author: BROOM, Justice, for the Court:

text:
    In re Richard Gerald JORDAN.
    No. 50551.
    Supreme Court of Mississippi.
    Nov. 19, 1980.
    Earl L. Denham, Levi & Denham, Ocean Springs, Joseph P. Hudson, Lawyer & Hudson, Gulfport, for appellant.

      Bill Allain, Atty. Gen., by Karen A. Gil-foy, Asst. Atty. Gen., Jackson, for appellee.
   ON PETITION FOR WRIT OF ERROR CORAM NOBIS

BROOM, Justice, for the Court:

Murder while engaged in the offense of kidnapping is the offense for which the petitioner Richard Gerald Jordan was convicted and sentenced to death. Affirmance was ordered on his appeal. Jordan v. State, 365 So.2d 1198 (Miss.1978). Subsequently the United States Supreme Court denied Jordan’s petition for writ of certiorari. Jordan v. Mississippi, 444 U.S. 885, 100 S.Ct. 175, 62 L.Ed.2d 114 (1979). Jordan then sought habeas corpus relief in the United States District Court for the Southern District of Mississippi. That court dismissed his petition without prejudice because he had failed to present all his claims to this Court.

Jordan argues that the trial court’s refusal to instruct the jury that it could find him guilty of a lesser offense violated the Fifth, Eighth, or Fourteenth Amendments to the United States Constitution. Previously in Jackson v. State, 337 So.2d 1242, 1255 (Miss.1976), we held that instructions on the lesser included offense

[Sjhould only be given after the trial court has carefully considered the evidence and is of the opinion that such an instruction is justified by the evidence.

Beck v. Alabama, - U.S. -, 100 S.Ct. 2382, 65 L.Ed.2d 392 (1980). Careful review of the evidence in this case clearly reveals to us that any jury instruction concerning a lesser included offense was neither warranted upon the whole record nor justified by the evidence. No rational basis appears upon which the jury could have acquitted Jordan of the crime of murder while engaged in the crime of kidnapping or found him guilty of any lesser offense. He contends that the jury should have been instructed as to “both murder and kidnapping, in addition to capital murder.” It is to be noted that the jury was clearly instructed that it (the jury) had the option of fixing Jordan’s punishment at life imprisonment or death, the only two penalties for any murder in this jurisdiction. Quite differently, in Beck, supra, as the opinion of Mr. Justice Stevens states, the jury, under the Alabama statute, was given “the choice of either convicting the defendant of the capital crime, in which case it is required to impose the death penalty, or acquitting him... . ” Although the indictment charged murder “while engaged in the commission” of kidnapping, the indictment did not charge kidnapping and did not set forth any of the elements of such offense. Accordingly, a verdict of guilty of kidnapping would have been totally improper, and the argument under discussion lacks merit.

Also without merit is Jordan’s argument that in the lower court there was “the lack of notice” to him of what aggravating circumstances could be used against him and that the jury was improperly instructed on aggravating circumstances. Pertinent here is Jackson, supra, at 1256, which sets forth guidelines for bifurcated trials in matters of this type; so that the first phase of the trial would be as to guilt, and the second phase would be as to his punishment. We stated in Jackson:

At the sentencing hearing, the question to be decided by the jury is whether the defendant shall be sentenced to death or to life imprisonment. At this hearing, the State may elect to stand on the case made at the first hearing, if before the same jury, or may reintroduce any part of the evidence adduced at the first hearing which it considers to be relevant to the particular question of whether the defendant shall suffer death or be sentenced to life imprisonment. In addition thereto, an accused’s prior record of criminal convictions, if any, may be proven as an additional aggravating circumstance whether the defendant testifies in his own behalf or not. At this hearing, the defendant may prove his lack of a prior criminal record as a mitigating circumstance and may also adduce proof of any other circumstance or combination of circumstances surrounding his life and character or the commission of the offense with which he is charged that would be reasonably relevant to the question of whether he should suffer death or be sentenced to life in prison.
Proof beyond a reasonable doubt of the statutory elements of the capital offense with which the accused .is charged shall constitute sufficient circumstance to authorize imposition of the penalty of death unless the mitigating circumstances shown by the evidence outweigh the aggravating circumstances.
The jury shall not be required to make a special finding of any mitigating circumstance in order to return a verdict that the accused should be sentenced to life in prison. However, before the jury may return a verdict that the defendant should suffer the penalty of death, they must unanimously find in writing that after weighing the mitigating circumstances and the aggravating circumstances one against the other that the mitigating circumstances do not outweigh the aggravating circumstances and that the defendant should suffer the penalty of death.
If the jury is unable to agree unanimously on a verdict at the sentencing hearing, the defendant shall be sentenced to life in prison.
We also hold that all convictions of persons where the penalty of death is imposed will be reviewed by this Court as preference cases in such a manner as to see that the death penalty was warranted under the facts of the case and that death sentences will not be wantonly or freakishly imposed but will only be inflicted in a consistent and evenhanded manner under like or similar circumstances.

Godfrey v. Georgia, 446 U.S. 420, 100 S.Ct. 1759, 64 L.Ed.2d 398 (1980) is not applicable here upon the facts. In Godfrey, the U. S. Supreme Court noted that the offenses committed by Godfrey “cannot be said to have reflected a consciousness materially more ‘depraved’ than that of any person guilty of murder. His victims were killed instantaneously. They were members of his family who were causing him extreme emotional trauma.” (446 U.S. 420, 433, 100 S.Ct. 1759, 1767, 64 L.Ed.2d 398, 409). In the case before us, Jordan’s victim was not instantly killed. He brought her from her home after deceitfully pretending that he represented a utility company; then he took her at gunpoint out into the woods and shot her. Afterwards Jordan played the ransom game with Mr. Mar-ter, his victim’s husband, for many hours (agonizing to Mr. Marter) with Jordan assuring Marter that Mrs. Marter was safe and well.

Subsequent to Jackson, supra in Washington v. State, 361 So.2d 61, 68 (Miss.1978), we stated:

It is crystal clear from our holding in Jackson that this Court is committed to the “individualized consideration of mitigating factors” in each case, and that the only limitation placed on the introduction of evidence of mitigating circumstances is that it must be reasonably relevant.

In accordance with Jackson, supra, Washington, supra, and other cases decided by us, in every instance where the death penalty is ordered, we carefully review such cases which serves “as a check against the random or arbitrary imposition of the death penalty.” Gregg v. Georgia, 428 U.S. 153, 206, 96 S.Ct. 2909, 2940, 49 L.Ed.2d 859 (1976). Our review of the entire proceedings, that is trial of the guilt phase and sentencing phase, insures that the death penalty will be inflicted only in a consistent and even-handed manner. The present record before us clearly establishes the reason the death penalty was inflicted: Jordan’s deception together with the cruel and calloused manner in which he killed his victim after kidnapping her and then over a period of many hours agonizing her husband about ransom money during which time he kept falsely assuring her husband that she was still alive and well. Gardner v. Florida, 430 U.S. 349, 361, 97 S.Ct. 1197, 1206, 51 L.Ed.2d 393 (1977). Upon these facts it cannot be said that reversible error resulted from either the lack of notice to Jordan of what aggravating circumstances the state would rely on or the trial court’s failure to instruct the jury as to the definition of aggravating and mitigating circumstances.

Another argument asserted is that Jordan was denied his Fourteenth Amendment rights because the trial court sentenced him without a pre-sentence report. He contends that the judge should not have sentenced him without obtaining a report from a probation officer pursuant to Mississippi Code Annotated § 47-7-9(3)(a), which provides as follows:

Separate division personnel (hereinafter presentence investigators) shall be provided to perform investigation for the court as provided in this subsection. Pre-sentence investigators shall conduct pre-sentence investigations on all persons convicted of a felony in any circuit court of the state, prior to sentencing and at the request of the circuit court judge of the court of conviction. The presentence evaluation report shall consist of a complete record of the offender’s criminal history, educational level, employment history, psychological condition and such other information as the department or judge may deem necessary.

The matter of jury sentencing was discussed in great detail by the United States Supreme Court in Gregg v. Georgia, 428 U.S. 153 at 195, 96 S.Ct. 2909 at 2935, 49 L.Ed.2d 859. Excerpted from the court’s opinion is the following pertinent language:

In summary, the concerns expressed in Furman that the penalty of death not be imposed in an arbitrary or capricious manner can be met by a carefully drafted statute that ensures that the sentencing authority is given adequate information and guidance. As a general proposition these concerns are best met by a system that provides for a bifurcated proceeding at which the sentencing authority is apprised of the information relevant to the imposition of sentence and provided with standards to guide its use of the information.

In the instant case Jordan was tried and sentenced under guidelines set forth in Jackson, supra, which allowed for presentation to the jury of a wide range of relevant mitigating factors. Jackson provides:

At this hearing, the defendant may prove his lack of a prior criminal record as a mitigating circumstance and may also adduce proof of any other circumstance or combination of circumstances surrounding his life and character or the commission of the offense with which he is charged that would be reasonably relevant to the question of whether he should suffer death or be sentenced to life in prison. (Emphasis added). (337 So.2d at 1256).

Under the Jackson rationale, the jury is not and was not precluded from consideration “of the fullest information possible concerning the defendant’s life and characteristics.” In accordance with Jackson the accused in any death penalty case is given a full opportunity to produce almost any information concerning his past life and background data including matters which ordinarily would not be revealed by a pre-sen-tence investigation made by a state probation officer.

Section 47-7-9, supra, provides for pre-sentence investigations in “felony” cases “at the request” of the judge. In the typical felony case (not involving the death penalty), there is not conducted a bifurcated trial where the jury decides the guilt issue at one phase and the punishment issue at another. It is obvious to us that the legislators, when enacting § 47-7-9, supra, providing for pre-sentence investigations, did not contemplate such an investigation in cases involving a death penalty where the jury decides the punishment to be meted out after a hearing on the punishment issue. We think the important issue is whether the sentence in a death penalty case will be arbitrarily or capriciously imposed.’ Such an imposition is precluded under our procedure where, as is the case here, the jury fixes the punishment after hearing proof on the issue of mitigating and aggravating circumstances, and then the case is given our full, careful and painstaking appellate review as we previously have done in this particular case. As found by us when this case was here on appeal, infliction of the death penalty will neither be wanton nor freakish but will be consistent and even-handed when considered and measured against other death penalty cases previously affirmed by us.

Having carefully considered en banc Jordan’s petition, the state’s response, and Jordan’s reply to the state’s response, relief must be denied for the reasons stated above.

