text:
    Jackie L. GARDNER v. PEPPER TREE APARTMENTS; Pepper Tree, Ltd.
    80-663.
    Supreme Court of Alabama.
    April 23, 1982.
    J. Donald Banks and Ralph Loveless, Mobile, for appellant.
    Carl Robert Gottlieb, Jr., Mobile, for ap-pellees.
   TORBERT, Chief Justice.

Jackie L. Gardner, lessee, brought this action for personal injury against Pepper Tree Apartments, and Pepper Tree, Ltd., a limited partnership d/b/a Pepper Tree Apartments. (Both are hereinafter referred to as Pepper Tree). Gardner signed a lease for Pepper Tree apartment number 398, located at 701 University Blvd., in Mobile on June 16, 1980. On July 6, 1980, 'while going down the common stairway leading from her apartment, Gardner allegedly tripped and fell when the heel of her shoe caught on an upraised portion of the second step. This fall resulted in injuries to appellant’s neck and shoulders.

Prior to Gardner’s lease, the next door tenant, Robin Grissinger, had fallen after stepping on the same step. The manager of Pepper Tree was notified of Mrs. Grissinger’s fall. A former maintenance man was also aware of problems with the stairway prior to Gardner’s fall.

Gardner, through her amended complaint, alleged negligent and wanton conduct by Pepper Tree because of its failure to correct, remove or repair the defective condition of the stairway or its failure to warn appellant of the defective condition of the stairway.

Pepper Tree moved for a summary judgment on the grounds that there was no genuine issue as to any material fact and that it was entitled to a judgment as a matter of law. The trial court granted the motion, and Gardner appeals.

Appellees submit that an exculpatory clause in the lease signed by Gardner releases appellees from liability. The pertinent clause reads as follows:

“It is further understood and agreed that neither the Lessor nor his Agent shall be liable for any damage which may occur on account of any defect in said building, or in said premises or from rain, wind or other causes. Nothing contained herein shall be construed as a warranty that said premises are fit or suitable for the use and purpose for which they are leased.”

We reverse and remand this summary judgment, relying upon our decision in Taylor v. Leedy & Co., 412 So.2d 763 (Ala.1982).

In Taylor v. Leedy & Co., we said:

“The long-established policy of this state subjects the landlord to liability for latent defects of which he knows at the time the lease is made and which he conceals from the tenant. Stallings v. Angelica Uniform Co., Ala., 388 So.2d 942 (1980); Jefferson Standard Life Ins. Co. v. Watson, 242 Ala. 181, 5 So.2d 639 (1942); Scoggins v. Atlantic & Gulf Portland Cement Co., 179 Ala. 213, 60 So. 175 (1912). The defendant in the present case is relying upon the exculpatory clause in an obvious attempt to avoid that settled policy. Exculpatory clauses, however, exonerate the landlord from liability for his own future negligence, Matthews v. Mountain Lodge Apartments, Inc., Ala., 388 So.2d 935, 937 (1980), not for concealment of a known latent defect which subsequently causes injury. Although past decisions have alluded to this distinction, we wish to make it clear now that a latent defect is an exception to the coverage of an exculpatory clause. Concealment at the time the lease is entered constitutes a (willful) act which is different from a mere negligent act. Been v. Holderfield, 275 Ala. 360, 155 So.2d 314 (1963). This exception is a separate consideration from the active/passive concept of negligence which is used to circumvent the legal effect of an exculpatory clause when the negligent act occurs after the commencement of the lease. See, e.g., Matthews v. Mountain Lodge Apartments, Inc., supra."

412 So.2d at 763.

In this ease, Gardner was injured when she fell down the steps of the common stairway leading to her apartment. There is evidence in the record of at least one previous fall on the same stairway and even the same step prior to Gardner’s leasing apartment number 398 and evidence that the manager of the apartment was told of this fall. There is also evidence that a former employee of appellees knew that the stairway was in less than adequate condition. We believe that the issues of notice and liability are questions for the factfinder. If the factfinder decides that appellees had notice of a defect and thus a duty to disclose this alleged latent defect, the exculpatory clause in this lease will not protect them from liability due to Gardner’s fall. Therefore, the granting of summary judgment in this case was inappropriate. As was stated in Fountain v. Phillips, 404 So.2d 614 (Ala.1981):

“A motion for summary judgment may be granted only when there is no genuine issue as to a material fact and the moving party is entitled to a judgment as a matter of law. Butler v. Michigan Mutual Insurance Co., [1981] 402 So.2d 949 (Ala.1981); Studdard v. South Central Bell Telephone Co., 356 So.2d 139 (Ala.1978); Whitehead v. Davison Oil Co., 352 So.2d 1339 (Ala.1977).
“The burden is thus upon the moving party to clearly show that the non-mov-ant could not recover under any discernible circumstances, Whitehead v. Davison Oil Co., 352 So.2d 1339 (Ala.1977); Browning v. Birmingham News, 348 So.2d 455 (Ala.1977); Fleming v. Alabama Farm Bureau Mutual Casualty Insurance Co., 293 Ala. 719, 310 So.2d 200 (1975), and all reasonable doubts concerning the genuine issue of material fact must be resolved against the moving party. Campbell v. Alabama Power Co., 378 So.2d 718 (Ala.1979); Donald v. City National Bank, 295 Ala. 320, 329 So.2d 92 (1976). Lovelace v. Graddick, 295 Ala. 142, 325 So.2d 137 (1975).
“This burden is substantially increased by the scintilla evidence rule. The scintilla rule requires that a summary judgment not be granted if there is a scintilla of evidence supporting the position of the non-movant. Browning v. Birmingham News, 348 So.2d 455 (Ala.1977); Folmar v. Montgomery Fair Co., 293 Ala. 686, 309 So.2d 818 (1975). A scintilla of evidence requires only a mere gleam, glimmer, spark, the least bit, or the smallest trace in support of the non-moving party to defeat a summary judgment motion. Watkins v. St. Paul Fire and Marine Insurance Co., 376 So.2d 660 (Ala.1979).”

This summary judgment is reversed and the cause remanded.

REVERSED AND REMANDED.

MADDOX, JONES, SHORES and BEAT-TY, JJ., concur.


source: Caselaw Access Project

author: TORBERT, Chief Justice.

license: Public Domain

text:
    Derek FREER v. Thomas H. POTTER, et al. UNITED STATES FIRE INSURANCE COMPANY v. Thomas H. POTTER, Paper Products Company, Inc., James A. Pinson, and Southeast Steel Company & Wire Corporation.
    80-828, 80-888.
    Supreme Court of Alabama.
    April 23, 1982.

      James H. Lackey and R. Edward Massey, Mobile, for appellant Derek Freer.
    J. F. Janecky, Mobile, for appellant United States Fire Insurance Co.
    Cooper C. Thurber and J. P. Courtney, III of Lyons, Pipes & Cook, Mobile, for appel-lees Potter and Paper Products Co., Inc.
    Frank G. Taylor of Sintz, Pike, Campbell & Duke, Mobile, for appellees Pinson and Southeast Steel Co. & Wire Corp.
   TORBERT, Chief Justice.

These are appeals from the granting of summary judgments for all defendants against plaintiffs Derek Freer and United States Fire Insurance Company (U.S. Fire) in an action arising from an automobile accident in Mobile, Alabama.

The accident occurred on April 5, 1978, when a truck driven by one of the defendants, James A. Pinson, collided with a vehicle driven by defendant Thomas H. Potter. Pinson was an employee of defendant Southeast Steel Company & Wire Corporation (Southeast Steel) and Potter was an employee of defendant Paper Products Co. Plaintiff Freer, a Florida resident, was a passenger in the car driven by Potter and was injured in the accident. Potter is an Alabama resident and Paper Products Co. is an Alabama corporation, while Pinson is a Louisiana resident and Southeast Steel is a Louisiana corporation.

On April 4, 1979, one day before the statute of limitations was to run, Freer filed complaints in the Circuit Court of Mobile County against all defendants and in the Civil District Court for Orleans Parish, Louisiana, against all defendants except Paper Products, Inc. In Louisiana, service of process was issued on that date against all defendants named in that suit. In Alabama, however, there was attached to the complaint a statement regarding service that stated:

“PLEASE SERVE DEFENDANTS
(AFTER NOTIFICATION BY PLAINTIFF’S COUNSEL).”

