author: PER CURIAM.

text:
    Joe BROADWATER, as Administrator of the Alcoholic Beverage Control Board of the State of Alabama, and the Alcoholic Beverage Control Board of the State of Alabama v. BLUE & GRAY PATIO CLUB; Montgomery Satellite Club, Inc.
    80-50.
    Supreme Court of Alabama.
    Aug. 27, 1981.

      Charles A. Graddick, Atty. Gen. and Jimmy L. DeBardelaben, Asst. Atty. Gen., for appellants.
    Calvin M. Whitesell, Montgomery, for ap-pellees.
   PER CURIAM.

This appeal arises from a judgment adverse to the defendants, Joe Broadwater, as administrator of the Alcoholic Beverage Control Board of the State of Alabama (ABC Board), and private lounge retail liquor licensees, following the filing of a complaint for declaratory judgment by the plaintiffs who are private club licensees seeking an interpretation of the lounge and liquor retail license provisions of the new Alcoholic Beverage Control License Code, designated as Acts 1980, No. 80-529, codified as Code 1975, § 28-3A-1 et seq. In the litigation below, the ABC Board challenged the private club’s licensees’ standing to sue under Code 1975, § 6-6-223, and further argued that the legislative act gave to lounge liquor licensees, newcomers to the liquor business in Alabama, the right to retail liquor, wine, and beer to patrons for off-premises consumption much the same as was allowed to club licensees under the act.

The ABC Board, the agency in Alabama charged with the responsibility of administering the act, had previously interpreted it to allow lounge licensees, as well as club licensees, to sell liquor and other alcoholic beverages to patrons for off-premises consumption. The Circuit Court of Montgomery County rejected the ABC Board’s contention as to standing and further ruled:

It was the intent of the legislature to confer upon club licensees but not lounge licensees the privilege to sell for off premises consumption and to do so in original containers because to do otherwise would be futile and impractical.

In ruling in favor of the club licensees, the Circuit Court drew heavily on these two factors: (1) the club license fee is twice as much as the lounge license fee; (2) by adding to the club license section the phrase “and to sell all of the above for off premises consumption except on Sunday,” and not providing such language in the section dealing with lounge licensees, the legislature evinced an intention that lounge licensees were not to be allowed to sell liquor for off-premises consumption. We disagree, but a clear understanding of the legislative history of this bill is necessary to understand how we reach our final decision.

On February 12, 1980, House Bill 440 (H.B. 440) was introduced in the House of Representatives and then assigned to the Ways and Means Committee. On April 17, 1980, the Ways and Means Committee reported out a substitute H.B. 440 (S.H.B. 440), with amendments. On April 22, 1980, the House of Representatives passed S.H.B. 440 with the Ways and Means Committee amendments, along with several floor amendments. One of these floor amendments was the Cosby Amendment to S.H.B. 440, which allowed private clubs to sell alcoholic beverages for off-premises consumption, except on Sunday.

We are concerned in this case with H.B. 440, §§ 11 and 12; S.H.B. 440, §§ 11 and 12; and the Cosby Amendment to § 12 of S.H.B. 440. Section 11 of H.B. 440 reads as follows:

SECTION 11. Lounge Retail Liquor License. Upon applicant’s compliance with the provisions of this Code and the regulations made thereunder, the board shall, where the application is accompanied by a certificate from the clerk or proper officer setting out that the applicant has presented his application to the governing authority of the municipality, if the licensed premises is to be located therein, and has obtained its consent and approval, issue a retail liquor license which will authorize the licensee to purchase liquor and wine from the board or as authorized by the board and to purchase table wine, and beer, including draft or keg beer in any county or municipality in which the sale thereof is permitted, from any wholesaler licensee of the board and to sell at retail liquor and wine, dispensed from containers of any size, and beer, including draft or keg beer in any county or municipality in which the sale thereof is permitted, to patrons for on-premise[s] consumption. A lounge liquor licensee may permit dancing or provide other lawful entertainment on the licensed premises. No person under nineteen years of age shall be admitted on the premises of any lounge liquor licensee as a patron or employee, and it shall be unlawful for any such licensee to admit any minor to the premises as a patron or employee. [Emphasis added.]

Section 11 of S.H.B. 440 as passed in Act No. 80-529 reads as follows:

SECTION 11. Lounge Retail Liquor License. Upon applicant’s compliance with the provisions of this Code and the regulations made thereunder, the board shall, where the application is accompanied by a certificate from the clerk or proper officer setting out that the applicant has presented his application to the governing authority of the municipality, if the licensed premises is to be located therein, and has obtained its consent and approval, issue a retail liquor license which will authorize the licensee to purchase liquor and wine from the board or as authorized by the board and to purchase table wine, and beer, including draft or keg beer in any county or municipality in which the sale thereof is permitted, from any wholesaler licensee of the board and to sell at retail liquor and wine, dispensed from containers of any size and beer, including draft or keg beer in any county or municipality in which the sale is permitted to patrons. A lounge liquor licensee may permit dancing or provide other lawful entertainment on the licensed premises. No person under nineteen years of age shall be admitted on the premises of any lounge licensee as a patron or employee, and it shall be unlawful for any such licensee to admit any minor to the premises as a patron or employee. [Emphasis added.]

The only difference in the two versions is that the wording “for on-premise[s] consumption,” which was a part of § 11 of H.B. 440, was omitted from § 11 of S.H.B. 440 as the Act was finally passed.

Section 12, “Club Liquor Retail License” of H.B. 440 and § 12 of S.H.B. 440 are the same and provide the following:

SECTION 12. Club Liquor Retail License. Upon applicant’s compliance with the provisions of this Code and the regulations made thereunder, the board may, where the application is accompanied by a certificate from the clerk or proper officers setting out that the applicant has presented his application to the governing authority of the municipality, if the licensed premises is to be located therein, and has obtained its consent and approval, issue a club liquor license for a club which will authorize the licensee to purchase liquor and wine from the board or as authorized by the board and to purchase table wine and beer, including draft or keg beer in any county or municipality in which the sale thereof is permitted, from any wholesale licensee of the board and to sell liquor and wine, dispensed from containers of any size, and beer, including draft or keg beer, in any county or municipality in which the sale thereof is permitted, to the members of the club or their guests for on-premise[s] consumption.

The Cosby Amendment added the following language after the last word in § 12: “and to sell all of the above for off premises consumption except Sunday.” Section 12 was passed in its original form in both H.B. 440 and S.H.B. 440, except as amended by the Cosby Amendment.

The issues framed by the pleadings and briefs of the parties are as follows:

1. Did the club liquor retail licensees have standing to seek a declaratory judgment concerning the rights of lounge retail licensees vis-a-vis club liquor retail licensees’ rights under the new Alcoholic Beverage License Code?

2. Did the Circuit Court of Montgomery County err in declaring that lounge retail licensees were prohibited from selling alcoholic beverages for off-premises consumption?

We repeat that it is the contention of the ABC Board that the private club licensees had no standing to file a declaratory judgment action under Code 1975, § 6-6-223, but assuming that they did, they cannot prevail in this action because the legislative act gives the lounge licensees, for all intents and purposes, the right to sell for off-premises consumption the same as the club licensees. The club licensees concede, as of necessity they must, having filed the complaint for declaratory judgment, that they have standing to file this action. Because of our favorable resolution of the second issue for the ABC Board, we pretermit any detailed discussion of the first issue.

The Circuit Court did not err in holding that the plaintiffs had standing. In Gibbs v. Cochran, 281 Ala. 22, 25, 198 So.2d 607, 608 (1967), we said:

Controversy touching the legality of acts of public officials or public agencies challenged by parties whose interest is adversely affected is one of the favored fields for declaratory judgments.

The mere fact that pecuniary interests were involved does not deprive the declaratory judgment act of a field of operation. In most litigation involving the legal rights of the parties, some underlying economic advantage or loss will result from the determination of those legal rights. Here, there was a real and justiciable controversy because the private club licensee contended that the ABC Board’s interpretation of the statute impinged upon its economic interests and that interest was not de minimis.

We now turn to consider whether the Circuit Court erred in its interpretation of the intent of the legislature in the rights it gave the lounge licensee under the new act. The original version of H.B. 440, § 11, provided that the sale of alcoholic beverages by lounge licensees would be limited “to patrons for on-premise[s] consumption.” In S.H.B. 440, § 11, this limitation was removed. We can perceive of no reason for such removal by the legislature, except to allow the sale of these beverages for off-premises consumption. The decision of the Montgomery Circuit Court that the lounge licensee cannot sell for off-premises consumption puts back into the act that which the legislature had taken out. This we believe the courts cannot do. In Town of Loxley v. Rosinton Water, Sewer and Fire Protection Authority, 376 So.2d 705, 708 (Ala.1979) this court said:

[W]e may not amend statutes so as to make them express what we may conceive the legislature would have done or should have done. May v. Head, [210 Ala. 112, 96 So. 869] supra. It is clearly not this court’s function to usurp the role of the legislature and correct defective legislation or amend statutes under the guise of construction. . . .

We hasten to point out that both § 12 of H.B. 440 and S.H.B. 440 also originally limited the club licensees to the sale of alcoholic beverages to members or their guests for on-premises consumption. It was only by way of the Cosby Amendment that the club retail licensee was allowed to sell liquor for off-premises consumption.

We, therefore, conclude that the difference in the language in §§ 11 and 12 comes about as a result of the legislative process followed in the handling of the two sections. The lounge liquor retail license was amended in the Ways and Means Committee and the club liquor license was amended on the floor of the House of Representatives. Had both been amended by the same legislative process, we believe that the wording would be the same. However, the meaning and legislative scheme is apparent and we are not at liberty to change that.

Our construction is further strengthened by the fact that the administrative agency charged with the responsibility of enforcing the act has construed both sections to allow sale for off-premises consumption. Although we are not bound by its construction, we are obligated to give due consideration to its interpretation of statutes it must administer. Buchanan v. State, 274 Ala. 592, 150 So.2d 200 (1962). In this case, we agree with its construction.

For the forgoing reasons, the judgment of the Circuit Court of Montgomery County is due to be reversed and a judgment rendered in accordance with the opinion.

REVERSED AND RENDERED.

