON MEMORIAL COMPANY, a corporation.
    Civ. 2957.
    Court of Civil Appeals of Alabama.
    Nov. 18, 1981.

      Edward Still, Birmingham, for appellant.
    James M. Tingle and James P. O’Neal of Barnett, Tingle, Noble & Sexton, Birmingham, for appellee.
   EDWARD N. SCRUGGS, Retired Circuit Judge.

This is an appeal by Richard Boackle from a grant of summary judgment in favor of Jefferson Memorial Company (Memorial).

On September 29, 1970, Boackle entered into a four-year employment contract with Jefferson Memory Company (Memory) in a sales management position. Upon termination of his employment prior to the expiration of the contract, Boackle brought suit on October 16, 1973, against Memory and Memorial, the transferee of Memory’s assets, for breach of contract. On June 4, 1974, Memorial was voluntarily dismissed from the action and Boackle obtained a default judgment for $10,000 against Memory. Unable to recover his judgment against Memory, Boackle filed a complaint against Memorial on August 1, 1978, to enforce his default judgment by a civil action against Memorial as transferee of the assets of his original judgment debtor. The issue on appeal is whether the trial court erred in awarding summary judgment in favor of Memorial.

We find no error and affirm.

Since the basis of Memorial’s alleged liability to Boackle is its status as transferee of Memory’s assets, it is important to note the circumstances which resulted in such transfer.

In 1968 a suit styled Skinner v. White was instituted in the United States District Court, Northern District of Alabama. This litigation involved mismanagement of the business affairs of Memory and its parent corporation, Jefferson National Equities Corporation, and extended over a number of years. The original decree was entered on October 21,1971, but contempt proceedings for a subsequent fraud on the court resulted in a decree, after considering all of the evidence, issued on August 17, 1973, which in pertinent part ordered the transfer of assets and certain liabilities of Memory to a new nonprofit corporation (Memorial), which was created at the direction of the court as the agent of the court. Those decrees indicate that Memory was experiencing much financial difficulty due to mismanagement, that the transfer to Memorial was necessary to ensure responsible handling of the financial affairs of two large cemeteries in the Jefferson County area and the perpetual care and maintenance trust fund relating thereto. This transfer was ordered subsequent to the termination of Boackle’s employment contract with Memory. The articles of incorporation of Memorial provide that the purpose of the new corporation is to carry out the provisions of the federal district court decree. The duties and obligations of Memorial are defined in the decree and the record clearly reflects that it was not the intention of the federal court that Memorial assume any and all liabilities of its predecessor. Boack-le never had an employment contract with Memorial.

In the instant action, Boackle is attempting to recover from Memorial the amount of the default judgment he was awarded against Memory. His amended complaint asserts four theories of recovery: (1) Memorial is successor to the assets and liabilities of Memory; (2) Memorial is trustee of the assets and liabilities of Memory; (3) Memorial used assets of Memory to pay certain indebtedness of Memory, but has failed and refused to pay the judgment of Boackle; and (4) during Boackle’s employment he made sales of burial plots and Memorial subsequently collected the regular monthly installments and was paid a twenty percent commission for such collections.

Memorial filed a motion for summary judgment addressing each of Boackle’s four theories of recovery and offering certified copies of the prior decrees of the United States District Court, Memorial’s articles of incorporation, the pleadings in the prior case, and an affidavit in support thereof. Since all of the evidence relating to Memorial’s alleged liability to Boackle was a matter of public record, Memorial asserted that there was no genuine issue as to any material fact and summary judgment was appropriate.

In support of the theories of recovery set out in his complaint, Boackle asserted that Memorial had paid federal taxes owed by Memory and that H. L. Rayburn had presented a bill to Memory which Memorial allegedly paid. The remainder of Boackle’s response to Memorial’s motion for summary judgment was directed toward a new theory of recovery, fraudulent conveyance. Boackle did not amend or request an amendment of his complaint to plead the elements of fraudulent conveyance or facts supporting such a cause of action. However, “The formal issues framed by the pleadings are not controlling on a motion for summary judgment; the court must consider the issues presented by the other material offered by the parties on the motion to determine whether the Rule 56 request should be granted.. . . ” 10 Wright & Miller, Federal Practice and Procedure: § 2721 at p. 475.