PETITION DENIED.


source: Caselaw Access Project

license: Public Domain

text:
    The COLUMBUS & GREENVILLE RAILWAY CO., a Mississippi Corporation; and Loraine Craig, Ann Craig Milner, Mary Norman Craig Brown, and Carol Craig Catlett v. The CITY OF GREENWOOD.
    No. 52213.
    Supreme Court of Mississippi.
    Nov. 19, 1980.
    Rehearing Denied Dec. 10, 1980.
    Arnold F. Gwin, Lott, Sanders & Gwin, Greenwood, Threadgill, Smith, Sanders & Jolly, Columbus, for appellants.
    H. D. Brock, W. M. Whittington, Jr., Whittington, Brock, Swayze, Dale & Calhoun, Greenwood, for appellee.
    Before PATTERSON, C. J„ and WALKER and BROOM, JJ.
   BROOM, Justice, for the Court:

Whether a handwritten conveyance containing language “for railway track and depot” purposes vested fee simple title in the railroad or reserved a transferrable, compensable interest in the grantors is the chief issue of this suit appealed from a Special Court of Eminent Domain of Le-Flore County, wherein the City of Greenwood condemned 2.58 acres of the disputed land. Defendants to the city’s action were the Columbus and Greenville Railway Co. (C&G herein), and Loraine Craig, Ann Craig Milner, Mary Norman Craig Brown, and Carol Craig Catlett (the Craigs herein). The Craigs are successors in interest of the original grantors, L. H. Henry and Dr. James P. Henry, who conveyed the property to the Georgia Pacific Railway Company, C&G’s predecessor in title. Dr. Henry subsequently conveyed whatever interest, if any, was reserved (by the Henry deed to Georgia Pacific) to his wife who then devised that interest to the Craigs.

After the city instituted eminent domain proceedings, the parties agreed to an order allowing the city to take the property upon depositing $150,000 with the LeFlore County Circuit Clerk until the money, by court action, would be divided between the Craigs and the C&G. Both the Craigs and the C&G claimed title to the land and therefore entitlement to the $150,000. Trial was first had by the court sitting without a jury pursuant to an agreement of the parties. The court without the jury heard the matter and ruled that the Craigs had a compen-sable interest but then ordered a jury trial for determination of the respective interests of the parties in the $150,000 held by the clerk of the court. The jury’s finding was that the Craigs would be paid $100,000, and C&G would be paid $50,000. From a judgment to that effect, C&G appeals. In pertinent part the deed states:

In consideration of the benefit and advantages to us accruing from the construction of the Georgia Pacific Railway, and further in consideration of the sum of one dollar in hand paid, the receipt whereof is hereby acknowledged, we do hereby grant, bargain, sell, transfer, and convey unto The Georgia Pacific Railway Company (land description). To have and to hold the said strip of land in fee simple, and we do warrant the title to said land against the lawful claims of all persons. Witness our hands and seals, this 11th day of May, 1888. It is distinctly understood that should said tract of land cease to be used for railway track and depot, then and in that case the same shall revert to the heirs of the grantors herein.
/S/ L. H. Henry
/S/ Jas. P. Henry.

C&G argues, among other things, that the trial court erred in holding: (1) that C&G did not own said property in fee simple absolute; (2) that the interest of the Craigs was a compensable interest; and (3) that the Craigs’ evidence wholly failed to meet the burden of proof that its claimed interest had any value. C&G also contends that the court erred by failing to render the entire $150,000 judgment for C&G on the first trial and in awarding a second trial.

On their cross-appeal, the Craigs argue that the court erred by holding, at the conclusion of the first trial, that the property here being condemned had not ceased to be used for railway track and depot purposes, either in whole or in part, at the time of these eminent domain proceedings. The Craigs also maintain that the court erred in not awarding either all or 95.24% of the eminent domain award to them.

DID THE ORIGINAL DEED TO GEORGIA PACIFIC CONVEY THE TITLE IN FEE SIMPLE ABSOLUTE LEAVING NO TRANSFERRABLE OR COMPEN-SABLE INTEREST IN THE GRANTORS’ SUCCESSORS, THE CRAIGS?

C&G argues that the following underlined controversial language in the original deed:

It is distinctly understood that should said tract of land cease to be used for railway track and depot, then in that case the same shall revert to the heirs of the grantors herein

is void for three reasons:

(1) the said limitation “to the heirs of the grantors herein” attempted to create an executory interest in the heirs of the Henrys, and as such is void under the rule against perpetuities;
(2) that, under the law in Mississippi, a limitation to the heirs of the grantors is void because it cannot presently take effect, i. e., such a limitation can only take effect on the death of the grantors, and, this being so, the courts have held that this cannot be done by deed;
(3) the limitation to the “heirs of the grantors” is an attempted forfeiture provision, and as such is not favored under the law, must be strictly construed against forfeiture and against the grantors, and, in order to be given effect, must be clear and unambiguous.

Presented here is an interesting problem in semantics. C&G contends that the Hen-rys (original grantors) created an executory interest because they failed to retain a re-versionary interest in themselves; they further contend that the executory interest is void under the rule against perpetuities. C&G cites Moynihan’s Introduction to the Law of Real Property (1962), at page 96, for the proposition that the possibility of re-verter “can exist only in the transferor or his heirs.. .. ” In our view just such an interest resulted from the deed in question. Significantly, the final sentence of the 1888 deed concludes, “. . . the same shall revert to the heirs of the grantors herein.”

St. Regis Pulp & Paper Corp. v. Floyd, 238 So.2d 740, 743 (Miss.1970) states that reversionary interests are exempt from the rule against perpetuities and quotes Jones v. Burns, 221 Miss. 833, 841, 74 So.2d 866, 868 (1944):

(A) reservation to the grantor or his heirs is a vested interest and is not within the rule against perpetuities. The distinction is shown by this quotation from 41 Am. Jur. 75, 76, 77, Section 31:
“A possibility of reverter which remains in a grantor or his successor in interest, or in a testator’s heirs or devi-sees, where there has been created a fee simple determinable, is not subject to the rule against perpetuities. Thus, a conveyance of land to a school district upon condition that the land be used only for school purposes, the land to revert to the grantor if the district ceases to use the land for school purposes or uses it for any other purpose, does not violate the rule against perpe-tuities, as the possibility of reverter vests in the grantor, which he may convey and which descends to his heirs or which he may transmit by will. * * ”

Writing for the Court in City of Laurel v. Powers, 366 So.2d 1079, 1082 (Miss.1979), Justice Sugg reiterated the St. Regis ruling:

We have also held that a reservation to the grantor or his heirs is a vested interest and is not within the rule against perpetuities. St. Regis Pulp & Paper Corp. v. Floyd, 238 So.2d 740 (Miss.1970); Jones v. Burns, supra.

Suppose we apply the rules relied upon by C&G and hold the last clause, the controversial portion, of the 1888 deed is void and that title was taken by Georgia Pacific in fee simple. The result would be that the next day after the deed was executed the railroad could have moved its depot to another place and could have done anything it wanted to do with the lands in question. This would obviously have been a direct contradiction of the clearly expressed intent of the grantors when the deed was executed.

Under the argument of C&G had the words “revert to the heirs of the Grantors” read “revert to the Grantors or their heirs” there would have been no problem. The Craigs rely upon the rule of construction in this jurisdiction that if a deed contains repugnant provisions or void attempted reservations and the intent of the parties to the instrument is plain, then the intent must be given effect. Dale v. Case, 217 Miss. 298, 308, 64 So.2d 344 (1953); Federal Land Bank of New Orleans v. Cooper, 190 Miss. 490, 200 So. 729 (1941); Moss v. Jourdan, 129 Miss. 598, 92 So. 689 (1922); Massey v. Whittaker, 126 Miss. 99, 88 So. 518 (1921); Hart v. Gardner, 74 Miss. 153, 20 So. 877 (1896). An excellent discussion of rever-sionary interests, including “right of entry for condition broken” and “possibility of reverter” is set forth in Hathorn v. Illinois Central Gulf Railroad Company, 374 So.2d 813 (Miss.1979). Giving effect to the clear and manifest intent of the parties here, we hold that the 1888 deed created a reversion-ary type interest in the land of such a nature that title would revert to their successors upon happening of the event that the “land cease to be used for railway track and depot... . ”

Our holding is consistent with Hart v. Gardner, 74 Miss. 153, 159, 20 So. 877 (1896), quoting from Henderson v. Mack, 82 Ky. 379, 380-1 (1884) from which the following language is excerpted:

The proper end of all rules of construction is to effect the intention of the parties to the instrument; and the intention of the grantor in a deed is to govern, when it can be ascertained, equally as in the case of other instruments. In arriving at it the entire paper must be considered.
Blackstone says that the construction must “be made upon the entire deed, and not merely upon disjointed parts of it.”
If clauses are repugnant to each other they must be reconciled if possible; and the intent, and not the words is the principal thing to be regarded.
The technical rules of construction are not to be resorted to when the meaning of the party is plain and obvious. (Noyes & Co. v. Nichols, 28 Vt. 159.)

Significant is the obvious fact that after the subject conveyance was worded and the date was supplied at the end, there was added the words of limitation “It is distinctly understood that should said tract of land cease to be used for railway and track ... revert.” This shows that the grantors were not satisfied with their conveyance without it providing that Georgia Pacific (the original grantee) would no longer have a right to the property should it ever cease to be used in connection with railroad operations. Such an emphatic expression of intent cannot be ignored and our decision here gives reasonable and equitable interpretation to the language used. A different result would be reached by following technical rules of construction which would apply except for the clear expression of intent of the original grantors when they added the controversial language to their conveyance after having first written it and dated it.

In Richardson v. Holman, 160 Fla. 65, 33 So.2d 641, 642 (1948), the Florida Supreme Court had before it a deed with similarities to the conveyance before us. The Florida Court stated:

[W]ords or phrases in isolation will not be permitted to defeat the purpose of the grantor when that may be unmistakably gleaned from the four corners of the instrument.
We do not think it essential to the disposition of the question here, to precipitate a discourse in semantics on the difference between a fee simple determinable and estate on condition subsquent [sic], when a possibility of reverter is or is not alienable, or when a fee is qualified, what constitutes a naked possibility, a conditional limitation, or any other uncertain interest in lands. These old common law concepts had much to do with conveyancing in their day, but even in States like Florida, where the common law is in effect except as repealed or substituted by statute, many of them have been obsolete or have been set aside.
DID THE LOWER COURT ERR IN HOLDING THAT THE CONDEMNED PROPERTY HAD NOT CEASED TO BE USED FOR RAILWAY TRACK AND DEPOT?

This is the next issue raised by the Craigs on their cross-appeal.

