text:
    ALABAMA POWER COMPANY v. Dewey CURRY.
    81-342.
    Supreme Court of Alabama.
    Sept. 24, 1982.

      Richard Y. Bowers and James H. Miller, III of Balch, Bingham, Baker, Hawthorne, Williams & Ward, Birmingham, for appellant.
    Larry W. Morris, Alexander City, for ap-pellee.
   SHORES, Justice.

This is an appeal from an order denying a motion to dismiss for failure to join an indispensable party pursuant to Rule 19, Alabama Rules of Civil Procedure. The issue is whether the United States is an indispensable party in a suit seeking to settle a dispute over a boundary line between lots located within a federal hydroelectric project.

The controversy involves the boundary line between lakefront lots in Tallapoosa County. The plaintiff claims ownership of a parcel of land which is bounded by a parcel owned by Alabama Power Company (APCo). A dispute has arisen concerning the boundary line between them. Originally, the plaintiff, Dewey Curry, commenced this action to quiet title of two waterfront acres. Later, he amended the complaint to claim a boundary line dispute, pursuant to Ala.Code 1975, § 35-3-2. Alabama Power Company holds a license granted in 1925 by the Federal Power Commission to operate a hydroelectric dam across the Coosa River.

APCo moved to dismiss this action pursuant to Rule 19, ARCP, claiming that the United States was an indispensable party and also moved to join Bobby Jack Coleman, the party that leased the lot adjoining the plaintiff’s property from APCo, as a defendant. The trial court ordered Coleman joined as a defendant, but denied APCo’s motion to dismiss for failure to join the United States. The issue regarding the status of the United States as an indispensable party is the only issue before this Court on interlocutory appeal.

Both parties agree that the disputed property is located within the project boundary of Federal Energy Regulatory Commission (FERC) Project No. 349 (Lake Martin). The FERC (formerly the Federal Power Commission) has the power to grant companies, such as APCo, a license to develop and operate hydroelectric power facilities on waterways. As previously stated, the issue on appeal is whether the United States, as licensor to APCo, has an interest in this suit seeking to establish the boundary line between lots located within the project. The United States has the power to take over and operate any project after expiration of an issued license. This is stated in 16 U.S.C. § 807(a) (1970):

“[T]he United States shall have the right upon or after the expiration of any license to take over and thereafter to maintain and operate any project or projects as defined in section 796 of this title [16 U.S.C. § 796], and covered in whole or in part by the license....”

APCo contends that the recreational sites which border the lake are part of the “project.” A project is defined at 16 U.S.C. § 796(11) as follows:

“ ‘[Pjroject’ means complete unit of improvement or development, consisting of a power house, all water conduits, all dams and appurtenant works and structures (including navigation structures) which are a part of said unit, and all storage, diverting, or forebay reservoirs directly connected therewith, the primary line or lines transmitting power therefrom to the point of junction with the distribution system or with the interconnected primary transmission system, all miscellaneous structures used and useful in connection with said unit or any part thereof, and all water-rights, rights-of-way, ditches, dams, reservoirs, lands, or interest in lands the use and occupancy of which are necessary or appropriate in the maintenance and operation of such unit.”

Whether the recreational lands surrounding waters utilized by a hydroelectric facility are part of a “project” has never been determined by this Court. At least one federal court has recognized that the FERC’s power to regulate “projects” includes land used for recreational purposes. A Vermont district court ruled that a state environmental board had no power to block the proceeding of certain portions of a hydroelectric project. The district court ruled:

“ ‘[Pjroject’ is defined at section 3(11) of the Act, 16 U.S.C. § 796(11), as a ‘complete unit of improvement or development’ consisting, among other elements, of
‘all miscellaneous structures used and useful in connection with said unit or any part thereof, and all water-rights, rights-of-way, ditches, dams, reservoirs, lands, or interest in lands the use and occupancy of which are necessary or appropriate in the maintenance and operation of such unit.'
Moreover, the federal licensing agency is enjoined to issue licenses on the condition
‘[t]hat the project adopted ... shall be such as in the judgment of the Commission will be best adapted to a comprehensive plan for improving or developing a waterway or waterways for the use or benefit of interstate or foreign commerce, for the improvement and utilization of water-power development, and for other beneficial public uses, including recreational purposes’

Town of Springfield, Vt. v. State, 521 F.Supp. 243, 249 (D.Vt.1981).

In another case, the United States Court of Appeals, Fifth Circuit, decided that a recreational area could be “considered a work appurtenant or accessory to a dam or reservoir.” State of Louisiana, Sabine River Authority v. Lindsey, 524 F.2d 934, 939 (5th Cir. 1975). We agree with these courts and with APCo that recreational sites are included in the definition of “project” under 16 U.S.C. § 796(11). Thus, the land which is the subject of this cause of action is correctly included in FERC Project 349. We do not agree, however, that this makes the United States an indispensable party in this case.

The United States has a reserved right to take over and regulate the property located within a project under the Federal Power Act. 16 U.S.C. § 807(a). The power company asserts that this Court’s ruling in a case concerning a boundary dispute in a subdivision mandates that the United States must be joined as a party. In Johnston v. White-Spunner, 342 So.2d 754 (Ala.1977), this Court stated:

“In an action where the final decree affects title, ownership, or interest in real property each possessor of title, ownership or interest must be made a party to the action.” (Citations omitted.)

342 So.2d at 759.

The trial court in Johnston had ordered the boundary line shifted between the litigants. This also changed the property line of every other lot owner in the subdivision. There, the Court held that the other lot owners were indispensable parties.

That case is inapposite here. In the present case, only the property line between two lots is in dispute. The case concerns only plaintiff’s lot and the adjoining APCo lot leased to Bobby Jack Coleman. The determination of the proper property line between these two lots will have no consequence on the United States’ reserved right to take over and operate FERC Project No. 349. Thus, the United States has no interest in the object of the suit, the establishment of the property line between the two lots. This Court has often held that a party without an interest in the object of a suit is not an indispensable party. Clark v. Clay, 291 Ala. 165, 166, 279 So.2d 434 (1973); Morgan Plan Co. v. Bruce, 266 Ala. 494, 497, 97 So.2d 805 (Ala.1957). Rule 19(b), ARCP, lists four factors when it is necessary for a court to dismiss a suit because a party cannot be joined. Because the location of the disputed property line does not affect the rights of the United States, we hold that the government is not an indispensable party.

For the reasons set forth, the order of the trial court is affirmed.

AFFIRMED.

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


source: Caselaw Access Project

author: JONES, Justice.

license: Public Domain

text:
    COOSA VALLEY BANK, a corporation v. TAYLOR-HOLMES INDUSTRIAL SUPPLY, INC., a corporation.
    81-365.
    Supreme Court of Alabama.
    Sept. 24, 1982.
    Jack W. Torbert and Howard B. Warren of Torbert, Turnbach & Warren, Gadsden, for appellant.
    R. Ben Hogan, III of Hogan, Smith & Alspaugh, Birmingham,_ and Robert H. King, Gadsden, for appellee.
   JONES, Justice.

This action was tried to a jury on alternative theories of fraud and conversion, claiming both compensatory and punitive damages. The jury returned a general verdict for $30,000.00, in favor of Plaintiff Taylor-Holmes and against Defendant Coosa Valley Bank. Defendant Bank’s motions for directed verdict, judgment notwithstanding the verdict, and remittitur were denied. This appeal followed.

In May of 1977, Clarence Eugene Taylor obtained a $48,000.00 SBA loan through Coosa Valley Bank for the business Taylor-Holmes Industrial Supply, Inc. Ninety per cent of the loan was guaranteed by the Small Business Administration. The loan was secured in part by the inventory of the business and partially guaranteed by Taylor, individually. After making five payments on the indebtedness, Taylor, as president of Taylor-Holmes, notified Coosa Valley Bank that the business was failing but that the inventory, when liquidated, would yield sufficient funds to cover the outstanding loan amount.

Claude Springfield, president of Coosa Valley Bank, sent Taylor to Birmingham for discussions with representatives of the SBA. An SBA representative then came to Coosa Valley Bank for a meeting with Springfield and Taylor. As a result of that meeting, an agreement was executed by the parties on January 10, 1978, which provided that a special account would be opened to receive only the proceeds from the sale of the Taylor-Holmes inventory, to pay the salary of Taylor as he continued to try to sell the inventory (“quickly and for the best possible price”), and to pay the rent for the warehouses where the inventory was stored. The language of the agreement was to the effect that the arrangement would terminate on February 10,1978, unless all parties mutually agreed to an extension of its terms. From January through May of 1978, $19,000.00 was deposited into the special account.

The subsequent events, and the disparate testimony with regard to those events, form the basis for Taylor’s complaint and this action.

Coosa Valley Bank claims that the written agreement was extended until the end of May, 1978, when it was terminated and Taylor picked up his last paycheck from the Bank and turned in his keys to the warehouses. Taylor, however, denies that he was ever given notice of the termination of the agreement, and says that he had turned in his keys to the warehouses merely as an accommodation to the representatives of Mid-South Industries, Inc. (formerly Eto-wah Manufacturing Co. Inc.), which company had expressed an interest in purchasing the remaining Taylor-Holmes inventory and may have needed to inspect the goods. Taylor further maintains that he indicated to Coosa Valley Bank that he would continue to work to sell the inventory, but without pay.

Taylor estimated the retail value of the remaining inventory to be $30,000.00, but placed the wholesale cost at $14,854.31. Coosa Valley Bank, says Taylor, agreed not to sell the inventory for less than $13,-854.31, and, further, promised to call Taylor before allowing anyone to inspect the inventory. Coosa Valley Bank president, Springfield, admitted that Taylor did say that he would like to get at least $13,000.00 for the inventory, but that there was no indication of the volume of inventory remaining at that time. Springfield denies that Taylor ever told him not to accept less than $13,854.31.

Taylor concedes that at the time he told Coosa Valley Bank about his discussions with Mid-South he was told by Springfield that the Chairman of the Board of the Bank was also the Chairman of the Board of Mid-South.

Coosa Valley Bank contends that when the agreement with Taylor was terminated the principal amount due the Bank on the Taylor-Holmes loan was $38,203.67, and that Taylor was told of the termination of the agreement. On May 30, 1978, says Bank, it wrote a letter to the SBA requesting that the SBA purchase its portion of the promissory note from Taylor-Holmes, and that Bank gave notice to Taylor of such request. Further, Bank claims that, as of May 30, 1978, it assigned to the SBA all of Bank’s interest in and to the note, security agreement, and real property mortgage securing the Taylor-Holmes loan.