MADDOX, FAULKNER, JONES, AL-MON, SHORES, EMBRY, BEATTY and ADAMS, JJ., concur.

TORBERT, C. J., concurs in result.


source: Caselaw Access Project

author: FAULKNER, Justice.

license: Public Domain

text:
    Gregory P. WEST, et al. v. FRIDAY, INC., et al.
    79-658.
    Supreme Court of Alabama.
    Aug. 28, 1981.
    M. Wayne Wheeler of Wheeler, Christian & Roberts, Birmingham, for appellants.
    Robert R. Kracke of Kracke, Woodward & Thompson, Birmingham, for appellees.
   FAULKNER, Justice.

The appellants appeal from a decree affirming a master’s report awarding damages to them based only on the cost to replace stucco plaster on existing exterior walls of their homes. We affirm.

During 1975, the appellants bought new homes from Friday, Inc. on dates ranging from July 3 to December 23. On December 12, 1978, they filed suit against appellees alleging breach of implied warranty as to fitness, habitability, good workmanship and materials. The appellees answered the complaint by general denial, and later amended their answer by pleading the statutes of limitations of one year and three years. The trial judge referred the case to a special master. He dismissed, without consideration, all claims, other than those alleging defective stucco, because of their untimely filing. He found that due “to the gradual and latent nature of the defective stucco” those claims were timely filed. The case proceeded under the six-year statute of limitations on the stucco claims. The one-year statute was applied to all other claims.

At the conclusion of testimony, the master filed his report with the trial judge, finding that West should be awarded damages of $4,500.00,- — Totty $8,500.00, and— Ford $8,500.00. (Awards were also made to two other homeowners who were parties to the suit at trial, but they are not parties to this appeal.) The awards were based on cost of repairs. The master, after excluding testimony of before and after value of the property, stated, “The correct measure of damages in this case would be the cost of repair or fixing or replacement, as far as the court is concerned.”

The issues presented on appeal are: (1) whether there was error by excluding testimony of before and after value of the property to arrive at damages, and (2) whether punitive damages should have been awarded.

(1)

The appellants contend that they should have been permitted to introduce their testimony of the value of their homes before the damage occurred, and the value after the damages to arrive at the award of damages, citing State v. Hastie, 333 So.2d 795 (Ala.1976), and Shelby County v. Baker, 269 Ala. 111, 110 So.2d 896 (1959). Those cases were condemnation proceedings. They are not applicable here where the alleged damages resulted from breach of contract or warranty. Damages recoverable for breach of contract are those that naturally and proximately result from the breach. Alabama Water Service Co. v. Wakefield, 231 Ala. 113, 163 So. 626 (1935). That is, damages for breach of warranty or contract are awarded to put the party in the same position he would have occupied had the breach not occurred. Geohagan v. General Motors Corp., 291 Ala. 167, 279 So.2d 436 (1973). On this issue — before/after value — the trial court is affirmed.

(2)

This Court stated in Geohagan that punitive damages are not recoverable in a breach of warranty action. In that action the only questions are: was there a contract, was there a breach, and if so, what were the damages suffered by the buyer. Scott v. Holland, 132 Ala. 389, 31 So. 514 (1902).

The judgment of the trial court is affirmed.

AFFIRMED.

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


author: FAULKNER, Justice. EMBRY, Justice

text:
    Hoover WILSON, et al. v. Ronald SPRUELL.
    80-14.
    Supreme Court of Alabama.
    Aug. 28, 1981.

      George C. Longshore of Cooper, Mitch & Crawford, Birmingham, for appellants.
    John Blake, Gen. Counsel, Kansas City, Kan., for International Brotherhood of Boilermakers.
    Curtis W. Gordon, Jr. of Gordon & Wain-scott, Birmingham, for appellee.
   FAULKNER, Justice.

This is an appeal from a final decree in the equity division of the Circuit Court of Jefferson County ordering the reinstatement of plaintiff, Ronald Spruell, to his former positions as recording secretary and committeeman of defendant Union, Local 583 of the International Brotherhood of Boilermakers, Iron Shipbuilders, Blacksmiths, Forgers and Helpers, AFL-CIO.

Sometime in June or July 1980, International representatives became aware of some apparent financial irregularities in the treasury of Local 583. Union representative Ron Spann was sent to Birmingham to investigate the situation. Spann’s investigation pointed to a possible mishandling or loss of thousands of dollars in local funds.

When Spann’s efforts to obtain the treasurer’s records proved unsuccessful, he sought to obtain the official minutes kept by the recording secretary, Ronald Spruell. The minutes contain documentation of all expenditures of local funds. Prior to the regular monthly meeting in July, Spruell’s office was vandalized and the official minutes book was stolen. The notebook containing the rough minutes from each meeting was also reported missing. Consequently, Spruell was unable to present the minutes from the June meeting at the July meeting.

On July 15, the International President imposed an emergency trusteeship upon Local 583 pursuant to Article XVIII, Section 3, of the International Brotherhood Constitution. Thereafter, on July 18, written notice was given of a trusteeship hearing scheduled for July 28 to determine whether continued trusteeship was warranted. Grounds for continuation included the possibility of “dissipation or loss of funds or assets or financial malpractice or corruption or threat thereof” as set out in Article XVIII, Section 1, of the Union’s Constitution. All officers, including Spruell, were removed from office pending the outcome of the hearing. Spruell was further removed from his position as a member of the Bargaining Committee. The record shows that the July 18 notice was posted on at least five bulletin boards at the plant where Spruell worked and that Spruell had actual notice of the meeting. Spruell did not attend the meeting.

On August 7, the Executive Council voted to continue the trusteeship and Spruell became suspended indefinitely. The suspension in no way affected Spruell’s union membership.

On August 5, 1980, Spruell filed a complaint in equity alleging wrongful removal form his position on the Bargaining Committee. An ex parte restraining order, granted the same day, was subsequently dissolved on motion by the Union for failure to comply with the notice requirement of Rule 65, ARCP. Spruell then amended his complaint to allege that his removal from both union positions constituted an illegal invasion of his property rights without due process of law. The Union responded, asserting the International Brotherhood’s Constitution as express authority for the action taken. It denied any constitutionally protected property rights in the positions. The Union further asserted a counterclaim against Spruell to recover the missing minute books. After an ore tenus hearing, the trial court ordered that Spruell be reinstated to both positions. The Union appeals.

The principal issue to be resolved on this appeal is whether Spruell was, in fact, wrongfully removed from his union positions without due process. We hold that he was not.

The Union’s constitution clearly authorizes the removal of officers and other representatives during the trusteeship. Article XVIII, Section 2, provides:

The trustee so appointed shall be authorized and empowered to remove any or all officers and appoint temporary officers for the duration of his trusteeship and to remove or replace other representatives or employees of such trusteed body, and to take such other actions as in his judgment are necessary for the preservation of the subordinate body and its assets, all subject to the direction, instructions and approval of the International President.

There is no question that recording secretary is a union office for purposes of the preceding provision. The determination of whether a member of the Bargaining Committee is a union representative under the same provision is a matter for interpretation by the union. See Local # 2206 American Federation of Government Employees v. Chamblee, 295 Ala. 76, 323 So.2d 346 (1975). Implicit in the Union’s removal of Spruell from the Bargaining Committee is an interpretation that a committeeman is a union representative subject to provisions of Article XVIII. This jurisdiction adheres to the majority view that courts will neither interfere with the internal operations of a voluntary organization nor substitute their own construction of rules, regulations, bylaws, constitutions, or other formal agreements for that of the organization where the organization’s interpretations are not contrary to the law or public policy. Local # 2206, supra. Implicit in the Union’s removal of Spruell from the Bargaining Committee is an internal interpretation that a committeeman is a union representative subject to removal under Article XVIII trusteeship provisions. Such an interpretation is not inconsistent with public policy or the law of the land.

We must next determine whether the removal provisions of Article XVIII are in derogation of the 14th Amendment requirement of due process. Spruell argues that he has constitutionally protected property rights in both positions which cannot be taken away without due process of law. He further contends that he has been denied due process because the union constitution fails to provide any appellate process for officers or representatives who are suspended during trusteeship. We find no merit in Spruell’s contentions.

The United States Supreme Court has clearly established that property interests derive from some “independent source such as state law” rather than from the Constitution. Board of Regents of State Colleges v. Roth, 408 U.S. 564, 92 S.Ct. 2701, 33 L.Ed.2d 548 (1972). Alabama has never recognized a property interest in a union office or committee membership. We hold, therefore, that Spruell had no constitutionally protected property interest in the two positions which he held.

The Fourteenth Amendment provides safeguards against state action in violation of due process. There has been no such state action here. See Flagg Brothers, Inc. v. Brooks, 436 U.S. 149, 98 S.Ct. 1729, 56 L.Ed.2d 185 (1978); Food Employees v. Logan Plaza, 391 U.S. 308, 88 S.Ct. 1601, 20 L.Ed.2d 603 (1967).

Moreover, after a careful review of the record we find more than ample evidence to support the Union’s contentions that Spruell was afforded a definite opportunity to be heard prior to removal. The record indicates that although Spruell had actual notice of the nature and fact of the trusteeship hearing, he failed to attend. A trusteeship hearing is designed to give local members an opportunity to show why a trusteeship should or should not be imposed. The trusteeship hearing was Spruell’s opportunity to be heard.

REVERSED AND REMANDED.

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

EMBRY, J., concurs specially.

EMBRY, Justice

(concurring specially):

I concur with the majority in this case only because of Spruell’s failure to attend the hearing of which he had notice and because he made no showing that he had either pursued or attempted to pursue administrative remedies provided under appropriate grievance procedures for redress of his complaint about removal from his position as recording secretary and committeeman of Local 583.

This case would probably never have been entertained by the trial court had the union not joined issue upon his complaint of wrongful removal because of an illegal invasion of his property rights without due process of law. This entire matter should have first been fully explored within internal union procedures. See Fraternal Order of Police, Strawberry Lodge # 40 v. Entrekin, 294 Ala. 201, 314 So.2d 663 (1975).

