text:
    J. C. GILES, Jr. v. Carrie Jane GILES.
    80-206.
    Supreme Court of Alabama.
    Sept. 25, 1981.
    William Beck, Sr. of Beck & Beck, Fort Payne, for appellant.
    A1 Shumaker, Centre, for appellee.
   ALMON, Justice.

This appeal involves the denial of a Rule 60(b), ARCP, motion seeking relief from a final summary judgment.

The summary judgment arose from a suit filed by Carrie Jane Giles to recover land in possession of her son, J. C. Giles, Jr. The land had been owned by J. C., Sr., father of J. C., Jr. When J. C., Sr. died, presumably without a will, as one was never probated, Carrie Jane, his wife, remained on the property. Soon thereafter Mrs. Giles asked J. C., Jr. and his wife to move onto the land so that they could care for her. J. C., Jr. and his wife acceded to her request and built a house and made various improvements on the land.

Sometime later Mrs. Giles went to Marietta, Georgia, to visit some of her other children. There was obviously dissension in the family regarding the several parcels of land in question, and in May, of 1979 Mrs. Giles filed suit to oust J. C., Jr. and his wife. J. C., Jr. counterclaimed for “an equitable interest in a portion of the property”; sought to enjoin Mrs. Giles from interfering with his possession of the property; and in the alternative, $25,000 compensation for the improvements he had made.

Mrs. Giles moved for and was granted summary judgment in October of 1979 on her claim to recover possession of the property. Her claim for an accounting was denied. J. C., Jr.’s motion to alter, amend or vacate, or, in the alternative, grant a new trial was overruled. J. C., Jr.’s motion to stay the execution sought by Mrs. Giles was also overruled.

On April 9, 1980, the attorney for J. C., Jr. withdrew as attorney of record.

On April 18, 1980, Mr. Beck, J. C., Jr.’s newly employed attorney filed a motion which we construe to be under Rule 60(b), ARCP. Attached to this motion is a deed dated March 1, 1965, conveying some of the land in question to J. C., Jr. The deed is from J. C., Jr.’s mother and father and is attested by one witness.

The sworn motion continued as follows:

That the Deed, Exhibit B, was delivered to the Defendant during the lifetime of Carrie Jane Giles and her husband, the father of the defendant, J. C. Giles, who is deceased; and he accepted the deed in good faith as it was presented by his mother and father to him. Sometime after he got the deed his mother and father both told him there might be some doubt about the legality of the deed because it had one witness, and also that his brothers and sisters had told him it wasn’t any good because it only had one witness, and that his attorney told him it wasn’t any good because it had only one witness. That was during all the litigation, and he not being informed in the law, and not well educated, did not know any better, therefore, he did not file it for record, that he was put in possession of the land in question, described in the deed, and he has occupied it and claimed it as against the other children, and due to the mistake that was made and the belief that the deed was no good, because it only had one witness; he was deprived of this element of defense because his own attorney in Centre, Alabama, informed him it was not any good because it only had one witness, and told him there was no use to offer said deed in evidence, so relying on said Attorney’s statement, he did not bring forth this deed, Exhibit B and he found out after he consulted his attorney in Port Payne, Alabama, that it was a good deed, that was the only thing wrong with it, it was valid and even after this, he went to the Probate Office in Cherokee County, Alabama, and the Officials in the Probate Office told him the deed wasn’t any good because it had only one witness and did not want to accept it for record, but told him they would record it even though it was a void deed because it wasn’t executed properly. Because of all this information that the deed was not any good because it only had one witness, it was not brought forth and offered in evidence on advice of his counsel who represented him at the time and during the pendency of all this other proceedings.
WHEREFORE, because of these circumstances, the Defendant feels that the judgment entered in this cause should be set aside and he should be relieved from said judgment because of these representations made to him by the many people who were interested in these proceedings who were trying to take his land away from him and drive him off the place.

Code 1975, § 35-4-20, provides that “. . . the execution of such conveyance must be attested by one witness or, where the party cannot write, by two witnesses who are able to write and who must write their names as witnesses; . . . . ” (Emphasis added.)

The deed is complete and regular upon its face and no contention has been made that the grantors were unable to write. Accordingly, for purposes of this appeal we assume the deed to be valid.

The trial court summarily denied this motion by stating “that a Rule 60, ARCP, motion is not the vehicle to seek the relief that the Defendant is requesting in this case.”

Because the motion was filed five months and twenty days after judgment clauses (1), (2) and (3) of Rule 60(b) are inapplicable. Clauses (4) and (5) are not pertinent; therefore, if J. C., Jr. is to prevail he must proceed under clause (6) of the rule which provides, “any other reason justifying relief from the operation of the judgment.”

Our Rule 60 is almost identical to its Federal counterpart. Wright & Miller, Federal Practice and Procedure: Civil § 2864 provides us with a general statement:

A quite typical kind of case is that in which a party comes in more than a year [four months] after judgment to assert that he is the victim of some blunder by his counsel. Claims of this kind seem to fit readily enough within such grounds as mistake, inadvertence, and excusable neglect, all stated in clause (1), and courts frequently have so reasoned and held that clause (6) was inapplicable. But if the court is persuaded that the interests of justice so require, it is likely to find aggravating circumstances sufficient to permit it to say that the case is properly within clause (6).

The trial court denied the motion without a hearing. It is inferable from the language of the order denying the motion that the court reasoned that a Rule 60 motion was not available, in any event, to remedy situations like the one presented here. If that be the case, we think the court misconceived the spirit of the rule. On the record before us we cannot say that the court abused its discretion in denying the motion, but we are of the opinion that a hearing should be held to determine the circumstances which led to the failure of the deed being offered into evidence. The hearing should also include an inquiry into the validity of the deed.

If it turns out that the deed is valid, then it would have provided at least a partial defense to the original law suit and would restore to J. C., Jr. the land that is rightfully his.

We are aware that trial courts usually have wide discretion in determining whether to grant Rule 60(b) motions, but that discretion is not unbridled. The rules of civil procedure have been designed to allow some flexibility, particularly in an effort to do what is right and just. If the deed proves to be valid then we strongly suggest that the trial court consider granting the motion.

The judgment is reversed and the cause is remanded for a hearing.

REVERSED AND REMANDED WITH DIRECTIONS.

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


source: Caselaw Access Project

author: EMBRY, Justice.

license: Public Domain

text:
    Ida Mae LOWE, Mother of George Ernest Lowe, a minor, deceased v. Charlie GRAVES, a minor, Dr. Hodge M. Eagleson, Jr., and Dr. Howard Goldstein.
    80-445.
    Supreme Court of Alabama.
    Sept. 25, 1981.
    Dale Segrest of Segrest & Pilgrim and Richard H. Gill of Copeland, Franco, Screws & Gill, Montgomery, for appellant.
    Thomas H. Keene and Charles A. Stakely of Rushton, Stakely, Johnston & Garrett, Montgomery, for appellees.
   EMBRY, Justice.

This is an appeal from the denial of an injunction seeking to bar attorney Fred Gray from appearing as co-counsel for one of the defendants in this wrongful death action.

The facts giving rise to this action show that George Lowe, fourteen years of age, was struck in the head with a metal chair leg by a schoolmate, Charlie Graves, while the two were riding the bus home from school. Lowe died three days later after the alleged failure to diagnose and treat a fractured skull and epidural hematoma by physicians at John A. Andrew Memorial Hospital on two occasions, and by Dr. Hodge Eagleson, Jr., at his private office on another occasion.

As a result of Lowe’s death, Charlie Graves was charged with manslaughter and tried in juvenile proceedings. Graves was represented in those juvenile proceedings by court-appointed counsel, Ernestine Sapp, who was, and has been at all times relevant to these proceedings, an associate in the law practice with Gray.

Subsequently, this wrongful death action was filed against Graves, several physicians, the hospital, and others. As the result of pro tanto settlements and dismissals, only Graves, Dr. Eagleson, and one other physician remain as defendants.

Gray initially appeared as counsel for the hospital in the civil suit, but soon thereafter withdrew this representation. He later appeared as co-counsel for Dr. Eagleson.

Graves was represented throughout the civil litigation by appointed counsel, Allan Nathanson, who at no time objected to Gray’s appearance. In fact, when the matter was discussed before the trial judge in open court, Nathanson specifically stated that he intended to make no objection to Gray’s representation of Dr. Eagleson.

Appellant, nevertheless, petitioned the trial court for an injunction barring Gray from representing Dr. Eagleson because Gray’s associate, Sapp, had previously represented Graves in the juvenile proceedings. Injunctive relief was denied and this appeal from the judgment entered thereon ensued.

Here, appellant maintains that Gray’s participation in this litigation violates DR 5-101(C), Alabama Code of Professional Responsibility, which deals with conflict of interest arising out of prior representation of an adverse party or adverse interest, and extends to partners or associates by virtue of DR 5-101(D). Appellant also contends that Gray’s appearance on behalf of Dr. Eagleson breaches the confidentiality rules governing juvenile proceedings embodied in Code 1975, §§ 12-15-65, -100 and -101, and Rule 19, A.R.J.P. Additionally, it is argued that Gray’s representation will reveal communications privileged by the attorney-client relationship.

Finally, appellant urges a decision preventing Gray’s representation of Eagleson, as a matter of policy, because Gray has access to information which would result in an inherently unfair trial and would present to the public the appearance of impropriety in judicial proceedings.