The lower court found that there had been no abandonment, and such a fact finding cannot be overruled unless contrary to the great weight of the evidence. Shown by the record is the fact that the tracks have been constantly used since the original railroad began to operate on the land. Such use, however, will not continue now that the city has condemned it. The depot building has always been used by the railroad to some degree although only a small portion of the building was used at times in recent years. The depot grounds were always used for parking by railroad employees, for the storage of equipment or for some railroad related purpose. Upon this record, we cannot say that the lower court erred in its refusal to hold that C&G had abandoned the railway track and depot prior to the eminent domain taking.

In Hemphill v. Mississippi State Highway Commission, 245 Miss. 33, 51, 145 So.2d 455, 463 (1962), we stated:

We decline to follow the majority rule which denies compensation to owners of all future interests taken by the state. There is no rational basis for such a general doctrine. It is not equitable, and is not consistent with other legal principles related to such existing estates in land. In each case it should be determined whether the particular interest is of a sufficiently substantial character to warrant protection, or whether it is too tenuous for that purpose.

Justice Ethridge in Hemphill set forth a two-pronged test to be used to determine whether an owner of a future interest should be compensated. The two-pronged test reads:

The owner of a future interest must fulfill two requirements in order to receive compensation: First, he must be the owner of a compensable interest in the condemned property. Appellants meet this test. Second, the interest must be capable of evaluation. See 42 Iowa L.Rev. at 245.

In the case at bar all of the property originally granted to the railroad under the Henry deed was condemned by the City of Greenwood. Applying the two-pronged test enunciated in Hemphill, supra, to the particular facts of this case, we hold that the Craigs have a compensable reversionary interest that is capable of evaluation. Relying on the testimony offered at the second trial, the jury apportioned the condemnation award as follows: $100,000 to the Craigs and $50,000 to C&G. As Justice Ethridge concluded in Hemphill, supra, 245 Miss. at 52, 145 So.2d 455 in reference to Miss. State Highway Comm. v. Madison County, 242 Miss. 471, 135 So.2d 708 (1961):

The jury apparently accepted testimony of an expert appraiser. Although the trier of facts was not obligated to accept that particular evidence, it could weigh that and other testimony in reaching an acceptable conclusion as to the quantum of damages. See also Stoyles, Condemnation of Future Interests, 43 Iowa L.Rev. at 256-257; 5 Powell, Real Property (1962), §§ 665-669.

Here the jury considered the testimony of the witnesses offered by both parties and divided the condemnation award between the parties based upon that testimony. To allow C&G to take the entirety of the $150,-000 eminent domain proceeds would be unconscionable and contrary to all rules of fairness.

In this case presenting a most novel set of facts and excellent briefs, we find no reversible error and must affirm.

AFFIRMED.

PATTERSON, C. J., SMITH and ROBERTSON, P. JJ., and SUGG, WALKER, LEE, BOWLING and COFER, JJ., concur.

      . The rule means that an interest must vest, if at all, within twenty-one years after a life in being at the time the interest is created. Carter v. Berry, 243 Miss. 321, 136 So.2d 871 (1962).


author: COFER, Justice, for the Court:

text:
    Willie Mae MILLER v. STATE of Missisippi.
    No. 52225.
    Supreme Court of Mississippi.
    Nov. 19, 1980.

      Clarence E. Morgan, III, Morgan & Morgan, Kosciusko, for appellant.
    Bill Allain, Atty. Gen. by Carolyn B. Mills, Sp. Asst. Atty. Gen., Jackson, for appellee.
    Before ROBERTSON, P. J., and BOWLING and COFER, JJ.
   COFER, Justice, for the Court:

The appellant, Willie Mae Miller, was indicted for the murder of John Kennedy in the Circuit Court of Choctaw County. On her trial, she was convicted of manslaughter. She has appealed, assigning as error the court’s refusal to grant certain instructions at her request and that the conviction was against the overwhelming weight of the evidence. Concluding that the record supports none of the assignments of error, we affirm the case.

The appellant operated a restaurant in Ackerman at the time of the alleged crime. This restaurant was next to appellant’s residence and some steps and a door provided access between these areas. She served food and drinks in the cafe and there was a “juke box” for the patrons. The cafe was a public place of business.

The homicide took place in the restaurant after, according to appellant’s defense, she had ordered the victim out of the place of business when he had become involved in an argument with a woman who was threatening to strike her daughter with a pool stick.

Her testimony was to the effect that when she ordered him to leave the premises, he went toward the exit door (not that leading into her living quarters), then turned toward her pointing a finger toward her nose and with his other hand in his pocket, and that she was afraid of him. Under the circumstances of the record, she sought an instruction charging the jury that “. .. under the law, a person has a perfect right to quell a disturbance or difficulty among his guests and to evict from his home and his premises the person or persons guilty thereof and to use such force as may be necessary to accomplish said purpose.”

She based this instruction upon Cotton v. State, 135 Miss. 792, 100 So. 383 (1924), wherein the defendant and others were attending a candy pulling dance, a social gathering, at the victim’s residence. Cotton got into a continuing altercation with other guests of the victim and the victim asked Cotton and others to leave. Instead of complying with his request, Cotton and his brother, one or both, beat him to death. The court granted, and this Court approved, an instruction at the state’s request, in essentially the same language as that requested by appellant as quoted hereinabove.

Refusal of the instruction was on the basis of Atterberry v. State, 261 So.2d 467 (Miss.1972), wherein the Court refused a similar instruction, and this Court held its refusal was not error, citing and quoting from Newman v. State, 222 Miss. 660, 77 So.2d 282 (1955). In the Atterberry case, the appellant had appealed a sentence for the murder of a man upon her premises but not in her dwelling. In the extract quoted from the Newman case, the Newman Court had quoted from 26 Am.Jur., Homicide, section 27, p. 173, which says in part “... one cannot defend his property, other than his habitation, to the extent of killing the aggressor for the mere purpose of preventing a trespass, where the invasion is made without force....” The premises here was a public place, not appellant’s dwelling or habitation, and she was not clothed with the same right to evict Kennedy which she would have had had the situation arisen in her home.

No error was committed in refusing the instruction.

Another instruction refused undertook to instruct the jury on the self defense right of appellant not to flee or to retreat from her assailant, but to stand her ground in the face of such assault. Other instructions were granted sufficiently instructing on self defense and failure to give the one refused was not error.

We view the record as presenting a question properly addressed to the jury, that the record contains ample evidence to support the conviction, and that the verdict was not contrary to the overwhelming weight of the evidence.

The conviction and sentence are affirmed.

AFFIRMED.

PATTERSON, C. J., SMITH and ROBERTSON, P. JJ., and SUGG, WALKER, BROOM, LEE and BOWLING, JJ., concur.


text:
    Cecil AUSTIN v. STATE of Mississippi.
    No. 52275.
    Supreme Court of Mississippi.
    Nov. 26, 1980.
    Louis Fondren, Pascagoula, for appellant.
    Bill Allain, Atty. Gen. by Frankie Walton White, Special Asst. Atty. Gen., Jackson, for appellee.
   Appeal from Circuit Court, Jackson County; Robert A. Pritchard, Judge.

Before ROBERTSON, P. J., and BOWLING and COFER, JJ.

AFFIRMED.

PATTERSON, C. J., SMITH, P. J., and SUGG, WALKER, BROOM and LEE, JJ., concurring.


text:
    Leslie L. FORREST, Jr. v. STATE of Mississippi.
    No. 52282.
    Supreme Court of Mississippi.
    Nov. 26, 1980.
   Appeal from Circuit Court, Jackson County; Clinton E. Lockard, Judge.

James H. Heidelberg, Fielding L. Wright, Wright & Heidelberg, Pascagoula, for appellant.

Bill Allain, Atty. Gen. by Marvin L. White, Jr., Special Asst. Atty. Gen., Jackson, for appellee.

Before SMITH, P. J., and SUGG and LEE, JJ.

AFFIRMED.

PATTERSON, C. J., ROBERTSON, P. J., and WALKER, BROOM, BOWLING and COFER, JJ., concurring.


text:
    James E. GATES v. Ruthie L. BUTTS.
    No. 52207.
    Supreme Court of Mississippi.
    Nov. 26, 1980.
    Robert E. Clark, Batesville, for appellant.
    R. M. P. Short, Sardis, for appellee.
   Appeal from Chancery Court, Panola County; Dennis M. Baker, Chancellor.

Before ROBERTSON, P. J., and BOWLING and COFER, JJ.

AFFIRMED AND REMANDED FOR DETERMINATION OF THE OBLIGATIONS OF THE FATHER.

PATTERSON, C. J., SMITH, P. J., and SUGG, WALKER, BROOM and LEE, JJ., concur.


text:
    BROOME CONSTRUCTION COMPANY and United States Fidelity and Guaranty Company v. Benjamin Franklin HEDGEPETH.
    No. 52236.
    Supreme Court of Mississippi.
    Nov. 26, 1980.
    Lawrence C. Gunn, Jr., Aultman & Ault-man, Hattiesburg, for appellants.
    Larry 0. Norris, Hattiesburg, for appel-lee. ‘
   ^f1 J*0™ Circuit Court, Forrest County; Jack B‘ Weldy’ JudSe-

Before PATTERSON, C. J., and WALKER and BROOM, JJ.

AFFIRMED AS MODIFIED.

SMITH and ROBERTSON, P. JJ., and SUGG, LEE, BOWLING and COFER, JJ., concur.


text:
    TENNESSEE RIVER PULP AND PAPER COMPANY and Travelers Insurance Company v. Donald M. SEGER.
    No. 52157.
    Supreme Court of Mississippi.
    Nov. 26, 1980.
    Reed Hillen, Lumpkin, Holland, Ray & Upchurch, Tupelo, Smith, Elliott & Fortier, Ripley, for appellants.
   Appeal from Circuit Court, Webster County; Niles McNeel, Judge.

Jan R. Butler, Butler & Butler, Eupora, for appellee.

Before WALKER, BROOM and BOWLING, JJ.

AFFIRMED AND REMANDED TO THE WORKMEN’S COMPENSATION COMMISSION.

PATTERSON, C. J., SMITH and ROBERTSON, P. JJ., and SUGG, LEE and COFER, JJ.


text:
    Willie Norris BARKER v. STATE of Mississippi.
    No. 52167.
    Supreme Court of Mississippi.
    Nov. 26, 1980.
    Joe 0. Sams, Jr., Columbus, for appellant.
    Bill Allain, Atty. Gen. by Wayne Snuggs, Sp. Asst. Atty. Gen., Jackson, for appellee.
   Appeal from Circuit Court, Lowndes County; Harvey S. Buck, Judge.

