author: PER CURIAM. JONES, Justice TORBERT, Chief Justice

text:
    Ex parte Debbie LEWIS. (In re TREADWELL FORD, INC. v. Debbie LEWIS).
    80-638.
    Supreme Court of Alabama.
    April 2, 1982.
    Rehearing Denied May 21, 1982.
    Gary D. Porter, Mobile, for petitioner.
    Vincent F. Kilborn, III of Kilborn & Gib-ney, Mobile, for respondent.
   PER CURIAM.

This is a review of the Court of Civil Appeals’ reversal of a judgment, 416 So. 2d 406, for Plaintiff Debbie Lewis and against Defendant Treadwell Ford based upon a claim of misrepresentation in selling Plaintiff a 1969 model Ford van as a 1972 model. We granted certiorari in this case in order to clarify this State’s law as it applies to actions for fraud and deceit (§ 6-5-100 et seq., Code 1975).

Treadwell sold a vehicle to Wepco Leasing and received as a “trade-in” a 1969 model Ford van which Wepco represented to be a 1972 model. Lewis and her brother, interested in purchasing a van, drove the vehicle in question which Defendant had received from Wepco and later questioned Defendant’s salesman about the van’s history. They were shown the repairs that had been made on the van and were given the name of Wepco as the former owner of the van. Defendant’s salesman told them the van was a 1972 model, as did a representative of Wepco who was contacted by Plaintiff’s brother.

From the evidence it appears that the 1969 and 1972 models of Ford vans are identical in appearance. They are distinguishable, however, when their serial numbers are compared with the serial numbers in a book maintained in the parts departments of automobile dealers. Treadwell relied on Wepco’s representation that the van was a 1972 model vehicle and, in both purchasing the van from Wepco and selling the van to Plaintiff, Treadwell did not compare the serial number of the van with the book in its parts department.

After a jury trial, judgment was entered for the buyer for $10,000.00 on her claim for reckless misrepresentation. The seller appealed, maintaining that the trial court had committed reversible error in submitting the issue of punitive damages to the jury. The Court of Civil Appeals reversed, stating in part:

“In order for the jury to award punitive damages in this case, there must have been evidence from which it could have concluded that the fraud was malicious, oppressive or gross and the statements were made recklessly without regard to their truth and without caring or knowing if they were true or not. Big Three Motors, Inc. v. Smith [412 So.2d 1219] (Ala.Civ.App.1981).
The record is devoid of any evidence which shows Treadwell acted so heedlessly or so recklessly as to authorize the award of punitive damages.... It is conceded that Treadwell failed to examine the book in its parts department which would have revealed the correct model year. However, we are not persuaded that such an omission amounts to gross, oppressive or malicious conduct so as to warrant the imposition of punitive damages. Proctor Agency, Inc. v. Anderson, Ala., 358 So.2d 164 (1978); Continental Volkswagen, Inc. v. Soutullo, 54 Ala.App. 410, 309 So.2d 119 (1975).”

Lewis, the buyer, petitioned this Court for a writ of certiorari on the ground that the decision of the Court of Civil Appeals was in conflict with Big Three Motors, Inc. v. Smith, 412 So.2d 1218 (Ala.1981) (Smith I).

The issue before this Court, then, is a narrow one: Given the element of intent to deceive (which the factfinder was authorized under the evidence to find, considering the “reckless disregard of the consequences” element), was the jury warranted in awarding punitive damages?

This is the precise issue presented, addressed and answered in the affirmative in Big Three Motors, Inc. v. Smith, 412 So.2d 1222 (Ala.1982) (Smith II) (second review by this Court). We reverse and remand on the authority of Smith II, supra.

REVERSED AND REMANDED.

MADDOX, FAULKNER, SHORES, EM-BRY, BEATTY and ADAMS, JJ., concur.

JONES, J., concurs specially.

ALMON, J., concurs in the result.

TORBERT, C. J., dissents.

JONES, Justice

(concurring specially):

Undoubtedly, and understandably, this Court’s decisions in several recent fraud cases of the “intent to deceive” species have misled the Court of Civil Appeals with respect to the elements of the offense necessary for the imposition of punitive damages. The question of punitive damages, just as in Big Three Motors, was resolved by the Court of Civil Appeals on the basis of a lack of evidence to support a course of reprehensible conduct, beyond and in addition to, the requisite element of intent to deceive.

Section 6-5-101, Code 1975, provides a cause of action for the tort of misrepresentation of a material fact, for which compensatory damages may be awarded, even in the absence of the statute’s alternative remedy for willful deceit:

“Misrepresentations of a material fact made willfully to deceive, or recklessly without knowledge, and acted on by the opposite party, or if made by mistake and innocently and acted on by the opposite party, constitute legal fraud.”

The elements which, when proved, sustain an action in deceit and the concomitant recovery of punitive damages, are set out at § 6-5-103, which states in part:

“Willful misrepresentation of a material fact made to induce another to act, and upon which he does act to his injury, will give a right of action.... In all cases of deceit, knowledge of a falsehood constitutes an essential element. A fraudulent or reckless representation of facts as true, which the party may not know to be false, if intended to deceive, is equivalent to a knowledge of the falsehood.”

The distinction between the two preceding Code sections is crucial as to both the evidence required to prove the offense and the ultimate damages sought by the injured party. The distinction was recognized by this Court in Hall Motor Company v. Furman, 285 Ala. 499, 234 So.2d 37 (1970), which holds in part:

“Under our cases there is a difference between actionable fraud by misrepresentation of a material fact and an action for actual deceit. Rudisill v. Buckner, 244 Ala. 653, 15 So.2d 333. It would appear, however, that if the misrepresentation of a material fact was made willfully to deceive, or recklessly without knowledge, such conduct would be deceitful in fact. This is the first provision in [§ 6-5-101]. The last alternative found in [§ 6-5-101] relates to a fraud made by mistake and innocently. Such representation is a legal fraud, though it be only constructive. Hornaday v. First National Bank of Birmingham, 259 Ala. 26, 65 So.2d 678.
. “Under [§ 6-5-101], the good faith of a party in making what proves to be a material misrepresentation, is immaterial if the other party acted on such misrepresentation to his injury. Standard Oil Co. v. Johnson, 276 Ala. 578, 165 So.2d 361. Only compensatory damages could be recovered in such a situation.
“In the often cited case of Caffey v. Alabama Machinery & Supply Co., 19 Ala.App. 189, 96 So. 454, it is pointed out that [§ 6-5-101] is but a reflection of the general law on the subject of fraudulent misrepresentation, and that fraud being alleged, and established by the evidence, punitive damages may be recovered only if the fraud was malicious, oppressive, or gross, made with knowledge of its falseness (or so recklessly made as to amount to the same thing), and made with the purpose of injuring the plaintiff. To the same effect see Boriss v. Edwards, 262 Ala. 172, 77 So.2d 909; Treadwell Ford, Inc. v. Leek, 272 Ala. 544, 133 So.2d 24; J. Truett Payne Co. v. Jackson, 281 Ala. 426, 203 So.2d 443.
“Under [§ 6-5-101] the misrepresentations must be of a material fact, made to be relied on as an inducement, and in fact relied on. Intent to deceive is not essential since only constructive fraud may be present in such a situation. Under [§ 6-5-103], knowledge of the fraud, with intent to deceive, is required, and under [§ 6-5-103], the scope of liability is extended to cases of concealment of the fraud, and thus ‘material fact’ has a wider meaning under [§ 6-5-103] than under [§ 6-5-101]. Cartwright v. Braly, 218 Ala. 49, 117 So. 477.”

A claim of fraud, then, of the “innocent” or “legal” species carries no requirement of proof that the defendant had knowledge of the falsity of the matter represented, only that the defendant misrepresented a material fact which was acted upon to the injury of the other party. While liability for innocent fraud is not dependent upon knowledge of the falsehood (and, therefore, not dependent upon an intent to deceive), compensatory damages only may be awarded.

Deceit, on the other hand, as contemplated by § 6-5-103, is an intentional tort which, when proved to the satisfaction of the finder of fact, will support an award of punitive damages. International Resorts, Inc. v. Lambert, 350 So.2d 391 (Ala.1977). Absent an initial finding of the essential element of “knowledge of a falsehood,” however, there can be no determination of an intent to deceive; and, therefore, the factfinder would be precluded, as a matter of law, from awarding punitive damages. See Mobile Dodge, Inc. v. Waters, 404 So.2d 26 (Ala.1981).

It is the finding of intent to deceive, which must be based upon the initial finding of knowledge of the falsity of the material representation, that triggers the discretionary power of the factfinder to award punitive damages. It is a misinterpretation of the cases to require that the incidents of grossness, oppressiveness, and maliciousness be found as additional elements to be superimposed upon the statutory requisite of intent to deceive, in order to warrant punitive damages.

This is the reason for the clarifying language in Shiloh Construction Co., Inc. v. Mercury Construction Corp., 392 So.2d 809 (Ala.1980):

“Once an intent to deceive has been established it is difficult to see but that a fraud was committed grossly. Randell v. Banzhoff, 375 So.2d 445 (Ala.1979); Hall Motor Co. v. Furman, supra. Proof of fraudulent intent at the time the representation is made is required in cases where fraud concerns a promise or representation regarding a future event, Southeastern Properties, Inc. v. Lee, 368 So.2d 288 (Ala.1979). In such cases, if, from the evidence, the jury finds present-intent fraud regarding the future event to conclude a fraud was committed, the award of punitive damages is properly within the discretion of the jury.” Shiloh, 392 So.2d at 814.