      . Section 3. In any situation where, in the judgment of the International President, grounds for the establishment of a trusteeship exist, or grounds for suspension of a subordinate body officer exist, and in addition the activities of the subordinate body or of its officers or membership are such as to create an emergency imminently threatening the welfare, funds or property of the subordinate body in trusteeship, subject to a subsequent hearing by the Executive Council as set forth in Section 1 of this Article. Such hearing shall be held within fifteen (15) days after the imposition of such emergency trusteeship....


text:
    Don CHERRY, et al. v. Wilson LATTIMORE, Jr.
    80-64.
    Supreme Court of Alabama.
    Aug. 28, 1981.
    James R. McKoon, Jr. of McKoon & Rai-ford, Phenix City, for appellants.
    Roy H. Phillips of Phillips & Funderburk, Phenix City, for appellee.
   PER CURIAM.

This is an appeal from an election contest seeking to have a municipal election annulled. We affirm.

On July 8, 1980, there was an election held in Phenix City for the office of Councilman-at-Large. There were six candidates entered. Since no candidate received a majority of votes, a run-off was held between Wilson Lattimore, Jr., who received the highest number of votes in the first election, and Wilson Garrett, the second highest vote-getter in the first election. In the run-off, Garrett received the highest number of votes, and he was declared the winner. Garrett now serves in the position of Councilman-at-Large in Phe-nix City.

Cherry contested the election solely on the grounds that Lattimore was not a resident of Phenix City when the election was held on July 8. After the hearing, the trial judge held that Cherry had not met his burden of proof in an election contest. We affirm and dismiss the petition for election contest.

The trial judge heard the evidence ore tenus, and after an extensive trial, found that Lattimore’s residence and domicile was 2501 — 16th Avenue, Phenix City, Alabama. We have reviewed the evidence and conclude that the trial judge was not plainly and palpably wrong. Therefore, under the ore tenus rule, his order of dismissal is affirmed.

AFFIRMED.

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


author: FAULKNER, Justice. ADAMS, Justice

text:
    Kelli Ann SELBY, a minor who sues by and through her father and next friend Ronald L. Selby; and Ronald L. Selby v. Dr. Andrew Charles MONEY.
    80-88.
    Supreme Court of Alabama.
    Aug. 28, 1981.

      P. Russell Tarver, Birmingham, for appellants.
    Lyman H. Harris and Michael J. Evans of Lorant, Harris & Yearout, Birmingham, for appellee.
   FAULKNER, Justice.

This is an appeal from a dismissal of a medical malpractice suit brought by Kelli Ann Selby and her father against Dr. Andrew Money. Selby appeals that decision. We affirm the dismissal.

Plaintiff Kelli Ann Selby was born on May 7, 1974. Dr. Charles Money, a pediatrician, treated her on a regular basis during the next three years. Dr. Money made routine examinations, including tests for skeletal abnormalities. The mother pointed out to Dr. Money that her daughter suffered some difficulties with her left foot and leg. On June 21, 1977, Dr. Money referred the child to an orthopedist, after a routine test for a dislocated hip disclosed nothing. The orthopedist diagnosed a congenital dislocated hip. The child underwent surgery on three separate occasions.

On December 15, 1977, two separate actions were filed under the Alabama Medical Liability Act — one in behalf of Kelli Selby, brought by her father Ronald Selby, and the other by Ronald Selby in his own behalf. The complaints alleged negligence by Dr. Money in failing to discover and treat the dislocated hip. Plaintiffs failed to comply with four discovery orders, over a period of one and one-half years, requiring disclosure of expert witnesses to be called at trial. Finally, the actions were consolidated, plaintiffs’ expert witness was deposed, and a trial date set. The trial date was postponed twice on the motion of plaintiffs. On Tuesday, September 23, 1980, prior to opening statements, plaintiffs’ counsel informed the court of another delay until plaintiffs’ medical expert arrived. The trial judge denied plaintiffs’ motion for a continuance and ordered plaintiffs’ counsel to submit the expert’s deposition into evidence and proceed with the trial. Plaintiffs’ counsel refused to proceed without a recess or a rearrangement in the order of trial. Defense counsel objected to the delay and moved the court to dismiss for want of prosecution. The motion was granted. The Selbys appeal that decision.

The action presents two basic issues. First, whether the trial judge abused his discretion in denying plaintiffs’ motion for a continuance. Second, whether the trial court acted within its proper discretion in dismissing the action pursuant to Rule 41(b), Alabama Rules of Civil Procedure, for failure to prosecute.

It is firmly established in Alabama that continuances are not favored, and therefore the trial court’s denial of a motion for a continuance will not be reversed unless palpable or gross abuse of discretion is shown. Perdue v. Mitchell, 373 So.2d 650 (Ala.1979); Johnson Publishing Co. v. Davis, 271 Ala. 474, 124 So.2d 441 (1960). The trial court in the present case refused to grant the motion for a continuance, because the testimony of the absent expert witness could be put into evidence by introducing the witness’s deposition. Rule 32(a)(3)(B), ARCP, provides that if a witness is more than one hundred miles from the place of trial the deposition of that witness may be used as substantive evidence against any party represented at the taking of the deposition. The purpose of this rule is to prevent the need for a continuance. See Alabama Power Co. v. Taylor, 293 Ala. 484, 306 So.2d 236 (1973).

It was not disputed that the witness was more than one hundred miles from the place of trial. The Selbys were represented at the taking of the deposition and had full opportunity to question the witness. The Selbys introduced no evidence that the witness’s testimony would be different at trial. Under these circumstances, the trial judge was justified in denying plaintiffs’ motion for a continuance.

A dismissal for want of prosecution is within the discretion and inherent power of the trial court. Link v. Wabash R. Co., 370 U.S. 626, 82 S.Ct. 1386, 8 L.Ed.2d 734 (1962). The granting of a dismissal will be reversed only if an abuse of discretion is shown. See Smith v. Wilcox County Board of Education, 365 So.2d 659 (Ala.1978); 9 Wright & Miller, Federal Practice & Procedure § 2370 (1976) (2d ed.). Dismissal with prejudice is a harsh sanction and should be used only in extreme circumstances. Nevertheless, in every action there comes a point when the interest of the court in controlling its calendar and the risk to the defendant outweigh the interest in disposing of the litigation on the merits. See Dyotherm Corp. v. Turbo Machine Co., 392 F.2d 146, on remand, 48 F.R.D. 380, appeal dismissed, 434 F.2d 65 (2d Cir. 1968).

In Alabama, and many federal courts, the interest in disposing of the litigation on the merits is overcome and a dismissal may be granted when there is a clear record of delay, willful default or contumacious conduct by the plaintiff. Smith v. Wilcox County Board of Education, 365 So.2d at 661. See, e. g., Boazman v. Eco nomics Laboratory, Inc., 537 F.2d 210 (5th Cir. 1976); Pond v. Braniff Airways, 453 F.2d 347 (5th Cir. 1972). Willful default or conduct is a conscious or intentional failure to act. Welsh v. Automatic Poultry Feeder Co., 439 F.2d 95 (8th Cir. 1971). “Willful” is used in contradistinction to accidental or involuntary noncompliance. No wrongful motive or intent is necessary to show willful conduct.

The facts of the present case show that plaintiffs’ counsel willfully defaulted. The trial court, in light of the numerous delays in discovery and trial, set a final trial date. The court warned the Selbys to be prepared for trial because no further delays would be tolerated. But on the day of trial, plaintiffs’ counsel again sought to delay the action until their expert witness could be present. The trial judge denied the continuance, and ordered that the deposition of the witness be admitted and that the trial proceed. Counsel for plaintiffs refused to go on with the trial without the live testimony of the expert witness. As a result of plaintiffs’ refusal to proceed, the trial court granted defendant’s motion to dismiss. Although plaintiffs knew that the failure to proceed would result in dismissal, they willfully refused to continue with the trial. Under the circumstances, there is ample evidence to infer that plaintiffs’ conduct was willful. The trial court’s granting of dismissal is appropriate in light of the record of delay and willful failure by the Sel-bys to continue the proceedings.

The judgment appealed from is therefore affirmed.

AFFIRMED.

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

ADAMS, J., concurs specially.

ADAMS, Justice

(concurring specially):

This dismissal of a lawsuit for want of prosecution is a drastic sanction. In Weatherly v. Baptist Medical Center, 392 So.2d 832 (Ala.1981), we reversed the Circuit Court of Montgomery County in its dismissal of a malpractice suit because the plaintiff had failed to answer interrogatories. In that case we said:

The actions of plaintiff’s attorney indicate his good faith efforts to obtain the information sought by defendant. With his client largely incapacitated, the attorney sought the assistance of plaintiff’s son to elicit information from the father. Meeting with no success by this route, the attorney sought his client’s hospital records for information to answer the interrogatories. This was mostly unsuccessful as well, since defendant produced only a hospital chart and claimed the work product privilege for the remainder of the documents sought. The attorney’s motion to compel production of these documents was never ruled on.
Plaintiff’s attorney also sought an extension of time to answer the interrogatories because of his client’s condition. This was the proper step to take. See Anno., 56 A.L.R.3d 1109, 1117 (1974). Unfortunately, the trial court did not see fit to grant the extension.

The plaintiff in Weatherly did not willfully refuse to respond to defendant’s interrogatories. In the instant case, there was a willful refusal to comply with court orders. The trial court, after numerous delays in discovery and trial, had set a final trial date. Plaintiffs’ attorney had been warned that no further continuances would be granted. Plaintiffs’ expert witness was not available on the day of the trial and counsel for plaintiffs refused to proceed with the trial, absent the expert witness.

Furthermore, in the Weatherly case plaintiff’s suit was dismissed while it was still in the discovery stage and within approximately three months from the date it was filed. Plaintiffs in the instant case had been in court for approximately three years. This, coupled with the willful refusal to litigate on the part of the plaintiffs, justified the drastic sanction of dismissal in this case.


text:
    A. B. PIZITZ and Norman L. Pizitz v. Patricia H. RYAN.
    80-136.
    Supreme Court of Alabama.
    Aug. 28, 1981.
    Earl E. Cloud and Joseph M. Cloud, Huntsville, for appellants.
    Jack Giles, Huntsville, for appellee.
   FAULKNER, Justice.

This is an appeal from a judgment in the Circuit Court of Madison County terminating the rights of defendants/lessees, Henry Marsh, Norman Pizitz, A. B. Pizitz, and Holiday Plaza Corporation, under a lease with plaintiff/lessor, Patricia Ryan.