Before proceeding to counter each of appellant’s contentions, appellees assert that this appeal should be dismissed because appellant had no standing to seek the injunction. Only Graves, appellees contend, has standing to object to Gray’s representation of Dr. Eagleson, and neither he nor his counsel has chosen to do so.

The question of standing is disposi-tive of this appeal and therefore we affirm the action of the trial court in denying injunctive relief. “The principle seems to be fully established that only a party who sustains the relation of a client to an attorney, who undertakes to represent conflicting interests, may be entitled to object to such representation for that reason alone.” Riley v. Bradley, 252 Ala. 282, 41 So.2d 641 (1948).

This proposition was also addressed by the Fifth Circuit in In re Yarn Processing Patent Validity Litigation, 530 F.2d 83 (5th Cir. 1976):

As a general rule, courts do not disqualify an attorney on the grounds of conflict of interest unless the former client moves for disqualification. E. F. Hutton & Co. v. Brown, 305 F.Supp. 371, 377 (S.D.Tex.1969); Murchison v. Kirby, 201 F.Supp. 122 (S.D.N.Y.1961); Davis v. Poelman, 178 So.2d 306, 311 (La.App.1965); Almon v. American Carloading Corp., 312 Ill.App. 225, 38 N.E.2d 362, 364-65 (1941), rev’d on other grounds, 380 Ill. 524, 44 N.E.2d 592 (1942); Ferguson v. Alexander, 122 S.W.2d 1079, 1081 (Tex. Civ.App.1938); and Richardson v. Hamilton International Corp., 333 F.Supp. 1049, 1054-55 (E.D.Pa.1971), aff’d 469 F.2d 1382 (3d Cir. 1972), cert. denied, 411 U.S. 986, 93 S.Ct. 2271, 36 L.Ed.2d 964 (1973)... .
.. . The underlying rules relating to attorney conflicts of interest are designed to allay any apprehension a client may have in frank discussion of confidential information with his attorney. Public confidence in the privacy of this discussion should not be impaired where the former client, having every opportunity to do so, fails to object to a new relationship involving his former attorney, and where the unethical nature of the attorney’s change of sides is not manifest but would need to be shown.
To allow an unauthorized surrogate to champion the rights of the former client would allow that surrogate to use the conflict rules for his own purposes where a genuine conflict might not really exist. It would place in the hands of the unauthorized surrogate powerful presumptions which are inappropriate in his hands. Courts do not generally examine the motives of a moving party in a disqualification motion. Once the preliminary showing is made by the former client, the motion must be granted regardless of whether the former client gains an advantage at the expense of his adversary.... We are reluctant to extend this where the party receiving such an advantage has no right of his own which is invaded.

As appellant has asserted no former or present attorney-client' relationship with Gray, she is without standing to seek in-junctive relief barring Gray’s representation of Dr. Eagleson. Accordingly, the judgment below regarding the matter here being considered is due to be and is hereby affirmed.

AFFIRMED.

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


author: MADDOX, Justice.

text:
    Ex parte MARSH & McLENNAN, INC. and M & M Protection Consultants. (In re Minnie L. KING, etc. et al. v. MARSH & McLENNAN, INC., M & M Protection Consultants, et al.)
    80-634.
    Supreme Court of Alabama.
    Sept. 25, 1981.

      Alton R. Brown, Jr. and E. J. Saad of Brown, Hudgens, Richardson, Whitfield & Gillion, Mobile, for petitioners.
    Bert S. Nettles and Kenneth 0. Simon of Nettles, Cox & Barker, Mobile, for respondents.
   MADDOX, Justice.

Marsh & McLennan, Inc., and M & M Protection Consultants, defendants in a wrongful death action filed in Mobile Circuit Court, petition this Court for a writ of mandamus and pray that the trial judge be ordered to withdraw his order compelling discovery of certain documents. The primary issue is whether or not the trial judge abused his discretion by placing unreasonable and undue requirements on the petitioners when he ordered them to 'produce certain documents sought to be inspected by the plaintiffs.

The order complained about was issued after the trial court had denied a motion for a protective order filed by the petitioners regarding the documents in question.

Petitioners assert that the trial judge’s order did not provide a reasonable time for compliance (the trial judge required production within 10 days), that the scope of the order was too broad, that the petitioners were unduly prejudiced when the trial court refused to hear one of their witnesses on the issue, and that the documents contained confidential research and commercial information.

We have carefully reviewed the record in this case and we are of the opinion that the petition for mandamus is due to be denied.

The applicable law on the use of mandamus to review decisions of trial judges in matters of discovery is stated in Assured Investors Life Insurance Co. v. National Union Associates, Inc., 362 So.2d 228 (Ala.1978), at pp. 231-232, as follows:

It is well settled that the Rules on deposition and discovery are to be broadly and liberally construed, Cole, [v. Cole Tomato, Sales, Inc., 293 Ala. 731, 310 So.2d 210] supra. Rule 26(c), supra, recognizes, however, that the right to discovery is not unlimited, and the trial court has broad powers to control the use of the process to prevent its abuse by any party. See Campbell v. Eastland, 307 F.2d 478 (5th Cir.1962); and DeLong Corp. v. Lucas, 138 F.Supp. 805 (S.D.N.Y.1956). The Rule does not allow an arbitrary limit on discovery; instead, it vests the trial court with judicial discretion in the discovery process. The question on review, then, becomes one of whether, under all the circumstances, the court has abused this discretion. Campbell v. Regal Typewriter Co, 341 So.2d 120 (Ala.1976). An appellate court may not decide whether it would, in the first instance, have permitted the prayed for discovery. Furthermore, it is unusual to find abuse of discretion in these matters. Swanner v. United States, 406 F.2d 716 (5th Cir.1969); Tiedman v. American Pigment Corp., 253 F.2d 803 (5th Cir.1958); Ex parte Alabama Power Co., 280 Ala. 586, 196 So.2d 702 (1967); and 35A C.J.S. Federal Civil Procedure §§ 532, 592.

In order to be entitled to the protective order, the movants had the burden of showing good cause why production of the documents requested by the plaintiffs in the civil action would be unduly burdensome. See Assured Investors Life Insurance Co. v. National Union Associates, Inc., supra.

We will not discuss at great length each claim made by petitioners, but we have carefully examined each claim and have reviewed the record, and after applying the applicable law, we are convinced (1) that the trial court did not order discovery within an unreasonably short period of time and did not order the production of documents which were beyond the scope of plaintiff’s initial request (2) that the trial court did not abuse its discretion in declining to hear the testimony of petitioners’ witness in support of their motion to reconsider, (3) that the trial court did not abuse its discretion in denying petitioners’ motion for a protective order over petitioners’ objection that production of the requested documents was burdensome and expensive, and (4) that the trial court did not abuse its discretion in denying petitioners’ motion for a protective order over petitioners’ objection that the requested documents contained confidential information.

Petitioners do present one argument which we will discuss in some detail. In their petition, petitioners assert:

The plaintiffs, through their subpoena duces tecum and Request for Production of Documents sought production as follows:
“(2) Loss control program evaluations, special consultation reports or other documents resulting from visits to industrial or manufacturing plants other than Stauffer Chemical Company plants which, as part of their normal operations, unload toxic chemicals from tank/trailer trucks.”
The Trial Court, by its Order of June 2, 1981, compelled discovery of documents described as follows:
“(2) Defendants Marsh and McLennan and M & M Protection Consultants are to produce within ten (10) days from the date of this Order all of the safety inspection reports, loss control program evaluations, special consultation reports or similar such documents, however titled that have been made or reviewed by Defendants Marsh and McLennan or M & M Protection Consultants, or any of their divisions or subcomponents during the years 1975-1978 with all of the companies they have done business with; and aforesaid documents are to be produced to delivery to the Clerk of this Court or to the offices of Nettles, Cox and Barker and wherever delivered are to be made available for inspection and copying by attorneys for the Plaintiffs and attorneys for Chem-Haulers, Inc. (if delivered to the Clerk of this Court, any and all of such documents may be withdrawn by attorneys for the Plaintiffs and attorneys for Chem-Haulers, Inc., for inspection and copying).”
As can be clearly seen, the Trial Court’s Order not only addressed companies which “as part of their normal operations unload toxic chemicals from tank/trailer trucks” but also required production of documents which did not result from visits to industrial or manufacturing plants other than Stauffer Chemical Company, which as part of their normal operation, unload toxic chemicals from tank/trailer trucks. As such, the Trial Court’s Order was considerably broader than the initial subpoena duces tecum and Request for Production of Documents as filed by the Plaintiffs.
Respondents, in their reply to this argument, state the following:
Petitioners also argue that the Trial Court went far beyond Plaintiffs’ initial request for production by ordering the production of all of its safety inspection reports, rather than just those reports resulting from visits to industrial plants which normally unload toxic chemicals. This contention is without merit, inasmuch as the clear context in which the order was made related to companies which unload chemicals on a regular basis. Indeed, these are the only documents which would be relevant under the facts of this case.

It is apparent that the respondents desired only those documents related to companies which unload chemicals on a regular basis. We interpret the effect of the trial judge’s order as the respondents construe it, that is, the order is limited to those companies which unload chemicals on a regular basis.

WRIT DENIED.

All the Justices concur.

      . If petitioners have great difficulty in meeting the deadline set by the Court, nothing we say will prevent petitioners from requesting of the trial court additional time within which to comply-


author: TORBERT, Chief Justice.

text:
    James Monroe RUSSELL v. John Henry RUSSELL, et al.
    80-122.
    Supreme Court of Alabama.
    Oct. 2, 1981.