A note from plaintiff’s counsel filed in the clerk’s office stated:

“DEAR KATIE
“PLEASE WITHHOLD SERVICE ON THE FREER V. PORTER [sic] & PAPER PRODUCTS CASE. WE ARE ATTEMPTING TO SETTLE SAME.
“EDWARD MASSEY”

The docket sheet contained the following notation:

“SERVICE WITHHELD AT THE REQUEST OF ED MASSEY, ATTEMPTING TO SETTLE SAME (see note in file).”

On July 3, 1979, the suit in Louisiana was dismissed as against Potter for lack of jurisdiction. The suit remains pending against Pinson and Southeast Steel.

In Alabama, Paper Products Co. was not served with the summons and complaint until June 30, 1980, some two years, two months, and twenty-five days after the accident. Potter was not served until July 17, 1980, two years, three months, and twelve days after the accident. Southeast Steel was served by certified mail on May 25, 1979, and service was attempted on Pinson on June 15, 1979. Pinson’s attorney accepted service for him on February 17, 1981. On March 17, 1980, a complaint in intervention was filed by appellant U.S. Fire.

On January 30, 1981, defendants Potter and Paper Products Co. moved for the entry of a summary judgment on the authority of Ward v. Saben Appliance Co., 391 So.2d 1030 (Ala.1980). On February 5, 1981, defendants Pinson and Southeast Steel filed a motion for summary judgment, relying on the same authority. Briefs were filed, oral argument was made by all parties, and the motions for summary judgment were granted on June 19, 1981, in favor of all defendants.

On July 23, 1981, more than thirty days from the entry of the court’s order granting summary judgment, the plaintiffs filed a motion for reconsideration. This motion was denied by the court on July 31, 1981. Later that day, forty-two days after the entry of final judgment, notice of appeal was filed by Freer and on September 4, 1981, more than forty-two days after final judgment, notice of appeal was filed by U.S. Fire.

Appellants contend that our recent case of Ward v. Saben Appliance Co., 391 So.2d 1030 (Ala.1980), was an incorrect statement of the law and should be overruled. We cannot agree. In that case, this Court held that while the filing of a complaint is a significant factor in commencing an action and suspending the operation of the applicable statute of limitations, it is not the sole factor to be considered. The Court further stated:

“We hold that in the present case the action was not ‘commenced’ when it was filed with the circuit clerk because it was not filed with the bona fide intention of having it immediately served. To hold otherwise would permit a party to extend unilaterally the period of limitations by an oral request that actual service be withheld, thereby giving that party an additional period of time within which he could conduct an investigation to determine whether in fact, he had a claim. To permit this would violate the fundamental concept of repose found within every statute of limitations.”

391 So.2d at 1035. A large number of cases support that rule. Jordan v. Bosworth, 123 Ga. 879, 51 S.E. 755 (1905) (filing with note to “hold it” did not constitute commencement of the action until such instructions were withdrawn); Peterson v. Philadelphia Suburban Transportation Co., 435 Pa. 232, 255 A.2d 577 (1969) (“hold” order given to sheriff releases party from suit since there was no proper filing); Green v. Ferguson, 184 S.W.2d 790 (Mo.App.1945) (filing of suit with instructions to clerk to hold service until further notice was not the “commencement of suit”); Franz v. Radeackar, 264 S.W. 97 (Mo.App.1924) (if clerk is instructed upon filing to withhold service until further notice, action will not be treated as brought until the clerk proceeds with service); McMullen Oil and Royalty Co. v. Lyssy, 353 S.W.2d 311 (Tex.Civ.App.1962) (filing of petition does not toll statute of limitations since there must be a bona fide intent to issue process).

Plaintiff Freer argues that under ARCP Rule 3 the filing of the complaint constitutes the “commencement of the action.” While this is generally the case, such filing calls for an implied demand for immediate service. When, as here, the plaintiff intentionally interferes with this service by ordering that service be withheld, then the filing will not constitute the commencement of the action, since there is no intent to prosecute the claim at that time.

Freer also contends that if we do not overrule Ward v. Saben Appliance Co., then that case should .not apply here, because the plaintiffs filed suit in two jurisdictions and perfected service in the other jurisdiction, Louisiana. Freer contends that since Louisiana has a direct action statute so as to allow a suit to proceed directly against an insurance company, he desired to file suit in Louisiana against all parties, including the Alabama defendants. This was done prior to the expiration of the statute of limitations and service was requested and obtained on all defendants sued there. Freer states that since there was a question of whether the Louisiana court had jurisdiction over the Alabama defendant, the present suit was filed in Mobile County, Alabama, but service was withheld until a determination of jurisdiction over the Alabama defendant was made to avoid the expense of prosecuting two actions at once in two different states. Freer states that when the Louisiana suit was dismissed, service was perfected in this case. As a result, Freer alleges, it would be unfair and unjust to apply Ward v. Saben Appliance Co., since the plaintiff did not “sleep on his rights,” but attempted to comply with the statutes of limitation and the rules of procedure in both Louisiana and Alabama, and he urges this Court to hold that the statute of limitations was tolled by the attempted prosecution of the Louisiana suit. We cannot agree.

Plaintiff Freer, while attempting to convince this Court that the failure to prosecute the Alabama suit until after it was dismissed in Louisiana was to reduce expenses, fails to mention the burden and expense placed upon the defendants Pinson and Southeast Steel, who presently are being forced to defend the suit in both jurisdictions, and defendant Potter, who was caused to defend the suit in Louisiana and, after its dismissal, in Alabama. Furthermore, Potter was not notified of the suit in Alabama for over one year after the Louisiana suit was dismissed against him. Code 1975, § 6-2-30(a), states:

“(a) All civil actions must be commenced after the cause of action has accrued within the period prescribed in this article and not afterwards, unless otherwise specifically provided for in this Code.”

Code 1975, § 6-2-30(a). There is no statute in Alabama that provides for the tolling of the limitations period by the filing of a suit against an Alabama resident in another state that does not have jurisdiction over that resident. Nor is there a renewal statute allowing for the extension of the statute of limitations upon the dismissal of a suit. Thus, we cannot say that the plaintiff’s prosecution of the suit in Louisiana tolled the statute of limitations in Alabama.

Turning to the appeal by U.S. Fire, we hold that this appeal must be dismissed, since notice of appeal was not filed within forty-two days of judgment as required by ARAP, Rule 4(a). While plaintiff Freer did file a motion for reconsideration, it was not filed within thirty days of final judgment as required by ARCP, Rule 59(e). The filing of an untimely motion for reconsideration or for a new trial does not suspend the forty-two day deadline for appeal. Seale v. Seale, 339 So.2d 1028 (Ala.Civ.App.), cert. denied, 339 So.2d 1029 (Ala.1976). For this reason we need not address the issues raised by U.S. Fire on appeal.

Because of the untimely appeal by U.S. Fire, that appeal is dismissed. As to the plaintiff, Freer, we hold that Ward v. Saben Appliance Co., 391 So.2d 1030 (Ala.1980), is controlling and that the defendants were entitled to summary judgment as a matter of law. Fountain v. Phillips, 404 So.2d 614 (Ala.1981); Butler v. Michigan Mutual Insurance Co., 402 So.2d 949 (Ala.1981). Therefore, the trial court’s summary judgments in case 80-828 are affirmed and case 80 — 888 is dismissed.

AFFIRMED, case 80-828.

DISMISSED, case 80-888.

MADDOX, JONES, SHORES and BEAT-TY, JJ., concur.


author: SHORES, Justice.

text:
    Tom Henry CARTER and Gary Mac Carter v. George Gordon CARTER.
    80-843.
    Supreme Court of Alabama.
    April 23, 1982.

      Richard D. Fruechtenicht and James S. Lloyd, Birmingham, for appellants.
    F. Timothy McAbee, Birmingham, for ap-pellee.
   SHORES, Justice.

Mattie Belcher Carter owned almost an entire city block of property in downtown Birmingham. On June 30, 1972, she conveyed the property to her two sons, George Gordon Carter and Joe Ware Carter. In consideration, the two sons executed a mortgage to their mother in the amount of $69,000.00.

George and Joe Carter, as partners, operated a wooden pallet manufacturing business, known as Dobbs Manufacturing Company, on part of the property. At the time the property was conveyed by the mother to her sons, a part of it was under lease to Commercial Fabricators, Inc. The initial lease between Mattie Belcher Carter and Commercial Fabricators was for a term of five years, beginning February 1, 1971, and ending February 28, 1976, at a rental rate of $500.00 per month.

Following the execution of the original lease between Mrs. Carter and Commercial Fabricators and before she conveyed the property to her two sons, a twenty by twenty foot office building was erected by Dobbs Construction Company on the leased premises. This building was used by the lessee and was not treated as an asset by Dobbs Construction Company. It, of course, was included in the conveyance of the property to the sons of Mrs. Carter.