Lessees entered into a lease agreement with Ryan whereby they would lease a vacant tract of land for the construction of a shopping center. The lease, which provided for an initial term of twenty years, further contained an option for automatic renewal “on the written request of the lessees made three (3) calendar months before the expiration of the term. . . . ” The expiration date weis February 20, 1980; therefore, written request was required to be made in November, 1979. Lessee Marsh, allegedly mailed a written request on November 2, 1979, but plaintiff/lessor, Patricia Ryan, allegedly never received the letter.

On April 15, 1980, Ryan filed suit to terminate the lease. Lessees counterclaimed, averring that the option to renew had been properly exercised. Neither party requested a jury trial. On September 2, final judgment was entered for Ryan. Norman Pizitz and A. B. Pizitz appeal.

The dispositive issue in this case is a factual one — whether lessee Marsh actually mailed a written request within the requisite time period in order to effect a valid exercise of the option to renew. The trial judge, after hearing the evidence ore tenus, determined that the appellants’ rights under the lease terminated as of February 20, 1980, the expiration date of the twenty-year term.

This Court has previously determined that where, as here, the fact of posting is disputed, a question of fact for determination by the trier of fact is presented. Calkins v. Vaughan, 217 Ala. 56, 114 So. 570 (1927). In Calkins we stated:

[I]n view of the presumption that every letter, properly addressed and stamped, is duly transported and delivered to the addressee, the addressee’s testimony that he never received it is some evidence that it was never mailed as claimed, and leaves the issue for the jury to determine. As declared by the Supreme Court of New Hampshire:
The presumption arising from the known regularity of the United States mail service is as available for the supposed receiver of a letter as for the alleged sender thereof. If proof that a properly addressed and stamped letter was posted gives rise to a presumption that it was received in due course, * * so proof that no letter was received warrants a finding that it was never posted. If this plaintiff’s testimony denying the receipt of the letter was believed, the jury would be warranted in going further and finding that the letter was not posted. Wilson v. Frankfort, etc., Co., 77 N.H. 344, 91 A. 913; 22 Corp.Jur. 102, § 9.
The question as to the fact of posting the letter, its receipt being denied by the addressee, was there held to have been properly submitted to the jury.

In the instant case, the trial judge sat as the trier of fact. Our case law is very clear as to the strong presumption in favor of the Court’s ruling in ore tenus cases. As emphasis, we quote, with approval, Wallace v. American Wholesale Corporation, 20 Ala.App. 642, 104 So. 776 (1925):

The matter was tried by the judge without a jury. The decisive question was purely one of fact, and on this appeal the judgment of the trial court comes to us with the conclusive force and effect of a verdict rendered by a jury, and the only inquiry we may here make is whether there was sufficient evidence to support the judgment. Montgomery Lodge etc. v. Massie, 159 Ala. 437, 40 So. 231.
In such cases the rule is not to reverse the finding, unless it is so manifestly against the evidence that a judge at nisi prius would set aside the verdict of a jury rendered on the same testimony, and that should never be done “unless, after allowing all reasonable presumptions of its correctness, the preponderance of the evidence against the verdict is so decided as to clearly convince the court that it is wrong, and unjust.” Cobb v. Malone, 92 Ala. 630, 9 So. 738. As said in that case, the trial judge “has heard and seen the witnesses testify, observed their tone and demeanor, and noticed their candor or convenient failure of memory to avoid impeachment, or for other improper purpose. The appellate court, possessing none of these aids and advantages, and receiving the evidence on paper only, is less qualified to determine what evidence is unworthy of belief, or what weight should be given to that which has been rejected by the jury [the court], and may give undue weight to the testimony of some of the witnesses.”

After a careful review of the record we conclude that there was sufficient evidence to support the judgment.

Appellants contend, however, that the trial judge misapplied the law to the facts. They argue that the judge erroneously equated “written request” with “notice” and that in so doing he imposed a higher standard of performance upon them for the valid exercise of the option than the lease itself contemplated. We disagree.

To begin with, where, as in the instant case, “the trial judge’s ruling is grounded on no specific ground, his judgment must be sustained on appeal if any good ground is presented.” Sterling Oil of Oklahoma, Inc. v. Park, 291 Ala. 727, 287 So.2d 847 (1973). An initial factual determination of the posting issue pretermitted the necessity of even reaching the “written request”/“notice” issue. It is of little or no consequence whether the mailing of the written request, as opposed to the receipt of the written request, constituted a valid exercise of the option to renew if, in fact, the request was never mailed within the requisite time period.

Moreover, the record indicates that neither party distinguished “written request” from “notice” in any of their pleadings or motions. To the contrary, “notice” was used synonymously with “written request” by both parties at the trial level. Appellants, therefore, are estopped from arguing any distinction on appeal.

Finally, appellants contend that equity should act to relieve a forfeiture under these circumstances. They cite cases from other jurisdictions as authority for the proposition that the following four circumstances, alleged by appellants to be present in the instant case, have been sufficient to invoke equity in these other jurisdictions: (1) vast improvements and expenditures to the premises, (2) large sums of money and resources, (3) financial risks, and (4) long periods of time and effort. Sosonie v. Pernetti Holding Corp., 115 N.J.Super. 409, 279 A.2d 904 (1971); Gallagher v. Marconi, 68 Misc.2d 319, 326 N.Y.S.2d 697 (D.Ct.1971). We disagree. The record fails to indicate any instances of “accident, mistake or special circumstances” sufficient to invoke equitable relief for appellants. See Gallagher v. Marconi, supra; Jones v. Gianferante, 305 N.Y. 135, 111 N.E.2d 419 (1953); Dugan v. Haige, 54 So.2d 201 (Fla.1951).

The judgment of the trial court is due to be affirmed.

AFFIRMED.

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


text:
    BIRMINGHAM TRUST NATIONAL BANK, etc. v. Jack H. HARRISON, etc., et al.
    80-156.
    Supreme Court of Alabama.
    Aug. 28, 1981.
    Lee C. Bradley, Jr. and Macbeth Wagnon, Jr. of Bradley, Arant, Rose & White, Birmingham, for appellant.
    Donald B. Sweeney, Jr. of Markstein, Morris, Sweeney & Liles, Birmingham, for appellees John C. Henley, III and Sweeney.
    James W. May of Odom & May, Birmingham, for appellee May.
   PER CURIAM.

This case is before this Court for the third time on appeal. The original appeal decided the issue of breach of fiduciary duty by co-trustees, Birmingham Trust National Bank (BTNB) and John C. Henley, III, of the Linn-Henley Charitable Trust, holding that both co-trustees had breached their duty. This Court remanded with instructions to appoint a temporary trustee for the new trial, and to limit the determination and award of expenses against the Trust “to those reasonably and necessarily incurred by the Temporary Trustee and his attorney.” Henley v. Birmingham Trust National Bank, 295 Ala. 38, 322 So.2d 688 (1975). Thereafter, the individual co-trustee, John Henley, injected himself into the second trial by filing an “Amended Supplemental Complaint” against BTNB, over BTNB’s strong objection. After that trial Henley petitioned for his attorneys’ fees and expenses to be assessed against BTNB. Henley’s petition was denied and all fees and expenses were assessed against the Trust. On the second appeal, BTNB challenged the award of fees and expenses to Henley’s counsel, relying upon the above quoted language from the first appeal.

On the second appeal, Birmingham Trust National Bank v. Henley, 371 So.2d 883 (Ala.1979), this Court stated:

The attorney general and Henley appealed that part of the decree awarding attorneys’ fees from the Trust. They argue that those fees should be paid by BTNB and urge that the court erred in taxing them as costs against the Trust. They contend that the decree is in all other respects without error, except that Henley questions the amount of the award in fees to attorneys for the temporary trustee and for the services of the temporary trustee himself. BTNB asserts that the court properly taxed costs and attorneys’ fees against the Trust, but also questions the amount of attorneys’ fees awarded to various parties.
The trial court correctly held that such costs and attorneys’ fees as are awarda-ble may, under our law, be taxed against the Trust. Code 1975, § 34-3-60.
In Zimmerman v. First National Bank of Birmingham, 348 So.2d 1359, 1367 (Ala.1977), we addressed this issue and stated the rule as follows:
“According to a well-established line of cases,
“ ‘[s]ection 63, Title 46, Code, is largely an enactment of the ancient principle of equitable origin, and there enforceable, which was referred to as costs between solicitor and client and said statute makes it apply at law as well as in equity when justified. That principle is that a complainant in equity, who at his own expense has maintained a successful suit for the preservation, protection or increase of a common fund or of common property, or who has created at his own expense or brought into court a fund in which others may share, may have paid to him, or sometimes directly to his attorney, an attorney’s fee for such services.’
“Penney v. Pritchard & McCall, 255 Ala. 13, 17, 49 So.2d 782 (1950)....”

Therefore, that part of the decree taxing attorneys’ fees against the Trust, and made the basis of Henley and the attorney general’s cross-appeal, is AFFIRMED.

Because we reverse the trial court’s decree with regard to issues delineated in Sections II, III and IV herein, we must remand the attorneys’ fee issue for reconsideration by the trial court in light of this opinion. It should determine the time spent and the contribution made by whom in connection with the issue in Section I (the appraisal issue) and fix attorneys’ fees accordingly.

After remand of the second appeal of this case, the trial judge awarded counsel fees to Henley’s attorneys and expenses incurred by Henley during this litigation, and ordered that they be paid by the Linn-Henly Trust. The issue, then, is whether Henley, in his capacity as co-trustee, is entitled to the award of fees, and expenses to be assessed against the Trust. We hold that the trial judge correctly applied this Court’s judgment in the second appeal, and, his decree is due to be affirmed. The trial judge found that Henley retained separate counsel in good faith and in order to protect the Trust’s interest. The Trust indenture provides that an individual trustee may employ counsel for these purposes. We opine that Henley’s employing separate counsel was done in good faith, and for the protection of the Trust’s interest.

AFFIRMED.

FAULKNER, ALMON, SHORES, EM-BRY and ADAMS, JJ., concur.


text:
    Irvin SMITH v. BIRMINGHAM BOARD OF EDUCATION.
    80-194.
    Supreme Court of Alabama.
    Aug. 28, 1981.
    Robert L. Wiggins, Jr., Birmingham, for appellant.
    James E. Simpson, T. Randall Hartley, Jr., and Charles C. Pinckney of Lange, Simpson, Robinson & Somerville, Birmingham, for appellee.
   FAULKNER, Justice.

