author: ALMON, Justice.

text:
    Ex parte Richard E. ARMSTRONG, et al. In re Richard E. ARMSTRONG, et al. v. ALABAMA POWER COMPANY, et al.
    80-773.
    Supreme Court of Alabama.
    April 9, 1982.
    John T. Crowder, Jr., Robert T. Cunningham, and Michael S. McGlothren for Cunningham, Bounds, Byrd, Yance & Crowder, Mobile, for petitioners.
    Edward S. Allen of Balch, Bingham, Baker, Hawthorne, Williams & Ward, Birmingham, James J. Duffy, Jr. and Carroll H. Sullivan of Inge, Twitty, Duffy & Prince, Mobile, for respondents.
   ALMON, Justice.

Petitioners seek a writ of mandamus to compel Judge Michael E. Zoghby, Circuit Court of Mobile County, to vacate his protective order of July 10, 1981, and permit the petitioners to depose Joseph Farley, President of Alabama Power Company.

On May 6, 1979, David L. Williams and Jeri Williams were killed when the sailboat they were operating came into contact with a high voltage line owned and maintained by Alabama Power Company. On July 18, 1979, two separate actions were instituted by the administrators of the estates of David L. and Jeri Williams. The actions were filed in the Circuit Court of Mobile County. On March 4, 1980, the actions were removed to the United States District Court for the Southern District of Alabama. On October 31,1980, the actions were transferred back to the Circuit Court of Mobile County.

While the eases were pending in federal district court, the plaintiffs sought to take the deposition of Joseph Farley. On July 10, 1980, the deposition of Farley was taken. During the course of the deposition, counsel for Alabama Power objected to several questions asked Farley and instructed him not to answer the questions. As a result, the United States magistrate entered an order reconvening the deposition and imposing sanctions against Alabama Power based on his finding that the actions of Alabama Power’s counsel were improper. The order that the United States magistrate entered required the deposition to be taken on or before August 20 but, before the deposition was taken, the case was remanded to the Circuit Court of Mobile County on October 31, 1980.

On approximately June 19, 1981, the plaintiffs gave notice that they intended to take Joseph Farley’s deposition on June 29, 1981. On June 25, 1981, Alabama Power filed a motion for a protective order or in the alternative for an order quashing notice of the deposition. In its motion Alabama Power asserted as grounds that: (1) only one week’s notice of the taking of the deposition was given, which was not reasonable notice; (2) the deposition should be taken in Birmingham and not Mobile, where the plaintiffs had scheduled it; and (3) there was no showing by the plaintiffs that Mr. Farley had knowledge of any facts relevant to the case. The circuit court granted the motion to quash notice and also granted a protective order.

The scope of discovery is very broad, as evidenced by Alabama Rules of Civil Procedure (A.R.C.P.), Rule 26(a) and (b). “Parties may obtain discovery regarding any matter, not privileged, which is relevant to the subject matter involved in the pending action....” A.R.C.P., 26(b)(1).

A.R.C.P., 26(c) states the prerequisites for obtaining a protective order as follows:

(c) Protective orders. Upon motion by a party or by the person from whom discovery is sought, and for good cause shown, the court in which the action is pending or alternatively, on matters relating to a deposition or production or inspection, the court in the circuit where the deposition or production or inspection is to be taken may make any order which justice requires to protect a party or person from annoyance, embarrassment, oppression, or undue burden or expense

Thus, to be entitled to a protective order the person seeking the order must show good cause why the deposition would be unduly burdensome or expensive, or would be oppressive, embarrassing or annoying, or that the subject matter sought to be discovered is privileged. Assured Investors Life Insurance Co. v. National Union Associates, Inc., 362 So.2d 228 (Ala.1978).

In his answer to the petition for writ of mandamus, Judge Zoghby states that he did not think that Mobile was the proper location for the taking of the deposition. Depositions of a corporation through its officers or agents should ordinarily be taken at the corporation’s principal place of business, especially when the corporation is a defendant. Salter v. Upjohn Company, 593 F.2d 649 (5th Cir. 1979). There may be circumstances that would justify the taking of a deposition somewhere other than the corporation’s principal place of business. The federal magistrate has already determined that the deposition should be taken. Subsequently, the magistrate, finding the actions of counsel for Alabama Power to be such as to effectively prevent the taking of the deposition, imposed sanctions against Alabama Power. However, the trial judge is vested with broad discretion as to the particular details of discovery. Judge Zoghby determined that Mobile was not the proper place for the taking of the deposition. We cannot say he has abused his discretion in so holding.

The same is true with respect to Judge Zoghby’s finding that the notice of the taking of the deposition was not reasonable notice as required by Alabama Rule of Civil Procedure 30(b)(1). This finding was within his discretion.

Based on the above two reasons, the order of Judge Zoghby to quash the notice of the taking of the deposition was proper, and a writ of mandamus will not issue to compel him to vacate the order.

The protective order is another matter. Judge Zoghby states in his answer to the petition that the information furnished him by the plaintiffs was “woefully inadequate” in demonstrating that Farley had some pri- or knowledge of the problem with the subject power line prior to the accident on May 6, 1979. However, it is the person seeking the protective order and not the person seeking discovery that must make a showing of good cause. The person seeking a protective order must show good cause why discovery should not be had. The fact that a person claims lack of knowledge is not a showing of good cause.

Alabama Power and Judge Zoghby rely on Salter, supra, for their position that a claim of lack of knowledge will justify a protective order preventing discovery. In Salter, the trial judge required the plaintiff to depose other employees of Upjohn before they deposed Upjohn’s president. The trial judge did so after Upjohn indicated that other employees had more knowledge of the facts than did the president. Nowhere in its motion for a protective order does Alabama Power allege that there are other employees with more knowledge of the facts than Mr. Farley.

The trial judge in Salter indicated that if the testimony of the other employees was unsatisfactory, he would allow the president to be deposed. It is also important that in Salter the company president had given testimony to a Senate committee, on the very subject upon which discovery was sought.

To prevent the taking of a deposition because there has been no showing that the proposed deponent has any knowledge of facts relating to the case is not a proper exercise of discretion. Alabama Power was required to show good cause to be entitled to a protective order. Alabama Power’s motion of June 25, 1981, does not give any basis for a finding of good cause to prevent the taking of the deposition.

We observe that but for the actions of Alabama Power’s counsel at the first deposition, there would have been no need for these proceedings or a subsequent deposition. Hence, if upon notification of this decision, the circuit court does not vacate its protective order of July 10, 1981, and proceed to order the reconvening of the deposition of Joseph Farley, upon proper notice and at the appropriate location, a writ to effectuate such action will issue upon request of the petitioners.

WRIT AWARDED CONDITIONALLY.

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


source: Caselaw Access Project

author: ADAMS, Justice.

license: Public Domain

text:
    Vernon R. HOLLOWAY and Barbara G. Holloway v. C. E. JACKSON. Vernon R. HOLLOWAY and Barbara G. Holloway v. Glenn L. STRICKLER; Katherine M. Strickler.
    80-747, 80-655.
    Supreme Court of Alabama.
    April 16, 1982.

      Joseph J. Boswell, Mobile, for appellants.
    Jerome P. Shinault, Mobile, for appellee C. E. Jackson in No. 80-747.
    William H. Hardie, Jr. and Charles R. Mixon, Jr. of Johnstone, Adams, May, Howard & Hill, Mobile, for appellees Glenn L. Strickler and Katherine M. Strickler in No. 80-655.
   ADAMS, Justice.

Plaintiffs, Vernon R. Holloway and Barbara G. Holloway, appeal from the dismissal of their action against Glenn L. Strickler, Katherine M. Strickler and C. E. Jackson. Plaintiffs purchased the Stricklers’ home and later discovered that the attic had extensive fire damage. Their action, filed in the Circuit Court for Mobile County, sought damages from the Stricklers, Azalea Real Estate, Inc. (not a party to these appeals), certain unknown persons, and later, by amendment, from C. E. Jackson (Jackson). The Stricklers’ motion to dismiss was founded on the allegation that the complaint failed to state a claim upon which relief could be granted. Jackson’s motion to dismiss alleged the action was barred by the one-year, statute of limitations in Code 1975, § 6-2-3. The trial court agreed and granted defendants’ motions. It also found that there was no just reason for delay and entered judgment pursuant to Rule 54(b), Alabama Rules of Civil Procedure. Plaintiffs then perfected these appeals.

The dispositive issue in the appeal involving the Stricklers is whether plaintiffs have stated a cause of action against them, thereby making the trial court’s dismissal of their action erroneous. In the appeal involving Jackson, the dispositive issue is whether plaintiffs’ action, by way of amended complaint, is barred by the statute of limitations in Code 1975, § 6-2-3. After reviewing these issues, we conclude that the trial court properly dismissed plaintiffs’ action as to the Stricklers. We conclude also, that the judgment of the trial court dismissing plaintiffs’ action as to Jackson was granted properly. The appeals involving the Stricklers and Jackson will be considered separately.