      Michael Quinn, Birmingham, for appellant.
    Olin W. Zeanah and William J. Donald, III of Zeanah, Donald & Hust, Tuscaloosa, for appellees.
   TORBERT, Chief Justice.

This action was brought as a petition for the sale of property for division. The facts of this appeal come from the trial of two separate eases concerning the ownership of approximately eighty-six acres of land in Tuscaloosa County. The property was originally owned by Henry Russell. who died intestate in 1910. The first case was filed by certain plaintiffs, purporting to be heirs of Henry, against the heirs of Cornelius Russell, one of Henry’s children, for the sale of the property and division of the proceeds. After the conclusion of that case and a determination that only the heirs of Cornelius were entitled to the property, the second case was filed to determine the true heirs of Cornelius so that the division could be carried out. The plaintiffs in this action were Annie Russell McClyde, James Henry Russell, Brenda A. Russell, John Henry Russell, and Lewis Russell. The defendant was James Monroe Russell, who now appeals.

Cornelius had a number of children. One of those children was John Wesley Russell, now deceased, upon whom the focus of this second suit is centered. The plaintiffs all claimed to be the children of John Wesley and thus the heirs of Cornelius. In his pleadings, however, the appellant, James Monroe, raised, as affirmative defenses, that he solely owned the property by virtue of adverse possession and prescription, but the defenses were stricken on motion of the plaintiffs on the grounds of res judicata, collateral estoppel, and/or estoppel. Subsequently, the jury returned a verdict finding John Henry and James Henry to be the sons of John Wesley and, therefore, the heirs of Cornelius.

In the initial action for sale of land for division and a determination of Henry’s heirs, James Monroe and twelve other defendants filed a joint answer, pleading that they, as heirs of. Cornelius, jointly owned the eighty-six acres of land, that the descendants of Cornelius were the only persons owning any interest in the property, and that a separate ten-acre parcel of land was owned solely by James Monroe. At the conclusion of the trial, the jury returned a special verdict based upon interrogatories submitted to them. From these interrogatories it was decided that Henry’s only heirs were Eli Russell and Cornelius Russell. It was also determined, however, that Cornelius’s heirs had dispossessed Eli’s heirs by adverse possession and prescription. The additional ten-acre parcel of land was found to be owned solely by James Monroe.

It was soon thereafter that the plaintiffs in this action filed suit against James Monroe for sale of the property for division. When James Monroe’s defenses of adverse possession and prescription were stricken, he defended on the grounds that the plaintiffs were not heirs of Cornelius. Appellant does not appeal the verdict that John Henry and James Henry are heirs of Cornelius. Appellant does, however, appeal the court’s striking of his affirmative defenses. For the reasons set forth below, we affirm.

In Wheeler v. First Alabama Bank of Birmingham, 364 So.2d 1190 (Ala.1978), this Court concisely set out the elements of res judicata and collateral estoppel:

Res judicata and collateral estoppel (es-toppel by judgment) are two separate rules or sets of rules for determining the conclusiveness of judgments. See Webster v. Gunter, 336 So.2d 170, 172 (Ala.1976) (Almon, J., concurring specially).
The elements of res judicata are as follows: (1) prior judgment rendered by court of competent jurisdiction; (2) prior judgment rendered on the merits; (3) parties to both suits substantially identical; and (4) same cause of action present in both suits. Stevenson v. International Paper Co., 516 F.2d 103 (5th Cir. 1975). If these elements are present, then the former judgment is an absolute bar to any subsequent suit on the same cause of action, including any issue which was or could have been litigated in the prior action. McGruder v. B & L Construction Co., 331 So.2d 257 (Ala.1976).
Collateral estoppel operates where the subsequent suit between the same parties is not on the same cause of action. Requirements for collateral estoppel to operate are (1) issue identical to one involved in previous suit; (2) issue actually litigated in prior action; and (3) resolution of the issue was necessary to the prior judgment. Stevenson v. International Paper Co., supra. If these elements are present, the prior judgment is conclusive as to those issues actually determined in the prior suit. Gulf American Fire & Casualty Co. v. Johnson, 282 Ala. 73, 209 So.2d 212 (1968).

364 So.2d at 1199.

We agree with appellant that res judicata cannot apply here. The fourth element, that the cause of action be the same in both cases, is not present. The reason for this is that in the initial action the trial court stopped short of determining who Cornelius’s heirs were and did not complete the sale of the property for division, thus opening the door for this second suit.

The requirements for collateral es-toppel to apply, however, do not depend on the cause of action and are present in this case. Both suits contained an identical issue: Who owns and who does not own an interest in the eighty-six acres of land so that the trial court can determine if the land should be sold for division. Thus, the first element is satisfied.

The second element, that the issue was actually litigated in the prior action, is also present. In the first action, the jury found that Eli and Cornelius were the only heirs of Henry and that the heirs of Cornelius had dispossessed the heirs of Eli by adverse possession and prescription. The jury also determined that James Monroe was the sole owner of the north ten acres of the additional tract of land claimed in the pleadings. Finally, in its final decree and based on the verdict of the jury, the trial court held “that the heirs of Cornelius are the sole owners of the portion of the property.... ” [Emphasis supplied.] From the pleadings, in which appellant claimed the ten acres for himself and the eighty-six acres for the heirs of Cornelius by adverse possession and prescription, and from the final decree in the first case, it appears that the issue of who rightly owned the property, by virtue of adverse possession and prescription, was actually litigated in the first case.

The third element of collateral estoppel, the resolution of the issue being necessary to the prior judgment, is also present. Indeed, the gist of the initial suit was who owned the property and whether the heirs of Cornelius had acquired full ownership through adverse possession and prescription. Therefore we find no error in the order of the trial court striking the defendant’s defenses on the grounds of collateral estoppel. See, Wheeler v. First Alabama Bank of Birmingham, 364 So.2d 1190 (Ala.1978); Gulf American Fire and Casualty Co. v. Johnson, 282 Ala. 73, 209 So.2d 212 (1968).

This conclusion is strengthened by appel-lees’ third specific ground upon which their motion to strike was based. Appellees contend that James Monroe was estopped from claiming sole ownership of the eighty-six acres through adverse possession and prescription by virtue of his pleadings in the initial case. As ■ stated above, appellant pleaded in the initial action that the defendants jointly owned the property by virtue of adverse possession and prescription and that he solely owned the ten-acre parcel of land. Furthermore, based on these pleadings and the evidence presented, the trial court held that the heirs of Cornelius owned the property and that James Monroe alone owned the ten-acre parcel of land. Yet, in this action, appellant pleaded that “[t]his defendant is the full and exclusive owner of the property described in the complaint, having acquired title thereto by adverse possession for more than twenty years.”

The law is settled in Alabama that a party who has, with knowledge of the facts, assumed a particular position in a judicial proceeding is estopped.from assuming a position inconsistent to the first one to the prejudice of an adverse party. Brown v. Terry, 375 So.2d 457 (Ala.1979); United Security Life Insurance Co. v. Birmingham Trust National Bank, 282 Ala. 295, 211 So.2d 139 (1968); Maner v. Maner, 279 Ala. 652, 189 So.2d 336 (1966); Watt v. Lee, 238 Ala. 451, 191 So. 628 (1939); Bromberg v. First Nat. Bank of Mobile, 235 Ala. 226, 178 So. 48 (1937); Wright v. Fannin, 229 Ala. 278, 156 So. 849 (1934); Brown v. French, 159 Ala. 645, 49 So. 255 (1909). Likewise, a party who, for the purpose of maintaining a cause or defense, has deliberately represented a fact or claim in one aspect, cannot be permitted to contradict his own representation by giving the same thing another aspect. Watt v. Lee, 238 Ala. 451, 191 So. 628 (1939); Bromberg v. First Nat. Bank of Mobile, 235 Ala. 226, 178 So. 48 (1937); Wright v. Fannin, 229 Ala. 278, 156 So. 849 (1934). When a party obtains or defeats a judgment by pleading or representing a thing or judgment in one aspect, that party will be estopped from giving it in another aspect in a suit founded upon the same subject matter. Maner v. Maner, 279 Ala. 652, 189 So.2d 336 (1966); Watt v. Lee, 238 Ala. 451, 191 So. 628 (1939); Bromberg v. First Nat. Bank of Mobile, 235 Ala. 226, 178 So. 48 (1937); Wright v. Fannin, 229 Ala. 278, 156 So. 849 (1934); McQuagge Bros., Inc. v. Thrower, 214 Ala. 582, 108 So. 450 (1926). Thus, when a party defeats a judicial proceeding by alleging in his pleadings a particular state of facts, he cannot be heard to subsequently deny or disprove those facts in defense of another proceeding. Watt v. Lee, 238 Ala. 451, 191 So. 628 (1939); Bromberg v. First Nat. Bank of Mobile, 235 Ala. 226, 178 So. 48 (1937); Wright v. Fannin, 229 Ala. 278, 156 So. 849 (1934).

All the requirements for the application of estoppel exist in the present case. James Monroe certainly knew the facts. If he wanted to claim sole ownership of the eighty-six acres, he should have made that claim along with his claim for the ten-acre parcel of land. The fact that he did not do so is binding on him and he cannot now change this position to the prejudice of the other heirs of Cornelius.