The original lease included a renewal option for an additional five-year term, which was exercised by Commercial Fabricators by an agreement dated July 8, 1977. This renewal agreement included three options:

“Commercial Fabricators, Inc. shall have the options of taking leases of the aforesaid premises at the expiration of the present lease [expiring February 28, 1981], as follows:
“Option No. 1
“From March 1, 1981 through February 28, 1986 for $688.00 per month.
“Option No. 2
“From March 1, 1986 through February 28, 1991 for $860.00 per month.
“Option No. 8
“From March 1, 1991 through February 28, 1996 for $1,075.00 per month.”

Prior to February 28, 1981, Commercial Fabricators exercised the first option, extending the lease period for an additional term of five years, ending February 28, 1986.

Joe Carter died intestate on August 21, 1974, leaving surviving his wife Mary and five children: Tom Henry Carter, Joyce Kay Carter, Bobby Lee Carter, Gary Mac Carter, and Brent Wade Carter. Following Joe Carter’s death, George and Joe’s heirs entered into an agreement under which George purchased the heirs’ interest in the partnership known as Dobbs Manufacturing Company. The agreement provided that Joe’s heirs would retain their respective interests in the real property which had been jointly owned by Joe and George Carter, with the understanding that George would continue to operate Dobbs Manufacturing Company on the property rent free and that Joe’s heirs would be paid their share of any rents collected through leasing any portion or all of the property. As consideration for this agreement, George Carter paid the heirs $44,998.20.

On May 18, 1979, Joe Carter’s heirs filed this action against George Carter, seeking a partition in kind or, in the alternative, sale for division of the property and jointly-held improvements. Following a trial on the merits, the trial court entered a decree partitioning the property into two parcels of substantially equal size. By this decree, Parcel A, upon which Dobbs Manufacturing Company was located and operated by George Carter, was vested in George Carter. Parcel B, which includes the parcel leased to Commercial Fabricators and the twenty by twenty foot building, was vested in Joe Carter’s heirs. The parties were ordered to each pay one-half of the monthly payment due on the mortgage due Mattie Carter. The court found that the twenty by twenty foot building had a value of $10,000 and ordered the heirs to pay $5,000 to George Carter for his interest in the building. Finally, the heirs were ordered to pay George Carter “6. . . . an amount equal to 50 percent of the net rent collected pursuant to an existing lease on a portion of Parcel ‘B’.” No appeal was taken from this decree, which was entered on December 3, 1979.

Pursuant to the terms of the final decree, the heirs of Joe Carter paid George Carter monthly an amount equal to fifty percent of the net monthly rent collected pursuant to the lease with Commercial Fabricators, Inc., from the date of the decree through the month of February, 1981. Beginning in March, 1981, the heirs refused to make further payments on the ground that the provision “an existing lease,” set forth in paragraph six of the final decree, only applied to the lease and lease period ending February 28, 1981, and had no applicability to any additional lease period beyond February 28, 1981, acquired by Commercial Fabricators, Inc., through exercise of any one of the three options set out above, which were contained in the agreement dated July 7, 1977.

As a result of the heirs’ interpretation of the phrase “an existing lease,” and their refusal to make further payments of fifty percent of the net monthly rent collected pursuant to the Commercial Fabricators, Inc., lease, George Carter filed in June, 1981, a “Petition for Clarification and Allied Relief,” requesting that the trial court resolve the dispute which had arisen between the parties with respect to the meaning of paragraph six of the final decree, and determine that the provisions of paragraph six are applicable to the present lease, as well as any future lease on that portion of Parcel “B” in question. In addition, George Carter sought payment of any past due payments.

The trial court conducted a hearing concerning the petition on July 7, 1981. Following the hearing, the trial court, on July 13, 1981, entered an order in which the court found that George Carter was entitled under paragraph six of the final decree to an amount equal to fifty percent of the net rent collected by the heirs pursuant to the existing lease with Commercial Fabricators, Inc., or any other lease (if renewed to that time by the lessee) from the date of the order through February 28, 1996. Further, the court ordered that the heirs pay to George Carter fifty percent of the net rent collected by them pursuant to the existing Commercial Fabricators, Inc., lease for the months of March, April, May, June, and July, 1981. Two of the five heirs, Tom Henry Carter and Gary Mac Carter, timely appealed the July 13, 1981, order to this Court.

We affirm.

At the time of the original trial, the evidence showed that George Carter and the heirs of Joe Carter jointly owned the real estate conveyed to them by their mother, the twenty by twenty foot building located on the property, and the rents received from the Commercial Fabricators lease of part of the property. George Carter, prior to the suit, had bought the interest of Joe’s heirs in Dobbs Manufacturing Company.

The fact that the lessee had three options to renew the lease was also before the court at the initial trial. Thus, there was abundant evidence to support the trial court’s decree ordering an equal partition of the real estate and its holding that George Carter and the heirs of Joe Carter were each entitled to one-half of the rents derived from the Commercial Fabricators lease. We are in complete accord with this holding and’ the trial court’s conclusion that this division of rents was applicable to the lease as extended by the exercise of the options contained in the agreement before it. Because the evidence and the law support the trial court’s decree of July 13, 1981, it is affirmed. Alabama Farm Bureau Mut. Cas. Ins. Co. v. Cain, 387 So.2d 195 (Ala.1980); Bryant v. Moss, 295 Ala. 339, 329 So.2d 538 (1976).

AFFIRMED.

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


author: BEATTY, Justice.

text:
    Margie A. LETSON, as Dependent Widow for Herself and Dependent Minor Child, Monty Letson v. FRAM CORPORATION.
    80-900.
    Supreme Court of Alabama.
    April 23, 1982.
    Terrell Wynn, James J. Thompson, Jr. and Carlton T. Wynn of Hare, Wynn, Ne-well & Newton, Birmingham, for appellants.
    Eugene De Marteson of Huie, Fernam-bucq & Stewart, Birmingham, for appellee.
   BEATTY, Justice.

This is an appeal by the plaintiff from a judgment entered upon a jury verdict for the defendant in this wrongful death case.

The only issue before us on appeal concerns the propriety of the learned trial court’s refusal to give a certain jury instruction requested by the plaintiff. That issue has been discussed at length in the trial court’s order which denied plaintiff’s motion for a new trial. Because our study of the issue has convinced us that Judge Marvin Cherner’s analysis is correct, we adopt that order as our opinion:

“This case has now been submitted for decision by this Court on the Motion for New Trial filed by the plaintiff, Margie A. Letson, as dependent widow for herself and dependent minor child, Monty Letson. For convenience, Mrs. Letson in her individual capacity and in her representative capacity will be referred to merely as ‘Letson.’

“As the primary ground asserted by Let-son in support of her Motion for New Trial, she argues that the Court erred to reversal in refusing to give her requested charge No. 1 which stated as follows:

“ T charge you Ladies and Gentlemen of the Jury that there is a rebuttable presumption that a person in possession of his normal faculties will follow the law of self-preservation and exercise ordinary care for his own personal protection. This presumption is rebuttable and if you are reasonably satisfied from the evidence that the plaintiff did not exercise ordinary care for his own personal protection then the presumption is annulled. I further charge you that you have a right to take this presumption into consideration in determining whether or not the deceased on the occasion complained of conducted himself as a reasonably prudent person would have under the conditions that existed.’

“Plaintiff Letson has also filed a motion pursuant to Rule 10(f) of the Alabama Rules of Appellate Procedure requesting the Court to correct the record to reflect certain statements made during a pre-charge conference held by the Court. The pre-charge conference was an informal proceeding held by the Court to discuss the oral instructions to be given by the Court to the jury so as to give counsel an opportunity to make any suggestions they might have concerning the Court’s charge and also for the purpose of informing the attorneys concerning the Court’s oral charge so that their closing arguments could be based on the instructions which the Court would give the jury. As stated by Letson, her counsel, at the pre-charge conference, requested the Court to charge the jury that there is a rebuttable presumption of evidentiary significance based on the law of self-preservation that a deceased plaintiff exercised reasonable care for his own safety, citing A. G. S. v. Evans, 288 Ala. 25, 256 So.2d 861 (1972); Griffin Lumber Co. v. Harper, 252 Ala. 93, 39 So.2d 399 (1949); ACL R R Co. v. Wetherington, 245 Ala. 313, 16 So.2d 720 (1944); L&N R R Co. v. Davis, 236 Ala. 191, 181 So. 695 (1938) and also 22 Am.Jur.2d Death §§ 215-216.