Irvin Smith filed a complaint in the circuit court of Jefferson County, seeking to have the Birmingham Board of Education (the Board) enjoined from transferring or terminating him as a high school advisor without following the procedures set forth in Code 1975, § 16-24-6; the complaint also sought reinstatement and back pay. The trial judge denied Smith’s motion for a temporary restraining order and preliminary injunction, held a hearing on the merits, and denied all relief in its final judgment. Smith appeals.

Smith obtained tenure as an instructor in 1960; in 1978 he was promoted to a Boys’ Advisor at Hayes High School. After serving in that position for the 1978-79 academic year, he served as a Boys’ Advisor at West End High School for the 1979-80 school year. On May 29, 1980, the Superintendent of the Birmingham Board of Education mailed Smith a letter advising him that the Board had voted on May 27 “not to renew your probationary advisor’s contract for the 1980-81 school year. The Personnel Office will contact you concerning your teaching assignment for the coming school year.” Smith requested a hearing as provided by § 16-24-6, but the Board denied his request, whereupon he filed this suit.

The crux of this case involves the interpretation of the term “supervisor” in Code 1975, § 16-24-2(b): if the position of advisor is deemed to be included in this category, Smith had not attained “continuing service status” (tenure) in this position and could be returned to an instructor position without the hearing requirements of § 16-24-6 being triggered. This result follows because tenure under § 16-24-2 constitutes a property interest sufficient to invoke the procedural safeguards of due process. Bell v. Board of School Commissioners, 450 F.Supp. 162 (S.D.Ala.1978). Conversely, unless an employee has a property interest in continued employment, termination does not invoke procedural due process. Board of Regents v. Roth, 408 U.S. 564, 92 S.Ct. 2701, 33 L.Ed.2d 548 (1972).

The code grants two types of tenure: that for teachers, § 16-24-2(a), as defined in § 16-24—1 to include instructors, principals, and supervisors; and that for principals and supervisors: “an instructor who has attained continuing service status and who is promoted to principal or supervisor shall serve for three consecutive school years as a principal or supervisor before attaining continuing service status as a principal or supervisor. . . . ” Code 1975, § 16-24-2(b). No definition of “supervisor” has been pointed out to or found by this Court.

Smith seems to contend that only an assistant principal is a supervisor; he argues that he is not a supervisor because he had no role in supervision of other employees of the Board. He compares the job description of an advisor with that of assistant principal to buttress his argument. The Board points out that the Birmingham school system does not utilize assistant principals.

We find no difficulty in holding that an advisor is to be categorized as a “supervisor” and subjected to tenure requirements separate from the initial teacher tenure. Among the criteria for the job are “A valid Alabama Superintendent’s Principal (A-1) Certificate” and “At least three years of successful experience as a senior high school teacher.” Experience as an advisor counts toward salary determination upon promotion to principal or other supervisory position, but experience as an instructor does not. Reports to the State Board of Education concerning advisors are classified under administrative personnel.

The job requirements for advisors include:

1. Shares with the principal the responsibility for protecting the health and welfare of students.
2. Resolves all student discipline problems in a fair and just manner, and maintains records of any disciplinary action taken.
3. Oversees all matters of student attendance.
4. Makes recommendations for appropriate revisions of policies and rules affecting the student’s life in school.
5. Assists with the supervision of registration and classification of students.
6. Administers the extracurricular program of the school and responds to student initiated requests for specific new extracurricular clubs, activities, and programs.
7. Counsels individual students, and when necessary makes appropriate referrals.
8. Shares responsibility for certifying students for graduation.

Advisors do not perform any instruction.

The trial court did not make any specific findings of fact in support of its ruling “that an advisor in the Birmingham School System is a ‘supervisor’ rather than an ‘instructor’ within the meaning of the tenure law.” Nevertheless, the record contains an abundance of evidence, some of which is set out above, to support this conclusion. Therefore the judgment that Smith had no right to a hearing before being transferred from his job as advisor after only two years is due to be affirmed. This decision is not intended to govern other county boards of education except to the extent that positions therein show sufficient indicia of a supervisory nature.

AFFIRMED.

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


author: ALMON, Justice.

text:
    T. B. KENT and Betty A. Kent v. Herbie G. HARRISON.
    80-210.
    Supreme Court of Alabama.
    Aug. 28, 1981.
    D. Marcel Black and William K. Hewlett, Muscle Shoals, for appellants.
    Robert E. Jones, III, Florence, for appel-lee.
   ALMON, Justice.

On the afternoon of January 19, 1978, a Jeep driven by T. B. Kent, appellant, was struck from the rear by a truck driven by Herbie Harrison, appellee. As a result of this collision, Kent received personal injuries for which he brought this action for damages. His wife, Betty Kent, sought damages for loss of service.

Initially, Kent’s theory of recovery was the “simple negligence” of Harrison in operating his vehicle. However, when Harrison pleaded the affirmative defense of “contributory negligence” in answer to Kent’s complaint, Kent claimed “subsequent negligence” on the part of Harrison.

After hearing the evidence and being instructed on the issues of “negligence,” “contributory negligence,” and “subsequent negligence,” the jury returned a verdict in favor of the defendant, Harrison.

It is undisputed that the road, a four-lane street in Muscle Shoals, Alabama, was covered with snow, that Kent was attempting to make a right turn into a convenience store parking lot and that Kent’s vehicle was struck from the rear by Harrison’s truck.

The conflicting evidence concerns the manner in which Kent made his turn and whether or not Harrison could have avoided the collision.

Kent testified that he made a normal move from the left lane to the right lane in preparation for his right turn. He stated that he gave a proper hand signal for a right turn, since his 1948 Jeep was not equipped with indicator lights. He further stated that he was in complete control of his vehicle and that it never “slid” on the snow covered street until it was struck by Harrison’s truck.

However, Kent’s own witness, an eyewitness to the collision, stated that Kent’s Jeep was indeed “sliding” just prior to impact. This witness only viewed the two vehicles involved for a few moments before the collision and did not see Kent’s lane change.

Harrison and the passenger in his truck both testified that Kent made a “sudden lane change” right in front of Harrison’s vehicle, that he did not give a hand signal, and that his Jeep “slid” sideways, out-of-control, on the snow covered street just prior to the collision. They further testified that Kent’s Jeep was partially blocking both lanes, that Harrison locked his brakes to avoid the collision and could do nothing else without risking a collision with oncoming traffic or a collision with the front of the convenience store.

For aught that appears the jury was convinced that Kent’s actions contributed to cause the accident and that after Kent had placed himself in a perilous position, Harrison was not “reasonably” able to avoid the collision.

Kent’s assertion on appeal is that part of the trial court’s oral charge confused the jury and led them to believe that Kent’s “contributory negligence” would be a complete defense to Harrison’s “subsequent negligence.” The allegedly misleading portion stated:

The Court further charges you that under the law of Alabama it is the rule of the road that no person shall turn any vehicle without giving an appropriate signal in the manner provided by law in the event any other traffic may be affected by such turn. A signal of intention to turn right or left shall be given continuously during not less than the last 100 feet traveled by the vehicle before turning and all signals given by hand and arm shall be given from the left side of the vehicle in the following manner: Right turn — hand and arm extended upward. And the Court further charges the jury that if you’re reasonably satisfied from all the evidence in this case that the Plaintiff T. B. Kent attempted to make a right hand turn on Second Street into the parking area of the store located on Second Street immediately prior to the accident made the basis of this lawsuit in a manner that was in violation of the rules of the road, and if you’re further reasonably satisfied from all the evidence in the case that the violation of these rules of road by the Plaintiff T. B. Kent proximately caused or proximately contributed to cause the injury and damages complained of by the Plaintiff, then I charge you that your verdict cannot be in favor of the Plaintiffs against the defendant Herbie Harrison founded upon the Plaintiff’s claim of negligence. [Emphasis added.]

If this portion had been given to the jury out of context without further clarification, then Kent’s argument might have some merit.

However, in reviewing this alleged error, this Court must consider the trial court’s charge in its entirety. Wren v. Blackburn, 293 Ala. 393, 304 So.2d 187 (1974); Nelms v. Allied Mills Co., 387 So.2d 152 (Ala.1980); Price v. Jacobs, 387 So.2d 172 (Ala.1980).

When read in its entirety, the trial court’s oral charge adequately instructed the jury regarding the consequence of a “contributory negligence” defense on the plaintiff’s original “simple negligence” complaint and his eventual “subsequent negligence” assertion. Specifically, the trial court distinguished between the plaintiff’s claims of “simple negligence” and “subsequent negligence” and stated that:

[u]nder the doctrine of subsequent negligence, irrespective of the negligent acts of a plaintiff in putting himself in a position ■ of danger, he may recover against the defendant if he [the defendant] fails to use reasonable and ordinary care in avoiding the accident after such defendant discovered the perilous position of the plaintiff. ... I further charge you ladies and gentlemen of the jury, that no initial contributory negligence of plaintiff could be a defense to subsequent negligence of the defendant [Emphasis added.]

In light of this portion of the trial court’s charge, which was given prior to the allegedly defective segment, the emphasized phrase of the last sentence in the alleged defective excerpt, “founded upon the Plaintiff’s claim of negligence,” clearly instructed the jury that “contributory negligence” would only be a defense to the “simple negligence” complaint. The trial court did not instruct the jury that “contributory negligence” would be a defense to “subsequent negligence.” Cf. Wren v. Blackburn, supra.

There being no merit to appellant’s assertion of error, the trial court’s judgment is due to be and it is hereby affirmed.

AFFIRMED.

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


text:
    Luther E. NELSON and Robbie Rae Nelson v. Alvis H. GARRARD and Myrtle Garrard.
    80-333.
    Supreme Court of Alabama.
    Aug. 28, 1981.

      Jim Beech of Tweedy, Jackson & Beech, Jasper, for appellants.
    Nelson Vinson of Vinson & Guyton, Hamilton, for appellees.
   FAULKNER, Justice.