For the foregoing reasons, we find no error in the decision of the trial court to strike appellant’s defenses of adverse possession and prescription. Accordingly, the trial court is due to be affirmed.

AFFIRMED.

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

      . Since all parties involved in this appeal are surnamed Russell, we shall refer to them only by their first names after their initial use.


text:
    MASS APPRAISAL SERVICES, INC. v. Bernard CARMICHAEL.
    80-160.
    Supreme Court of Alabama.
    Oct. 2, 1981.

      G. Griffin Sikes, Jr. of Steiner, Crum & Baker, Montgomery, for appellant.
    Joel F. Dubina and Robert B. Stewart of Jones, Murray, Stewart & Yarbrough, Montgomery, for appellee.
   EMBRY, Justice.

This is an appeal by Mass Appraisal Services, Inc., from a judgment and amendment thereto entered 29 August 1980 and 15 October 1980 respectively. The action was to resolve disputes arising out of a contract of 13 September 1972 between Bernard Carmichael and Hunnicutt & Associates, Inc., defining those parties’ respective rights, duties, obligations and compensation for the performance of anticipated mass reappraisal contracts with certain counties in the State of Alabama. We affirm.

This is a very complex case which was greatly clarified by the approach taken to it on the part of the skilled and learned trial judge. The opinion of this court will, we think, be more readily understood if we set out in the opinion the pre-trial order (from which we omit the exhibit attached thereto). It reads as follows:

PRE-TRIAL ORDER
I. STIPULATED FACTS
This suit arises out of a September 13, 1972 contract (hereinafter “basic contract”) between Bernard Carmichael (hereinafter “Carmichael”) and Hunnicutt & Associates, Inc., (hereinafter “Hunnicutt”) which defined the two parties’ respective rights, duties, obligations and compensation for the performance of anticipated mass reappraisal contracts with Alabama counties.

In anticipation of Carmichael’s contracting with various Alabama counties to perform the mass reappraisal work required by Weissinger v. Boswell, 330 F.Supp. 615 (M.D.Ala.1971) and Act No. 160 of the 1971 Legislature, the parties Carmichael and Hunnicutt entered the basic contract.

The evidence is in dispute as to which party drew the basic contract.

Act 160 required each county of the State to reappraise all real property within the county. It further required the Department of Revenue of the State of Alabama to supervise and regulate the program of reappraisal of all real property in the State of Alabama by prescribing procedures and standards to accomplish the work to be done under the program. In early 1972, the Revenue Department of the State of Alabama issued such a statement of procedures and standards in the form of a PROPERTY APPRAISAL HANDBOOK. At Page 42 of the handbook is a “sample uniform contract” which the Department required the County Boards of Commissioners to use in contracting with the prime contractor for the work. Section II of the sample contract (pages 46-53 of the handbook) specifies the services to be performed by the prime contractor.

The basic contract (the parties’ September 13, 1972 Contract) contemplated Carmichael using this sample contract to contract with Alabama counties and for Carmichael then to sub-contract that portion of the work specified in the basic contract to Hun-nicutt.

The pertinent parts of the basic contract are:

2. If Carmichael is successful in receiving a contract with the State of Alabama ... he will enter into a written contract with the State of Alabama or its subdivisions in his own name whereby Hunnicutt will perform the original mass appraisal services bid upon for the previously quoted bid amount.
3. Carmichael will communicate all bids to the State of Alabama or its subdivisions and will act as liaison during the contract term and including through the acceptance by the State of Alabama or its subdivisions of work required under the contract, will make all State and local contracts, will act as consultant as is more fully set out in paragraph 4 below, and will attend all formal hearings necessitated by the laws and revenue rulings of the State of Alabama or its subdivisions.
6. For each transaction wherein Carmichael is the “contractor” and Hunnicutt the “subcontractor,” Hunnicutt shall furnish, at its own expense, a performance bond or bonds in favor of the State of Alabama or its subdivisions and in favor of Carmichael as well, in such amounts as will fully protect them from any and all losses under the contract.
7. Hunnicutt shall, as subcontractor, make all appraisals called for by the said contract and furnish to the State of Alabama or its subdivisions, on forms suitable therefor, all data and information required thereunder, all to be done in accordance with the terms and provisions of the Property Appraisal Handbook of the State of Alabama, with the appraisal manual of the State of Alabama and any supplements thereto or revisions thereof, and in accordance with any and all laws, revenue rulings, and directives appertaining thereto, whether the same are now in existence or not.
12. Hunnicutt further agrees to indemnify and hold Carmichael harmless from any and all actions, suits, or claims which may be brought against Carmichael because of any appraisal or other work or service performed hereunder by any person other than Carmichael whether arising in tort or contract, and whether the same shall have merit or not.
13. Carmichael further agrees to indemnify and hold Hunnicutt harmless from any and all actions, suits, or claims which may be brought against Hunnicutt because of any appraisal or other work or service performed solely by Carmichael whether arising in tort or contract, and whether the same shall have merit or not.
14. Nothing herein contained shall be construed to place the parties in the relationship of partnership or joint venture, and neither party hereto shall have the power to obligate or bind the other except as the same may be hereinafter contracted by and between the parties hereto.
15. This agreement represents the entire understanding of the parties, and there are no representations, promises, warranties, covenants, or other understandings or undertakings, oral or written, except those contained in this agreement. Should any sentence, paragraph, clause, or combination of the same be held unenforceable or in conflict with the law in this jurisdiction, the validity of the remaining parts or provisions shall not be affected by such holding. It is the intention of both parties that this agreement shall be binding only to the extent that it may be lawful under state and federal law.
18. This agreement can be modified only by an instrument in writing signed by both parties.
19. This agreement is made and entered into in the State of Alabama and is made in contemplation of the laws thereof and shall be construed in accordance with such laws.
(Enumeration of these clauses does not preclude consideration of other clauses in the contract insofar as they may be applicable to any other contentions of the parties.)

Subsequent to the basic contract, Carmichael submitted bids (based upon bids supplied by Hunnicutt) to several Alabama counties. On the basis of those bids, Carmichael contracted (using the sample contract) with the Coffee, Macon, DeKalb, Calhoun and Henry County Board of Commissioners to reappraise real properties in these counties. Each of these contracts (hereinafter referred to as the county. contracts) was solely between Carmichael and the respective county and there is no reference to Hunnicutt in these contracts. These five county contracts which are, for all purposes germane to these suits, virtually identical, provide, inter alia:

“The company shall furnish without additional charge a competent representative of the company to appear at all formal hearings before the county Board of Equalization upon the assessed values based on the reappraisal. In the event of appeal to the courts a company representative will, without additional costs to the County, be present at the hearings to testify as a witness, to outline the steps taken in the appraisal or reappraisal of the real property, and to give his opinion as to the value of the property involved in the court action. . .. ”

The Board of Equalization afforded property owners an opportunity to object to the amount of the appraisal or assessment or to point out alleged errors in the appraisal of their property.

Prior to the Board of Equalization hearings in each of the five counties, informal hearings were held as required by the county contracts at which the property owners in the respective counties were given an opportunity to review the appraisals of their property and point out alleged errors in those appraisals. Property owners were mailed notices of these hearings prior to their being held. Notices included, among other things, the time, date and place of the hearings, the appraised value of the owner’s property, and a legal description of the owner’s property; including acreage and/or lot, block and subdivision name. These information hearings were attended by Hun-nicutt personnel.

Subsequent to Carmichael’s contracting with the five Alabama counties, Carmichael and Hunnicutt entered contracts (hereinafter referred to as the county subcontracts) which provide:

“Hunnicutt & Associates, Inc. will fully perform that certain agreement between . .. County, Alabama and Bernard Carmichael, dated ... to the extent and in the manner required of it under the terms of its contract with Bernard Carmichael, dated September 13, 1972. Hunnicutt & Associates, Inc. agrees to hold Bernard Carmichael harmless from any and all claims, suits, judgments, awards and penalties .. . which may arise out of the performance by Hunni-cutt & Associates, Inc, of its obligation hereunder.”
“For the same consideration, Bernard Carmichael agrees to do and perform all of the obligations set out in his contract with Hunnicutt & Associates, Inc. dated September 13, 1972.”
(Enumeration of these clauses does not preclude consideration of other clauses in the contract insofar as they may be applicable to any other contentions of the parties.)

The subcontracts were drawn by the law firm of Jones, Murray, Stewart & Yarb-rough, acting as counsel for Bernard Carmichael. As with the county contracts, the subcontracts are identical.

This suit was filed by Hunnicutt after a dispute arose between Carmichael and Hun-nicutt as to which party had responsibility to provide or pay a representative to attend Board of Equalization hearings in the five Alabama counties with which Carmichael had contracted.

Payments from the counties have been placed in escrow by Carmichael pending a decision in this case. Cost of the Board of Equalization hearings in the amount of $78,271.26 have been paid from the escrow account.

The parties have agreed on an accounting of all receipts and expenditures under the contracts and a computation of interest to August 25, 1980. It is attached as Exhibit A. The accounting assumes that payments from Macon County and from DeKalb County have been received.

II. ISSUES OF FACT

1. Whether Carmichael or Hunnicutt drafted the basic contract.

2. The quality of work performed by Hunnicutt is not an issue.

III. ISSUES OF LAW

1. Whether the contracts are ambiguous.

2. Which party under the terms of the basic contract, county contracts, and county subcontracts has the duty to provide or pay a competent representative to attend the Board of .Equalization hearings in the five counties.

