author: PER CURIAM. MADDOX, Justice

text:
    DELVIEW MEADOW GOLD DIVISION BEATRICE FOODS COMPANY, et al. v. ALABAMA DAIRY COMMISSION, et al.
    77-70.
    Supreme Court of Alabama.
    March 6, 1981.
    Rehearing Denied May 7, 1981.
   PER CURIAM.

REVERSED AND REMANDED. No opinion.

All the Justices concur, except MADDOX, J., who concurs specially with opinion.

MADDOX, Justice

(concurring specially).

I concur in the result, solely because the United States Supreme Court has refused to review this Court’s judgment, - U.S. -, 101 S.Ct. 385, 66 L.Ed.2d 237. The constitutional issues in this case were actually decided in Alabama Dairy Commission v. Delview Meadow Gold, 345 So.2d 278 (Ala.1977). See my dissent in Delview Meadow Gold v. Alabama Dairy Commission, 383 So.2d 511, 518 (Ala.1980).


source: Caselaw Access Project

author: ADAMS, Justice. ADAMS, Justice.

license: Public Domain

text:
    Bobby HAWKINS dba Hawkins Paving Company v. James W. LEAGUE.
    79-515.
    Supreme Court of Alabama.
    March 27, 1981.
    Rehearing Denied May 8, 1981.

      Currun C. Humphrey of Humphrey & Smith, Huntsville, for appellant.
    J. Robert Miller of Culver & Miller, Huntsville, for appellee.
   ADAMS, Justice.

Plaintiff appeals a judgment denying him additional items of cost incurred in the performance of an oral, fixed fee plus costs contract for paving and grading work. These were denied by the trial court on the grounds that plaintiff failed to prove the costs were reasonable. The court did award plaintiff the $10,000.00 fixed fee. Defendant did not cross-appeal.

Bobby Hawkins, d/b/a Hawkins Paving company initially sued James W. League in quantum meruit for $27,724.75 due Hawkins for labor, equipment and materials supplied League in the construction of a mobile home park owned by League. In his answer, League raised a defense that the costs incurred by Hawkins in the paving and grading work were unreasonable and, thus, not recoverable. League also counterclaimed, alleging that Hawkins breached a written contract whereby Hawkins was to be the general contractor for the construction project.

Hawkins then amended his complaint, alleging that League fraudulently induced him to execute the written contract and had no intention to perform under it. In this amendment, Hawkins alleged that the true agreement between the parties was an oral contract whereby League was to pay on a $10,000.00 fixed fee plus costs basis, but Hawkins was not to serve as general contractor for the project. League replied that the oral contract relied on by Hawkins was void, since Hawkins had no “general contractor’s” license as required by Code 1975, §§ 34-8-1 to -10.

The case was tried without a jury before Circuit Judge James C. Esco, who died before rendering a final decision in the case. The case was reassigned to Circuit Judge Daniel B. Banks, Jr. The parties entered a written stipulation that the record of the trial before Judge Esco be submitted to Judge Banks for final decision. Judge Banks made the following findings in his judgment from which Hawkins appeals:

1. That the plaintiff, Bobby Hawkins, entered into a verbal contract with the defendant, James W. League, for a fixed fee of $10,000.00 plus costs to perform work at the direction of the defendant on the defendant’s mobile home park.
2. That the plaintiff and the defendant did commence the performance of said oral contract and the plaintiff did commence performance of the items of work at the direction of the defendant on the defendant’s mobile home park.
3. That following the commencement of performance of the oral contract, the plaintiff and the defendant did execute a written contract dated July 28, 1975.
4. That following the execution of said written contract, both parties effectively abandoned said written contract and resumed the performance of work under the original verbal contract.
5. The Court finds that there was no actionable fraud involved in the execution of the written contract in that the Court finds that there was no reliance upon the written document to the detriment of the plaintiff.
6. The Court finds that the plaintiff Bobby Hawkins substantially performed the verbal contract to do items of work at the direction of the defendant on the defendant’s mobile home park and that the plaintiff is entitled to recover the fixed fee of $10,000.00 as agreed upon by and between the parties.
7. The Court finds that the plaintiff has offered into evidence charges for additional items of cost which were to be paid under the verbal contract; however, the Court finds that the plaintiff has failed to prove that those charges for additional items of cost were reasonable as required by law.
8. The Court finds that the plaintiff Bobby Hawkins is not prohibited from recovery in this case for his failure to obtain a general contractors license in that the Court finds that the cost of the undertaking insofar as the plaintiff Bobby Hawkins was concerned was $10,-000.00.

At the outset, we note that Hawkins indicated at oral argument that he did not wish to pursue on appeal his fraud claim. In any event, we agree with the trial court’s finding that Hawkins failed to prove the essential element of reliance on the written contract to his detriment. We cannot find any actionable harm to Hawkins arising from the alleged fraud, since it is clear he ignored the written contract and performed under the oral contract instead.

On this appeal, Hawkins primarily contends he was entitled to the additional items of cost under the oral contract which the trial court found controlling. We agree. We find that the trial court erred in applying a test of reasonableness to the items of cost claimed by Hawkins. Although this is the proper test under a theory of quantum meruit, see, e. g., Hendrix, Mohr & Yardley, Inc. v. City of Daphne, 359 So.2d 792 (Ala.1978), it does not apply to a recovery on the contract. Except where there is evidence of fraud or bad faith on the part of the contractor, “[A] builder suing for recovery under a cost plus fixed fee contract need not establish that the cost of his labor and material was reasonable . ... ” 17A C.J.S. Contracts § 591, at 1149 (1963). See, e. g., C. F. Halstead Contractor, Inc. v. Dirt, Inc., 294 Ala. 644, 320 So.2d 657 (1975).

Here, Hawkins clearly established his costs by submitting to the trial court the individual tickets to League itemizing his costs in performing the contract. He was not required to go further and prove their reasonableness. League’s argument that Hawkins merely sought recovery here on a theory of quantum meruit ignores Hawkins’s amendment to his complaint adding a theory of oral contract. The effect of this amendment was realized in the trial court’s judgment which was based solely on the contract theory.

Finding that Hawkins was entitled to the full $27,724.75 claimed for performance under an oral contract, we run afoul of Code 1975, §§ 34-8-1 to -10, which require “general contractors” to be licensed. It is undisputed that neither League nor Hawkins had such a license. Although the statutes themselves provide a misdemeanor penalty for noncompliance, this Court has gone further, holding express or implied contracts with nonlicensed “general contractors” to be null and void as a violation of public policy. Cooper v. Johnston, 283 Ala. 565, 219 So.2d 392 (1969). Such contracts are illegal and unenforceable by the unlicensed “general contractor.” Tucker v. Walker, 293 Ala. 589, 308 So.2d 245 (1975). As reasoned in Cooper:

We are convinced from a review of the original and amendatory acts that it was the intention of the legislature that said acts be enacted for regulation and protection as distinguished from a law created solely for revenue purposes. The primary purpose was to protect the public against incompetent contractors for certain-type structures, and also to better assure properly constructed structures which were free from defects and dangers to the public.

283 Ala. at 567, 219 So.2d 392.

Hawkins makes several arguments claiming his recovery of the full $27,724.75 is not barred by the licensing statutes. Initially, he argues that the issue of licensing cannot be raised by League on this appeal, since League did not cross-appeal the trial court’s ruling adverse to him on this issue, citing Mutual Savings Life Insurance Co. v. Montgomery, 347 So.2d 1327 (Ala.1977). Hawkins cites as the adverse ruling the trial court’s finding that he was not prohibited from recovery by a failure to obtain a license, since the cost of the undertaking was only $10,000.00. The statute only requires licensing for undertakings of $20,-000.00 or more. Code 1975, § 34-8-1. This finding was clearly based on the trial court’s prior finding that Hawkins was only entitled to the $10,000.00 fixed fee under the oral contract. Thus, this finding is not really adverse to League within the perimeter defined on this appeal. We have already determined that Hawkins was entitled to the full $27,724.75 on the contract, thus vitiating the trial court’s ruling on licensing requirements, and, in effect, reopening the issue on this appeal.

The amount recoverable on the contract and the applicability of the licensing statutes are interwoven issues. Cases involving the cross-appeal rule cited by Hawkins generally involve the failure to cross-appeal issues separate and distinct from those raised by the appellant. See Mutual Savings Life Insurance Co. v. Montgomery, 347 So.2d 1327 (Ala.1977); Hodges v. Nelson, 370 So.2d 1020 (Ala.Civ.App.1979); Boswell v. Samson Banking Co., 368 So.2d 547 (Ala. Civ.App.1978), cert. denied, 368 So.2d 552 (Ala.1979); Headley v. Housing Authority of Prattville, 347 So.2d 532 (Ala.Civ.App. 1977). We cannot find that Hawkins is now entitled to the full $27,724.75 and then ignore the clear public policy against enforcement of contracts of that amount in favor of the unlicensed “general contractor.”

Addressing the substance of the licensing issue, Hawkins argues he is not required to have a license, since he does not come within the definition of a “general contractor” provided in Code 1975, § 34-8-1, viz.:

For the purpose of this chapter, a “general contractor” is defined to be one who, for a fixed price, commission, fee or wage, undertakes to construct or superintend the construction of any building, highway, sewer, grading or any improvement or structure where the cost of the undertaking is $20,000.00 or more, and anyone who shall engage in the construction or superintending the construction of any structure or any undertaking or improvements above mentioned in the state of Alabama, costing $20,000.00 or more, shall be deemed and held to have engaged in the business of general contracting in the State of Alabama.

We cannot agree. The oral contract in this case does satisfy the elements of the statutory definition. The contract with League is for a fixed fee, i. e., $10,000.00. The grading work performed by Hawkins is specifically covered by the statute. As we have determined here, Hawkins was entitled to receive for his work $27,724.75, clearly an undertaking costing $20,000.00 or more. Construing this statute, this Court has observed, “When the word ‘cost’ in the definition above is construed in context, we believe it refers to the amount which the contractor is to receive for his work and not merely the out-of-pocket expenses incurred by the contractor in performing the work.” Tucker v. Walker, 293 Ala. 589, 592, 308 So.2d 245 (1975) (emphasis added).

Hawkins cites Messina v. Koch Industries, Inc., 267 So.2d 221 (La.App.1972), aff’d, 283 So.2d 204 (La.1973), for the proposition that the fixed fee itself must amount to $20,000.00 or more. This construction is not indicated by the language of our statute. Furthermore, the Louisiana statute, although similar in some respects, contains additional explicit language that the fixed fee, as well as the cost of the undertaking, must equal or exceed the statutory amount. Such language is noticeably absent from our statute. Fulton v. Rice, 12 N.C.App. 669, 184 S.E.2d 421 (1971), cited by Hawkins, is factually inapposite. There, the North Carolina court rejected a claim that the “cost of the undertaking” for a particular contractor included that incurred by the owner for the entire project.