Holloway v. Strickler

(80-655)

The pertinent facts, as alleged in plaintiffs’ complaint, are as follows. The Strick-lers owned a home located at 132 Alton Street, Mobile, Alabama. They listed their home for sale with the multiple listings program of the Mobile County Board of Realtors. Azalea Real Estate, Inc. (Azalea), undertook the sale of the Stricklers’ residence through that program. Jackson is the qualifying broker for Azalea. On May 19, 1977, plaintiffs and the Stricklers executed an agreement in which plaintiffs agreed to purchase the Stricklers’ home for $22,500.00. The agreement contained the following provisions which made it dependent upon plaintiffs’ securing a Farmers Home Administration (FmHA) mortgage in the amount of $22,500.00:

2. THE TERMS OF PURCHASE SHALL BE as indicated by “X” below: (other unmarked terms of purchase do not apply).
NEW MTGE CÉ1 The full purchase price upon execution and delivery of Warranty Deed, contingent upon Buyer’s ability to obtain a 33 year Farmers Home (type) mortgage in the amount of $22,500.00 bearing the interest rate prevailing at time of closing, computed monthly; on or before the date the sale is to be closed, which Buyer agrees to apply for immediately and accept promptly if tendered.
3. OTHER PROVISIONS:
1. Offer contingent upon purchaser qualifying for Farmers Home Loan for $22.500.00.

Plaintiffs applied for, and got, the FmHA mortgage in the amount of $22,500.00. An agent or employee of the FmHA physically inspected the Stricklers’ home to ascertain that it met building and structural requirements before the loan was approved. The transaction was closed and plaintiffs purchased the Stricklers’ home. Thereafter, plaintiffs discovered that the attic had suffered severe fire damage to its rafters, joists, and roof decking. Plaintiffs alleged that the damage had not been repaired and because of that, the value of the home was reduced substantially.

Plaintiffs advance two theories of recovery against the Stricklers. In count one of their complaint, plaintiffs allege that the purchase agreement contained an implied promise that the house would meet minimum FmHA requirements for a mortgage. Although plaintiffs actually received their FmHA mortgage, they theorize that, in fact, the home does not meet FmHA structural standards because of the fire damage to the attic. Plaintiffs insist that the contract terms show an intention that plaintiffs were to buy, and the Stricklers were to sell, a home that actually met minimum FmHA standards. Apparently, the FmHA inspector failed to inspect the attic. In their second count, plaintiffs allege that it was a constructive condition precedent that the home would meet minimum FmHA structural standards.

We disagree with plaintiffs that an implied promise or covenant existed under the agreement requiring the home to meet minimum FmHA structural standards. Paragraph 13 of the agreement contains the following provisions:

BUYER HAS EXAMINED this property and agrees to accept same in its present condition, except as may be specified herein, and that the foregoing constitutes the entire agreement. No terms or conditions agreed on verbally will be recognized. Any change must be writing [sic] and approved by all parties. Real Estate agents are not to be held liable for any conditions or nonperformance of this agreement.

It is a well established rule of contract law that:

Where ... the language of the contract is unambiguous and plain in its expression, the court cannot alter the agreement by construction but rather must expound it as it is made by the parties. Flowers v. Flowers, Ala., 334 So.2d 856 (1976); Springdale Gayfer’s Store Co. v. D. H. Holmes Co., 281 Ala. 267, 201 So.2d 855 (1967).

Ex parte Haponski, 395 So.2d 971 at 972 (Ala.1981). The instant contractual provisions are clear and unambiguous. They provide that plaintiffs agreed to accept the house in its then present condition, and that the agreement was contingent upon plaintiffs securing a FmHA mortgage for the purchase price. Nevertheless, plaintiffs, in effect, attempt to engraft a covenant into the agreement encompassing FmHA structural standards. That, they cannot do. Their theory of an implied covenant is without merit. In Percoff v. Solomon, 259 Ala. 482 at 491, 67 So.2d 31 at 40-1, this court commented upon the conditions under which a covenant can be implied:

An implied covenant must rest entirely on the presumed intention of the parties as gathered from the terms as actually expressed in the written instrument itself, and it must appear that it was so clearly within the contemplation of the parties that they deemed it unnecessary to express it, and therefore omitted to do so; or it must appear that it is necessary to infer such a covenant in order to effectuate the full purpose of the contract as a whole as gathered from the written instrument. It is not enough to say that an implied covenant is necessary in order to make the contract fair, or that without such a covenant it would be improvident or unwise, or that the contract would operate unjustly. It must arise from the presumed intention of the parties as gathered from the instrument as a whole. Palm v. Mortgage Investment Co., [229 S.W.2d 869 (Tex.Civ.App.1950)].

In the recent case of Darling Shop v. Nelson Realty Co., supra, we said [255 Ala. 586, 52 So.2d 211, at 215]:

“It should be kept in mind that the court must construe a contract as it is written. The court cannot under the guise of construction make a new or different contract for the parties nor add to the terms of the contract words, terms or conditions not contained in it. * * * Furthermore in the absence of ambiguity the court cannot interpret the contract but must take it as it is written.”

It cannot be said that it was clearly within the contemplation of plaintiffs and the Strieklers that the home would meet FmHA standards. A fair reading of the agreement merely reveals that plaintiffs’ performance was conditioned upon their obtaining a FmHA mortgage for the stated amount of $22,500.00. Whether that mortgage was obtained with or without the home meeting FmHA standards is beyond the scope of the agreement.

Turning to plaintiffs’ second count wherein they allege a theory of recovery based on a constructive condition precedent, we also find their contentions to be without merit. Plaintiffs’ theory is premised on the definition of a constructive condition as defined by Restatement of Contracts § 253 (1932): “a ‘constructive condition’ is a condition that is such because of a rule of law, and is not based on interpretation of a promise or agreement.” Our research reveals no prior decisions of this court applying the above § 253. None has been cited by the parties. However, assuming, without deciding, that the Restatement definition can be applied, plaintiffs’ cause still fails. We cannot perceive of a rule of law that would operate, under the instant facts, to engraft FmHA minimum structural standards into the contract. Indeed, plaintiffs’ theory is outside the scope of the definition of a constructive condition as it is defined in § 253. The result urged by plaintiffs would require an “interpretation of [the] promise or agreement.” That itself is contrary to the § 253 definition.

For all of the foregoing reasons, we conclude that it is apparent beyond doubt that plaintiffs can prove no set of facts entitling them to relief. Winn-Dixie Montgomery, Inc. v. Henderson, 371 So.2d 899 (Ala.1979); Dunson v. Friedlander Realty, 369 So.2d 792 (Ala.1979); Trabits v. First National Bank of Mobile, 295 Ala. 85, 323 So.2d 353 (1975). Accordingly, we affirm the judgment of the trial court.

Holloway v. Jackson

(80-747)

Plaintiffs sought damages from Jackson in four other counts of their complaint. Plaintiffs repeat many of their factual allegations as contained in their first two counts against the Stricklers. They continue with additional allegations. Plaintiffs allege that at the time of the sale, the Stricklers knew their attic had been damaged by fire. They further allege that an unnamed realtor, who prepared the purchase agreement, knew, or could have discovered by inspection, that the attic was damaged by fire. The complaint states that the unnamed realtor had an affirmative obligation to discover the fire damage. Plaintiffs theorize that the unnamed realtor was an agent or employee of Azalea, and that because Jackson is the qualifying broker for Azalea, he is responsible for the acts of the unnamed realtor. Plaintiffs allege that an affirmative obligation existed, requiring Jackson to communicate the fact of the fire damage to plaintiffs.

In their complaint, plaintiffs allege that it was not until September 13,1979, the day following Hurricane Frederic, that they discovered the fire damage while inspecting the attic for damage to the roof from the hurricane. By their amended complaint of January 27, 1981, plaintiffs joined Jackson as a party defendant to their action. Jackson moved to dismiss with prejudice, contending that plaintiffs’ cause of action asserted against him was a claim for fraud and was, thus, barred by the one-year statute of limitations in Code 1975, § 6-2-3. The trial court granted Jackson’s motion.

On this appeal, plaintiffs have elected to argue only the issue of whether their fraud claims are barred by § 6-2-3. Although they note that they have other theories of recovery in addition to fraud, they have presented no argument as to those other theories. Because no argument has been presented by plaintiffs on their other theories of recovery, we will consider the instant appeal only on the issue of whether their fraud claims are barred by § 6-2-3. Plaintiffs have waived their other arguments.

Whether § 6-2-3 bars plaintiffs’ action is dependent upon whether the amendment relates back to the original filing of the complaint. Jackson argues that it does not. He cites Tolbert v. City of Birmingham, 262 Ala. 674, 81 So.2d 336 (1955) (hereinafter Tolbert), in support of his argument. That case noted the following principle:

We have held that, as against a party added by amendment, the statute of limitations continues to run until the amendment is filed making him a party to the suit. Ruffin v. Crowell, 253 Ala. 653, 658, 46 So.2d 218; Birmingham Gas Co. v. Sanford, 226 Ala. 129, 133, 145 So. 485; Sibley v. Bowen, 222 Ala. 13, 14, 130 So. 547; Roth v. Scruggs, 214 Ala. 32, 34, 106 So. 182, 185.

Tolbert, 262 Ala. at 677, 81 So.2d at 339.

The above-quoted principle was the result of this court’s interpretation of Code 1940, Tit. 7, § 239, which dealt with amendments to complaints. That section has since been superseded by Rule 15, A.R.C.P. Nevertheless, the principle stated in Tolbert is still viable. Rule 15(c), A.R.C.P., addresses the situation of adding a party to one’s complaint, and the relation back of such an amendment:

(c) Relation back of amendments. Whenever the claim or defense asserted in the amended pleading arose out of the conduct, transaction or occurrence set forth or attempted to be set forth in the original pleading, the amendment relates back to the date of the original pleading except as may be otherwise provided in Rule' 13(c). An amendment changing the party against whom a claim is asserted relates back if the foregoing provision is satisfied and, within the period provided by law for commencing the action against him, the party to be brought in by amendment (1) has received such notice of the institution of the action that he will not be prejudiced in maintaining his defense on the merits, and (2) knew or should have known that, but for a mistake concerning the identity of the proper party, the action would have been brought against him. An amendment pursuant to Rule 9(h), Fictitious Parties, is not an amendment changing the party against whom a claim is asserted and such amendment relates back to the date c 2 the original pleading.