In June of 1978, Mid-South offered Coosa Valley Bank $6,500.00 for the remaining inventory. Coosa Valley Bank claims that, because it had assigned its interest in the inventory to the SBA, a call was made to the SBA to relay Mid-South’s offer, which the SBA accepted. In the latter part of June, 1978, Mid-South took possession of the inventory and on July 21,1978, payment was made by Mid-South to the SBA through Coosa Valley Bank.

Coosa Valley Bank consistently maintained that the SBA’s valid security interest in the inventory gave the SBA the right to dispose of the inventory and that Coosa Valley Bank merely acted for the SBA in the sale of the inventory to Mid-South. The testimony of John Duncan and Paul Stevens, SBA employees at the time of the Taylor-Holmes loan, reveals that the SBA did not take over the “servicing” of the Taylor-Holmes loan until July 1, 1978, and that up until the time the SBA paid Coosa Valley Bank under the guaranty agreement, Coosa Valley Bank alone had the responsibility of servicing the Taylor-Holmes loan.

Further, Coosa Valley Bank president, Springfield, testified that the Bank did receive monies from Taylor after May 30, 1978, and that the Bank received payment from the SBA for the guaranteed portion of the loan on August 4, 1978.

Eugene Taylor testified that his efforts to sell the inventory went well past the May 30, 1978, date of his final paycheck and alleged termination of the agreement. Indeed, Taylor took money to Springfield at the Bank during June for an inventory sale, and Taylor’s discovery of the empty warehouses in early July was the result of another sale of a portion of the inventory which necessitated his visiting the warehouses.

A representative of Mid-South estimated the value of the inventory on the list Mid-South was given to be $6,500.00, but stated that $1,000.00 worth of inventory from the list was missing.

Initially, we point out that our review of this action is guided by the normal presumptions of correctness afforded verdicts and judgments, and the further strength that is given to verdicts and judgments by the trial court’s denying motions for new trial, judgment notwithstanding the verdict, and remittitur. Pearson v. Fountain, 280 Ala. 1, 189 So.2d 551 (1966); Smart v. Wambles, 271 Ala. 651, 127 So.2d 611 (1961).

The posture of this case on appeal is placed in perspective by the following quoted portion from Coosa Valley Bank’s brief:

“In summary, this case involves an agreement to liquidate inventory securing a promissory note. Taylor and Taylor-Holmes claimed, in essence, that the Bank converted their inventory and sold it to Mid-South for less than the inventory was worth, contrary to a promise to keep Taylor advised and to insist on a sales price of $13,854.31, and at a time when an agreement was in force which required Taylor’s participation in any sale of the inventory. The Bank’s position was that no such promises had been made, that the liquidation agreement had been terminated, that the SBA had the right to sell the inventory, and that $6,500.00 was a reasonable price under the circumstances.
“STATEMENT OF THE ISSUES
“ISSUE NUMBER ONE
“Whether the Court erred as a matter of law in submitting the case to the jury on the theories of conversion and fraud (suppression of a material fact). [Cites omitted.]
“ISSUE NUMBER TWO
“Whether the damage award was excessive. [Cites omitted.]”

Coosa Valley Bank then summarizes the factual basis for its contentions of error with respect to “Issue Number One:”

“Regardless of [the disputed testimony respecting the extension of the agreement], Springfield wrote a letter to the SBA on May 30, 1978, requesting it to purchase its portion of the Bank’s note. On the same date the Bank assigned to the SBA all of its interest in the promissory note, security agreement and real property mortgage dated May 18, 1977. As a matter of fact, on May 30, 1978, the agreement between the parties terminated because there was no mutual agreement that it should be extended. Claude Springfield clearly understood he was no longer operating under the same agreement of January 10, 1978, which required debtor and Taylor to sell the inventory. Taylor said he would continue to ‘help market the inventory without any pay.’
“Subsequent to May 19, 1978, the SBA had a security interest in the inventory made the basis of this suit by virtue of Coosa Valley’s assignment.”

Having examined all of Coosa Valley Bank’s contentions of error, we find this issue to be of the most probable merit for our consideration on appeal, and the one most strongly urged by counsel for Coosa Valley Bank. The central thrust of Coosa Valley Bank’s argument on this point is that, assuming a fact issue was presented by the evidence with respect to Coosa Valley Bank’s alleged suppression of material ■facts and Taylor-Holmes’s reliance thereon to its detriment, the evidence, nevertheless, was insufficient to support an award for damages proximately flowing from such suppression.

Code 1975, § 6-5-102, is a portion of the law in Alabama dealing with fraud, misrepresentation, and deceit. That section states:

“Suppression of a material fact which the party is under an obligation to communicate constitutes fraud. The obligation to communicate may arise from the confidential relations of the parties or from the particular circumstances of the case.”

The application of this section to particular instances of alleged fraud has produced a background of case law which requires that a party with particular knowledge with respect to his relationship with another party disclose such knowledge to the other party. This law further holds, however, that the special circumstances of each case require that the analysis of this type of alleged fraud be done on a case by case basis. “[A] rigid approach is impossible, and, indeed, the words of the statute itself counsel flexibility.” Jim Short Ford Sales, Inc. v. Washington, 384 So.2d 83, 86 (Ala.1980). See, also, First Virginia Bankshares v. Benson, 559 F.2d 1307 (5th Cir. 1977); Hall Motor Co. v. Furman, 285 Ala. 499, 234 So.2d 37 (1970); Collier v. Brown, 285 Ala. 40, 228 So.2d 800 (1969).

That flexibility, however, cannot be used to circumvent the requirement that testimony tending to prove the commission of a fraud must be supported by evidence tending equally to connect the alleged fraud with the damages claimed by the injured party.

The inferences which the jury in the instant ease could have drawn from the evidence of Coosa Valley Bank’s “self dealing,” taken together with Taylor’s testimony respecting the Bank’s representation that it would not sell the inventory for less than $13,854.31 without notice to him, meet the requisite nexus between the alleged fraud and the injury to Taylor-Holmes. It is this testimony that made a fact issue for the jury as to the elements of the “suppression of material fact” species of legal fraud. Chapman v. Rivers Construction Co., 284 Ala. 633, 227 So.2d 403 (1969); Metropolitan Life Insurance Co. v. James, 238 Ala. 337, 191 So. 352 (1939). The jury was free to infer from the totality of the circumstances that, because of the SBA guarantee, the Bank stood to lose virtually nothing by a reduced sale of the inventory; that the chairman of the board of the Bank, who was also chairman of the board of Mid-South, stood to gain substantially by a reduced sale; and that, as among all the parties other than the SBA, only Taylor-Holmes stood to lose.

The Bank’s challenge of the sufficiency of the evidence as to the “detrimental reliance” element is misplaced. Reliance is implicit in the relationship of the parties which imposes the duty on the part of the one (Bank) not to act contrary to its representations to the detriment of the other (Taylor-Holmes). Once the jury resolved this fact issue — whether the Bank represented that it would notify Taylor before it liquidated the inventory for less than $13,-854.31- — favorably to Taylor-Holmes, it was warranted in further concluding that Taylor-Holmes’s loss (the difference between $13,854.31 and the actual price of $6,500 paid by Mid-South) was the direct result of the Bank’s conflict-of-interest dealings. Taylor’s experience in disposing of the inventory furnished a reasonable inference that he had the right to expect, at the very least, the wholesale list price for the remaining inventory. There was also evidence from which the jury could find that the goods could have been sold at the retail value of $30,000.00, which Taylor testified without contradiction was the retail value.

Moreover, once the jury resolved these factual issues favorably to Taylor-Holmes, it was free to find the requisite intent to injure to support an award of punitive damages. Smith v. Big Three Motors, Inc., 412 So.2d 1222 (Ala.1982).

We find no merit in the Bank’s claim of excessiveness of the verdict.

AFFIRMED.

All the Justices concur.


author: MADDOX, Justice.

text:
    Connie WATSON v. CITY OF FLORALA, a municipal corporation and Zorn Brothers, Inc., a corporation.
    81-582.
    Supreme Court of Alabama.
    Sept. 24, 1982.

      Griffin Sikes, Andalusia, for appellant.
    J. M. Albritton of Albrittons’ & Givhan, Andalusia, for appellee City of Florala.
    Herman Cobb of Buntin & Cobb, Dothan, for appellee Zorn Brothers, Inc.
   MADDOX, Justice.

This case sets forth two issues for this Court’s consideration. First, whether the trial court abused its discretion by limiting the nature of questions asked of an adverse witness and secondly, whether the trial court erred in sustaining certain objections made during plaintiff’s closing argument.

This case arose out of an automobile accident in Florala, Alabama. Connie Watson, the plaintiff, during the early morning hours of December 8,1979, collided with a flat-bed trailer owned by defendant Zorn Brothers, Inc. and under the supervision of defendant City of Florala. The question of liability centered upon whether the trailer had been illegally parked in such a manner as to cause the accident. The plaintiff called, over the defendant’s objection, Sgt. A. V. Patrick of the Florala Police Department as an adverse witness. Sgt. Patrick was the senior officer investigating the accident. The trial court barred the plaintiff from asking Sgt. Patrick any questions regarding discussions that occurred between the plaintiff’s attorney and Patrick prior to the trial. The plaintiff asserted such inquiry was proper to establish the witness’s bias and prejudice.

The trial court also sustained certain objections made during the plaintiff’s closing argument. An objection was sustained when the plaintiff’s counsel attempted to discuss the pre-trial discussions with Sgt. Patrick and a second objection was sustained relating to the plaintiff’s counsel’s characterization of the police investigation of the accident as a “whitewash.” The plaintiff asserts the trial court’s rulings constituted reversible error.