Alternatively, Hawkins argues he is exempt from the licensing statutes under Code 1975, § 34-8-7, viz.:

The following shall be exempted from the provisions of this chapter: the practice of general contracting, as defined in section 34-8-1, by an authorized representative or representatives of the United States government, state of Alabama, incorporated town, city or county in this state, provided that such operation shall be under the supervision of a licensed architect or engineer; the construction of any residence or private dwelling; a subcontractor performing work under a properly licensed general contractor and a person, firm or corporation constructing a building or other improvements on his or its own property. [Emphasis added.]

(We find that none of these exemptions apply here. As noted above, League is not a licensed general contractor under which Hawkins may legally subcontract. Furthermore, the owner of the property here, League, did not perform the work himself, but hired a contractor, Hawkins, to do it.

Hawkins argues that, since League is the owner who would need no license and Hawkins is subcontracted to League, both these exemptions can somehow be blended together to spare Hawkins the licensing requirement. We cannot agree that this twisted construction “seems to be the intent of the statute” as claimed by Hawkins. The California cases cited by Hawkins for this unique proposition involve unique circumstances not presented here. The language of our statute is clear. In the past, this Court has applied the licensing requirement to contractors hired by owners, recognizing no exemptions. See Cochran v. Ozark Country Club, Inc., 339 So.2d 1023 (Ala.1976); Cooper v. Johnston, 283 Ala. 565, 219 So.2d 392 (1969).

Finding that Hawkins was entitled to receive $27,724.75 for the performance of his oral contract with League and that Hawkins did not have a general contractor’s license, in clear violation of our laws, we are bound by the declared public policy of this state to declare the contract null, void and unenforceable.

REVERSED AND RENDERED.

FAULKNER, JONES, ALMON and EM-BRY, JJ., concur.

On Application for Rehearing

ADAMS, Justice.

Able counsel for the appellant points out in his application for rehearing that he did not indicate at oral argument that he was not pursuing an appeal on his fraud claim. The court has carefully listened to the tapes of the oral argument and a fair statement of what the appellant said at oral argument is that he did not wish to pursue his appeal on the fraud claim if he could prevail on the contract claim. Our opinion is corrected to indicate the true position of the appellant. The correction does not change the result. In the second sentence after the statement that appellant “... did not wish to pursue on appeal his fraud claim,” we said: “We cannot find any actionable harm to Hawkins arising from the alleged fraud, since it is clear he ignored the written contract and performed under the oral contract instead.” We are still of this opinion.

The arguments advanced by counsel in his application for rehearing urge us to carefully review the entire record in this case, because of the harsh result mandated by the Court’s analysis of Alabama law. We have done as the appellant requests. The court was troubled with this decision from the very beginning — a non-appealing party winning where the undisputed evidence was that the contractor had substantially performed the contract worth at least $27,000.00. Nevertheless, the statute that we are dealing with is a penal one, and harsh results sometimes flow from the construction of a penal statute.

We cannot accept appellant’s argument that this contract is severable. The cost provision and the fixed fee provision are parts of one contract. Tucker v. Walker, 293 Ala. 589, 592, 308 So.2d 245 (1975). Nor do we believe that Messina v. Koch Industries, Inc., 267 So.2d 221 (La.App. 1972), aff’d. 283 So.2d 204 (La.1973), excepting services payable on a day to day basis from the contracting statute, provides any relief to appellant. That case categorically said that it was not addressing the fixed fee plus cost type contract. Upon careful consideration we find appellant’s other arguments to be without merit.

OPINION EXTENDED; APPLICATION FOR REHEARING OVERRULED.

FAULKNER, JONES, ALMON and EM-BRY, JJ., concur.


author: MADDOX, Justice.

text:
    Richard A. ABSTON v. Thomas B. WOODARD, III et al.
    80-91.
    Supreme Court of Alabama.
    April 10, 1981.
    Rehearing Denied May 8, 1981.

      Jack Drake of Drake & Pierce, Tuscaloosa and George D. H. McMillan, Jr. of McMillan & Spratling, Birmingham, for appellant.
    Raymond E. Ward of Ray, Oliver & Ward, Tuscaloosa, for appellees.
   MADDOX, Justice.

What due process rights does a nontenured public school teacher have in case his contract is nonrenewed? That is the sole question presented by this appeal.

Richard A. Abston, a public school teacher and head football coach at Pickens County High School, filed an action in the Circuit Court of Pickens County, in which he claimed that he was nonrenewed “because he complained about deficits in gate receipts at home football games played by Pickens County High School,” which ultimately culminated in the resignation of the school principal, James Lawrence, who was responsible for the handling of the gate receipts. Abston charged in his complaint that “[o]ne of Lawrence’s last acts, prior to his resignation, was to recommend to the Pickens County School Board that plaintiff not be rehired for the 1979-80 school year.”

Some of the basic operative facts are as follows:

In 1976, Abston left his tenured position with the Opelika City School System at the invitation of Pickens County Board of Education to become head football coach and athletic director at Pickens County High School. During Abston’s first season, the Pickens County football team had a 9-0-1 record and went to the state playoffs. In his second season, the football team had a 6-4 record, and in his third year, the team went 7-3, and again made the state playoffs. Abston was recognized as West Alabama 2-A Coach of the Year for all three years he was employed in the Pickens County School System.

In addition to his coaching duties, Abston taught five physical education classes per school day, maintained the school gym, and also maintained the football field and playground area.

When Abston first arrived at Pickens County High School, he was faced with a debt of $7,000 in the Athletic Department. Upon investigation, he learned that the gate receipts from the football games seemed to be lower than the size of the crowd would have indicated. Abston discussed this situation with a group called the Pickens County Athletic Club, and a procedure was established for counting the number of people attending home games. This was done for the Aliceville game in 1976, and all home games in 1977. In 1976, and 1977, the principal of the high school, Lawrence, was in charge of the gate receipts from Friday night until the following Monday morning. When Abston would receive the money on Monday morning from the principal, he would make a report to members of the Athletic Club so they could correlate their numbers. It was estimated that for each game counted in 1977, the receipts appeared to be $250.00 to $1,000.00 short. The Pickens County Board of Education, through the superintendent, made several changes in the manner in which football tickets were handled and accounted for after the 1977 football season.

In March of 1979, a group of citizens formed an organization known as “Concerned Citizens of Reform School District” to discuss with the school board rumors that Abston would not be renewed as head football coach. One of the purposes of the group was to protect Abston’s job so as to insure the success of a fund raising project to provide better lights for the football field. The “Concerned Citizens” also asked to have principal Lawrence fired.

There was some evidence that shortly before the “Concerned Citizens” formed, Abston was informed by the defendant Boyd Edgeworth, a school board member, that “[t]he only reason he could figure [for nonrenewal of Abston] was because he (Lawrence) could get his hands back in.”

On March 19, 1979, the “Concerned Citizens” met with the school board and asked whether or not Lawrence would be fired and whether Abston would be rehired. The group was given no answer. In mid-April of 1979, the “Concerned Citizens” submitted a report to the board concerning principal Lawrence and reasons why he should be terminated. One of the affidavits attached to the many statements, figures, etc. was one signed by Abston, which was executed for the purpose of showing that Lawrence was not properly doing his job as principal. Again the “Concerned Citizens” asked that Lawrence be fired.

The March and April meetings were widely reported by local and state news media and the contents of the “Concerned Citizens” report were widely known in the rural area of Pickens County. Shortly thereafter, on May 10, 1979, principal Lawrence recommended to the superintendent of the Pickens County School Board that Abston be written a letter of nonrenewal for the 1979-1980 school year. The superintendent accepted the recommendation of principal Lawrence, and without further investigation, recommended to the school board that Abston’s contract not be renewed. The school board accepted the recommendation without any discussion or inquiry whatsoever. The superintendent could not state that Lawrence’s act was not an act of retaliation against Abston for his activities. On May 24, 1979, one day prior to the end of the school year, Abston was notified in writing that his contract would not be renewed. Immediately thereafter, Lawrence submitted his resignation as principal, effective July 1, 1979.

The trial judge found that the board, following the recommendation of the superintendent, who, in turn, had followed the recommendation of principal Lawrence, had “adhered to the statutory requirements regarding notice. . .. ” On the substantive due process claim, the judge opined that Abston, as a nontenured teacher, had no constitutionally protectable property interest in his job in that he had no reasonable expectation of reemployment for the following school year. The trial judge cited this Court’s case of Underwood v. Barbour County Board of Education, 372 So.2d 22 (Ala.1979). The trial judge then opined:

Abston alleges that his complaints about deficits in gate receipts at home football games led to his being not rehired. Ordinarily, a non-tenured teacher, such as Ab-ston, is not entitled to any due process hearing unless he or she is stigmatized or suffers injury to his or her prospective future employment, Foster v. Blunt [sic] County Board of Education, 340 So.2d 751 ([Ala.]1976); Gowen v. Cherokee County Board of Education, 348 So.2d 441 ([Ala.]1977). No complaint is made here of such injury to Abston or his professional standing. What is complained of by Abston is that his constitutional rights of freedom of speech were infringed. In this instance, the complaint is directed to Abston’s immediate principal, Jimmy Lawrence, who it is alleged recommended his non-renewal, which recommendation once removed, was accepted by the Board.
It is well recognized that a teacher, tenured or not, cannot be discharged or not re-employed, for exercising his or her constitutionally protected rights of free speech, Mount Healthy City Board of Education v. Doyle, 429 U. S. 274, 97 S.Ct. 568, 50 L.Ed.2d 471 (1977). It is additionally recognized that at a hearing to determine the truth and accuracy of such an allegation, the burden is on the non-tenured teacher to establish that his speech was protected and that this same speech was a “substantial” or “motivating” factor in the Board’s decision not to rehire, Mount Healthy City Board of Education, supra....
In this case, Abston has attempted to meet this burden by showing he supplied information to the Pickens County High School Athletic Club back in 1976, which was during his first year as coach and teacher in the system. The information supplied by Abston was of the amount of gate receipts reported by the principal for the home football games of the team for that year. With this information, the Athletic Club then apparently compared the account of those in attendance at these games with the reported receipts to show the principal’s defalcation. No evidence has been offered by the Plaintiff to show that the entire matter of gate receipts was ever brought to the attention of Lawrence or that Lawrence knew or had knowledge of Abston’s participation in this scheme to catch him (Lawrence) pocketing gate receipts. In fact, the Court recalls Abston testifying that he never talked to Lawrence about this matter. The Plaintiff’s own testimony further shows that he had not been active in the effort to get rid of Lawrence as principal and that according to his affidavit given under date of April 6, 1979, he in part states, “I have taken no part in the recent activities or controversies surrounding Mr. Lawrence.” The Court simply declines to draw the inference suggested by the Plaintiff that Lawrence knew of Abston’s participation and, therefore, got rid of him as a result.
The Superintendent recommended the nonrenewal of Abston’s contract to the Board without reason and the Board accepted his recommendation without reasons being stated. This is verified by the minutes of the May 21,1979, Board meeting at which personnel decisions affecting the entire system were made. Perhaps more enlightening to the Court was the fact that the school trustees had met on three (3) occasions during Abston’s last year, 1978-79, and that on the occasion of the second meeting, Lawrence informed them of his decision to recommend the nonrenewal of Abston’s contract. (See § 16-10-1 et seq. 1975 Code of Alabama.) It is clear that at least as early as this meeting, the trustees were in agreement with Lawrence that Abston’s contract not be renewed. It is also clear that this meeting occurred before any of the public criticism and efforts to get rid of Lawrence had surfaced.
The Court having found that Abston has failed to meet his burden of proof, it would be unnecessary to inquire into the reasons for the Board’s action in not renewing his contract. For the Court to do otherwise would call for it to merely speculate as to whether the action of Lawrence, through the Board, was in retaliation for Abston’s exercise of his constitutional rights. This the Court feels is neither compelled nor warranted by the evidence presented.