While Shiloh involved a misrepresentation relating to a future event, thus requiring a present intent to deceive, it demonstrates that the gravamen of a punitive award claim pursuant to § 6-5-103 is the intent to deceive. The law does not recognize two separate and distinct species of the tort of deceit: One with fraudulent intent,

but without the elements of grossness, oppressiveness and maliciousness (thus not authorizing punitive damages); and another with fraudulent intent accompanied by gross, oppressive, and malicious conduct (thus authorizing punitive damages). Indeed, except that the factfinder is warranted by the evidence in finding a degree of culpable conduct that may be characterized as gross, malicious, and oppressive, it is not warranted in finding the essential element of “intent to deceive.”

Thus, evidence of a material misrepresentation sufficient to establish an intent to deceive, made with knowledge of its falsity, establishes the legal criteria that authorize punitive damages. It is the intentional commission of a tort — one person’s intentional injury of another — that invokes the factfinder’s prerogative to award exemplary damages. The degree and extent of the tortfeasor’s culpable conduct — its gravity and enormity — are the standard by which the factfinder determines the willfulness of the misrepresentation, i.e., the intent to deceive; and they serve as the yardstick by which the factfinder exercises its discretion to award punitive damages and measures the amount of the award.

In the instant case the trial court had no problem sustaining the jury’s finding of the “knowledge of the falsehood” element, because the controlling statute states: “A fraudulent or reckless representation of facts as true, which the party may not know to be false, if intended to deceive, is equivalent to a knowledge of the falsehood.” § 6-5-103.

Where the evidence, as here, shows that the one making the representation is an automobile dealer, thus having superior knowledge and opportunity to know the facts, who misrepresents a material fact such as the model year of the vehicle, the trier of fact is warranted in reasonably inferring from such evidence that the dealer possessed the requisite “knowledge of the falsehood” to support a further finding of intent to deceive and thus support an award of punitive damages. In other words, reliance upon a former owner’s representation of the vehicle’s model year does not, as a matter of law, preclude the trier of fact from finding, as a reasonable inference, that the dealer’s affirmative misrepresentation, if made to deceive, was made so recklessly and heedlessly as to amount to a “reckless representation of fact as true,” thus supplying the “knowledge of the falsehood” statutory requisite element of the offense. § 6-5-103.

In upholding a punitive damages award in International Resorts, Inc. v. Lambert, 350 So.2d 391 (Ala.1977), where the claim of deceit was defended on the ground of lack of knowledge of the falsehood, this Court said at p. 395:

“... There is evidence from which the jury could have concluded that International Resorts misrepresented the facts to these plaintiffs and, whether made intentionally to deceive, or merely made recklessly without regard to their truth, if made so heedlessly without any regard to the consequences, they were sufficient to support the jury verdict.”

The comparative ease with which this dealer could have ascertained the true model year of the van; the inherent difference in the market value between a 1969 and a 1972 model; the salesman’s affirmative and unequivocal representation of the model year as 1972, are all circumstances giving rise to reasonable inferences supportive of a jury finding of the legal incidents of the statutory elements of “knowledge of the falsehood” and “intent to deceive.” Most compelling, perhaps, is the jury’s prerogative to conclude that the responsibility of the seller to know and speak the truth is enhanced, rather than diminished, by the very fact that all the vans on display, though varying in model year from 1969 to 1972, looked exactly alike.

The culpable nature of the conduct necessary to supply the “intent to deceive” element need not be “outrageous” in the sense of being personally offensive, humiliating, embarrassing, degrading, or dehumanizing. Indeed, as here, it may well be cloaked in politeness and courtesy; yet it may be gross, malicious, and oppressive in the sense of being committed with the intent to deceive.

For the sake of clarity, I conclude my concurring opinion by distinguishing the instant holding from that of Hopper v. Curry, 408 So.2d 83 (Ala.1981). There, in a suit claiming inter alia innocent fraud in the sale of land, we affirmed a judgment based upon findings of fact favorable to the sellers. While the facts appear somewhat similar, in that in each case there was an alleged misrepresentation as to the item sold, and, while we reached different results from the point of view of denying recovery in Hopper and allowing recovery in the instant case, the two holdings are fully reconcilable.

To be sure, the “different” holdings of the cases demonstrate a point worthy of emphasis. In each case we affirmed the judgments below based upon the factfinder’s conclusions of fact. We have held in each case that the evidence of record amply supports the findings of fact upon which the judgment appealed from is based.

Furthermore, in addition to our scope of review “presumption of correctness” rule, there are sufficient differences in the material facts of the two cases, particularly what the respective buyers’ personal observations of the respective items purchased would reveal, in relationship to the matter represented, to amply justify the factfind-ers in these cases in reaching different conclusions based upon the same general legal principles.

TORBERT, Chief Justice

(dissenting).

The majority per curiam opinion states that this Court granted certiorari to the Court of Civil Appeals “in order to clarify this state’s law as it applies to actions for fraud and deceit.” I dissent for the reason that it is my view that the facts in evidence, viewed with all reasonable inferences in favor of the jury award of punitive damages for the plaintiff, simply are insufficient to sustain an award of exemplary damages in this case. More important, however, is my concern that the law with respect to this important issue is yet to be clarified by a clear majority of this Court, and I write to focus attention on our decisions relating to this legal issue. As the court of last resort of this state, it is our obligation to develop clear principles of law to guide our trial courts in properly charging juries and to inform the bar who advise their clients, our citizens, of their respective rights and obligations in their dealings with each other.

This Court’s difficulty in pronouncing the law in cases involving the review of jury verdicts awarding punitive damages is apparent in its recent cases. In Mobile Dodge, Inc. v. Waters, 404 So.2d 26 (Ala.1981), Justice Beatty, writing for the Court, sustained a jury verdict finding intentional fraud, i.e., “a misrepresentation of a material fact made willfully to deceive,” 404 So.2d at 27, but required a remittitur of the punitive damages on the basis that the necessary element “that the fraud must be gross, malicious, oppressive and committed with the intent to injure,” 404 So.2d at 28, was not sustained by the evidence. In my special concurring opinion, I attempted to raise the legal issue as to whether a finding of “intentional” fraud alone could justify in law punitive damages. My analysis of the controlling opinion in that case seemed to be that a fraud could be committed “knowingly” but without grossness, maliciousness, or oppressiveness or intent to injure and defraud. However, Justice Jones, also concurring specially, laid emphasis upon “whether the alleged culpable conduct [of a tort-feasor] measures up to the statutory requisite element of ‘intent to deceive,’ ” 404 So.2d at 30, and he said that “[c]onduct which rises to the level of affording a cause of action under [Code 1975] § 6-5-103 necessarily rises to the level of conduct authorizing punitive damages.” Justice Jones concluded:

“The instant case falls short of one authorizing punitive damages, not because the intent to deceive is unaccompanied by gross and oppressive conduct, but because of the absence of another essential statutory element — ‘a knowledge of the falsehood.’ Although a fact is misrepresented, it will not support an action for willful deceit unless made with knowledge of its falsity; and such knowledge, as statutorily defined, must be coupled with an intent to deceive.”

404 So.2d at 30 (emphasis added except on the word intent).

Our most recent decision, Big Three Motors, Inc. v. Smith, 412 So.2d 1222 (Ala.1982), on writ of certiorari to the Court of Civil Appeals, reversed the holding of the majority of that court which had disallowed punitive damages. In reversing the Court of Civil Appeals, this principle of law was set forth:

“[I]f the misrepresentation is shown to have been made knowing that it is false, then the law permits punitive damages by way of punishment.”

412 So.2d at 1224.

In that opinion, authored by Justice Shores, it was stated that this principle was recognized as early as 1849 in the case of Munroe v. Pritchett, 16 Ala. 785. However, from the quoted portion of that early opinion, it was not clear to me that the 1849 Court was speaking to the issue of exemplary or punitive damages. However, it is recognized that eight Justices concurred in Big Three Motors, Inc. v. Smith, with this writer concurring in the result. In Big Three Motors emphasis was added to the following portion of the 1849 decision:

“Did the law allow the action to punish the untruth, and not as a compensation to the party injured by its consequences, then it would be proper to make the action depend upon the scienter; but the action is for the injury sustained by reason of the reckless, false assertion of the vendor, which was calculated to deceive and did deceive the purchaser — consequences which to him are precisely the same, whether the vendor knew or did not know, or care to know, that the assertion was false.”

16 Ala. 790-791.

The majority in the instant case on appeal again reverses the decision of the majority of the Court of Civil Appeals, on the authority of Big Three Motors, and again Justice Jones, concurring specially, consistent with his earlier expressions, writes that the “the gravamen of a punitive award claim pursuant to § 6-5-103 is the intent to deceive.” See also, Big Three Motors, Inc. v. Smith, 412 So.2d at 1222.

In his special concurring opinion in this case, Justice Jones cites International Resorts, Inc. v. Lambert, 350 So.2d 391 (Ala.1977), for the proposition that “deceit . .. as contemplated by § 6-5-103 is an intentional tort which .. . will support an award of punitive damages.” I do not read the majority opinion in Lambert that way, although the Court sustained the award of punitive damages.

The imposition of punitive damages in cases involving fraud and deceit is not specifically provided for by statute, but we have engrafted into our statutes by case law the circumstances of conduct that would authorize the imposition of such damages.