Plaintiffs’ attempt to amend their complaint to include Jackson cannot relate back to the original filing of their action. There is no basis upon which we can conclude that Jackson “has received such notice of the institution of the action that he will not be prejudiced in maintaining his defense on the merits, and ... knew or should have known that, but for a mistake concerning the identity of the proper party, the action would have been brought against him.” Rule 15(c), A.R.C.P. Nor is this a case under Rule 15(c), involving a fictitious party. Plaintiffs, therefore, are unable to come within the requirements dictated by Rule 15(c), for an amendment to relate back. Because plaintiffs’ amendment cannot relate back, their cause of action against Jackson is clearly outside the one year statute of limitations prescribed by § 6-2-3. The trial court properly granted Jackson’s motion to dismiss. We affirm its judgment.

Case No. 80-655, AFFIRMED.

Case No. 80-747, AFFIRMED.

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

      . A “qualifying broker” is necessary for a corporation or partnership to hold a real estate license. It is in the name of the qualifying broker that a corporation or partnership’s application for a license is made. Code 1975, §§ 34--27-2(a)(4) and 34-27-32(e).

      . Although Rule 15(c) refers to an amendment “changing” a party,-the similar federal rule has been construed to encompass amendments seeking to add a party. 3 J. Moore's Federal Practice, ¶ 15.15 at 15-224 (2d Ed. 1980) (hereinafter Moore’s Federal Practice).


author: BRADLEY, Judge.

text:
    Virginia K. KUHNS as Executrix of the Estate of Joseph H. Kuhns d/b/a Kuhns Engineering Service v. S. H. COUSSEMENT.
    Civ. 2519.
    Court of Civil Appeals of Alabama.
    May 6, 1981.
    Rehearing Denied June 10, 1982.

      Mary R. McKay of Tucker, Gray & Espy, Tuscaloosa, for appellant.
    Stanley Jay Murphy of Murphy & Murphy, Tuscaloosa, for appellee.
   BRADLEY, Judge.

This is an appeal from a judgment in favor of the defendant and against the plaintiff in a dispute over who is responsible for the payment of the balance due on a note.

The facts show that S. H. Coussement, president of Replex Corporation, executed a note whereby Replex promised to pay Kuhns Engineering Service $3,844.50 for consulting services which would be furnished to Replex Corporation.

Coussement signed the note without indicating that he was signing it as president of Replex. After the execution of the note, Kuhns died and his wife, the plaintiff, was appointed executrix of his estate.

Mrs. Kuhns, as executrix of her husband’s estate, brought suit in the District Court of Tuscaloosa County against Replex Corporation and Mr. Coussement individually.

Counsel for Mr. Coussement responded to this complaint by filing a “motion in response to the complaint” on January 18, 1980 with the court requesting it, inter alia, to dismiss Coussement from the suit on the ground that:

[T]his action is based upon alleged busi-mss relationships between the Plaintiff and the Defendant Replex Corporation. There is no showing in the Complaint or in the attachments thereto of any basis whatsoever for individual liability on the part of the corporate officer for alleged obligations of the corporation.

On February 13, 1980 defendant filed an affidavit in support of this motion stating, among other things that:

As to the subject matter of the ... lawsuit, this suit involves a business transaction between Replex Corporation and Kuhns Engineering Services. At all times, under all circumstances, Replex Corporation was doing business as a corporate entity and I acted and was acting as a corporate official and not in my individual capacity. At no time did I represent to any party to the above-referenced transaction that I was acting in an individual capacity.

The district court never ruled .on this motion before rendering a judgment in this cause on April 2, 1980 against Replex Corporation for $4,063.93. At the same time, however, the court refused to find Mr. Coussement liable on the note. Appeal was perfected by plaintiff to the circuit court from that part of the judgment finding in favor of Coussement.

After the appeal to the circuit court, plaintiff filed a motion for summary judgment based on the pleadings, the note, and an attached memorandum of law. The trial court overruled the motion and proceeded to a hearing on the merits. After the ore tenus hearing the court found for the defendant, Coussement.

Before considering the merits of this appeal, we will examine plaintiff’s complaint that the trial court erroneously overruled her motion for summary judgment.

As we have said in the past, a party is not entitled to a summary judgment if he fails to show by the pleadings, depositions, answers to interrogatories, admissions, and affidavits that there is no genuine issue of material fact and that he is entitled to a judgment as a matter of law. Hudson-Thompson, Inc. v. Leslie C. King Co., Ala., 361 So.2d 541 (1978); Vasko v. Jardine, Ala., 346 So.2d 962 (1977).

As previously noted, plaintiff relied on the pleadings and a copy of the note to support her summary judgment motion that Coussement had signed the note in an individual rather than a representative capacity and was therefore personally liable thereon as provided by § 7-3-403(2)(b), Code of Alabama 1975, which provides:

(2) An authorized representative who signs his own name to an instrument:
(b) Except as otherwise established between the immediate parties, is personally obligated if the instrument names the person represented but does not show that the representative signed in a representative capacity .... [Emphasis added.]

The defendant did not oppose the motion with affidavits; consequently, the trial court was required to consider the factual allegations in the pleadings filed in this case as true. Hudson-Thompson, Inc. v. Leslie C. King Co., supra.

The only pleadings present in this cause at this time were plaintiff’s complaint and defendant’s “motion in response to the complaint” which was accompanied by Coussement’s affidavit. Although defendant did not specifically refer to his “motion” as an answer, the district court apparently regarded it as such for defendant never filed an ARCP 7(a) answer in response to plaintiff’s complaint before the court entered a judgment in his favor. A bona fide motion is certainly not a pleading within the intendment of Rule 7 of the Alabama Rules of Civil Procedure. See generally In re Zweibon, 565 F.2d 742 (D.C.Cir.1977); ARCP 7(a), (b). Nevertheless, if the grounds marshalled by a defendant in support of his “motion to dismiss” a plaintiff’s complaint collectively constitute a general denial of liability to the plaintiff, a court may treat the “motion” as an answer and proceed to a determination of the case on its merits provided that (1) plaintiff’s substantial rights are not prejudiced or compromised by such a conversion and (2) plaintiff has been previously afforded ample opportunity to respond to the “motion.” See generally Diaz-Buxo v. Trias Monge, 593 F.2d 153 (1st Cir. 1979), cert. denied, 444 U.S. 833, 100 S.Ct. 64, 62 L.Ed.2d 42 (1979). Since defendant’s motion to dismiss was equivalent to a general denial of liability on the part of defendant to plaintiff and because plaintiff filed a memorandum of law in opposition to the “motion” and her substantial rights in maintaining and prosecuting her claim were not prejudiced or compromised by the court’s consideration of defendant’s “motion” as an answer, we cannot say that the court erred in treating defendant’s motion as an answer. In view of the fact that plaintiff bottomed her motion for summary judgment on the pleadings filed and the note involved in this cause and because an answer is a pleading, ARCP 7(a), we are constrained to hold that defendant’s answer to plaintiff’s complaint raised a genuine issue of material fact, i.e. whether defendant signed the note in a representative or an individual capacity, which could not be resolved simply by reference to the pleadings and the note involved in this action and that the trial court correctly overruled plaintiff’s motion for summary judgment.

Plaintiff contends here, as she did below, that Coussement is personally liable on the note. She relies on § 7-3-403(2)(b) as set out above which requires that an authorized representative who signs his own name to an instrument without indicating that he is doing so in a representative capacity must be held personally liable, “[ejxcept as otherwise established between the immediate parties.”

The note does not show that Coussement signed it in a representative capacity; therefore, in order to avoid liability, Coussement must show that as between the immediate parties, i.e. Kuhns and Coussement, there was an agreement, an understanding, or a course of conduct which would tend to prove that he was signing the note in a representative capacity. Rotuba Extenders, Inc. v. Ceppos, 46 N.Y.2d 223, 413 N.Y.S.2d 141, 385 N.E.2d 1068 (1978). Parol evidence is admissible to disclose any such understanding, agreement or course of conduct between the immediate parties. Highfield v. Lang, Ind.App., 394 N.E.2d 204 (1979); North Carolina Equipment Co. v. DeBruhl, 28 N.C.App. 330, 220 S.E.2d 867 (1976).

The note shows that Replex Corporation promised to pay Kuhns Engineering Service for services rendered, and Coussement testified that he signed the note “only as a corporate officer for the corporation.” But the mere self-serving allegation of the signer’s subjective intent to sign as a representative does not establish that the parties to the note had an agreement that the signer of the note was doing so in a representative capacity. Rotuba Extenders, Inc. v. Ceppos, supra. Furthermore, the fact that several payments were made to Kuhns drawn on the corporate account of Replex Corporation and that Re-plex had promised to pay for services rendered but did not are not sufficient to establish an understanding that Coussement was signing the note in a representative capacity. We therefore conclude that Coussement failed to carry the burden of proof placed on him by the “except” clause in § 7-3^03(2)(b), supra.

The judgment of the trial court is reversed and the cause is remanded.

REVERSED AND REMANDED.

