author: MADDOX, Justice.

text:
    James H. LESLIE v. PINE CREST HOMES, INC., an Alabama Corporation.
    78-702.
    Supreme Court of Alabama.
    Aug. 29, 1980.
    Roger M. Monroe and Martin D. Baker of Jones & Monroe, Birmingham, for appellant.
    Eddie Leitman and Andrew P. Campbell of Leitman, Siegal & Payne, Birmingham, for appellee.
   MADDOX, Justice.

This is an appeal from a final judgment entered in favor of plaintiff, Pine Crest Homes, Inc., against the defendant, James H. Leslie, in which the trial court held (1) that Leslie owed Pine Crest $23,761.38, (2) that Leslie was liable for one-half the reasonable attorneys’ fees incurred and paid by Pine Crest for defending a claim filed against Pine Crest, and (3) that Leslie was liable for one-half of any judgment rendered against Pine Crest on the same claim.

The trial was before the Honorable William A. Thompson, who made findings of facts and conclusions of law, as follows:

“This action came on to be heard by the .Court and was submitted on the pleading and testimony and evidence presented in open court.

“The complaint alleges an action for an accounting by the Plaintiff, Pinecrest [sic] Homes, Inc., against the Defendant, James H. Leslie, and seeks an accounting of the financial dealings of a joint venture between the parties. These dealings relate to the construction and sale of sixteen houses built by the joint venture. The Plaintiff further seeks a judgment against Leslie for one-half of the loss sustained by the joint venture and, also, the sums paid to Leslie alleged to be loans and advances against anticipated profits.

“The Defendant Leslie admits a joint venture between himself and Pinecrest but denies that there exists any indebtedness due by him. In summary, Leslie contends that he and Pinecrest entered into a joint venture wherein Pinecrest was to provide the building lots, financing, accounting services and make all payments of payroll, materials and sub-contractors. Leslie avers that he was responsible for the actual construction of the houses involved. Leslie alleges that Pinecrest refused to account to him, refused and denied access to the books and records, refused to agree on sales prices, refused to correct obvious errors, padded construction costs, charged the venture for labor and materials for the personal benefit of Pinecrest’s president and numerous claims of unauthorized and unwarranted costs. Leslie further denies that he received loans and advances from Pinecrest and contends that all sums received by him were sums actually owed by Pinecrest to him. Leslie avers that the transactions are so complex that the services of an independent certified public accountant are required and should be appointed by the Court to render an accounting and that, upon such accounting, Pinecrest is due to account to him for monies due and owing.

“Prior to trial, the Court, on the joint motion of the parties, appointed J. Wray Pearce of Pearce, Summerford and Company, P. C., Certified Public Accountants, to render an accounting of the profits and losses of the sixteen houses referred to in the complaint. The accounting was to be based upon the construction costs of the houses, the financing, sale and income or loss therefrom.

“The accounting was thereafter conducted by the accountant and a memorandum report and analysis was provided to each of the parties. After certain adjustments were made by the accountant to his preliminary computations, he reported to the Court and the parties a net combined loss on the sixteen houses of $1746.26 without regard to loans or advances, if any, to Leslie. The accountant’s report was subject to certain enumerated exceptions. These related to a few cost charges not verified by invoices and a few invoices for which no costs were charged.

“Upon consideration of the matters presented, the Court finds as follows:

“1. That Pinecrest Homes, Inc., and James H. Leslie entered into a joint venture agreement during the latter months of 1976 to construct sixteen houses for the purposes of sale. The houses were to be built on real estate owned by Pinecrest, as alleged in the complaint. The agreement further provided that Pinecrest was to provide the financing and administrative requirements attendant to construction, and Leslie was to provide the job supervision required for such construction. Profits, if any, were to [be] divided equally. All of such agreement was verbal and no part thereof was reduced to writing.

“2. In approximately March or April 1977, disagreements arose between Leslie and Leonard Hultquist, the President and owner of Pinecrest, over the payment of. certain workmen and, also, over the loss incurred in connection with the sale of one of the houses. As a result of these disagreements, Leslie stopped performing his part of the responsibilities of the venture and Pinecrest was thereafter required to complete and sell the remaining houses. At the time of this occurrence, seven of the sixteen houses had been completed and sold.

“3. During the friendly and agreeable period of the venture, Leslie received the sum of $27,150 from the joint venture account as loans and advances against anticipated profits. According to the venturé records, the parties had a paper profit of approximately $7829. The records show that the profits on the houses built and sold thereafter were nominal and that, in several instances, actual losses were incurred.

“4. Pursuant to the request of both parties and by agreement, an accounting of the joint venture was conducted by an independent accountant. This accounting shows that the venture incurred a loss of $1746.26 on the construction and sale of the sixteen houses. The evidence produced in open court failed to substantiate the correctness of certain charges by Pinecrest to the construction. These charges are:

Ace Plumbing $ 386.00

Adjustment on Blaylock Construction 590.22

Labor charges (Cummins) 421.77

Overhead 3150.00

Total of Chargebacks 4547.99

“The evidence further shows that $400 was charged by Pinecrest to each of the sixteen jobs as a bookkeeping entry representing an allocation of insurance costs of a master builders risk insurance policy that was paid for and owned by Pinecrest. This policy covered other construction as well as that in controversy here. This arbitrary allocation was made notwithstanding the evidence that there was deducted from the payment to each subcontractor 1% of his contract to represent and cover the costs of workmen’s compensation insurance. No accounting was made by Pinecrest or the independent accountant of these sums, but the evidence shows that Pinecrest charged to each job the total of the subcontract without an accounting or adjustment of the deduction. Such being shown, the arbitrary and unproven charge of $6400 to the joint venture is not due to be allowed.

“The evidence also shows that the independent accountant did not charge to the joint venture the sum of $2424.48 that was paid or expended by Pinecrest to correct deficiencies in connection with the sale of Lot 22, River Run, to Richard C. Duel, III, and a subsequent dispute with that purchaser. The joint venture is due to be charged with this sum and included in the accounting here.

“These adjustments are summarized and the totals thereof are as follows:

Account of joint venture by accountant — Loss ($ 1,746.26)

Additional charges in connection with Lot 22, River Run ( 2,424.48)

Loss ( 4,170.74)

Improper charges to joint venture 10,947.99

Net profit of joint venture $ 6,727.24

Loan and advances of Leslie $27,150.00

Less: Leslie’s share of profits 3,388.62

Due Pinecrest by Leslie $23,761.38

“Based upon the foregoing, the Court concludes that the correct accounting between the parties shows that Leslie has overdrawn his share of the joint venture profits by $23,761.38 and Pinecrest is entitled to a judgment against Leslie for this sum.

“The Court further concludes that the certain other charges questioned or challenged by Leslie are not due to be approved and confirmed.

“5. The evidence further shows that Pi-necrest is the Defendant in a pending action in the Circuit Court of this circuit in Case No. CV 78-03075 wherein the Plaintiffs, Robert P. Walter and Beth J. Walter, allege that they suffered damages as a result of their dealings with Pinecrest. These dealings were in connection with the purchase of a home by the Walters that was constructed and sold by the joint venture of Pinecrest and Leslie. Based upon this evidence and the matters presented in connection therewith, the Court concludes that Leslie is jointly liable with Pinecrest for any judgment resulting from this lawsuit and the reasonable costs of defending it.

“In consideration of the foregoing, it is ORDERED, ADJUDGED and DECREED by the Court as follows:

"1. The Plaintiff, Pinecrest Homes, Inc., shall have and recover of the Defendant, James H. Leslie, the sum of $23,761.38, and judgment is hereby rendered for the said Plaintiff and against the said Defendant for said sum.

“2. The Defendant, James H. Leslie, is liable and obligated to pay to the Plaintiff, Pinecrest Homes, Inc., one-half of any judgment rendered against Pinecrest Homes, Inc., and paid by it in pending Civil Action No. 78-03075, wherein Robert P. Walter and Beth J. Walter are Plaintiffs and Pinecrest Homes, Inc., is Defendant; and the said James H. Leslie is further obligated to pay to the said Pinecrest Homes, Inc., one-half of the reasonable costs of attorneys fees incurred and paid by Pinecrest Homes, Inc., for defending the said action.

“3. The costs of this action are taxed one-half to the Plaintiff and one-half to the Defendant.

“DONE and ORDERED this 4th day of June 1979.”

On appeal, Leslie contends that the trial court improperly classified nine $1,350 payments as advances or loans against the profits of the joint venture. Leslie contends that the payments were made as salary payments by Pine Crest to Leslie, that Leslie was; therefore, not indebted to Pine Crest for these payments, and that this Court should either order a remittitur of $12,150 or reverse the trial court's decree.

Leslie presented evidence that the nine payments had been paid out regularly once a month, that all the payments were for an equal amount, that Pine Crest had deducted F.I.C.A. (social security) and S.U.I, (state unemployment) according to percentage rates used by employers for employee deductions, and that at least one of the checks had the notation “Payroll Check” printed on it.

Pine Crest presented evidence that the checks were not payroll checks, that they were advances against the anticipated profits of the joint venture, that Leslie was never a direct employee of Pine Crest, and that the deductions were made from the checks by Pine Crest at the request of Leslie for tax saving purposes.

There was thus a conflict in the evidence. Where the trial court has heard the evidence ore tenus, its findings of fact will not be disturbed on appeal unless clearly erroneous or manifestly unjust. Gertz v. Allen, 376 So.2d 695 (Ala.1979). This rule is especially applicable in cases where the trial court makes its findings of fact after hearing conflicting evidence; every presumption is indulged in favor of the court’s findings of fact and those findings will not be disturbed unless palpably wrong. Vance v. Allied Community Center, 374 So.2d 312, 314 (Ala.1979). We cannot say that the trial court’s finding that the nine payments made by Pine Crest to Leslie was clearly erroneous, manifestly unjust, or palpably wrong. It was supported by credible evidence.

Leslie next contends that the trial court erred in ruling that Leslie was liable for one-half the attorneys’ fees and one-half of any judgment entered in the pending action against Pine Crest. Leslie contends that the case should be remanded for a determination of whether Leslie is, in fact, liable since the complaint in the pending action alleges that the purchaser negotiated for and purchased his house in May and June of 1977, while Leslie terminated his activities with the joint venture in March or April of 1977. Additionally, Leslie contends that since Pine Crest filed a complaint for an accounting only, and for judgment for amounts due it by Leslie, the issue of whether Leslie was liable for one-half the attorneys’ fees and any judgment entered was not properly raised at trial. Leslie contends that a determination that Leslie is liable for one-half the attorneys’ fees and judgment in the pending action is a complaint for special damages under ARCP 9(g).