“[As with other intentional torts,] misconduct on the part of defendant’s employee, with knowledge of the situation, [can be] such a willful wrong, committed in such reckless disregard of the necessarily injurious consequences to the plaintiff, as [to] authorize the jury to punish the defendant therefor by the imposition of exemplary damages....
“The true theory of exemplary damages is that of punishment, involving the ideas of retribution for willful misconduct, and an example to deter from its repetition.”

Alabama Great Southern Railroad Co. v. Sellers, 93 Ala. 9, 14-15, 9 So. 375 (1890).

Fraud and deceit developed as did other intentional torts in which the culpable conduct of the defendant authorizes the award of punitive damages. This development can be seen in Caffey v. Alabama Machinery & Supply Co., 19 Ala.App. 189, 96 So. 454 (1922), wherein the Court of Appeals stated:

“Unless the jury could conclude from the evidence that the fraud was malicious, oppressive, or gross, the representations being made with a knowledge of their falseness (or so recklessly made as to amount to the same thing), and with the purpose of injuring the plaintiff, there could be no recovery of punitive damages. In this case, so far as the record discloses, there is no element or evidence justifying a verdict for punitive damages. If the fraud was committed, and is proven according to the rules of law, the plaintiff is entitled to recover such damage as will compensate him for the loss growing out of and being the proximate result of the fraud, and being within the contemplation of the parties at the time the representations were made.”

19 Ala.App. at 193, 96 So. at 457.

This test for the imposition of punitive damages in cases of fraud and deceit was adopted by this Court in Southern Building & Loan Association v. Dinsmore, 225 Ala. 550, 144 So. 21 (1932), wherein this Court opined: “Punitive damages are recoverable in actions of this character where defendant is guilty of gross fraud (27 Corpus Juris, 104), defined in Caffey v. Alabama Machinery & Supply Co., 19 Ala.App. 189, 96 So. 454, 457.... ” Therefore, the conduct of the defendant controls the imposition of punitive damages. The factors involved are the nature of the wrong committed and the quality of the wrong committed. See, J. Truett Payne Co. v. Jackson, 281 Ala. 426, 203 So.2d 443 (1967). There can be no award of punitive damages by simply proving the elements of fraud and deceit.

The rule is and always has been “that punitive damages may not be recovered in such an action (deceit) unless the fraud is gross, malicious, oppressive and is committed with an intention to so injure and defraud.” Treadwell Ford, Inc. v. Leek, 272 Ala. 544, 133 So.2d 24 (1961).

In Hall Motor Co. v. Furman, 285 Ala. 499, 234 So.2d 37 (1970), the following statement was made by this Court: “If the evidence tends to establish an intent to deceive and defraud, it is difficult to see but that a fraud was committed grossly.” 285 Ala. at 504, 234 So.2d at 42. The majority seems to equate this statement with the proving of the basic elements of fraud which must be established before any damage may be awarded by the jury. An examination of Hall Motor Co., however, reveals that this statement by the Court was in response to an argument by the defendant that since the plaintiff did not allege that the representations were made with an “intent to deceive,” punitive damages could not be awarded. 285 Ala. at 503, 234 So.2d at 41. In response to that argument, this Court stated:

“If the evidence tends to establish an intent to deceive and defraud, it is difficult to see but that a fraud was committed grossly. This being so, punitive damages could be recovered under Count 5, even though it be considered as framed under Section 108 [§ 6-5-101], if the count properly averred, and the evidence established that the material misrepresentation was made knowingly and falsely, was relied on by the injured party, and the fraud was gross, malicious, oppressive, and committed with an intent to injure.”

This Court went on to say that “[i]f a fraud is not perpetrated grossly, maliciously, oppressively, and with an intent to deceive, the damages to be recovered are such as will compensate for actual damages received.” 285 Ala. at 504, 234 So.2d at 42.

This Court has consistently followed “the gross, malicious or oppressive conduct with an intent to deceive and injure” test. See, Mobile Dodge, Inc. v. Waters, 404 So.2d 26 (Ala.1981); Cecil Crews Chevrolet-Oldsmobile, Inc. v. Williams, 394 So.2d 912 (Ala.1981); Winn-Dixie Montgomery, Inc. v. Henderson, 395 So.2d 475 (Ala.1981); Shiloh Construction Co. v. Mercury Const. Corp., 392 So.2d 809 (Ala.1980); Spartan Pools v. Royal, 386 So.2d 421 (Ala.1980); Randell v. Banzhoff, 375 So.2d 445 (Ala.1979); Proctor Agency, Inc. v. Anderson, 358 So.2d 164 (Ala.1978); United States Fidelity & Guaranty Co. v. McKinnon, 356 So.2d 600 (Ala.1978); State Farm Mutual Automobile Insurance Co. v. Ling, 348 So.2d 472 (Ala.1977); Old Southern Life Insurance Co. v. Woodall, 295 Ala. 235, 326 So.2d 726 (1976); Mid-State Homes Inc. v. Johnson, 294 Ala. 59, 311 So.2d 312 (1975); Loch Ridge Construction Co. v. Barra, 291 Ala. 312, 280 So.2d 745 (1973); Ringer v. First National Bank of Stevenson, 291 Ala. 364, 281 So.2d 261 (1973); J. Truett Payne Co. v. Jackson, 281 Ala. 426, 203 So.2d 443 (1967); Treadwell Ford, Inc. v. Leek, 272 Ala. 544, 133 So.2d 24 (1961); Boriss v. Edwards, 262 Ala. 172, 77 So.2d 909 (1954).

I do agree with Justice Jones’s characterization of that part of the legal criteria authorizing punitive damages as stated in his special concurrence that “[t]he degree and extent of the tortfeasor’s culpable conduct — its gravity and enormity — ,” are the factors for the factfinder to consider, but I am compelled to submit that the gravity and enormity of the culpable conduct must be measured by a standard such that the factfinder could reasonably conclude that the fraud or deceit “was gross, malicious, oppressive and committed with intent to injure and defraud.”

In summary, it is my concern that if we now omit the elements of grossness, oppressiveness, and maliciousness from the legal criteria and standards which measure and control our review of an award of punitive damages, our case law will be further obfuscated to both bench and bar.

Applying the principles which have been historically and consistently applied in our cases, it is appropriate to consider the evidence in this case. The important facts in evidence are in large measure undisputed.

The appellee, Debbie Lewis, purchased from appellant, Treadwell Ford, Inc., a Ford van, serial number F70EVE15097. Treadwell sold the van to Lewis as a 1972 model for $3,979.50. Lewis found out later that the van was a 1969 model. Representatives of Treadwell stated they were not aware the van was a 1969 model, as Tread-well had previously purchased the van from a leasing company as a trade-in and the leasing company had represented to Tread-well that the van was a 1972 model. It is undisputed that a 1969 Ford van and a 1972 Ford van are identical in every way except for two digits in their respective serial numbers. The. only way that Treadwell could have known the difference between the two models was by examining the parts book in which the serial number identifies the particular model. Treadwell claims that it relied on the representations by the leasing company that the van was a 1972 model and did not check the parts book.

Lewis filed suit against Treadwell in a three-count complaint. Count one alleged willful misrepresentations, count two alleged reckless misrepresentations, and count three alleged that the misrepresentations were made by mistake. The case was presented to a jury. Treadwell’s motion for directed verdict was granted as to count one. The jury found for Lewis and against Treadwell under count two of the complaint (recklessly without knowledge) and assessed damages at $10,000.00.

Treadwell filed a motion for judgment notwithstanding the verdict or, in the alternative, for a new trial. While a remittitur, in the sum of $8,100.00, was originally ordered, it was later set aside.

The Court of Civil Appeals reversed and remanded, stating that “[t]he record is devoid of any evidence which shows Treadwell acted so heedlessly or so recklessly as to authorize the award of punitive damages.” The Court of Civil Appeals based its conclusion on the following rule of law: “In order for the jury to award punitive damages in this case, there must have been evidence from which it could have been concluded that the fraud was malicious, oppressive or gross and the statements were made recklessly without regard to their truth and without caring or knowing if they were true.” The majority opinion by this Court reverses the Court of Civil Appeals, relying on Big Three Motors, Inc. v. Smith, 412 So.2d 1222 (Ala.1982). The majority thus decides that punitive damages were warranted under the facts in this case. I do not believe the facts in this case warrant punitive damages.

Since the jury awarded damages under count two of Lewis’s complaint, this appeal deals specifically with that count, which reads as follows:

“COUNT TWO
“1. On or about the 4th day of August, 1977, Defendant or an agent of Defendant and Plaintiffs were negotiating concerning the purchase by Plaintiffs from Defendant or an agent of the Defendant of the following described property:
“One (1) 1972 Ford Vann, Model F700
Serial Number F70EVE15097
“2. At that time Defendant or an agent of the Defendant represented to the Plaintiffs that said van was a 1972 Model.
“3. The representations made by Defendant or an agent of the Defendant were false and Defendant or Defendant’s agent, without knowledge of the true facts, recklessly misrepresented them in that said van was in fact a 1969 Model.
“4. Plaintiffs believed those representations and in reliance upon them purchased the property.
“WHEREFORE, Plaintiffs demand judgment against Defendants for damages in the sum of ONE HUNDRED THOUSAND DOLLARS ($100,000.00), interest and costs.”