WRIGHT, P. J., and HOLMES, J., concur.


author: ADAMS, Justice. TORBERT, Chief Justice

text:
    Ex parte S. H. COUSSEMENT. (Re Virginia K. KUHNS as Executrix of the Estate of Joseph H. Kuhns d/b/a Kuhns Engineering Service v. S. H. COUSSEMENT).
    80-662.
    Supreme Court of Alabama.
    April 9, 1982.

      Alberta Murphy of Murphy & Murphy, Tuscaloosa, for petitioner.
    Isaac P. Espy of Tucker, Gray & Espy, Tuscaloosa, for respondent.
   ADAMS, Justice.

We granted a writ of certiorari to the Court of Civil Appeals to review its decision holding that S. H. Coussement (defendant) failed to carry the burden of proof placed on one who seeks to avoid personal liability on a note signed in a representative capacity for the payor, but without indication of such representative capacity. Defendant, president of Replex Corporation, signed a note in the amount of $3,844.50, payable to Kuhns Engineering Service. His signature did not indicate that he signed the note in a representative capacity. Defendant was sued by Virginia H. Kuhns (plaintiff), executrix for her late husband, who did business as Kuhns Engineering Service. Defendant sought to avoid personal liability by arguing that he came within the “except” clause of Code 1975, § 7-3-403(2)(b). The Court of Civil Appeals disagreed and held adversely to the defendant. From our review of this appeal we conclude that the decision of the Court of Civil Appeals is correct and is due to be affirmed.

The facts to this appeal are set forth in the opinion of the Court of Civil Appeals 412 So.2d 779. Pursuant to Rule 39 (k), Alabama Rules of Appellate Procedure, defendant presented additional facts for our review. Defendant advances, in essence, two main arguments in attempting to escape personal liability under the note. By parol evidence defendant purports to show that it was not intended for him to incur personal liability when he signed the note for Replex Corporation. He also argues, in effect, a course of conduct exception. We will examine defendant’s arguments and the facts raised in support of them.

At the outset, we observe that Code 1975, § 7-3-403, addresses the matter of an agent incurring personal liability when signing in a representative capacity for his principal:

(2) An authorized representative who signs his own name to an instrument:
(a) Is personally obligated if the instrument neither names the person represented nor shows that the representative signed in a representative capacity;
(b) Except as otherwise established between the immediate parties, is personally obligated if the instrument names the person represented but does not show that the representative signed in a representative capacity, or if the instrument does not name the person represented but does show that the representative signed in a representative capacity.

An examination of the face of the instrument reveals that defendant incurred personal liability under § 7-3-403(2)(a) when he signed the note. The note reveals that Replex Corporation was the entity represented by defendant. The name Replex Corporation is typed in the blank provided for the promisor. Disclosure is thereby made of the entity represented. Wurzburg Brothers, Inc. v. Coleman, 404 So.2d 334 (Ala.1981) (Wurzburg). However, the note does not disclose defendant’s representative capacity. He signed without indicating that he was president of Replex Corporation. Under this set of facts, defendant incurs personal liability through the operation of § 7-3-403(2)(a). Initially, defendant notes that the instrument contained a space for one to sign as an individual guarantor, which was left blank. Defendant suggests that the absence of his signature in that space allows him to escape personal liability. The flaw in defendant’s reasoning is that his signature on the note, absent an indication of representative capacity, is consistent with one assuming personal liability under § 7-3-403(2)(a). Defendant’s argument presupposes that he did not incur personal liability when he signed the note as he did. We rejected a similar argument in Legg v. Lucas & Ellis, 412 So.2d 1202 (Ala.1982). For defendant to prevail, he must come within the “except” clause of § 7-3-403(2)(b).

Defendant alleges that he had an agreement with Kuhns Engineering Service, the immediate party to the note, that he was not to be personally obligated under it. Defendant’s allegation, coupled with the fact that the note names the entity represented, but does not show defendant signed in a representative capacity, allows him to attempt to disestablish his personal liability through the use of parol evidence to establish an agreement between the immediate parties to the note that defendant was not to be personally obligated. Code 1975, § 7-3-403(2)(b). In Wurzburg, supra, we noted that although parol evidence is admissible, the signer has the burden to disestablish his liability. Wurzburg, at 336. The Court of Civil Appeals correctly observed that a mere self-serving allegation of defendant’s subjective intent not to be personally obligated under the note does not establish that the defendant signed the note in a representative capacity. The New York Court of Appeals in Rotuba Extruders, Inc. v. Ceppos, 46 N.Y.2d 223 at 229, 385 N.E.2d 1068 at 1071, 413 N.Y.S.2d 141 at 144 (1978) (Rotuba), stated:

But the type of showing needed to bring the note within the “except” clause of section 3-403 (subd. [2], par. [b]) must necessarily amount to more than the mere self-serving allegation of the signer’s subjective intent to sign as representative. To escape personal liability, the signer has the burden to “establish” an agreement, understanding or course of dealing to the contrary (cf. Uniform Commercial Code, § 1-201, subd. [3]; § 2-208). Thus, without an affirmative demonstration that the taker of the note knew or understood that the signer intended to execute the instrument in a representative status only, there can be no defense that, notwithstanding the form of the note, representative liability was “otherwise established between the * * * parties” (see Jackson Chevrolet v. Oxley, 564 P.2d 633, 635-636 [Okl.]; Fanning v. Hembree Oil Co., 245 Ark. 825, 434 S.W.2d 822).

Examining the facts cited by defendant in support of his contention that he was not to be personally liable under the note, we find his facts insufficient for him to meet the required burden of proof. Defendant’s testimony at trial merely amounts to allegations tfiat he thought he was signing the note as a corporate officer and that he did not intend to incur personal liability. Such allegations are clearly subjective and do not establish an agreement or understanding with Kuhns Engineering Service. The facts cited by defendant do not allow us to assume that his thoughts or intentions were ever communicated to Kuhns Engineering Service. As defendant’s cited facts stand, they are no more than self-serving allegations of his subjective intent. Thus, they are insufficient to disestablish his personal liability. Wurzburg, at 336; Rotuba, supra.

Defendant calls our attention to the fact that the individual who prepared the note for Replex Corporation was instructed to prepare a note evidencing Replex Corporation’s indebtedness to Kuhns Engineering Service. At best, such testimony serves to support the position that Replex Corporation did not seek to bind its own agent, defendant, under the note. It does not establish an agreement with Kuhns Engineering that defendant was not to be personally liable. We, therefore, find defendant’s allegation that it was not intended for him to be personally liable under the note to be without merit.

Defendant also advances an argument that a course of dealing existed between the parties to the note such that it was understood defendant was not personally liable. However, this argument also does not withstand scrutiny. The facts cited by defendant as evidencing a course of dealing all arise out of the disputed transaction. Typical of the facts cited by defendant to show a course of dealing are the facts that Replex Corporation made several installment payments on the note, and that the note originally was transmitted to Kuhns Engineering Service by a Replex Corporation employee with a note written on the corporation’s stationery. Even if we are to assume that such facts otherwise would have probative value on the issue before us, they cannot help the defendant because they occurred as part of the instant transaction. A course of dealing is shown through prior transactions of the parties. Rotuba, 46 N.Y.2d at 230-1, 385 N.E.2d at 1071-2, 413 N.Y.S.2d at 144-5; Griffin v. Ellinger, 538 S.W.2d 97 at 100-1 (Tex.1976). A course of dealing is a course of “previous conduct between the parties .... ” Code 1975, § 7-1-205(1); Rotuba, supra. Defendant cites Acme Metals, Inc. v. Weddington, 575 S.W.2d 15 (Tenn.App.1978), in support of his argument that a course of dealing existed between the parties. That case, at least, is distinguishable on the basis that it involved a series of prior transactions between the parties. Defendant’s argument is lacking in factual basis, and is accordingly without merit.

For all of the foregoing reasons, the decision of the Court of Civil Appeals is affirmed.

AFFIRMED.

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

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

TORBERT, Chief Justice

(dissenting).

The majority affirms the decision of the Court of Civil Appeals, which reversed the decision by the trial court, which had held that the note involved evidences a debt owed by Replex Corporation to Kuhns Engineering Service as opposed to a personal debt of S. H. Coussement. In reaching their decision, the majority examined the evidence presented before the trial court and concluded that Coussement did not disestablish his liability as required when the signature of an individual on a note does not show that the individual signed in a representative capacity. See, Wurzburg Brothers Inc. v. Coleman, 404 So.2d 334 (Ala.1981).

I disagree with the majority because I believe that great deference should be given to the decision of the trial court, which heard the evidence presented ore tenus and decided that Coussement did sign in a representative capacity. “When the trial court hears evidence ore tenus, its conclusion will not be disturbed on appeal unless palpably erroneous.” Pritchett v. Nathan Rodgers Construction and Realty Corp., 379 So.2d 545 (Ala.1980). See also, Hill v. Abyssinia Missionary Baptist Church, 370 So.2d 1389 (1979); Hall v. Polk, 363 So.2d 300 (Ala.1978). The record adequately supports the trial court’s decision, which is consistent with decisions of this Court. This Court in Wurzburg held that:

“[Ujnder Code 1975, § 7-3-403, the face of the instrument must put a person on notice as to who is liable on the instrument. If the face of the note names the person represented but does not show the signer’s representative capacity, or vice versa, parol evidence is admissible between the immediate parties to the-instrument under § 7-3-403(2)(b).
“... In order to meet the burden of proof under § 7-3 — 403(2)(b), the evidence must be more than the mere self serving allegation of the signer’s subjective intent to sign in a representative capacity.”