Leslie’s position, in sum, is that, in the action for an accounting, consideration of the pending lawsuit is an item of special damage, of which Leslie should have had notice, and that lack of notice prejudiced him.

An account and an accounting have been defined, respectively as:

“Account. A detailed statement of the mutual demands in the nature of debit and credit between parties, arising out of contracts or some fiduciary relation. A statement in writing, of debts and credits, or of receipts and payments; a list of items of debts and credits, with their respective dates. A statement of pecuniary transactions; a record or course of business dealings between parties; a list or statement of monetary transactions, such as payments, losses, sales, debits, credits, etc., in most cases showing a balance or result of comparison between items of an opposite nature.
“Accounting. An act or system of making up or settling accounts; a statement of account, or a debit and credit in financial transactions. Kansas City v. Burns, 137 Kan. 905, 22 P.2d 444. Rendition of an account, either voluntarily or by order of a court. In the latter case, it imports a rendition of a judgment for the balance ascertained to be due. The term may include payment of the amount due.”

Black’s Law Dictionary 17, 18 (5th ed. 1979).

In the instant case, the trial court determined all liabilities flowing from each party to the joint venture and flowing from the joint venture to the parties.

The evidence showed that the action upon which the pending lawsuit was based arose out of a house built by the joint venture. In fact, testimony showed that Leslie had constructed ninety percent of the house before he stopped performance. The trial court found that the house was constructed by and sold by the joint venture, and that, therefore, the costs of defending the lawsuit and any judgment entered in the action was a liability of the joint venture. This ruling was within the trial court’s jurisdiction in the action for an accounting between the two parties. We cannot say that the finding by the court that the house made the basis of the lawsuit was constructed by the joint venture was clearly erroneous under the ore tenus rule previously cited. Gertz v. Allen, supra.

Leslie’s classification of the holding as an award of special damages is erroneous. The determination by the court that the costs of defending the pending lawsuit, and paying any judgment entered, were liabilities of the joint venture, was a natural and necessary finding in the action for an accounting, an equitable action. Moreover, technical accuracy in all details is not required in the pleading of a bill for an accounting. Selman v. Bryant, 261 Ala. 53, 72 So.2d 704 (1954). We, therefore, hold that the trial court did not err in determining that Leslie was liable for one-half the attorneys’ fees and any judgment entered against Pine Crest in the pending action by the purchaser of the house.

AFFIRMED.

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


source: Caselaw Access Project

author: PER CURIAM. TORBERT, Chief Justice

license: Public Domain

text:
    Warner FLOYD v. The ALABAMA HISTORICAL COMMISSION et al.
    78-569.
    Supreme Court of Alabama.
    Sept. 12, 1980.

      James R. Cooper, Jr. of Cooper & Cooper, Montgomery, for appellant.
    Charles M. Crook of Smith, Bowman, Thaggard, Crook & Culpepper, Montgomery, for appellees.
   PER CURIAM.

This is an appeal by Floyd from a judgment of the circuit court granting defendants’ motion to dismiss plaintiff’s amended complaint.

Floyd was Executive Director of the Alabama Historical Commission. On September 15, 1978, he filed suit against the Alabama Historical Commission and its members in their representative and individual capacities.

In this complaint, as amended, Floyd alleged that:

COUNT I
******
2. From September 1, 1967 until August 22, 1978 plaintiff was employed by defendants as the Executive Director of the Alabama Historical Commission.
3. On August 22, 1978 defendants fired plaintiff at a meeting of the A.H.C. in Montgomery, Alabama. Prior to this meeting, plaintiff was not notified that he was going to be fired. At the meeting, plaintiff was not given the opportunity to cross examine anyone who was to bring charges against him.
4. Plaintiff alleges that as a direct result of the public meeting and firing on August 22, 1978, his due process rights in liberty under the Fourteenth Amendment of the United States Constitution and Article I Section 6 and 13 of the 1901 Alabama Constitution were violated. Plaintiff alleges that before and after being fired defendants made known that plaintiff was fired because of incompetence in his work, criminal activities, financial irregularities from undisclosed audits, extreme unprofessional conduct and various other allegations of misconduct. Plaintiff alleges that since he was not given notice and an opportunity to defend against said charges, his good name, reputation, standing in the community, honor, integrity, honesty, ability to obtain other employment, governmental or private, has been severely impaired and damaged. In addition, he has lost wages. Said treatment by the various board members were public statements.
COUNT II
******
2.Plaintiff alleges that as a direct result of the public meeting and firing on August 22, 1978, his due process rights in property under the Fourteenth Amendment to the United States Constitution and Article I Section 6 and 13 of the 1901 Alabama Constitution were violated. Plaintiff alleges that he had a property interest in his job due to the fact that he was non-probationary and was employed for ten years by A.H.C. Plaintiff’s property rights consisted of his medical insurance provided by the State, benefits obtained through his membership in the Alabama State Employee Association, and his pension benefits through his membership as an Alabama State Employee in the Employees Retirement System of Alabama.
COUNT III
******
2. Plaintiff alleges that defendants fired plaintiff on August 22, 1978 for a constitutionally impermissible reason. Plaintiff alleges that he was fired because he exercised his Right of Freedom of Speech provided under the First Amendment to the United States Constitution and Article I Section 4 of the Alabama Constitution.
3. Plaintiff alleges that defendants fired him for publicly criticizing the A.H.C. and individual commission members at speeches before the Decatur Rotary Club and the Morgan County Historic Preservation Society during June-July 1978, and at other places.
4. Plaintiff alleges that defendants fired him in violation of his Freedom of Speech rights guaranteed under the United States and Alabama Constitutions for publicly lobbying and directing a public lobbying effort against House Bill 504 and 505 during the 1978 Alabama Legislative Session. * * *
5; Plaintiff alleges that he was fired by defendants because of his public support, lobbying and favorable public comments in regard to the Live-in-a Land Mark Program.
6. Plaintiff alleges that he was fired for his numerous public statements in regard to allegations of disloyalty among staff and members of the Alabama Historical Commission.
7. As a result of defendants’ firing of Warner Floyd, Plaintiff has suffered damage to his good name, reputation, and opportunity to obtain employment and has lost wages.
COUNT IV
* * * * * *
1. That plaintiff was fired in a secret session of the A.H.C. on August 22, 1978 by the defendants.
2. That no personality or good names of any individuals were discussed at that secret session.
3. That prior to the August 22, 1978 secret session defendants had met secretly and conducted business which had as an end result the firing of Warner Floyd.

A preliminary hearing was held on September 18th and 19th to consider Floyd’s request for a preliminary injunction to prevent defendants’ dismissal of him. Defendants, on September 22nd, filed a motion to dismiss. Floyd’s request for a preliminary injunction was denied on September 29th. Floyd then filed a motion for summary judgment. Defendants filed counter affidavits. Interrogatories were also filed. For reasons not apparent in the record, the trial court then granted defendants’ motion to dismiss the complaint.

On appeal, Floyd alleges numerous errors were committed by the trial court in dismissing his complaint. Floyd’s first contention of error was that he was dismissed for exercising his First Amendment right of freedom of speech. More specifically, Floyd asserts that the reason for his discharge was his public criticism of the Historical Commission’s policies.

In support of this contention, Floyd relies upon Perry v. Sinderman, 408 U.S. 593, 93 S.Ct. 2694, 33 L.Ed.2d 570 (1972), in which the United States Supreme Court held that the district court’s granting of summary judgment in favor of defendant must be reversed where there had not been a full exploration of plaintiff’s claim that dismissal from public employment had been due to the exercise of the First Amendment right to free speech. The Court stated that:

For at least a quarter-century, this Court has made clear that even though a person has no “right” to a valuable governmental benefit for any number of reasons, there are some reasons upon which the government may not rely. It may not deny a benefit to a person on a basis that infringes his constitutionally protected interest — especially, his interest in freedom of speech. For if the government could deny a benefit to a person because of his constitutionally protected speech or associations, his exercise of those freedoms would in effect be penalized and inhibited. This would allow the government to “produce a result which [it] could not command directly.” Speiser v. Randall, 357 U.S. 513, 526, 78 S.Ct. 1332, 1342, 2 L.Ed.2d 1460. Such interference with constitutional rights is impermissible.

92 S.Ct. at 2697.

In recognizing this First Amendment right of public employees to speak out on public issues it must also be remembered that First Amendment rights of expression are not absolute, and that regulation as to time, place and manner of exercise is proper when found to be reasonably related to a valid public interest. Cox v. Louisiana, 379 U.S. 536, 85 S.Ct. 453, 13 L.Ed.2d 471 (1965).

The United States Supreme Court, in Pickering v. Board of Education, 391 U.S. 563, 88 S.Ct. 1731, 20 L.Ed.2d 811 (1968), recognized the state’s interest an as employer in promoting the efficient performance of state operations. This was articulated as a balancing test which was stated as follows:

“[T]he theory that public employment which may be denied altogether may be subjected to any conditions, regardless of how unreasonable, has been uniformly rejected.” Keyishian v. Board of Regents, supra, 385 U.S. at 605-606, 87 S.Ct. at 685. At the same time it cannot be gainsaid that the State has interests as an employer in regulating the speech of its employees that differ significantly from those it possesses in connection with regulation of the speech of the citizenry in general. The problem in any case is to arrive at a balance between the interests of the teacher, as a citizen, in commenting upon matters of public concern and the interest of the State, as an employer, in promoting the efficiency of the public services it performs through its employees.

88 S.Ct. at 1734-35.

In Pickering, the Court noted certain factors to be considered in the balancing process. The Plaintiff in Pickering was a teacher who had been discharged for submitting a letter to a local newspaper criticizing school board policies. The Court held that this public statement related to a matter of general public concern and Plaintiff’s employment was “only tangentially and ^substantially involved in the subject matter of the public communication.” 88 S.Ct. at 1738. Factors considered by the Court in reaching this decision were:

The statements [were] in no way directed towards any person with whom appellant would normally be in contact in the course of his daily work as a teacher. Thus no question of maintaining either discipline by immediate superiors or harmony among coworkers is presented here. Appellant’s employment relationships with the Board and, to a somewhat lesser extent, with the superintendent are not the kind of close working relationships for which it can persuasively be claimed that personal loyalty and confidence are necessary to their proper functioning.