Under ARCP 43(b) a party is entitled to ask leading questions of a hostile or adverse witness similar to the scope of questioning allowed on cross-examination. The trial court is granted wide discretion in determining the propriety of questions asked by counsel. Code 1975, § 12-21 — 138. The appellant cites the case of Housing Authority v. Decatur Land Co., 258 Ala. 607, 64 So.2d 594 (1953), as authority supporting the premise that a witness may be examined to determine possible bias or prejudice. The appellant in her brief quotes from that case:

“It is always competent on cross-examination to make such interrogation of a witness as would tend to test his interest, bias or prejudice or to illustrate or impeach the accuracy of his testimony. Both our appellate courts have approved the principle stated in 2 Wigmore on Evidence, 2d Ed. § 949, p. 232: ‘The Range of external circumstances from which probable bias may be inferred is infinite. Too much refinement in analyzing their probable effect is out of place.’ ” (Citations omitted.)

258 Ala. at 612, 64 So.2d 594. Appellant did not quote the following portion of that opinion, however, which sets out the general rule governing a trial court’s discretion over cross-examination:

“And for emphasis we repeat the offs fated rule that the latitude and extent of such cross-examination is a matter which of necessity rests largely within the sound judicial discretion, which will not be revised on appeal except in extreme cases of abuse. Such cross-examination may even pertain to irrelevant and immaterial matters as bearing on the memory, accuracy, credibility, interest or sincerity of the witness.” (Emphasis added.)

Id. The general rule recognizes the liberal discretion granted to the trial court regarding the proper areas covered in cross-examination, Jackson v. State, 272 Ala. 566, 567, 133 So.2d 210 (1961), and the same rule covers examination of an adverse witness.

In a situation analogous to the present case, the trial court, during a criminal proceeding, properly limited the scope of the arresting officer’s examination. The defendant called the arresting police officer as a witness and attempted “to show bias.” This Court recognized the trial court’s proper exercise of discretion to limit questions asked of the police officer. Bradford v. State, 387 So.2d 906, 910 (Ala.Cr.App.), cert. denied 387 So.2d 913 (Ala.1980). Accord, United States v. Stamps, 430 F.2d 33, 37 (5th Cir. 1970) (arresting officer called by defendant not an adverse witness subject to cross-examination). In the present case, Sgt. Patrick did investigate the accident, but did not arrest the plaintiff. While limiting questions about Sgt. Patrick’s possible bias, the trial court did not abuse its discretion. Without a showing of such abuse there exists no reversible error.

The trial court is also granted wide discretion regarding what is properly stated during counsel’s closing argument. Ott v. Fox, 362 So.2d 836, 840 (Ala.1978); Robins Engineering, Inc. v. Cockrell, 354 So.2d 1, 4 (Ala.1977). The plaintiff asserts that the trial court improperly sustained two objections during her counsel’s closing argument. The first objection limited any statement about discussions Sgt. Patrick had with the plaintiff’s counsel prior to the trial. This objection was sustained. The second objection was made when the actions of the investigating officers were referred to as a “whitewash.” The trial court also sustained this objection and admonished the jury to ignore the characterization. While this Court recognizes that counsel is granted “great latitude” regarding the content of closing argument, R. C. Bottling Co. v. Sorrells, 290 Ala. 187, 190, 275 So.2d 131 (Ala. 1973), whether counsel stepped outside that latitude is to “be left largely to the enlightened judgment of the trial court with presumptions in favor of its ruling.” Adams v. Queen Insurance Company of America, 264 Ala. 572, 580, 88 So.2d 331 (Ala.1956).

The trial court properly exercised its discretion by sustaining the defendant’s objections during the plaintiff’s closing argument. The trial court had already ruled that Sgt. Patrick could not be examined about any pretrial discussions with the plaintiff’s lawyer. Limiting plaintiff’s argument on this point was consistent with the trial court’s previous ruling which we have determined did not constitute error. Further, the trial court was in the best position to determine, under all the circumstances, whether the proffered argument was proper.

The plaintiff has failed to show an abuse of discretion by the trial court. The judgment is due to be affirmed.

AFFIRMED.

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


text:
    Phillip P. KARAGAN v. CITY OF MOBILE, a municipal corporation, and Mobile City Planning Commission, an appointed agency of the City of Mobile, Alabama, separately and severally.
    81-590.
    Supreme Court of Alabama.
    Sept. 24, 1982.

      Phillip P. Karagan, Mobile, pro se.
    James H. Lackey, Mobile, for appellees.
   JONES, Justice.

Appellant Phillip P. Karagan initiated this cause on December 11, 1981, seeking issuance of an alternative writ of mandamus directed to the City of Mobile, Alabama, and the Mobile City Planning Commission, commanding them to appear and show cause why a peremptory writ of mandamus should not be issued ordering and compelling both the City and its Planning Commission to rezone certain property owned by Karagan in Mobile, Alabama, from Residence-Agriculture District to Two-Family Residence District. Along with his original petition, Karagan filed a number of exhibits, including an application for amendment to zoning ordinance, and an excerpt from a public hearing of the Planning Commission on June 4, 1981. On February 12, 1982, defendants filed a motion to dismiss Plaintiff’s cause for its alleged failure to state a claim upon which relief might be granted. On March 10, 1982, Defendants' motion was granted. From this final order of dismissal, Karagan appeals.

We reverse.

Phillip P. Karagan is the owner of a 23.5-acre parcel of realty situated on Howells Ferry Road and Colonial Lane in the City of Mobile, Alabama. On or about May 15, 1981, Karagan submitted to the Mobile City Planning Commission an application requesting that his property be rezoned from Residence-Agriculture District (R-A) to Two-Family Residence District (R-2).

On June 4, 1981, the Mobile City Planning Commission held a public hearing as required by the zoning ordinance of the City of Mobile. At this time, Karagan testified as to the alleged propriety of his proposed development. Additionally, Kar-agan submitted a report of Courtney and Morris Appraisals, Inc., to the effect that the project in question would not negatively influence property values in the area, and that such rezoning would be appropriate. At this same hearing, a petition signed by some 69 persons opposing such rezoning was also presented to and accepted by the Commission.

Subsequently, the Planning Commission voted to recommend denial of Karagan’s zoning amendment, citing as grounds therefor: (1) a development of the density proposed should be located on a major street or at least a secondary street; and (2) the proposed development would be out of character with the neighboring single-family residential areas.

Thereafter, the report of the Planning Commission was transmitted to the Mobile Board of Commissioners, which took no action within 30 days from its receipt thereof, thereby denying Karagan’s application to rezone.

Appellate review of an order granting a motion to dismiss in the context of a petition for mandamus, seeking to test the propriety of a city’s legislative function relating to zoning, presents conflicting legal presumptions and standards: (1) Rarely should motions to dismiss be granted, and then only when it appears on the face of the petition that the facts alleged do not entitle the petitioner to relief. Aloma Coat Corporation, Inc. v. Behr, 408 So.2d 496 (Ala.1981); (2) While the writ of mandamus, under the appropriate circumstances, is the proper extraordinary remedy to review discretionary municipal decisions, Foshee v. State, 210 Ala. 155, 97 So. 565 (1923), it is grantable only where petitioner shows a clear, specific legal right, Pritchett v. Nathan Rodgers Construction and Realty Corp., 379 So.2d 545 (Ala.1979); and (3) In the absence of fraud, a municipality’s decision of a discretionary nature is presumed legal and correct; and, unless constitutionally proscribed, or otherwise prohibited by law, such legislative acts are judicially reviewable only on grounds of arbitrariness and capriciousness, tested by the “fairly debatable” standard, Jefferson County v. O’Rorke, 394 So.2d 937 (Ala.1981).

Ordinarily, the separate application of each of these long-established and well understood principles is relatively simple. Where, as here, however, the application of all three rules is invoked in a single contextual setting, an accommodation of priorities must be effected. We believe the letter and spirit of our modern rules of notice pleading, under the instant circumstances, favor deference to the strictures imposed upon the granting of a motion to dismiss.

The issue presented by a motion to dismiss is not whether the plaintiff will prevail, Scheuer v. Rhodes, 416 U.S. 232, 94 S.Ct. 1683, 40 L.Ed.2d 90 (1976); rather, construing the allegations most favorably to the nonmoving party, the test is whether, under any conceivable theory or any applicable set of facts, the nonmoving party would be entitled to recover. Pruitt v. Pruitt, 343 So.2d 495 (Ala.1976); Willis v. Buchman, 30 Ala.App. 33, 199 So. 886, rev. on other grounds, 240 Ala. 386, 199 So. 892, 132 A.L.R. 1179 (1940).

Conceivably, the non-action of the city council, having the legal effect of adopting the Planning Commission’s recommendation rejecting petitioner’s request for rezoning, may have constituted an arbitrary and capricious decision. Indeed, the record reflects, for example, that one of the two reasons given by the Planning Commission in support of its recommendation for denial of rezoning was the fact that the public road servicing the property sought to be rezoned was neither a primary nor secondary road, as required by the zoning ordinance; yet, the City’s response to a request for admissions concedes that the street in question is a secondary road. This observation is not to be construed as an expression of an opinion on the merits of the case. It merely demonstrates that the case is prematurely before us for appellate review.

REVERSED AND REMANDED.

MADDOX, SHORES and BEATTY, JJ., concur,

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

      . The trial court on December 14, 1981, issued an order directing that the alternative writ of mandamus be granted, or, that Defendants appear within nine days therefrom to show cause why the subject property should not be rezoned.

      . Karagan’s proposed development was a 120-unit duplex development.

      . The vote was 7-0 against the rezoning amendment, with one abstention.


text:
    ACROMAG-VIKING v. Andrew D. BLALOCK. ACROMAG-VIKING, INC. v. Andrew D. BLALOCK.
    80-758, 81-313.
    Supreme Court of Alabama.
    Oct. 1, 1982.
    Charles C. Partin of Stone, Partin, Gra-nade & Crosby, Bay Minette, for appellant.
    Bayless E. Biles of Wilkins, Bankester & Biles, Bay Minette, for appellee.
   MADDOX, Justice.

The central issue of this case is whether a trial judge who was on the board of directors of a publishing concern which employed one of the named defendants should have recused himself from the case. This court finds it unnecessary to discuss any of the other issues raised by appeal and reverses the decision of the trial court.

Acromag-Viking, Inc. (Acromag) filed a two-count complaint against Marketing of the Gulf, Inc. (Marketing) and Andrew Blalock. The first count claimed $29,844.64 on itemized verified account from Marketing. The second count claimed $29,844.64 from Andrew Blalock, president of Marketing, on the theory that Marketing was the alter ego of Blalock and that there was no distinction between the acts of Blalock and Marketing.