Before ROBERTSON, P. J., and BOWLING and COFER, JJ.

AFFIRMED.

PATTERSON, C. J., SMITH, P. J., and SUGG, WALKER, BROOM and LEE, JJ., concur.


text:
    Carl HARBIN v. STATE of Mississippi.
    No. 52326.
    Supreme Court of Mississippi.
    Nov. 26, 1980.
    Sidney J. Martin, Greenville, for appellant.
    Bill Allain, Atty. Gen. by Mark A. Chinn, Sp. Asst. Atty. Gen., Jackson, for appellee.
   Appeal from Circuit Court, Washington County; Webb Franklin, Judge.

Before ROBERTSON, P. J., and BOWLING and COFER, JJ.

AFFIRMED.


text:
    Mary L. FARRIER v. The MISSISSIPPI BANK.
    No. 52256.
    Supreme Court of Mississippi.
    Nov. 26, 1980.
    E. Michael Marks, Rufus Creekmore, Jackson, for appellant.
    Robert A. Biggs, III, Richard M. Edmon-son, McDavid, Edmonson & Noblin, Jackson, for appellee.
   Appeal from Circuit Court, Hinds County; Charles T. Barber, Judge.

Before PATTERSON, C. J., and WALKER and BROOM, JJ.

AFFIRMED.


text:
    Ruth Ann LONG v. Reginald P. WHITE, Director, East Mississippi State Hospital.
    No. 52265.
    Supreme Court of Mississippi.
    Nov. 26, 1980.
    H. W. “Sonny” Jones, Meridian, for appellant.
    James P. Brantley, Whitfield, for appel-lee.
   Appeal from Chancery Court, Lauderdale County; Howard R. Pigford, Chancellor.

Before ROBERTSON, P. J., and BOWLING and COFER, JJ.

AFFIRMED.


text:
    Tommy Lee LARKIN v. STATE of Mississippi.
    No. 52330.
    Supreme Court of Mississippi.
    Nov. 26, 1980.
    Shannon Waller, Jr., Gulfport, for appellant.
    Bill Allain, Atty. Gen. by Wayne Snuggs, Sp. Asst. Atty. Gen., Jackson, for appellee.
   Appeal from Circuit Court, Harrison County, J. Ruble Griffin, Judge.

Before PATTERSON, C.J., and WALKER and BROOM, JJ.

AFFIRMED.


text:
    Johnny Lee HUNTLEY v. STATE of Mississippi.
    No. 52329.
    Supreme Court of Mississippi.
    Dec. 3, 1980.
    Harry P. Sneed, Jr., Gulfport, for appellant.
    Bill Allain, Atty. Gen. by Catherine Walker Underwood, Sp. Asst. Atty. Gen., Jackson, for appellee.
   Appeal from Circuit Court, Harrison County; J. Ruble Griffin, Judge.

Before ROBERTSON, P. J., and BOWLING and COFER, JJ.

AFFIRMED.


text:
    BANK OF STARKVILLE, Branch of Bank of Mantee v. BANK OF ACKERMAN, Branch of Grenada Bank.
    No. 52248.
    Supreme Court of Mississippi.
    Dec. 8, 1980.
   Appeal from Circuit Court, Choctaw County; Clarence E. Morgan, Jr., Judge.

James M. Ward, Starkville, for appellant.

Thomas A. Coleman, Dist. Atty., Acker-man, Bill Allain, Atty. Gen. by Donald Clark, Jr., Sp. Asst. Atty. Gen., Jackson, for appellee.

Before PATTERSON, C. J., and WALKER and BROOM, JJ.

AFFIRMED.


text:
    Norman PEACOCK v. Eddie LUCAS, Warden, Miss. Dept. of Corrections.
    No. 52465.
    Supreme Court of Mississippi.
    Dec. 3, 1980.
    Norman Peacock, pro se.
    Bill Allain, Atty. Gen. by Karen Gilfoy, Asst. Atty. Gen., Jackson, for appellee.
   Appeal from Circuit Court, Montgomery County; Clarence E. Morgan, Jr., Judge.

Before PATTERSON, C. J., and WALKER and BROOM, JJ.

DENIAL OF PETITION FOR WRIT OF HABEAS CORPUS AFFIRMED.


text:
    Albert Kenneth BANKSTON v. Eddie LUCAS, Warden, Miss. Dept. of Corrections.
    No. 52475.
    Supreme Court of Mississippi.
    Dec. 3, 1980.
    Albert Kenneth Bankston, pro se.
    Bill Allain, Atty. Gen. by Carolyn B. Mills, Sp. Asst. Atty. Gen., Jackson, for appellee.
   Appeal from Circuit Court, Sunflower County; Arthur B. Clark, Judge.

Before PATTERSON, C. J., and WALKER and BROOM, JJ.

DENIAL OF PETITION FOR WRIT OF HABEAS CORPUS AFFIRMED.


text:
    Danny Ray FORTNER v. STATE of Mississippi.
    No. 52532.
    Supreme Court of Mississippi.
    Dec. 3, 1980.
    Danny R. Fortner, pro se.
    . Bill Allain, Atty. Gen. by Karen Gilfoy, Asst. Atty. Gen., Jackson, for appellee.
   Appeal from Circuit Court, Lowndes County; Harvey Buck, Judge.

Before PATTERSON, C. J., and WALKER and BROOM, JJ.

DENIAL OF PETITION FOR WRIT OF HABEAS CORPUS AFFIRMED.


text:
    William D. “Hank” PETTIT v. STATE of Mississippi.
    No. 52279.
    Supreme Court of Mississippi.
    Dec. 3, 1980.
    John B. Farese, Farese, Farese & Farese, Ashland, for appellant.
    Bill Allain, Atty. Gen. by Catherine Walker Underwood, Sp. Asst. Atty. Gen., Jackson, for appellee.
   Appeal from Circuit Court, Pontotoc County; Fred Wicker, Judge.

Before PATTERSON, C. J., and WALKER and BROOM, JJ.

AFFIRMED.

SMITH and ROBERTSON, P. JJ., and SUGG, LEE, BOWLING and COFER, JJ., concur.


text:
    Homer SHARP v. Eddie LUCAS, Warden, Miss. Dept. of Corrections.
    No. 52539.
    Supreme Court of Mississippi.
    Dec. 3, 1980.
    Homer Sharp, pro se.
    Bill Allain, Atty. Gen. by Mark A. Chinn, Sp. Asst. Atty. Gen., Jackson, for appellee.
   Appeal from Circuit Court, Scott County; Marcus D. Gordon, Judge.

Before PATTERSON, C. J., and WALKER and BROOM, JJ.

DENIAL OF PETITION FOR WRIT OF HABEAS CORPUS AFFIRMED.


text:
    Larry D. JACKSON v. STATE of Mississippi.
    No. 52289.
    Supreme Court of Mississippi.
    Dec. 3, 1980.
    Leon E. Provine, Grenada, for appellant.
    Bill Allain, Atty. Gen., by Carolyn B. Mills, Spec. Asst. Atty. Gen., Jackson, for appellee.
   Appeal from Circuit Court, Grenada County; Niles McNeel, Judge.

Before ROBERTSON, P. J., and BOWLING and COFER, JJ.

AFFIRMED.

PATTERSON, C. J., SMITH, P. J., and SUGG, WALKER, BROOM and LEE, JJ., concur.


text:
    Tommy (Tommie) NETTLES et al. v. Francis LARSON.
    No. 52251.
    Supreme Court of Mississippi.
    Dec. 3, 1980.
    Richard W. Hamilton, Pascagoula, for appellants.
    Henry L. Tillman, Pascagoula, for appel-lee.
   Appeal from Chancery Court, Jackson County; Glenn Barlow, Chancellor.

Before PATTERSON, C. J., and WALKER and BROOM, JJ.

REVERSED AND RENDERED.

SMITH and ROBERTSON, P. JJ., and SUGG, LEE, BOWLING and COFER, JJ., concur.


author: EMBRY, Justice.

text:
    SHADES RIDGE HOLDING COMPANY, INC. v. COBBS, ALLEN & HALL MORTGAGE COMPANY, INC. et al.
    78-512.
    Supreme Court of Alabama.
    Aug. 15, 1980.
    As Corrected On Denial of Rehearing Nov. 14, 1980.

      William M. Acker, Jr., and Susan E. Dominick, of Dominick, Fletcher, Yeilding, Acker, Wood & Lloyd and Ritchey & Ritchey, Birmingham, for appellant.
    Hobart A. McWhorter, Jr., and Samuel H. Franklin of Bradley, Arant, Rose & White, Birmingham, for appellees.
   EMBRY, Justice.

Shades Ridge Holding Company, Inc., plaintiff below, appeals from final judgment entered after an ore tenus trial in favor of defendant below, Mortgage Corporation of the South (formerly known as Cobbs, Allen & Hall Mortgage Company, Inc.).

In this action Shades Ridge Holding Company, Inc. (hereafter Shades Ridge) sought damages resulting from its loss of approximately 19 acres of land in Vestavia Hills, Alabama. Shades Ridge leased its land to Joseph Sandner who ostensibly was to be the owner of two apartment projects to be constructed on the land. Sandner was not, however, the sole owner of the projects. Instead, Jack Harrison had an undisclosed partnership interest in one of the projects and held the other in trust for the children of Dan Haralson. Haralson during this time was an officer of Mortgage Corporation of the South, Inc. (hereafter South). South, a mortgage loan broker, secured both construction and long-term financing for the apartment projects to be constructed on Shades Ridge’s land.

Shades Ridge’s land was pledged as security for both the construction loans and long-term loans for the apartment projects, with no personal liability upon the part of Sandner or anyone else.

Substantial amounts of money from the proceeds of the construction loans were misapplied and paid to, or for the benefit of Sandner, Harrison, and Haralson, or entities in which they had an interest.

Thereafter, Shades Ridge lost its property when the loan repayments went into default and the mortgages on the apartment projects were foreclosed.