Admittedly, Joseph H. Kuhns, who negotiated with Coussement, is deceased. However, there is sufficient evidence to support the decision by the trial court. While Coussement did testify in his own behalf, which by itself would be insufficient to disestablish liability under Wurzburg, his testimony can be considered with the other evidence presented to see if cumulatively the evidence disestablishes the personal liability of Coussement.

In this case, the primary evidence supporting the nonpersonal liability of Coussement is the testimony of Otis B. Kirby, the former comptroller of Replex Corporation; the payment of at least three installments of the amount owed under the note to Kuhns Engineering Service; and the letter accompanying the signed note mailed from Replex Corporation to Kuhns Engineering Service.

First, Kirby is not a party to this suit. He did, however, prepare the promissory note, oversee the process of making the payments from Replex to Kuhns, and actually prepare the checks from the corporate account of Replex to be sent to Kuhns. Kirby’s testimony is that the debt was the corporation’s and Coussement signed as a representative of Replex.

Secondly, four cancelled checks were offered by the defendant, Coussement, to show partial payment of the obligation. All of these checks were drawn on the corporate account of Replex Corporation, which supports the conclusion that the payments were for a corporate debt.

Finally, the letter which accompanied the signed note mailed to Kuhns reads as follows:

“REPLEX
Corporation
“Mr. Joe Kuhns
Kuhns Engineering Services
P. 0. Box 1217
Tuscaloosa, AL 35401
“Dear Joe:
“Thank you very much for your patience and understanding in permitting us to defer payment of our account.
“Enclosed is a signed note to cover the balance due as per your discussion with Mr. Coussement.
“Your thoughtfulness in helping us to overcome the tragedy of the fire is greatly appreciated.
“Sincerely,
“REPLEX CORP.
“O. B. Kirby
“Comptroller
“OBK:st
“enc.
“POST OFFICE BOX 86, MILLPORT,
AL 35576.
205 662-4204”

This letter also supports the conclusion that the debt was the corporation’s. The trial court viewed this evidence and was satisfied that Coussement had met his burden to disestablish his personal liability under the note. I agree and would reverse the decision of the Court of Civil Appeals.

MADDOX, SHORES and BEATTY, JJ., concur.


author: WRIGHT, Presiding Judge.

text:
    U-TOTEM OF ALABAMA, INC. v. BOARD OF ADJUSTMENT OF the CITY OF HUNTSVILLE.
    Civ. 2943.
    Court of Civil Appeals of Alabama.
    Jan. 20, 1982.
    Rehearing Denied Feb. 24, 1982.
    Certiorari Denied, April 23, 1982 Alabama Supreme Court 81-471.

      Dennis Riley of Camp & Riley, Huntsville, for appellant.
    Charles H. Younger, Huntsville, for ap-pellee.
   WRIGHT, Presiding Judge.

This is a zoning case.

The case involves the following pertinent facts:

The owner of the property in question requested a variance in 1966 to construct a U-Totem convenience store in Huntsville in a 2-B zone. Such a zone permits apartments, duplexes, single family dwellings and offices. The proposed hours of operation represented in the request to the Huntsville Board of Adjustment were from 7:00 A.M. to 11:00 P.M., seven days a week. The request was heard and granted on February 27, 1967. Following construction, the building and property were sold to U — Totem of Alabama, Inc. The store was kept open from 7:00 A.M. to 11:00 P.M. each day until the summer of 1977 when the hours were increased to twenty-four hours per day. In the spring of 1980, the building inspector for the City of Huntsville informed the store management that the store should be closing nightly at 11:00 P.M.

U-Totem appealed this decision to the Huntsville Board of Adjustment, and requested a variance for twenty-four-hour operation. The request was denied after a hearing June 15, 1980. All minute entries of the Board, correspondence, notices and other written materials concerning the request refer to the request as one for a “variance for the hours of operation.” Notice of appeal to the circuit court for trial de novo drafted by U-Totem’s attorneys likewise referred to the request as a variance.

The circuit court after trial de novo denied U-Totem’s request, finding that the proposed hours of operation presented to the Board in 1967 were part of the basis upon which the original variance was granted. The court held that the 1967 variance therefore contained an hours-of-operation limitation. That court also held that it was not “reasonably satisfied” from the evidence that denial of the variance would create hardship on the part of U-Totem, and that twenty-four-hour operation of stores in the area would be destructive of the basic residential character of the neighborhood.

Appellant contends that (1) the evidence at trial was insufficient to support the findings and conclusions of the trial court’s judgment; (2) the variance granted in 1967 contained no limitation of hours of operation; and (3) the standard of unnecessary hardship applied by the trial court was erroneous since no new or different use was sought, but only an increase in hours of operation for a permitted use.

The scope of review in a case heard ore tenus is extremely narrow. The ore tenus rule applies in appeals such as this one. White v. Board of Adjustment of Birmingham, 245 Ala. 48, 15 So.2d 585 (1943). Every presumption will be indulged in favor of the trial court’s judgment, and its decision will not be disturbed unless palpably wrong. Town of Helena v. Country Mobile Homes, Inc., 387 So.2d 162 (Ala.1980); COME v. Chancy, 289 Ala. 555, 269 So.2d 88 (1972). We find no palpable error here.

The record clearly reflects that the hours of operation were represented to be 7:00 A.M. to 11:00 P.M. at the time the original variance was granted. Minute entries from the June 15, 1980, Board of Adjustment meeting show that U-Totem’s presentation to the Board admitted that the 1967 variance was based on hours of 7:00 to 11:00. The trial court’s determination that the 1967 variance was limited as to hours of operation is supported by the evidence and is not error.

Appellant’s contention that the trial court applied the wrong standard of proof is not well taken. Appellant erroneously cites Ex parte Board of Zoning Adjustment of Hueytown, 383 So.2d 179 (Ala.Civ.App.1979), cert. denied, 383 So.2d 183 (Ala.1980) for the proposition that the request here was not for a variance, but for the extension of a permitted use. In the Hueytown case, the facts were substantially different than those involved here. The electrical substation in that case was a permitted use in the zone in which it was located. No variance was needed to build it. In the present case, the U-Totem store is not a permitted use under the 2-B zoning classification, but it was permitted by means of a specific variance. We are of the opinion that to extend a use granted by variance, one must request and be granted further variance. The trial court correctly applied the standard for variances — that of unnecessary hardship. Nelson v. Donaldson, 255 Ala. 76, 50 So.2d 244 (1951).

This cause is due to be affirmed.

AFFIRMED.

BRADLEY and HOLMES, JJ., concur.


text:
    Julia Ann FORD v. Joe Mack FORD.
    Civ. 2962.
    Court of Civil Appeals of Alabama.
    Jan. 27, 1982.
    Rehearing Denied March 2, 1982.
    Certiorari Denied, April 23, 1982 Alabama Supreme Court 81-505.

      Jack W. Torbert of Torbert, Turnbach & Warren, Gadsden, for appellant.
    Rowan S. Bone, Gadsden, for appellee.
   BRADLEY, Judge.

This is a divorce case.

Joe Mack Ford and Julia Ann Ford were married in 1960. Three children were born of the marriage, namely Toni Allison, Scott Wells, and Jon Craig.

The husband filed for divorce on November 21,1980 on the grounds of incompatibility of temperament. He testified that the parties had had marital problems for approximately five years. Finally in October 1980 he decided to move out of the marital home.

At the time of the divorce decree both parties were employed. The husband was employed as a dean at Gadsden State College earning approximately $34,000 a year. He is also presently serving as a state legislator. Further, he holds the rank of lieutenant colonel in the National Guard. The wife is a tenured teacher at Gadsden Junior College.

The parties lived in a home valued at approximately $50,000. The wife presented evidence that the home was in need of a great deal of repair work.

The husband also bought the home in which he is presently living. It is valued at $21,000, with an outstanding mortgage of $11,000. Also the parties own two other houses, both of which have outstanding mortgages, but which are leased under different arrangements.

There is also evidence that the husband has several different stock accounts. Some of these accounts were set up for the children’s education with the husband as custodian. The testimony indicates that the money for these accounts was acquired by the wife through inheritance.

The daughter was attending the University of Alabama at the time of the divorce. The two sons were enrolled in a private school. The husband testified that he was paying these educational expenses and would continue to do so.

On March 31, 1981 a final decree of divorce was entered. In that decree the wife was awarded title to the marital home and all the furnishings except for a few of the husband’s personal belongings. She also was awarded a 1970 model station wagon. The husband was ordered to pay the mortgage and $2,000 for home repairs. The husband was awarded title to all of the other marital property including the stocks but also had to assume all of the marital debts. The decree required him to pay $350.00 per month to the wife as child support. He was required to pay all of his children’s school expenses including tuition and books, and the children were made beneficiaries of his life insurance until they reached their majority.

The wife filed a motion for new trial which was deemed denied after the passage of ninety days. She then filed her appeal to this court.

In this appeal two issues are raised. First the wife contends that the trial judge should have recused himself because of possible bias. Second she contends that the trial court abused its discretion in the division of property.

The wife filed a motion for recusal in the trial court on March 5, 1981. The trial court after hearing the evidence on the recusal motion denied the wife’s petition and proceeded to hear the case.

The wife argues that she showed substantial evidence of possible bias on the part of the trial judge, and as a result he had a duty to recuse himself. Part of the wife’s argument for recusal stems from the fact that the husband is a member of the state legislature. She showed that a man who had worked in her husband’s campaign had also worked in the judge’s campaign. This man’s wife was bailiff in the judge’s court. Also she argues that the judge was possibly biased because the husband had voted for a bill granting a pay raise to circuit judges.