A motion for summary judgment may be granted only when the movant has carried his burden of showing that there is no genuine issue of material fact and that he is entitled, as a matter of law, to a judgment in his favor. Smith v. American Cast Iron Pipe Co., 370 So.2d 283 (Ala.1979). Where all the basic facts are undisputed and the matter is one merely of interpretation or reaching a conclusion of law, the court may grant a motion for summary judgment. Studdard v. South Central Bell Telephone Co., 356 So.2d 139 (Ala.1978).

Boaekle’s response to Memorial’s motion for summary judgment does not establish that a genuine issue of material fact exists between these two parties. Payment by Memorial of the federal taxes assessed against Memory is a matter of record, but such payment, of a payment to Rayburn, is irrelevant to Memorial’s alleged liability to Boackle. The payment on the tax lien, which attached before the transfer of assets to Memorial, was pursuant to court order. The supporting affidavit does not address itself to any of the theories of recovery included in Boackle’s complaint. Indeed, the affidavit, the remainder of Boackle’s response to the motion for summary judgment, and his entire argument on appeal, as well as in the circuit court, exclusively attempt to support a new theory of recovery, fraudulent conveyance. Since he did not present argument in this court as to any of the grounds for recovery which were alleged in his complaint, he waived each of those four theories. Davis v. McBroom, 402 So.2d 1016 (Ala.Civ.App.1981). Thus, in order to succeed on appeal, Boackle’s argument as to fraudulent conveyance must prevail.

In its June 2,1975 judgment in Skinner v. White, the federal trial court summarized the status of Memorial as follows:

Memorial is a non-profit Alabama corporation heretofore created as the agent of the Court and pursuant to an order of this Court, is perpetuated in the status heretofore created as the operator of the cemeteries .... Subject to the audit requirements herein provided, Memorial’s authority, duties and responsibilities since its original appointment, and its exercise of the same are satisfied, confirmed and approved... . Memorial shall continue indefinitely to operate the aforementioned cemeteries under the arrangement which has been established by the Court and shall make semi-annual unaudited reports and annual audited reports of its books, records and corporate transactions.

Memorial was organized as a nonprofit corporation by direction of the court; it acted as the court’s agent; and it received the assets of Memory only by means of the court’s order. Those unimpeachable facts are a matter of record through the judgments and decrees of the federal court. In the present proceedings, we cannot go behind those adjudications, for to do so would constitute a collateral attack upon those judicial determinations. Any agreements between litigants as to the transfer of assets were merged into the judgments, and it is pertinent that those judgments and decrees were rendered “after having considered all of the evidence,” or “the evidence” which was heard by the court on five stated dates. In its August 17, 1973 judgment, that court granted to Memorial all of the benefits of all operations of Memory since February 28, 1973 and made Memorial liable for Memory’s obligations incurred after that date, “but not otherwise.”

Boackle never had an employment contract with Memorial and his judgment against Memory was awarded subsequent to the transfer of Memory’s assets to Memorial. The limits of the duties and liabilities of Memorial are set out as a matter of public record in the federal district court decrees mandating its incorporation and agency status.

For these reasons, the decrees and judgments in the Skinner v. White cases preclude Boackle in this case as a matter of law from prevailing as to his present contention of a fraudulent conveyance. If he was defrauded by the transfer of assets to Memorial, his remedy would not be through this court but, if any, would be through the federal court which ordered the transfer and created Memorial. We find no fraudulent conveyance which the circuit court was authorized to consider. The learned circuit judge correctly granted Memorial’s motion for a summary judgment and we affirm.

The foregoing opinion was prepared by Retired Circuit Judge EDWARD N. SCRUGGS while serving on active duty status as a judge of this court under the provisions of § 12-18-10(e) of the Code (1975) and this opinion is hereby adopted as that of the court.

AFFIRMED.

BRADLEY and HOLMES, JJ., concur.