3.Do the hold-harmless agreements of the contracts include either [party’s] attorney’s fees and costs incurred in this suit?

VII. ACCOUNTING

The parties stipulate, based on the computations of Exhibit A attached hereto and incorporated herein, that:

(1) Should the court rule that Hunnicutt had the duty or responsibility to provide or pay a representative to attend the Board of Equalization hearings in the five counties, judgment against Carmichael and in favor of Mass Appraisal Services, Inc. should enter for:

(a) The sum of $188,619.62 plus the sum of $72,947.28 when collected by Carmichael from Macon County and the sum of $6,808.18 when collected by Carmichael from DeKalb County.
(b) All certificate of deposit and passbook savings account interest accrued or accruing on sums collected from the five counties and held by Carmichael.
(c) Interest from the date of trial until entry of judgment at the rate of $9.18 per day.

(2) Should the court rule that Carmichael had the duty or responsibility to provide or pay a representative to attend the Board of Equalization hearings in the five counties, judgment against Carmichael and in favor of Mass Appraisal Services, Inc. should enter for:

(a) The sum of $284,615,93 plus the sum of $72,947.28 when collected by Carmichael from Macon County and the sum of $6,808.18 when collected by Carmichael from DeKalb County.
(b) All certificate of deposit and passbook savings account interest accrued or accruing on sums collected from the five counties and held by Carmichael.
(c) Interest from the date of trial until entry of judgment at a rate of $21.77 per day.

The parties agree and stipulate that regardless of which of the two accountings the court enters, in the event that less than $72,947.28 is collected from Macon County and/or that less than $6,808.18 is collected from DeKalb County, this court shall retain jurisdiction of this action to hear and determine the relative rights and duties of the present and any future added parties regarding the collection of these sums from Macon and DeKalb Counties and any other matters relating hereto.

After considering the testimony of twelve witnesses and forty-four items of documentary evidence, both the testimony and the exhibits being quite voluminous, and without the aid of a jury, the trial court entered the following amended judgment which contains the findings and conclusions about which Mass Appraisal complains:

AMENDED ORDER
This matter coming on for hearing is submitted on the testimony, exhibits and stipulations of both parties. The Court has also had the benefit of argument of able counsel. Based upon the material evidence the Court is of the opinion and finds:
1. That the Contract of September 13, 1972, between Bernard Carmichael and Hunnicutt & Associates, Inc. was probably initiated by Carmichael; however, the Contract passed back and forth several times so that each of the parties had an equal opportunity to consider and amend its terms with the result that they were mutually agreed upon.
2. That the language contained in Paragraph 3 of this Contract is not on its face ambiguous, but when considered in the light of the different interpretations of the parties, the wording of the Contract between Bernard Carmichael and the Counties and the Supplemental Contract between Carmichael and Hunnicutt & Associates, Inc. for each county, there is sufficient ambiguity for the Court to consider all of the surrounding circumstances relating to the making and carrying out of this series of Contracts.
3. That the wording of Paragraph 3 of the Contract required Carmichael to attend hearings of the Board of Equalization, but his duty did not extend beyond attending.
4.Under the Contract documents, Hunnicutt & Associates, Inc. had the duty to staff the Boards of Equalization hearings or to pay the costs of staffing such hearings. The parties have stipulated that Bernard Carmichael has paid out of escrowed funds the sum of $78,271.26 as the partial cost of discharging this duty.
4. That the parties in their Pre-Trial Order have stipulated the amount of judgment, including interest, to be entered in the event of finding for either party.
5. That the Defendant Carmichael is not entitled to recover attorney’s fees under the provisions of the Contract of September 13, 1972.
6. That the Defendant is entitled to be reimbursed for costs of staffing the hearings of the Boards of Equalization in the amount of $78,271.26.
It is therefore, CONSIDERED, ORDERED, ADJUDGED and DECREED by the Court that:
1. That Hunnicutt is entitled to be paid from sums held by Carmichael in escrow:
(a) The sum of $188,619.62 plus the sum of $72,947.28 when collected by Carmichael from Macon County and the sum of $6,808.18 when collected by Carmichael from DeKalb County.
(b) All certificate of deposit and passbook savings account interest accrued or accruing on sums collected from the five counties and held by Carmichael.
(c) Interest from August 25, 1980 to date of Decree dated August 29, 1980, at the rate of $9.18 per day.
2. That the Court shall retain jurisdiction of this action to hear and determine the relative rights and duties of the present and future added parties regarding the collection of any amount due from Macon County and DeKalb County and any other matters relating hereto.
3. That all costs in this action be and the same are hereby taxed against the Plaintiff [Mass Appraisal Services, Inc.] for which let execution issue.

On appeal, Mass Appraisal states the issues to be:

(a) Is the September 13, 1972 contract ambiguous on the issue of which party was responsible for furnishing a competent representative at the formal hearings of Boards of Equalization in five Alabama counties?
(b) Did the trial court err in admitting extrinsic evidence to determine whether that contract was ambiguous?
(c) Did the trial court err in admitting testimony from a third party regarding how he and his subcontractor interpreted their totally different contract, such testimony being considered in construing the instant parties’ contract?
(d) Did the trial court err in interpreting the September 13, 1972 contract to require Hunnicutt/Mass Appraisal Services, Inc. to furnish a competent representative at the formal hearings at the Boards of Equalization in five Alabama counties?

As is readily apparent the focus of this appeal is on the primary question of whether the trial court erred when it found that the language contained in paragraph three of the contract of 13 September 1972 was ambiguous when considered in light of extrinsic evidence although not ambiguous on its face.

Able counsel for both parties have filed excellent briefs and made cogent and persuasive oral arguments, citing a plethora of authorities in support of their respective positions. However, reduced to its essentials, the judgment below stands or falls upon the determination of the answer to one single question: Did the trial court commit reversible error in holding there was no facial ambiguity in the terms of paragraphs three and seven of the 13 September 1972 contract, but were ambiguous when considered in light of extrinsic matters?

Mass Appraisal insists that once the trial court determined that no facial ambiguity was present in the basic contract, it could not proceed to examine extrinsic evidence. Indeed, this is the general rule regarding construction of contracts. Camp v. Milam, 291 Ala. 12, 377 So.2d 95 (1973).

However, it is the exception to this general rule, which neither party to this appeal has briefed or argued, that is crucial to the resolution of this case. This exception pertains to what is known as a “latent ambiguity,” which was defined in Gibson v. Anderson, 265 Ala. 553, 92 So.2d 692 (1957), as follows:

... It is said that “a latent ambiguity arises when the writing on its face appears clear and unambiguous, but there is some collateral matter which makes the meaning uncertain”, 32 C.J.S., Evidence, § 961b, p. 915; “that is, an uncertainty which does not appear on the face of the instrument, but which is shown to exist for the first time by matter outside the writing”, 20 Am.Jur., Evidence, § 1157, p. 1010. And it is well established that parol or other extrinsic evidence is admissible to explain or clarify a latent ambiguity. Kimbrough v. Dickinson, 247 Ala. 324, 24 So.2d 424, 426; Reichert v. Jerome H. Sheip, Inc., 206 Ala. 648, 652, 91 So. 618; Pieme v. Arata, 202 Ala. 427, 428, 80 So. 811; Reynolds v. Trawick, 197 Ala. 165, 167, 72 So. 378; Garrow v. Toxey, 188 Ala. 572(2), 66 So. 443; Hereford v. Hereford, 131 Ala. 573, 576, 32 So. 620; Guilmartin v. Wood, 76 Ala. 204, 209; Chambers v. Ringstaff, 69 Ala. 140, 143-145; 20 Am.Jur., Evidence, § 1157, p. 1010; 32 C.J.S., Evidence, § 961, pp. 915-918.

Although Mass Appraisal argues against the admission of extrinsic evidence to aid interpretation, the language of the basic contract, standing alone, does not clearly obligate Carmichael to pay the cost of other persons attending hearings. A literal reading of the text simply mandates that Carmichael be present at all required hearings, while obligating Hunnicutt to furnish all data and information required by the state.

The provisions which impose these duties, however, must be read in light of all other relevant provisions in the contract. In construing a similar mass reappraisal contract in this state, the three-judge panel in Green v. Russell County, 603 F.2d 571 (5th Cir. 1979), observed:

. . . We note that the Alabama Supreme Court has recently reiterated that state’s position that in reviewing contracts, courts are to “accord them a reasonable construction under the terms used by the parties who made them, and when the contracts contain several provisions, all are construed together so that a harmonious operation can be given to each provision as far as the language used will permit.” United States Fidelity & Guaranty Co. v. Jacksonville State University, 357 So.2d 952 (Ala.1978)_

Paragraph two of the basic contract provides that “[i]f Carmichael is successful in receiving a contract with the State of Alabama . . . Hunnicutt will perform the original mass appraisal services bid upon... . ” In order to determine the services to which paragraph two refers, obviously it is necessary to inspect Carmichael’s contracts with the counties which embody the terms bid upon.

As evidenced by the pertinent provision of these contracts quoted in the pretrial order, supra, the counties required the presence at the hearings of a witness who could testify to the actual steps taken in the appraisal process; also, one who could give an opinion of the value of the property appraised.