Thus, the specific issue presented for resolution revolves around Code 1975, §§ 6-5-101 and -103, and the awarding of punitive damages under these Code sections for reckless misrepresentations. The relevant portions of §§ 6-5-101 and -103 are: § 6-5-101, “Misrepresentations of a material fact made ... recklessly without knowledge ... constitute legal fraud,” and § 6-5-103, “In all cases of deceit, knowledge of a falsehood constitutes an essential element. A ... reckless representation of facts as true, which the party may not know to be false, if intended to deceive, is equivalent to a knowledge of the falsehood.”

We are dealing with a jury award based upon the allegation that Treadwell recklessly made representations that were false and made them without knowledge of the facts. Both § -101 and § -103 deal with reckless conduct in fraud actions. Section -101 provides that either misrepresentations made willfully to deceive, or recklessly without knowledge constitutes legal fraud. See, Code 1975, § 6-5-101. Section -103 provides a standard that equates certain reckless representations with knowledge by simply adding the phrase “if intended to deceive.” Under my view of the law, it is not controlling that the proof measured up to the standards in §-103, as Justice Jones seems to hold; but, to restate my view, it is whether the fraudulent conduct is so culpable and its gravity and enormity is such that the factfinder could conclude under the facts in evidence that the fraud was “gross, malicious, oppressive and committed with intent to injure and defraud.” It is indeed curious that while count one alleged willful misrepresentation and the trial court granted a motion for a directed verdict as to that count, yet the majority now sustains a jury award for punitive damages under the reckless count. It is obvious to me that this must be inconsistent, particularly since that kind of reckless misconduct must be such that it is equivalent to knowledge of a willful fraud.

Additionally, I must comment that nowhere in count two is it alleged that the reckless conduct was made with intent to deceive as required by § -103. Under ARCP, Rule 9(b), we permit a general averment of malice, intent, knowledge, and condition of mind, yet we do not have even a general averment here.

Even leaving the above problems aside, since the jury returned a verdict for reckless misrepresentation, we must be concerned with whether sufficient evidence was presented to the jury to warrant the award of punitive damages to the plaintiff for the reckless misrepresentation by Treadwell. The facts in this case are parallel to the facts in Mobile Dodge, Inc. v. Waters, 404 So.2d 26 (Ala.1981), and in my opinion Waters controls. Both cases involve the actions of employees as they relate to the question of whether there was evidence from which a jury could reasonably infer that the defendant’s conduct was malicious, oppressive or gross and committed with intent to injure and defraud. While it was within the province of the jury to determine that the failure of Treadwell to verify the model of the van accepted as a trade-in was reckless, it is my view that the evidence was not sufficient to show such culpable conduct as would amount to gross, malicious or oppressive fraud with intent to injure plaintiff.

The awarding of punitive damages is within the discretion of the jury. However, when an appellate court is convinced “that the verdict and judgment are contrary to the preponderance of credible evidence and are, therefore, palpably wrong and manifestly unjust,” it will revise or reverse the lower court’s findings. Mobile Dodge, Inc. v. Waters, 404 So.2d at 27.

The majority by reversing on the authority of Big Three Motors, Inc. v. Smith, relies on a set of facts totally different from the facts in this case. In Big Three Motors Big Three represented that it owned the car when it knew that it did not own the car. It represented that it had good title when, in fact, the car was encumbered by a prior lien. While this conduct could be properly interpreted by a jury as gross, malicious, oppressive conduct made with an intent to deceive, thus justifying punitive damages, the same cannot be said of the conduct by Treadwell Ford. Granted, the plaintiff is entitled to recover compensatory damages for the misrepresentation by Treadwell Ford, but the question is whether the reckless misrepresentation by Treadwell was gross, malicious or oppressive and accompanied by an intent to injure the plaintiff. I do not believe Treadwell’s conduct was of such a nature or quality that a jury could reasonably find it to be gross, malicious or oppressive, accompanied by an intent to injure. A 1972 van and a 1969 van are identical; only an examination of serial numbers reveals the difference. There was no reason for Treadwell to believe that the leasing company would misrepresent a model year when trading the van in for another vehicle. There was no showing of willful concealment by Treadwell of the actual model year of the van; as a matter of fact, the trial judge granted Treadwell’s motion for directed verdict on the willful misrepresentation count. There was no showing of any policy adopted, officially or unofficially, by Treadwell to avoid verifying the model year of trade-ins. Admittedly, Treadwell did neglect to check the serial number, having no reason to do so in the ordinary course of its business. This was determined by the jury to be reckless behavior. This behavior, however, does not warrant punitive damages.

There is no dispute that the plaintiff suffered damages because of the reckless misrepresentation by Treadwell. These damages amount to $1,900.00 and an award in that amount should be sustained. We should order a remittitur of the damages in the amount of $8,100.

      . See the dissenting opinion of Judge Holmes, Treadwell Ford, Inc. v. Lewis, 416 So.2d 406 (Ala.Civ.App.1981), for an excellent discussion of these cases.

      . It is significant to note that the conditional affirmance in Hah Motor Company (based on a remittitur of all but compensatory damages) is grounded upon an express holding that “the evidence ... is sufficient to establish [only innocent] fraud,” citing § 6-5-101.

      . Although our cases have not always been clear on this point, this Court in Winn-Dixie Montgomery, Inc. v. Henderson, 371 So.2d 899 (Ala.1979), held that evidence of intent to deceive supplies the requisite proof that the fraud was committed grossly. Likewise, as the Court of Civil Appeals observed in Long-Lewis Hardware Co. v. Lightsey, 392 So.2d 545 (Ala.Civ.App.1980). “The primary constituent of gross, malicious, and oppressive fraud is the intention to injure and deceive.”

      . It is of more than passing interest that the apparent confusion in our cases — requiring the conjunctive finding of intent to deceive and that the defendant’s conduct was gross, etc., to warrant punitive damages — was influenced, at least in part, by the development of the law in the vast majority of American jurisdictions which have no “innocent fraud” statutes. Because the common law tort action of deceit required intent to mislead based upon knowledge of the falsity of the statement (see the English case of Derry v. Peek, 4 A.C. 337 (1888)), the victim of an innocent misrepresentation was left remediless.
      Many of the state courts, however, modified the “scienter” requirement of the English rule to accommodate the situation contemplated by our “innocent fraud” statute. That is to say, other jurisdictions, in meeting the scienter test, evolved a rule that focuses upon the intent of the defendant to make the representation for the purpose of its being acted upon to the injury of the other person, rather than upon an intent to injure based upon knowledge of the statement’s falsity. See W. Prosser, Law of Torts, Hornbook Series § 107, p. 700 (4th ed., 1971).
      Understandably, then, having indulged the legal fiction of fashioning a remedy for deceit based upon the tort requisite of “intent,” but without the traditional element of culpability (i.e., without knowledge of the falsehood), these courts limit the damages recoverable for this species of fraud to compensatory damages only. Thus, punitive damages are recoverable only when "intent” is coupled with culpability, i.e., knowledge of the falsehood.
      In Alabama, however, the remedy for noncul-pable misrepresentation is met by the statutory legal fiction of “innocent fraud.” Therefore, the culpable tort of the “intent to deceive” species may be dealt with more forthrightly. § 6-5-103. Not being burdened with the non sequitur of nonculpable intent to mislead in order to enforce a remedy for compensatory loss due to an innocent misrepresentation, we may more easily articulate and apply the intentional tort of deceit. If a defendant misrepresents a material fact with knowledge of the falsehood and with the intent to deceive, and the plaintiff to whom it is made relies thereon to his injury, the plaintiff is entitled, within the factfinder’s discretion, to an award of punitive damages.

      . The tort of outrageous conduct is an altogether different tort. See American Road Service Company v. Inman, 394 So.2d 361 (Ala.1980).

      . This Court in Hall Motor Co. did not allow the recovery of punitive damages. The Court did not believe that the evidence was sufficient to warrant punitive damages.


source: Caselaw Access Project

author: BRADLEY, Judge.

license: Public Domain

text:
    TREADWELL FORD, INC. v. Debbie LEWIS.
    Civ. 2368.
    Court of Civil Appeals of Alabama.
    June 23, 1982.
   BRADLEY, Judge.

Upon remand to this court by the Supreme Court of Alabama it is considered that this cause should be affirmed in accordance with the opinion of the Supreme Court of Alabama rendered in this matter on April 2,1982,416 So.2d 410.

AFFIRMED.

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


text:
    LIVINGSTON BAIL BONDS v. STATE of Alabama.
    Civ. 2676.
    Court of Civil Appeals of Alabama.
    June 3, 1981.
    Rehearing Denied July 15, 1981.
    Elno A. Smith, Jr. of Smith & Cruse, Montgomery, for appellant.
    Charles A. Graddick, Atty. Gen., and Mar-da J. Walters, Asst. Atty. Gen., for appellee.
   BRADLEY, Judge.

On January 31, 1980 Robert Lee Holmes was arrested on charges of possessing and selling marijuana. Bail was set at $300.00 and $1,000.00, respectively, and Livingston Bail Bonds became surety on these two bonds. The pertinent terms of the bonds required the principal, Robert Lee Holmes, to appear before the Montgomery County District Court on February 22, 1980 “or at the next session of circuit court of said county; there to await the action by the grand jury and from session to session thereafter until discharged by law.”

Holmes did not appear in the district court at the appointed time; however, the district court did not certify to the circuit court that Holmes had failed to appear as required and thus had defaulted on his bonds. § 15-11-4, Code 1975.

On September 15, 1980 Holmes was indicted by the Montgomery County grand jury for possessing and selling marijuana. Bail was set by the circuit court at $500.00 on the possession charge and $1,000.00 on the charge of selling marijuana. No post-indictment bail bonds were made by Holmes.