88 S.Ct. at 1735.

The factors enunciated in Pickering, were applied by the Fifth Circuit Court of Appeals in Abbott v. Thetford, 529 F.2d 695 (5th Cir.), rehearing en banc, 534 F.2d 1101 (5th Cir. 1976). There, a judge of the juvenile court discharged his chief probation officer because this officer violated an express order of the judge prohibiting the filing of lawsuits by staff employees. The Court of Appeals initially reversed the district court’s decision which had upheld the judge’s authority to discharge the officer. However, upon rehearing, the Court of Appeals reversed and adopted Judge Gewin’s dissent as its opinion. Judge Gewin concluded that the judge had the authority to discharge the probation officer as this officer’s relationship with the judge had to be one of confidence and cooperation. He also found that such a relationship is necessary to properly discharge court functions and a lack of cooperation would impair the operation of the court.

In applying the above principles to the facts before us, we find that the trial court correctly dismissed this aspect of Floyd’s amended complaint.

The Alabama Historical Commission is created pursuant to § 41-9-240, et seq., Code 1975. The Commission is granted powers under the Code to preserve the State’s heritage through historic preservation. Section 41-9-247, empowers the Commission to employ an executive director. This section reads as follows:

§ 41-9-247. Executive director.

The commission may employ an executive director, who shall serve at the pleasure of the commission and who shall be responsible directly to the commission for the general supervision and execution of the work of the commission. The commission shall fix his compensation, with the approval of the governor and the state personnel board, the same to be paid from the funds of the commission, and shall further designate his duties and authority.

Floyd, as Executive Director, was responsible for carrying out the work of the commission. It is through the executive director that the commission acts and it is this director who must implement the policies of the commission. As a result, a close working relationship, requiring cooperation and confidence between the executive director and the commission, must be present.

The public statements by Floyd were directed against those under whose direction he closely worked. These statements, which attacked the commission’s policies, could have a substantial effect upon the efficient operation of the commission. It is apparent from the statute that the function of the commission and the executive director is to achieve the objects and purposes for which the commission was created; for the commission to set the Policy and the director to effectuate it there must be cooperation between the two-otherwise the commission becomes ineffectual. Therefore, we find the discharge of Floyd does not violate his First Amendment rights.

Floyd’s second contention is that he has been denied procedural due process as the firing has stigmatized him and injures his prospects for future employment. In support of this contention, Floyd relies upon Foster v. Blount Co. Bd. of Educ., 340 So.2d 751 (Ala.1976), and Gowens v. Cherokee Co. Bd. of Educ., 348 So.2d 441 (Ala.1977). Both of these cases dealt with a nontenured teacher who was discharged from employment. Each relied upon Irby v. McGowan, 380 F.Supp. 1024 (S.D.Ala.1974), which stated:

The State, in declining to rehire the respondent, did not make any charge against him that might seriously damage his standing and associations in his community. It did not base the nonrenewal of his contract on a charge, for example, that he had been guilty of dishonesty, or immorality. Had it done so, this would be a different case. For ‘[wjhere a person’s good name, reputation, honor, or integrity is at stake because of what the government is doing to him, notice and an opportunity to be heard are essential.’
* * ‡ * * *
Similarly, there is no suggestion that the State, in declining to re-employ the respondent, imposed on him a stigma or other disability that foreclosed his freedom to take advantage of other employment opportunities ....

380 F.Supp. at 1028.

In Codd v. Velger, 429 U.S. 627, 97 S.Ct. 882, 51 L.Ed.2d 92 (1977), the United States Supreme Court found that where a nontenured employee had been stigmatized in the course of a decision to terminate his employment a hearing was required to clear his name; however, where there was no challenge to the substantial truth of the material in question, no hearing was required. The Court stated:

Assuming all of the other elements necessary to make out a claim of stigmatization * * * the remedy mandated by the Due Process Clause of the Fourteenth Amendment is “an opportunity to refute the charge.” 408 U.S., at 573, 92 S.Ct., at 2707. “The purpose of such notice and hearing is to provide the person an opportunity to clear his name,” id., at 573 n. 12, 92 S.Ct., at 2707. But if the hearing mandated by the Due Process Clause is to serve any useful purpose, there must be some factual dispute between an employer and a discharged employee which has some significant bearing on the employee’s reputation.
******
But the hearing required where a nontenured employee has been stigmatized in the course of a decision to terminate his employment is solely “to provide the person an opportunity to clear his name.” If he does not challenge the substantial truth of the material in question, no hearing would afford a promise of achieving that result for him.
******
* * * Only if the employer creates and disseminates a false and defamatory impression about the employee in connection with his termination is such a hearing required.

97 S.Ct. at 883-84.

Assuming Floyd has been stigmatized as a result of his discharge, he must still allege that the stigmatizing fact was substantially false to establish a violation of due process. Codd v. Velgar, supra; McElwee v. Todd, 581 F.2d 1182 (5th Cir. 1978).

Floyd was discharged at a public hearing. This hearing was public at Floyd’s own request. No transcript of this meeting accompanies the record; however, interrogatories of certain members of the commission were submitted by Floyd in his motion for summary judgment. Each member of the commission whose interrogatory was taken was asked the reason for Floyd’s discharge. Their answers can be summarized as being: incompetency; ineffectiveness; and, the best interest of the commission. In his own affidavit Floyd states that prior to his discharge and in the days following it, public statements were made by the commission members indicating that the reasons for his discharge were incompetency, criminal activities and unprofessional conduct. In his amended complaint, Floyd requested an opportunity to defend against these charges.

A complaint is not to be dismissed unless it appears beyond doubt that the plaintiff can prove no set of facts to support his claim which would entitle him to relief. Conley v. Gibson, 355 U.S. 41, 78 S.Ct. 99, 2 L.Ed.2d 80 (1957); Trabits v. First National Bank of Mobile, 295 Ala. 85, 323 So.2d 353 (1975).

We cannot now say, from the record before us, that Floyd could not prove any set of circumstances which would entitle him to relief. The question before us is whether Floyd has alleged that the comments by the commission, relating to the reasons for his discharge, were substantially false as required by Codd v. Velger, supra.

In his amended complaint Floyd contends that he had no opportunity “to defend against” the charges made against him by the commission. This request “to defend” is sufficient to meet the Codd test at least insofar as a motion to dismiss is concerned. This differs from the finding in Codd that no allegation of substantial falsity was made. However, that decision came on a motion for a directed verdict after a full trial.

The dismissal by the trial court of that portion of Floyd’s complaint in which he claimed to be entitled to a hearing because of the stigmatizing effect of the statements made by commission members was in error and is hereby reversed. We find that Floyd has sufficiently made out a claim under the Fourteenth Amendment that he was harmed by the denial of a hearing.

Floyd’s final contention of error is that he was discharged by the defendants while they were meeting in secret session. He alleges that such a secret or closed meeting is prohibited by Code 1975, § 13-5-1, and that any business conducted at such meeting is void and of no force and effect.

In Ex Parte Alabama Pubiic Service Commission, 376 So.2d 665 (Ala.1979), this Court considered what effect should be given to actions taken at a secret meeting in violation of § 13-5-1. We stated that

The act does not provide that action taken in violation thereof is void. If the legislature so intended the act could have been easily written to so provide. Griswold v. Mount Diablo Unified School District, 63 Cal.App.3d 648, 134 Cal.Rptr. 3 (1976). Cf. Dobrovolny v. Reinhardt, 173 N.W.2d 837 (Iowa 1970) (act subsequently amended to render such action voidable, Iowa Code 1979, § 28 A.6); Elmer v. Board of Zoning Adjustment, 343 Mass. 24, 176 N.E.2d 16 (1961) (act subsequently amended to render such action voidable, Mass. Law Ann. ch. 39, § 23C (Supp. 1979)). See N.J.Stat.Ann. § 10:4-15; Pa. Stat.Ann. tit. 65, § 272 (Supp.1979); Wash.Rev.Code Ann. § 42.30.060.

376 So.2d at 667.

Therefore, the fact that defendants may have violated § 13-5-1 is of no avail to Floyd. His discharge is still effective.

The order of the trial court dismissing that portion of Floyd’s amended complaint which concerns his right to a due process hearing because of the stigmatizing effect of the statements made as to why he was discharged, is reversed. The dismissal by the trial court of the remaining portions of Floyd’s amended complaint is hereby affirmed.

AFFIRMED IN PART; REVERSED IN PART; AND REMANDED.

MADDOX, FAULKNER, ALMON, EM-BRY and BEATTY, JJ., concur.

TORBERT, C. J„ and JONES and SHORES, JJ., concur specially.

TORBERT, Chief Justice

(concurring specially).

I concur that the case must be reversed, but only because of the posture of the case on appeal. Although evidence was taken on plaintiff’s motion for a preliminary injunction, affidavits were filed by the parties, interrogatories were answered, and a motion for summary judgment was filed by plaintiff, this case was not submitted to the trial court on motion for summary judgment, with the trial court considering the matters in the record. The trial court dismissed the complaint, as amended, upon defendant’s motion to dismiss under Rule 12(b)(6), ARCP.

It is important that the law relating to the rights of public officials and employees with respect to termination and discharge be settled. Accordingly, I take this opportunity to provide my views on these issues, especially with reference to procedural due process.

Procedural due process is not required unless the state deprives one of a “liberty” or “property” interest within the meaning of the Fourteenth Amendment to the United States Constitution. Board of Regents v. Roth, 408 U.S. 564, 92 S.Ct. 2701, 33 L.Ed.2d 548 (1972). An employee has a “property” interest in his employment where the employee has a legitimate claim of entitlement to his position, and whether employment rises to the level of a legitimate claim depends on state law, rules, or other understandings. Id.

Here, Code 1975, § 41-9-247, controls the character of Mr. Floyd’s employment. The statute expressly provides that the director serves at the pleasure of the Historical Commission. Since Mr. Floyd could be terminated at the will of the Commission, no state deprivation of a “property” interest entitled him to a due process hearing upon his dismissal.