It is clear that the trial court was aware of the applicable law in cases involving due process claims of non-tenured teachers; therefore, the only question is whether the trial judge erroneously applied that law to the facts of this case.

The appellee asks us to focus our attention on the premise that Abston, as the trial judge concluded, failed to meet his burden of proof. Viewing the evidence in a vacuum, one could conclude, as did the trial judge, that neither principal Lawrence nor the school board knew of Abston’s activities involving the “gate receipts” matter, but we do not sit in a vacuum. We have read the whole record and we are convinced that from the evidence presented, it is not mere speculation to conclude from the direct and circumstantial evidence that Lawrence must have known that Abston was connected with the effort to get him fired. In any event, there was direct evidence that the board knew of Abston’s involvement, at least as early as when the Abston affidavit was filed with the board by the “Concerned Citizens of Reform School District.” The aim of this group was to fire the principal and keep the coach.

Based on the foregoing, we cannot but conclude that Abston, at least minimally, met the standard of showing that Lawrence’s recommendation for his nonrenewal was based upon Abston’s efforts in the gate receipts matter. The evidence here is certainly as compelling as that found sufficient in Lindsey v. Board of Regents of University System of Georgia, 607 F.2d 672 (5th Cir. 1979), to show the existence of a constitutional right to freedom of speech. This Court’s case of Foster v. Blount County Board of Education, 340 So.2d 751 (Ala. 1976), cited by the trial judge, is not to the contrary. There, this Court, without applying any presumption of correctness to the trial court’s findings, reviewed the whole record and concluded that the trial judge was correct in finding that the teacher had failed to meet her burden of proof. Also, there, the school board, at trial, gave the reason for its decision to nonrenew, something the school board did not do in this case. In Foster, Justice Shores, writing for the Court, stated:

Under the Alabama law, it is not disputed that a nontenured teacher has no right, statutory or otherwise, to be re-employed. However, the nonrenewal of a teacher’s contract may entitle him to procedural due process if the reasons for the nonrenewal stigmatize him, or injure his prospects for future employment. It is also conceded that the Alabama statute do not require the boards of education to state reasons for the nonrenewal of a nontenured teacher’s contract of employment. Of course, the failure to renew one’s contract cannot be predicated on the exercise by that person of his constitutional rights. Perry v. Sindermann, 408 U. S. 593, 92 S.Ct. 2694, 33 L.Ed.2d 570 (1972).
The Supreme Court of the United States held in Board of Regents of State Colleges v. Roth, 408 U.S. 564, 92 S.Ct. 2071, 33 L.Ed.2d 548 (1972), that the Constitution does not require an opportunity for a hearing before the renewal of a nontenured teacher’s contract, unless the teacher can show that the decision not to renew deprived him of an interest in “liberty” or that he had a “property” interest in continued employment.
In the instant case, Mrs. Foster has failed to prove any facts which would bring her within the protective shield of Sindermann or Roth. The record shows only that she requested a maternity leave; that this request was not passed on to the board of education, but that instead the superintendent of education recommended that the employment contract of Mrs. Foster, a nontenured teacher, not be renewed. The Board unanimously agreed that her contract would not be renewed. No reason was assigned, and no reason was stated in the statutory notice which was sent to her, informing her that her contract would not be renewed. The reason given at the trial of this case was excessive absences. Mrs. Foster did not testify and, therefore, did not refute the charge of excessive absences.

In Foster, this Court found support for the trial court’s determination that Foster had failed to sustain her burden. We cannot find in this record the same support for the trial judge’s legal conclusion that Ab-ston failed to sustain his burden of proof.

Since the trial judge based his denial of relief upon the principle that Abston failed to meet his burden of proof, and since we find that there was sufficient evidence to show that his nonrenewal may have been based on his having exercised his constitutional right of freedom of expression, we hold that Abston is entitled to have the Board show that the reason for his nonre-newal, at the time the decisions were made, was not based upon his exercise of freedom of speech; therefore, the judgment is due to be reversed and the cause remanded. Pickering v. Board of Education, 391 U. S. 563, 88 S.Ct. 1731, 20 L.Ed.2d 811 (1968).

The question to be answered in this case on remand is: Would the Board have reached the same decision in Abston’s case absent its knowledge, if any, of Abston’s involvement in the “gate receipts” matter, or in the attempt to get Lawrence fired? Mount Healthy City School District Board of Education v. Doyle, 429 U. S. 274, 97 S.Ct. 568, 50 L.Ed.2d 471 (1977).

REVERSED AND REMANDED.

All the Justices concur.


author: SHORES, Justice.

text:
    Irene Davis JACKSON v. Alton DAVIS et al.
    No. 79-805.
    Supreme Court of Alabama.
    April 24, 1981.
    William J. Underwood, Tuscumbia, for appellant.
    James L. Marks of Hewlett & Black, Muscle Shoals, for appellees.
   SHORES, Justice.

This is an appeal by defendant Irene Davis Jackson from a judgment entered on a jury verdict in favor of the plaintiffs Alton Davis and Marion Davis Abbott in an action contesting the will of Clyde Davis. The jury found Irene Jackson, the decedent’s sister, to have exerted undue influence on the decedent to procure the will in her favor. Plaintiffs were decedent’s brother and alleged daughter. We reverse and remand.

The decedent had been living with his brother, Alton, until early July, 1978, when he moved in with his sister, Irene. He had his will drafted by a lawyer and signed it on August 16, 1978. He died from cancer on August 25, 1978. The will was admitted to probate on October 21, 1978.

The will named Irene Davis Jackson as executrix and made specific gifts of money or real property to the seven children and grandchildren of Irene and Louis Jackson; to a neighbor, Henrietta Jackson; to the World Wide Church of God; and to Irene and Louis Jackson. Irene and Louis Jackson were the residuary legatees. The will did not mention Alton Davis or Marion Davis Abbott.

On April 17, 1979, the contestants filed a complaint against the eleven legatees under the 1978 will, charging insufficient execution, lack of mental or testamentary capacity of the testator, and undue influence by Irene Jackson, Mattie and Charles Penn (daughter and son-in-law of Irene and Louis Jackson), and by the World Wide Church of God. The court directed a verdict for all the proponents of the will except Irene Davis Jackson, and the contestants voluntarily dismissed their charges of insufficient execution and lack of capacity of the testator. Thus, the only issue for the jury was whether Irene Jackson exerted undue influence over the testator.

In her appeal, Mrs. Davis contends that the court erred in. denying her motion for a directed verdict, as there was not a scintilla of evidence to support a jury verdict of undue influence. The record is devoid of any facts establishing proof of undue influence on the part of Mrs. Irene Jackson. The evidence concerning her conduct consisted of the following:

The testator moved from his brother, Alton’s, house to that of his sister, Irene, and her husband, Louis Jackson, in early July, 1978. In mid-July, he purchased fifteen acres of land, which later was subject to his will. Mrs. Jackson cared for her brother, buying food, cooking, and feeding him. She washed for him and tended to his needs. She arranged for his transportation when necessary. He was increasingly thin and weakened by lung cancer. She had said that he was just like a baby. There is testimony that his weakness was physical and not mental, that he knew what he wanted and was determined to get it, and that his mind was “clear” and “very good” at the time he drafted and executed his will.

Mrs. Jackson testified that she went to Detroit to see her children for a three-day trip. She said that before she left, the testator had said that he was going to write a new will and wanted to dictate it. She said that she could not transcribe it for him due to her arthritis and suggested that he ask her daughter, Mattie Penn. He did so while she was in Detroit. He then took the rough draft or notes to an attorney, Mr. Don Wassner, who, after extensive conferences with the testator, drafted a final will. Mr. Wassner testified that the testator was very determined and firm in how he wanted his will to be drafted, that he was alone with Mr. Wassner at the conferences, and that he was not forced, pressured or otherwise unduly influenced by Mrs. Jackson or others in the terms of his will. Mrs. Jackson and Charles Penn accompanied the testator to Mr. Wassner’s office and were present at the execution. Although there was testimony that they read the will together and that he asked her for the correct spelling of a name, Mr. Wassner testified that Mrs. Jackson never otherwise discussed the terms or provisions of the will with the testator in his office.

Mrs. Jackson testified that the testator had told her that he intended to rewrite his will in her favor from gratitude for her willingness to care for him during his illness, that the only suggestion that she had made to him about his will was that he leave something to his brothers, and that his response was that she could not tell him what to do with his money.

The widow of the testator’s deceased brother, Charlie, Mrs. Ella Mae Davis, testified that, during a visit at the Jacksons’ home during the summer of 1978, she heard Mrs. Jackson ask the testator whether he was “going to do what he said he was going to do,” whereupon he said yes, collected some unidentified papers, and went out with Charles Penn. Mrs. Davis did not know what papers were involved nor where the two men were going.

The foregoing does not constitute sufficient evidence of undue influence. Indeed, there was no evidence whatsoever that Mrs. Jackson pressured the testator, threatened him with abandonment, or in any way at any time forced or otherwise unduly influenced him to write his will in her favor.