WRIGHT, P. J., recuses himself.


author: BRADLEY, Judge.

text:
    Inez HARPER v. Billy R. MYRICK, individually, and d/b/a Myrick’s Professionals.
    Civ. 2934.
    Court of Civil Appeals of Alabama.
    Dec. 9, 1981.
    John B. Givhan of Albrittons & Givhan, Andalusia, for appellant.

      W. Bartlett Taylor, Andalusia, for appel-lee.
   BRADLEY, Judge.

This case involves an alleged breach of contract.

The facts of the present case were heavily disputed at trial. The dispute arose out of a contract to replace a roof on a building in Florala, Alabama.

Inez Harper owned a two-story building in Florala, Alabama. She had problems with a leaking roof and, as a result, hired Billy R. Myrick to place a new roof on the building. As part of the agreement, Myrick guaranteed the roof for one year. At the time of contracting, Myrick informed Harper that a tree on her neighbor’s property was overhanging her roof. Leaves from this tree had clogged the drainpipe, causing water to stand on the roof. Harper agreed to have the tree cut down or trimmed back.

Several weeks after Myrick replaced the roof, Harper called him complaining that the roof was still leaking. The testimony indicates that Myrick came out and did some repair work. He stated that Harper had never had the tree cut and that again the drainpipe was clogged, causing several inches of water to stand on the roof. Again he told Harper to have the tree cut in order to prevent the water problem. Myrick even brought a man to see Harper about cutting the tree.

Harper testified that her neighbor refused to allow the tree to be cut down. She further testified that Myrick had not come to repair the roof when she called him.

In September Myrick came back to repair the roof and found that part of it had collapsed. He stated that this was due to standing water caused by the tree. He also introduced a contract purportedly signed by Harper agreeing to pay another $1,400.00 to repair the collapsed roof. Harper claimed that her signature on this agreement was a forgery.

The testimony indicates that Myrick made these repairs but was never paid. The roof, however, continued to leak. Harper’s attorney wrote several letters asking that the roof be repaired, but Myrick refused to do any more. As a result Harper filed suit for the $4,640.00 she had paid Myrick to install the roof.

The case was heard before the court sitting without a jury. After hearing the evidence the court entered a verdict for the defendant. Harper filed a motion for new trial which was deemed denied after the passage of ninety days. As a result Harper filed a timely appeal to this court.

The only issue presented in this appeal is whether the trial court erred in finding in favor of Myrick. Harper contends that Myrick breached that part of the contract guaranteeing his work for one year. As a result, she argues that the judgment should have been in her favor. We, however, do not agree with this contention.

The question of whether Myrick breached his guarantee was one of fact to be resolved at trial. Under the ore tenus rule we must presume that the trial court’s judgment is correct. It has often been stated that the findings of a court sitting without a jury will not be overturned on appeal unless plainly wrong. State v. Honda, 387 So.2d 219 (Ala.Civ.App.1980). In this case we can find evidence to support the trial court’s findings.

There was a great deal of testimony at trial concerning the quality of the new roof. Harper presented two witnesses who inspected the roof sometime after it had been put on. They both testified that the new roof did not appear to have been properly installed. However, Myrick presented testimony that substantial time was expended and a great deal of material was used in installing the roof. From the testimony the trial court could certainly conclude that the new roof was properly installed and in good condition.

Further, there was substantial evidence to indicate that the leaking problem was caused by standing water on the roof. The evidence showed that the overhanging tree had clogged the drainpipe on several occasions, preventing water from draining from the roof. It is undisputed that Harper had been told repeatedly by Myrick that the tree had to be trimmed back or removed. The trial court could easily conclude from this evidence that the leaking problem was caused by Harper’s failure to remove the tree.

From the evidence the trial court could conclude that Myrick had installed the roof in a workmanlike manner, and that Myrick was guaranteeing his work for one year. Further, the court could have concluded that the leaking problem was due to the overhanging tree and not the failure of Myrick’s workmanship. As a result, it was certainly within the purview of the trial court to conclude that Myrick was relieved of any further obligation.

Having found evidence to support the trial court’s findings, the judgment is affirmed.

AFFIRMED.

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


author: HOLMES, Judge.

text:
    Cornelius McCRARY v. Dovie Loretta McCRARY.
    Civ. 2851.
    Court of Civil Appeals of Alabama.
    Dec. 23, 1981.