In spite of the lack of a “property” interest in continued employment, termination may implicate a “liberty” interest when the dismissal stigmatizes the employee’s good name, reputation, honor or integrity. Board of Regents v. Roth, 408 U.S. 564, 92 S.Ct. 2701, 33 L.Ed.2d 548 (1972). The fact of termination itself does not call into question an employee’s good name-only when the employer makes public disclosure of the reasons for discharge is the employee’s “liberty” interest threatened. Bishop v. Wood, 426 U.S. 341, 96 S.Ct. 2074, 48 L.Ed.2d 684 (1976). Even if the reasons for termination are false, when there is no communication of the reasons, no “liberty” interest is impinged. Id. If the employer creates and disseminates a false and defamatory impression about the employee in connection with his termination, the employee is entitled to a hearing in order to clear his name. Codd v. Velger, 429 U.S. 624, 97 S.Ct. 882, 51 L.Ed.2d 92 (1977).

Because the due process hearing for deprivation of the “liberty” interest in a good name is only to enable the employee to clear his name, the employee must allege the communication by the employer was substantially false. Id. Obviously, if the allegations are not false, the employee can present no evidence to clear his name. In such a case, the hearing would be purposeless.

Equally apparent is the requirement that the stigmatizing disclosure occur other than at the due process hearing. In Bishop v. Wood, 426 U.S. 341, 96 S.Ct. 2074, 48 L.Ed.2d 684 (1976), the reasons for the employee’s dismissal were communicated privately to the employee and then again in answer to interrogatories after litigation commenced. The United States Supreme Court said:

Since the former [private] communication was not made public, it cannot properly form the basis for a claim that petitioner’s interest in his “good name, reputation, honor, or integrity” was thereby impaired. And since the latter communication was made in the course of a judicial proceeding which did not commence until aft,er petitioner had suffered the injury for which he seeks redress, it surely cannot provide retroactive support for his claim. A contrary evaluation of either explanation would penalize forthright and truthful communication between employer and employee in the former instance, and between litigants in the latter. [Footnotes omitted.]

Id. at 348-49, 96 S.Ct. at 2079.

Certainly, when the disclosure occurs on plaintiff’s initiation or at his request, plaintiff cannot later make the disclosure the basis of a due process claim.

JONES and SHORES, JJ., concur.


author: PER CURIAM. BEATTY, Justice

text:
    William R. INGRAM v. OMELET SHOPPE, INC. William R. INGRAM v. R. Merritt ROGERS et al. William R. INGRAM v. R. Merritt ROGERS, Omelet Shoppe, Inc., an Alabama Corp., Ben C. Power and Russell H. Stanley.
    79-237, 79-307, 79-442.
    Supreme Court of Alabama.
    Sept. 12, 1980.

      Erie Pettus, Jr. of Rives, Peterson, Pet-tus, Conway, Elliott & Small, Birmingham, and Julian D. Butler of Butler & Potter, Huntsville, for appellant.
    Thomas C. Najjar, Jr. of Najjar & Najjar, Birmingham, for appellee Omelet Shoppe, Inc.
    J. Vernon Patrick, Jr. and Gary S. Marx of Berkowits, Lefkovits & Patrick, Birmingham, for appellee R. Merritt Rogers.
    Charles E. Clark of Carlton, Boles, Clark, Stichweh & Caddis, Birmingham, for appel-lee Russell Stanley.
    B. G. Minisman of Fulford, Pope & Minis-man, Birmingham, for appellee Ben C. Power.
   PER CURIAM.

Appellant appeals from three final orders of a consolidated action in Jefferson County Circuit Court. The orders (1) approved a resolution providing for a combined issue of Omelet Shoppe, Inc. (OSI), debt obligations and stock; (2) adjudged plaintiff-appellee Rogers to be the owner of certain stock which appellant-defendant Ingram orally agreed to sell him and enjoined Ingram from interfering in any way with co-defendant OSI’s business; and (3) ordered Ingram to pay OSI a money judgment pursuant to an accounting cross-claim filed by OSI against Ingram and to pay compensation to a court-appointed special master. We affirm.

The struggle for control of OSI began at a meeting on July 31,1979, when plaintiff-appellee Rogers and one Ben Power voted to remove their co-director, defendant-appellant Ingram, as president of OSI. Rogers and Power then elected Rogers as president. Ingram, the majority stockholder of record at the time, notified Rogers of his intention to call a stockholder’s meeting of OSI for August 10, 1979. Ingram owned enough stock to elect his own slate of directors and then to reelect himself as president. On August 6, 1979, Rogers individually filed the present action in the Circuit Court of Jefferson County.

Primarily, Rogers’s complaint alleged that Ingram used false representations concerning the financial statement of OSI to induce Rogers to make loans to the corporation and to become a guarantor of indebtedness of the corporation. Rogers alleged that the corporation is now on the verge of bankruptcy due to Ingram’s mismanagement and waste. Furthermore, Rogers complained that Ingram induced him to make, out of his personal funds, an unsecured loan of $300,000 to OSI in consideration of Ingram’s oral promise to deliver to Rogers an additional ten per cent stock interest in OSI out of Ingram’s own holdings of that stock.

Rogers sought a temporary restraining order and permanent injunction to enjoin Ingram from interfering with OSI’s business affairs, causing the August 10, 1979, stockholders meeting to be held, voting or disposing of the ten per cent interest allegedly sold to Rogers, and acting as an OSI director. Rogers also sought specific performance of the oral contract between himself and Ingram. Rogers named OSI as a defendant in his complaint and asked for judicial authorization to make loans to OSI. The trial court issued the temporary restraining order on August 6, 1979, and authorized OSI to borrow money from Rogers.

On September 27, 1979, upon motion of OSI, the trial court entered a final order approving a resolution passed by the OSI board authorizing an issue of its debt obligations and stock to raise money for payment of the debt owed to particular investors, to pay off some of the money owed to Rogers, and to provide working capital.

After a trial on the merits from October 8-11, the trial court on November 1, 1979, entered an order and decree adjudging Rogers to be the owner of the disputed ten per cent stock interest and permanently enjoining Ingram from interfering with OSI’s business.

On that same day, OSI amended its answer to cross-claim for an accounting and for the same type of injunctive relief against Ingram that Rogers sought. The trial court entered a money judgment on the accounting claim against Ingram based on a special master’s report.

I. VENUE

The initial issue on this appeal is Ingram’s defense of improper venue. We hold that Jefferson County was the proper . place of venue as to Ingram and OSI.

Rule 82, ARCP, provides in part:

(b) Venue of Actions. Venue of actions shall not be affected by these rules except as the statute for venue for actions against individuals at law (Tit. 7, § 54) and the statute for venue for actions against individuals in equity (Tit. 7, § 294) are inconsistent. Such inconsistencies are resolved as follows:
(1) Against Resident Individuals. Actions against an individual or individuals having a permanent residence in this state :
(A) Must be brought in the county where the defendant or any material defendant resides at the commencement of the action, except that if the action is a personal action other than an action on a contract, it may be brought either in the county where the act or omission complained of occurred, or in the county of the permanent residence of the defendant or one of them; . . . [Emphasis added.]

The record discloses that Ingram, the individual defendant, resided in Shelby County at the commencement of this action.

Rule 82(b) applies only to individuals, not to corporations or other entities..

Code of Ala. 1975, § 6-3-7, the corporation venue statute, provides:

A foreign corporation may be sued in any county in which it does business by agent, and a domestic corporation may be sued in any county in which it does business by agent or was doing business by agent at the time the cause of action arose; provided, that all actions against a domestic corporation for personal injuries must be commenced in the county where the injury occurred or in the county where the plaintiff resides if such corporation does business by agent in the county of the plaintiff’s residence. [Emphasis added.]

The record reveals that OSI, the corporate defendant, was doing business in Jefferson County at the commencement of this action.

Venue, as distinguished from jurisdiction, is a legislative determination based upon the presumed convenience of the parties. See Boswell v. Citronelle-Mobile Gathering, Inc., 292 Ala. 344, 294 So.2d 428 (1974). “The burden of proving that venue is improper in a county in which suit is filed is upon the party making such claim.” Medical Service Administration v. Dickerson, 362 So.2d 906, 909 (Ala.1978). Plaintiff Rogers filed the present action in Jefferson County, the principal place of business of OSI. Substantially all the facts involved in this litigation occurred in Jefferson County. Defendant Ingram argues that venue was proper only in Shelby County. We cannot agree.

Appellee Rogers contends, and we agree, that by looking solely at Ingram as a defendant, Jefferson County is the proper place of venue since the acts complained of against Ingram occurred therein. Rogers bases his contention on that part of Rule 82(b)(1)(A), ARCP, which provides “if the action is a personal action other than an action on a contract, it may be brought in the county where the act or omission complained of occurred, . . .” (Emphasis added.)

Despite being founded in equity, Rogers’s prayer for injunctive relief and specific performance in this case is nonetheless “personal.” A “personal action” is an action in personam. It seeks to enforce an obligation imposed on the defendant by his contract or delict; that is, it is the contention that he is bound to transfer some dominion or to perform some service or to repair some loss. Black’s Law Dictionary 50 (4th ed. Rev. 1968). That equity acts “in personam” is a basic axiom of our jurisprudence. Lyle v. Haskins, 24 Wash.2d 883, 168 P.2d 797. Once venue is properly established against Ingram in Jefferson County, the same is likewise accomplished against OSI under 82(c), ARCP. That section reads in part: “Where several claims or parties have been joined, the suit may be brought in any county in which any one of the claims could properly have been brought. . . . ”

II. THE TRIAL COURT’S T.R.O.

Appellant alleges that in the absence of OSI as an indispensable party plaintiff, the temporary restraining order issued against Ingram on August 6,1979, was an abuse of discretion which was further compounded by the trial court’s refusal to dissolve said order. This contention is without merit.

The granting of a temporary injunction rests largely in the discretion of the trial court. Southern Rock Products Co. v. Self, 279 Ala. 488, 187 So.2d 244 (1966). The trial court’s latitude in this area is considerable. Drake Associates, Inc. v. Letson, 277 Ala. 512, 172 So.2d 536 (1965). At the time the temporary restraining order was issued, OSI was on the verge of bankruptcy. (R. at pp. 1639-1943).