The Case

Shades Ridge filed a total of thirteen counts in an amended complaint seeking damages because of causes of action arising out of transactions associated with the construction and financing of apartment projects on Shades Ridge’s land. For purposes of this appeal we need not elaborate upon Shades Ridge’s claims against other defendants below than Mortgage Corporation of the South. Shades Ridge’s claims against South are found in the following counts of the complaint as amended: (1) count one alleging fraudulent misrepresentation; (2) count two alleging interference with contractual relations between Shades Ridge and Sandner; (3) count three alleging that South breached a contract between it and certain mortgage lenders and that Shades Ridge was entitled to recover for that breach as a third party beneficiary to the contract; (4) count four alleging fraud on South by its agent Haralson for which Shades Ridge was entitled to recover; (5) count five alleging breach of a provision in a mortgage contract whereby the mortgagee covenanted to notify Shades Ridge in the event of certain defaults upon the part of Sandner which in fact occurred and of which South was required to give notice to Shades Ridge; (6) count ten alleging South’s breach of a fiduciary duty and of a duty to disclose; (7) count eleven alleging that South aided and abetted Sandner in his breach of a fiduciary duty; (8) count twelve alleging that a long-term. mortgage on a portion of Shades Ridge’s property was void because it was executed by Shades Ridge’s officers containing terms not authorized by resolution of the board of directors of Shades Ridge; (9) count thirteen alleging fraudulent misrepresentations and nondis-closures upon the part of South. The latter count was added by amendment during trial.

Before trial on the merits the trial court rendered summary judgments in behalf of South as to counts three, five, ten, and twelve of Shades Ridge’s complaint. As to those counts Shades Ridge asserts that entry of those summary judgments is reversible error.

Count five charges that the provisions of a mortgage placed upon South an obligation to notify Shades Ridge if the terms of the ground lease between Sandner and Shades Ridge were breached. Shades Ridge charges that South breached this contractual obligation by failing to monitor the ground lease and by not notifying Shades Ridge of certain violations that occurred.

Count ten charges South with a breach of fiduciary duty, or duty to disclose material facts arising from particular circumstances, owed Shades Ridge. Shades Ridge alleges it employed South as a mortgage broker to secure mortgage loans for the apartment projects to be located on Shades Ridge’s land pursuant to the ground lease with Sandner. South, Shades Ridge alleges, breached this duty by its acts adverse to the interests of Shades Ridge in that an executive officer of South, Haralson, held an equity interest in one of the projects and made secret profits from the proceeds of the mortgage loans at Shades Ridge’s expense. Moreover, South failed to communicate these material facts to Shades Ridge.

Count twelve alleges that Shades Ridge joined in the execution of a mortgage to South on an apartment project located on a tract of Shades Ridge’s property that secured Sandner’s note for $2.3 million bearing interest at the rate of 8%% per annum. South later transferred that note and mortgage to First Federal Savings and Loan of Miami which foreclosed on the mortgage and thereby acquired title to that tract previously owned by Shades Ridge. Shades Ridge alleges that the mortgage is void and of no effect because it was executed without proper authority because the board of directors resolution authorized execution of a mortgage securing a note at 8*/2% per annum and not 8%%.

The case proceeded to trial on counts one, two, four, and eleven. Count thirteen, added during trial, in essence restated claims for fraudulent misrepresentation and nondisclosure which were already the subject of other counts. The claims against South which were tried were based on: (1) its aiding and abetting Sandner in violating a fiduciary obligation he owed Shades Ridge; and (2) South’s participation with Sandner in some of his fraudulent conduct as outlined in counts one, two, four, and eleven. The latter counts delineate various acts which are the bases of Shades Ridge’s charges of fraud. The claims can be summarized to state: (1) that Sandner was the ostensible owner of the two apartment project buildings on Shades’ land but that Jack Harrison had a secret partnership interest in one project and secretly held an interest in the other as trustee for Dan Haralson’s children; (2) that substantial amounts from the proceeds of the construction loans obtained for the construction of the projects were misapplied and paid to or for the benefit of Sandner, Harrison, and Haralson, or entities in which they had interests; and (3) that as a result of the various frauds practiced by Sandner, South, and others, construction of the apartment projects was delayed, they were of inferior quality, the apartments were made more difficult to rent, and major repairs were required, resulting in foreclosure of the mortgages against the projects and the loss by Shades Ridge of its property. South was charged with vicarious responsibility for Haralson’s conduct because he was its executive vice-president.

The trial court found and ordered as follows: (1) there was no fiduciary relationship between Sandner and Shades Ridge in connection with the projects, but, (2) there was a confidential relationship between Sandner and Shades Ridge concerning Sandner’s use and application of the proceeds of the construction loans; (3) after an initial default in the ground lease Sandner agreed to assign his interest in both projects to Vestavia Park Company but obligated himself to remain responsible for performance under the terms of the ground lease for one year after the assignment; (4) because certain terms of the lease were not performed for the one year period judgment is entered against Sandner for $20,834 plus interest; (5) by consenting to and executing the assignment Shades Ridge released Sandner from contractual liability based on his failure to account to Shades Ridge with respect to the proceeds of the construction loans; (6) the diversion of the proceeds of the construction loans and the concealment or failure to disclose the same to Shades Ridge operated as a fraud on Shades Ridge; (7) South was guilty of fraud because when Haralson received and diverted part of the funds he was South’s executive vice-president and it had placed him in a position where he was able to engage in the fraudulent conduct; and, (8) the fraudulent conduct was the cause of Shades Ridge’s damages; therefore, judgment is rendered in South’s favor.

On this appeal Shades Ridge complains of error in the final judgment by the trial court’s misapplication of the law to the facts and by entry of partial summary judgments denying its right to proceed on the theories stated in counts five, ten, and twelve.

Facts

The Property

In August of 1970 Shades Ridge owned nineteen acres of land in the City of Vesta-via Hills, in Jefferson County, separated by the Old Montgomery Highway so that one tract, lot 16-A contained approximately fourteen acres and the other tract, lot 12-A, contained approximately five acres. Both tracts were at that time zoned for single-family residences. Shades Ridge’s attempt to have the property rezoned for a shopping center had failed.

The Negotiations

Charles L. Denaburg (an attorney representing Shades Ridge) and Jack Harrison (an attorney representing Sandner) discussed developing apartment projects on the land. This would necessitate a rezoning of the property. Denaburg negotiated with Harrison regarding terms of a ground lease to Joseph C. Sandner who was to be the developer of apartments to be constructed on the property. Harrison ostensibly was only acting in the capacity of an attorney representing Sandner; however, both he and Daniel B. Haralson, the executive vice-president of South, were to have interests in the apartments to be built on Shades Ridge’s property. Shades Ridge was not apprised of any interests in the projects other than Sandner’s.

Denaburg, Sandner, Harrison, Haralson, and Pete Thomas, secretary of Shades Ridge, attended a meeting in Denaburg’s office where it was understood that Sand-ner was to be the builder, Harrison would get the zoning changed, and Haralson would arrange financing.

On 16 November 1970, Harrison persuaded Vestavia Hills to rezone the property in order to permit construction of apartments on it.

On 22 February 1971, South, through Haralson, arranged for the permanent financing of the projects. New York Life Insurance Company made a commitment for a permanent loan of 2.1 million dollars to finance a 170-unit apartment project on the 14-acre tract, but declined to make a loan commitment for development of the other. As a consequence, the development of the two tracts of land was treated as separate projects. South then procured a permanent loan commitment from State Mutual Investors in the sum of $637,500 to finance a 50-unit apartment project on the five-acre tract.

The latter loan commitment was initially issued to and accepted by Jack Harrison as trustee under a trust indenture established by Haralson on 18 December 1970 for the benefit of his wife and children. By letter dated 11 January 1971, addressed to Harrison, Sandner agreed to convey the 50-unit project and a 57V2% interest in the 170-unit project to Harrison by warranty deed. Shades Ridge had no knowledge of Harrison’s interest or that of the Haralson trust. Haralson, by letter to Charles Speir dated 9 March 1971, asked State Mutual Investors to assign the commitment to Sandner “to facilitate matters and to allow construction to proceed.”

Exchange Security Bank agreed to be the lead lender for the construction loans for the two projects. State Mutual Investors, because it had made a permanent loan commitment on the 50-unit project, agreed to purchase the note and mortgage evidencing the construction loan on this project and then convert it to a permanent loan.

On 1 April 1971, Sandner entered into a written contract with Bruce MacClary and James C. Barton, d/b/a MacClary Contracting Company, for the construction of the two apartment projects. MacClary agreed to build the 170-unit complex for $1,650,000 and the 50-unit project for $550,000.

The Transaction

On 2 April 1971, after lengthy negotiations between Denaburg and Harrison, Shades Ridge executed a ground lease to Sandner covering both parcels of the aggregate nineteen acres. Thereupon, the construction loans were closed. Sandner agreed to construct apartments on each of the tracts of land and Shades Ridge agreed to execute a mortgage on its land to enable Sandner to obtain financing for those apartment projects. Shades Ridge’s land and the apartments to be located thereon were to be the only security for both the construction loans and the permanent loans. Neither Sandner nor Shades Ridge were to incur personal liability. The ground lease was for a term of thirty years with minimum annual rental payments of $25,000 plus a percentage of profits, payable in monthly installments. Rental payments for the final six years of the term of the lease, amounting to $150,000, were payable in advance. Also, Sandner was required to pay as advance rents any amount in excess of $75,000 by which the permanent loans exceeded the cost of development.

The Diversions

Beginning with the first draw on the construction loans, Sandner and Haralson began diverting substantial sums from the proceeds. These sums were treated as payments for services or materials furnished by Sandner or by corporations owned by Sand-ner and Haralson.

Unknown to Shades Ridge, Sandner formed a corporation called Horizon Development Services, Inc., to prepare the plans and specifications for the construction of the apartment buildings and also furnish other necessary architectural services. Haralson, or the trust for his wife and children, owned 25% of this corporation. Ed Bailey, the architect hired by Horizon to design the apartment projects, also had an interest in this corporation. Payments totaling $45,000 for architectural services ostensibly meant for Bailey were in fact paid to Horizon.

Another corporation, Developers Services, Inc., in which Sandner owned an interest, and Harrison as trustee under the trust for the benefit of Haralson’s wife and children owned a 25% interest, sold carpets and drapes to the apartment projects. The carpet was of such inferior quality that it had to be replaced prior to being used. This carpet cost significantly less than the amount allocated for carpet; the difference in the amount expended and that allocated was diverted to Developers Services, Inc.

Other sums misapplied from the apartment projects construction loan proceeds included: $45,105 paid to Bruce MacClary, Sandner’s contractor for the project, for construction work and materials supplied to one of Sandner’s other projects, LePappil-lon Apartments; $5000 to M & L Investment Company, another of Sandner’s companies; $24,000 to Harrison, trustee; $20,-100 to Horizon Properties; and $7000 to Horizon Inns and Management, another Sandner Company.

Following the usual procedures, MacClary made monthly requests for payments indicating with each request the percentage of the construction contract which had been completed. Ed Bailey, the architect, approved these requests and Sandner paid them from construction loan proceeds.