Holmes failed to appear in circuit court for arraignment on the charges made against him by the grand jury, and, on September 22,1980 the circuit court entered conditional judgments of forfeiture in favor of appellee in the amounts of $300.00 and $1,000.00. These judgments were made final on January 9, 1981 and Livingston Bail Bonds appeals.

Appellant says the trial court erred in forfeiting the bonds because the district court failed to certify a forfeiture to the circuit court for the failure of Holmes to appear for the preliminary hearing; that the district attorney failed to prefer charges against Holmes at the March 1980 session; and that the trial court failed to continue the grand jury’s inquiry into charges made against Holmes for each month subsequent to March 1980.

Appellant’s first contention is that the forfeitures were erroneous for the reason that the district court had failed to certify a default to the circuit court when Holmes failed to appear on February 22, 1980.

When a defendant fails to appear at the appointed time in the district court for a preliminary hearing, such default can be certified to the circuit court where proceedings can be had to forfeit bail. § 15-11-4, Code 1975. No such default was certified to the circuit court.

We conclude, therefore, that the forfeitures of bail entered by the circuit court against appellant could not be predicated upon Holmes’s failure to appear in the district court for a preliminary hearing and, as a matter of fact, were not so predicated.

Appellant next says that the forfeitures are erroneous because (1) the district attorney did not present the charges against Holmes to the March 1980 grand jury (the Montgomery County grand jury convenes monthly) which was the next session of the grand jury after the district court proceedings; and (2) the circuit court failed to continue the grand jury’s inquiry into the charges from month to month and until the indictments were handed down.

It is undisputed that Holmes was not indicted on the two charges until September 1980. Holmes’s bonds, however, required him to appear at the next session of the circuit court “there to await the action by the grand jury and from session to session thereafter until discharged by law.” The next session of the circuit court grand jury would have been in March 1980. Holmes did not appear at the March grand jury nor any grand jury thereafter. But the grand jury did not indict Holmes until the September 1980 session. For his failure to appear for arraignment, Holmes’s bonds were forfeited by the trial court.

Appellant argues that the failure to present the charges against Holmes at the March 1980 grand jury worked a discontinuance of its undertaking and it was, therefore, relieved of its obligations under the bonds. For this position appellant relies on Rogers v. State, 79 Ala. 59 (1885).

In the cited case, Rogers was surety on a criminal appearance bond for Henry Holi-field. In the undertaking, Rogers had agreed to pay $200.00 to the State of Alabama “ ‘unless the said Henry Holifield appear at the next term of the Circuit Court of said county, and from day to day thereof, and from term to term thereafter, until discharged by law, to answer a criminal prosecution for the offense of burglary.’ ” At the spring term of the circuit court the grand jury did not indict Holifield even though the burglary charge had been presented to them; neither did the circuit court continue the charge against Holifield to the next term of court nor did it discharge Rogers from liability on the bond.

The supreme court held that Rogers should have been discharged from liability on his bond because the grand jury had not indicted Holifield on the burglary charge at the circuit court’s spring term and had neither continued the matter to the next term of court nor discharged Rogers from liability-

Unlike the factual situation in the Rogers case, the grand jury in the case at bar did not receive the case at the March 1980 session nor at any session thereafter until September 1980. The district attorney held the matter, apparently for investigation, during this period. The record fails to show that the matter was placed on the March 1980 grand jury docket or any subsequent docket until September 1980.

In Ex parte Stearnes, 104 Ala. 93, 16 So. 122 (1894), a similar situation existed, i.e. a defendant was in jail on a felony charge and the matter was not taken up by the grand jury at the next term of circuit court nor was it even docketed or placed on any record of the circuit court and no order of continuance by the circuit court was entered. The supreme court held:

In respect of a party on bail, it was decided by this court in Rogers v. State, 79 Ala. 59, that “where a person is bound over to appear at the next term of the circuit court, and from term to term thereafter until discharged by law, to answer for an offense with which he is charged on preliminary examination before a magistrate; if no indictment is found against him at that term of the court, no forfeiture taken, and the case not continued for further investigation, the prosecution is discontinued and the sureties on the recognizance are discharged.” ... [W]e are not disposed and will not now disturb the authority of Rogers v. State, and the cases which preceded and followed it.
When a cause is discontinued, of course that cause is ended; it no longer exists ....
Applying, as we must, the principle of those cases to the ease at bar the result must be the enlargement of the petitioner. A term of the court was held, and no action whatever was taken in his case. It does not appear even that a general order of continuance was made; and conceding that we might presume that order to have been made, it would avail nothing here since this case nowhere appeared or had ever been entered on the dockets or records of the court, and would not have been reached by such order. It was pending by virtue of the commitment until the court should meet and at its first term take cognizance of it in some way. Having met and adjourned without any action upon it, the force of the mittimus was exhausted; it was functus officio. The circuit court not having taken hold of the prosecution and kept it alive by appropriate action, it was dead, at an end, discontinued.

See Jackson v. State, 37 Ala.App. 647, 73 So.2d 774 (1954).

In the case at bar Holmes was not called at the March 1980 term of the grand jury, which would have been the next term of the circuit court after the district court proceedings, nor was he called at any session thereafter until the September 1980 session. Furthermore, the record fails to disclose that the matter was docketed or placed on any record of the grand jury for the March 1980 session and the record fails to show that the matter was continued by the circuit court from the March 1980 grand jury session to a subsequent session. Based on this state of the record, we conclude that we are bound to observe the rule enunciated in the cited cases and hold that the appellant was discharged from liability on the two bonds in question when the two criminal charges were not presented to or acted upon by the March 1980 grand jury or duly continued to a subsequent grand jury by the circuit court. See Jones v. City of Huntsville, 288 Ala. 242, 259 So.2d 288 (1972). The judgment of the trial court is reversed and the cause remanded for entry of a judgment not inconsistent with this opinion.

REVERSED AND REMANDED WITH INSTRUCTIONS.

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


author: ALMON, Justice. TORBERT, Chief Justice

text:
    Ex parte State of Alabama, ex rel. Attorney General. (In re LIVINGSTON BAIL BONDS v. STATE of Alabama).
    80-744.
    The Supreme Court of Alabama.
    May 14, 1982.

      Charles A. Graddick, Atty. Gen., and Charles M. Allen, II, Asst. Atty. Gen., for petitioner.
    No brief for respondent.
   ALMON, Justice.

This petition for writ of certiorari was granted to determine the effect of the decision of the Court of Civil Appeals, 416 So.2d 421, on the relatively new consolidated bond system. Manual of Standardized Court Forms, Consolidated Bond, C-52 (October 1, 1979). The purpose of this system is to relieve a defendant of the double cost of securing his freedom pending trial, while at the same time assuring his presence at each stage of the proceedings. Under the old system, the defendant was frequently rearrested following the indictment whereas the present procedure, absent an increase in bond, allows the defendant to remain at large under the same bond.

Robert Lee Holmes was arrested on January 31, 1980, and charged with possession and sale of marijuana. His bail was set at $300 and $1,000 respectively, with Livingston Bail Bonds acting as surety on the bonds. As a condition of his release on these bonds, Holmes was to appear before the Montgomery County District Court on February 22,1980, “or at the next session of circuit court of said county; there to await the action by the grand jury and from session to session thereafter until discharged by law.” At the appointed date, Holmes did not appear before the district court.

The Montgomery County grand jury returned an indictment against Holmes on both counts on September 15, 1980. The circuit court set bail at $500 and $1,000 for the possession and sale charges. At this time, Holmes made no post-indictment bail bonds. Again Holmes failed to appear in circuit court for arraignment and on September 22, 1980, forfeiture was taken by the circuit court for $300 and $1,000. On January 9, 1981, these judgments were made final and Livingston Bail Bonds appealed. The Court of Civil Appeals subsequently reversed and remanded with instructions, stating they were bound by prior cases to hold that Livingston was discharged from liability on the bonds when the criminal charges were not presented to or acted upon by the March 1980 grand jury or duly continued to a subsequent grand jury by the circuit court.

The Court of Civil Appeals relied almost exclusively on the cases of Ex parte Stearnes, 104 Ala. 93, 16 So. 122 (1894), and Rogers v. State, 79 Ala. 59 (1885).

When Stearnes and Rogers were decided the circuit courts of this state were required to hold at least two terms of court each year. See § 144, Constitution 1901, and § 6667, Code 1923. Section 6667 provided:

“The circuit courts of the several counties of the state shall be open for the transaction of any and all business, or judicial proceedings of every kind, from the first Monday in January to and including the last Saturday of June of every year; and from the first Monday after the fourth of July to, and including, the last Saturday before Christmas day of every year.”

In common vernacular, sessions of court are referred to loosely as terms of court, but technically speaking only sessions of court are now held because terms have been abolished. Williams v. Wicker, 235 Ala. 348, 179 So. 250 (1938); Du Pree v. Hart, 242 Ala. 690, 8 So.2d 183 (1942); Burns v. State, 246 Ala. 135, 19 So.2d 450 (1944); Wyres v. State, 32 Ala.App. 630, 29 So.2d 155 (1947); Mann v. State, 265 Ala. 441, 91 So.2d 689 (1956).

Code 1975, § 12-11-4, provides:

“The circuit courts of the several counties of the state shall be open for the transaction of any and all business or judicial proceedings of every kind at all times. [Emphasis added.]”