Plaintiff Rogers was president, a creditor and a guarantor of OSI. Defendant Ingram conceded in his appellate brief that plaintiff Rogers had standing to request that defendant OSI be placed in receivership.

The decision to appoint a receiver or take some less drastic action is within the sound discretion of the trial court. See, e. g., Hunter v. Parkman, 250 Ala. 312, 34 So.2d 221 (1948). As recognized by this Court in Hunter, the decision to order a receiver must be “based upon the fact that there is no other adequate remedy or means of accomplishing the desired objects of the judicial proceeding.” 34 So.2d at 224, quoting Warren & Co. v. Pitts, 114 Ala. 65, 68, 21 So. 494 (1897).

In the present action, there was another adequate remedy available, the issuing of the temporary restraining order. Such action was a less drastic remedy, concomitant with the equity court’s power to order the more drastic remedy of receivership. Accordingly, the trial court had the power to issue the T.R.O. See Cherry Investment Corp. v. Folsom, 273 Ala. 575, 143 So.2d 181 (1962) (minority shareholders obtained injunction to prevent stockholders meeting of a failing corporation).

Independent of plaintiff Rogers’s standing to request the trial court to appoint a receiver (or to take lesser and included temporary measures), he also had standing to request the T.R.O. due to his status as a guarantor and creditor of OSI.

Appellant’s assertion that the status of OSI, as a defendant, precludes the issuing of the temporary restraining order is unsupported by legal authority and unpersuasive as dictum.

III. THE RESOLUTION BY OSI’S BOARD OF DIRECTORS

Appellant opposes the September 27, 1979, resolution of OSI’s board of directors offering securities in the corporation as an invalid exercise of the board’s power. Such assertion lacks substance.

At the time defendant Ingram was removed as president and chief executive officer of defendant OSI, the corporation was in dire need of working capital. To help alleviate this situation, the corporation offered (via a resolution of its board of directors) securities in $1,200 units consisting of 100 shares of the capital stock of OSI at $2 per share and $1,000 unsecured debt obligations of the company offered at par payable ten years from the date of issuance, bearing interest at eight per cent per an-num.

Contra to appellant’s assertions, the board of directors’ resolution expresses their concern for the stockholders’ preemptive rights:

With respect to the preemptive rights of persons claiming to be stockholders of the Company as to whom the number of shares owned or the ownership of stock is in dispute, each person claiming such ownership may tender to the Company c/o its counsel a subscription (in form satisfactory to counsel for the Company), together with payment, and the question of the number of shares owned and the ownership of stock of the Company for purpose of exercising preemptive rights shall be resolved in the first instance by the Company’s counsel, provided, however, that any one who is dissatisfied with said counsel’s determination may submit the issue to Honorable William C. Barber, Circuit Judge in Equity, for resolution, and provided, further, that pending final resolution of the issues of the number of shares owned and the ownership, the Company’s counsel shall retain and invest the funds tendered in an escrow account. [R. at p. 187.]

Additionally, OSI’s board of directors’ action in issuing securities of the company on September 27,1979, was validly accomplished despite the board’s “holdover” status.

The Code of Ala.1975, § 10-2-130(b), provides:

An annual meeting of the stockholders shall be held at such time as may be provided in the bylaws. Failure to hold the annual meeting at the designated time shall not work a forfeiture or dissolution of the corporation.

Section 9 of OSI’s bylaws provides:

[E]ach director shall be elected to serve until his successor shall be elected and shall qualify.

Fletcher in Private Corporations § 344 provides:

Directors, trustees, or other officers of a corporation, elected or appointed for a certain time, hold over after the expiration of their term until their successors are elected or appointed. .

It is well established that:

This right [preemptive right] is subject to all reasonable conditions imposed by the Corporation’s Board of Directors. It must be exercised promptly. No stockholder can be compelled to take additional shares; and no stockholder is entitled to any additional shares except upon payment of the full purchase price fixed by the Corporation in its offer to him.

People v. Graves, 265 App.Div. 94, 37 N.Y. S.2d 900, aff’d, 290 N.Y. 785, 50 N.E.2d 108 (1942).

Under the exigent circumstances, the notice to appellant Ingram (September 24 notice and sale on October 1) was adequate. See Coleman v. LaSalle Creosoting Co., 129 So.2d 311 (La.App.1961) (sustained sale on seven days’ notice).

IV. APPELLANT’S ORAL CONTRACT AND RIGHT TO A JURY TRIAL

Article I, Section 11 of the Constitution of Alabama of 1901, provides for a jury trial only in those classes of cases in which a right existed at common law. Tillery v. Commercial Nat. Bank of Anniston, 241 Ala. 653, 4 So.2d 125 (1941).

Rule 39(a) of the Alabama Rules of Civil Procedure states:

When trial by jury has been demanded as provided in Rule 38, the action shall be designated upon the docket as a jury action. The trial of all issues so demanded shall be by jury, unless . . . (2) the court upon motion or of its own initiative finds that a right of trial by jury of some or all of those issues does not exist under the Constitution or statutes of this state.

The court below has granted only equitable relief, enjoining Ingram from performing certain acts detrimental to OSI and ordering specific performance of a contract by ordering the assignment of certain stock certificates to the plaintiff Rogers. Additionally, it authorized the sale of OSI securities and ordered an accounting.

In defendant Ingram’s Motion to Strike, he requested a “jury trial of the legal issues remaining in the Complaint after striking such allegations which are immaterial, impertinent or scandalous.”

Appellant’s request for a jury trial in his Motion to Strike does not preclude the waiver of that request. In Elwood-Gladden Drainage Dist. of Doniphan County v. Ramsel, 206 Kan. 75, 476 P.2d 696 (1970), the Kansas Supreme Court held that appellant had waived his previous demand for trial by jury. The Court said:

The general rule is that the waiver may be by any conduct or acquiescence inconsistent with an intention to insist on a jury trial. 24 Cyc. 154. The plaintiffs are presumed to have known their rights, and having failed to assert them at the proper time they cannot be heard to do so now.

476 P.2d 700, quoting Cunningham v. City of Iola, 86 Kan. 86, 199 P. 317 (1911).

Counsel for appellant Ingram did not object to the absence of a jury during the trial of this case and should not be permitted to re-try the case simply because he is dissatisfied with the result reached by the trial judge.

The evidence is undisputed that appellant’s oral contract with appellee Rogers for the sale of OSI stock was never reduced to writing. Under § 7-8-319, Code of Ala. 1975, an oral agreement for the sale of stock is frequently unenforceable. That section reads:

A contract for the sale of securities is not enforceable by way of action or defense unless:
(a) There is some writing signed by the party against whom enforcement is sought or by his authorized agent or broker sufficient to indicate that a contract has been made for sale of a stated quantity of described securities at a defined or stated price; or
(b) Delivery of the security has been accepted or payment has been made but the contract is enforceable under this provision only to the extent of such delivery or payment; or
(c) Within a reasonable time a writing in confirmation of the sale or purchase and sufficient against the sender under paragraph (a) has been received by the party against whom enforcement is sought and he has failed to send written objection to its contents within 10 days after its receipt; or
(d) The party against whom enforcement is sought admits in his pleading, testimony or otherwise in court that a contract was made for sale of a stated quantity of described securities at a defined or stated price.

The trial court in its opinion rejected the application of the above-quoted section in the following portion of its decree:

Rogers fully performed his agreement with Ingram. Rogers borrowed $200,000 from BTNB and paid the $200,000 demand note held by Metro Bank on the same day or the day following Ingram’s promise to give Rogers an additional 10% of the issued and outstanding stock of OSI. Rogers’s performance took the agreement out of the Statute of Frauds. [R. at p. 228.]

See Code of Ala.1975, § 7-8-319(b); Endsley v. Darring, 249 Ala. 381, 31 So.2d 317 (1947).

We agree with the trial court that Rogers’s full performance of his oral agreement with appellant took that contract out of the Statute of Frauds and was, accordingly, enforceable against Ingram.

V. OMELET SHOPPE’S INJUNCTIVE RELIEF AGAINST INGRAM

Appellant finally argues that the in-junctive relief granted in favor of Omelet Shoppe against Ingram in the trial court’s order of November 1, 1979, was improper due to Omelet Shoppe’s position as a party defendant and its not being derivatively represented in Rogers’s complaint. Again we disagree. The appellant cites no authority to support its charge, and we have found none. As a director of Omelet Shoppe, Inc., Ingram owed the corporation a fiduciary duty. See Johnston v. Livingston Nursing Home, Inc., 282 Ala. 309, 211 So.2d 151 (1968). The record is replete with evidence that Ingram breached this duty to both plaintiff Rogers and the corporation. We hold that the trial court’s action in granting the temporary restraining order was not improper and cannot say that the permanent injunctive relief afforded Omelet Shoppe against Ingram was not within the bounds of propriety.

Both Rogers and OSI requested that the trial court enjoin Ingram from further actions detrimental to the corporation. Plaintiff Rogers also asked that the trial court “grant the plaintiff such other, further and different, general relief to which he may be entitled, the premises considered.” This Court, in Baldwin v. McClendon, 292 Ala. 43, 288 So.2d 761 (1974), stated:

Under a prayer for general relief, a court of equity has power to mold its relief to meet the equities developed in the trial, Winslett v. Rice, 272 Ala. 25, 128 So.2d 94; Coleman v. Estes, 281 Ala. 234, 201 So.2d 391, that are consistent with the allegations of the bill. Owen v. Montgomery, 230 Ala. 574, 161 So. 816; Cox v. Cox, 267 Ala. 372, 102 So.2d 23. Where a court of equity assumes jurisdiction for injunctive relief, it will retain the bill for all purposes necessary to a complete determination and settlement of the matters involved, though they be purely of a legal nature. May v. Lowery, 214 Ala. 230, 107 So. 67.

288 So.2d 761, at 766.

We agree that the facts pleaded in plaintiff Rogers’s Complaint and Supplemental Complaint, joined by defendant OSI and proved at trial, warranted the accounting heretofore mentioned against Ingram.

Rule 54(c) of the Alabama Rules of Civil Procedure expressly afforded the trial court authority to grant such an accounting in favor of OSI. That rule states in part:

[E]very final judgment shall grant the relief to which the party in whose favor it is rendered is entitled, even if the party has not demanded such relief in his pleadings. {Emphasis added.]