This action involves a boundary line dispute and the operation of adverse possession between two coterminous landowners. The land in dispute is located in Marion County. The land is in the shape of a right triangle situated at the northwest corner of a parcel of land described as the SE 1/4 of the NE 1/4 of Section 31, Township 10 South, Range 11 West, of Marion County. The triangle is bounded on the west and the north by the property of plaintiffs, Alvis and Myrtle Garrard. The hypotenuse of the triangle runs from southwest to northeast, along a ditch or stream. An old field road is slightly to the west of the ditch and runs parallel to it. Between the road and the ditch is a “cocklebur patch.” The ditch is bordered on the southeast by the land of Luther and Robbie Rae Nelson, defendants.

The Nelsons acquired their land in 1954 and 1956 by separate deeds. One deed conveyed the SE 1/4 of the NE 1/4 of Section 31, but did not specifically refer to the disputed land. In 1954, Luther Nelson constructed a fence along the west side of the ditch. Nelson testified that he believed the ditch to be the boundary line between his property and the land of the Garrards’ predecessors. Nevertheless, in 1979, Nelson received payment for trees removed from the cocklebur patch between the old field road and the ditch.

In 1977, the Garrards made a down payment on their land and acquired title to it in 1978 from the Dosses. The Garrards rented the land from the Dosses from 1972 until they purchased it in 1978. Since 1972, the Garrards have farmed a portion of the land up to the old field road. Several witnesses testified that the Garrards’ predecessors in title, or their tenants, had farmed the land in controversy since 1915. The witnesses also testified that the prior title holders to the Garrards’ land believed the disputed strip to be part of their property.

The Garrards hired Jack Luden to survey their land in 1978. The survey revealed that the disputed land fell within the SE 1/4 of the NE 1/4 of Section 31, the property described in the deed of the Nelsons. Mr. Nelson knew of the survey and the two parties discussed the boundaries on occasion. A conflict arose between the Gar-rards and the Nelsons over ownership of the triangular portion of property. Nevertheless, the Garrards continued to farm the land in question. On May 19, 1980, the Garrards filed an action to establish the boundary line between the two properties. On January 21,1981, the trial court entered a decree establishing the boundary as the old field road. The property northwest of the road was awarded to the Garrards, and the property southeast of the road was awarded to the Nelsons. The Nelsons appeal.

On appeal, the Nelsons contend that the trial judge erred in awarding any portion of the land to the Garrards. The Nelsons do not contradict the fact that they believed the ditch to be the boundary between the two properties, but contend that the land has not been farmed continuously since 1915. The Nelsons also argue that they and the Garrards entered into an agreement to allow the 1978 survey to establish the boundaries between their lands.

The first issue on appeal is whether the judgment of the trial court is supported by credible evidence. The second issue is whether a claimant may establish adverse possession beyond a government survey line.

A decree entered by a trial court establishing a boundary line between coterminous landowners is presumed to be correct. When evidence is submitted ore ten-us, the decree must only be supported by credible evidence and will only be disturbed if plainly erroneous or manifestly unjust. Campbell v. Carl, 395 So.2d 480 (Ala.1981); Kirby v. Jones, 370 So.2d 250 (Ala.1979); Smith v. Nelson, 355 So.2d 359 (Ala.1978). The presumption of correctness of a trial court’s decision is strengthened when the trial judge views the land in controversy.

The evidence establishes that the disputed land has been farmed since 1915 by the predecessors in title of the Garrards. Several witnesses testified that the prior titleholders believed the strip was part of their property. Even the defendant, Luther Nelson, testified that he believed the boundary between the two properties to be the ditch running along the southeast border of the disputed section. The only evidence to dispute the Garrards’ ownership of the land by adverse possession is the assertion that the parties agree that the survey conducted in 1978 would establish the boundaries. Although the record shows Mr. Nelson and Mr. Garrard discussed the survey, there is no clear proof that the parties entered into an agreement. Credible evidence supports the finding of the trial judge that the boundaries were not the lines of the government survey.

The trial court expressed confusion over whether there may be adverse possession across government survey lines. An examination of our cases establishes that parties may not vary the location of government survey lines by agreement or by act. See Guyse v. Chappell, 367 So.2d 944 (Ala.1979); Sims v. Sims, 273 Ala. 103, 134 So.2d 757 (1961). Nevertheless, a party who holds property by adverse possession for the statutory period may claim title even though possession is over the boundary line. See Mardis v. Nichols, 393 So.2d 976 (Ala.1981); Guyse v. Chappell, 367 So.2d 944 (Ala.1979); Oliver v. Oliver, 187 Ala. 340, 65 So. 373 (1914).

In Murphree v. Swann, 342 So.2d 329 (Ala.1976), this Court refused to permit adverse possession over a survey line. Nonetheless, the case does not stand for the proposition that there can be no adverse possession over government survey lines. Justice Maddox stated, “Some of [plaintiff’s] predecessors in title may have been able to claim title to the disputed strip by adverse possession.” Id. at 330. The essence of the Court’s holding in Murphree v. Swann is that tacking of periods of adverse possession is not permissible unless the prior adverse possessor is the immediate transfer- or. “[W]here a deed described the land conveyed by government survey, the grantee can acquire no title to a disputed area beyond the government line, which his predecessors acquired by adverse possession.” Id. (emphasis added). But in Watson v. Price, 356 So.2d 625 (Ala.1978), this Court rearticulated the rule concerning tacking of periods of adverse possession. If all elements of adverse possession are present, a successive possessor may tack all prior periods of adverse possession. Id. at 627. Tacking is permissible unless the evidence clearly shows prior possessors did not intend to convey the disputed land.

The elements of adverse possession are “actual, hostile, open, notorious, exclusive and continuous [possession] for the statutory period.” Guyse v. Chappell, 367 So.2d at 946 (quoting Smith v. Claybrook, 349 So.2d 1087, 1089 (Ala.1977)) (emphasis omitted). Ample testimony supports the Garrards’ contention that they or their predecessors actually farmed the disputed area from 1915 to the present. The possession of the area actually farmed was open, notorious and continuous. The trial judge correctly held the Garrards owned the portion of the disputed land to the west of the old field road by adverse possession.

But the Garrards’ or previous titleholders to the Garrards’ land never actually possessed the portion of the disputed area to the east of the old field road. The cocklebur patch has never been farmed. Luther Nelson testified that the patch was probably not arable. Furthermore, Mr. Nelson received payment for trees that were cut down from this section of land. Even if this payment is insufficient standing alone to establish that the Nelsons owned and controlled the land, the Garrards failed to carry their burden of establishing adverse possession of the strip. The element of actual possession or use of the patch is absent. Therefore the trial judge correctly awarded the property between the old field road and the ditch to the Nelsons.

The finding of the trial court is affirmed.

AFFIRMED.

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


text:
    Ex parte Patrick R. CARR. In re Margaret E. DANNER v. Patrick R. CARR.
    Civ. 2643.
    Court of Civil Appeals of Alabama.
    April 22, 1981.
    Rehearing Denied June 10, 1981.
    William P. Gray, Jr. of Tucker, Gray & Espy, Tuscaloosa, for petitioner.
    Thomas B. Woodard IV, Reform, for respondent.
   EDWARD N. SCRUGGS, Retired Circuit Judge.

This mandamus proceeding involves the Uniform Child Custody Jurisdiction Act (UCCJA).

On September 29, 1977, the parties (hereinafter referred to as the father and the mother) were divorced by the Circuit Court of DuPage County, Illinois, and, pursuant to their agreement, the mother was granted primary custody of their two sons. On October 29, 1980, that Illinois court modified the previous custody judgment and granted the permanent custody of the two children to the father. The mother and the two boys presently reside in Pickens County, Alabama, where the father now seeks to enforce the latest Illinois custody decree. The mother petitions for a modification thereof.

The trial court rendered a temporary judgment which granted, pendente lite, the custody of the two boys to their mother. In UCCJA cases, a change of custody by means of a temporary ex parte order should be sparingly utilized, and then only in cases where the well being of the child necessitates such an order. Wyatt v. Fahlsing, Civ. 2551 (Ala.Civ.App., March 25, 1981). On the other hand, the circuit court has the judicial discretion to maintain the status quo as to children’s custody in UCCJA litigation for a reasonable period of time until the case is determined. In re McDonald, 74 Mich.App. 119, 253 N.W.2d 678 (1977); Fry v. Ball, 190 Colo. 128, 544 P.2d 402 (1975).

The trial judge has not rendered a judgment either enforcing or refusing to enforce the Illinois judgment, and, in his brief filed in this court, contends that the case must be remanded for further proceedings. We agree. Mandamus is denied and this case is remanded to the Circuit Court of Pickens County in order that the eviden-tiary hearing, or hearings, may be promptly held in the trial court to ascertain, among other issues, whether the October 29, 1980, judgment of the Circuit Court of DuPage, Illinois, should be enforced- under the UCCJA. Wyatt v. Fahlsing, supra.

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

MANDAMUS DENIED. CASE REMANDED.

All the Judges concur.


author: EMBRY, Justice.

text:
    Ex parte Patrick R. CARR. (Re: Ex parte Patrick R. Carr (In re Margaret E. DANNER v. Patrick R. CARR.))
    80-637.
    Supreme Court of Alabama.
    Aug. 28, 1981.
   EMBRY, Justice.

WRIT DENIED-NO OPINION.

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


author: HOLMES, Judge.

text:
    L. S. MORTON v. Bill CLARK.
    Civ. 2619.
    Court of Civil Appeals of Alabama.
    May 20, 1981.
    Rehearing Denied June 17, 1981.

      James D. Turner of Turner, Turner & Turner, Tuscaloosa, for appellant.
    James P. O’Neal of Barnett, Tingle, Noble & Sexton, Birmingham, for appellee.
   HOLMES, Judge.

The plaintiff sued the defendant on a promissory note.

The action was filed in the District Court of Walker County. Thereafter, a default judgement was entered. Several months later, defendant moved to set aside the previously entered default judgment. This motion was filed in the district court. The district court granted the motion to set aside and trial by the district court was had. The district court entered a judgment for defendant.

The plaintiff appeals directly to this court from the order of the district court granting defendant’s motion to set aside the default judgment.