      Leon Garmon, Gadsden, for appellant.
    Maria Jane C. Wells of Carnes & Carnes, Albertville, for appellee.
   HOLMES, Judge.

This is an appeal from an order modifying a divorce decree to provide for reduced child support payments.

The husband filed a petition to modify the original divorce decree. The husband’s petition requested the amount he was required to pay for child support be reduced. He also sought to have the divorce decree modified to show that only two children were born of the marriage and not five as stated in the separation agreement which was incorporated into the prior divorce decree. The husband later amended his petition seeking a court order directing that the parties’ jointly owned real estate be sold for division.

After an ore tenus hearing, the trial court reduced the amount of child support from $200 per week to $130 per week. All other relief was denied.

The husband then moved to modify the judgment or, in the alternative, for a new trial. The trial court overruled this motion and in so doing stated specifically that all five of the children were included in the support order.

On appeal to this court, the husband initially contends the trial court abused its discretion by failing to further reduce the amount of child support. He bases this contention on the trial court’s inclusion of all five of the wife’s children in the support order. Secondly, the husband contends the trial court erred in failing to order the sale and division of the parties’ jointly owned real property. This court, however, finds no error and affirms the trial court.

A lengthy review of the facts of this case is not necessary. Suffice it to say that the parties were divorced on October 10, 1979. A separation agreement was incorporated into the divorce decree. The separation agreement stated that as issue of the marriage there were born unto the parties five children and went on to name the children. Custody of the children was awarded to the wife and the husband was given visitation privileges. The husband agreed to pay $200 per week as child support. The agreement further provided that the parties were to retain joint ownership of their house and the wife was to be allowed to occupy the house for the remainder of her life.

The husband filed his petition to modify on January 7, 1981. An ore tenus hearing on the father’s amended petition was held. After hearing the evidence, the trial court reduced the husband’s child support payments by $70 per week and took no further action on the husband’s petition.

The modification of an award of child support is within the sound discretion of the trial court and will not be reversed on appeal unless this discretion is abused. Murphree v. Murphree, 366 So.2d 1132 (Ala.Civ.App.1979). The trial court’s discretion in determining the amount of child support is to be guided by the needs of the children and the ability of the parent to pay. Hayes v. Hayes, 337 So.2d 770 (Ala.Civ.App.1976). After considering the husband’s income and the needs of “teens” and “near teens,” this court concludes that there was no abuse of discretion in requiring child support payments of $130 per week regardless of whether this amount was for the support of all the children or only some of the children.

The husband’s income is over $1,200 per month. The children’s needs are readily apparent.

Furthermore, we find no error in including all five children in the support order. This is true regardless of what evidence may have been presented. The record clearly shows that the wife’s complaint for divorce alleged that the parties had “five minor children born of the marriage.” Furthermore, the separation agreement that was signed by the husband and incorporated into the divorce decree referred to the five children as “issue of the said marriage.” In Stewart v. Stewart, 392 So.2d 1194 (Ala.Civ.App.1980), cert. denied, 392 So.2d 1196 (Ala.1981), this court held that phrases similar to the above that were included in a complaint and a subsequent divorce decree based upon that complaint constituted a finding that the defendant was the father of the child. Therefore, we hold, based upon Stewart, that such language as the above contained in the complaint constituted a finding that the defendant was the father of the child. Therefore, we hold, based upon Stewart, that such language as the above contained in the complaint and separation agreement as incorporated into the divorce decree is sufficient to constitute a finding that the husband was the father of all five of the wife’s children. As stated in Stewart v. Stewart, supra, this finding of paternity is res judi-cata between the parties and cannot be challenged in a subsequent action.

The husband apparently seeks relief from this finding of paternity under rule 60(b)(1), A.R.C.P., on the ground of mistake. However, relief from a final judgment or order on the ground of mistake must be sought within four months after the judgment was taken. Thus, this action comes too late for relief for mistake since paternity was established in the 1979 divorce decree and this action was not instituted until 1981. Additionally, there is no “fraud upon the court” that would justify relief under rule 60(b)(6), A.R.C.P. Stewart v. Stewart, supra.