“As plaintiff Letson states in her motion, the Court indicated in its pre-charge conference that it would not charge the jury that there was a rebuttable presumption of evi-dentiary significance based on the law of self-preservation that a deceased plaintiff exercised reasonable care for his own safety-

“Furthermore, as indicated by the record, the Court allowed counsel for plaintiff Let-son to except to the Court’s oral charge after the jury retired but before it began its deliberations. The Court then indicated to counsel for plaintiff Letson that it would permit such counsel to prepare a written charge and submit the same later for purposes of protecting the record in order to make it clear to any appellate court that the charge was presented to this Court and that this Court refused the same.

“Plaintiff Letson makes claim in this case for the wrongful death of her late husband, Clyde Letson, who was killed on March 10, 1978, in the course of his employment as a utility maintenance mechanic in the First National-Southern Natural Building.

“The First National-Southern Natural Building was designed to have its own self-sufficient power system operated by gas turbines. The system provides heating and air conditioning and also generates all of the electricity needed for the building. All of the energy required for the operation of the power plant is supplied by natural gas which is piped into the building under pressure.

“On March 10, 1978, Clyde Letson had been employed in maintenance approximately 5 years. He had been instructed to check the cartridge on a filter manufactured by the defendant Fram Corporation, possibly to obtain the number of the filter so that new ones could be ordered. The particular filter was in a pipeline supplying natural gas to the gas turbines and was under a pressure of 150 psi.

“Thomas J. White, Assistant Superintendent, testified that Clyde Letson was down in a sort of trench where the Fram filter was located; that he heard a sound like a pop. White then saw that Clyde Letson had been struck in the face and was unconscious. Clyde Letson never regained consciousness and died shortly after being taken to the hospital.

“The top of the Fram filter was closed by means of a metal plate 9" in diameter attached to the filter body by means of a coupling known in the industry as a victaulic coupling. According to expert testimony presented by the defendant at trial, the victaulic coupling is a widely accepted closure for pressurized systems. One of its primary advantages is that it gives a positive seal; i.e. pressure against this type of coupling has the effect of causing it to seal more tightly and prevent the escape of the substance which is under pressure.

“White testified that shortly after the accident, he made an inspection of the pressurized line in which the Fram filter was located. He found that valves located in the line on both sides of the filter were in a closed position. He also found the bleeder valve located at the bottom of the filter to be in a closed position. He opened this valve and a small amount of liquid consisting of a mixture of water and oil ran out in his hand. It was his opinion that this indicated that the bleeder valve was not stopped up and that the liquid would have come through if the bleeder valve had been opened earlier.

“The evidence thus indicated that Clyde Letson had isolated the filter in the line by shutting the valves on both sides of the same but had neglected to bleed the line and relieve the pressure on the filter before undertaking to remove the 9" metal plate by loosening the bolt holding the same in place. Since the system was under pressure of 150 psi, the 9" plate was subjected to a total pressure in excess of 4,000 pounds. Consequently, when the bolt was loosened to a point when it no longer held the metal plate in place, the same was propelled against Letson’s face with tremendous force by the pressurized gas in the system.

“It was the theory of plaintiff’s case that the Fram filter was defective in its design and unreasonably dangerous. Plaintiff Letson contended that it was not of a design which the plaintiff denoted as ‘self-bleeding,’ meaning that the filter should have been designed with a type of closure which would have still held the metal plate in place when being opened, even though the filter had not been vented or bled to relieve the pressure before opening the same. Alternatively, plaintiff Letson contended that a pressure gauge should have been located on the top of the filter which would then have disclosed to persons opening the same that the filter was still under pressure; and finally, that the vent valve should have been located on the top of the filter where it could be easily seen rather than on the bottom of the same.

“All of these contentions were strenuously opposed by the defendant, Fram Corporation, and its experts. In addition, Fram contended that evidence concerning the circumstances of Clyde Letson’s death indicated that he had been negligent himself in failing to bleed the line and relieve the pressure before undertaking to open the filter.

“At the conclusion of the trial, this case was submitted to the jury on the claim asserted by Letson under the Alabama Extended Manufacturer’s Liability Doctrine; namely, that the filter was in a defective condition which was unreasonably dangerous to Clyde Letson as an employee of Southern Natural Gas Company in the process of inspecting the same. The jury was also instructed that Fram Corporation asserted as an affirmative defense that Clyde Letson was himself guilty of negligence which proximately caused or contributed to cause his injuries and death. The Court stated in connection with this defense:

“ ‘Now, I’m coming to what we call the affirmative defense. In addition to denying that it manufactured a defective product which proximately caused or contributed to cause the injuries and death of Clyde Letson, Fram also states — or asserts — that Clyde Letson was himself guilty of negligence which proximately caused or contributed to cause his injuries and death. Since this is an affirmative defense, the burden of proof here shifts and is on Fram to reasonably satisfy you from all of the evidence presented in the case that Clyde Letson was himself negligent in carrying out the work which he was performing on the occasion of the accident made the basis of this lawsuit, and that such negligence proximately caused or contributed to cause his injuries and death.’

“The Court further explained the term ‘negligence’ and ‘proximate cause.’ On submission of this case to the jury, a verdict was returned in favor of the defendant Fram Corporation and judgment was rendered in accordance with the jury verdict.

“In support of her argument that the Court erred to reversal in refusing to give the jury her requested written instruction regarding the presumption based on the law of self-preservation that a deceased plaintiff will exercise reasonable care for his own safety, Letson has cited a number of decisions of the Supreme Court of Alabama referring with approval to the presumption. However, it is not clear from reading any of the decisions that the trial court ever instructed the jury concerning such presumption. It does appear that the Supreme Court referred to the presumption as a means of sustaining or overturning the verdict of the jury where the circumstance under which the accident occurred was such that it was impossible to determine whether one of the causes of the accident was the negligence of a person who was then killed.

“For example, in Griffin Lumber Co. v. Harper, 252 Ala. 93, 39 So.2d 399 (1949), the deceased was a passenger in a truck containing a very heavy load of logs. Both he and the driver of the truck were killed when the truck, travelling at a great speed on a downgrade, failed to navigate a curve but went straight and hit a bridge abutment with great force.

“Reversing a verdict and judgment in favor of the representative of the deceased passenger, the Supreme Court concluded that the speed at which the truck was travelling was not alone sufficient evidence from which wantonness could be inferred. It found that there were no skid marks and thus no evidence that the brakes had ever been applied. The Supreme Court stated that there was no evidence from which a reasonable inference could be drawn that the conduct of the driver was wilful or reckless or that he was not doing what he could to avert the danger. The Court stated that brakes on the truck do fail unexpectedly at times and that steering appliances do lock unexpectedly. No one could tell in this case whether the failure of the driver was due to such cause.

“In the absence of evidence concerning the cause of the truck travelling at great speed, the Supreme Court felt warranted in applying the presumption against negligence and on that basis reversed the verdict and judgment rendered by the trial court.

“In Alabama Great Southern Railroad Co. v. Evans, 288 Ala. 25, 256 So.2d 861 (1972), claim was made on behalf of a deceased motorist who was killed when the automobile he was operating was struck by a railroad train at a public crossing in Fort Payne, Alabama. Evidence was presented that the train was travelling at a speed of approximately 70 miles per hour at the time of the collision although it was operating within the city limits of Fort Payne where the speed limit for locomotives was 30 miles per hour.

“There were no crossbucks, stop signs or flashing signals of any kind at the crossing at the time of the accident. Furthermore, evidence was presented that bushes, trees and high grass were along the tracks which obstructed the vision of a motorist looking up the track to see if a train was approaching.

“The Supreme Court concluded in view of all the circumstances shown by the evidence, the rebuttable presumption that a deceased person would exercise ordinary care for his own protection was not annulled. The Supreme Court concluded that the trial court committed no error in denying the railroad’s motion for a new trial made on the ground that the verdict of the jury was against the weight of the evidence.

“In Louisville & Nashville Railroad Co. v. Davis, 236 Ala. 191, 181 So. 695 (1938), the deceased was struck by a railroad train at or near a railroad crossing at night. His body was found lying between the rails some 18 or 27 feet south of the crossing. Affirming a judgment and verdict in favor of the deceased’s representative, the Supreme Court referred to the rebuttable presumption against negligence as follows:

“ ‘True, it has been held that, following the law of self-preservation, in the absence of any evidence or circumstance to the contrary, there is a presumption that this duty was observed. Baltimore & Potomac R. R. Co. v. Landrigan, 191 U.S. 461, 24 S.Ct. 137, 48 L.Ed. 262. This presumption, however, in each case must be considered in connection with all the facts and circumstances, as, for instance, in the present case a straight track for some distance, and the headlight burning and the noise of the train, all of which are to be weighed by the jury in determining the question of contributory negligence....’"