This requirement was made abundantly clear in a letter to Carmichael from Carrol Stough, Valuations Supervisor of the Ad Valorem Tax Division of the State, which said:

It is absolutely essential that a representative of Hunnicutt & Associates be present during the hearings of property owners with the Board of Equalization. It is necessary that a representative be present who is knowledgeable with appraisal procedures in the County and of the property in general. It will also be necessary that a representative knowledgeable in mapping be present to discuss mapping boundaries.

The parties do not dispute the fact that a Hunnicutt representative was required to attend the hearings.

Whether a contract is ambiguous is a question of law for the trial court. Holt v. Davidson, 388 So.2d 548 (Ala.1980); Miles College, Inc. v. Oliver, 382 So.2d 510 (Ala.1980). The court properly afforded Carmichael the opportunity to show that collateral documents, specifically Carmichael’s contracts with the counties and the .letter from Stough, created a latent ambiguity in the basic contract. Furthermore, in light of the fact that the contract terms do not clearly allocate the burden of paying the costs of attendance at the hearings by Hunnicutt’s representatives, the trial court properly determined that paragraphs three and seven were ambiguous as a matter of law.

Once the court concludes the instrument is ambiguous or uncertain in any respect, determination of the true meaning of the contract is a question for the factfinder, in this case the trial court, and the surrounding circumstances, including the construction placed on the language by the parties, are taken into consideration in order to ascertain the intention of the parties. City of Montgomery v. Maull, 344 So.2d 492 (Ala.1977); Miles College, Inc. v. Oliver, 382 So.2d 510 (Ala.1980).

In light of the fact the evidence in this case was adduced ore tenus, the findings of fact by the trial court made after a determination that ambiguity existed as a matter of law, are to be accorded a heavy presumption of validity, and they will not be disturbed unless palpably erroneous. Ford v. Alabama By-Products Corp., 392 So.2d 217 (Ala.1980).

Mass Appraisal contends, however, that evidence relied upon by the trial court included inadmissible testimony. The evidence complained of was certain testimony of John E. Green, an individual who, as a prime contractor, had entered into a mass appraisal contract similar to the one between Carmichael and Hunnicutt.

The dealings between Green and his subcontractor were unrelated to the transaction between the parties to this action. Nevertheless, the court permitted Green to testify, over Mass Appraisal’s objection, regarding how Green and his subcontractor interpreted their contract; specifically provisions relating to representation at Boards of Equalization hearings.

Mass Appraisal objected to this testimony, citing Loftin’s Rent-All, Inc. v. Universal Petroleum, 344 So.2d 781 (Ala.Civ. App.1977), particularly for its statement of the rule of res inter alios acta. That rule excludes evidence of acts, declarations, and dealings between those not parties to the action. From the Latin: Events or things between others.

We are of the opinion the trial court committed error in allowing Green’s testimony regarding his unrelated contract. No inference which may be found from the interpretation of the parties to a collateral contract can be accepted as shedding light on the intention of the parties when executing or performing the contract in dispute between the parties to this action. However, we cannot find that reversible error resulted from admission of this testimony.

There is substantial evidence of record, exclusive of Green’s testimony about this collateral contract, to support the trial court’s conclusions from its findings of fact regarding the contract in dispute here. Much of this evidence came from testimony by Green as an expert on matters other than about his contract.

The record reveals that Green was instrumental in organizing, on behalf of the Department of Revenue, the state’s mass reappraisal program, under, and according to which, Carmichael and Hunnicutt entered into their contract. Additionally, Green wrote the appraisal manual by the terms of which all contractors and subcontractors in the program were required to operate. He also acted as an advisor to the Department of Revenue throughout the mass reappraisal program. Based on these qualifications, in addition to an extensive educational, publishing, and work background in the appraisal profession, Green testified it was the responsibility of the subcontractor who did the actual appraisal work to staff the Board of Equalization hearings and he knew of no prime contractor involved in the program who had assumed that responsibility.

We have also considered Stough’s letter requiring attendance at Boards of Equalization hearings by a Hunnicutt representative in light of Hunnicutt’s stated obligation under paragraph seven of the basic contract to furnish the state and counties with all information required by the state in compliance with its property appraisal handbook and appraisal manual, “and in accordance with any . . . directives appertaining thereto, whether the same are now in existence or not."

Considering this evidence together with the evidence of record in its entirety, which we have carefully examined, we must conclude that the trial court’s admission of Green’s testimony concerning his own mass appraisal contract with an unrelated party was error without injury which does not warrant reversal because we find no substantial rights of appellant were injuriously affected. Rule 45, ARAP.

Furthermore, we detect no palpable error or manifest injustice in the trial court’s findings that the expense of staffing the Board of Equalization hearings was an obligation of Hunnicutt, subsequently Mass Appraisal, under the basic contract. Applying the ore tenus rule, the judgment is due to be and is hereby affirmed.

AFFIRMED.

FAULKNER, JONES, ALMON and ADAMS, JJ., concur.

       Hunnicutt’s assets, including its name were sold on August 26, 1978 to Robert Kimball & Associates. Mass Appraisal Services, Inc., a wholly owned subsidiary of Equifax, Inc., was incorporated at approximately the same time and assumed all of Hunnicutt’s rights and duties under the contracts involved in this suit. Hunni-cutt, prior to the sale of its assets, and Mass Appraisal Services, Inc., after that sale, have the same rights and duties under the contracts involved in this suit and are, for all purposes now germane to this suit, the same entity.


author: ALMON, Justice.

text:
    Ernest E. ARMSTRONG, as Co-Trustee and Legatee under the Will of William Pelzer Arrington, Deceased, v. ALABAMA NATIONAL BANK OF MONTGOMERY as Executor under the Will of William Pelzer Arrington, Deceased.
    No. 80-161.
    Supreme Court of Alabama.
    Oct. 2, 1981.
    M. R. Nachman, Jr. of Steiner, Crum & Baker, Montgomery, for appellant.
    John N. Albritton and Charles A. Stakely of Rushton, Stakely, Johnston & Garrett, Montgomery, for appellee.
   ALMON, Justice.

This is an appeal from a decree of final settlement of the estate of William Pelzer Arrington.

Alabama National Bank of Montgomery, as executor of the estate of William Pelzer Arrington, filed a petition for a final settlement of the estate in the Circuit Court of Montgomery County on August 22, 1980. Pursuant to that petition, the Circuit Court issued a decree of final settlement on November 7, 1980. The appellant asserts two errors in the decree; that the award of $304,000 to Alabama National Bank as executor’s fees was excessive and an abuse of discretion, and that the interest on additional estate taxes due should not be paid by the income beneficiaries.

The award of executor’s fees is controlled by Code 1975, § 43-2-680 as follows:

Executors and administrators may be allowed such commissions on all receipts and disbursements by them, as such, as may appear to the probate court to be a fair compensation for their trouble, risk and responsibility, not to exceed two and one-half percent on the receipts and the same percentage on the disbursements; and the court may also allow actual expenses, and, for special or extraordinary services, such compensation as is just, and such premiums as an executor or administrator may have paid a guaranty company for making his bond.

The trial judge found that $304,000 was a fair and reasonable fee considering the trouble, risk and responsibility of Alabama National. The award of executor fees is largely within the discretion of the trial judge. In Smith v. McNaughton, 378 So.2d 703 (Ala. 1979), this Court stated:

... we note that the language of that statute is permissive, rather than mandatory. While it allows the court to set a reasonable compensation for efforts of the administrator or executor, it does not require that such compensation be granted. The allowance is a matter of judicial determination, Hale v. Cox, 240 Ala. 622, 200 So. 772 (1941), and what shall be allowed below or up to the maximum limit prescribed by that section is to be determined according to the circumstances of each particular case. Kenan v. Graham, 135 Ala. 585, 33 So. 699 (1902).

In Kenan the Court explained the predecessor to § 43-2-680 and its rationale as:

. .. [creating] a maximum limit to compensation to be allowed executors and administrators, for the ordinary services performed by them, and what shall be allowed, below or up to this limit, is to be determined according to the circumstances of each particular case. “The court in making the allowance is to look to the loss of time, risk and responsibility, which are demanded .... and which is actually incurred, and to allow ... such a reasonable remuneration as a prudent and just man would, in view of the circumstances, consider a fair compensation, without, however, being governed by business charges usually made for like services.” When thus allowed, the compensation is not, and should not be, but little, if anything, more than liberal indemnity. The condition and value of the estate should be a controlling consideration in all cases. Gould v. Hays, 25 Ala. 426, 432; Clark v. Knox, 70 Ala. [607] 608, 615; Woodruff v. Snedecor, 68 Ala. 437; Newberry v. Newberry, 28 Ala. 691. If the estate has but few undisputed debts, its property consisting most largely of stocks, bonds or solvent securities, involving only ordinary care and attention in their handling and distribution, and of real estate which may be readily rented, and at the proper time divided or sold for division among those entitled, and the value of the estate is large, a liberal compensation may and often should be, less than the maximum statutory allowance, but never greater, even if the administration involves much care, attention and trouble. If extraordinary services are rendered, these may be compensated for beyond the statutory allowance, owing to the particular services rendered, and the attending conditions and circumstances.

Since the trial judge made the determination of executor’s fees after hearing the evidence ore tenus, the decree should not be disturbed unless it is palpably wrong. Smith, supra.

The value of the Arrington estate used to determine the executor’s fees was $7,469,-273.92. The maximum fee allowable under Code 1975, § 43-2-680 and § 43-2-681, as calculated by Alabama National was $373,-463.70, which was undisputed at trial. The estate tax return filed by Alabama National showed an estimated $350,000 as executor’s fees. Subsequently, upon advice of a consultant hired by a remainderman under Arrington’s will, Alabama National reduced its fee request to $304,657.52. The trial court awarded Alabama National $304,000, which was below the statutory maximum.