The dispositive issue on appeal is whether, in this instance, the district court’s action in setting aside the default judgment may be appealed directly to this court. Stated differently, must the action of the district court, in this instance, be “appealed” to the circuit court.

This court has recently answered the dispositive issue in the case of Terry v. Frisbee, 404 So.2d 345 (Ala.Civ.App.1981). In Terry we held the denial of a motion to set aside a default judgment by the district court should be appealed to the circuit court; not this court. The facts of Terry and the instant case are the same except in Terry the motion was denied and in the instant case the motion was granted. This distinction in no way alters what was stated in Terry. In fact, the granting of the motion is mentioned in Terry.

We refer interested parties to Terry.

We would be remiss in not commenting that the granting of a motion to set aside a default judgment is generally interlocutory and not appealable. Fisher v. Bush, Ala., 377 So.2d 968 (1979), and eases cited therein. Such an order may, however, be reviewable on appeal after trial on the merits. 11 Wright & Miller, Federal Practice & Procedure: Civil § 2871.

This, as indicated above, is what transpired in the instant appeal.

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

The appeal is due to be dismissed.

APPEAL DISMISSED.

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


text:
    Ex parte L. S. MORTON. (In re L. S. MORTON v. Bill CLARK.)
    No 80-712.
    Supreme Court of Alabama.
    Aug. 21, 1981.

      James D. Turner of Turner, Turner & Turner, Tuscaloosa, for petitioner.
    No brief for respondent.
   PER CURIAM.

Petition for writ of certiorari denied. In declining to issue the writ, we emphasize that the only appropriate issue presented for review on appeal to the circuit court of a Rule 60(b), ARCP, order is the propriety vel non of the district court’s ruling granting or denying the Rule 60(b) motion.

WRIT DENIED.

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


text:
    B. D. PETERSON v. Mary Jo PETERSON.
    Civ. 2228.
    Court of Civil Appeals of Alabama.
    May 27, 1981.
    Rehearing Denied July 1, 1981.

      Douglas Corretti and Robert H. Adams of Corretti & Newsom, Birmingham, for appellant.
    L. Drew Redden and Gerald L. Miller of Redden, Mills & Clark, Birmingham, for appellee.
   HOLMES, Judge.

The husband instituted this action in January of 1979 by petitioning the Jefferson County Circuit Court for a modification of periodic alimony and child support.

The husband later amended his petition to request termination of periodic alimony pursuant to § 30-2-55, Code of Ala. 1975 (1979 Cum. Supp.). In July of 1979, the wife filed a petition for rule nisi, alleging that the husband had failed to comply with a previous court order regarding certain arrearages in alimony and child support payments. The wife also requested an attorney’s fee.

After an ore tenus hearing, the trial court specifically found that, at the time the wife’s rule nisi petition was filed, the husband was in willful contempt of a prior court order, as alleged by the wife. The court also found, however, that the husband had purged himself of contempt by satisfying all arrearages during the course of the hearing.

The trial court denied the husband’s petition regarding the modification of alimony and granted the wife an attorney’s fee. The husband, through able and distinguished counsel, appeals and we affirm.

There are two issues on appeal: (1) whether the trial court erred in refusing to terminate the wife’s periodic alimony based on its determination that the wife was not “living openly or cohabiting with a member of the opposite sex” within the meaning of § 30-2-55, Code of Ala. 1975 (1979 Cum. Supp.); and (2) whether the trial court erred in granting the wife an attorney’s fee.

Viewing the record with the attendant presumptions the following is revealed.

When the parties were divorced in March of 1976, the wife was awarded periodic alimony until her death or remarriage. The wife was also given custody of the parties’ four minor children and the husband was ordered to make certain child support payments. Only the youngest child, who is fifteen, is still living with the wife.

Several months after the divorce, the wife met Mr. Pennington. She began to date him approximately six months later, in December of 1976. At the time of the hearing, the wife had been seeing Mr. Pennington regularly for about one and a half to two years.

Mr. Pennington often visits the wife at her apartment. He had, on six or seven occasions, spent the night at the wife’s apartment. When he did spend the night, the wife always slept on the couch, as was her custom, and Pennington always slept in the wife’s bedroom. Pennington and the wife did not have sexual intercourse at her apartment or when any of her children were present.

The wife has taken several out of town trips with Mr. Pennington. On some of these trips they have had sexual intercourse. They have also had sexual intercourse at the motel where Mr. Pennington resides.

Pennington does not keep any clothes at the wife’s apartment, although the wife does wash his clothes on occasion. Occasionally, Mr. Pennington buys groceries for a meal or cooks a meal at the wife’s apartment.

Pennington does not receive his mail at the wife’s address; he receives it at his motel or at his place of business. He does not pay any part of the rent or utilities for the wife’s apartment.

The husband in this ease is a successful businessman. He owns nine El Palacio restaurants in Alabama and has a one-third interest in three El Palacio restaurants in Mississippi and Louisiana. He also owns Kosher Leasing Company, which leases automobiles and restaurant equipment to El Palacio restaurants.

In addition, the husband is a partner in three business partnerships. He owns a one-third interest in Southeastern Restaurant and Supply, a two-thirds interest in Gulf States Leasing, and a one-third interest in Delta Leasing Company. His income in 1978 was approximately $86,000. In 1977 he earned about $154,000, and in 1976 he earned approximately $191,000.

As stated above, the first issue on appeal is whether the trial court erred in refusing to terminate the wife’s periodic alimony, based on its determination that the wife was not “living openly or cohabiting with a member of the opposite sex” within the meaning of § 30-2-55.

Whether a former spouse is living openly or cohabiting with a member of the opposite sex for purposes of § 30-2-55 is a factual determination. Etheridge v. Etheridge, Ala.Civ.App., 379 So.2d 87, cert. denied, Ala., 379 So.2d 89 (1979). This court may reverse the trial court’s determination only if we conclude, after consideration of all the evidence and all other reasonable inferences drawn therefrom, that such determination is plainly and palpably wrong. Blackwell v. Blackwell, Ala.Civ.App., 383 So.2d 196 (1980).

There is ample evidence in this case to support the trial court’s finding that the wife was not “living openly or cohabiting with” Mr. Pennington. The evidence shows that Pennington only rarely spent the night at the wife’s apartment and that when he did spent the night, he did not sleep with the wife or have sexual intercourse with her. Pennington did not keep his clothes at the wife’s apartment, neither did he receive his mail there. Although he occasionally brought groceries to the apartment, he generally brought only enough for one meal. He did not pay any of the rent or utilities for the apartment.

While the trial court could have concluded, as it apparently did, that the wife and Pennington were regular adult social companions and that they had had sexual intercourse, such a conclusion does not necessarily require a finding that the wife was “living or cohabiting with” Pennington. With the above in mind, we find no reversible error on this ground.

We note that the husband, in brief, has asked this court to define “cohabitation” as it is used in § 30-2-55. As stated above, whether a person is “living openly or cohabiting with a member of the opposite sex” is a factual determination for the trial court. Etheridge, supra. We addressed this issue numerous times in the past two years. We are not constrained to restate what we have previously written. We refer the husband and other interested parties to: Jones v. Jones, Ala.Civ.App., 387 So.2d 217, cert. denied, Ala., 387 So.2d 219 (1980); Parish v. Parish, Ala.Civ.App., 374 So.2d 348, cert. denied, Ala., 374 So.2d 351 (1979); Atkinson v. Atkinson, Ala.Civ.App., 372 So.2d 1106 (1979).

The second issue presented on appeal is whether the trial court erred in awarding an attorney’s fee to the wife.

After an ore tenus hearing on the parties’ petitions, the trial court ordered the husband to pay the wife $3,000 as an attorney’s fee for services rendered in connection with the aforementioned proceeding.

It is within the trial court’s discretion to award an attorney’s fee to the wife in a proceeding to modify a divorce decree. Price v. Price, Ala.Civ.App., 360 So.2d 340 (1978). The exercise of that discretion will not be revised on appeal in the absence of abuse. Smith v. Smith, Ala.Civ.App., 365 So.2d 88 (1978).

The factors to consider in making such an award are the earning capacities of the parties, the results of the litigation and the labor and skill involved. Horsley v. Horsley, 50 Ala.App. 445, 280 So.2d 150, cert. denied, 291 Ala. 782, 280 So.2d 155 (1973).

It is clear that the court did not abuse its discretion with regard to the award of an attorney’s fee in this case. As stated above, the husband is a successful businessman. His income in 1978 was approximately $86,000. He wholly owns nine El Palacio restaurants and has a one-third interest in three others. He also has financial interests in several other businesses. The wife, on the other hand, was not employed when the parties were divorced. She later obtained a position with a local television station, but her salary at the time of the hearing below was only about $116 per week, which is approximately $6,000 per year.

The litigation in this case resulted in a denial of the husband’s request for modification of periodic alimony. And the attorneys obviously spent a great deal of time and effort on the proceeding, as the record on appeal is comprised of over six hundred pages of testimony alone.

With the above in mind, and with emphasis on the relative earning capacities of the parties, we find no abuse of discretion with regard to the trial court’s award of $3,000 as an attorney’s fee.

The wife has petitioned the court for an attorney’s fee on appeal and an attorney’s fee of $500 is hereby awarded.

This cause is due to be and is hereby affirmed.

AFFIRMED.

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


author: JONES, Justice.

text:
    Ex parte B. D. PETERSON. (In re B. D. PETERSON v. Mary Jo PETERSON).
    80-716.
    Supreme Court of Alabama.
    Sept. 11, 1981.
   JONES, Justice.

WRIT DENIED — NO OPINION.

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


text:
    COURTAULDS NORTH AMERICA, INC. v. Jake E. LOTT, Sr., and Clarence Murphy.
    Civ. 2588.
    Court of Civil Appeals of Alabama.
    June 3, 1981.
    Rehearing Denied July 1, 1981.
    Michael D. Knight of Hand, Arendall, Bedsole, Greaves & Johnston, Mobile, for appellant.
    Joseph J. Boswell, Mobile, for appellee.
   HOLMES, Judge.

This is a workmen’s compensation case.

Barbara Murphy was accidentally killed in February of 1979 while working in the line and scope of her employment with Courtaulds North America, Inc. At the time of her death, Ms. Murphy was living with Jake E. Lott, Sr.