This Court has recently held no undue influence on a set of facts which far more seriously indicated potential undue influence than do the facts in the present case. In that case, Pruitt v. Pruitt, 343 So.2d 495 (Ala.1977), we stated the following:

Our cases have consistently held that when undue influence is asserted in a will contest, the contestant has the burden, in order to raise a presumption of undue influence, to prove a dominant confidential relationship and undue activity in the execution of the will by or for a favored beneficiary. Wilson v. Payton, 251 Ala. 411, 37 So.2d 499 (1948), citing Hyde v. Norris, 250 Ala. 518, 35 So.2d 181 (1948). In other words, evidence must establish: (1) a confidential relationship between a favored beneficiary and testator; (2) that the influence of or for the beneficiary was dominant and controlling in that relationship; and (3) undue activity on the part of the dominant party in procuring the execution of the will. Wilson v. Payton, supra; Alexander v. Alexander, 208 Ala. 291, 94 So. 53 (1922).
A confidential relationship may spring from “those multiform positions in life wherein one comes to rely upon and trust another in his important affairs.” Raney v. Raney, 216 Ala. 30, 34, 112 So. 313, 316 (1927).
Whether the beneficiary, or one acting for him, was the dominant party in the relationship between the two is usually a question of fact, but in any case there must be some evidence of controlling influence over the testator’s purposes by the other. Little v. Sugg, 243 Ala. 196, 8 So.2d 866 (1942); Kilgore v. Atkinson, 227 Ala. 310, 149 So. 808 (1933).
A “favored beneficiary” has been held to be:
[o]ne who, in the circumstances of the particular case, has been favored over others having equal claim to the testator’s bounty. An unnatural discrimination, leading to a natural inference that advantage has been taken by one in position so to do; and shown to have been busy in getting such will executed. Cook v. Morton, 241 Ala. 188, 1 So.2d 890 (1941).
These elements of the presumption go far, of course, in proving the principal charge of undue influence which has been defined in Locke v. Sparks, 263 Ala. 137, 140, 81 So.2d 670, 673 (1955):
Undue influence, must be such as, in some measure, destroys the free agency of the testator, and prevents the exercise of that discretion which the law requires a party should possess as essential to a valid testamentary disposition of his property.
And it must be kept in mind that not all influence is undue; any influence resulting from sympathy and affection only is not disfavored. See Abrams v. Abrams, 225 Ala. 622, 144 So. 828 (1932).

343 So.2d at 499.

In the instant case, even assuming that there was a scintilla of evidence of a confidential relationship between Mrs. Jackson and the testator and that Mrs. Jackson was the dominant party in that relationship, there is no evidence that she unduly influenced the testator in drafting his will. Mrs. Jackson’s observation of the will’s execution and her answer to testator’s request for a minor spelling correction does not constitute undue influence as there is no evidence that her presence tended to destroy the testator’s free agency, nor does the fact that she lived in the same house with the testator while the will was being drafted and executed. “While this may have presented an opportunity to exercise influence, there is no showing of any activity on the part of [Mrs. Jackson] nor of undue influence per se,” Arrington v. Working Woman’s Home, 368 So.2d 851, 854 (Ala. 1979) (emphasis original).

Mrs. Davis’s testimony concerning the testator’s unidentified papers does not constitute evidence of nor give rise to a reasonable inference of undue influence, nor does the evidence as a totality present more than suspicion and speculation that undue influence may have been present. The scintilla rule is not satisfied by speculation. Evidence to support undue influence must provide at least a reasonable inference rather than mere suspicion. Arrington v. Working Woman’s Home, supra, 368 So.2d at 854; Rota v. Combs, 267 Ala. 50, 99 So.2d 692 (1957); Locke v. Sparks, 263 Ala. 137, 81 So.2d 670 (1955). Under Rule 50(e), Alabama Rules of Civil Procedure, a directed verdict is proper where there is not a “scintilla in support of the theory of the complaint,” Dixie Electric Company v. Maggio, 294 Ala. 411, 318 So.2d 274, 276 (1975), and there is a complete absence of proof on an issue material to the claim. Deal v. Johnson, 362 So.2d 214, 218 (Ala.1978). In the present case, viewing the evidence and all reasonable inferences in the light most favorable to the nonmovant, Alabama Power Company v. Taylor, 293 Ala. 484, 306 So.2d 236 (1975), we hold that there is not a scintilla in support of a claim of undue influence by Mrs. Jackson. See, Reed v. Walters [1981] 396 So.2d 83 (Ala.1981).

The circuit court had jurisdiction under § 43-1-79 of the Alabama Code of 1975, which permits an interested party to contest the validity of a will by filing a complaint within six months of probate in the circuit court of the county in which the will was probated. The instant complaint was properly and timely filed, the contestants were clearly interested parties, and the Colbert County Circuit Court properly had jurisdiction over this matter.

As we have concluded that the trial court had jurisdiction and that the case must be reversed for the trial court’s denial of defendant-proponent’s motion for a directed verdict, we have not addressed other points raised on appeal.

REVERSED AND REMANDED.

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


author: BEATTY, Justice. JONES, Justice

text:
    Lola EASON v. Wanda MIDDLETON.
    79-815.
    Supreme Court of Alabama.
    April 24, 1981.

      Robert M, Shipman, Huntsville, for appellant.
    John 0. Cates of Ford, Caldwell, Ford & Payne, Huntsville, for appellee.
   BEATTY, Justice.

This is an appeal by the plaintiff, Lola Eason, from a summary judgment rendered against her. We affirm.

The plaintiff was admitted to Huntsville Hospital on or about January 1, 1976 for treatment of pneumonia. On the day she was admitted to the hospital a woman, whom Mrs. Eason believed to be a hospital employee, accompanied Mrs. Eason up the stairs and into her hospital room. Mrs. Eason never spoke to the woman and does not know the name of the woman, but while she stood next to her in the hospital room, the plaintiff fell and broke her hip. She contends that the lady standing beside her fell also, but that the lady was not holding on to the plaintiff when they fell.

The plaintiff filed a two-count complaint on December 28, 1976 naming Noble Thompson, as Director of the Huntsville Hospital, Wanda Middleton, the patient care assistant at Huntsville Hospital, and Dorothy Vizzier, a nurse in the hospital, and certain fictitious parties as defendants. Count I of the complaint alleged that the plaintiff was injured as a result of the defendants’ negligence while Count II charged the defendants with willful and wanton conduct.

In July 1977 the plaintiff amended her complaint by striking Wanda Middleton. In August 1977 the plaintiff amended her complaint to add Alvin Blackwell, James Sisson, Dr. Jack Batchelor, Dr. Henry Anderson, Sr., Dr. Gilbert Kinzer, David Byers and Erie Douglas as parties defendant after the plaintiff had ascertained that they were the fictitious parties referred to in her original complaint. On October 7, 1977 the plaintiff again amended her complaint to re-name Wanda Middleton as a defendant. This amendment also added a third count which alleged that the defendants were liable to the plaintiff because of a breach of their agreement to provide plaintiff with reasonable and proper care and treatment.

A motion for summary judgment, supported by affidavits, was filed on behalf of defendants Noble Thompson and Dorothy Vizzier. This motion was opposed by the plaintiff, but was granted by the trial court. Similarly, defendants Blackwell, Sisson, Batchelor, Anderson, Kinzer, Byers and Douglas filed a summary judgment motion. The plaintiff did not oppose it, and that motion for summary judgment was also granted. The granting of these two summary judgments has not been questioned on appeal.

On December 12, 1978 the defendant Wanda Middleton, the only remaining defendant in the case, filed a motion for summary judgment based on the pleadings and on a deposition of the plaintiff, Lola Eason. The plaintiff filed nothing in opposition to the motion. On May 16,1980 the trial court granted the motion. The plaintiff filed a motion for reconsideration of ruling on summary judgment which was overruled. The plaintiff then appealed.

The sole issue presented for review is whether the trial court was correct in entering summary judgment in favor of the defendant Wanda Middleton.

In Ray v. Montgomery, Ala., 399 So.2d 230 (1980) this Court stated:

Summary judgment shall be rendered if the pleadings, depositions, interrogatory answers, or affidavits submitted show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law. Rule 56(c), ARCP. The burden of proof is on the movant to establish the absence of any issue of a material fact. Donald v. City National Bank of Dothan, 295 Ala. 320, 329 So.2d 92 (1976).. . .

In the present case the defendant moved for a summary judgment and attached to her motion the plaintiff’s deposition and nothing else. The plaintiff’s deposition read in its relevant part:

Q Now, if I understand you, Mrs. Eason, you didn’t slip on anything?
A No.
Q You didn’t trip over anything?
A Huh-huh, no.
Q Wasn’t anything there in the floor? A Huh-huh.
Q You just kind of blacked out and fell? A That’s right.
Q And at the time you blacked out you weren’t holding on to this woman who was with you and she wasn’t holding on to you?
A Not as I remember but she was standing by me.
Q I said the complaint which you filed or which has been filed for you by your lawyer sets out that they [the hospital people] handled you there at the hospital in a negligent manner.
A Yeah.
Q Would you tell me please, ma’am, what you contend that they did or didn’t do that they should have done for you.
A They ain’t done nothing just carried me upstairs there. They put me to bed.
Q Was there anything at all wrong with the way they treated you?
A No, sir. They didn’t get to treat me no way because I had done fell. They always treat me nice when I go.
Q Did the hospital do anything at all there to cause you to fall?
A No.
Q Did that nurse or the lady there that was with you at the time you fell did she do anything to cause you to fall?
A No, sir.

Here the defendant-movant has negated each count levied against her through the deposition of the plaintiff. The plaintiff herself stated that she did not know of any negligent act that the hospital people did or didn’t do for her. In fact she did not know of anything wrong with the way she was treated at the hospital. Moreover, the plaintiff stated that the unknown lady did nothing to cause her to fall. Certainly these admissions negate any claim of negligence or any wanton act on the part of the defendant. Additionally the facts that the plaintiff has not communicated with the defendant and that the plaintiff did not know of anything wrong with the way she was treated show that the defendant could not have breached any agreement to provide the plaintiff with reasonable and proper care.

Additionally it should be noted that the defendant, Wanda Middleton, was named as a defendant in the original complaint. She was then dropped from the suit on a motion by the plaintiff. On October 7, 1977 the plaintiff again added Wanda Middleton’s name as a defendant. Since the plaintiff’s injury occurred on January 1, 1976, the defendant urges that the one-year statute of limitations on the negligence count had run prior to this re-addition of Wanda Middleton as a defendant. Although it is not clear under which theory the plaintiff sought to add Wanda Middleton as a defendant, we assume that she was being added by the fictitious party provision of Rule 9(h), ARCP, which reads as follows:

When a party is ignorant of the name of an opposing party and so alleges in his pleading, the opposing party may be designated by any name, and when his true name is discovered, the process and all pleadings and proceedings in the action may be amended by substituting the true name.