In June 1972, it came to the attention of one of the banks involved that the amounts paid to the contractor exceeded by 16% the progress of the work performed. In September 1972, an agreement was reached authorizing further payments to MacClary in exchange for MacClary’s promise to complete the 170-unit project by 30 November 1972.

MacClary filed suit in November 1972 claiming that construction was complete. The case was settled in September 1973. Prior to that time, however, it came to Shades Ridge’s attention that numerous deficiencies existed in the 170-unit project. These included incomplete landscaping and cleanup, leaks in the roofs in many units which caused extensive damage to ceilings, wood balconies out of plumb, and other deficiencies.

In an agreement between Shades Ridge and Sandner, Sandner agreed to complete the units and to make certain repairs and refurbishings.

The Bailout

Following closing of the permanent loan on the 170-unit project Sandner defaulted in making the monthly payments due First Federal Savings and Loan Association of Miami and it refused to grant a moratorium on those mortgage payments.

Thereafter, Sandner executed an assignment transferring all of his interest in the ground lease covering both the 170-unit project and the 50-unit project to a partnership of which Shades Ridge was a partner. Sandner was to remain liable under the lease for a year thereafter. However, as a result of defaults in mortgage payments due on each of the projects the mortgages on both projects were foreclosed and Shades Ridge lost its land.

Controlling Principles of Law

There are two fundamental controlling principles of law applicable in this case to resolve the issues presented. First, in* cases of intentional or aggravated acts there is an extended liability and the rules of proximate causation are more liberally applied than would be justified in negligence cases. This is especially true in cases of fraud where proximate cause is often articulated as a requirement of reasonable reliance where but for the misrepresentation or concealment it is likely the plaintiff would not have acted in the transaction in question. In those instances where the defendant is found to have acted intentionally it is proper that a more remote causation result in liability than would be true in negligence cases. The policy to be followed is that liability should fall on the wrongdoer rather than to permit the victim to go uncompensated.

Second, on motion for summary judgment, the initial burden of proving nonexistence of a genuine issue as to a material fact is on the movant. Until the moving party meets this burden the other party need not respond. Even if the mov-ant meets his initial burden the opposing party is only required to produce some-evidence in order to advance to trial.

Issue One

Did the trial court improperly and erroneously apply the law to the facts in this case when it held that Haralson’s and therefore South’s fraud was not the proximate cause of Shades Ridge’s losses and damages? We hold that it did and reverse.

The Trial Court’s Findings

The trial court expressly found that from the inception of the transactions under scrutiny on this appeal Sandner and Haral-son contemplated that Haralson, either personally or through the family trust, would have the entire ownership interest in one of the projects and would also receive, by virtue of interests in corporations controlled by Sandner, a share of the profits made from the sale of materials and services to the projects. Haralson was aware of these diversions of monies and participated in the frauds while executive vice-president of South.

The trial court further found that Haral-son acted adversely to the interests of South when he caused a loan brokerage fee of South’s to be refunded to Sandner and therefore South could not be liable to Shades Ridge for that particular misconduct. However, Haralson’s services in arranging the financing were within the normal course of his employment with South which is liable for fraud growing out of such circumstances where South placed Haralson in a position whereby he was enabled to engage in the fraudulent conduct.

The trial court concluded that the diversion of the construction loan proceeds by Sandner and South and the concealment or failure to disclose this activity to Shades Ridge operated as a fraud on Shades Ridge. Regarding certain defects in construction and delays in completion that Shades Ridge complained of, the court found Sandner and South had not acted fraudulently to bring about those delays or defects with the exception of the defective carpet that was installed by one of Sandner’s and Haral-son’s corporations. On the crucial issue of proximate causation, however, the court was unable to conclude that either the diversion of substantial parts of the construction loans proceeds or the installation of the defective carpeting caused the failure of the two projects and the resultant foreclosure of the mortgages and loss of Shades Ridge’s real property.

In the trial court’s lengthy discussion of the proximate cause issue it cited only one case for the meaning and application of this complex doctrine. That case, City of Mobile v. Havard, 289 Ala. 532, 268 So.2d 805 (1972), was a negligence case. Therefore, at issue here is whether by relying solely on this negligence case the trial court considered the proper factors in their appropriate light in concluding that the fraudulent acts of Sandner and South were not the proximate cause of Shades Ridge's damages.

South contends it is not charged with an intentional tort. This contention lacks merit. Although the trial court’s determinations were made on the basis of § 6-5-102, Code 1975, it made express findings of fact regarding Haralson’s knowledge of the concealed facts and his contemplation from the outset of having an interest in the projects and certain corporations in which he had an interest selling goods or services to the projects.

This court, in Chapman v. Rivers Construction Co., 284 Ala. 633, 227 So.2d 403, 410 (1969), discussed § 6-5-102, Code 1975, as it appeared identically in the previous code:

“Title 7, § 109, Code 1940, recites:
“ ‘Suppression of a material fact, which the party is under an obligation to communicate, constitutes fraud. The obligation to communicate may arise from the confidential relations of the parties, or from the particular circumstances of the case.’
“§ 109 is declaratory of the common law. In dealings between persons standing in confidential relations, the law imposes an obligation on one party to safeguard the interests of the other party with the same fidelity with which he safeguards his own. Withholding facts, material to be known, is a breach of such legal duty, regardless of intent to deceive, and is a legal fraud. When the circumstances of the particular case impose a like duty, the same rule obtains. So reads the statute. In the absence of confidential relations, or special circumstances imposing a like duty, the rule seems settled that nondisclosure of facts to be fraudulent must be for purposes of deceit, Metropolitan Life Ins. Co. v. James, 238 Ala. 337, 341 [1, 2] [3], 191 So. 352.”

In Metropolitan Life Ins. Co. v. James, 238 Ala. 337, 191 So. 352 (1939), the court discussed the requirement of intent for actionable concealment or suppression in the absence of confidential relations or special circumstances imposing a like duty to disclose:

“In Jordan & Sons v. Pickett, 78 Ala. 331, dealing with fraud on the part of a seller of property, it was said: ‘Concealment implies design, or purpose. * * * The concealment must be for the purpose of continuing a false impression or delusion under which the purchaser has fallen, or of suppressing inquiry, and thereby effecting a sale-with the intention to conceal or suppress-and it must operate an inducement to the contract.’
“And in Southern Land Development Co. v. Mever, 230 Ala. 40, 159 So. 245, 246, we find: ‘The suppression of the truth as to the material fact may amount to an actionable falsehood, as when, with the intent to deceive, a party to the contract conceals or suppresses a material fact which good faith requires to be declared or disclosed, it is the equivalent of false misrepresentation and fraudulent concealment (American-Traders’ Nat. Bank et a1. v. Henderson, 222 Ala. 426, 133 So. 36; Griel v. Lomax, 89 Ala. 420, 6 So. 741).’
“In Restatement of the Law of Contracts, § 471, fraud is defined to include: ‘(c) non-disclosure where it is not privileged, by any person intending or expecting thereby to cause a mistake by another to exist or to continue, in order to induce the latter to enter into or refrain from entering into a transaction.’ See Alabama Annotations to § 471.”

On the basis of the foregoing analysis, and the trial court’s findings of fact, it seems clear that Shades Ridge’s claim was based on an intentional tort. We must therefore determine whether the considerations which show proximate cause are identical in cases of negligent and intentional torts. A leading case recognizing and discussing the existence of both negligent and intentional misrepresentation is Ultramares Corporation v. Touche, 255 N.Y. 170, 174 N.E. 441 (1931). In that case, on the same set of facts here present, liability on the basis of negligent misrepresentation was not allowed but the trial court was reversed for disallowance of the claim for intentional misrepresentation and that claim was remanded for trial.

There are numerous cases containing in-depth discussions of proximate cause in the negligence context. In the context of fraud or other intentional torts the cases mention proximate cause as a necessary element for liability rather casually but provide little or no guidance regarding standards for determining causation. Often, courts do not even use the word “proximate” in connection with causation. For example, in Maring-Crawford Motor Co., Inc. v. Smith, 285 Ala. 477, 481, 233 So.2d 484, 487 (1970), this court obliquely referred to causation: “ * * * the good faith of a party in making what proves to be material misrepresentation is immaterial if the other party acted on such misrepresentation to his injury.” (Emphasis added.) And in Hall Motor Co. v. Furman, 285 Ala. 499, 504, 234 So.2d 37, 41 (1970), speaking in terms of reliance on the intentional misrepresentation, this court held that “ * * * punitive damages could be recovered * * * jf * * * the evidence established that the material misrepresentation * * * was relied on by the injured party * * Similarly, in Oates v. Glover, 228 Ala. 656, 658, 154 So. 786, 787 (1934), the court stated that “ * * * it would follow that if the plaintiff did sustain actual damages, as the result of fraud * * *, the plaintiff would at least be entitled to recover nominal damages.” (Emphasis ours.)

There is occasionally, however, an explicit recognition that the meaning and effect of “proximate cause” changes in relation to the context in which a case is brought. For example, in Olympic Towing Corp. v. Nobel Towing Co., 419 F.2d 230 (5th Cir. 1969), cert. denied, 397 U.S. 989, 90 S.Ct. 1120, 25 L.Ed.2d 396 (1970), the court defined “proximate cause” in the admiralty context and distinguished it from the principle generally described in the common law. In another context the Texas Court of Appeals stated “ * * * the term ‘proximate cause’ as supplied in insurance cases has essentially the same meaning as in negligence cases except that in insurance cases the element of foreseeability * * * is not required.” Federal Insurance Co. v. Bock, 382 S.W.2d 305 (Tex.Civ.App.1964). Dean Prosser addresses this issue squarely. In discussing the foreseeability requirement usually imposed on liability for negligent conduct he states:

“One area in which it may be especially likely that the ‘foreseeability’ limitation will be cast aside is that of intentional torts, as to which it has been said often enough that there is more extended liability.” Prosser, Law of Torts (4th Ed. 1971), § 43 at p. 263.

This trend is dictated by the policy that liability even though potentially tremendous should be imposed on the wrongdoer rather than the victim be uncompensated. Hence, even very remote causation may be found where the defendant acted intentionally.

The Restatement (Second) of Torts § 435A (1966), also recognizes this distinction between causation in cases of intentional and negligent torts. It states that even though the consequences were unex-pectable, with an intentional tort, the defendant is liable for it even though had he been negligent he would not be so liable.