The defendants filed a motion to dismiss the complaint. An answer was filed the day before the trial admitting that Marketing owed Acromag an undetermined amount of money on open account and denying that Blalock owed Acromag any amount of money. Blalock set up as affirmative defenses estoppel and the allegation that Marketing was a de facto corporation.

Prior to the commencement of the trial on December 9, 1980, the trial judge informed the parties that he had on several occasions had social contact with Robert McCorkindale, vice-president and secretary of Marketing. Moreover, he stated that one time he had purchased material from Viking Clock Company, of which Robert McCorkindale was president, but that he had no knowledge of the case nor any prejudice against any party. During recess, counsel for the plaintiff informally indicated to the trial judge that the plaintiff “would feel more comfortable” with another judge.' The trial judge denied this informal request after determining the other judges in the circuit were involved with trials. A non-jury trial was held and judgment entered on April 30, 1981.

On July 15, 1981, plaintiff filed an A.R. C.P. 60(b)(6) motion. The basis of the motion was that the trial judge was on the board of directors of a corporation which employed Andrew Blalock, the information had not been made available to the plaintiff at the time of trial, and, had it been, a motion to recuse would have been made. The trial judge denied the motion without a hearing on November 25,1981. On December 29, 1981, plaintiff filed a motion to reconsider the A.R.C.P. 60(b)(6) motion and re-alleged the judge’s membership on the board of directors which had employed Andrew Blalock. A copy of the masthead of Marine magazine, published by the corporation, showing the trial judge as a member of the board and Andrew Blalock as an employee, was attached to the motion. The record does not show any ruling by the trial court on the motion to reconsider. This appeal followed.

Canon 3 C(l) of the Alabama Canons of Judicial Ethics provides in pertinent part:

“A judge should disqualify himself in a proceeding in which his disqualification is required by law or his impartiality might reasonably be questioned, including but not limited to instances where:
“(a) He has a personal bias or prejudice concerning a party, or personal knowledge of disputed evidentiary facts concerning the proceeding.... ”

The Alabama Court of Civil Appeals has held that recusal is required where facts are shown which make it reasonable for members of the public, or a party, or counsel opposed to question the impartiality of the judge. Miller v. Miller, 385 So.2d 54, 55 (Ala.Civ.App.1980); Wallace v. Wallace, 352 So.2d 1376, 1379 (Ala.Civ.App.1977). However, recusal is not required by a mere accusation of bias unsupported by substantial fact. Miller v. Miller, 385 So.2d 54, 55 (Ala.Civ.App.1980); Taylor v. Taylor, 359 So.2d 395, 398-399 (Ala.Civ.App.1978). We agree with the Court of Civil Appeals on both propositions.

A decision by a trial judge on a 60(b)(6) motion to vacate a judgment for “any . . . reason justifying relief from the operation of the judgment” is discretionary with the trial judge and will not be reversed other than for an abuse of that discretion. Textron, Inc. v. Whitfield, 380 So.2d 259, 260 (Ala.1979); Nunn v. Stone, 356 So.2d 1212, 1214-1215 (Ala.Civ.App.1978). In view of the facts of this case, the trial judge’s failure to recuse himself constitutes an “exceptional circumstance,” Textron, Inc. v. Whitfield, 380 So.2d at 260, justifying Acromag’s 60(b)(6) request. Therefore, the trial judge’s failure to grant Acromag’s motion is, in this instance, an abuse of discretion.

Because this case was heard without a jury, the trial judge was required to exercise fair and impartial judgment in determining whether Marketing was actually a corporation. The Court concludes from the facts presented that there were substantial facts for Acromag to question the trial judge’s impartiality. Therefore, we rule that the trial judge committed reversible error in failing to recuse himself, and we remand this case for a new trial.

REVERSED AND REMANDED.

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


author: ADAMS, Justice.

text:
    Robert E. WILSON v. Kevin Cyril CUEVAS. Mary Juanita HAVELIN v. Kevin Cyril CUEVAS.
    80-762, 80-763.
    Supreme Court of Alabama.
    Oct. 1, 1982.
    Mary T. White Richerson and William H. Saliba, Mobile, for appellants.

      Fred W. Killion, Jr. and Patricia K. Olney of Reams, Wood, Vollmer, Philips, Killion & Brooks, Mobile, for appellee.
   ADAMS, Justice.

These appeals involve actions for personal injuries arising out of a collision between a motorcycle and an automobile in the City of Mobile, Alabama. Plaintiffs, Robert E. Wilson and his wife Mary (Havelin) Wilson, sued Kevin Cyril Cuevas in the Circuit Court for Mobile County, alleging counts in negligence and wantonness. Plaintiffs’ count alleging wanton conduct did not survive defendant’s renewed motion for a directed verdict at the close of all evidence. The trial court allowed the negligence count to be submitted to the jury. It returned a defendant’s verdict, and the trial court entered judgment for the defendant. Plaintiffs appealed.

Three issues, and the questions posed thereby, are properly presented for our review. The first is: Did the trial court err to reversal by granting the motion to dismiss plaintiffs’ count alleging wantonness? The second is: Did the trial court err to reversal by giving defendant’s jury instruction number four concerning plaintiffs’ alleged failure to stop for a red traffic light? The third is: Did the trial court err to reversal by giving defendant’s jury instruction number eleven dealing with plaintiff’s alleged excessive speed? We answer all in the negative, and we affirm the judgment of the trial court.

On March 18,1975, at approximately 6:45 p. m., plaintiffs were traveling westerly on Spring Hill Avenue in the City of Mobile. They were riding a 750 cc BMW motorcycle driven by Mr. Wilson. Spring Hill Avenue is a four-lane road running east and west. Plaintiffs approached Louiselle Street, a two-lane road running north and south, which intersects with Spring Hill Avenue. Defendant was driving an automobile, with two passengers, proceeding easterly on Spring Hill Avenue and also approaching Louiselle Street. Apparently, Spring Hill Avenue has left-turn lanes in both directions of travel at the Louiselle Street intersection.

Victor Allen MeSwain, called by plaintiffs, testified that he held the position of traffic engineer for the City of Mobile. He explained the operation of the traffic lights at that intersection.

Q. All right. Well, Mr. MeSwain, what was the phasing of the lights for the traffic at that corner at that time?
A. It’s what’s called a three-phase signal operation. The sequence would be Spring Hill eastbound green and a left turn arrow for eastbound to turn north on Louiselle would come on. Everything else would be red. The left turn arrow would stay on a predetermined amount of time and following a clearance interval the westbound green would come on, run at the same time as eastbound. The eastbound green would stay on for the through movement, stay green. Following that movement, and following a yellow clearance period, the side street or Louiselle Street would get the green. Following Louiselle green it would go through the same cycle.

MeSwain stated that the speed limit for Springhill Avenue was 35 miles per hour.

Mr. Wilson testified there was a “normal” flow of traffic traveling at 25-30 miles per hour, and that he was moving with that flow of traffic. He explained that he kept 60-80 feet behind the first car in front of him because motorcycles require a longer distance in which to stop. Mr. Wilson stated that as he approached the intersection, he was in the inside lane next to the median and that he had a green light. Upon entering the intersection, Mrs. Wilson told him that the light was changing, and she shouted to warn him of defendant’s automobile. Wilson testified that he next saw defendant’s car suddenly pull out in front of him and come to a stop. The collision occurred with plaintiffs’ striking the right front fender of defendant’s automobile. Defendant had attempted to turn left from the left-turn lane to travel northerly on Loui-selle Street.

Arguing that the trial court erred by granting a directed verdict against their count alleging wantonness, plaintiffs call our attention to a statement allegedly made by defendant after the collision. Mrs. Wilson testified that defendant was apologetic and upset:

[Defendant] said he was very sorry, that he did not even see us, that he did notice this car in the outside lane starting to slow down so he knew that the light was undoubtedly changing and he was going to make his turn onto Louiselle before Louiselle’s traffic started moving out, because he was in a hurry to get to the hospital to see his father who was in the intensive care. And his aunt, along with this, I mean she was saying more or less the same thing, that they didn’t see us, and I believe she said his father was her brother.

Plaintiffs contend that defendant was trying to “beat” the traffic, and that his act constituted wanton conduct. Alternatively, they contend that defendant saw them in a position of peril, but turned in front of them, nevertheless. Either way, plaintiffs insist, they were entitled to have the jury decide if defendant’s act rose to the level of wanton conduct.

The standard of review for a party’s request for a directed verdict is well established.

Where a directed verdict is requested, the entire evidence must be viewed in a light favorable to the opponent. When a reasonable inference may be drawn, which is adverse to the party requesting the directed verdict, the directed verdict is properly refused.

Alabama Power Company v. Robinson, 404 So.2d 22 at 24 (Ala.1981); Alford v. City of Gadsden, 349 So.2d 1132 at 1135 (Ala.1979); Alabama Power Company v. Taylor, 293 Ala. 484, 306 So.2d 236 (1975).

A directed verdict can be granted only where:

[T]he facts are such that all reasonable men must draw the same conclusion from them.... Unless the evidence is free from doubt or adverse inference, the question is for the jury. Alabama Power Co. v. Guy, 281 Ala. 583, 206 So.2d 594.
In civil cases, a question must go to the jury, if the evidence, or any reasonable inference arising therefrom, furnishes a mere gleam, glimmer, spark, the least particle, the smallest trace, or a scintilla in support of the theory of the complaint. . . .

Alabama Power Company v. Robinson, at 25, quoting from Turner v. Peoples Bank of Pell City, 378 So.2d 706 at 709 (Ala.1979); Draughon v. General Finance Credit Corp., 362 So.2d 880 (Ala.1978).

Concerning wantonness, this court has stated the following:

Each case is bound by its material facts; that before it can be said an act or failure to act is wantonly done or omitted and an injury resulting thereby is wantonly inflicted, it must be shown that the party charged with committing the wrong or omitting to reasonably act in that behalf, had knowledge of the danger, present or impending, to the other party or parties so situated, and being conscious (from his knowledge of existing conditions and impending danger) an injury would likely or probably result from his conduct or omission to act, with reckless indifference to consequences, consciously and intentionally did the wrongful act, or omitted to do or discharge the known duty in the premises to avert such danger, and which produced the injurious result. Birmingham Electric Co. v. Turner, 241 Ala. 66, 1 So.2d 299; Alabama Power Co. v. Dunlap, 240 Ala. 568, 200 So. 617; Feore v. Trammell, 212 Ala. 325, 102 So. 529; Shepard v. Louisville & N. R. Co., 200 Ala. 524, 76 So. 850.