The fictitious party rule is intended to operate in emergency situations in which neither the name nor the identity of the defendant is known, as in the situation when the cause of action is known, but not the liable party, and when there is an urgent need to seize property or to attain service. Browning v. City of Gadsden, Ala., 359 So.2d 361 (1978); Hinton v. Hobbs, Ala., 349 So.2d 28 (1977). In this case it is clear that the name of Wanda Middleton was known to the plaintiff at the time of the filing of her original complaint because Middleton was named as a defendant therein. Clearly the plaintiff could not take advantage of the fictitious party rule to re-name Wanda Middleton as a defendant in a negligence claim at a time after the statute of limitations had run since she had been known to the plaintiff since the filing of the suit. Thus, the negligence claim against the defendant was also barred by the one-year statute of limitations.

Here the defendant, by attaching the deposition of the plaintiff, met her burden of establishing that there was no genuine issue of fact. The plaintiff offered nothing in response to the defendant’s summary judgment motion. This Court has repeatedly noted that when in a summary judgment case the moving party has met its burden, the opposing party may not rest on the mere allegations or denials in the original pleadings but must set forth, by affidavit or otherwise, sufficient facts showing a genuine issue for trial. E. g., Howard v. Jordan, Ala., 390 So.2d 1053 (1980); Powell v. South Central Bell Telephone Co., Ala., 361 So.2d 103 (1978); Rule 56(e), ARCP.

This Court recognized an exception to the rule in Donald v. City National Bank of Dothan, 295 Ala. 320, 329 So.2d 92 (1976), where the deposition of the plaintiff was introduced by the defendant in support of a summary judgment motion. There we said:

If there is testimony in his [the plaintiff’s] deposition which would contradict the facts as set out in the other testimony, then the failure of the plaintiff to offer counteraffidavits or testimony would be of no consequence since repetition of the same facts in a counteraffi-davit would be a useless act. Powell v. United States Steel Corp., 305 F.Supp. 645 (S.D.W.Va.1969).

This case is distinguishable from Donald, supra, however, since here the deposition of the plaintiff was the only testimony submitted by either party; thus it could not have contradicted the facts set out in any other testimony.

As this Court said in Whatley v. Cardinal Pest Control, Ala., 388 So.2d 529 (1980), “In the event the opposing party fails to offer any evidence to contradict that presented by the moving party, the court is left with no alternative but to consider that evidence uncontroverted.” Thus since the defendant met her burden of proving that no genuine issue of fact existed, and since the plaintiff offered no evidence in opposition to the defendant’s motion, the summary motion was properly granted.

Let the judgment be affirmed.

AFFIRMED.

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

JONES, J., concurs in the result.

JONES, Justice

(Concurring in the result).

I concur in the result because summary judgment was proper on the ground that the only theories presented in the complaint are each barred on a claim in tort. The amendment, which purported to add a count for breach of contract, averred merely that Defendant agreed to provide Plaintiff with reasonable and proper care and treatment. The breach of an implied agreement to provide due and reasonable care is a tort claim only and will not support an action sounding in contract; and this for the reason that the “reasonable care” allegation sets forth the precise standard imposed by law, the breach of which is a tort, whereby a claim based upon a breach of contract must specify the terms of the contract alleged to have been breached. Therefore, because the one-year statute of limitation applies to each asserted remedy in Plaintiff’s statement of her claim, and, because the only remaining Defendant, Wanda Middleton, was added more than one year after the accrual of Plaintiff’s alleged cause of action, Plaintiff’s claims are barred.

      . Garig v. East End Memorial Hospital, 279 Ala. 118, 182 So.2d 852 (1966). See, also, Holcomb v. Escambia County Hospital Board, 291 Ala. 114, 278 So.2d 699 (1973), and Hall v. City of Huntsville, 291 Ala. 124, 278 So.2d 708 (1973).


author: PER CURIAM.

text:
    GADSDEN MOTEL COMPANY, d/b/a Ramada Inn, et al. v. CITY OF ATTALLA, a Municipal Corporation.
    79-917.
    Supreme Court of Alabama.
    April 24, 1981.
    James F. Hinton, Gadsden, for appellants.
    Clarence F. Rhea of Rhea, Boyd & Rhea, Gadsden, for appellee.
   PER CURIAM.

Affirmed on the authority of Dunbar-Stanley Studios, Inc. v. Alabama, 393 U.S. 537, 89 S.Ct. 757, 21 L.Ed.2d 759 (1969); Mobile Battle House v. City of Mobile, 262 Ala. 270, 78 So.2d 642 (1955); and Code 1975, § 11-51-90.

AFFIRMED.

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


author: JONES, Justice.

text:
    RETAIL, WHOLESALE AND DEPARTMENT STORE EMPLOYEES UNION, LOCAL 453 v. Fred McGRIFF.
    No. 79-935.
    Supreme Court of Alabama.
    April 24, 1981.

      Clarence F. Rhea of Rhea, Boyd & Rhea, Gadsden, for appellant.
    Gary F. Burns and Stephen Harrison of Burns, Shumaker & Davis, Gadsden, for appellee.
   JONES, Justice.

Plaintiff-Appellee, Fred McGriff, worked for American Bakeries Company, Inc., from December of 1959 until April of 1970, when he was injured during the course of his employment. Thereafter, he was paid workmen’s compensation benefits for approximately six years by his employer’s workmen’s compensation carrier. McGriff remained on American Bakeries’ payroll until 1975, receiving one annual vacation pay check for each of the years from 1971 through 1975.

Appellant-Union and American Bakeries Company, Inc., had in effect a pension plan for American Bakeries’ employees. Pursuant to the terms of this agreement, a minimum of 15 years “pension credit” was required for an employee to be eligible for a deferred disability pension at age 55. At the time of his injury, Plaintiff had accumulated eight years of “pension credit.”

In the early part of 1973, Plaintiff, for the first time, sought information from the union lawyer concerning his eligibility for retirement benefits. By subsequent correspondence dated January 20, 1973, officials of the union’s Health and Welfare Fund informed the union lawyer that no payments had been made into the pension fund on Plaintiff’s behalf since April of 1970. This information, along with a copy of the letter from the Health and Welfare Fund, was then forwarded to the Plaintiff by the corresponding lawyer in a letter dated January 24, 1973.

In 1975, Plaintiff was informed by a physician that he would never be able to return to work. Plaintiff first filed claim for his pension in June, 1976, alleging breach of contract. This action was thereafter dismissed without prejudice.

In April of 1978, Plaintiff again brought suit, alleging breach of contract in Appellant’s failure to award him disability compensation. On December 12,1979, Plaintiff amended his complaint by adding a count for fraud. Plaintiff’s contentions were that he was told by both the plant manager and the union steward he would receive a pension at age 55 if he “stayed on the payroll” for 15 years and joined the union. As a result of these representations, Plaintiff alleged that he accepted employment with American Bakeries and joined the union.

On June 13, 1980, a jury returned a verdict for the Plaintiff and against Appellant-Union for $16,641.50. American Bakeries Company, Inc., originally a defendant, was exonerated from any liability by the same verdict.

Appellant instituted this appeal, claiming, inter alia, that the trial court erred in failing to grant its motion for a directed verdict. Such contention is premised upon grounds that Plaintiff’s action is barred by the one-year statute of limitations (Code 1975, § 6-2-3) applicable to actions sounding in fraud.

Our careful review of the record establishes conclusively that Plaintiff’s action was commenced beyond the applicable one-year limitations period. Consequently, we reverse.

Despite numerous contentions raised by Appellant for consideration on this appeal, we pretermit discussion thereof save as to the issue of the timeliness of Appellee’s claims under the applicable statute of limitations, Code 1975, § 6-2-3.

I. STATUTE OF LIMITATIONS FOR FRAUD

Code 1975, § 6-2-3, reads as follows:

In actions seeking relief on the ground of fraud where the statute has created a bar, the claim must not be considered as having accrued until the discovery by the aggrieved party of the fact constituting the fraud, after which he must have one year within which to prosecute his action. (Emphasis added.)

Facts constituting fraud are deemed discovered when they should have been discovered for the purpose of determining whether an action therefor is barred. Walden v. Walden, 268 Ala. 145, 105 So.2d 105 (1958). See, also, Standard Oil Co. v. Johnson, 276 Ala. 578, 165 So.2d 361 (1964).

In January of 1973, Plaintiff received a letter from the union lawyer, Clarence F. Rhea, concerning his inquiries about eligibility for pension payments. Enclosed therein was a copy of a letter received by Mr. Rhea from the administrator of the union’s Health and Welfare Fund, which reads in part:

“In answer to your letter of January 16th I call to [your] attention the current collective bargaining agreement between Flowers Baking Company and the RWDSU Pension and Welfare Fund. This agreement calls for the employer to make contributions on behalf of all employees covered by the agreement, these contributions are to be paid to the Fund on behalf of each employee for time worked. Our records indicate that no payment has been made by Merita Bakery or Flowers Baking Co. for Mr. McGriff since April, 1970.”

Mr. Rhea’s January 24,1973, letter to Mr. McGriff, enclosing the letter from the Health and Welfare Fund, reads in part:

“We have a letter dated January 20, 1973, from the Administrator of the RWDSU Industry, Health and Welfare Fund stating that Flowers Baking Company has made no payments or contributions for you since April, 1970.
“It may be that the parties did not contemplaté this situation when the contract was negotiated. If it was intended by the parties that persons receiving Workmen’s Compensation benefits not only continue to be employees but were to be entitled to have employer contributions made, then this may be a matter that will address itself to the grievance procedure. At all events you probably should talk to your union officials about it.”

Our principal inquiry, and one which we answer in the affirmative, is whether these letters constituted notice to Plaintiff that pension benefits to him would not be forthcoming. Stated another way, did Plaintiff first learn of facts, which he now alleges constituted fraud, in January of 1973?

When Plaintiff first learned that Defendant did not intend to perform as represented, the statute began to run. Fugua v. Barbe, 376 So.2d 202 (Ala.Civ.App.1979), cert. den. 376 So.2d 205 (Ala.1979). Consequently, appellee’s cause of action first accrued when he received the letters above set forth, representing Appellant’s position vis-a-vis Appellee’s right to a pension. From that date, January 24, 1973, Plaintiff had one year within which to file his cause of action bottomed on allegations of fraud by Appellant’s officers.

It is important to note that the amendment adding the claim for fraud is not the problem. The “relation back” doctrine under ARCP 15(c) is fully applicable and would preserve the claim, for statute of limitations purposes, if the original complaint to which the fraud amendment was added were timely filed.

Rather, the problem is two-fold:

1) The correspondence to Mr. McGriff in January, 1973, in clear and unequivocal language, stated the union’s position, denying coverage under the pension provision of the collective bargaining agreement. No reasonable contrary inference could be drawn by the fact finder other than the single conclusion that Plaintiff knew, or should have known, that the union did not intend to credit him with any years for pension purposes beyond the eight years during which the employer made contributions on his behalf into the pension fund. Assuming, without deciding, that the union steward’s representation, was an erroneous and incomplete description of the pension terms, constituting actionable fraud, we find that its falsity was made known to Plaintiff by way of the January, 1973, correspondence.