The cases of Stearnes and Rogers were bottomed entirely on the old practice of terms of court. Today, however, grand juries in some counties are in session on a monthly basis. If the precedent of Stearnes and Rogers is followed, not only would the surety be absolved from liability on the bond, but the defendant would be discharged because the entire prosecution would be discontinued.

“In respect of a party on bail, it was decided by this court in Rogers v. State, 79 Ala. 59, that ‘where a person is bound over to appear at the next term of the circuit court, and from term to term thereafter until discharged by law, to answer for an offense with which he is charged on preliminary examination before a magistrate; if no indictment is found against him at that term of the court, no forfeiture taken, and the case not continued for further investigation, the prosecution is discontinued and the sureties on the recognizance are discharged.’ This case followed the early one of Goodwin v. The Governor, 1 Stew. & Port. 465, and is virtually approved in State to use &c. v. Kyle, 99 Ala. 256 [13 So. 538]. As is stated in the body of the opinion, there are authorities opposed to the view reached in this case of Rogers v. State; and at least a plausible argument against it is predicable on the statutory form of bail bonds whereby the sureties are bound for the appearance of the defendant at the next term of the court ‘and from term to term thereafter until discharged by law,’ and on the statute giving that effect to bail. — Code, § 4427. But it is a general proposition that a discontinuance results in all cases from the passing of a term without any action whatever being taken — a general order of continuance or something; and the statutory terms and effect of bail bonds may find a field of operation, probably commensurate with the legislative intent, in that they bind the defendant to appear at the next term of the court and, where indictment is then found, or an order of continuance for further investigation is then made, or a discontinuance on general principles does not result from omission of all action, from term to term thereafter until discharged by law. However that may be, we are not disposed and will not now disturb the authority of Rogers v. State, and the cases which preceded and followed it.
“When a cause is discontinued, of course that cause is ended; it no longer exists. In a criminal case, there is no longer a pending prosecution upon which the defendant may be held, and he must be discharged. The discharge thereby of the sureties on a recognizance, puts an end to their duty to produce the defendant. Resting under no duty to produce him, their custody of him, which was merely to serve this duty, is also at an end, and he is discharged therefrom. So that while Rogers’ Case, and the others referred to, dealt only with the liability of sureties on bail pieces, they are equally of authority in respect of defendants confined in jail, to the effect that they also are discharged. [Emphasis added.] ”

Ex parte Stearnes, 104 Ala. 93, 16 So. 122 (1894).

Hence, Stearnes and Rogers would require the circuit court to enter an order of continuance in each case pending before the grand jury, if other action is not taken, or the state would suffer discontinuances in those cases. This would cause a great deal of confusion, the discontinuance of many cases and unnecessary paper work. Therefore, the cases of Stearnes and Rogers are overruled to the extent that they conflict with this decision.

The language of the bond is clear and we are confident that the defendant, as well as his bondsman, understood their obligations. The surety is bound by its obligation until discharged by order of the court. Should an inordinate delay occur, the surety is free to petition the court for appropriate relief. The defendant, on the other hand, may invoke the constitutional right to a speedy trial should it be applicable. Were it otherwise, the defendant, by twice unlawfully failing to appear in court, would go free and his bondsman would be absolved from liability.

For the above reasons, the judgment of the Court of Civil Appeals is reversed and the cause is remanded for entry of a judgment not inconsistent with this opinion.

REVERSED AND REMANDED.

FAULKNER, SHORES, EMBRY, BEAT-TY and ADAMS, JJ., concur.

TORBERT, C. J., and JONES, J., dissent.

TORBERT, Chief Justice

(dissenting).

I respectfully dissent. Based upon Ex parte Stearnes, 104 Ala. 93, 16 So. 122 (1894), and Rogers v. State, 79 Ala. 59 (1885), the Court of Civil Appeals was correct in holding that Livingston Bail Bonds was discharged from liability on the bonds when no action was taken on the criminal charges by the March 1980 grand jury and/or the case was not duly continued to a subsequent grand jury by the circuit court.

In Rogers v. State, 79 Ala. 59 (1885), Rogers was a surety on a criminal appearance bond for one Holifield, who was arrested and released on bond on December 23, 1884. Rogers was to pay $200.00 to the State unless Holifield appeared at the next term of the circuit court and from term to term thereafter until discharged by law. At the spring 1885 term of the circuit court, the grand jury made no indictment, even though the defendant’s burglary charge had been presented to them. The Supreme Court held that Rogers, the surety, should have been released from liability on the bond:

“If the accused is not called at the term of the court at which he was to appear by the express stipulation of his bond, and no indictment is found against him by reason of the grand jury’s ignoring the bill, and the Circuit Court makes no order authorizing a continuance of the investigation at the ensuing term, the sureties have a right to believe that they are discharged from the obligation of their undertaking. If one term of the court can be passed without action of the grand jury, or the court, why not another? And if more than one, when are the sureties to know that the legal custody of the accused, with the power to arrest and deliver him into the hands of the sheriff, has ceased, or been abrogated?”

79 Ala. at 60-61.

A case more factually similar to the case at bar is Ex parte Stearnes, 104 Ala. 93, 16 So. 122 (1894). In that case, as in the present case, the grand jury did not consider the case at the next term of the circuit court. Neither was the case docketed or placed on record. The Court, following Rogers v. State, held:

“Applying, as we must, the principle of those cases to the case at bar the result must be the enlargement of the petitioner. A term of the court was held, and no action whatever was. taken in his case.... The circuit court not having taken hold of the prosecution and kept it alive by appropriate action, it was dead

104 Ala. at 97-98, 16 So. 122.

As stated by the Court of Civil Appeals, the record fails to disclose that Holmes’s case was even docketed or placed on any record of the grand jury from March until September of 1980, and nothing shows that the case was continued by the circuit court from session to session. In Ex parte Stearnes, 104 Ala. 93, 16 So. 122 (1894), the Court stated:

“[I]t is a general proposition that a discontinuance results in all cases from the passing of a term without any action whatever being taken — a general order of continuance or something . .. . ”

104 Ala. at 97, 16 So. 122. Since no action was taken to continue the case, the Court of Civil Appeals was correct in concluding that Livingston Bail Bonds was discharged from liability on the two bonds.

The majority takes great pains in distinguishing “terms of court,” as used in Stearnes and Rogers, and “sessions of court” used in today’s court system. Yet the practical effect of this distinction is of little consequence and still leaves unanswered the primary issue addressed in this case: If the new consolidated bond system is good for more than one session of the grand jury, then for how many sessions is it good and at what point in time, if ever, will a lengthy delay require that the cause be discontinued?

While the purpose of the new consolidated bond system is, as stated by the majority, to relieve a defendant of the double cost of securing his freedom pending trial, while still assuring his presence at each stage of the proceedings, I cannot join the majority’s conclusion, which, in effect, overrules Ex parte Stearnes and Rogers v. State. In my judgment, this problem could be eliminated in future cases where no indictment is found; the prosecution can be kept alive by entering an order of the circuit court continuing the case until the next session. This would prevent the automatic discontinuance mandated by Rogers and Stearnes and would insure that the consolidated bond system operates as it was intended. For this reason I would quash the writ as improvidently granted.

JONES, J., concurs.


text:
    LIVINGSTON BAIL BONDS v. STATE of Alabama.
    Civ. 2676.
    Court of Civil Appeals of Alabama.
    June 16, 1982.
   BRADLEY, Judge.

Upon remand to this court by the Supreme Court of Alabama it is considered that this cause should be affirmed in accordance with the opinion rendered by the supreme court on May 14, 1982, 416 So.2d 423.

AFFIRMED.

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


text:
    Mickey ADAMS v. Twyla ADAMS.
    Civ. 3069.
    Court of Civil Appeals of Alabama.
    May 12, 1982.
    Rehearing Denied June 16, 1982.
    Larry R. Grissett of Prestwood, Prest-wood, Andalusia, for appellant.
    Allen Edward Cook and C. Stan Davis, Andalusia, for appellee.
   EDWARD N. SCRUGGS, Retired Circuit Judge.

This case concerns the modification of a child custody judgment from the father to the mother.

The parties were divorced in September 1977 with Mr. Adams, the father, being granted custody of their son, Jason. Before the divorce the mother had fled to Texas with the boy to escape threats from the father. In March 1978 the father went to Texas and “snatched” the child from his tricycle and has retained Jason’s custody since then in Alabama. The mother promptly returned to reside in this state and sought custody of the child, but her modification petition was denied in July 1978. Her present complaint was filed in 1981 and the contested hearing was orally tried before the circuit court in December 1981. The judgment of the trial court ascertained that it was in the best interest of Jason that his mother be awarded his custody and it was decreed accordingly. The father appeals and argues that it was not in the child’s best interest that a change in custody be effected and that the mother failed to show such a material change in the circumstances as to authorize an alteration of the son’s custody.

In capsule form, tendencies of some of the evidence were as follows: the boy is now seven years of age. When he visited with his mother, he evidently did not desire to return to his father’s home but indicated that he wanted to remain with his mother. Jason is “real tiny,” weighing only thirty-six pounds. The boy has a poor appetite and really consumes only one meal a day. The mother has taken him to physicians who found nothing physically wrong with the boy. He was in the second grade and was an above average student. A transfer to a different school would be required upon a change of custody. His teacher stated that his schoolwork could be affected by a change of homes.