The husband also admitted to seeing the trial judge on at least two occasions at political gatherings. He mentioned to the judge that he had filed for divorce and asked that the hearing be set as soon as possible. The wife states that the judge showed his bias by setting the hearing for a very early date. She presented evidence to show that several other cases that were filed at the same time were set for hearing at much later dates. The wife argues that because of the early hearing date the husband did not answer several of her interrogatories, and that the trial court went ahead and heard the case without requiring the husband to answer the interrogatories.

It is the wife’s argument that all of these factors taken as a whole constitute substantial grounds to require recusal. We do not agree.

The Canons of Judicial Ethics, Canon 3(C)(1) provides:

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 ....

In denying the recusal motion the trial judge stated that he had no bias or prejudice. He also stated that although he knew both of the parties he did not know either of them well.

The wife argues that the case of Wallace v. Wallace, 352 So.2d 1376 (Ala.Civ.App.1977) is applicable to the present case. In Wallace we required the trial judge to re-cuse himself because he had been appointed to office by Governor Wallace and because Governor Wallace was a close personal friend of the judge’s family. The wife contends that considering all of the factors in the present case, recusal is also necessary.

In the instant case, we cannot say that the evidence is so substantial as to show possible bias. There is no showing that the trial judge had any personal relationship with the husband except having met him at political functions. Just because one of the husband’s campaign workers also worked for the judge does not show possible bias. The husband stated that he had no knowledge of this arrangement. Also, the wife’s theory that the judge might be prejudiced because the husband supported a pay increase for circuit judges would serve only to disqualify every circuit judge in the state.

Recusal is not required where there is not substantial evidence to support an accusation of bias. Marr v. Marr, 383 So.2d 194 (Ala.Civ.App.1980). In this case taking into consideration all of the wife’s arguments, we cannot find substantial evidence of bias. The trial judge held a full hearing on the merits. He recognized that the husband had not answered certain interrogatories and told the husband to produce the requested information. He also assured the wife that ample opportunity would be given her after the information was produced to question the husband. As a result we cannot find that the trial judge erred in failing to recuse himself.

The wife also contends that the property division constituted an abuse of discretion. Division of property is within the sound discretion of the trial court and will not be reversed on appeal absent palpable abuse. Armstrong v. Armstrong, 391 So.2d 124 (Ala.Civ.App.1980). In the present case we cannot find such an abuse of discretion so as to constitute reversible error.

The wife, in her brief, has argued that the property settlement disproportionately favors the husband. In looking over the decree we cannot find this to be the case.

The wife received the marital home and all the furnishings. The husband was required to pay the mortgage and $2,000 toward needed repairs. The husband received all the other property, which included a home valued at $21,000 but with a mortgage of $11,000. Likewise, on some of the other property, there were outstanding mortgages. The husband assumed all of these debts.

Both parties worked, and it is clear had the ability to support themselves. The wife has not shown that the property division is so inequitable as to require reversal.

The wife also argues that the trial court abused its discretion in the award of $350.00 a month as child support. Again, we cannot agree.

Not only is the husband required to pay $350.00 to the wife, but he is also required to pay educational expenses and health insurance. His children are made beneficiaries of his four life insurance policies.

The two sons attend private school. As part of the decree the husband is required to pay their tuition. The husband is also presently paying for the daughter to attend the University of Alabama. The husband has also bought the daughter a car. The testimony indicated that these school expenses cost several thousand dollars every year.

The wife also argues that the award of all the stock accounts to the husband constituted abuse. However, we note that the accounts she is concerned about were set up for the children’s education. As long as the husband is required to pay these expenses, we cannot say it was error to award him money set aside for this purpose.

As a result, we cannot find that the trial court abused its discretion; accordingly, its judgment is affirmed.

The wife’s request for an award of attorney’s fees is denied.

AFFIRMED.

WRIGHT, P. J., and HOLMES, J., concur.


text:
    LIMESTONE COUNTY, ALABAMA, a political subdivision of the State of Alabama v. CITY OF HUNTSVILLE HOSPITAL BOARD, a corporation; North Alabama Neurological Association, P. A., and Edward H. Laughlin, M. D., P. A.
    Civ. 2991.
    Court of Civil Appeals of Alabama.
    Jan. 27, 1982.
    Rehearing Denied March 3, 1982.
    Certiorari Denied, April 30, 1982 Alabama Supreme Court 81-497.

      Winston V. Legge, Jr. of Patton, Latham, Legge & Cole, Athens, for appellant.
    John 0. Cates of Ford, Caldwell, Ford & Payne, Huntsville, for appellees.
   BRADLEY, Judge.

This case concerns the liability of a county to pay an indigent’s medical expenses when the indigent is injured incident to a lawful arrest.

In August 1975 deputy sheriffs in Limestone County observed an automobile being driven in the wrong lane of a public road. An effort was made to stop the vehicle. Finally the driver of the vehicle stopped it in the driveway of a private residence. The driver, Crabtree, got out of the vehicle and was told by one of the deputies that he was under arrest. During the effort to place Crabtree in the police car, Crabtree got away from the deputy and ran toward the house yelling that he was going to get a gun and kill the deputies. Crabtree obtained a rifle and approached one of the deputies, saying, “I’ll kill you, you s. o. b.” The deputy told Crabtree to drop the gun, but he refused and the deputy fired over his head. Crabtree continued to approach and threaten the deputy. The deputy then shot Crabtree down, injuring him severely.

The deputy called an ambulance to the scene'. When the ambulance arrived, the sheriff told the ambulance driver that the county would not be responsible for Crab-tree’s medical bills. Crabtree was taken to Athens-Limestone Hospital accompanied by a sheriff’s deputy, but was transferred to Huntsville Hospital. Crabtree later died in the hospital due to the severity of his injuries.

Part of Crabtree’s medical bills were paid by Medicaid. The doctors and hospital instituted suit against Limestone County to collect the remaining amount due. The case was heard by the court sitting without a jury. Judgment was rendered in favor of the hospital. The county filed a motion for a new trial, which was denied. As a result, the county appeals to this court.

The only issue presented for review is whether a county can be held responsible for medical services extended to one injured while being taken into lawful custody but •who had not been incarcerated in jail at the time the injury occurred.

Code 1975, § 14-6-19, provides that a sheriff or jailer must provide at the expense of the county medical attention to those prisoners unable to provide it for themselves. The only case construing this section is Malone v. Escambia County, 116 Ala. 214, 22 So. 503 (1897). In that case it was held that § 14-6-19 applied only to those who were confined in jail.

In the present case, Crabtree was never confined in jail. Even though he was in the custody of the sheriff, his injuries necessitated his transportation to a hospital rather than jail. Notwithstanding the fact that Crabtree was in the sheriff’s custody before and after his injuries, he was never placed in the jail and, in view of the supreme court’s holding in Malone, supra, we are bound to say that Limestone County is not responsible for Crabtree’s medical bills.

Limestone County is an instrumentality of the State of Alabama and is authorized to do only those things permitted or directed by the legislature of this state. Jefferson County v. Johnson, 333 So.2d 143 (Ala.1976); Laney v. Jefferson County, 249 Ala. 612, 32 So.2d 542 (1947). In the case at bar Limestone County has been authorized to pay the medical expenses of indigent prisoners only when they are confined to jail. Crabtree was not confined to jail when medical attention was provided to him; therefore Limestone County is not liable for his medical expenses.

We must confess that the result which we feel compelled to reach in this case is difficult to appreciate. Why should a distinction be made between a prisoner confined in jail and one in the lawful custody of the sheriff but not in jail so far as providing that person with medical attention? Although we fail to perceive a reason for such a distinction, the decision as to whether there is or is not such a distinction is not for us to decide. We are required to follow the decisions of the Alabama Supreme Court. Jones v. City of Huntsville, 288 Ala. 242, 259 So.2d 288 (1972); Code 1975, § 12-3-16.

The judgment of the trial court is reversed.

REVERSED AND REMANDED.

WRIGHT, P. J., and HOLMES, J., concur.


text:
    George MUNCHUS v. Mary MUNCHUS.
    Civ. 2987.
    Court of Civil Appeals of Alabama.
    Feb. 3, 1982.
    Rehearing Denied March 10, 1982.
    Certiorari Denied, April 30, 1982 Alabama Supreme Court 81-518.

      Tom L. Larkin and Herb Massie, of Shores, Larkin, Penick & Massie, Birmingham, for appellant.
    Stephen R. Arnold, Birmingham, for ap-pellee.
   WRIGHT, Presiding Judge.

This is a child custody case.

The Circuit Court of Jefferson County divorced the parties in September 1979. The decree provided for a division of property and awarded custody of the parties’ minor son to the mother. The father was given specified visitation rights and ordered to pay child support. The decree contained no prohibitions against the mother’s removing the child from the trial court’s jurisdiction, although the father had requested such a provision. Neither party appealed the original decree of divorce.

In June 1980, the mother moved to Chicago, Illinois, taking the parties’ son with her. In May 1981, the father petitioned for a modification of the divorce decree to award him custody of his son, or, in the alternative, to insert a provision in the decree prohibiting the mother from removing the child from Jefferson County for a period in excess of fourteen days during the year. The father subsequently filed motions to enjoin the child’s removal and to return the child.

In July 1981, the trial court heard all matters ore tenus and held that the father had failed to show that the welfare of the child necessitated any modifications of the custodial provisions of the original decree. The father’s motions for an injunction and for return of the child were also denied. The court found that the removal of the child’s residence to Chicago, Illinois, was a sufficient basis for modifying the father’s visitation schedule.