2) Plaintiff’s complaint, to which the fraud claim was added by amendment, was filed in April, 1978, far beyond the one year after discovery period allowed by § 6-2-3.

Moreover, assuming, as Appellee’s counsel insists, that Mr. McGriff’s inability to read and write presented a jury question concerning the knowledge of the fraud issue, we are nonetheless bound by the conclusiveness of his own undisputed testimony:

“Q So, you didn’t fill out an application that day, but you did go see somebody and asked about retirement in ’75 after Gilbreath told you you couldn’t work anymore?
“A Uh-huh.
“Q Who was that person you talked to? Wasn’t it somebody with the Company first?
“A Yeah.
“Q What was his name?
“A I don’t know.
“Q Was he in the office up there?
“A Yeah.
“Q Didn’t he tell you to go see the Union about it or something?
“A Yeah.
“Q Did he tell you anything different from that?
“A No.
“Q In ’75, or soon thereafter, you went down and saw J. 0., didn’t you, J. 0. Parker?
“A Yeah.
“Q Who was, at that time, working for the Union here in Gadsden?
“A Yeah.
“Q Didn’t you tell J. 0. Parker at that time you wanted your retirement?
“A Yeah.
“Q And tell us what he said.
“A He said, “You ain’t got no retirement.”
“Q That was in ’75?
“A Yeah.”

We have painstakingly reviewed the proof of record; and we find no evidence which would warrant the fact finder to infer that Mr. McGriff first discovered the alleged misrepresentation within the twelve-month period next preceding the filing of the instant suit. Accordingly, the judgment is reversed and the cause is rendered.

REVERSED AND RENDERED.

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

      . Contributions by American Bakeries Co., Inc., were made into the pension fund on behalf of its employees who worked a minimum of 21 hours per week. For an employee to receive a year of “pension credit” necessitated that contributions be made into the fund on his behalf at least 27 weeks in a calendar year.

      . Relevant portions of both letters are set forth below in the opinion.

      . The jury’s award was solely compensatory in nature. The record is devoid of allegations by either party concerning the issue of punitive damages.


author: TORBERT, Chief Justice.

text:
    Oscar HELMS and Martha Helms v. Ida TULLIS and Elizabeth Ray Tullis.
    No. 80-1.
    Supreme Court of Alabama.
    April 24, 1981.

      Loma B. Beaty, Fort Payne, for appellants.
    Lee Clyde Traylor of Traylor & McGee, Fort Payne, for appellees.
   TORBERT, Chief Justice.

Appellants, Oscar and Martha Helms, are the owners of a forty-acre tract of land in DeKalb County, described as the NE Vi of the SE Vi, Section 10, Township 7, Range 8, which they purchased in 1977 from Appel-lees Ida and Elizabeth Tullis. Between the land owned by the Helmses and the nearest public road, Highway 35, there is a one-acre lot located in the SE Vi of the SE Vi of Section 10, owned by the Tullises. The Helmses moved a house trailer onto their 40-acre tract, and sought to have electrical service furnished to their trailer by way of a power line to be run from the road over the one-acre tract owned by the Tullises. To accomplish this, Oscar Helms told a representative of the Sand Mountain Electric Cooperative that he owned the land all the way to the road. Relying on this representation, employees of the electric cooperative cut approximately twenty trees from the land owned by the Tullises in preparation for the power line to be run to the Helmses’ trailer. When the Tullises became aware that trees were being cut on their land without their permission, they ordered the electric cooperative’s employees to cease. The Helmses filed suit to enjoin the Tullises from further interference with the service of electrical power to the Helmses’ property, and for damages. The trial court denied the injunction on the basis that Oscar Helms came into court with “unclean hands,” since he precipitated the problem when he represented to the Sand Mountain Electric Cooperative that his land extended to the road. The Helmses now appeal that holding.

One of the time honored maxims of equity is that “He who comes into equity must come with clean hands.” Anders v. Sandlin, 191 Ala. 158, 67 So. 684 (1914). Since the application of the clean hands doctrine is a matter peculiarly within the discretion of the trial court, Carter v. Carter, 282 Ala. 239, 210 So.2d 800 (1968), we ordinarily would not disturb a trial court’s holding based on the maxim. However, the doctrine should not be applied if its application would prevent relief as to other parties in interest to whom the maxim has no application. Steele v. Crute, 208 Ala. 2, 93 So. 694 (1922). In the present case, the trial court ruled against the Helmses based on Mr. Helms’s unclean hands. Mrs. Helms, however, was a co-plaintiff in the suit. There was no evidence whatsoever of any wrongdoing on her part. She, therefore, was a party in interest to whom the maxim had no application, and the trial judge should not have ruled against her on that basis. See, Steele v. Crute, 208 Ala. 2, 93 So. 694 (1922).

The trial court, however, is not due to be reversed. The judgment on the basis of unclean hands is due to be affirmed as to Mr. Helms, due to his wrongful conduct. We have read the record to determine if the trial court was warranted in also holding against Mrs. Helms. We find that the judgment is correct as to Mrs. Helms also, since the plaintiffs are not entitled to the injunction sought under any circumstance. The only possible theory upon which they would be entitled to restrain an adjoining landowner from preventing the cutting of trees from the landowner’s own property would be that an easement existed across adjoining lot for the purpose of running a power line. See, Oates v. Town of Headland, 154 Ala. 503, 45 So. 910 (1908); Restatement of the Law of Property § 450 (1944). The record shows conclusively that the Helmses possessed no such easement.

There are several ways by which an easement may be acquired. These are: (1) by express conveyance, (2) by reservation or exception, (3) by implication, (4) by necessity, (5) by prescription, (6) by contract, and (7) by reference to boundaries or maps. See, R. Powell, Powell on Real Property ¶¶ 407-13 (abr. ed. 1968). An examination of the facts in the case before us fails to show that an easement was created under any theory.

The Helmses do not claim, nor did they seek to prove at trial, that an easement was created across the one-acre tract owned by the Tullises by conveyance, by reservation, by prescription, by contract or by reference to boundaries or maps. We will therefore not consider these methods of creating easements in our discussion.

The only remaining possible ways an easement could have been created in the case before us are by necessity and by implication. Creation by necessity is actually a form of creation by implication, but is treated separately by some authors. See R. Powell, Powell on Real Property ¶¶ 410-11 (abr. ed. 1968). See also II American Law of Property §§ 8.31-.43 (A. Casner ed. 1952); Restatement of the Law of Property §§ 474-76 (1944).

The rationale for allowing an easement by necessity is that public policy demands that land not be rendered unusable. R. Powell, supra, ¶ 410. Under Alabama law, however, there must be a genuine necessity; mere convenience is not enough. Benedict v. Little, 288 Ala. 638, 264 So.2d 491 (1972); Roberts v. Monroe, 261 Ala. 569, 75 So.2d 492 (1954); Birmingham Trust & Savings Co. v. Mason, 222 Ala. 38, 130 So. 559 (1930). The burden is on the one seeking to establish the easement to prove the easement is “reasonably necessary for the enjoyment” of the land. Roberts v. Monroe, 261 Ala. 569, 75 So.2d 492 (1954). Easements by necessity almost always involve access roads across the ser-vient tenement connecting the dominant tenement to a public road or highway. See, Kirkland v. Kirkland, 281 Ala. 42, 198 So.2d 771 (1967); Greenwood v. West, 171 Ala. 463, 54 So. 694 (1911); Trump v. McDonnell, 120 Ala. 200, 24 So. 353 (1898). Original unity of ownership of the dominant and servient tenements is always required for an easement by necessity. Crawford v. Tucker, 258 Ala. 658, 64 So.2d 411 (1953).

Easements created by implication cover a variety of types of easements. Creation by this method requires not only original unity of ownership, Brewer v. Avinger, 208 Ala. 411, 94 So. 590 (1922), but also that the use be open, visible, continuous, and reasonably necessary to the estate granted. Birmingham Trust & Savings Co. v. Mason, 222 Ala. 38, 130 So. 559 (1930); Walker v. Clifford, 128 Ala. 67, 29 So. 588 (1901). The implication is that the parties implied such an easement because the grantee, having seen the use the grantor made of the property, can reasonably expect a continuance of the former manner of use. R. Powell, supra, ¶ 411.

In the present case there is no easement created by either necessity or implication. The Helmses failed to show that there was no other route by which a power line could be brought to their property. Thus, there was no necessity. Furthermore, electrical service was not shown to be necessary to the reasonable enjoyment of the property, although it was shown to be necessary to one use of the property, /. e., as a site for a residence. There was no easement created by implication, since there had never been a power line run over that strip of land; thus there was no open, visible and continuous use.

Although the trial court erred in ruling against Mrs. Helms on the ground of unclean hands, the error was harmless, since Mrs. Helms failed to show any basis for recovery. The judgment of the trial court is therefore affirmed.

AFFIRMED.

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


text:
    Mrs. Willie Mae OUTLING v. Mrs. Susie Mae YOUNG; The Guardian Life Insurance Company of America.
    No. 80-15.
    Supreme Court of Alabama.
    April 24, 1981.
    Willie Mae Outling, pro se.
    Susan B. Mitchell of Sirote, Permutt, Friend, Friedman, Held & Apolinsky, Birmingham, for appellee Susie Mae Young.
    Ralph B. Tate of Spain, Gillon, Riley, Tate & Etheredge, Birmingham, for appel-lee The Guardian Life Insurance Company of America.
   SHORES, Justice.

This is an appeal by plaintiff Willie Mae Outling, acting pro se and though an “agent,” Charles Walker, from a final judgment entered in favor of defendant Susie Mae Young in a case concerning entitlement to $20,000 in life insurance proceeds from a policy taken out by James Andrew Outling, plaintiff’s deceased husband, with defendant Young as named beneficiary. We affirm.