Simon v. Goodman, 244 Ala. 422 at 424, 13 So.2d 679 at 680 (1943).

Our review of the facts, in a light most favorable to plaintiffs, leads us to conclude that plaintiffs’ case amounted to no more than a showing of negligence; the question of negligence was properly submitted to the jury for its resolution. Although defendant’s act, under other circumstances, could constitute wanton conduct, here it does not. The facts do not allow us to reasonably infer that defendant acted with “reckless indifference” to the consequences, had knowledge of the danger present, or otherwise came within the definition of wantonness. Where a case for wanton conduct shows no more than mere negligence, a directed verdict to the count alleging wantonness is properly given. Westbrook v. Gibbs, 285 Ala. 223, 231 So.2d 97 (1970); Taylor v. Thompson, 271 Ala. 18, 122 So.2d 277 (1960). Therefore, we find that the trial court properly granted a directed verdict as to plaintiffs’ count alleging wanton conduct.

Next, we consider plaintiffs’ argument that the trial court erred by giving defendant’s charge number four:

The Court charges the jury that if you are reasonably satisfied from the evidence in this case that the sole proximate cause of the Plaintiffs’ injuries was the negligent failure of Robert E. Wilson to stop his motor vehicle at the intersection of Louiselle Street with Spring Hill Avenue as the law requires when the traffic signal is red, then your verdict should be for the Defendant.

To the above charge, defendant objected in the following manner:

MR. SALIBA: This would be instruction number four, Defendant’s charge number four and Defendant’s charge number eleven. Judge, they’re both predicated upon charging the jury that if there was a speed in excess of a reasonable speed or a safe speed, that they could not rule for the plaintiff. The Defendant’s own testimony limits the speed of the Plaintiff as he entered the intersection to 35 miles per hour.
THE COURT: Bill, that’s not for me to determine. That’s for the jury to determine.
MR. SALIBA: Well, there is no evidence putting his speed as he went into or entered the — through the intersection at any speed greater than the posted speed limit which was 35 miles an hour.
THE COURT: Well, I differ with you, but again that’s for the jury, not me.
MR. SALIBA: Now, there is some evidence, Judge, I would agree, before he got to the intersection he was going 70, 50 and then 35 miles an hour, but they then put his speed going into the intersection at no greater than 35 miles an hour.
THE COURT: All right, what else?
MR. SALIBA: That’s all. That’s four and eleven.

Plaintiffs voiced the same objection to defendant’s charges number four and eleven. The ground of plaintiffs’ objection is that there was no evidence of excessive speed by plaintiff to allow the charges to be given. Rule 51, Alabama Rules of Civil Procedure, provides the procedure for preserving error on jury instructions. Generally, specific grounds for an objection must be given. Explaining the reasons for the rule, this court said:

The purpose for requiring statement of grounds for an objection or exception to an oral charge is said to be to allow the trial court an opportunity to correct the instructions and to avoid the waste of time and money from reversals resulting from oversight, technical omissions, or remediable mistakes. Hosey v. Seibels Group, South Carolina Insurance Company, 363 So.2d 751 (Ala.1978); Feazell v. Campbell, 358 So.2d 1017 (Ala.1978); Gardner v. Dorsey, 331 So.2d 634 (Ala.1976); Pitts v. Hulsey, 344 So.2d 175 (Ala.Civ.App.1977). The general rule to preserve error in jury instructions for appellate review is that in addition to objecting to the charge, the complaining party must have stated adequately specific grounds as a basis for the objection. Pitts v. Hulsey, supra; Great Northern Land and Cattle Inc. v. Firestone Tire & Rubber Company, 337 So.2d 1323 (Ala.Civ.App.1976). While the general rule has been adhered to in specific instances, objections have been allowed without stated grounds where the objection which was made was specific, adequately informed the trial court of its error, and afforded an opportunity for that court to correct the error. Gardner v. Dorsey, supra; Pitts v. Hulsey, supra.

Nelms v. Allied Mills Co., 387 So.2d 152 at 154 (Ala.1980).

Plaintiffs failed to articulate a clear objection to defendant’s charge number four. That charge addresses the issue of plaintiffs’ allegedly having proceeded through a red traffic light. The trial court charged the jury on the issue of plaintiffs’ alleged excessive speed when it gave defendant’s charge number eleven. Nevertheless, even assuming that plaintiffs’ objection addressed a purported lack of evidence to allow the charge to be given, that still does not help plaintiffs. Although the testimony was conflicting, there was evidence from which the jury could infer that plaintiffs proceeded through a red traffic light, thereby proximately causing the collision.

Plaintiffs also argue other grounds, not stated in their objection at trial, in support of their contention-that the trial court erred in giving defendant’s charge number four. These grounds we need not consider. Grounds not asserted at the time objection is made to the charge do not allow the trial court an opportunity to correct possible error, and, therefore, do not preserve error for our review. Nelms v. Allied Mills Co., 387 So.2d at 154-5.

The trial court also gave defendant’s charge number eleven. In essence, that charge instructed the jury that Mr. Wilson had a duty to drive at a reasonable and proper speed, under the circumstances existing, and that if the collision was the proximate result of his violation of that rule, a verdict could not be returned in his favor. The ground for plaintiffs’ objection, noted above, is that no evidence was adduced at trial to allow the charge to be given. We disagree. There was sufficient evidence creating a jury question as to plaintiff’s speed. Indeed, that evidence is even noted in plaintiffs’ own objection: “Now, there is some evidence, Judge, I would agree, before he got to the intersection [Mr. Wilson] was going 70, 50 and then 35 miles an hour. ... ” The trial court did not err in giving the instruction.

Again, plaintiffs argue additional grounds, not stated in their objection at trial, in their argument against the propriety of defendant’s charge number eleven. For the same reason stated in our discussion of defendant’s charge number four, we decline to consider those additional grounds.

Lastly, plaintiffs argue that the trial court erred in refusing plaintiffs’ charge number one. We find nowhere in the record where plaintiffs preserved error as to this charge. Nothing, therefore, is presented for our review.

For all of the foregoing reasons, the judgment of the trial court is affirmed.

AFFIRMED.

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


text:
    R. Douglas CAMPBELL, individually, and d/b/a Campbell Discount Pharmacy v. I. L. LYONS & COMPANY, LTD.
    80-849.
    Supreme Court of Alabama.
    Oct. 1, 1982.

      Fred W. Killion, Jr. and Lucian Gillis, Jr. of Reams, Wood, Vollmer, Philips, Killion & Brooks, Mobile, for appellant.
    Irvin J. Langford and George W. Fink-bohner, Jr., of Howell, Johnston, Langford, Finkbohner & Lawler, Mobile, for appellees.
   MADDOX, Justice.

This is an appeal from a summary judgment granted to the plaintiff in a suit on a promissory note. This action grew out of a dispute between the plaintiff, I. L. Lyons & Company, Ltd., and the defendant, R. Douglas Campbell. Lyons is a wholesale distributor of pharmaceutical goods and Campbell was, at the time of this dispute, the owner of a retail pharmacy. Lyons sued Campbell for the balance allegedly owed under the terms of a promissory note given by Campbell to Lyons. Campbell answered with a general denial and the affirmative defense of fraud in the inducement. Campbell also filed a counterclaim against Lyons, alleging breach of a contract to supply goods and fraudulent misrepresentation in promising supplies that Lyons did not intend to deliver.

After some discovery efforts by both sides, Lyons moved for summary judgment on both the original suit and the counterclaim. The circuit court entered an order granting summary judgment in favor of Lyons as to Campbell’s counterclaim for fraud on April 10, 1981. On May 7, 1981, Campbell moved for the court to vacate this summary judgment and reset the case for trial on the merits, citing portions of Campbell’s deposition and submitting an affidavit in support of his position. On May 22,1981, the court denied Campbell’s motion to vacate summary judgment. On May 29,1981, the court entered an order setting aside its order of May 22, 1981, denying defendant-appellant Campbell’s motion to vacate summary judgment and took the motion for summary judgment under submission. On June 4, 1981, the trial court entered an order setting aside its order of May 29, 1981, which set aside the trial court’s order of May 22, 1981. On July 16, 1981, defendant-appellant Campbell filed a second motion to vacate summary judgment and set trial on the merits. This final motion was denied on the same date, July 16, 1981.

Motion to Dismiss Appeal

Appellee argues that the effect of the June 4, 1981, order was to reinstate the denial of the motion to vacate on May 22, 1981, and that Campbell had 42 days from June 4, 1981, to file notice of appeal.

Defendant-appellant Campbell argues that the subsequent order of the trial court entered on July 16,1981, denying his second motion to vacate extended the time for him to appeal.

We agree with the appellee. Notice of appeal was not filed until August 27, 1981, more than 42 days after the entry of the June 4, 1981 order; therefore, the appeal must be dismissed. Stewart v. Younger, 375 So.2d 428 (Ala.1979); Harrison v. Alabama Power Company, 371 So.2d 19 (Ala. 1979); Thompson v. Keith, 365 So.2d 971 (Ala.1979).

APPEAL DISMISSED.

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


text:
    Gordon L. DOWNEY, et al. v. NORTH ALABAMA MINERAL DEVELOPMENT COMPANY, a corporation, et al.
    81-434.
    Supreme Court of Alabama.
    Oct. 1, 1982.
    W. W. Haralson of Weeks, Weeks & Har-alson, Scottsboro, for appellants.
    Macbeth Wagnon, Jr. of Bradley, Arant, Rose & White, Birmingham, and Joe M. Dawson of Dawson & McGinty, Scottsboro, for appellees.
   MADDOX, Justice.

The single issue before the Court on this appeal is whether the trial court erred in finding that the appellants failed to establish their claim of title to the minerals in question without actual possession of the minerals. We affirm the trial court’s ruling.