The accounting was not a separate action for which Ingram was entitled to separate notice but simply “incidental to the principal equity of the bill.” May v. Lowery, 214 Ala. 230, 107 So. 67 (1925); Trammell v. Craddock, 100 Ala. 266, 13 So. 911 (1893). No special notice or cross-bill by OSI was required.

Likewise, defendant Ingram was denied no constitutional right by the court’s action in granting the accounting.

VII. ROGERS’S RIGHT TO THE OSI STOCK PROMISED BY INGRAM

The trial court found that plaintiff Rogers was entitled to be declared the owner of 2,227.1 shares of OSI stock promised to him by defendant Ingram in consideration of Rogers’s advancing OSI $200,000.

In Kubiszyn v. Bradley, 292 Ala. 570, 298 So.2d 9 (1974), this Court held that:

[0]ur oft-stated rule of review is that when the trial court has heard the evidence orally, its decree is favored with a presumption of correctness, which will not be disturbed on appeal unless plainly erroneous or manifestly unjust.

298 So.2d 9, at 14.

It is well settled that specific performance is appropriate to enforce a contract to sell stock in a corporation. Madison Limestone Co. v. McDonald, 264 Ala. 295, 87 So.2d 539 (1956); Boozer v. Blake, 245 Ala. 389, 17 So.2d 152 (1944).

A trial court’s determination to grant specific performance should be upheld unless “palpably erroneous.” Wray v. Harris, 350 So.2d 409 (Ala.1977).

The trial court in this action cannot be said to have abused its discretion in ordering specific performance.

We have carefully considered other arguments advanced for reversal, and find none which compel that result.

AFFIRMED.

MADDOX, JONES, ALMON, SHORES and EMBRY, JJ., concur.

TORBERT, C. J., and FAULKNER and BEATTY, JJ., dissent.

BEATTY, Justice

(dissenting):

The majority contends that venue was properly established in Jefferson County. I cannot agree. I would hold that Shelby County, not Jefferson County, is the proper place of venue. Since I believe the disposi-tive issue should have been the issue of improper venue, I will not address the substantive issues raised by the parties.

Rogers contends that by looking solely at Ingram as defendant, Jefferson County is the proper place of venue since the acts complained of against Ingram occurred in that county. Rogers relies on the part of Rule 82(b)(1)(A), ARCP, which provides that “if the action is a personal action other than an action on a contract, it may be brought ... in the county where the act or omission complained of occurred

The majority defined this claim as a “personal action.” Assuming' arguendo that Rogers had pleaded a “personal action” in some aspect, nevertheless Rule 82(b)(1)(A) expressly excepts from its permissive terms “an action on a contract . . . .” Here Rogers sought specific performance between himself and Ingram. That at least removes this case from the liberal venue provisions of Rule 82(b)(1)(A) and requires the suit to be held in the county of Ingram’s residence, i. e., Shelby.

Since OSI, the corporate defendant, was doing business in Jefferson County at the commencement of this action, Rogers contends that venue was proper against OSI in Jefferson County.

It is clear that when venue is proper in two or more counties, the plaintiff has the election to choose the county in which to proceed. Medical Service Admin. v. Dickerson, Ala., 362 So.2d 906, 909 (1978). Ingram contends, however, that venue is proper in only one county, Shelby, because Rogers did not state any claim or seek any relief against OSI; and therefore, the resident county of OSI should not control the place of venue.

Careful examination of the relief prayed for by Rogers against OSI is necessary to determine whether an actual controversy exists between those two parties. Paragraph 9 of the prayer for relief of the original complaint states:

9. Authorizing the plaintiff to make such loan to the defendant OSI as may be necessary to enable it to carry on and conduct its business, the plaintiff offering to lend to the said corporation a reasonable amount of such money immediately with only such security as OSI can give; granting and authorizing OSI to borrow such money from the plaintiff and giving the plaintiff such security interest in and to its assets as it may be able to give, subject to valid and existing liens thereon and pledges thereof, the plaintiff offering so to do for no consideration other than a rate of interest no greater than OSI would be charged by a bank if such a loan were obtainable from a bank.

It is clear that Rogers’s request for judicial approval of future loans from Rogers to OSI states no case or controversy. Paragraph 11 of the prayer for relief states:

11.Grant the plaintiff such other different, general and interim equitable relief to which the plaintiff may be entitled or the Court may deem appropriate in the premises.

This prayer for general relief is not sufficient to justify the conclusion that Rogers sought any affirmative relief from OSI.

If Rogers had filed his complaint solely against OSI as defendant on the basis of the quoted allegations in paragraphs 9 and 11, the trial court, upon motion by OSI under Rule 12(b)(6), ARCP, would have been obliged to dismiss the action for failure to state a claim upon which relief could be granted. Paragraph 9 expresses no adversary position. Paragraph 11, at best, expresses some hypothetical or future controversy. Allegations which merely show that the plaintiff anticipates a particular controversy are insufficient to invite a judicial declaration of rights. Smith v. Alabama Dry Dock & Shipbuilding Co., 293 Ala. 644, 651, 309 So.2d 424, 429 (1975).

In Rogers’s supplemental complaint he prays that the court:

12. Issue a declaratory judgment, declaring and adjudging that the Notes, Deeds of Trust, Security Agreements, and Pledges of Stock, executed by Omelet Shoppe, Inc., and by R. R. & P. Restaurant Equipment Sales, Inc., together with financing statements executed on behalf of Omelet Shoppe, Inc., and its subsidiary, R. R. & P. Restaurant Equipment Sales, Inc., are valid and binding obligations of Omelet Shoppe, Inc.
13. Declar[e] and adjudg[e] that the acts of management and the Board of Directors of Omelet Shoppe, Inc. since the filing of this action are valid.

Significantly, the basis for the above prayer for relief comes from paragraph 33 of Rogers’s supplemental complaint in which he claims that:

33. There is an actual and justiciable controversy between the parties, in that the Plaintiff Rogers contends that the Notes, Deeds of Trust, Security Agreements, and other documents executed by Omelet Shoppe, Inc. and its subsidiary, R. R. & P. Restaurant Equipment Sales, Inc., which were approved by Thomas C. Najjar, attorney for Omelet Shoppe, Inc., are valid, but the Defendant Ingram apparently contends that such Security Agreements are not valid, notwithstanding the fact that they were made pursuant to this Court’s Order. [Emphasis added.]

If there is a justiciable controversy over the validity of the documents executed by OSI, the controversy is between Rogers and Ingram, not between Rogers and OSI, whom Rogers purported to sue.

Additional facts which establish that Rogers and OSI were not antagonistic to one another is found in the cross-claim filed by OSI against Ingram in which OSI adopted all but one of the allegations asserted by Rogers against Ingram. The allegation which OSI did not adopt concerned the contract claim between Rogers and Ingram. Obviously, OSI had no interest in that claim and, hence, did not adopt it. Furthermore, OSI joined with Rogers in asking the trial judge for a contempt charge against Ingram for his alleged disobedience of the temporary restraining order. Thus, OSI appears to be united with Rogers, the president of OSI, rather than opposed to him.

Notwithstanding the lack of adversariness between Rogers and OSI, if Rogers had sued derivatively, OSI would be properly named as a defendant. American Life Ins. Co. v. Powell, 262 Ala. 560, 80 So.2d 487 (1955) (corporation is properly made defendant in stockholder’s derivative action). It is not disputed, however, that Rogers did not meet the requirements for filing a derivative action. See Rule 23.1, ARCP.

The obvious conclusion is that Rogers did not state a valid-claim against nor seek any relief from OSI. The right to proceed against OSI and Ingram in the resident county of OSI (Jefferson) is contingent upon the premise that:

Where there are several defendants and the residence of one is made determinative of the venue of the action, the complaint must state a cause of action against the said defendant; it must show that the resident defendant has an interest antagonistic to the plaintiff and the resident defendant must be a party against whom relief is sought. Ex parte Morton, 261 Ala. 581, 75 So.2d 500. The resident defendant must be a real and bona fide defendant whose interest in the result of the action is adverse to that of the plaintiff with respect to the cause of action against the other defendant. 56 Am.Jur., Venue, § 30; 92 C.J.S. Venue § 96. [Copeland v. Loeb, 269 Ala. 295, 297, 112 So.2d 475, 477 (1959).]

Thus, a defendant cannot control venue when he has no interest antagonistic to that of the plaintiff. Alabama Youth Serv. Bd. v. Ellis, Ala., 350 So.2d 405 (1977). This rule is necessary to prevent plaintiffs from joining parties as defendants for the sole purpose of defeating transfer of venue. But since OSI had no interest antagonistic to Rogers, venue cannot be controlled by OSI’s presence in Jefferson County.

Ingram’s defense of improper venue was timely raised in his answer (responsive pleading). See Rule 12(b), ARCP. Rogers contends, however, that Ingram waived the defense by (1) failing to present the defense to the court at any time subsequent to his responsive pleading, and (2) filing a counterclaim and cross-claim against residents of Jefferson County. These contentions are not persuasive because Rule 12(h), ARCP states that the defense of improper venue is waived only if neither made by motion under Rule 12 nor included in a responsive pleading.

Rogers still contends, however, that Jones v. Girard Bank, 255 Ala. 51, 50 So.2d 1 (1951), a case pre-dating adoption of the Alabama Rules of Civil Procedure in 1973, stands for the proposition that filing a counterclaim waives the defense of improper venue. That argument is untenable. After raising an objection to venue, the defendants in Jones initiated a separate action against the plaintiff in the same county. Upon consolidation of the two cases, the defendants consented to drop their earlier objection to venue. When defendants raised that defense on appeal, the court held the defense waived. The rationale of Jones simply does not apply to the case at bar. Ingram did not file a separate action nor in any manner drop his defense of improper venue.

The burden of proving that venue is improper in a county in which suit is filed is upon the party making such a claim. Medical Service Admin. v. Dickerson, Ala., 362 So.2d 906, 909 (1978). Defendant Ingram met that burden. The venue of this action should lie in Shelby County instead of Jefferson County. For this reason I must respectfully dissent.