“In Atlantic Coastline Railroad Co. v. Wetherington, 245 Ala. 313, 16 So.2d 720 (1944), plaintiff’s intestate was killed by the explosion of the boiler of a locomotive while the decedent was operating the locomotive as an engineer. From the evidence presented, the Supreme Court found that the explosion could have been caused either by the engineer’s negligence in permitting the water in the boiler to get too low, thereby allowing the crown sheet to overheat and explode when water was added; or that defective water used in the boiler caused the chemical reaction of ‘foaming,’ which prevented the water gauge from accurately disclosing the amount of water in the boiler so that the water was allowed to be exhausted in the boiler causing the explosion when water was added. All of the other trainmen had also been killed by the explosion so there was no evidence presented justifying the finding of a cause for the explosion other than one of the two described.

“Under those circumstances, the Court applied the presumption against negligence in favor of a deceased person to affirm the verdict and judgment in favor of the plaintiff.

“In each of the above-cited cases, the Supreme Court applied the presumption against negligence to support the verdict and judgment of the Court or to reverse the verdict and judgment of the Court. There is no indication from the opinion in any of the cases that the trial court every instructed the jury regarding such presumption.

“The Supreme Court of Alabama has held that it is error for a trial court to instruct a jury concerning the establishment of a presumption where evidence has been presented to rebut the same.

“In Alabama Great Southern Railroad Co. v. Morrison, 281 Ala. 310, 202 So.2d 155 (1967), the Supreme Court held that the trial court committed prejudicial error when it read to the jury the provisions of Title 48, § 173, Code of Alabama 1940, stating that when any person is killed or injured or other property destroyed or damaged by the locomotive or cars of any railroad, the burden of pi'oof was on the railroad company to show a compliance with the requirements of section of the Code regulating the operation of railroads.

“In its opinion reversing the trial court for giving such charge, the Supreme Court stated:

“ ‘If our statute, § 173, is constitutional because it is like the Mississippi statute, then to be constitutional, § 173 must be construed like the Mississippi statute. Such construction, on reason and authority, forbids the trial court to instruct the jury that the burden of proof is on the railroad to acquit itself of negligence in a case where the evidence is conflicting on the issue whether defendant’s employees were guilty of negligence which proximately caused plaintiff’s injury.’

“In Peoples v. Seamon, 249 Ala. 284, 31 So.2d 88 (1947), a claim was asserted for the wrongful death of a child who was killed as a result of being struck by a taxicab. One of the matters in issue was whether the taxicab owned by the defendant Peoples was being operated by his agent at the time of the accident. Commenting on the presumption arising from proof of ownership, the Supreme Court stated:

“ ‘From proof of ownership of the cab by Peoples, nothing more appearing, the presumption is that it was being operated by one as his servant or agent in the line and scope of his authority. But this is an administrative presumption and takes the place of proof, and ceases to be effective when evidence of a contrary situation is offered. . . . ’

“Also see Comment Note — Effect of Presumption as Evidence or Upon Burden of Proof, Where Controverting Evidence is Introduced, 5 ALR 3d 19. Commenting on the effect of presumptions of law, the annotation refers to the view of Professor Wig-more as follows:

“ ‘[T]he peculiar effect of a presumption “of law” (that is, the real presumption) is merely to invoke a rule of law compelling the jury to reach the conclusion in the absence of evidence to the contrary from the opponent. If the opponent does offer evidence to the contrary (sufficient to satisfy the judge’s requirement of some evidence), the presumption disappears as a rule of law, and the case is in the jury’s hands free from any rule. . . .

“ ‘ • . . It is therefore a fallacy to attribute (as do some judges) an aritifical probative force to a presumption, increasing for the jury the weight of the facts, even when the opponent has come forward with some evidence to the contrary. . . . ’ Wigmore, Evidence 3rd Ed. Section 2491.

“In the present case now before this Court, evidence was presented that Clyde Letson had been an employee of Southern Natural Gas Company for approximately 5 years at the time the accident occurred. During that time, he had had occasion to work on a number of pressurized piping systems including a water system under pressure, steam under pressure, air under pressure and natural gas under pressure. His supervisor stated that it would be a fair statement that Clyde Letson’s day-to-day work involved working around pressurized piping systems of these various kinds; that each of these piping systems had various types and kinds of filters and that every one of those filters on those various pressurized piping systems had a bleeder valve located at the bottom of the filter to bleed the pressure off of that filter.

“To the knowledge of his supervisor White, Clyde Letson, during his 5 years of employment, actually worked with those various filters and had occasion to bleed them off by operating the bleeder valve at the bottoms of the filters.

“It is clear to the Court that substantial evidence was presented to support Fram Corporation’s contention that Clyde Letson was negligent and that his negligence caused or contributed to cause his injuries and death.

“Without discussing the issue whether plaintiff’s requested instruction was abstract, argumentative, incomplete and confusing, or erroneous as referring to the plaintiff rather than the plaintiff’s intestate, this Court concludes it was not error to refuse plaintiff’s requested charge and that the issues in this case were properly submitted to the jury. Furthermore, the evidence presented fully supports the verdict reached by the-jury.”

Let the judgment be affirmed.

AFFIRMED.

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


author: MADDOX, Justice.

text:
    BANK OF THE SOUTHEAST, a corporation, now merged into Metro Bank, a corporation v. Earl E. JACKSON, III, Charles C. Nicrosi, William K. Nicrosi, Alton B. Parker, and Richard R. Patterson, Jr. Ray GRAHAM, T. C. Evans, Paul Ray, Dewell Emerson, Dennis Mills, Jr., and Douglas Tittle v. BANK OF THE SOUTHEAST, a corporation now merged into Metro Bank, a corporation.
    80-908, 80-909.
    Supreme Court of Alabama.
    April 23, 1982.
    William B. Hairston, Jr. of Engel, Hair-ston, Moses & Johanson, Birmingham, for appellants Ray Graham, Evans, Ray, Emerson, Mills, and Tittle.
    Erie Pettus, Jr. of Rives & Peterson, Birmingham, for Bank of the Southeast, etc.
    John H. Morrow & William Allen Smyly, Jr. of Bradley, Arant, Rose & White, Birmingham, for appellees Jackson, Nicrosi, Nicrosi, Parker & Patterson.
   MADDOX, Justice.

The facts on which these lawsuits are based arise out of the refusal of the purchasers to complete the purchase of the capital stock and assets of Bama Coal Company and the refusal of the Bank of the Southeast to honor a letter of credit that was delivered by the purchasers to the sellers as earnest money. The cases come before this Court on the pleadings, discovery, the trial court’s ruling granting the bank’s motion to dismiss count four of the sellers’ amended complaint and the trial court’s favorable ruling on the bank’s second motion for summary judgment. The sellers appeal from the final order; they claim the trial court erred in granting the bank’s motion to dismiss count four of their amended complaint; they also claim the court erred in granting the bank’s second motion for summary judgment.

.The facts of the cases are as follows: The sellers entered into an “Agreement of Purchase and Sale” with the purchasers wherein the sellers agreed to sell and the purchasers agreed to purchase the capital stock and assets of Bama Coal Company for the price of $2,000,000. The agreement was entered into on October 24, 1975, with the transaction to take place on or before December 3, 1975.

The Bank of the Southeast issued a letter of credit in the amount of $100,000 for the account of the purchasers. This letter of credit was delivered to the sellers as earnest money under the contract. The “letter of credit” was conditioned on the production by the sellers of numerous documents, identified as “conditions” in the Agreement of Purchase and Sale.

When the purchasers refused to close the deal on December 4, 1975, the sellers made demand on the Bank of the Southeast for payment of the “letter of credit.” The bank, however, refused to' honor the “letter of credit” on the ground that the sellers had allegedly failed to furnish the bank with all of the documentation required by the Agreement of Purchase and Sale. The sellers filed suit against the bank to recover the $100,000 letter of credit which had been delivered as earnest money. The purchasers were named as third-party defendants.