The appellants in this case, plaintiffs below, are all heirs of Mrs. C. J. Downey. On May 20, 1961, Mrs. Downey purchased at a tax sale the severed mineral rights to 82 acres of land in Jackson County, Alabama. Following the tax sale and each year thereafter to the present, Mrs. Downey and her successors in title assessed and paid the taxes on the separate mineral estate. She received her tax deed three years after the tax sale and promptly recorded the deed. As stipulated between the parties at the trial, none of the appellants nor their predecessor in claim of title ever mined or removed any coal or conducted any mining operation on any part of the land. It was stipulated, however, that from 1966 until appellee began mining operations, Leon Downey, son of Mrs. C. J. Downey and agent for the other appellants, did go on the property numerous times to ascertain if anyone was attempting to disturb the minerals.

The exact date appellee commenced mining operations on the property is not clear from the facts furnished the Court. Although Leon Downey notified appellees that appellants claimed mineral and mining rights under the land at the time they began their mining operations, appellees have continued mining, predicating their claim to the mineral rights on a deed to the surface rights of the property and the fact that the tax deed to the mineral rights received by Mrs. Downey in 1964 was void. Appellants base their claim to the mineral rights on an adverse possession claim because the tax deed, as determined by the trial court, was defective and therefore ineffective to pass title. The trial court ruled that because there was no color of title accompanied by an adverse possession that was actual, notorious, exclusive, continuous and hostile for the statutory period of ten years, appellants’ request for relief must be denied.

In reviewing the ruling of the trial court in this case, the Court must decide whether mineral rights that have been severed in title from the surface can be adversely possessed without opening mines and carrying on mining operations. Because of the supposed infirmities of the tax deed for the mineral interests received by Mrs. Downey in May of 1964, appellants, as successors in interest, contend that their title to the mineral estate of this land has been perfected by statutory adverse possession under the terms of Alabama Code § 6-5-200 (1975), which reads:

“(a) Adverse possession cannot confer or defeat title to land unless:
“(1) The party setting it up shall show that a deed or other color of title purporting to convey title to him has been duly recorded in the office of the judge of probate of the county in which the land lies for 10 years before the commencement of the action;
“(2) He and those through whom he claims shall have annually listed the land for taxation in the proper county for 10 years prior to the commencement of the action if the land is subject to taxation; or
“(3) He derives title by descent cast or devise from a predecessor in the title who was in possession of the land.
“(b) If the period during which the party’s deed or color of title has been on record, added to the time during which the deeds or color of title of those through whom he claims have been on record, amounts to 10 years, he may defend or prosecute on his adverse possession, and an inadvertent failure to list the land for taxation, any unintentional mistake in the description of the assessment or unintentional omission of any part of it from the assessment during the period of 10 years shall not bar the party of his action or defense on his adverse possession.
“(c) This section shall not be construed to affect in any way a title perfect by adverse possession before the adoption of this Code, nor to deprive any person of his rights under sections 6-6-286 through 6-6-289, nor to affect cases involving a question as to boundaries between coterminous owners.”

With regard to statutory adverse possession, this Court has stated the following:

“In Alabama there are basically two types of adverse possession, these two types being statutory adverse possession and adverse possession by prescription. Adverse possession by prescription requires actual, exclusive, open, notorious and hostile possession under a claim of right for a period of twenty years. See, Fitts v. Alexander, 277 Ala. 372, 170 So.2d 808 (1965). Statutory adverse possession requires the same elements, but the statute provides further that if the adverse possessor holds under color of title, has paid taxes for ten years, or derives his title by descent cast or devise from a possessor, he may acquire title in ten years, as opposed to the twenty years required for adverse possession by prescription. Code 1975, § 6-5-200. See, Long v. Ladd, 273 Ala. 410, 142 So.2d 660 (1962).”

Kerlin v. Tensaw Land & Timber Co., 390 So.2d 616, 618 (Ala.1980).

Although appellants, as stipulated, admit that they have never attempted to remove any coal from this property, they rely substantially on the Court’s decision in Nelson v. Teal, 293 Ala. 173, 301 So.2d 51 (1974).

In Nelson v. Teal, which dealt with the three-year statute of limitations on actions by record owners to recover land sold for payment of taxes and involved oil as opposed to hard minerals, this Court held that an action by record title holder to redeem mineral rights from a tax sale was barred after the requisite period even though the purchaser had not drilled any wells or otherwise possessed the minerals. We reached this result because the tax purchaser had effectively brought notice to the record owner of his purchase and his intent to take possession of the mineral rights. Notification was given on three separate occasions, in 1965, 1968 and 1971 by the tax purchasers and the record owner took no action to redeem until 1972. 293 Ala. at 175-176, 301 So.2d 52-53.

In the instant case, there is no claim that the Downeys ever gave, or attempted to give, notice to the record titleholder of the mineral rights included here. Although the appellants assert that the prior owner of the minerals, Mr. L. B. Mays, died in 1953, and that they had no practical way of making their claim known to any heir or re-mainderman, because no last will or testament was ever probated in this state, the tax record does indicate, however, that the mineral rights in question were assessed in the name of “L, B. Mays, c/o M. L. Gilliam, Rt. # 3, Scottsboro, Ala.” Appellants offer no explanation why they made no effort to contact the heirs or devisees of Mr. Mays through M. L. Gilliam. The only actual notice of appellants’ claim given to anyone occurred at the time the appellees began mining the minerals.

The appropriate rule for the Court to apply in this instance appears in the case of Hooper v. Bankhead & Bankhead, 171 Ala. 626, 54 So. 549 (1911). The rule adopted by the Court in Hooper reads as follows:

“What will constitute adverse possession of minerals, severed, in title, from the soil?
“Barringer & Adams on Mines, at pages 568, 569, say: ‘Such a possession (adverse) must be actual, notorious, exclusive, continuous, peaceable and hostile for the statutory period. And in these respects the surface owner is in no better position than a stranger. * * * Actual possession is taken by the opening of mines and carrying on of mining operations. That possession is continuous if the operations are continuous or are carried on continuously at such seasons as the nature of the business and the customs of the country permit or required. A cessation of operations in accordance with the custom of the neighborhood, or from necessity occasioned by some natural agency, would not be an interruption of the possession. But there must be something evidencing possession in the interval which connects the operations when resumed with those which have gone before and to distinguish such possession from a series of repeated acts of trespass.’
“To the same effect is White on Mines, §§ 430, 431, 432, 433.
“Under the authorities, it is essential to effect adverse possession of minerals, after severance, in title, from the surface, that the adverse claimant do some act or acts evincing a permanency of occupation and use, as distinguished from acts merely occasional, desultory, or temporary— acts suitable to the enjoyment and appropriation of the mineral so claimed, and hostile to the rights of the owner. Warvelle, § 420; 1 Cyc. pp. 983, 985, 994, 995; Newman v. Newman, [60 W.Va. 371, 55 S.E. 377] supra; Eureka Co. v. Norment, 104 Ala. 625, 16 South. 579; Alexander v. Savage, 90 Ala. 383, 8 South. 93; Elyton Co. v. Denny, 108 Ala. 553, 18 South. 561; Jackson Lumber Co. v. McCreary, 137 Ala. 282, 34 South. 850; Washington v. Norwood, 128 Ala. 390, 30 South. 405.”

171 Ala. at 634-635, 54 So. at 551. See Sanford v. Alabama Power Co., 256 Ala. 280, 288, 54 So.2d 562 (1951); Thomason v. Mullinax, 403 So.2d 883, 886 (Ala.1981). Since there was never any actual taking of coal by appellants for the necessary period, there can be no adverse possession. Even though appellants paid taxes on the severed mineral estate for the requisite period and arguably had color of title, the possession must be, in addition to exclusive, open, notorious and hostile, actual. Kerlin v. Ten-saw Land & Timber Co., supra. Actual possession of the coal in this instance could have been manifested either by mining, excavating or some other means of removal. Appellant Downey’s occasional foray onto the land to monitor any attempts by others to remove coal from the land was insufficient to constitute actual possession of the coal beneath the surface.

Therefore, the trial judge’s ruling that the elements of adverse possession were not satisfied, as based on these facts, is neither palpably erroneous nor manifestly unjust, and is accordingly due to be affirmed. Thomason v. Mullinax, 403 So.2d 883, 884 (Ala.1981).

AFFIRMED.

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


author: MADDOX, Justice. JONES, Justice

text:
    Carley A. BROWN, et al. v. Samuel M. LONGIOTTI, et al.
    81-7.
    Supreme Court of Alabama.
    Oct. 1, 1982.
    Bill Fite and Jackie 0. Isom, Hamilton, for appellants.
    William H. Atkinson and James K. Davis of Fite, Davis & Atkinson, Hamilton, for appellees.
   MADDOX, Justice.

The central issue in this appeal is whether the issuance of revenue bonds to finance the construction of a retail commercial establishment is authorized by amendment # 84 of the Alabama Constitution. We hold that amendment # 84 does not authorize the issuance of bonds to finance the construction of retail commercial establishments and, therefore, reverse the decision of the circuit court.

Appellants, a group of retail business owners in Marion County, brought suit against certain named parties and the city of Hamilton to challenge the city’s plan to construct a retail shopping center and to issue industrial revenue bonds to finance its acquisition and construction. Under the terms of the plan, the land would be developed by the city and then leased to Samuel Longiotti who would in turn lease the property to K-Mart. The bonds that the city proposes to issue are tax-exempt. From the circuit court’s granting appellees’ motion to dismiss and overruling of appellants’ motion for new trial, the appellants pursue this appeal.

Appellants argue that amendment # 84 violates the due process and the equal protection clauses of the United States Constitution because it “fails to limit bond issues to projects furthering public purposes.” Appellants contend further that “[e]ven if it could be assumed that amendment # 84 impliedly authorizes the issuance of revenue bonds only for public purposes, the evidence indicates that the instant project benefits only private parties.” The constitutional argument which the appellants offer derives from a decision rendered by the Georgia Supreme Court concerning an amendment similar to amendment # 84. See Smith v. State, 222 Ga. 552, 150 S.E.2d 868 (1966). The decision of the Georgia court reads, in part:

“This amendment does not, as appellees argue, provide for the promotion and development of new industry in the county. New industry might be developed, but there is nothing in the Act which requires that the funds be used for development of new industry, or to relieve unemployment, or to provide new jobs so that its citizens may be furnished employment and not be forced to leave the county to find employment, or for any other public purpose.”