In its judgment of July 8, 1980, the court made the following findings of fact and conclusions of law:

The Plaintiff, who is alleged to be the widow of James Andrew Outling, claims of Guardian Life Insurance Company of America the proceeds of employee group life insurance benefits payable on the life of Mr. Outling as a result of his employment with the Birmingham-Jefferson Civic Center Authority. Mr. Outling died on or about November 15, 1979. These benefits in the amount of $20,000 have been interpleaded into court by Guardian Life and have been deposited at interest pending adjudication. Susie Mae Young was designated by Mr. Outling as beneficiary of his insurance benefits on the group insurance enrollment and record card of the company with the designation of “aunt.” It is undisputed that Ms. Young was not an aunt of the deceased but was, instead, his girl friend.
Because of the nature of the controversy, the Court appointed an Administrator Ad Litem to represent the interests of the estate of Mr. Outling.
The Plaintiff (widow) contends that because she and her children are the natural objects of the bounty of the deceased and that Ms. Young was not a relative of the deceased, she, the widow, is entitled to the insurance proceeds and that the beneficiary designation of Ms. Young by Mr. Outling is illegal and ineffective. The Plaintiff contends that pursuant to the statutes of this State, she is entitled to the insurance proceeds as being the personal estate of Mr. Outling.
Upon consideration of the matters presented, the Court finds that there is no genuine issue presented as to any material fact and that the movant, Susie Mae Young, is entitled to a judgment as a matter of law; and, further, that the claim of the Plaintiff, Willie Mae Green Outling, is due to be denied. Rule 56, Alabama Rules of Civil Procedure.
The existence of group life insurance benefits payable on the life of James A. Outling as a deceased employee of the Birmingham-Jefferson Civic Center Authority due from Guardian Life in the amount of $20,000 is not disputed and is, in fact, conceded by all parties. It is further undisputed that Susie Mae Young was designated by Mr. Outling on the records of the Civic Center and Guardian Life as the beneficiary of such insurance. There has been no evidence presented to support any possible theory that the beneficiary designation by Mr. Outling was the product of fraud, incompetency or undue influence.
The policy provisions of the insurance involved here do not restrict the person or class of persons who may be named as beneficiary nor do the statutes of this State require such restriction. Thus, the public policy contentions of the Plaintiff are not supported by the facts or the applicable law. Mathews v. Stroud, 239 Ala. 687, 196 So. 885.
Furthermore, the description of Ms. Young as an “aunt” of the insured is immaterial. This misdescription is declared by statute to be a representation and not a warranty and has no effect on the claim of the Plaintiff or the entitlement of Ms. Young to receive the insurance proceeds. § 27-18-5, Code of Alabama 1975. Also, see 44 Am.Jur.2d Insurance, §§ 1728-1730.

In its final judgment on August 27, 1980, the court ascertained and awarded appropriate fees and expenses for the defendants’ attorneys and the administrator ad litem to be paid out of the insurance proceeds, and taxed the costs of the action to plaintiff Outling. The court denied plaintiffs subsequent motions to release judgment, for rehearing, and to strike. Plaintiff appealed to this Court, contending that (1) the court erred in entering final judgment without notice to the plaintiff; (2) the court erred in holding that the insurance proceeds did not constitute the decedent’s personal estate and, therefore, could not pass by intestate share to plaintiff and decedent’s children; and (3) the court erred in holding that decedent rightfully named defendant Young as beneficiary and that there was no evidence of fraud.

Having considered the appellant’s first contentions, we hold that there is no indication in the record of any lack of notice to plaintiff of the judgment or hearings or lack of an opportunity to be heard at the hearings, in memoranda or by motion. Plaintiff was given ample opportunity to be heard, and there is no showing of any procedural error on the part of the trial court which in any way prejudiced the rights of the plaintiff.

Turning to the appellant’s second and third issues on appeal, we find no error in the court’s granting summary judgment to the defendant. The defendant sustained the burden of proving that there is no genuine issue of material fact and that she is entitled to a judgment as a matter of law, Alabama Rules of Civil Procedure, Rule 56; Ray v. Midfield Park, 293 Ala. 609, 308 So.2d 686 (1975).

Plaintiff labors under the misapprehension that because she was decedent’s lawful wife and the insurance policy was the only asset of value that he possessed, she is entitled to the proceeds of that policy. However, it is undisputed that decedent named defendant as beneficiary. The terms of the policy did not limit the decedent in his choice of beneficiary. In the definitions section of the policy, a beneficiary is defined merely as “the person designated by [the insured employee] as his beneficiary on a form furnished by ... the insurance company.” There is no limitation of the insured’s choice of beneficiary to his spouse or dependents. On its form, “Enrollment and Record Card,” the company required the insured to name a beneficiary and the relationship of that beneficiary to the insured and provided as an example, “Mary A. Jones — Wife.” Contrary to plaintiff’s contentions, this example in no way limits the insured’s choice of beneficiary or his ability to change the beneficiary without the consent of the prior-named beneficiary. The decedent was not legally prevented from making defendant Young his beneficiary under the policy, nor was the beneficiary required to have an insurable interest in the decedent’s life, Rountree v. Frazee, 282 Ala. 142, 209 So.2d 424 (1968); Mathews v. Stroud, 239 Ala. 687, 196 So. 885 (1940).

The plaintiff asserts that the decedent fraudulently named defendant Young as his “aunt” on the enrollment card. This misde-scription does not act as a fraud by the decedent, nor has it any effect on the right of defendant Young to receive the proceeds. Such a description is a representation, not a warranty, § 27-18-5, Ala. Code of 1975. It is merely descriptive and, therefore, immaterial, as is the nature of the personal relationship existing between the decedent and the beneficiary. 44 Am.Jur.2d Insurance, § 1758 (1969); Mathews v. Stroud, supra, at 690, 196 So. 885.

As there is a named beneficiary, the insurance proceeds do not go to the decedent’s estate and are not subject to Alabama’s rules of intestate succession. We hold that the circuit court’s judgment is correct and is to be affirmed.

AFFIRMED.

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


author: BEATTY, Justice.

text:
    The FIRST NATIONAL BANK OF MOBILE v. GILBERT IMPORTED HARDWOODS, INC.
    80-20.
    Supreme Court of Alabama.
    April 24, 1981.

      Mary Elizabeth McFadden of McFadden, Riley & Parker, Mobile, for appellant.
    Irvin J. Langford and George W. Fink-bohner, Jr. of Howell, Johnston, Langford, Finkbohner & Lawler, Mobile, for appellee.
   BEATTY, Justice.

Appeal from a judgment of dismissal in favor of the defendant, Gilbert Imported Hardwoods, Inc. (Gilbert). We reverse and remand.

The action began with a complaint for a declaratory judgment filed by The First National Bank of Mobile (First National) praying that the circuit court acknowledge plaintiff-bank as the priority lienholder with respect to a certain lot of land located in Mobile County. According to the complaint, Leslie and Jessie Sims conveyed the lot to Gayle Roberts by deed dated August 2, 1978, reserving a vendor’s lien. Then on January 26, 1979 Roberts and his wife executed a mortgage on the property to Commercial Guaranty Bank of Mobile. Later that year, on December 10, 1979, the Rob-ertses executed another mortgage on this same property to First National.

On March 24, 1980 the Robertses conveyed the property by deed to Gilbert. On that same date Gilbert took an assignment of their vendor’s lien from the Simses. An assignment of the mortgage held by Commercial Guaranty was made by Commercial to Gilbert on April 23, 1980. The effect of these transactions, alleged the plaintiff, merged the legal and equitable titles in the defendant, Gilbert, with First National’s mortgage lien being elevated to priority lienholder status. The plaintiff alleged further an imminent foreclosure of the Commercial Guaranty mortgage by the assign-ee, Gilbert, when that lien had been extinguished by merger, and when there was no basis for a foreclosure because the only remaining mortgage lien, the Robertses’ mortgage to First National, was not in default.

The defendant, Gilbert, moved to dismiss the complaint, Inter alia, for failure to state a claim on which relief could be granted. This motion was granted.

The plaintiff moved for a reconsideration of the judgment of dismissal, alleging that it could prove that the consideration for the deed from the Robertses to Gilbert was the satisfaction of the Simses’ vendor’s lien, the Commercial Guaranty mortgage lien, and the plaintiff’s mortgage lien, but that instead of satisfying those liens the defendant took assignments of the first two but failed to satisfy that of the plaintiff. Thus the plaintiff contended that dismissal was not appropriate because of the intent of the parties (apparently the Simses, the Roberts-es and Gilbert). The motion for a reconsideration was also denied, and this appeal followed.

Whether the motion to dismiss was properly granted depends in the first instance upon the effect of the deed and assignments to Gilbert.

With regard to mortgages, Alabama is a “title” state, i. e., upon the execution of the mortgage legal title passes to the mortgagee. See Trauner v. Lowrey, Ala., 369 So.2d 531, 534 (1979) and cases cited. The mortgagor retains an equity of redemption which he may convey. McDuffie v. Faulk, 214 Ala. 221, 107 So. 61 (1926). Under these principles, when the Robertses executed the mortgage of January 26, 1979, Commercial Guaranty took legal title to this lot of land as security for the mortgage debt, with the Robertses retaining an equity of redemption only. The subsequent assignment of this mortgage by Commercial vested that legal title in Gilbert. The Robertses’ intervening deed to Gilbert on April 23, 1980, together with the Simses’ assignment of their vendor’s lien to Gilbert on the same date, vested all legal and equitable interests in Gilbert, subject to the Robertses’ mortgage to First National. What was the effect of these transfers on the Commercial Guaranty mortgage?

According to the plaintiff, the effect was to extinguish the debt represented by the Commercial Guaranty mortgage, leaving the First National mortgage as the sole mortgage obligation. In any event, the plaintiff states, whether that result follows is a question of intention.

Tiffany, Law of Real Property, Vol. 5, § 1497 at 504 comments upon the effect of the acquisition of the mortgaged land and the mortgage debt:

As we have before seen, the debt is the principal thing, and the mortgage is merely an incident, and the question is, not whether the mortgage is merged, but whether the acquisition by one person of both the mortgaged land and the debt secured by the mortgage has the effect of extinguishing or merging the debt. If the debt is extinguished under such circumstances, the mortgage lien is necessarily also extinguished, while if the debt remains the mortgage lien also remains. Even in states which adhere to the title theory of a mortgage, the mere acquisition, by the owner of the land, of the legal title of the mortgagee, without the debt, could not extinguish the debt, nor affect the creditor’s right to proceed against the land in equity, while, on the other hand, if the owner of the land acquires the debt, with its incidental lien, the fact that he does not acquire the legal title, this being still outstanding in the mortgagee, could not, it is conceived, prevent the debt and the lien being extinguished, if the owner of the debt and of the land so intended and desired.

And he added at 505:

In case the owner of the mortgaged land, whether the original mortgagor or his transferee, conveys the land to the mortgagee creditor under an agreement that this shall operate to extinguish the mortgage debt, such conveyance ordinarily extinguishes the lien of the mortgage. In that case the extinguishment of the debt and its attendant security is properly by way of payment or accord and satisfaction, but the courts usually refer to it as a case of merger....

Tiffany, § 1480 at 506 continues:

The theory on which, upon the acquisition by one person of the mortgaged land and of the mortgage debt with the incidental lien on the land, the debt, and with it the lien, may ordinarily be regarded as extinguished, would seem to be that, under such circumstances, the person owning and controlling the debt can usually have no object in keeping it alive, it being in substance a claim against his own property, and he may consequently be presumed to intend that the debt shall be extinguished, a presumption to which, as tending to the simplification of titles, the courts are ready to give full effect. In accordance with this view are the numerous decisions that the intention of the holder of the two interests is the decisive consideration, and that no merger will take place if there is proof of an intention on his part to the contrary.