TORBERT, C. J., and FAULKNER, J., concur.


author: PER CURIAM.

text:
    Wayne SMITH v. Roy W. GRANGER, Jr., et al.
    79-637.
    Supreme Court of Alabama.
    Sept. 12, 1980.
    Richard H. Gill of Hobbs, Copeland, Franco & Screws, Montgomery, for appellant.
    Tom Radney of Radney & Morris, Alexander City, for appellees.
   PER CURIAM.

From sometime in 1970 until the latter part of 1976, the plaintiff, Wayne Smith, and the defendant, Roy Granger, had a number of business ventures together. Smith, Granger, and William Carr also were involved in the purchase and development of a parcel of real estate located in Elmore County, which purchase was made in 1970. The down payment on this property was supplied by a loan from a bank, and it is not disputed that the three men were partners in the acquisition of this property.

So far as the record before us discloses, Carr was interested only in this one venture. Smith and Granger, on the other hand, had a number of different business ventures in which Carr was not interested. Additionally, Smith and Granger were engaged in the buying and selling of property individually and not as partners throughout this period. In 1976, Granger informed Smith that he was dissatisfied with the arrangement between them and suggested that their business relationships be severed. There is no question that a business venture between the two of them, known as Gran-ger and Smith Oil Company, which was engaged in the business of buying and selling petroleum products, and another known as Castaway Island Beach Resort and Marina, was terminated in 1976. The dispute between these two concerns the question of whether or not the relationship between Smith and Granger in the development of the property, the subject of this suit, known as the Council Rock Property, was also terminated at that time. Granger takes the position that all business relationships between Smith and himself were terminated in 1976, and that Smith was paid some $25,000 in the process, and that Granger and Carr then became the sole owners of what property remained unsold from the Council Rock venture.

The suit was filed by Wayne Smith seeking to have the court declare that he and Granger and Carr each owned an undivided one-third interest in the Council Rock Property and he further sought to have the lands partitioned between them or sold for division on that basis. Carr and Granger denied that Smith owned any interest in the property and contended that the 1976 settlement of the relationship between Smith and Granger settled all interests that he had in the property.

Smith conceded that there was considerable commingling of funds and commingling of assets between Castaway and Granger and Smith Oil Company. He denied that there was ever any commingling of funds between those two businesses and Council Rock. Smith testified that at the time of the discussions with respect to the dissolution of business relations between him and Granger, he was told by Granger, “I will continue to give you your interest in Council Rock if you and Travis will give me a ten-year lease for my oil business on Castaway.” Smith testified that “I told him that I would give him one” (that is, a ten-year lease), but that he later was unable to do so. He also testified that Granger said at the time of the dissolution discussions in 1976 that the dissolution ended everything between them including Council Rock.

The case was tried to a jury, and the following specific interrogatory was answered in the affirmative:

Did the dissolution of the various business ventures between Wayne Smith and Roy Granger on November 1,1976, terminate the claims that each had against the other?
YES X
NO _

Thereafter, the trial court entered a judgment in favor of Granger on this verdict, and Smith appeals. We affirm.

Although on appeal Smith asserts a number of issues for review, we are convinced that none compels reversal. We have carefully read the record in the case and, although we agree with the appellant that under Starr v. Starr, 293 Ala. 204, 301 So.2d 78 (1974), a party is permitted to testify as to his intent, we cannot agree with him that the trial court excluded such testimony. To the contrary, the record discloses that Smith was permitted freely to testify with respect to what his perception of the negotiations with respect to settlement of the dispute between him and Gran-ger was, as was Granger. We also agree with the appellant that under the facts here, which are undisputed, the property involved was partnership property, each partner owning a one-third undivided interest therein, notwithstanding the fact that legal title to the property was taken in Granger’s name. However, we think the record fully supports the jury’s finding that Smith relinquished any interest which he claimed in the property involved in the course of settling all of his business dealings with Granger in 1976. In fact, the record shows that during the course of all of their business ventures, Granger contributed over $100,000 of his money to the several ventures, while Smith contributed less than $10,000. This fact is not disputed and, as noted by the appellant, despite the overall length of the record, 551 pages, there are few areas of dispute as to material facts. Moreover, we are unpersuaded that the Statute of Frauds was violated. There was no question that adequate consideration passed to Smith, and Granger was in possession of the property. Thus, the statute is complied with. Section 8-9-2(5), Code of Ala. 1975.

The jury resolved the disputed facts favorably to the position taken by Granger. Because there is evidence from which the jury could do so, we are compelled to affirm the judgment entered on the jury verdict.

We have carefully reviewed all of the issues argued by the appellant for reversal and find none which requires reversal.

The judgment appealed from is affirmed.

AFFIRMED.

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


author: TYSON, Judge.

text:
    William Allen REID v. STATE.
    6 Div. 818.
    Court of Criminal Appeals of Alabama.
    Oct. 16, 1979.
    Rehearing Denied Nov. 20, 1979.

      S. Palmer Keith, Jr. and P. Wayne Keith, Keith, Keith & Keith, Birmingham, for appellant.
    Charles A. Graddick, Atty. Gen., and Mary Jane LeCroy, Asst. Atty. Gen., for the State, appellee.
   TYSON, Judge.

The appellant was convicted for the robbery of a drug store and punishment' was fixed by the jury at ten years in the state penitentiary. This appeal concerns the legality of a warrantless search of appellant’s tool box on his pickup truck. Incriminating evidence was seized during the warrantless search and was introduced by the state over objection. We hold that the search was illegal within the parameters of the Fourth Amendment protection and that appellant’s cause must be reversed and remanded for a new trial.

Larry Frank Doss, the state’s first witness, testified that he was the owner of Doss Drugs in Morris, Alabama, and that at approximately 10:45 a. m. on April 1, 1976, the appellant came into his store and walked directly to the prescription counter. “He pulled back his jacket and took out a weapon and told me it was a holdup.” A second individual then came in the drug store and walked over to the cash register where Mr. Doss’ wife was standing. He, too, had a weapon.

The appellant then told Mr. Doss he wanted the narcotics, that “if I tried to set off any alarms or make any quick moves that I could be shot.” Mr. Doss stated that he got the drugs for him, “some 50 milligram seconal capsules, some mepergan for-tis capsules, some qualude tablets, some phenobarbital injections and some phener-gan injection.” These drugs were placed in a cardboard box and carried out along with approximately two hundred dollars cash from the cash register. After the narcotics and cash were taken, Mr. and Mrs. Doss were instructed to lie on the floor and not get up until the robbers were gone.

Mr. Doss testified that as he heard the car pull away he went to .the door and tried to get a license number, but that the car was too far away. He did observe that the car was “gold or copper colored” and had what appeared to be a “leopard skin vinyl roof.” Mr. Doss had seen the same automobile in front of the store immediately before the appellant entered the store. The get away car was headed in a southerly direction toward the point where Old Highway 31 intersects new Highway 31. Mr. Doss stated that he then called the Morris Police Department. The Kimberly Police arrived within five minutes, followed by the Morris Police and Jefferson County Sheriff’s Department. Mr. Doss gave a description of the two robbers to the police.

Without question, the eyewitness testimony of Mr. Doss alone would have been sufficient to support the appellant’s conviction for robbery. See Williams v. State, 367 So.2d 990 (Ala.Cr.App.); Arnold v. State, 348 So.2d 1092 (Ala.Cr.App.), cert. denied, 348 So.2d 1097 (Ala.1977). Each element necessary to support a robbery conviction was established. Gissendanner v. State, 338 So.2d 1025 (Ala.Cr.App.), cert. denied, 338 So.2d 1028 (Ala.1976); Tarver v. State, 53 Ala.App. 661, 303 So.2d 161 (1974).

However, the state did not rest at the conclusion of Mr. Doss’ testimony, but proceeded to introduce the fruits of the robbery which the police subsequently recovered. The following evidence is pertinent to the illegal search of the appellant’s tool box on his pickup truck which resulted in the seizure of contraband taken in the robbery. It is the introduction into evidence of this contraband which mandates a reversal of this cause.

James Nash testified he was a superintendent for the Pawnee Mining and Coal Service and was working in Morris the day of the robbery. He was working on a cutoff road straight across from where old Highway 31 intersects new Highway 31. Mr. Nash had seen a “green pickup truck with a DT tag” travel the cut-off road just prior to seeing some Jefferson County Sheriff’s vehicles on the road. The truck also had a tool box on it and a CB antenna on the top of it. Mr. Nash had earlier seen the green pickup parked in a driveway along the cut-off road facing old Highway 31. The DT tag on the pickup was red and white and the tool box, which was sitting against the cab, was white. As Mr. Nash drove back down the road he noticed a “gold car” with a “checkered top” parked in the driveway where the green pickup had been. He later saw several county vehicles and police-officers at the scene of the gold car. Mr. Nash stopped and had a conversation with the officers.

Sergeant George R. Munkus of the Jefferson County Sheriff’s Department testified that on April 1, 1976, he received a radio broadcast concerning a robbery at Doss Drugs in Morris. He was working in the detective division, plain clothes, in the Center Point area. Sergeant Munkus stated that he proceeded toward Morris looking for a “copper or brown Cougar automobile”, but received a radio description while in transit of a “green Ford pickup with red and white license plates with the letters DT.” Sergeant Munkus testified that he turned around and subsequently located the pickup truck at approximately 11:30 a. m. in front of apartment 119-F, Center Crest Apartments in Center Point. He just had “a hunch” that appellant would be “staying in that area.” Sergeant Munkus placed the vehicle under surveillance and called headquarters for backup units.

Sergeant Munkus testified, on voir dire and during his examination in chief, that from his surveillance position he observed three subjects, including the appellant, come out of apartment 119-F and one of the subjects move a ’57 Chevrolet station wagon across the parking lot. The three subjects returned to the apartment and approximately three minutes later came out together a second time. This time one of the subjects proceeded to leave the apartment in the ’57 station wagon. Sergeant Munkus next saw the appellant place “something” in the tool box of the green pickup truck. The appellant and the other subject then proceeded to leave in a pink Thunder bird. As the two vehicles left the apartment parking lot, “I radioed the patrol unit to stop these people and question them and bring them back around to the apartment.”

Officer David Webster of the Jefferson County Sheriff’s Department testified on voir dire that five to seven patrol cars had formed a blockade near the exit to the Center Crest Apartments and that approximately ten deputies were there when the three subjects were stopped as they were leaving.