The original decree had provided the father with visitation rights on the first and third weekends each month, the week between Christmas and New Year’s Day, one month during the summer, every other Thanksgiving Day, and every other birthday. The July 1981 order provided the father with visitation for six weeks during each summer, during which time he will be relieved of his child support obligations. The father was allowed one week during Christmas, four days during spring school holidays, and any other times when the father is in the town wherein the child resides. The order made explicit provisions for the transportation of the child to his father, with the father responsible for all air fares.

The father’s subsequent motion to alter or amend, or in the alternative reconsider the order, was denied. He appeals to this court.

The father asserts that the trial court erred in allowing the mother to remove the child from the court’s jurisdiction absent proof that the welfare of the child necessitated such a move. He further contends that the burden of proving the necessity for a move should have been placed on the mother.

When a party to a divorce seeks modification of child custody provisions of the original decree, he must show a material change in circumstances which affects the welfare of the child. Murphy v. Quinn, 402 So.2d 1033 (Ala.Civ.App.1981); Taylor v. Taylor, 387 So.2d 849 (Ala.Civ.App.1980). The burden of proof is on the one seeking the modification. Cheatham v. Cheatham, 344 So.2d 525 (Ala.Civ.App.1977).

The father argues that the mother’s right to continued custody should have been conditioned on her continuing residency within an area in which the father could reasonably exercise his existing visitation rights. Counsel for the father relies heavily in his brief on many cases decided by the courts of New York which apparently support his position. The father’s position is no,, supported by the case law of this state.

The trial judge who hears the evidence ore tenus is in the best position to ascertain whether there has been a material change of circumstances which requires a custodial change. Julian v. Julian, 402 So.2d 1025 (Ala.Civ.App.1981). There is also a rule of repose applied to petitions to modify prior judgments concerning child custody. Alford v. Alford, 368 So.2d 295 (Ala.Civ.App.1979). In order to overcome the presumption of correctness afforded the trial court’s decree and the rule of repose, the evidence of a material change in circumstances affecting the welfare and best interest of the child must disclose an obvious and overwhelming necessity for change. Id. The record fails to afford such evidence in this case. We consider that our opinion in Cheatham sufficiently disposes of this issue. See also, Clark v. Clark, 46 Ala.App. 432, 243 So.2d 517 (1970).

The next issue raised by the father is whether the trial court erred in not conditioning child support on the mother’s continuing residency within an area in which the father can reasonably exercise his existing visitation rights. He asserts that he should be relieved of his obligation to pay support unless he is afforded frequent and regular access to the child. Counsel for the father, again relying on decisions of New York courts, boldly states in his brief that this is a “settled” principle of law. He is in error.

The father’s duty to support his minor child is determined according to the child’s reasonable needs and the father’s reasonable financial capability to satisfy those needs. Modification of a prior provision for child support is a matter within the sound discretion of the trial court, no matter where the child may reside. Wise v. Wise, 396 So.2d 111 (Ala.Civ.App.1981).

Finding no error or abuse of discretion, this cause is due to be affirmed.

AFFIRMED.

BRADLEY and HOLMES, JJ., concur.


text:
    John Karmel WARD and Southern Haulers, Inc. v. Susan ULLERY.
    Civ. 2997.
    Court of Civil Appeals of Alabama.
    Feb. 3, 1982.
    Rehearing Denied March 10, 1982.
    Certiorari Denied, April 30, 1982 Alabama Supreme Court 81-521.

      John W. Cooper, Mentone, for appellant.
    Julian P. Hardy of Lorant, Harris & Yearout, Birmingham, for appellee.
   BRADLEY, Judge.

This appeal arises out of a controversy as to whether a final judgment rendered by the District Court of Jefferson County contained a clerical error or a judicial error.

The case arose when Susan Ullery filed suit against Southern Haulers, Inc., John Karmel Ward, and other fictitious defendants alleging property damage due to a traffic accident. A collision had occurred between Ullery and a Southern Haulers truck driven by their employee, Ward. Later Ullery amended her complaint to include an allegation that she had also suffered personal injuries.

A trial was held in the district court. At that trial Ward and Southern Haulers were represented by an attorney furnished by their insurance carrier. Judgment was rendered in favor of Ullery in the amount of $750. The final judgment, however, merely stated that the judgment was rendered in favor of the plaintiff against the defendant for $750. There was no designation of which defendant the judgment was against. There was no appeal from this judgment.

Over a year after the judgment in the district court, Ward and Southern filed a motion for relief from judgment under A.R. C.P. 60(b)(4) and (6) in that same court. Southern and Ward alleged that the district court’s judgment was void due to a lack of certainty.

At a hearing on this motion the district court judge found that he had made a clerical error by not adding an “s” to the word “defendant” in the final judgment. He also stated that he was striking all the fictitious defendants from the suit. Ward and Southern appealed to the circuit court the denial of their 60(b) motion and the granting of a 60(a) motion to correct a clerical error.

Several issues were raised in the appeal to the circuit court. During the pendency of the appeal, the parties agreed that the issue of whether the district court had made a clerical or judicial error was solely a question of law. As a result the parties agreed to perfect a direct appeal to this court from the district court judgment on this legal question.

Section 12-12-72, Code 1975, provides for a direct appeal to this court when only a question of law is involved and where the district court certifies the question. In the present case the attempt to certify this question directly to this court was done after an appeal had already been properly perfected in the circuit court. Such procedure is improper, and the appeal to this court must be dismissed.

Once an appeal is taken, the trial court loses jurisdiction to act except in matters entirely collateral to the appeal. Osborn v. Riley, 331 So.2d 268 (Ala.1976). In the case at bar an appeal was taken to the circuit court where a de novo trial would be given the parties. It was during the pend-ency of this appeal that the parties asked the district court to certify as a question of law one of the issues that was before the circuit court so that they could bypass the circuit court and get a ruling directly from this court. Clearly, however, at this point the district court had lost jurisdiction to take any such action.

Once an appeal was taken to the circuit court the district court lost jurisdiction to certify one of the issues in that appeal for a direct appeal to this court. Certainly this issue was not collateral to the appeal to the circuit court so as to allow the district court to continue to exercise jurisdiction. As a result we find that the appeal to this court was improper.

The issue raised has been properly appealed to the circuit court, and it is for that court to rule on the question. Having found that the district court had lost any authority to certify this question for direct appeal, the appeal must be dismissed.

APPEAL DISMISSED.

WRIGHT, P. J., and HOLMES, J., concur.


text:
    Thomas Riley HITSON v. Sara Nell HITSON.
    Civ. 3015.
    Court of Civil Appeals of Alabama.
    Feb. 3, 1982.
    Rehearing Denied March 3, 1982.
    Certiorari Denied, April 30, 1982 Alabama Supreme Court 81-504.

      Larry R. Grissett of Prestwood & Prest-wood, Andalusia, for appellant.
    Griffin Sikes of Tipler, Fuller & Sikes, Andalusia, for appellee.
   WRIGHT, Presiding Judge.

Defendant in a divorce decree rendered May 7, 1981, was found in contempt of court on October 8, 1981, for failing to pay an attorney fee of $1,800 awarded by the court to plaintiff in the divorce decree. Though finding defendant in contempt, the court placed no sanction upon defendant other than to fix a lien upon defendant’s assets and direct the issuance of an execution. Defendant thereupon filed notice of appeal.

Plaintiff moved to dismiss the appeal. This court denied the motion, choosing to treat the appeal as a petition for certiorari, certiorari being the proper method for review of a finding of contempt when the defendant is not in jail. Wilson v. Freeman, 376 So.2d 1096 (Ala.Civ.App.1979).

At the time of the filing of the petition for Rule Nisi by plaintiff, there was pending before this court an appeal of the divorce decree taken by defendant without supersedeas bond. Though a supersedeas bond was set, defendant failed to make it. The appeal was dismissed by this court on motion of defendant on September 16,1981. In the interim, defendant filed a pleading termed “Counterclaim for Declaratory Relief” in response to the petition for Rule Nisi.

The essence of that pleading was that because of restraining orders issued by the court preceding the divorce, the requirements of the divorce decree and the too high supersedeas bond set for the appeal, defendant’s contracting business was destroyed. He claimed damages from plaintiff for causing such condition. Plaintiff moved to dismiss for failure to state a claim. The motion was granted. Defendant charges error in such dismissal.

To say that such a pleading in response to a citation for contempt is unusual, is rather an understatement. It is the first of such nature this court has seen. We need not decide whether such a pleading might be permissible, because in this case the matters alleged therein are only relevant to the original divorce and any appeal therefrom. Both of those matters have previously been terminated. The only justiciable matter presented for review in a contempt proceeding is whether there was legal basis for the finding of contempt for failure to comply with the prior orders of the court. Brady v. Brady, 358 So.2d 744 (Ala.Civ.App.1978).

Defendant submits that the court was in error in sustaining objection to the introduction of two checks offered by him. The checks were dated in June 1980, nearly a year prior to the divorce. They were admittedly written upon the business account of the defendant and signed with his name by plaintiff. It was also admitted that plaintiff was keeping the books of the business and writing payroll and other checks on the account prior to June 30, 1980. It was not disclosed what the checks were for. Defendant contends that he offered them to show that he was without funds with which to comply with the decree of the court.

Perhaps the checks would have been admissible if sufficiently connected to defendant’s present financial condition, but they were not. There was no evidence presented tending to show defendant’s present financial condition other than the averment that his contracting business was ruined by the divorce and division of property.