The father has remarried and now has a well-paying job on oil rigs situated off the coast of Louisiana. He works for seven days and is off for the next seven days. During his off days he assists his father in the trucking business. His present wife, who has a good reputation, is also employed. Mr. Adams drinks alcoholic beverages in the evenings when he is not working and indicated that Jason may drink beer if he desires when he is old enough. There was evidence that he is a good parent to Jason.

In 1977 and 1979 the father paid two fines for reckless driving, each of the charges having been reduced from the offense of driving while intoxicated. In 1981 he pleaded guilty to and was fined in Florida for the misdemeanors of disorderly intoxication and resisting arrest without violence. Felony offenses which arose out of the same circumstances according to the father were instituted against him in 1981, one case in Florida for cultivating and possessing marijuana and the other case in Alabama for possession of marijuana. In August 1981 he pleaded guilty to the Alabama felony charge. His Alabama home and the curtilage thereof, where he, his present wife and Jason resided, had been searched by law enforcement officials who found and seized 2.4 pounds of green marijuana which was being dried in a utility house immediately to the rear of his house trailer. He was sentenced in that case to five years in the penitentiary and, additionally, was fined $4,900. The sentence was suspended and he was placed upon unsupervised probation for five years. Shortly thereafter, the Florida drug charge against him was dismissed. He admitted that he did not truthfully answer interrogatories propounded to him by the mother’s attorney as to his previous arrests or convictions.

The mother has also remarried, her present husband, Mr. Fleming, likewise being an oil rig worker. She does no outside work, but remains at home and mothers her nineteen month old baby. Her full time can be devoted to her two children, Jason and the baby. She is able to prepare three balanced meals each day for Jason. There was evidence that she is an excellent mother and housewife. Her present husband drinks an occasional beer at home. On one occasion Mr. Fleming was charged with a misdemeanor offense by a member of the father’s family; however, he was acquitted of the offense after a trial.

The parties correctly concur that the proper legal rules governing this case were aptly stated in Taylor v. Taylor, 359 So.2d 395 (Ala.Civ.App.1978) as follows:

In a proceeding to modify a prior decree awarding custody of a child, the trial court must apply a two-pronged test: (1) whether it is in the best interests and welfare of the child to change custody; and (2) whether the party seeking modification has alleged and shown a change in conditions which will justify modification. Quintanilla v. George, Ala.Civ.App., 340 So.2d 804, cert. den. 340 So.2d 808 ([Ala.] 1976). Of course, there is a strong presumption in favor of the ultimate decision reached by the trial court after the application of this two-pronged test. Junkin v. Junkin, Ala.Civ.App., 332 So.2d 392 (1976). Accordingly, in instances where the trial court modifies a child custody decree after it has heard oral testimony, its judgment will not be reversed on appeal unless the judgment is plainly and palpably wrong. Wood v. Wood, Ala.Civ.App., 333 So.2d 826 (1976). [Footnote omitted.]

Here some of the evidence conflicted, thereby placing the trial court in a unique position to determine from the testimony whether such a change of conditions had occurred that it was to Jason’s best interest that his mother be granted his custody. There was evidence which supported the holding of the trial court. Under the circumstances, the circuit court was not palpably wrong in modifying Jason’s custody from the father to the mother, and we affirm its judgment.

We grant the appellee’s application for an attorney’s fee on appeal, and the appellant shall pay to her $500 as such fee. All other relief requested by the appellee is denied.

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

AFFIRMED.

All the Judges concur.


text:
    Patricia JONES v. BROWN’S AUTO SALES, et al.
    Civ. 3074.
    Court of Civil Appeals of Alabama.
    June 16, 1982.
    Abigail P. van Alstyne of Legal Services Corporation of Ala., Montgomery, for appellant.
   EDWARD N. SCRUGGS, Retired Circuit Judge.

This is a truth in lending case brought by a consumer against her creditors.

The creditors were personally served with copies of the summons and complaint. Upon their failure to plead or to otherwise defend, a writ of inquiry was held before the trial court, which rendered a judgment in favor of the creditors, awarding no damages. The consumer appeals. The creditors have filed no brief in this court. We reverse and remand.

Among other matters, the federal Truth in Lending Act requires a creditor to disclose the annual percentage rate as well as the number, amount and due dates or period of payments scheduled to repay the indebtedness as to closed-end sales transactions such as installment contracts. 15 U.S. C.A. § 1638 (1976 and Supp.1982). Such information is totally omitted from the instrument which was alleged to have been given here to the consumer by the creditors. The defendant creditors admitted such facts by their default and such omissions affirmatively appear from that instrument which was attached to the complaint as exhibit A. The trial court was requested at the hearing by the consumer to consider that attachment as proof of her claim.

The federal act must be literally construed in favor of the consumer and it is to be strictly enforced by the courts. Irvin v. Public Finance Co., 340 So.2d 811 (Ala.Civ.App.), cert. denied, 340 So.2d 815 (Ala.1976).

That act provides for statutory penalties whereby any creditor who fails to comply with its disclosure requirements is liable to the consumer for a reasonable attorney’s fee to be determined by the court and for an additional sum of twice the amount of any finance charge m connection with the transaction, liability therefor being limited to not less than $100 nor more than $1,000. 15 U.S.C.A. § 1640 (Supp.1982). Here, the “cost of financing” as disclosed by the instrument was $84. The down payment made by the consumer was not part of the finance charge. The learned trial court should have awarded to the plaintiff, under the truth in lending count of her complaint, double the finance charge, which amounts to $168, plus a reasonable attorney’s fee as determined by that court. Fulghum v. Termplan, Inc., 383 So.2d 191 (Ala.Civ.App.1980); Kelly v. Beneficial Finance Co., 374 So.2d 338 (Ala.Civ.App.), cert. denied, 374 So.2d 340 (Ala.1979).

In addition to the truth in lending count, the plaintiff’s complaint also included other claims which sought damages for a breach of warranty and for misrepresentations by the defendants to her in the sale of a used automobile. Since we must reverse this case and remand it to the trial court for the error relative to the truth in lending count, we pretermit a decision upon the plaintiff’s contentions relative to the recovery of damages under the other alleged causes of action; for, after this reversal, the case stands as though the final judgment had never been rendered by the trial court. Christian Benevolent Burial Association v. Thornton, 241 Ala. 13, 1 So.2d 8 (1941).

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

REVERSED AND REMANDED.

All the Judges concur.


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    Uvonna Jackson CUROTT v. David Richard CUROTT.
    Civ. 3169.
    Court of Civil Appeals of Alabama.
    June 16, 1982.
    J. A. Keller of Keller & Cochran, Florence, for appellant.
    Robert M. Hill, Jr., Florence, for appellee.
   EDWARD N. SCRUGGS, Retired Circuit Judge.

This is a divorce case where the awarded periodic alimony to the wife is the issue.

The husband’s complaint prayed for a divorce and for a division of property. The wife sought periodic alimony.

In viewing the record with the attendant presumptions accorded to the action of the trial court, the following is revealed: The parties were married in June, 1978, the husband then being forty-one years of age and the wife being fifty-three. It was a second marriage for each party. They had no children by this marriage. Before the final separation in March, 1981, they had been separated on two prior occasions.

The husband has his doctorate in physics and teaches at one of this state’s universities. His regular salary nets him $1,391 per month and he, additionally, averages $100 per month for supplemental teaching. While he does not have a definite teaching assignment during the summer, he normally has such summer employment. He owns no real estate and has accumulated no assets other than a few items of personal property. He testified as to contested contingent debts. The husband loaned $4,500 to the wife’s daughter by her previous marriage, who is repaying it at the rate of $115 per month. Eighteen monthly payments remain to be paid thereon.

After their marriage, the wife continued to teach a special education class until she was terminated because of lack of funding. She does not have teacher tenure. Presently, she has been substitute teaching. The wife has sought a regular teaching position and has received affirmative promises in that regard, but nothing has developed so far. She either has two or three master’s degrees, the evidence being unclear in that respect. Apparently, the wife has the possibility of obtaining employment as a therapist in a psychiatric center, but it would necessitate her moving from North Alabama, where she is needed to care for her elderly parents.

The wife owns her own home, which is presently debt free and which she purchased in 1968 for $28,000. She testified that it is now reasonably worth up to $60,-000. The husband presented evidence that, during the marriage, he expended over $2,700 for repairs and capital improvements to the house. She also owns the furniture, household appliances and a 1976 automobile. Her itemized expenses, according to her testimony, exceeded $600 per month.

The husband admitted that he committed adultery commencing about six months after the final separation of the parties.

After an ore tenus trial, the circuit court rendered a final judgment which divorced the parties for incompatibility of temperament. It awarded to the husband a few items of personal property, all of which were brought into the marriage by him. All other personal property was given to the wife, which included some articles which belonged to the husband prior to the marriage as well as all of the property accumulated by them during the marriage or by her prior to this marriage. The wife was further granted all sums due under the terms of the loan from her daughter. Also, the husband was ordered to pay periodic alimony to the wife of $300 per month for a period of twelve months.

The wife appeals and contends that the trial court abused its discretion as to both the amount and the duration of the awarded alimony. We affirm.

Neither his total income nor the husband’s nominal, or negative, net worth come close to placing him in a wealthy category. Hence, on that basis alone, this case is clearly distinguishable from the majority of the cases cited in the wife’s brief such as Dees v. Dees, 390 So.2d 1060 (Ala. Civ.App.1980), where the husband was worth millions and had a large annual income.