This court also holds that the trial court did not err in failing to modify the divorce decree to require the sale of the joint property and division of the proceeds. The divorce decree in this case contained no provision for future support of the wife. The wife was, however, given the possession of the house for her life. The use and benefit of the house must be viewed as payment for the wife’s inchoate marital rights and as such is alimony in gross. Durham v. Durham, 336 So.2d 1360 (Ala.Civ.App.1976). Alimony in gross is not modifiable. McEntire v. McEntire, 345 So.2d 316 (Ala.Civ.App.1977); Durham v. Durham, supra.

The wife requests an attorney’s fee for representation on appeal. A fee of $500 is awarded for such representation.

This case is due to be affirmed.

AFFIRMED.

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


text:
    Charles A. AGUILAR v. Dennis SPRADLIN and Wendell Roden.
    Civ. 2981.
    Court of Civil Appeals of Alabama.
    Dec. 23, 1981.

      Charles A. Aguilar, pro se.
    No brief for appellees.
   EDWARD N. SCRUGGS, Retired Circuit Judge.

This appeal concerns an involuntary dismissal by the trial court of Mr. Aguilar’s civil action under ARCP rule 41(b) which was occasioned by his failure to attend a mandatory pretrial hearing or conference.

Mr. Aguilar had sued a sheriff and a deputy sheriff for the alleged loss of some of his personal property while he was in their custody in the county jail.

His present complaint is that he was denied equal access to the trial court since that court dismissed his case solely because he could not personally attend court to pursue and prosecute his alleged cause of action inasmuch as he was, and still is, an imprisoned convict within the penal system of Alabama. He did not have an attorney and none was appointed by the court to represent him in this civil case, which is unrelated to his criminal confinement.

Rule 41(b) of the Alabama Rules of Civil Procedure provides that a circuit judge may dismiss a plaintiff’s claim for his failure to prosecute or to comply with the civil rules or with any order of the trial court. Under that rule, a civil action may be dismissed by, the circuit court for the plaintiff’s failure to appear at a pretrial conference. Lyons, 1 Alabama Practice 339, § 16.5 (1973).

The following language used by one of Alabama’s most scholarly and distinguished jurists, the late Justice James N. Blood-worth, in Hubbard v. Montgomery, 372 So.2d 315 (Ala.1979) is dispositive of Mr. Aguilar’s present complaints:

This Court addressed the right of a prisoner to appear and testify in his own civil suit unrelated to his confinement in the recent case of Whitehead v. Baranco Color Labs, Inc., 353 So.2d 793 (Ala.1977). We held that a prisoner has no such right. His proper course is to take his own oral or written deposition under Rule 30 or 31, ARCP, to be used at trial as specifically provided in Rule 32(a)(3)(C), ARCP. (Although appellant had indicated he had an attorney, no appearance had been filed by the attorney.)
We further find that in this case the trial judge did not abuse his discretion by dismissing the claim for want of prosecution in accordance with Rule 41(b), ARCP.
Plaintiff’s position results from his own actions and not from those of the defendants or the court. Incarceration alone is no excuse to avoid a dismissal for want of prosecution. Whitehead v. Baranco Color Labs, Inc., 355 So.2d 376 (Ala.Civ.App.1978).
Plaintiff claimed to be indigent, and the court records reflect that he is indigent, so that he was unable to hire counsel to prosecute his claim. He was not due to have counsel appointed, since this is a civil proceeding. Boulware v. Battlagia, 344 F.Supp. 889 (D.Del.1972), aff’d, 478 F.2d 1398 (3d Cir. 1973).
As we have already noted, he had no right to appear in person. Consequently, plaintiff was in a position which inevitably led to dismissal of his claim, a situation from which we are not in any position to extricate him.

Accordingly, we affirm.

The foregoing opinion was prepared by retired circuit judge EDWARD N. SCRUGGS while serving on active duty status as a judge of this court under the provisions of § 12-18-10(e) of the Code of Alabama of 1975 and this opinion is hereby adopted as that of the court.

AFFIRMED.

All the Judges concur.