The appellants assert that it was error to include the value of the “flower bonds” in the estate. We note that the fee was not charged on the total value of the bonds. As we understand the record, the fee was only charged on the difference between the purchase price and the surrender value. Consequently, we are not prepared to say, as a matter of law, that this was error.

There was testimony that the administration of this estate was very complex and troublesome. David Thomas, the trust officer in charge of the estate for Alabama National, testified to the many matters that had to be handled for the estate. Among these were:

1) A review of bank transactions, stock transactions and correspondence in preparation for a will contest;
2) Served as administrator ad colligen-dum for six to seven weeks. During this time off-duty policemen were hired to protect valuable personal and real property of the estate. Alabama National advanced approximately $7,000 to pay for these expenses;
3) Negotiated with the Internal Revenue Service to discount stock owned by the estate in a closely held corporation. The estate owned approximately 10% of the outstanding stock of the corporation. Alabama National was able to get the Internal Revenue Service to agree to a 2&h% discount on the stock;
4) Sought and obtained judicial reformation of the will so as to qualify four $100,000 gifts to charities as a charitable remainder unitrust and give the estate a $400,000 charitable deduction;
5) Sought and obtained a second judicial reformation of the will to establish a perpetual trust for the care of Arring-ton’s parents’ and Arrington’s graves-ites;
6) Persuaded Armstrong to exercise his power of attorney to purchase U. S. Treasury Estate Tax Bonds (“flower bonds”). Alabama National subsequently negotiated with the Bureau of Public Debt to accept the bonds in payment of estate taxes. Alabama National loaned the estate over 1 million dollars to make possible the purchase of the bonds. The use of the bonds resulted in a $141,700 tax savings to the estate; and
7) Prepared the estate tax return which was very involved and complex.

Mr. Thomas testified he personally had spent 2600 hours working on matters for the estate. He also testified that he had worked with estates of comparable size but not one that had all the problems and complexities this estate had.

Mr. William E. Reynolds, who runs an estate planning consulting firm in Atlanta, Georgia, was hired by a remainderman under the will to make an executor’s fee recommendation. He testified he had 34 years of experience in the estate planning and management field. He testified that he had dealt with several estates that were three times as large as the Arrington estate, but not with one that had more complex problems.

After an examination of the record we conclude there was sufficient evidence to support the trial court’s award of executor’s fees. However, we do want to emphasize that the estate involved was very large and complex and it is only such an estate that could justify the executor’s fees awarded in this case. As we have stated, the peculiar facts and circumstances of each case must be considered. Even though we consider the fees awarded to be somewhat high, nevertheless, under the applicable standard of review, we cannot conclude that the trial court abused its discretion.

As a result of the executor’s fees being less than was estimated on the federal estate tax return, additional estate taxes were due. In the final settlement decree, the trial court directed Alabama National to file an amended estate tax return and pay the additional estate tax due out of principal of the estate and the interest due on the additional tax was to be paid out of income. Appellant asserts this was error and cites Arrington’s will and Code 1975, § 40-15-18, as supporting authority. However, the will and § 40-15-18 only speak to the payment of taxes and not to the payment of interest due on taxes. The appellant cites no case that specifically addresses the issue.

In Estate of Bahr v. Commission, 68 T.C. 74 (1977), the tax court considered whether the interest on estate taxes was deductible as an administration expense. During the course of the opinion the court stated that “. . . it has been consistently recognized by this and other courts that ‘interest on a tax is not a tax, but something in addition to a tax.’ ” The tax court allowed the interest as an administration expense deduction.

Since the authorities cited by the appellant speak to the payment of taxes only we do not consider them controlling here.

During the period that the additional estate taxes were not paid, the principal of the estate that would have been used to pay the taxes was earning interest for the benefit of the income beneficiaries. Mr. Reynolds, with 34 years of experience, testified that to charge the interest to income was the normal procedure. Mr. Thomas testified that it was standard banking practice to charge the interest against income.

Having considered the authorities relied on by both parties, we conclude that it was not error to charge the interest to income. To do otherwise would result in a windfall to the income beneficiaries. They were in fact the ones that reaped the benefits of the use of the principal that should have been paid in tax, consequently, they should be charged for that use.

The judgment is due to be and is hereby affirmed.

AFFIRMED.

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


author: PER CURIAM.

text:
    Ernest STONE, Charles C. Rowe and Jack Hopper v. CONSOLIDATED PUBLISHING COMPANY.
    80-211.
    Supreme Court of Alabama.
    Oct. 2, 1981.

      Walter J. Merrill of Merrill, Porch, Doster & Dillon, Anniston, for appellants.
    James L. Klinefelter of Burnham, Kline-felter, Halsey & Love, Anniston, and James C. Barton and Gilbert E. Johnston, Jr. of Johnston, Barton, Proctor, Swedlaw & Naff, Birmingham, for appellee.
    David M. Olive for McMillan & Spratling, Birmingham, for amicus curiae Alabama Press Association.
   PER CURIAM.

Consolidated Publishing Company, the publisher of The Anniston Star and appellee herein, filed a complaint against the appellants, Ernest Stone, Charles C. Rowe and Jack Hopper, in their respective capacities as officers of Jacksonville State University and as officers and directors of J.S.U. Reserve Public Relations Corporation (the Corporation), to permanently enjoin appellants from denying appellee access to records regarding the “finances” of Jacksonville State University and J.S.U. Reserve Public Relations Corporation. Both appellee and appellants filed motions for summary judgment. The motions for summary judgment were based upon the pleadings, affidavits, depositions and other documents on file in the trial court. The trial court granted appellee a summary judgment which enjoined appellants from denying appellee access to such records and further ordered the appellants to permit the inspection and copying of the financial records of Jacksonville State University and the records of J.S.U. Reserve Public Relations Corporation. Appellants seek to reverse the summary judgment on appeal.

By letter dated May 15, 1978, appellee made written demand on appellants to be allowed to inspect and take copies of records dealing with the fund maintained by J.S.U. Reserve Public Relations Corporation. Subsequently, an employee of appel-lee made several personal contacts with appellant Rowe, seeking information for an article the employee planned to write on the financial status of the University. Rowe told her at the time that he did not have all the information requested, and that he would have to do some “digging.” Rowe was to get back in touch with the employee. However, when Rowe failed to make this contact, the employee returned to his office. Although appellee requested access to university books and other materials which were available to auditors, Rowe finally agreed to make available only the auditor’s report. Further interviews, and contact with Ernest Stone, President of Jacksonville State University, proved unsuccessful in obtaining access to these records. It is apparent that appellee’s interest had focused on the finances of the J.S.U. Reserve Public Relations Corporation, incorporated to “promote the public relations of Jacksonville State University.” This Corporation is funded through alumni contributions and proceeds of vending machines located in non-dormitory areas of the Jacksonville State University campus, and it expends money for press relations, legislative relations, and entertainment.

Appellee’s claim is based upon Code 1975, § 36-12-40, the First Amendment to the United States Constitution, and Article 1, § 4, of the Alabama Constitution of 1901. We do not deem it necessary to address the constitutional provisions. Code 1975, § 36-12 — 40, provides:

Every citizen has a right to inspect and take a copy of any public writing of this state, except as otherwise expressly provided by statute.

Appellants contend that appellee is entitled to copy and inspect only such public records as are required by law to be kept by public officials. Code 1975, § 41-13-1. Appellants concede that the financial records of the University are public writings within the purview of Code 1975, § 36-12-40, but contend that the records of J.S.U. Reserve Public Relations Corporation are not public records because no law requires the keeping of such records. The trial court found the Corporation to be the alter ego of the University. Appellants make no issue as to this finding. Accordingly, for the purposes of this appeal, we must treat J.S.U. Reserve Public Relations Corporation as the alter ego of the University. Appellants are officers of the University as well as the officers and directors of the Corporation. Appellants were the original and sole incorpora-tors of the Corporation, which was formed for educational purposes to promote the public relations of Jacksonville State University, and to receive and disburse funds and assets therefor.

While it is interesting to note that the statute relied upon by appellee (Code 1975, § 36-12-40) uses the term “public writing,” while the statute appellants cite (Code 1975, § 41-13-1) defines the term “public records,” we doubt the Legislature intended to make a distinction between a “public writing” and a “public record.” It is clear that § 36-12 — 40 first appeared in the 1923 Code, and § 41-13-1 was enacted into law in 1945 in an act regulating the retention and disposal of public records generally.

In summary, appellants principally rely on the authority of Holcombe v. State, 240 Ala. 590, 200 So. 739 (1941), in which the Court held:

At the risk of repetition and to avoid uncertainty, we conclude by saying this court holds: (1) that the public generally have the right of. a reasonable and free examination of public records required by law to be kept by public officials, except in instances where the purpose is purely speculative or from idle curiosity, or such as to unduly interfere or hinder the discharge of the duties of such officer.