Lott filed suit against Courtaulds, alleging that he was Ms. Murphy’s common-law husband and sole dependent and was therefore entitled to dependent’s benefits under the Alabama workmen’s compensation statute.

Lott filed a motion for summary judgment. The issue before the trial court on summary judgment was whether or not Lott’s common-law marriage to Ms. Murphy was invalid due to a prior, undissolved ceremonial marriage entered into by Ms. Murphy. The learned trial judge found that Courtaulds had the burden of proving that the prior marriage was undissolved and that Courtaulds failed to meet this burden. Lott’s motion was granted and Courtaulds filed this appeal.

The issue on appeal is whether the trial court erred in granting Lott’s motion for summary judgment. We find error in this regard and reverse and remand.

The record reveals the following facts: Ms. Murphy and Clarence Murphy were lawfully married in a ceremony in Prichard, Alabama, on September 2, 1954. Shortly thereafter, the parties moved to Chicago, Illinois. They lived together as man and wife until Ms. Murphy left to go to California in 1959.

The parties never lived together after that time. Mr. Murphy did not see his wife at all while she lived in California. Ms. Murphy returned to Mobile in 1962 and resided there until her death, with the exception of about twenty-one months which she spent imprisoned in Elmore County.

After Ms. Murphy returned to Mobile, Mr. Murphy saw her twice. However, Mr. Murphy did visit in Mobile in the summer of 1978. Ms. Murphy sought him out at that time and they spent a good deal of time together during the two weeks Mr. Murphy was in Mobile.

Over the years, Mr. Murphy had given Ms. Murphy money from time to time when she asked for it. The last time he gave her any money was during his visit in 1978.

Mr. Murphy testified on deposition that he never filed suit for divorce from Ms. Murphy. He also stated that Ms. Murphy did not file for divorce while they were living together in Chicago and that he had never been served with any papers relating to a divorce.

Courtaulds filed affidavits from various courts in jurisdictions in which Clarence Murphy and Barbara Murphy had lived. These affidavits reflect the absence of any records regarding a divorce between Ms. Murphy and Mr. Murphy. The circuit court clerk of Cook County, Illinois, certified that he found no record of a suit for divorce, annulment, or separate maintenance from or by either party between 1954 and 1966. The superior court clerk for Los Angeles County, California, certified that he found no record of a divorce action between the parties during the period of 1959 to 1966. Finally, the domestic relations court clerk of Mobile County, Alabama, certified that he found no record of a divorce between thé parties from 1959 until 1979. No affidavit was filed regarding the record of the Circuit Court of Elmore County, Alabama.

When Ms. Murphy returned to Mobile in 1962, she bought a shell home, which she placed on a lot she inherited from her mother. The home had no utilities or plumbing. Jake Lott helped Ms. Murphy finish the home.

In 1963, Ms. Murphy wets imprisoned in Elmore County for conviction of possession of marijuana. In 1964, while incarcerated, Ms. Murphy conveyed to Lott an undivided one-half interest in the home and lot. Mr. Lott did not pay Ms. Murphy any money for this interest.

Ms. Murphy was released from prison in the summer of 1965 and she and Lott commenced cohabitation in August of that year. Although Lott was married to another woman when he moved in with Ms. Murphy, he and his former spouse were divorced in 1968.

Lott and Ms. Murphy continuously cohabited from 1965 until Ms. Murphy’s death in 1979. They shared their living expenses. Some of the utility bills were in Lott’s name and some were in Ms. Murphy’s name. Lott and Ms. Murphy held themselves out to their neighbors as man and wife and lived together as man and wife.

The trial court found, on the basis of the facts, that, in the absence of any legal impediment arising from Ms. Murphy’s pri- or ceremonial marriage, Mr. Lott and Ms. Murphy had contracted a common-law marriage. The facts stated above would certainly support such a finding of fact. We also note that Courtaulds apparently entered into a stipulation to that effect in open court.

As stated above, the dispositive issue on appeal is whether the trial court erred in granting Lott’s motion for summary judgment.

Courtaulds contends that Lott was not entitled to summary judgment because there was at least a scintilla of evidence that Ms. Murphy’s first marriage was never dissolved. If that marriage was not dissolved, then Lott’s common-law marriage to Ms. Murphy was invalid and he could not recover workmen’s compensation benefits as a result of Ms. Murphy’s death. See, Bell v. Tennessee Coal, Iron & R. R., 240 Ala. 422, 199 So. 813 (1941).

When a party produces evidence of the existence of a valid marriage which the opposing party contends is invalid on the ground that there was a prior, undissolved ceremonial marriage the presumption arises that the prior marriage was dissolved by death or divorce. Jackson v. Jackson, 49 Ala.App. 702, 275 So.2d 683 (1973). The burden of proving that the prior marriage had not been dissolved is cast upon the party attacking the validity of the second marriage. Jones v. Case, 266 Ala. 498, 97 So.2d 816 (1957).

In this case Lott produced evidence that he and Ms. Murphy contracted a valid common-law marriage. The trial court ruled that the burden of proof was then cast on Courtaulds to show that Ms. Murphy’s prior marriage had not been dissolved. After consideration of all the evidence, the trial court found that Courtaulds did not meet that burden and that Lott was therefore entitled to summary judgment.

As indicated, this court finds the trial court erred in granting Lott’s motion. While it is true that Courtaulds must ultimately appropriately “prove” that the prior marriage was not dissolved in order to defeat Lott’s claim, Courtaulds, in this instance, is not required to present more than was presented in order to defeat Lott’s motion for summary judgment.

On motion for summary judgment the movant, in this case Mr. Lott, has the burden of proving the absence of any genuine issue of material fact and all reasonable doubts touching the genuine issue of material fact must be resolved against the movant. Studdard v. South Central Bell Tel. Co., Ala., 356 So.2d 139 (1978). When the moving party has presented evidence that no genuine issue of fact exists, the opposing party cannot hold back his evidence but must produce at least a scintilla of evidence that would create a triable issue of fact. Amason v. First State Bank of Lineville, Ala., 369 So.2d 547 (1979). If there is a scintilla of evidence supporting the position of the non-moving party, summary judgment must be denied. Watkins v. St. Paul Fire & Marine Ins. Co., Ala., 376 So.2d 660 (1979); Wilson v. Liberty Nat’l Life Ins. Co., Ala., 331 So.2d 617 (1976).

There is a genuine issue of material fact in the instant appeal, to wit, whether the first marriage was dissolved; one party contending dissolution; the other party contending no dissolution. The presumption of the dissolution of the first marriage is not an absolute presumption; rather, it is a question of fact to be determined in each case. Dorsey v. Dorsey, 259 Ala. 220, 66 So.2d 135 (1953). It is well-settled that a trial judge may not resolve factual issues on motion for summary judgment. Martin v. Auto-Owners Ins., 57 Ala.App. 489, 329 So.2d 547 (1976).

Furthermore, the dissolution or nondisso-lution of Ms. Murphy’s prior marriage is clearly a material fact in this case because it is determinative of Lott’s right to recover workmen’s compensation benefits.

As indicated above, there exists a genuine issue of a material fact. The only inquiry remaining is: Was there a scintilla of evidence to support the non-moving party’s contention?

We find there is at least a scintilla of evidence supporting the position taken by Courtaulds, the non-moving party, that Lott’s common-law marriage to Ms. Murphy was invalid due to a prior, undissolved marriage. As stated above, Mr. Murphy testified that he never sought a divorce from Ms. Murphy and he was not aware of any divorce proceedings filed by Ms. Murphy. In addition, Courtaulds produced affidavits from the appropriate court clerks in all the jurisdictions in which Clarence Murphy and Barbara Murphy lived, except for Elmore County. These affidavits state that no records of divorce proceedings between the parties were found.

In addition, the evidence shows that Mr. Murphy and Ms. Murphy remained in touch with each other over the years after their separation. In fact, Mr. Murphy had sent Ms. Murphy money from time to time. When Mr. Murphy visited in Mobile in 1978, Ms. Murphy sought him out and spent a good deal of time with him. Before leaving Mobile, Mr. Murphy gave Ms. Murphy some money.

Although the evidence noted above may or may not be conclusive as to the non-dissolution of the prior marriage, it clearly raises a scintilla to that effect. Put another way, in light of the evidence above, Courtaulds met its burden of producing at least a “scintilla of evidence that would create a triable issue of fact.” Amason, supra.

Although Courtaulds filed no affidavit with respect to Elmore County, the evidence and the reasonable inferences therefrom present a scintilla for summary judgment purposes that Clarence and Barbara Murphy were not divorced while she was in jail in Elmore County. They did not lose touch with each other during Ms. Murphy’s incarceration. In fact, after she was released, Mr. Murphy sent Ms. Murphy money whenever she asked for it. He also visited with her in Mobile after she was released and while she was living with Jake Lott.

With the above in mind, we find that at the very least, Courtaulds presented a scintilla of evidence that a genuine issue of material fact existed regarding the dissolution of Ms. Murphy’s prior marriage and that summary judgment was therefore improper.

We realize that the trial judge has gone to great lengths in attempting to reach a just resolution in this case. While many interesting points of law are discussed in the trial court’s order, the fact remains that in Alabama a motion for summary judgment may not be granted if there is a scintilla of evidence in support of the non-moving party. Watkins, supra; Wilson, supra.

We note that in this case there were cross-motions for summary judgment; i. e., Courtaulds also filed a motion for summary judgment, which the trial court denied. However, the fact that there were such cross-motions does not remove the burden on each moving party to establish the propriety of granting his own motion. Ama-son, supra.

The failure of one party to carry the burden on his motion does not necessarily mean that the other party has carried the burden under his motion and is thereby entitled to summary judgment. Amason, supra. As stated above, entry of summary judgment is precluded if there is a scintilla of evidence which supports the position of the non-moving party. Watkins, supra; Wilson, supra.

This cause is due to be reversed and remanded.

REVERSED AND REMANDED.

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


text:
    Ex Parte Jake E. LOTT, Sr. (Re COURTAULDS NORTH AMERICA, INC. v. Jake E. LOTT, Sr. and Clarence Murphy).
    No. 80-713.
    Supreme Court of Alabama.
    Aug. 28, 1981.
   EMBRY, Justice.

WRIT DENIED-NO OPINION.

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