The sellers subsequently attempted to amend their complaint by adding a count which claimed that the bank had participated in a fraudulent artifice, scheme or device to deprive them of their earnest money because of the bank’s refusal to hon- or the letter of credit. The trial court granted the bank’s motion to dismiss count four of the amended complaint on the ground that the amendment did not relate back to the filing of the original complaint, and because it did not relate back, it was barred by the statute of limitations. Ultimately, the trial court rendered a final order on the matter by granting the bank’s second motion for summary judgment.

I

First, we will address the sellers’ assertion that the trial court erred in granting the bank’s motion to dismiss count four of the sellers’ amended complaint.

The sellers assert that count one of their original complaint sought damages for the wrongful dishonor by the bank of their demand for payment under the letter of credit, and that the gravamen of the suit was the act of dishonor; sellers assert that after they ascertained that the wrongful dishonor resulted from the bank’s participation in a fraudulent artifice, scheme or device to deprive them of their earnest money, they then sought to amend their original complaint to include an action to recover damages for this fraud. The sellers contend that the amended complaint alleging fraud should “relate back” to the date of the filing of the original complaint under Rule 15(c), A.R.C.P., because the fraud count allegedly arose out of the conduct, transaction, or occurrence set forth or attempted to be set forth in the original pleading.

Rule 15(c), A.R.C.P., states:

“Whenever the claim or defense asserted in the amended pleading arose out of the conduct, transaction or occurrence set forth or attempted to be set forth in the original pleading, the amendment relates back to the date of the original pleading-”

In Knox v. Cuna Mutual Insurance Society, 282 Ala. 606, 613, 213 So.2d 667 (1968), this Court stated:

“A new cause of action is not set up by amendment where the same substantial facts are pleaded merely in a different form, so that a recovery on either count of the complaint would bar a recovery on the other. As long as the plaintiff adheres to the contract or the injury originally declared upon, an alteration of the modes in which the defendant has broken the contract or caused the injury is not an introduction of a new cause of action. The test is whether the proposed amendment is a different matter, another subject of controversy, or the same matter more fully or differently laid to meet the possible scope of the testimony. United States Steel Corp. v. McGehee, 262 Ala. 525, 80 So.2d 256; Isbell v. Bray, 256 Ala. 1, 53 So.2d 577; Alabama Consolidated Coal & Iron Co. v. Heald, 154 Ala. 580, 45 So. 686.”

The “relation back” principle can be refined further by considering the following passage from the case of Bracy v. Sippial Electric Company, Inc., 379 So.2d 582, 583, 584 (Ala.1980):

“On this appeal we will deal with the issues between Bracy and Sippial. Bracy first contends that the trial court erred in granting, at the beginning of trial, Sippial’s motion to amend, which added a fraud count and which alleged an increased amount of damages. ARCP 15 expressly provides that amendments should be freely allowed when justice so requires; and our rule regarding amendments is that Rule 15 should be liberally construed within the sound discretion of the trial judge. Alabama Farm Bureau Mutual Casualty Insurance Co. v. Guthrie, 338 So.2d 1276 (Ala.1976). The party opposing the amendment must show that the amendment would cause actual prejudice or undue delay in order to bar an amendment. Miller v. Holder, 292 Ala. 554, 297 So.2d 802 (1974); Poston v. Gaddis, 372 So.2d 1099 (Ala.1979).
“Bracy contends that the proposed amendment at the beginning of trial actually prejudiced his case because all discovery had been completed and Bracy therefore had no opportunity to determine the factual basis for the allegation of fraud and had no opportunity to prepare a defense against the same. However, the amendment specifically incorporated detailed facts contained in a prior amended complaint and restated additional facts contained in the same prior amended complaint.
“The only new facts alleged were that Bracy represented to Sippial that he, Bra-cy, would make payments to Sippial as the work progressed, as evidenced by the subcontract between the two; that the representations were false; that Bracy knew they were false; that they were made by Bracy intentionally to defraud Sippial; that Sippial believed them; and that Sippial relied on them when it entered into the subcontract.
“It is obvious from the amendment that Sippial was going to attempt to prove its fraud allegation with facts previously pled and with the terms of the subcontract. The fraud count was merely an additional cause of action. Where an amendment merely changes the legal theory of a case or adds an additional theory, but the new or additional theory is based upon the same set of facts and those facts have been brought to the attention of the other party by a previous pleading, no prejudice is worked upon the other party. United States v. Johnson, 288 F.2d 40 (5th Cir. 1961). Cases interpreting the Federal Rules of Civil Procedure are authority in the construction of the Alabama Rules of Civil Procedure. Assured Investors Life Insurance Co. v. National Union Associates, Inc., 362 So.2d 228 (Ala.1978). We cannot say that Bra-cy suffered actual prejudice or that the trial would be unduly delayed by allowing the amendment; the court, therefore, did not abuse its discretion in allowing it. Alabama Farm Bureau Mutual Casualty Insurance Co. v. Guthrie, supra.

Unlike the Bracy v. Sippial, supra, case, any proof of fraud in the case at bar would entail proof of facts not remotely suggested in the prior pleadings which dealt with an alleged dishonor of the letter of credit. No allegations of fraud have been mentioned in any of the depositions taken in the case. When the bank faced a suit based only on the contractual nature of the letter of credit, it was only concerned with showing the existence or non-existence of certain documents and agreements which were, in effect, conditions precedent to liability arising out of the letter of credit. Under the fraud count, however, the complexity and scope of the bank’s defense would be greatly expanded. Additional discovery may have been required, involving each of the seven sellers, each of the five purchasers, any bank employee or agent which the plaintiffs might assert participated in such a fraudulent scheme and, also, any third party which the plaintiffs might contend was involved in the scheme.

Considering these facts, this ease is more appropriately decided under the principle applied in Stead v. Blue Cross-Blue Shield of Alabama, 294 Ala. 3, 6, 310 So.2d 469 (1975), wherein this Court stated:

“Rule 15 and the Committee Comments have been aptly stated in Miller and there is no need to reiterate them in this opinion. We simply state here that if Rule 15 is to be of any benefit to the bench, bar, and the public, the trial judges must be given discretion to allow or refuse amendments. However, we state that amendments are to be freely allowed and refusal of an amendment must be based on a valid ground. We state also that Rule 15 must be liberally construed by the trial judges. But, that liberality does not include a situation where the trial on the issues will be unduly delayed or the opposing party unduly prejudiced.
“In looking at this case we must weigh the prejudice to the defendant Blue Cross against the possibility that the petitioner will have to go through a second trial. The evidence upon which the defense on the policy would rest consists of the policy itself and its language, medical testimony concerning pre-existing illness. In the case of fraud and misrepresentation, the defendant would have tried to find all the people who processed petitioner’s application three years ago, or had anything to do with it.
Sjt J¡4 % SfS * *
“A reading of that testimony does not indicate any evidence of fraud on the part of the company. In fact, according to the respondent’s brief there was no evidence that Stead ever talked to anyone from Blue Cross before he took out the policy. This amendment was offered just before a third setting of trial. All of the fraud facts were available at the time the original complaint was filed or certainly within one year after it was filed. While the trial judge does not give reasons for overruling the motion, these things were no doubt considered in the exercise of his discretion.”

We are of the opinion that the learned trial judge did not abuse his discretion in ruling that the bank in this case would have been unduly prejudiced had the sellers been allowed to amend the complaint to include an action for fraud. Hence, it was not error for the trial judge to rule that the amendment did not relate back and was therefore barred by the statute of limitations.

II

The second issue presented by the appellant arises out of the trial court’s ruling wherein it granted the bank’s second motion for summary judgment.

At the outset, we note that whenever there is a scintilla of evidence supporting the position and assertions of the non-moving party, then summary judgment is inappropriate. Furthermore, the burden is on the movant to show there is no genuine issue of material fact. In determining whether the movant has sustained the burden, the scintilla rule is applied, and all reasonable inferences from the facts, viewed most favorably to the non-moving party, are indulged. Applying these well established principles of law, we find that summary judgment was appropriate under the facts of this case.

Because of the complicated nature of the facts in this case, and because we affirm the trial court’s grant of summary judgment, we set out, at length, the opinion and order of the trial judge wherein he granted the bank’s motion for summary judgment.

“OPINION AND ORDER GRANTING THE MOTION FOR SUMMARY JUDGMENT FILED BY THE DEFENDANT, BANK OF THE SOUTHEAST AND GRANTING THE MOTION FOR SUMMARY JUDGMENT FILED BY THE THIRD PARTY DEFENDANT

“This case has been submitted for decision by this Court on the Motion for Summary Judgment filed by the defendant, Bank of the Southeast, a corporation (hereafter ‘Bank’), and the Motion for Summary Judgment filed by the third-party defendants, Earl E. Jackson, III, Charles C. Niero-si, William K. Nicrosi, Alton B. Parker and Richard R. Patterson, Jr. (hereafter ‘Purchasers’).