150 S.E.2d at 871.

The Georgia Supreme Court concluded in Smith by ruling:

“Since the constitutional amendment authorizes issuance of the bonds for a private purpose, rather than a public purpose, the exemption of the private industry from taxes, while requiring plaintiffs and other private industries in the county to pay said taxes, would constitute taking of the property of plaintiffs and other taxpayers of Telfair County who are engaged in private business, without due process of law and would deny them equal protection of the law in violation of the federal Constitution. Thus, the constitutional amendment (Ga.L.1960, p. 1400) to Article VII, Section VII, Paragraph V (Code Ann. § 2-6005) is in violation of the due process and equal protection clauses of the Fourteenth Amendment to the Constitution of the United States.”

150 S.E.2d at 872.

The limitation that public money and credit can only be used for “public purposes” is a matter of due process and implicit in the Alabama Constitution. Board of Revenue and Comm’rs. v. Puckett, 227 Ala. 374, 377, 149 So. 850 (1933); Stone v. State, 251 Ala. 240, 243, 37 So.2d 111 (1948). Indeed, the premise that all appropriations or expenditures of public money by municipalities and indebtedness created by them must be for a public purpose as opposed to a private purpose is a widely recognized one. 15 McQuillin, Mun.Corp. § 39.19 (3d Ed.)

While there is no specific standard or test a court may use for distinguishing public purposes from private purposes, Note, Determining Permissible Municipal Expenditures: The Public Purpose Doctrine Revived, 7 U.Mich.J.L.Ref. 225, 226 (1973), the trend among modern courts is to give the term “public purpose” a broad expansive definition. Opinion of the Justices, 384 So.2d 1051, 1053 (Ala.1980). This is especially true of judicial review of industrial development bonding. Note, Industrial Development Bonds: A Proposal for Reform, 65 Minn.L.Rev. 961, 967 (1981); See generally, Note, The “Public Purpose” of Municipal Financing For Industrial Development, 70 Yale L.J. 789 (1961). Although industrial development bonds were originally conceived as a way to stimulate manufacturing investment, some of the “less traditional” uses of these instruments now include:

“1. Commercial Real Estate Development .... shopping centers, ... corporate headquarters ... new branch bank offices . . . office building and equipment purchases, including art work and stereophonic sound.
“2. Retail Stores .... department stores, drugstores, supermarkets, grocery stores, restaurants, ice cream parlors, fast food chains and automobile dealerships.
“3. Recreational Facilities .... including movie theaters, country clubs, skating rinks, bowling alleys, tennis and racquetball clubs, health clubs and golf courses.
“4. Tourist facilities .... hotels, motels, beach resorts, ski lodges.
“5. Health Facilities .... proprietary (for-profit) hospitals and nursing homes.”

Congressional Budget Office, Preliminary Draft of Small Industrial Development Bonds 23-24 (October 1980); See generally, Pinsky, State Constitutional Limitations on Public Industrial Financing: An Historical and Economic Approach, 111 U.Pa.L.Rev. 265 (1963).

In reviewing amendment # 84, the entire amendment reads as follows:

“Any provision of the Constitution or laws of the state of Alabama to the contrary notwithstanding, any municipality in Marion county, or any one or more of them, shall have full and continuing power and authority, without any election or approval other than the approval of its governing body, to do any one or more of the following:
“1. To purchase, construct, lease, or otherwise acquire real property, plants, buildings, factories, works, facilities, machinery and equipment of any kind.
“2. To lease, sell for cash or on credit, exchange, or give and convey any such property described in subdivision 1 above, to any person, firm, association or corporation.
“3. To promote local industrial, commercial or agricultural development and the location of new industries or businesses therein.
“4. To become a stockholder in any corporation, association or company.
“5. To lend its credit or to grant public moneys and things of value in aid of, or to, any individual, firm, association, or corporation whatsoever.
“6. To become indebted and to issue and sell interest-bearing bonds, warrants (which may be payable from funds to be realized in future years), notes or other obligations or evidences of indebtedness, to a principal amount not exceeding fifty percent of the assessed value of taxable property therein as determined for state taxation, in order to secure funds for the purchase, construction, lease or acquisition of any of the property described in subdivision 1 above or to be used in furtherance of any of the other powers or authorities granted in this amendment. Such obligations or evidences of indebtedness may (in addition to any pledge or pledges authorized by subdivision 8 of this amendment) be issued upon the full faith and credit of the municipality or may be limited as to the source of their payment.
“7. To levy and collect annually, in addition to all other taxes now authorized or permitted, a special tax or taxes of not exceeding two percent on the value of all taxable property therein as determined for state taxation, in the same manner as other county or municipal taxes are levied and collected. Such tax may be upon all property in any municipality in Marion county or upon all property in any district the boundaries of which the governing body of such municipality shall describe and which it shall determine to be specially improved and benefited by any proposed use or expenditure of the proceeds of such tax.
“8. To pledge to the payment of any bonds, warrants, notes or other obligations or evidences of indebtedness the annual proceeds from any such special tax or taxes and to obligate itself irrevocably to continue to levy and collect such taxes annually until such obligations or evidences of indebtedness are paid in full and to pledge thereto any rental or sale proceeds of property leased or sold by it.
“9. To create a public authority or corporation having such powers, managed and governed by such board or governing body and subject to such limitations as the governing body of any municipality in Marion county may impose, by approving and filing a certificate to that effect in the office of the judge of probate or the secretary of state, or their respective successors in function, and to delegate to such public authority or corporation and its board or governing body all powers and authority conferred in this amendment upon any such municipality.
“The recital in any bonds, warrants, notes or ther obligations or evidences of indebtedness that they were issued pursuant to this amendment or that they were issued to provide funds to be used in furtherance of any power or authority herein authorized or that any special tax herein authorized has been pledged to the payment thereof shall be conclusive; no purchaser or holder thereof need inquire further; and the levy and collection of such tax shall continue until the principal of and interest on such obligations or evidences of indebtedness shall have been paid in full. The bonds, warrants, notes or other obligations or evidences of indebtedness issued hereunder shall not be considered an indebtedness of any municipality in Marion county for the purpose of determining the borrowing capacity of such municipality under sections 224 and 225 of the Constitution; and the taxes herein authorized shall be in addition to those provided for or permitted in sections 215 and 216 of the Constitution and all amendments thereto.
“This amendment shall be self-executing; but the legislature shall have the right and power by general, special or local act to adopt laws supplemental to this amendment or in furtherance of the purposes and objectives hereinabove set forth.”

When construing the Constitution of Alabama, the leading purpose of the Court is to ascertain and effectuate the intent and object originally intended to be accomplished. Alexander v. State, 274 Ala. 441, 446, 150 So.2d 204 (1963); State v. Birmingham So. Ry. Co., 182 Ala. 475, 491, 62 So. 77 (1913). In Eliasherg Bros. Mercantile Co. v. Grimes, 204 Ala. 492, 495, 86 So. 56 (1920), the Court, quoting from Western Union Telegraph Co. v. State Board of Assessment, 80 Ala. 273 (1885), repeated:

“ ‘Having been taught by experience that no legislative power is more liable to oppressive use than the taxing power, and having suffered evils by resting it too broadly on discretion, the people have shown, in the history of the successive constitutions, a progressive policy to restrain the power of the legislative department in this respect, and to remedy existing, and guard against apprehended, evils, by imposing limitations consistent with the public needs and the public safety. The just expositor, in interpreting the constitutional mandates and inhibitions, will consult the changes that have been made from time to time, the causes which produced them, and the mischief intended to be remedied. The words used should be allowed such operation and force as will reasonably accomplish the purposes proposed, but without extension beyond their legitimate meaning, and so as to avoid embarrassing or disabling proper governmental administration.’ ” [Emphasis added.]

Eliasberg Bros. Mercantile Co. v. Grimes, 204 Ala. at 495, 86 So. 56. It is our duty, as a Court, to construe the meaning of words in constitutional amendments. Thus, having reviewed the facts of this case and construed the terms of this amendment, the Court is convinced that the bond offering for locating a retail store in the municipality of Hamilton is inconsistent with the intent and object of amendment # 84.

In McDonald’s Corp. v. DeVenney, 415 So.2d 1075 (Ala.1982), this Court held that retail establishments such as McDonald’s and K-Mart were not the type of commercial enterprises that the legislature sought to bring to Alabama under the various acts designed to promote industry and trade. In that case, we stated:

“All of these acts express a similar intent and purpose, that is, to give a municipality or county the power to offer inducements to industrial, manufacturing, commercial, and research enterprises to either locate in Alabama or expand existing facilities in this state. These acts authorize municipalities and counties to acquire industrial, manufacturing, commercial, and research projects and to issue bonds to finance the cost of such acquisitions.
“This Court is of the opinion that the intent of the Legislature in the passage of the 1977 County Board Act, as well as the Cater Act, the Wallace Act, and the 1961 County Act, was not to give retail business establishments desiring to expand their operations within the state such as McDonald’s and K-Mart, ready access to lower cost financing than other retail businesses; the legislative intent was to induce, attract, and persuade businesses of a non-retail nature, particularly industrial, mining, manufacturing, and research enterprises, to locate here or to expand existing facilities in this state.”

415 So.2d at 1079. We hold that the reasoning employed in McDonald’s Corp. v. De-Venney is applicable to amendment # 84. Moreover, the sale of these tax-free bonds by the city of Hamilton would not serve a significant “public purpose,” but, instead would primarily benefit the individual lessee through lower rentals.

Therefore, this Court reverses the order of the circuit court and remands this case for action consistent with this holding.

REVERSED AND REMANDED.

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

JONES, J., concurs in the result.

JONES, Justice

(concurring in the result).

I concur in the result reached by the majority opinion to reverse and remand. I would follow the rationale of the Georgia Supreme Court in Smith v. State, 222 Ga. 552, 150 S.E.2d 868 (1966), which is set forth in the majority opinion.

      . State ex rel. McLeod v. Riley, 278 S.E.2d 612 (S.C.1981), held a provision of the South Carolina Constitution authorizing industrial revenue bonds to finance commercial shopping centers to be unconstitutional. The benefits to the public in this instance were held to be remote al indirect, preventing the undertakings authorized by the constitutional amendment from coming “within the ambit of ‘public purpose.’ ” This case was cited by appellants in oral argument before the Court.


author: EMBRY, Justice.

text:
    Glen SMOTHERS, et al. v. Onie SPEAKE, et al.
    81-295.
    Supreme Court of Alabama.
    Oct. 1, 1982.
    Don R. White, Moulton, for appellants.