There are a few cases which also address this issue directly: In Johnson v. Greer, 477 F.2d 101 (5th Cir. 1973), at pp. 106-107, the court stated:

“ * * * the courts have generally held that where the acts of a defendant constitute an intentional tort or reckless misconduct, as distinguished from mere negligence, the aggravated nature of his action is a matter which should be taken into account in determining whether there is a sufficient relationship between the wrong and plaintiff’s harm to render the actor liable. Specifically, the factors to be taken into account are the tort feasor’s intention to commit a wrongful act, the degree of his moral wrong in so acting, and the seriousness of the harm intended.”

This same view was expressed by the New Jersey Superior Court in a case of malicious prosecution. After discussing proximate cause at length the court stated:

“A different matter is presented where intentional acts are involved and it is clear that the rules of causation are more liberally applied to hold a defendant responsible for the consequences of his acts. It is well settled that where the acts of a defendant constitute an intentional tort or reckless misconduct, as distinguished from mere negligence, the aggravated nature of his acts is a matter to be taken into account in determining whether there is a sufficient causal relation to plaintiff’s harm to make the actor liable therefor. His intention to commit a wrongful act, the degree of his moral wrong in acting, and the seriousness of the harm, which he intended are important factors in determining whether he is liable for resulting unintended harm. In applying concepts of ‘foreseeability’ and ‘proximate cause’ in such cases there is more extended liability, and in a case involving such aggravated acts a fact finder may be permitted to find that the actor’s conduct bears a sufficient causal relation to a plaintiff’s harm so as to make him liable, although no such finding would be permissible if defendant’s conduct were merely negligent. * * *” Seidel v. Greenberg, 108 N.J.Super. 248, 260 A.2d 863 (1969).

.In that case the court went on to say: “Indeed, it appears likely that many of the limitations upon liability that are subsumed under the doctrine of ‘proximate cause’, as usually expounded in negligence cases, do not apply to intentional torts.”

The Mississippi Supreme Court has also recognized this distinction. In State ex rel. Richardson v. Edgeworth, 214 So.2d 579, 587 (Miss.1969), that court stated:

“In short, the defendants’ intentional conduct is a legal cause of harm to plaintiffs if their individual acts were substantial factors in bringing about the harm. * * * A higher degree of responsibility is imposed upon a wrongdoer whose conduct was intended to cause harm than upon one whose conduct was negligent. Lyons v. Zale Jewelry Co., 246 Miss. 139, 150 So.2d 154 (1963) * *

As previously stated, the trial court in this case relied solely on a negligence case to support its conclusion that Sandner and South (acting through Haralson), although guilty of intentionally and fraudulently converting large portions of the construction loan proceeds to their personal use, did not proximately cause Shades Ridge’s losses. In light of the considerations discussed above we hold that the trial court erred in failing to consider this issue in the context of an intentional tort.

Regarding causation, Harper and James, The Law of Torts, § 7.13 (1956), puts it this way:

“ * * * The problem of legal or proximate causation is of little difficulty in view of the general rule that all intended consequences are proximate. Whether the defendant’s misconduct has in fact caused plaintiff any damage at all, however, is frequently presented as a problem of ‘reliance’ on the part of the plaintiff upon the misrepresentation.
“To establish that a loss sustained in a business transaction was caused by the defendant’s misrepresentation, it must appear that the plaintiff relied upon the misrepresentations, and to show reliance, it must appear that the plaintiff believed the representations to be true. If the plaintiff knew that the representations were false or if- he was already in possession of knowledge and facts which the defendant fraudulently attempted to conceal, he can not complain that he has been misled to his damage by the defendant’s attempted deception. ‘A reliance upon the representations of another person in respect to any fact necessarily implies a belief in the truth of the statement thus made.’ The idea of a person knowing a representation to be false and at the same time ‘relying’ thereon is a contradiction in terms.
“Again, if the misrepresentation on the part of the defendant pertained to a trivial or immaterial fact, it would ordinarily be clear that such misrepresentation did not induce the plaintiff’s reliance. It is only a misrepresentation of a material fact that can be said to cause the loss. To determine whether or not a misrepresentation was actually relied upon, whether it was a cause in fact of the damage, the sine qua non rule is often applied. If the plaintiff would not have acted on the transaction in question but for the misrepresentation, such misrepresentation was an actual cause of his loss. If he would have adopted the same course irrespective of the misrepresentation and would have sustained the same degree of damages anyway, it can not be said that the misrepresentation caused any damage, and the defendant will not be liable therefor.”

Conversely, if Shades Ridge would have adopted a different course but for the suppression of a material fact then logically it has relied on the misrepresentation and the resulting loss is due to that reliance. See Lovell v. Smith, 232 Ala. 626, 169 So. 280 (1936); Jackson Co. v. Faulkner, 55 Ala.App. 354, 315 So.2d 591 (1975).

According to Prosser “proximate cause” has two prongs: Causation in fact and proximity. As stated above, the first prong can properly be stated in terms of reliance in the context of intentional misrepresentation. It is the second prong, the requirement of proximity between the misconduct and the injury which presents the most difficulty. Prosser states that this requirement is merely the limitation which the courts have placed upon the actor’s responsibility for the consequences of his conduct. Therefore, the existence of causation in fact having been established, the problem of proximate cause becomes one of public policy, justice, and fairness. Prosser puts it this way:

“As a practical matter, legal responsibility must be limited to those causes which are so closely connected with the result and of such significance that the law is justified in imposing liability. Some boundary must be set to liability for the consequences of any act, upon the basis of some social idea of justice or policy.
“This limitation is sometimes, although rather infrequently, one of the fact of causation. More often it is purely one of policy, of our more or less inadequately expressed ideas of what justice demands, or of administrative possibility and convenience, none of which have any connection with questions of causation at all.” Prosser, Law of Torts (4th Ed. 1971) § 41.

What then are the policy considerations regarding actions in tort for fraud? As with other torts, three functions of imposing liability come immediately to mind: compensation, deterrence, and loss spreading. Since “cause” is used in different guises within different contexts of social and legal policies the practical definition of causation should change as the policy considerations change. Causal concepts should be used flexibly in order to serve adequately the underlying policy considerations regarding the various tort actions. The court in Seidel v. Greenberg, 108 N.J.Super. 248 at 267, 260 A.2d 863 at 875 (1969), stated this proposition this way:

“In the case of liability for intended or aggravated acts, * * * although it is clear that there is extended liability and the rules of proximate causation are more liberally applied to hold a defendant liable, there is even less articulation in the cases of any workable rule which may be applied by a trial court. See Prosser, op. cit., § 50, at 303. In such case the court can only seek to draw upon such precedents as are available, applying the rules of causation with greater liberality than would be justified in a conventional negligence case. Foreseeability, as such, is not the test. If, weighing the moral fault of a defendant and applying the rules of causation liberally, the consequences have some reasonably close connection with defendant’s conduct and the harm threatened, and in themselves, using hindsight, are not deemed preposterous or farfetched, defendant should be held liable. Concepts of policy, fairness and justice are entitled to great weight.”

For the reasons stated the trial court is reversed because of its misapplication of the law regarding proximate cause to the facts in this case.

Issue Two

Did the trial court err to reversal by entering partial summary judgment on 12 July 1978 as to counts five, ten and twelve?

South contends the partial summary judgment on 12 July 1978 was not final as to Shades Ridge because after entry thereof the pleadings might still have been amended to conform to the evidence presented at trial. South contends that by failing to refile counts five, ten, and twelve, Shades Ridge waived any error arising from an adverse ruling based on that partial summary judgment. Entry of that partial summary judgment, South contends, was harmless error under Rule 61, ARCP.

The court in E. I. DuPont De Nemours and Co. v. United States Camo Corp., 19 F.R.D. 495, 498 (D.C.1956), explained the function and effect of a partial summary judgment:

“When a court enters a partial summary adjudication pursuant to Rule 56(d), it does not render a final judgment, which is appealable, but only an order as to uncontroverted facts which being interlocutory, is subject to revision or modification and that the partial interlocutory summary adjudication is merely a pretrial determination that certain issues are considered established for the trial of the case, and is similar to the preliminary order under Rule 16, its purpose like that of a pretrial order being to expedite litigation.”

However, a partial summary judgment is not without beneficial effect. Similar to a pretrial order, it is designed to control the subsequent course of action. Cf. Hardy v. Sawyer, 352 So.2d 1104 (Ala.1977); Watson v. McGee, 348 So.2d 461 (Ala.1977) (effect of a pretrial order). Similarly, the trial court has discretion to exclude evidence not conforming to a partial summary judgment. Cf. Rodrigues v. Riley Industries, Inc., 507 F.2d 782 (1st Cir. 1974) (pretrial order).

To require appellant to challenge such a partial summary judgment at a later time during the course of the proceedings in order to preserve error would be to place a more onerous burden on it than the law requires. The availability of a procedure to amend the pleadings to conform to the evidence under Rule 15, ARCP, does not make entry of an erroneous partial summary judgment harmless error under Rule 61, ARCP.

We cannot conclude that the partial summary judgment in South's favor was harmless error where certain counts were precluded from trial based on that judgment. To require a party to offer to amend his pleadings to reincorporate such existing counts when some evidence relevant to the excised counts is introduced on the issues tried would unduly restrict review of orders of this kind. Furthermore, where the trial court has discretion to prohibit the introduction of evidence relative to an issue precluded by partial summary judgment that discretion might have the improper effect of precluding review of an erroneous partial summary judgment under the theories South advances.

It should be noted that an order granting or denying a partial summary judgment provides an opportunity for a trial court to, in effect, make a pretrial order to control and simplify the issues remaining to be litigated.

Rule 56(d), ARCP, provides that:

“ * * * the court at the hearing of the motion, by examining the pleadings and the evidence before it and by interrogating counsel, shall if practicable ascertain what material facts exist without substantial controversy and what material facts are actually and in good faith controverted. It shall thereupon make an order specifying the facts that appear without substantial controversy, including the extent to which the amount of damages or other relief is not in controversy, and directing such further proceedings in the action as are just. Upon the trial of the action the facts so specified shall be deemed established, and the trial shall be conducted accordingly.”

This is an especially useful tool in litigation involving complex fact situations as are illustrated by this case. In this case partial summary judgment was granted as to counts rather than specifics contained in those counts about which there was no genuine issue of material fact.

When a partial summary judgment is specific it may economize time and simplify and clarify the controverted issues that remain and in addition eliminate from trial material facts which are not genuinely controverted. Also, certain other issues which are irrelevant to the remaining claims for relief may be eliminated and those facts which are admitted or not controverted may be set out and thus obviate the necessity for proof of them.