The doctrine of merger is recognized in Alabama. The general principle was recited with approval in Barnett & Jackson v. McMillan, 176 Ala. 430, 58 So. 400, 401 (1912):

“[W]hen the legal title becomes united with the equitable title, so that the owner has the whole title, the mortgage is merged by the unity of possession.” [Citations omitted.]
[“] The rule also applies to a grantee of the mortgagor who takes a conveyance of the land, subject to the mortgage, and expressly assumes and promises to pay it as part of the consideration. * * * If he pays off the mortgage, it is extinguished.” [Citations omitted.]

The case of A. M. Robinson Co. v. Anniston Land Co., 217 Ala. 648, 117 So. 29 (1928) is in accord:

[0]ne, having a mortgage on real estate, becoming the owner of the fee, ordinarily the result is a merger; yet it is a qualification thereof (1) if the intention of the parties was to keep alive the mortgage, or (2) if it is to the interest of the mortgagee to do this, or (3) necessary to his protection, and (4) this can be done without prejudice to the rights of the mortgagor or third parties as between such original parties the doctrine of merger will not apply. [Citations omitted.]

In that case and in Stewart v. Stephenson, 243 Ala. 329, 10 So.2d 159 (1942), this Court did not apply the doctrine of merger, in the former because of a deficiency in the pleadings, and in the latter because of the wording of the agreement between the mortgagor and the mortgagees, consistent with the noted exceptions. See also Ehrman v. Alabama Mineral Land Co., 109 Ala. 478, 20 So. 112, 114 (1896):

A mere purchase by a mortgagee, or by the transferee of a mortgagee, of the mortgaged property does not necessarily produce a merger and an extinguishment of the mortgage lien. Under some circumstances it may be necessary to preserve the mortgage lien as a protection against the intervening liens. But the rule is different where there is an assignment of the mortgage to the grantee of a mortgagor who assumed to pay the mortgage debt. Under such circumstances the merger is complete, and the mortgage lien is extinguished. . ..

It should be noted that this review is based upon the grant of a motion to dismiss and the denial of a motion for reconsideration of that decision. In that posture, the allegations of the complaint must be construed in a light most favorable to the plaintiff, with all doubts and allegations resolved in his favor, and a complaint should not be dismissed for failure to state a claim unless it appears beyond doubt that the plaintiff could prove no set of facts in support of his claim which would entitle him to relief. Dunson v. Friedlander Realty, Ala., 369 So.2d 792 (1979). Under the allegations of this complaint the plaintiff could prove that by virtue of the transactions between the grantors-mortgagors Roberts, the assignors Sims, the assignor Commercial Guaranty, and the grantee-as-signee Gilbert, it was the intention of the parties that a merger take place which would have extinguished the mortgage indebtedness of Roberts to Commercial Guaranty, giving the First National mortgage priority. Additionally, the plaintiff might prove no basis for the foreclosure proceeding alleged.

We conclude, therefore, that it was error to grant the motion to dismiss and to deny the motion for a reconsideration. The judgment, accordingly, must be reversed and remanded, and it is so ordered.

REVERSED AND REMANDED.

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


author: ALMON, Justice.

text:
    VETERANS OF FOREIGN WARS POST 7320 v. Sybil T. SHEFFIELD.
    79-226.
    Supreme Court of Alabama.
    May 1, 1981.
    J. Terry Reynolds, Jr. and Daniel G. Sayers, Mobile, for appellant.
    Robert T. Cunningham, Jr., of Cunningham, Bounds, Byrd, Yance & Crowder, Mobile, for appellee.
   ALMON, Justice.

This action was brought under the Employer’s Liability Act, Code 1975, § 25-6-1 et seq., and resulted in a jury verdict and judgment for the plaintiff for $20,000.00. We reverse, because the facts conclusively show that the action should have been brought under the Workmen’s Compensation Act. Code 1975, § 25-5-1 et seq.

The plaintiff, Sybil Sheffield, claimed she suffered permanent back injuries while employed as a waitress at the Veterans of Foreign Wars Post 7320 when she slipped on a wet floor and fell.

Suits brought by an employee against her employer for injuries sustained in the course of her employment are presumed to fall within the provisions of the Workmen’s Compensation Act. Pound v. Gaulding, 237 Ala. 387, 187 So. 468 (1939); Kaplan v. Sertell, 217 Ala. 413, 116 So. 112 (1928). Because the Workmen’s Compensation Act and the Employer’s Liability Act are mutually exclusive and cannot apply to the same set of facts, Jackson v. United Cigar Stores Co., 228 Ala. 220, 153 So. 422 (1934), an employee who seeks to recover damages from her employer under the Employer’s Liability Act must bring herself within an exception to the Workmen’s Compensation Act by alleging in her complaint facts sufficient to establish that exception. Johnson v. Ralls, 286 Ala. 565, 243 So.2d 673 (1971); Stanton v. Marsh, 274 Ala. 501, 150 So.2d 363 (1963); DeArman v. Ingalls Iron Works, 258 Ala. 205, 61 So.2d 764 (1952). Once the plaintiff establishes an exception to the Workmen’s Compensation Act by alleging sufficient facts, the burden shifts to the defendant to allege and prove that the provisions of the Act do apply. McCarroll v. City of Bessemer, 289 Ala. 449, 268 So.2d 731 (1972).

The complaint in this case alleged by way of conclusion that the action was “brought pursuant to the Employer’s Liability Act,” but failed to allege any facts which would be sufficient to invoke an exception to the Workmen’s Compensation Act.

Although the defendant did move unsuccessfully to strike the complaint on the ground that the plaintiff, as an employee of the defendant, could not maintain the action, the defendant failed to raise any question, by special plea or otherwise, concerning the applicability of the Workmen’s Compensation Act until it moved for a directed verdict at the conclusion of trial.

The Workmen’s Compensation Act states it does not apply

to domestic servants, to farm laborers * * or to persons whose employment at the time of the injury is casual and not in the usual course of the trade, business, profession or occupation of the employer or to any other employer who regularly employs less than three employees in any one business * * *.

Code 1975, § 25-5-50.

At trial, the Post Commander was questioned as to how many persons the Post employed:

Q. How many waitresses does the club employ there all together?
A. Well, during the week we employ two waitresses but on Friday and Saturday nights there were four in the back and one behind the bar. So, there would be five waitresses.
Q. During the weekends?
A. During Friday and Saturday night, yes, sir.
Q. There are five waitresses. How many behind the bar?
A. One lady and one man.
Q. And in addition to that, Mr. Jordan, the manager?
A. Mr. Jordan is the club manager and he is there every Friday and Saturday night and also employ a man in the parking lot and the band.
Q. Now, that is what, 7 people on the weekend?
A. No, sir. There are five in the band and four waitresses and two bartenders and one outside.
Q. How many during the week is working there total including the manager?
A. There is four.
Q. Four?
A. That stays on the payroll all week.

This evidence being uncontroverted, it is apparent to this Court that because the defendant did not employ less than three employees the action should have been tried under the provisions of the Workmen’s Compensation Act.

Ordinarily, this fact would have surfaced at the pleading stage of the trial. We note that the record does not contain a pretrial order. We are also compelled to note that a great deal of judicial time has been wasted.

The judgment is reversed and the cause is remanded.

REVERSED AND REMANDED.

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


text:
    Demetrius NEWTON et al. v. BIRMINGHAM AREA LEGAL SERVICES CORPORATION, INC., etc., et al.
    79-573.
    Supreme Court of Alabama.
    May 1, 1981.
    Ronald Edward Jackson, Birmingham, for appellants.
    David J. Vann of Carlton, Boles, Clark, Vann, Stichweh & Caddis, Birmingham, for appellees.
   PER CURIAM.

This case arises out of a power struggle among the board of directors of the Birmingham Area Legal Services Corporation (BALSC). On December 6, 1979, following an extensive investigation into employee grievances concerning the inadequate supervisory capabilities of the executive director, Henry Thompson, the board of directors voted to terminate Thompson’s duties.

Thompson was, however, given the opportunity to resign. Thompson and his supporters immediately began efforts to have Thompson reinstated. No evidence of the discharge was ever recorded in the official board minutes. Two reappointments were solicited and two new agencies were appointed as selecting agencies to fill two existing vacancies. As a result, Thompson was subsequently reinstated. In protest of the allegedly unlawful reinstatement, three directors, Chervis Isom, Manning Warren, III, and Robert McLean submitted resignations. After meeting with their respective appointing agencies, however, each was convinced to withdraw his resignation and to accept reappointment. Thereafter on February 7, 1980, the regularly established monthly meeting day, the three directors presented their letters of reappointment prior to any business being conducted. Eight directors were present — three who were unquestionably valid; two who have been allegedly replaced; and the three who had earlier submitted resignations. The two replaced directors abstained from voting pending confirmation of their representation by their respective organizations. All actions of the board at the January meeting recognizing new directors and rescinding Thompson’s discharge were rescinded. New officers were elected — Robert McLean, President; Houston Brown, Vice President; and Manning Warren, Secretary/Treasurer.

On February 11 BALSC filed a bill for declaratory judgment to have the board and officers as determined by the February 7 meeting recognized as the lawful directors and officers. Almost simultaneously, the Thompson group filed a quo warranto petition challenging the status of the newly elected officers. Both actions were filed in equity and were consolidated and tried as such. Final judgment was entered for BALSC with further instructions for by-law revisions prior to the recognition of any new directors.

Three issues are presented for review:

1. Was the consolidation of the declaratory judgment and quo warranto actions error?
2. Was there a quorum for the February 7 meeting of the directors?
3. Was there error in admitting evidence concerning evidence of Thompson’s termination as Executive Director?

(1)

To the first issue we answer no. The first sentence of the trial court’s final judgment begins with these words: “These actions ... in the nature of a bill for declaratory judgment and ... in the nature for a writ of quo warranto . . . and consolidated by consent....” The appellants, by consenting to the consolidation, cannot complain now. Moreover, even if they had not consented, the trial court could have consolidated the cases to avoid unnecessary costs or delay. Rule 42, ARCP.

(2)

Under the by-laws, the number of directors constituting a quorum was five. (There were six qualified directors present.) At the meeting, here in dispute, the court found that under the testimony all directors were either present or had had notice of the meeting. Therefore, the trial court did not err.

(3)

As to the third issue, we answer no. The trial was heard by Judge Barber sitting without a jury; the evidence was conflicting, and therefore, under the ore tenus rule, he is to be affirmed unless his findings are palpably wrong or manifestly unjust. Our review of the evidence leads us to conclude that the trial judge did not commit error.

The judgment of the trial court is affirmed.

AFFIRMED.

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