The evidence having been heard orally by the trial court, its award of alimony is presumed to be correct and can be set aside on appeal only when it is palpably wrong. Both the amount and duration of periodic alimony lie within the sound judicial discretion of the trial court, which is reversible only for a palpable abuse thereof. Dye v. Dye, 406 So.2d 420 (Ala.Civ.App. 1981); Mack v. Mack, 402 So.2d 1038 (Ala. Civ.App.1981); Coffelt v. Coffelt, 390 So.2d 652 (Ala.Civ.App.1980).

While the law does not establish any fixed standard for determining alimony, some relevant factors to be considered are the “future prospects of the parties; their ages, sex, health and station in life; how long they were married; and in appropriate cases, the conduct of the parties with reference to the cause of the divorce.” Phillips v. Phillips, 49 Ala.App. 514, 274 So.2d 71 (1978).

In applying the Phillips factors to the facts in the present case, we cannot hold that the trial court abused its discretion in any respect as to the award of periodic alimony to the wife. We are neither surprised, shocked nor dismayed by any aspect of the alimony judgment in this case. The evidence does not virtually compel a result inconsistent with the trial court’s holding. Adams v. Adams, 335 So.2d 174 (Ala.Civ.App.1976). To the contrary, the judgment of the trial court makes a reasonable periodic alimony award for a reasonable period of time under the circumstances. The judgment was not palpably wrong and we must affirm.

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

AFFIRMED.

All the Judges concur.


author: WRIGHT, Presiding Judge.

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    ALABAMA CABLEVISION CO., a corporation v. James W. LEAGUE, d/b/a Huntsville Trailer Court.
    Civ. 3194.
    Court of Civil Appeals of Alabama.
    June 16, 1982.

      Michael Spearing of Watts, Salmon, Roberts, Manning & Noojin, Huntsville, for appellant.
    David H. Culver, Huntsville, for appellee.
   WRIGHT, Presiding Judge.

This appeal arises out of the denial of a Rule 65.1, A.R.C.P. motion to enforce the liability of a surety upon the dissolution of an injunction. An unusual feature of the case is that the motion was brought more than eight years after the injunction was dissolved. The cause arose out of the following facts:

James W. League, d/b/a Huntsville Trailer Court (League), orally contracted with T. V. Distribution Systems in September 1965 to transfer the trailer court television equipment to that company, and in return was to receive television service at the rate of one dollar per unit per month. In October 1967, T. V. Distribution System transferred its entire system to Alabama Cablevision Company (Cablevision), and the service to the trailer court continued without interruption. Cablevision notified League in November 1972 that the charge would be raised to four dollars per unit per month. League did not agree to pay the higher charge, and the service was terminated in early 1973. League brought an action against Cablevision for declaratory judgment as to the effect of the 1965 agreement, and asked for a temporary injunction to prohibit Cablevision from terminating the service or raising the rates.

The temporary injunction was granted on March 1, 1973, and League provided a $1,000 bond as security therefor. League, C. J. Waite and William J. Crawford were sureties on the bond. Cablevision answered the complaint and moved to dissolve the injunction. On October 23, 1973, the court found that the contract of 1965 was of no force and effect and stated in pertinent part:

[T]he Court having heard the evidence on the trial of this cause is of the opinion that complainant is entitled to a declaration of rights.
The respondent has moved to dissolve the injunction heretofore issued by the Court and having determined that the contract is of no further force and effect, the court is of the opinion that said injunction should be permanently dissolved;

Eight years and seven days later, Cablev-ision filed a Rule 65.1 motion to enforce the liability of the surety on the bond. League moved to dismiss on several grounds including that the motion could not replace a suit on the bond, laches, the injunction was properly granted, the complaint was not wrongful or vexatious, and no proof of damages or the reasonableness thereof had been shown. The court, after hearing the evidence on the motion decreed that, “Said motion of the Defendant is not well taken,” and ordered judgment in favor of League. Cablevision appeals.

The issue on appeal is whether the court erred in denying the motion.

A Rule 65.1 motion is proper in this ease. The rule states that the liability of a surety “may be enforced without the necessity of an independent action.... ” The appropriate statute of limitations on a “writing under seal” is ten years. § 6-2-33(1) Code (1975). The bond here was a “writing under seal.” It is evident from the comments of the judge in the record that great weight was given the defense of laches, though no specific reason for denial of the Rule 65.1 motion was stated. The record provides no support for any of the other grounds stated in the motion.

Laches should not bar Cablevision’s motion in this case. We recognize that laches may be an available defense even though the limitations period has not run. McCary v. Robinson, 272 Ala. 123,130 So.2d 25 (1961); Ussery v. Darrow, 238 Ala. 67, 188 So. 885 (1939). League failed to properly assert laches as a defense. Prejudice from the eight-year delay was not apparent on the face of the bill, and no special circumstances showing prejudice were raised as a defense. See McCary, supra; Ussery, supra. As stated by our supreme court in Lipscomb v. Tucker, 294 Ala. 246, 314 So.2d 840 (1975):

[M]ere delay is not sufficient for the defense of laches, but special facts which make the delay culpable must appear. (Cites omitted.)
For the doctrine of laches to be applicable, it must appear that harm or prejudice has resulted from the delay. (Cite omitted.) The burden of showing prejudice when not shown on the face of the complaint rests on the one invoking lach-es. (Cite omitted.)

A dissolution of the injunction is a determination that the injunction was wrongfully issued. Union Springs Telephone Co. v. Green, 47 Ala.App. 427, 255 So.2d 896 (1971). A judicial determination that the temporary injunction was rightfully issued is a defense to suit on the bond. Union Springs Telephone, supra. We are of the opinion, however, that the trial court’s statement that “the complainant is entitled to a declaration of rights” was not such a determination. The subsequent declaration was in favor of Cablevision and dissolved the injunction. The court erred in not permitting Cablevision’s recovery on the bond.

Appellee contends that Rule 65.1 was not in effect at the time the injunction was dissolved, and that it would work an injustice under Rule 86, A.R.C.P. to apply it here. That contention is not well taken. No possible injustice has been shown.

Appellee also contends that Ca-blevision failed to prove damages. Clearly, damages' were proven in an amount greater than the $1,000 surety bond. Damages allowable on the dissolution of an injunction are those which are the actual, natural and proximate result of the injunction. See Fidelity and Deposit Co. of Maryland v. West Blockton Savings Bank, 22 Ala.App. 12, 113 So. 486 (1926), rev’d on other grounds, 216 Ala. 465, 113 So. 489 (1927). Cablevision proved damages in connection with the charge per unit for television service, attorney’s fees, and the reasonableness thereof. Appellee cannot prevail on this issue.

This cause is due to be reversed and remanded so that the trial court may enter a judgment in the amount of the bond herein.

REVERSED AND REMANDED WITH DIRECTIONS.

BRADLEY and HOLMES, JJ., concur.


author: HOLMES, Judge.

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    Walda MESSER v. Joe L. MESSER.
    Civ. 3204.
    Court of Civil Appeals of Alabama.
    June 16, 1982.
    S. Sanford Holliday, Wedowee, for appellant.
    Larry Morris of Radney & Morris, Alexander City, for appellee.
   HOLMES, Judge.

This is a divorce case.

After an ore tenus hearing the trial court divorced the parties, required the husband to pay child support, awarded the wife alimony in gross, and made a division of property.

The wife appeals and the dispositive issue is whether the trial court abused its discretion in the awards to the wife. We find no such abuse as to require reversal and affirm.

Viewing the record with the presumptions accorded the trial court’s actions, the following is pertinently revealed: The parties were married in 1978 and separated in 1981. One child was born of the marriage.

Both parties are young and are able to work. During the marriage the wife held only occasional part-time jobs. The husband worked as a chicken farmer and was the main source of income for the family. There is evidence that his income is between $750 and $1,000 per month.

We do not deem it necessary or prudent to set out in detail all the parties’ assets. Suffice it to say that, prior to the marriage, the husband inherited considerable real estate due to the untimely death of his parents. The record is not a paragon of clarity as to the value of the real estate. It would appear that the real estate exceeds a value of $25,000. Since the marriage an additional seventy-six acres have been acquired and two chicken houses have been constructed upon this acreage. The record reflects that this latest acquired property is mortgaged to the extent of approximately $85,000.

The trial court awarded custody of the parties’ child to the wife. The husband was required to pay $250 per month child support. Additionally, the husband was required to pay all medical and dental expenses.

The wife was awarded $12,000 as alimony in gross along with certain personal property-

The husband was awarded the remainder of the property, which, in large measure as indicated, was inherited by the husband pri- or to the marriage.

As mentioned, the wife, through able counsel, dispositively contends that the trial court erred to reversal in the awards to the wife.

We note the often quoted rule that awards such as are present in the instant appeal are a matter within the sound discretion of the trial judge. When a trial judge hears the evidence ore tenus his decision is presumed to be correct and will not be disturbed unless it is unjust or palpably wrong. Walton v. Walton, 387 So.2d 847 (Ala.Civ.App.1980).

In this instance, while the trial court’s actions might not necessarily be what this court would have done in the first instance, we cannot say his actions are such that we are required to reverse.

We particularly note the short duration of the marriage (see Williams v. Williams, 389 So.2d 141 (Ala.Civ.App.1980)), and the manner in which the property was acquired. See Anders v. Anders, 367 So.2d 481 (Ala.Civ.App.1979); Ala.Code § 30-2-51 (Cum.Supp.1981).

In view of the above, the trial court is due to be affirmed.

AFFIRMED.

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