“The plaintiffs in this case, Ray Graham, T. C. Evans, Paul Ray, Dewell Emerson, Dennis Mills, Jr., and Douglas Tittle (hereafter ‘Sellers’), make claim against the Bank under an irrevocable commercial letter of credit issued by the Bank on October 24, 1975, at the request of the Purchasers and engaging to honor drafts in the aggregate amount of $100,000 conditioned upon the presentation of certain documents described in the letter of credit as follows:

“ ‘Documentation that the Agreement of Purchase and the Sale dated October 24, 1975 has been consummated which documentation shall be presented on or before December 10, 1975; or a sworn affidavit from Sellers stating that they have complied with all covenants and terms of the Agreement of Purchase and Sale dated October 24,1975 and documentation that Sellers have complied with all the terms and covenants of said Agreement of Purchase and Sale which documentation shall be presented after the date set for closing therein but not later than December 10, 1975.’
“The letter of credit was presented to the Bank for payment on December 4, 1975 accompanied by an affidavit executed by the Sellers and certain documents purporting to meet the requirements of the letter of credit. Following the refusal of the Bank to honor the drafts accompanying the letter of credit, the Sellers filed this lawsuit.
“In support of its Motion for Summary Judgment, the Bank argues that under the undisputed evidence presented, the Sellers failed to provide the documentation required by the letter of credit and that the Bank was therefore under no obligation to the Sellers under the letter of credit.
“The issue presented on the Bank’s Motion for Summary Judgment then is whether the Sellers complied with the requirements of the letter of credit in presenting documentation to the Bank. The Bank’s obligation is stated under Section 7 — 5-109(2), Ala.Code 1975, as follows:
“ ‘An issuer must examine documents with care so as to ascertain that on their face they appear to comply with the terms of the credit but unless otherwise agreed assumes no liability or responsibility for the genuineness, falsification or effect of any document which appears on such examination to be regular on its face.’
“The Agreement of Purchase and Sale dated October 24, 1975, referred to in the letter of credit, provides for the sale by the Sellers of all of their capital stock in Bama Coal Company, Inc., and all of their interest as partners of a partnership known as National Leasing Company in certain coal mining leases to the Purchasers.
“Under paragraph 2 of the Agreement, the purchase price for the purchase of such assets was $2,000,000, with $100,000 to be paid as earnest money represented by the Bank’s irrevocable letter of credit; an additional amount of $500,000 in cash to be paid on the date of closing; and the remainder of the purchase price in the amount of $1,400,000 to be paid by the assumption of certain liabilities of the Sellers in the approximate amount of $400,000 with the sum of $1,000,000 to be evidenced by a promissory note bearing interest at the rate of 8% per annum and payable over a period of 4 years from the date of closing.
“Paragraph 3 of the Agreement provided that the purchase and sale was conditioned on the fulfillment of a number of terms and conditions including that set forth in 3(e) as follows:
“ ‘Sales contracts shall be procured on or before the date of closing for the sale of coal of not less than 15,000 tons per month at a purchase price of not less than $20.00 per ton and for a period of not less than six months; any contracts of sale now held or hereafter acquired by the Sellers shall be herein included. Purchasers shall have the right to negotiate the above said contract within three (3) weeks from the date of the signing of this Agreement of Purchase and Sale. If, within said three (3) weeks, Purchasers have been unable to procure said contract, either Sellers or Purchasers shall have the right to procure said contract prior to closing. Purchasers shall have the right to refuse any contract offered by the Sellers, however, refusal by the Purchaser to accept a contract meeting the specifications of this paragraph shall relieve the Sellers of the obligation of performing this portion to the extent of the contract offered by the Sellers. If purchaser of said coal contract does not have the substance to honor said contract then Sellers shall not be relieved of said obligation.’
“At the time the letter of credit was presented to the Bank for payment, the Sellers also presented a number of documents to the Bank including an affidavit executed by all of them in which they stated that they had complied with all of the requirements, obligations and provisions of the Agreement of Sale. However, the evidence presented by the Bank in support of its Motion for Summary Judgment indicates that the Sellers had not then procured sales contracts for the sale of not less than 15,000 tons of coal per month at a purchase price of not less than $20 per ton for a period of not less than 6 months. The Bank has referred specifically to the testimony of Ray Graham on oral deposition taken on October 10, 1980 when Graham testified as follows concerning the coal sales contract required under Paragraph 3(e) of the Agreement, commencing at page 15 of his deposition:
“ ‘Q. When you were in Mr. Wilhelm’s office on December 4, did you provide Mr. Wilhelm with a coal sales contract as required by part 3(e). of the Purchase and Sales Agreement?
“ ‘A. We did not have a sales contract, no.
“ ‘Q. Did you ever attempt to procure a sales contract as required by Part 3(e) of the Purchase and Sales Agreement?
“ ‘A. I made some negotiations for a contract.
“ ‘Q. Did you ever get this contract?
“ ‘A. Didn’t — no, I never got it, I didn’t choose to get it, because Mr. Patterson and Mr. Parker said they didn’t want it, they had one much better than what I could get.’
“Graham did produce a letter dated November 2, 1977 signed by Eleanor G. Terry, Graham’s sister, purporting to be acting as the buyer for Champion Papers, in which Ms. Terry stated:
“ ‘This letter is to verify that Bama Coal Company did offer to sell Champion 15,000 tons of coal per month for six months at $20 per ton, F.O.B. delivered, 8% ash, 1.25 sulphur or less, 12,000 B.T. U.’s.’
“However, Graham admitted in his testimony that he had no written document which indicated that he had a sales contract meeting the requirements of paragraph 3(f) (sic) of the Agreement on December 4, 1975, when the letter of credit was presented for payment.
“The Bank also maintains that the Sellers failed to present documentary evidence indicating that they had complied with the provisions of paragraph 3(f) of the Agreement. Paragraph 3(f) provides as follows: “ ‘Sellers shall have procured a new lease to be executed by and between Iris S. O’Rear, Patricia O’Rear Robertson and her husband, John M. Robertson, Emma O’Rear Foy and her husband, James E. Foy, acting by and through their agent and attorney-in-fact, Caine O’Rear, Jr., and also to be executed by Caine O’Rear, Jr., individually, and his wife, Kathryn I. O’Rear, as lessors, and Bama Coal Company, Inc., as lessee, leasing the tipple, railroad siding and coal yard situated in the following described land, to-wit:
“ ‘The S % of NE V4; the N Vz of SE Vi; and the SE Vi of SE Vi; all in Section 10, Township 12 South, Range 12 West, Marion County, Alabama, for a period of 5 years from the date thereof, with a 5-year renewal option, which shall be renewable at the option of Bama Coal Company, Inc., at a lease rate not to exceed an average of $3,000 per year.’

“At the time that he testified on deposition on October 10, 1980, Ray Graham identified 2 of the leases executed by Iris O’Rear and others with Bama Coal Company as lessee. One such lease dated November 11,1975, described the following property:

“ ‘All that part of the SE Vi of the SE Vi, Section 10, Township 12, Range 12 which lies north of the public highway.’

“The second lease executed December 2, 1975, described the following property:

“ ‘The NE Vi of the SE Vi, Section 10, Township 12, Range 12. Surface only.’

“As the Bank has argued, the description in the two leases produced by the Sellers to the Bank did not include the S Vi of the NE Vi and the NW Vi of the SE Vi of Section 10, Township 12, Range 12 although these last described parcels were included in the description of the real estate to be leased described in paragraph 3(f) of the Agreement.

“However, it appears that the primary intent of the parties in paragraph 3(f) was for Bama Coal Company to lease the tipple, railroad siding and coal yard situated on the property. It is conceivable that the tipple; railroad siding and coal yard are actually situated on the 80 acres described in the two leases produced by Ray Graham. In that event, the Sellers would have been in substantial compliance with the provisions of 3(f) respecting the property to be leased.

“The difficulty is that the Bank would not be able to know from looking at the leases whether or not they were in compliance with the paragraph 3(f) respecting the property. This difficulty could have been resolved by a survey or affidavit from the lessors stating that the tipple, railroad siding and coal yard were located on the property described in the leases.

“Paragraph 3(f) of the Agreement also requires that the rental not exceed an average of $3,000 per year both for the initial five-year term as well as the five year renewal term.