Pursuant to Rule 56(d), the court entered the rather extensive order dated 12 July 1978. South’s motion for summary judgment was submitted upon, among' other things, the pleadings and the deposition of Pete Thomas of 22 April 1975. Shades Ridge made a factual response based on affidavits of Pete Thomas, Charles Dena-burg, Ed Bailey, and the attorneys who represented Shades Ridge. Shades Ridge also introduced numerous depositions.

Count Five

In count five Shades Ridge alleged that on 1 June 1973, it executed an agreement to modify the ground lease. Also, that on 1 June 1973 it executed a mortgage to South which provided in substance:

(1)That if default should be made in the payment of the indebtedness or in the “performance of any covenant, condition, or agreement” of the mortgage by Sandner (mortgagor), South (mortgagee) would immediately give written notice to Shades Ridge.

(2) That the failure by Sandner to observe any covenant, condition or agreement of the mortgage, the promissory note secured by the mortgage, or “any other instrument securing the Note and all instruments collateral thereto or executed in connection with the loan secured by this Mortgage” would constitute an event of default.

(3) The “collateral instruments” referred to in the said mortgage included the lease from Shades Ridge to Sandner and the loan commitment from First Federal of Miami.

(4) South breached and violated the terms of said mortgage in that South failed to give Shades Ridge written notice of Sandner’s several defaults in the performance of covenants in loan documents, including, inter alia, the following: (a) Sand-ner’s failure to complete the buildings and improvements in accordance with plans and specifications of First Federal; (b) Sand-ner’s failure to provide the project with first class equipment; (c) Sandner’s failure to perform and observe all of the terms, covenants and conditions of the ground lease.

With regard to count five the trial court stated:

“In Count Five, Shades Ridge bases its claim on the provisions of the mortgage executed to South and then immediately transferred to First Federal. Paragraph 26 of the mortgage instrument does require the mortgage to give immediate written notice to Shades Ridge of any default in the performance of any of the terms of the mortgage. The obvious purpose of this provision was to give Shades Ridge the opportunity to cure any default before the mortgagee declared all payments due or commenced foreclosure proceedings against the property. The Court here finds no basis for Shades Ridge’s claim that the mortgage instrument may be made the basis of a contract or agreement or that it incorporates an agreement on the part of South to give Shades Ridge written notice of Sandner’s failure to complete the buildings and improvements and equip the same in accordance with the plans and specifications.”

At the time it ruled on the motion for summary judgment the trial court had before it the ground lease of 2 April 1971, the modifications to it of 1 June 1973, and the mortgage of 1 June 1973 on the 14-acre tract. The mortgage contained the following provisions:

“4. Mortgagor [Sandner] shall pay all debts, claims or other charges that may become liens against the premises or any part thereof for repairs or improvements that may have been or may hereafter be, made on the premises and shall not permit any lien or encumbrance of any kind which become superior to the title of Mortgagee [South] or the lien of this mortgage to accrue or remain on the premises or any part thereof.
* * * * * *
“19. Anything contained in this mortgage to the contrary notwithstanding, to the extent that the outstanding principal indebtedness does not exceed the sum of One Million Seven Hundred Twenty-Five Thousand and no/100 Dollars ($1,725,-000.00), the undersigned Mortgagor shall be under no personal liability under this mortgage or said note, and the holder of this mortgage and said note shall look solely to the mortgaged premises for payment of the above specified principal indebtedness by said note and secured by this mortgage and for the performance of the obligations and covenants set forth and contained in said note and this mortgage; and in the event of foreclosure or sale of the premises under the power of sale contained herein or otherwise, and/or the exercising by the Mortgagee of its right under said assignment of Mortgagor’s interest in leases, no deficiency judgment shall be obtainable against the Mortgagor to the extent of the above specified principal indebtedness. Nothing herein contained shall impair the validity of the indebtedness evidenced by said note or in any way affect or impair the lien of this mortgage or the right of the holder of this mortgage to foreclose the same following a default by the undersigned in the making of the payments provided by said note or in the performance of any of the terms, conven-ants and conditions of this mortgage or the note evidencing the debt secured hereby.
* * * * * *
“24. Any one or more of the following events shall constitute an event of default:
* * Sfc Sfc *
“(b) Failure by Mortgagor to duly observe any other covenant, condition or agreement of this mortgage or the Note or any other instrument securing the Note and all instruments collateral thereto or executed in connection with the loan secured by this Mortgage; * * *
****$#
“25. The Mortgagor covenants that, in addition to the payment of all rent, additional rent, impositions (as defined in the ground lease), and other payments and charges required to be paid by the Mortgagor, as lessee or tenant, under and pursuant to the provisions of the ground lease, the Mortgagor:
“(a) will diligently perform and observe all of the terms, covenants and conditions of the ground lease required to be performed and observed by the Mortgagor as such lessee or tenant unless such performance or observance shall have been waived or not required by the lessor or landlord under the ground lease, to the end that all things shall be done which are necessary to keep unimpaired the Mortgagor’s rights as lessee or tenant under the ground lease;
“26. If default shall be made in the payment of the indebtedness secured hereby or any part thereof in accordance with the terms thereof, or in the performance of any covenant, condition, or agreement of this mortgage, the mortgagee [South] shall immediately give written notice to Shades Ridge Holding Company, Inc., at its address herein after specified, or at such other address given in writing to the mortgagee, and Shades Ridge Holding Company, Inc. shall have thirty (30) days from the receipt of such written notice of default to cure such default.” (Emphasis added.)

In Brown v. First National Bank of Montgomery, 261 Ala. 565, 568, 75 So.2d 141, 143 (1954), the court stated:

“It has been held by this court, in accord with what appears to be the general rule, that in certain instances notes and contemporaneous written agreements such as mortgages, executed as.part of the same transaction, are to be construed together as forming one contract.”

Paragraph 25 expressly refers to the ground lease as providing terms, covenants, and conditions and paragraph 24 provides that default includes failure to observe covenants, conditions, or agreements of the mortgage or all instruments collateral thereto or executed in connection with the loan secured by the mortgage. The date that both instruments bear, 1 June 1973, should be sufficient to provide evidence that they were executed in connection with the mortgage. Furthermore, the express reference to the ground lease in paragraph 25 provides a reasonable inference that it was a collateral instrument referred to in paragraph 24 defining default. Paragraph 26 does not attach any contingency or condition upon the requirement that notice be given. It merely provides that notice shall be given upon default. We cannot say as a matter of law that this mortgage did not require the mortgagee to notify Shades Ridge of any default as it is defined by the contract nor can it be said that this contract by the terms expressed on the face of the instrument is unambiguous. S & T Leasing Corp. v. Alabama Highway Express, 335 So.2d 384 (Ala.1976). Entry of partial summary judgment as to count five is error because the contract is not unambiguous. It appears from the face of the instrument that there is a genuine issue of fact as to the meaning of the terms of the contract.

Count Ten

The trial court granted summary judgment on Shades Ridge’s count ten which, among other things, alleged that (1) South was a mortgage lending institution and broker for various other lending institutions; (2) construction loans were made to Sand-ner, Haralson, and Harrison; (3) the interest of Haralson and Harrison were undisclosed and concealed from Shades Ridge; (4) South knew that Shades Ridge in executing the mortgage was exposing its real property to danger of foreclosure without a concomitant exposure of Sandner to personal loss; (5) South owed Shades Ridge a fiduciary duty of care and loyalty by virtue of its employment by Shades Ridge and by virtue of the fact that Shades Ridge reposed, and had the right under the circumstances to do so, special trust and confidence in South; (6) South breached its fiduciary duty in that; (a) Haralson, its chief lending officer had secret equity interests in the projects; (b) Haralson made secret profits from the proceeds of the mortgage loans at the expense of Shades Ridge; (c) South failed to communicate to Shades Ridge the material fact that Harrison and Haralson owned hidden equity interests in the projects and that they made secret profits from the construction loan proceeds at Shades Ridge’s expense. The trial court determined that although Haralson, South’s chief lending officer, attended the meeting concerning the two projects there is no evidence of South assuming any fiduciary obligation to Shades Ridge. Instead, the trial court stated, Sandner undertook the financing of the two projects. We assume that implicit in that statement was the conclusion that any fiduciary obligations owed by South were owed Sandner.

As to count ten we cannot say that South met, by its factual showing, its obligations to demonstrate that no genuine issue of any material fact exists under that count. At issue here is not only whether there is an obligation to disclose by virtue of a fiduciary relationship arising out of Shades Ridge’s employment of South as a mortgage broker but also whether the particular circumstances of the case impose upon South a like duty to disclose. South did introduce a deposition, not controverted, to establish that it had no employment relationship with Shades Ridge but rather it was with Sandner. Therefore, we cannot fault the trial court for finding no issue as to whether a fiduciary duty existed. However, there was no basis for the trial court’s finding, on motion for summary judgment, that the particular circumstances did not impose a duty to communicate. Where there still exists a factual dispute, and the burden rests on the movant to show no such factual dispute exists, then the trial judge cannot make material factual findings as a predicate to entry of partial summary judgment. Ray v. Midfield Park, 293 Ala. 609, 308 So.2d 686 (1975); Bethune v. City of Mountain Brook, 293 Ala. 89, 300 So.2d 350 (1974).

The facts alleged in the count properly state a claim of actionable fraud based upon a duty to disclose or to communicate as is shown in Washington v. Ford Motor Credit Company, Inc., 384 So.2d 83 (Ala.1980), where the defendant has special knowledge or means of knowledge not open to the plaintiff and is aware that the plaintiff is acting under a misapprehension as to facts which would be of importance to him and would probably affect his decision.

The movant did not meet its burden of establishing the absence of a genuine issue as to a material fact regarding this claim but in light of the fact this claim for relief was also effectively included in counts one and thirteen any error in this respect is harmless.

Count Twelve

In count twelve Shades Ridge charged that its officers were only authorized to execute a mortgage at an 8V2% interest rate and the mortgage was in fact executed for an 8%% interest rate. For this reason, Shades Ridge alleges, the mortgage is void. The trial judge, in ruling on South’s motion for summary judgment, stated that Shades Ridge received a consideration of $2.3 million as evidenced by the note and mortgage and therefore could not repudiate the mortgage. We think the trial judge is correct even though Shades Ridge may not have received the entire $2.3 million. It would be inconsistent to hold that Shades Ridge was entitled to damages for fraud and the consequent loss of its property by foreclosure of a void mortgage.

For the reasons stated we find the trial court erred in granting summary judgment as to counts five and ten.

The judgment below is due to be, and is hereby, reversed and the case remanded for further proceedings not inconsistent with this opinion.

REVERSED AND REMANDED.

TORBERT, C. J., and MADDOX, FAULKNER and ALMON, JJ., concur.