Defendant also complains of denial of the entry into evidence of some photographs taken of property awarded him in the divorce decree. He says they were offered to show how worthless such property was. Though the photographs were rejected, there was oral evidence accepted as to each one, including a description of what it portrayed. We again fail to see a material relevancy to the issue before the court and find there was no substantial injury.

From our review of the record, or lack of it, we find no error in the finding of contempt. Defendant totally failed to produce material evidence to support his only defense — that of financial inability to comply with the judgment of the court. Gorman v. Gorman, 392 So.2d 238 (Ala.Civ.App.1980).

AFFIRMED.

BRADLEY and HOLMES, JJ., concur.


author: HOLMES, Judge.

text:
    George HAVEL, individually, and d/b/a Steel Enterprises v. M. D. DAWKINS.
    Civ. 3083.
    Court of Civil Appeals of Alabama.
    Feb. 3, 1982.
    Rehearing Denied March 3, 1982.
    Certiorari Denied, April 23, 1982 Alabama Supreme Court 81-533.
    Charles C. Partin of Stone, Partin, Gra-nade & Crosby, Bay Minette, for appellant.

      Robert E. Wilters, Bay Minette, for ap-pellee.
   HOLMES, Judge.

This is an appeal from the trial court’s order setting aside a default judgment. For reasons stated below, we dismiss the appeal.

Appellant George Havel, a general contractor, was named as a third party defendant in a case involving breach of contract in the construction of a building. Havel, in turn, filed a third party complaint against appellee M. D. Dawkins, a subcontractor who had worked on the foundation of the building'.

An entry of default was entered against Dawkins. Thereafter, on October 3, after a jury trial, judgment was entered against Havel in the breach of contract action.

On November 7, a default judgment in the amount of $10,000 was entered against Dawkins and in favor of Havel. On November 19, Dawkins filed a motion to set aside the entry of default and default judgment. In his motion to set aside, Dawkins alleged that Havel had fraudulently misrepresented to him that it would not be necessary for Dawkins to answer the third party complaint filed by Havel. Dawkins further contended that he had a meritorious defense to the third party complaint which he should be allowed to present to a jury.

On December 19, the trial court ordered that the motion to set aside the default be set for a hearing on February 17. After hearing testimony on that date, the trial court denied Dawkins’s motion to set aside the default.

Dawkins, on February 27, filed a “Motion for a Rehearing on Motion to Set Aside Entry of Default and Default Judgment.” The second motion contained essentially the same issues as the prior motion to set aside the default. The trial court held a hearing on this new motion in March. Thereafter, on April 22, the trial court granted Daw-kins’s motion for rehearing and ordered the entry of default and default judgment be set aside.

Havel appeals from the April 22 order of the trial court. He, through able counsel, contends the trial court erred in rehearing the motion to set aside the default and in ordering the default to be set aside.

Both Havel and Dawkins, on appeal, apparently concede that Dawkins’s first motion must be treated as a rule 60(b), A.R. C.P., motion. We agree.

Rule 55(c), A.R.C.P., provides that a judge, in his discretion, may set aside a judgment by default within thirty days. The Committee Comments to rule 55(c) state that “. . . Rule 60 becomes available when more than thirty days has passed since the entry of the judgment by default.”

In the instant action, the trial court did not rule upon the motion to set aside the default within thirty days as provided by rule 55(c). Therefore, the only relief available to Dawkins was provided by rule 60. Elliott v. Stephens, 399 So.2d 240 (Ala.1981).

In sum, in this instance, in view of the allegations contained in the petition, what was originally a rule 55(c) motion was properly considered a rule 60(b) motion after the passage of thirty days. The trial court, pursuant to rule 60(b), had jurisdiction at the February hearing to consider the motion to set aside the default. Elliott v. Stephens, supra; Wiggins v. Tuscaloosa Warehouse Groceries, Inc., 396 So.2d 91 (Ala.1981).

As stated earlier, the trial court denied Dawkins’s motion to set aside the default on February 17. Thereafter, on February 27, Dawkins filed his motion for rehearing on the motion to set aside the default. The trial court took testimony on this second motion in March.

Both Havel and Dawkins contend the two motions contained identical arguments, although the second motion expanded Daw-kins’s claim of a meritorious defense. Also, both parties agree that testimony was very similar at the February and March hearings.

The only significant difference, then, is that the trial court denied the motion to set aside the default after the February 27 hearing, and granted the motion to set aside the default after the rehearing in March.

The next issue before this court, then, is whether it is error for a trial court to reconsider its order denying a rule 60(b) motion seeking relief from a default judgment. In light of the facts of the instant appeal, we find no reversible error.

Havel contends on appeal that the trial court had no authority to grant a motion to rehear a previously denied rule 60(b) motion requesting relief from default. He states that the motion for rehearing constituted a second rule 60(b) motion containing grounds identical to those in the earlier 60(b) motion. Havel contends it is error for the trial court to allow successive rule 60(b) motions when no new issues or defenses are raised.

We initially note that Dawkins’s second motion, styled “Motion for Rehearing on Motion to Set Aside Entry of Default and Default Judgment,” is not a new rule 60(b) motion. Rather, it is a request that the trial court reconsider the earlier rule 60(b) motion. A “rehearing” refers to a second consideration of the cause for the purpose of calling to the court’s attention any error, omission, or oversight in the first consideration. Black’s Law Dictionary 1157 (5th ed. 1979).

We have found no specific Alabama cases in which the trial court has granted a motion to reconsider a rule 60(b) motion asking for relief from a default judgment. The Supreme Court of Alabama, however, has recognized that a trial court has the authority to reconsider its ruling upon a motion to set aside a default judgment.

In Wiggins v. Tuscaloosa Warehouse Groceries, Inc., supra, the trial court denied a motion to reconsider the granting of a motion to set aside a default judgment. The supreme court said:

[W]e have treated Tuscaloosa Warehouse’s motion as an ARCP, Rule 60(b) motion. And, in so doing, we find sufficient evidence to sustain the trial judge’s order denying the Wigginses’ motion to reconsider and reinstate the judgment. (Emphasis supplied.)

396 So.2d at 92.

Similarly, in Cockrell v. World’s Finest Chocolate Co., 349 So.2d 1117 (Ala.1977), the trial court denied a motion to reconsider the denial of a motion to set aside a default judgment. In finding the appeal was timely, the supreme court stated:

Consequently, there is only one order from which this appeal could have been taken — the denial of the motion to reconsider the denial of the motion to set aside the judgment. (Emphasis supplied.)

349 So.2d at 1119. Clearly, the majority in Cockrell, over a strong dissent by our distinguished Chief Justice Torbert, recognized and approved the trial court’s authority to entertain a motion to reconsider a motion requesting relief from a default judgment.

There is other authority for the proposition that a motion for reconsideration of the denial of a motion for relief under rule 60(b) may be made at any time prior to the running of the time for appeal. See Sleek v. J. C. Penney Co., 292 F.2d 256 (3d Cir. 1961); 7 Moore’s Federal Practice ¶ 60.28[3].

In accord with Wiggins and Cockrell, the trial court in the instant action committed no error in deciding to rehear the motion to set aside the judgment of default. Daw-kins filed his motion for rehearing only ten days after the February 17 order denying his motion to set aside. This was well within the time for appealing the denial of the rule 60(b) motion.

Clearly, Dawkins and the trial court treated the second motion to be a reconsideration of Dawkins’s earlier motion. The trial court, in the April 22 order, specifically noted that it had been asked to “reconsider its ruling on this matter heard on February 17.” We find in this instance, in accord with the above cited authority, the trial court’s action of entertaining and deciding the timely filed motion to rehear the motion to set aside the default judgment to be within the trial court’s power.

It is therefore clear to this court that the April 22 order, from which Havel now appeals, granting the rehearing on the motion to set aside the default and setting aside the default judgment is in effect simply an order setting aside a default judgment.

An order granting a motion to set aside a default judgment and proceed to trial is interlocutory and not appealable. Fisher v. Bush, 377 So.2d 968 (Ala.1979). It logically follows, then, that the order granting the motion to rehear the motion to set aside the default and thereafter setting aside the default is interlocutory and not appealable at this time.

We, therefore, may not consider in this case whether the trial court abused its discretion in setting aside the judgment of default. Sullivan v. Speedway Oil Co., 352 So.2d 1383 (Ala.Civ.App.1977). The appeal is due to be dismissed.

During oral argument, able counsel for the appellant requested that this court consider his appeal in the alternative as a petition for mandamus. Specifically and candidly he makes this request to avoid, as indicated above, the interlocutory posture of the case.

We do not find it proper or permissible in this case to grant the writ of mandamus. To grant an individual a writ of mandamus, there must be (a) a clear legal right in petitioner to the order sought, (b) an imperative duty upon the respondent to perform accompanied by a refusal to do so, (c) lack of another adequate remedy, and (d) the jurisdiction of the court must be properly invoked. Martin v. Loeb and Company, 349 So.2d 9 (Ala.1977).

Havel does not establish the proper criteria in his request for mandamus to allow the extraordinary writ to be granted. Primarily, in light of the above discussion, we cannot say there was an imperative duty in the trial court to deny the motion for rehearing. Secondly, and perhaps more importantly, Havel does have another adequate legal remedy, in that any error committed by the trial court in granting Daw-kins’s motion will be preserved on any appeal that might subsequently be taken. We would further note that in view of the restrictive criteria used in determining the propriety of the issuance of a writ of mandamus it would appear not to be in the appellant’s best interest for this court to consider appellant’s contention via mandamus.

For the foregoing reasons, the appeal should be dismissed.

APPEAL DISMISSED.

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