240 Ala. at 597, 200 So. at 746. In that case, however, this Court held that the records in question were required by law to be kept. Accordingly, Holcombe cannot be considered as conclusive authority for the proposition that a record which is not required by law to be kept is not a “public writing” or a “public record” and therefore not subject to the right of a citizen to inspect and copy. While some courts have adopted the view espoused by appellants, see, e.g., Linder v. Eckard, 261 Iowa 216, 152 N.W.2d 833 (1967), the Superior Court of New Jersey, Appellate Division, construing statutes similar to our § 36-12—40 and § 41-13-1, held:

The Commissioner’s conclusion that since local boards are not required to administer comprehensive achievement tests the results thereof are not public records is unsound. The fact that something need not be done does not mean that if it is done the report thereof is not a public record.

Citizens for Better Education v. Board of Education of Camden, 124 N.J.Super. 523, 528, 308 A.2d 35, 37 (1973). See also, Dayton Newspapers, Inc. v. City of Dayton, 45 Ohio St.2d 107, 341 N.E.2d 576 (1976); and Houston v. Rutledge, 237 Ga. 764, 229 S.E.2d 624 (1976). As defined in Code 1975, § 41-13-1, a public record includes “all written, typed or printed books, papers, letters, documents and maps made or received in pursuance of law” by public officers in the transaction of public business.

Code 1975, § 36-12-2, provides in part:

All public officers . . . shall correctly make and accurately keep ... all such books or sets of books, documents, files, papers, letters and copies of letters as at all times shall afford full and detailed information in reference to the activities or business required to be done or carried on by such officer . . . and from which the actual status and condition of such activities and business can be ascertained without extraneous information .... (Acts 1915, No. 237, p. 287; Code 1923, § 2690; Code .1940, T. 41, § 139.)

We have carefully considered the issue raised by appellants on this appeal, particularly with reference to our statutes. Construing these statutes in pari materia, we hold that the “public writing” spoken of in Code 1975, § 36-12 — 40, is such a record as is reasonably necessary to record the business and activities required to be done or carried on by a public officer so that the status and condition of such business and activities can be known by our citizens. The news media are clearly appropriate vehicles by which citizens can learn about the activities and business conducted by our public officers. This is not to say, however, that any time a public official keeps a record, though not required by law, it falls within the purview of § 36-12-40. McMahan v. Trustees of the University of Arkansas, 255 Ark. 108, 499 S.W.2d 56 (1973). It would be helpful for the legislative department to provide the limitations by statute as some states have done. Absent legislative action, however, the judiciary must apply the rule of reason. State v. Aiarid, 90 N.M. 790, 568 P.2d 1236 (1977). Recorded information received by a public officer in confidence, sensitive personnel records, pending criminal investigations, and records the disclosure of which would be detrimental to the best interests of the public are some of the areas which may not be subject to public disclosure. Courts must balance the interest of the citizens in knowing what their public officers are doing in the discharge of public duties against the interest of the general public in having the business of government carried on efficiently and without undue interference. MacEwan v. Holm, 226 Or. 27, 359 P.2d 413 (1961).

While appellee made a sufficient demand upon all of the appellants by its letter of May 15, 1978, to inspect and take copies of the records dealing with the funds of the Corporation, and appellants have not denied that they refused to allow the inspection and copying of such records, we must consider the summary judgment aspect of this case in light of our holding with respect to the issue of what constitutes a public writing under Code 1975, §§ 36-12-2, 36-12-40, and 41-13-1. Under our law, summary judgment is to be granted only where there is no genuine issue as to a material fact and the moving party is entitled to a judgment as a matter of law. Butler v. Michigan Mutual Insurance Co., 402 So.2d 949 (Ala.1981); Studdard v. South Central Bell Telephone Co., 356 So.2d 139 (Ala.1978); Whitehead v. Davison Oil Co., 352 So.2d 1339 (Ala.1977). Nevertheless, the trial court in granting summary judgment could not have considered the character of the records in question because this Court has not heretofore addressed the issue. This Court has not seen the records for which demand was made to inspect and copy. Therefore, the trial court should determine if these records are reasonably necessary to record the business and activities required to be done or carried on by a public officer so that the status and condition of such business and activities can be known. Accordingly, this ease is reversed and remanded to the trial court for a judgment consistent with the pronouncement as to the law in this opinion.

REVERSED AND REMANDED WITH DIRECTIONS.

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

BEATTY, J., dissents.


text:
    Joseph EATHORNE; Mary Terry, as Administratrix of the Estate of Delores Terry, deceased; et al. v. STATE FARM MUTUAL AUTOMOBILE INSURANCE COMPANY, a Corporation, and Ray A. Pollard.
    79-776.
    Supreme Court of Alabama.
    Oct. 2, 1981.
    James G. Lee of Lee, Barrett & Mullins, Tuscaloosa, for appellants.
    William J. Donald and William J. Donald, III of Zeanah, Donald & Hust, Tuscaloosa, for appellees.
   ALMON, Justice.

This is an appeal from a declaratory judgment in favor of State Farm Mutual Automobile Insurance Company.

State Farm and Ray Pollard filed suit on March 6, 1980, seeking a declaration as to the rights of the parties under a policy of insurance issued by State Farm to Pollard. The basis of the suit was that State Farm had been called on to defend Joe Eathorne under the terms of the policy issued to Pollard.

The car covered by the State Farm policy was involved in an accident while being driven by Joe Eathorne. Delores Terry, an occupant of the other car involved in the accident, was killed. The administratrix of her estate filed a wrongful death suit against Eathorne claiming damages as the result of his alleged negligence in causing the accident. Eathorne then called on State Farm to defend him under Pollard’s policy. State Farm and Pollard claim that the car covered by the policy was sold to Eathorne and hence there was no coverage afforded Eathorne' under the policy. The main factual issue in dispute was whether Pollard had in fact sold the car to Eathorne or merely let him borrow it. This question was submitted to the jury, which found that Eathorne did own the car at the time of the accident. Subsequent to the jury verdict, the court entered a declaratory judgment in favor of State Farm and Pollard as follows:

The Court finds that the plaintiff, State Farm Mutual Automobile Insurance Company, has heretofore issued an automobile liability policy, No. 423 1701 F25 01D, and has been called on by the defendant, Joseph Eathorne, to defend and afford liability coverage to said defendant for an automobile accident occurring on December 26, 1979, in Tuscaloosa County, Alabama, which accident is made the basis of that civil action pending in this Court styled Mary Terry, as Administratrix of the Estate of Delores Terry, Deceased, vs. Joseph Eathrone, same being Civil Action No. CV-80-55.
The Court further finds and does hereby order and declare that the defendant, Joseph Eathorne, was not an insured under said insurance policy with respect to said automobile accident; that the plaintiff, State Farm Mutual Automobile Insurance Company, is not obligated under said insurance policy to defend or afford liability coverage to the defendant, Joseph Eathorne, as to said Civil Action No. CV-80-55 and the said automobile accident on which it is based; that plaintiff, State Farm Mutual Automobile Insurance Company, is not obligated to pay or indemnify Joseph Eathorne against all or any portion of any judgment that hereafter may be rendered against said defendant in said Civil Action No. CV — 80-55 on account of said automobile accident; and that the remaining defendants, Mary Terry, as Administratrix of the Estate of Delores Terry, Deceased, James Jones and Auto-Owners Insurance Company, have no rights or status under said insurance policy as third party beneficiaries or otherwise on account of said automobile accident and are not entitled to obtain, or attempt to obtain, payment or satisfaction of any judgment which may be hereafter rendered in said Civil Action No. CV-80-55 against the defendant, Joseph Eathorne, on account of said accident.

Auto-Owners had issued James Jones, the owner of the car Terry was driving, an automobile liability insurance policy which included uninsured motorist coverage. The plaintiffs’ attorney, over objection, introduced the Auto-Owners policy.

The question presented by this appeal is whether a plaintiff insurance company, in a declaratory judgment action seeking to determine coverage under a policy issued by the plaintiff, may introduce in evidence before a jury the fact that another insurance company will be liable if the jury decides that there is no coverage under the plaintiffs’ policy.

It is a general rule of long standing that it is error to introduce the fact of liability insurance to show that a party will not have to pay the judgment. This is true unless insurance coverage is in some way relevant to an issue in the case. Robins Engineering, Inc. v. Cockrell, 354.So.2d 1 (Ala. 1977); Thorne v. Parrish, 265 Ala. 193, 90 So.2d 781 (1956); Colquett v. Williams, 264 Ala. 214, 86 So.2d 381 (1956). The rule also extends to counsel’s argument to the jury. Thorne, supra; Colquett, supra.

In the present case, Auto-Owners, in response to a request for production by the plaintiffs, filed an objection to that part of the request concerning the Auto-Owners insurance policy. The objection stated that it was Auto-Owners position that the Auto-Owners policy was not an issue in the case and would not be admissible at trial.

During opening argument to the jury, the plaintiffs alluded to the coverage provided for in the Auto-Owners policy. The defendants objected and moved to exclude the statement. This objection was overruled. Subsequently, the plaintiffs were allowed to enter the Auto-Owners policy into evidence over the objection of the defendants. The defendants again objected when the plaintiffs argued the uninsured motorist coverage during closing arguments.

The only issue before the court and jury was whether there was coverage under State Farm’s policy and this issue depended solely on whether Eathorne had title to the automobile.

After an examination of the record we conclude that the injection of the uninsured motorist coverage into the trial by the plaintiffs was reversible error. It was not relevant to any issue in the declaratory judgment action and could only have prejudiced the jury in its decision. For this reason, the judgment must be reversed and the cause remanded for a new trial.

Because of our decision on this issue, we do not consider the other errors asserted by the defendants.

REVERSED AND REMANDED.

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