Sergeant Munkus admitted that the three subjects were “in the custody” of the deputies when they were brought back around to the apartment, that the focus of investigation had “centered in on them.” “I went over there and identified myself and told them I was investigating a robbery of a drug store and asked for identification.” The three subjects were identified as the appellant, and Jimmy and Joseph Carlisle.

“Q What happened at that point?
“A I asked who owned the truck and Mr. Reid said he did. Green Ford pickup.”
******
“Q Did you ask Mr. Reid any other questions?
“A I asked him what he had placed in the tool box.
“Q What was his reply?
“A He said he had placed a box in the tool box.
“Q What happened at that point?
“A I said, ‘what was in the box?’, and he did not reply.
“Q Didn’t say anything?
“A Did not.”

The tool box was then unlocked. The evidence is controverted as to who actually unlocked the tool box, Sergeant Munkus or the appellant; however, Sergeant Munkus admitted that he raised the lid on the tool box.

“Q Was anyone there at the scene besides yourself, Allen Reid, Jimmy and Joseph Carlisle when you opened that box?
“A Sergeant Butler was there I know. There were numerous deputy sheriffs there.”
******
“Q What happened at that point?
“A I looked in the tool box and observed a brown bottle, appeared to have assorted tablets and pills in it, and also a brown cardboard box.
“Q What happened then?
“A I advised the subjects they were under arrest for investigation for robbery.”
******
“Q You actually arrested them for robbery then?
“A Investigation and charge of robbery and placed them under arrest, gave them their rights and handcuffed them at that time.
“Q So, you made an arrest incident to a search, is that correct?
“A After the search, yes, sir.”

We find it unnecessary to recite further facts regarding the search of appellant’s tool box. Suffice it to say that no warrant was obtained for this search, and, that the cardboard box containing the bottle of pills and tablets taken from Doss Drugs, state’s exhibit 1, was subsequently admitted over objection.

At trial, during the hearing on the motion to suppress the illegally seized evidence, the state argued that the appellant gave the officers “implied consent” to conduct the search. On appeal the state, in addition, argues there were exigent circumstances, viz; the inherent mobility of the appellant’s truck, which justified the warrantless search. Under the facts and circumstances of this case we hold that these arguments are not valid.

I

Warrantless searches are per se unreasonable under the Fourth and Fourteenth Amendments subject to only a few “specifically established and well-delineated exceptions.” Katz v. United States, 389 U.S. 347, 357, 88 S.Ct. 507, 514, 19 L.Ed.2d 576, 585 (1967); Herriott v. State, 337 So.2d 165, 168 (Ala.Cr.App.) cert. denied, 337 So.2d 171 (Ala.1976).

Mr. Justice Blood worth of our Supreme Court in the often cited opinion of Daniels v. State, 290 Ala. 316, 276 So.2d 441 (1973), enumerates the exceptions to the warrant requirement in the following language:

“Notwithstanding the United States Supreme Court’s assertion that its cases on the subject of the extent of a search which may be made without a warrant following a lawful arrest ‘cannot be satisfactorily reconciled,’ it now seems to be fairly well established that there are at least six exceptions under which warrant-less searches have been held valid, viz:
“(1) In ‘plain view,’ see Coolidge v. New Hampshire, 403 U.S. 443, 91 S.Ct. 2022, 29 L.Ed.2d 564 (1971);
“(2) With ‘consent’ voluntarily, intelligently and knowingly given, see Bumper v. North Carolina, 391 U.S. 543, 88 S.Ct. 1788, 20 L.Ed.2d 797 (1968) and Johnson v. Zerbst, 304 U.S. 458, 58 S.Ct. 1019, 82 L.Ed. 1461 (1938);
“(3) As ‘incident to a lawful arrest,’ see Abel v. United States, 362 U.S. 217, 80 S.Ct. 683, 4 L.Ed.2d 668 (1960); Draper v. United States, 358 U.S. 307, 79 S.Ct. 329, 3 L.Ed.2d 327 (1959);
“(4) In ‘hot pursuit’ or ‘emergency’ situations, see Warden v. Hayden, 387 U.S. 294, 87 S.Ct. 1642, 18 L.Ed.2d 782 (1967); Johnson v. United States, 333 U.S. 10, 68 S.Ct. 367, 92 L.Ed. 436 (1947); State v. Sutton, (Mo.1970) 454 S.W.2d 481;
“(5) Where ‘exigent circumstances’ exist coincidental with ‘probable cause’ (as in the case of movables), see Chambers v. Maroney, 399 U.S. 42, 90 S.Ct. 1975, 26 L.Ed.2d 419 (1970); and,
“(6) In ‘stop and frisk’ situations, see Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968).”

To this list we would add a seventh exception, the inventory search situation, see South Dakota v. Opperman, 428 U.S. 364, 96 S.Ct. 3092, 49 L.Ed.2d 1000 (1976).

This court in Gass v. State, 372 So.2d 904, 907 (Ala.Cr.App.1979) and in Herriott, supra, passed upon the issue of a consent search by pointing out the following:

“In discussing the question of whether or not consent was voluntarily given, the Supreme Court of the United States, in Schneckloth v. Bustamonte, 412 U.S. 218, 93 S.Ct. 2041, 36 L.Ed.2d 854, stated: “ ‘... Rather it is only by analyzing all the circumstances of an individual consent that it can be ascertained whether in fact it was voluntary or coerced. It is this careful sifting of the unique facts and circumstances of each case that is evidenced in our prior decisions involving consent searches.’
“In evaluating the circumstances surrounding the acquiescence to lawful authority, involved in a consent case, Judge Moylan of the Maryland Court of Special Appeals used the following language in Whitman v. State, 25 Md.App. 428, 336 A.2d 515: “ ‘... The lesson articulated by Bumper and Schneckloth in the area of search consents is that the individual subjected to the search may indeed be submitting rather than consenting, even in an atmosphere of relative cordiality because of the presence of psychological forces as potent and effectual in achieving a “consent” as the traditional techniques and familiar instruments of physical “persuasion.” We must, we find, be guided by the holding in Bumper that a consent which is actually simple acquiescence to lawful authority is not voluntary and, when the defendant is in custody, by the concern expressed in Schneckloth that “in examining all the surrounding circumstances to determine if in fact the consent to search was coerced, account must be taken of subtly coercive police questions, as well as the possibly vulnerable subjective state of the person who consents.”
“ ‘While each case must rest for decision upon its own facts and the “totality of the circumstances,” an arrest without probable cause followed by custodial prodding for the arrestee’s consent to a search, combined with police representations that the issuance of a warrant will be practically áutomatic-these are circumstances calculated only to persuade the individual that insistence upon Fourth Amendment guarantees will secure for him merely a delay of the inevitable search rather than the protection against unreasonable search and seizure to which he is constitutionally entitled....'"

Mere submission to police authority will not suffice. Bumper v. North Carolina, 391 U.S. 543, 88 S.Ct. 1788, 20 L.Ed.2d 797 (1968); Gass, supra. Furthermore, consent to an otherwise illegal search must be clearly, unequivocally and convincingly proven. Lietz v. State, 291 Ala. 133, 279 So.2d 116 (1973). This burden rests on the prosecution. United States v. Smith, 543 F.2d 1141 (5th Cir. 1976). Moreover, the law will not presume a waiver of a constitutional right from a silent record. Courts indulge every presumption against the waiver by an accused of his constitutional right against unreasonable searches and seizures. Adair v. State, 53 Ala.App. 251, 298 So.2d 671 (1974). The state must prove that consent to search was evidenced by a statement or some overt act sufficient to indicate an intent to waive the constitutional right, and must prove that there was no duress or coercion, express or implied. Hardy v. State, 53 Ala.App. 75, 297 So.2d 399 (1974).

In considering the circumstances of the search of appellant’s tool box, we can find no evidence that he consented to the search in any manner. The facts do not support the state’s contention. Nothing more than submission to police authority is indicated. We hold that the state failed completely to meet its burden of proof in establishing a consent search.

We next consider whether exigent circumstances existed which could have justified the warrantless search. We hold there were none. Prior cases have tended to limit application of the exigent circumstances exception to situations which involve movables, Chambers v. Maroney, 399 U.S. 42, 90 S.Ct. 1975, 26 L.Ed.2d 419 (1970), and situations where the destruction of evidence is imminent if the search is not conducted immediately, Schmerber v. California, 384 U.S. 757, 86 S.Ct. 1826, 16 L.Ed.2d 908 (1966). See Golden v. State, 361 So.2d 1128 (Ala.Cr.App.) cert. denied, 361 So.2d 1132 (Ala.1978).

From the facts and circumstances in the instant case, it is clear that the police officers were not faced with a “now or never situation.” The contraband was safely contained in the tool box of the appellant’s truck which was under constant surveillance. The appellant was apprehended only as he was leaving the apartment complex with another individual in a pink Thunderbird. He was nowhere near his truck at that time. The appellant was escorted back to the apartment surrounded by approximately ten deputy sheriffs. He was “in custody.” In short, at the time of the search, there was no danger in the pickup truck leaving the area or of the evidence contained in the tool box being destroyed. A search warrant clearly could have been and should have been obtained before the search was conducted.

Although not raised in the state’s brief, we would also point out that the search cannot be justified as incident to a lawful arrest. Sergeant Munkus admitted that he made the arrest incident to the search. This was impermissible and not within the confines of Chimel v. California, 395 U.S. 752, 763, 89 S.Ct. 2034, 23 L.Ed.2d 685 (1969). A search cannot be made legal by what it turns up. Rudolph v. State, 371 So.2d 962 (Ala.Cr.App.) cert. denied 371 So.2d 965 (Ala.1979).

We have considered the other exceptions to the warrant requirement and have found them inapplicable. We need not consider the sufficiency of the search warrant which was later obtained for the search of apartment 119-F as the contraband which was seized from appellant’s tool box should have been suppressed. It cannot be said that the introduction of this evidence was harmless to appellant’s cause or that his right to a fair trial was not prejudiced thereby. The emphasis placed by the state on the introduction of the illegally seized evidence was great. We know not what effect this had on the jury. Because of the several deficiencies, as herein pointed out, we have no alternative but to reverse and remand this cause for a new trial.

REVERSED AND REMANDED.

All the Judges concur.