      W. H. Rogers, Moulton, for appellees.
   EMBRY, Justice.

This is an appeal from a judgment adverse to Glen Smothers and Troy Parker in an action for trespass on lands of Onie Speake, James Speake, Lisa Carol Speake, and Regina Ann Cahela. The judgment was entered after trial before the circuit court without a jury. At the conclusion of the evidence regarding the trespass, and consequential damages flowing from it, damages were fixed in the amount of $10,-500.

Onie Speake holds a life estate in the property; the other Speakes, including Regina Ann Speake Cahela, own the fee.

The evidence shows that in August and September of 1978, Smothers purchased timber rights on property owned by one Ray Rooks. The latter’s property adjoined that of the Speakes. Smothers began cutting the timber on the Rooks property and the Speakes contend that in the process he crossed over onto their land, cutting and removing prime oak timber from it. The actual cutting was done by Parker, under contract with Smothers, who was present at almost all times there was any cutting done. Smothers denied that any timber was cut and removed from the Speake property, but there was evidence that approximately 18,-650 board feet of timber was cut and removed from that land.

After entry of judgment, failing to file a motion for new trial, Smothers and Parker perfected this appeal in which they contend the judgment of the trial court is against the great weight of the evidence.

At the outset, we note that where the trial court was the trier of fact, we review the weight of the evidence without the presumption that would favor correctness of findings by a jury, in which case the weight of the evidence would have been first tested by motion for new trial. In this nonjury case, we review the weight of the evidence without its first having been tested by motion for new trial. See e.g., Francis v. Tucker, 341 So.2d 710 (Ala.1977).

The judgment in this case reads:

“This matter submitted to the Court on a complaint filed for and on behalf of the plaintiffs alleging that the defendants and/or their agent have trespassed upon the real property described in the complaint which belongs to the plaintiffs and as a result and in conjunction with the trespass, have wilfully and maliciously carried away some eighteen thousand six hundred and fifty (18,650) board feet of prime hardwood timber and in addition, has damaged the remaining trees and done damage to the real property being the topography and the lay of the land in carrying out the conversion of the timber hereinabove made reference to.
“This suit was brought in two (2) counts, count I alleging the simple trespass and taking of the property; count II alleging the trespass and conversion of the timber referred to, but also, alleging that it was done with malicious wicked intent and motive.
“The Court, after consideration of the same and hearing the evidence in open court, is of the opinion that the plaintiffs have carried the burden of proof in that they have shown that the defendants and/or their agent have trespassed upon the property of the plaintiffs and that they have converted valuable hard timber to their own use and that they have damaged the land and the remaining timber, and the Court will enter judgment in the amount of TEN THOUSAND FIVE HUNDRED AND NO/100 ($10,500.00) DOLLARS for the plaintiffs against the defendants.
“It is THEREFORE, ORDERED AND ADJUDGED that the plaintiffs shall have and recover of the defendants the sum of TEN THOUSAND FIVE HUNDRED AND no/100 ($10,500.00) DOLLARS as damages for the conversion of the timber and the trespass to the real property in question, together with the costs of this proceeding.”

The evidence in this case is amply sufficient to support the findings contained in that judgment, including the amount of damages awarded. Those damages are based upon actual injury to the land, conversion of the timber thereon, and damage to remaining timber not converted. The evidence likewise supports the finding that the wrongs were done with wilful maliciousness.

In this case there is no need to apply the ore tenus rule, because the weight of the evidence is abundantly favorable to support the judgment which is nowise excessive in amount of damages awarded in it. See e.g., Hogan v. Alabama Power Co., 351 So.2d 1378 (Ala.Civ.App.1977), and Randell v. Banzhoff, 375 So.2d 445 (Ala.1979); the latter for the well known rule that an award of punitive damages is largely in the discretion of the trial court. However, in this case the damages can be justified without including any of a punitive nature.

For the reasons stated, the judgment below is due to be and is hereby affirmed.

AFFIRMED.

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


text:
    Boston MASSEY v. EDUCATORS INVESTMENT CORPORATION OF ALABAMA, INC.
    81-370.
    Supreme Court of Alabama.
    Oct. 1, 1982.
    G. Barton Crum and James T. Sasser of Wood, Minor & Parnell, Montgomery, for appellant.

      Don F. Wiginton, Birmingham, for appel-lee.
   EMBRY, Justice.

Boston Massey appeals from a judgment in the amount of $19,000 entered upon a jury verdict in favor of Educators Investment Corporation of Alabama, Inc., in its action based upon Massey’s default in the payment of a promissory note. We affirm.

Educators filed suit against Massey because of his default in the payment of the $19,000 balance due on a promissory note. It also claimed attorney’s fees of $2,855.61. Massey filed his answer, and a counterclaim against Educators alleging numerous violations of the Alabama Consumer Credit Act (the Mini-Code, § 5-19-1 et seq., Code, 1975).

The case was tried before a jury. Conflicting evidence was presented as to whether Educators violated any provisions of the Mini-Code. After conclusion of the trial, the jury returned a verdict in the amount of $19,000 against Massey but did not award attorney’s fees. Judgment was entered accordingly. Massey filed a motion for judgment non obstante veredicto, or in the alternative, for a new trial. The motion was denied.

Massey contends the trial court erred by denying his post judgment motion because, he says, Educators’ action should have been abated on account of its violations of provisions of the Mini-Code; that § 5-19-11, Code 1975, requires abatement of Educators’ action. Specifically, that Educators violated three sections of the Mini-Code: §§ 5-19-6, 5-19-10, and 5-19-11. Section 5-19-11 reads:

“No creditor under this chapter shall bring an action on any debt for collection, and no judgment by default or otherwise shall be entered until the creditor shall file an affidavit stating that
(1) There has not been a violation of the provisions of this chapter, and
(2) The debtor, if a resident of this state, on information and belief of creditor is a resident of the county in which the action is filed.
If such violation exists or if the debtor is not a resident of the county in which such action is filed, the action shall be abated.”

An affidavit, as required by § 5-19-11 was filed with the complaint. The affidavit was that of Don F. Wiginton, attorney for Educators, and stated in pertinent part:

“That I am the attorney for the plaintiff in the above styled cause and as such have authority to make the affidavit; that I am informed and believe and upon the basis of such information and belief state that there has not been a violation of the provisions of Act No. 2052, Acts of Alabama 1971, known as the Alabama Consumer Credit Act and commonly referred to as the ‘Mini-Code’, since the effective date thereof, in connection with this lawsuit or the debt sued upon; that the defendant is a resident of Lowndes County, Alabama, and he is not in the military service of the United States of America. And that after all credits have been applied to the defendant’s account, the defendant is indebted to the plaintiff in the amount of $19,037.42, attorney’s fee of $2,855.61 and costs.”

Massey contends that Wiginton is neither an employee, nor an officer of Educators; therefore, the affidavit does not comply with § 5-19-11. We disagree. A party’s attorney is deemed to be an agent of the party with implied authority to make necessary affidavits in judicial proceedings he is employed to conduct. Anthony v. Anthony, 221 Ala. 221, 128 So. 440 (1930). The attorney for a business engaging in making consumer loans would be in a better position to know whether his client complied with the provisions of the Mini-Code than someone not learned in the law. Massey also contends that Educators was guilty of two violations of § 5-19-6. That section reads:

“Any creditor, when extending credit with respect to a consumer credit sale, loan or lease other than open-end credit, shall at that time furnish to the debtor duplicate copies of all instruments executed by the debtor in connection with the transaction. The credit sale contract, loan note or lease shall contain the following statement in eight point type immediately above the space for the borrower’s signature.
“ ‘CAUTION — IT IS IMPORTANT THAT YOU THOROUGHLY READ THE CONTRACT BEFORE YOU SIGN IT.’ ”

Cates, an employee of Educators, testified the “caution” statement was stamped on the original promissory note near the space where Massey signed it. The note and copies thereof were mailed to Massey for his signature. Massey testified that the “caution” statement was omitted on the original promissory note when he signed it; he also offered his duplicate copy of the note to show that it did not contain the “caution” statement. He contends the omission of the “caution” statement from the original promissory note was a violation of § 5-19-6. He also argues that even if the “caution” statement was printed on the original promissory note, nevertheless, Educators violated § 5-19-6 by not providing him with a copy containing the “caution” statement.

Conflicting evidence was submitted to the jury about this disputed issue of fact and it determined that no violation of the Mini-Code occurred regarding the “caution” statement. The function of the jury is to resolve disputed facts. Its resolution of disputed issues of fact will not be reversed on appeal unless the verdict is against the preponderance of the evidence, or is clearly wrong or unjust. Osborne v. Cobb, 410 So.2d 396 (Ala.1982).

Although § 5-19-6 requires that a creditor “shall ... furnish to the debtor duplicate copies of all instruments executed by the debtor in connection with the transaction,” we opine that omission of the “caution” statement on Massey’s copy resulted in no injury to him because the “caution” statement was stamped on the original promissory note next to the place he affixed his signature. Also, the fact that Massey received the promissory note in the mail is evidence from which the jury could con-elude that he had ample time to thoroughly examine the provisions of the note. The general rule of contract law is that when the parties reduce their agreement to writing, the writing is the sole expositor of the transaction and the intention of the parties, in the absence of mistake or fraud or ambiguity. Gunnels v. Jimmerson, 331 So.2d 247 (Ala.1976). If there was error, it was error without injury and that does not require reversal. Rule 45, ARAP.

Massey further contends that Educators violated § 5-19-10, Code 1975, by not explicitly limiting the attorney’s fees to fifteen percent of the unpaid debt. Because no attorney’s fees were awarded there is no need to address this issue.

We find no error in the trial court’s denial of the motion for new trial. The grant or denial of a motion for new trial rests within the sound discretion of the trial court. The exercise of that discretion carries with it a presumption of correctness which will not be disturbed unless some legal right was abused and the record plainly and palpably shows the trial court was in error. Hill v. Cherry, 379 So.2d 590 (Ala.1980).

This court finds the trial court, under the facts of this ease and applicable law, was correct in denying Massey’s post judgment motion. There is no error to be found in the record and the judgment of the trial court is hereby affirmed.

AFFIRMED.

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