“The lease covering the SE Vi of the SE Vi provided as follows with respect to the rental:

“ ‘3. This lease is for a period of five (5) years from its date and for consideration LESSEE shall pay a monthly rental of Two Hundred and No/100 ($200.00) DOLLARS each month in advance. . . .
“ ‘4. Lessee shall have a right to extend the initial period of this lease for an additional term of five (5) years at a monthly rental of THREE HUNDRED AND NO/100 ($300.00) DOLLARS-’

“The lease conveying surface rights only to the NE Vi of the SE Vi of the same section contained the following provisions with respect to the rental.

“ ‘3. This lease is for a period of five (5) years from November 11, 1975, and for consideration LESSEE shall pay a monthly rental of ONE HUNDRED AND NO/100 ($100.00) DOLLARS each month in advance. . . Provided, however, that there shall be no monthly payments due for the period from November 11, 1975 until May 11, 1976, at which time the monthly payments shall commence.
“ ‘4. Lessee shall have a right to extend the initial period of this lease for an additional term of five (5) years at a monthly rental of ONE HUNDRED FIFTY AND NO/100 ($150.00) DOLLARS

“Even allowing for the fact that the Lessee was not required to make any payments under one lease for the first six months, the average yearly rental required under both leases during the initial five-year term was $3,480 and in excess of the $3,000 maximum amount provided under paragraph 3(f). During the five-year renewal term, the average yearly rental required under both leases was $5,400.00. This amount is substantially in excess of the $3,000 maximum required by paragraph 3(f).

“The evidence presented by the Bank shows that the Sellers did not provide the documentation required by the letter of credit establishing that the Sellers had complied with all the terms and covenants of the Agreement of Purchase and Sale at the time the letter of credit was presented.

“Sellers have submitted an affidavit executed by Ray Graham in which he refers to Paragraph 3(e) of the Agreement stating:

“ ‘The language of this section provides certain alternatives. It does not require documentary production. The affidavit of compliance fulfills the requirements of this section.’

“It is true that Section 3(e) does provide alternatives, but none of the alternatives excuse the initial requirement that a contract be procured providing for the sale of not less than 15,000 tons of coal per month at a purchase price of not less than $20.00 per ton and for a period of not less than 6 months. The coal sales contract contemplated by the Agreement would, if performed, have produced total revenues of not less than $1.8 million.

“The Sellers were relieved of their obligation under paragraph 3(e) only if the Purchasers refused to accept a coal sales contract meeting the requirements of Paragraph 3(e) after the same had been presented by the Sellers.

“Since Sellers have admitted that they never negotiated or presented to the Purchasers a coal sales contract meeting the requirements of Paragraph 3(e), the Sellers cannot now be heard to argue that the Purchasers refused to accept such a contract.

“Furthermore, it is too obvious for argument that the requirement in the letter of credit that documentation be provided the Bank to show compliance with its terms contemplates the presentation of documents specifically described in the letter or evidence of their existence rather than an affidavit stating generally that the Sellers have complied with its terms.

“The letter of credit itself states that the sight drafts must be accompanied by ‘a sworn affidavit from sellers stating that they have complied with all the covenants and terms of the Agreement of Purchase and Sale dated October 24, 1975, and documentation that Sellers have complied with ail the terms and covenants of said Agreement of Purchase and Sale. . . . ’

“In the Uniform Commercial Code Practice Handbook, Harfield, Letters of Credit (2nd Ed. 1980) p. 36, the author refers to general principles governing acceptance of letters of credit as follows:

“ ‘The controlling rule is that the letter of credit must be strictly construed and performed precisely in accordance with its terms * * *
“ ‘. . . a host of judges have echoed the statement in Equitable Trust Co. v. Dawson Partners that “there is no room for documents which are almost the same, or which will do just as well.’ ”

“In American Bank & Trust Co. v. Banco Nacional De Nicaragua, 231 Ala. 614, 166 So. 8 (1936), the Supreme Court of Alabama stated:

“ ‘It seems to be well settled that a party, who is entitled to draw against a letter of credit, must strictly observe the terms and conditions under which the credit is to become available, and if he does not, and the bank refuses to honor his draft, he has no cause of action against the bank.’

“In Dulien Steel Products, Inc. of Washington v. Bankers Trust Co., 189 F.Supp. 922 (S.D.N.Y.1960), the opinion of the United States District Court for the Southern District of New York stated:

“ ‘When a bank confirms a letter of credit the letter evidences its irrevocable obligation to honor the drafts presented by the beneficiary upon compliance with the terms of the credit. The letter is quite independent of the primary agreement between the party for whose account it is issued and the beneficiary, or any underlying transactions. Neither the issuing nor the confirming bank has any obligation, and is not permitted, to go behind the terms of the letter and the documents which are required to be presented, and to enter controversies between the beneficiary and the party for whose account the letter was opened concerning any other agreements or transactions . . . . ’

“Also see Continental National Bank v. National City Bank of New York, 69 F.2d 312 (9th Cir. 1934); Venizelos, S. A. v. Chase-Manhattan Bank, 425 F.2d 461 (2nd Cir. 1970); Marine Midland Grace Trust Co. of New York v. Banco Del Pais S. A., 261 F.Supp. 884 (S.D.N.Y.1966).

“In opposition to the motion filed by the Bank for Summary Judgment, the Sellers state that they presented an affidavit to the Bank stating that they had complied with all of the terms and conditions of the Agreement of Purchase and Sale.

“It is clear, however, that the Sellers had not produced for the Bank’s examination, evidence concerning the coal sales contract required by Paragraph 3(e) of the Purchase and Sales Agreement nor had the Sellers produced documentary evidence that they had leased from the O’Rear family the tipple, railroad siding and coal yard at an average yearly rental of $3,000 for a term of five years with a right of renewal for an additional five-year term.

“While Ray Graham in his testimony on oral deposition attempted to excuse his failure to produce evidence of the coal sales contract by stating that the purchasers had told him that they didn’t want it because they had one much better, this could not relieve the Sellers of their obligation to produce evidence of such contract to the Bank.

“The requirements imposed on the Sellers under the letter of credit could not be amended without the consent of the Bank. Article 3(c) of the Uniform Custom and Practices for Documentary Credits provides that ‘such undertakings can neither be amended nor cancelled without the agreement of all parties thereto. Partial acceptance of amendments is not effective without the agreement of all parties thereto.’

“While it may be argued by the Sellers that the Bank waived the necessity of presenting a draft by its refusal to pay and also waived any requirement concerning the standing of the Sellers under the letter of credit by not objecting to their standing at the time the Bank refused to pay the same, the Bank did not waive the requirement in the letter of credit that the Sellers produce documentation that they had complied with all of the terms and covenants of the Agreement of Purchase and Sale.

“The Sellers’ attorney, Jerry Guyton, testified on oral deposition on July 14, 1977, page 12, in referring to the statements made to him on presentation of the letter of credit by Wilhelm, the President of the Bank as follows:

“ ‘He says, “that they would not agree, that we had not complied, because, 1, there was no sales contract as required by the Agreement, 2, the equipment was not in good working order, 3, the lease on the 60 acres of mineral was not that which they wanted, and 4, that the coal specifications were different as indicated by the analysis.” . . . ’

“It is clear from the undisputed evidence that the Sellers had failed to comply with the requirements of the letter of credit issued by the Bank and that the Bank was justified in refusing to pay when the letter of credit was presented.

“In accordance with the foregoing opinion, the Motion for Summary Judgment filed by the Bank of the Southeast is granted. Judgment is hereby rendered in favor of the Bank of the Southeast and against the plaintiffs.

“Since the Bank of the Southeast only made claim against the third-party defendants in the event it should be held liable, the Motion for Summary Judgment filed by the third-party defendants is granted and judgment is hereby rendered in favor of the third-party defendants and against the third-party plaintiff, Bank of the Southeast. All costs of Court incurred with respect to the complaint are taxed against the plaintiffs. All costs of Court incurred in connection with the filing of the third-party complaint are taxed against the third-party plaintiff, Bank of the Southeast.

“DONE AND ORDERED this 13th day of August, 1981.

“/S/ Marvin Cherner

Circuit Judge”

Upon a first reading of the trial judge’s order, it might appear that he made findings of fact on disputed issues, but we note that in this case, due to its nature, summary judgment was appropriate because of the principles of law uniquely applicable to letters of credit. The letter of credit sued on required certain documentation to be presented before the bank would be required to honor it. Furthermore, the letter of credit was very specific about which and what type of documentation was necessary. The trial judge determined that the required documentation was not presented by the sellers, and applying principles of law applicable to liability for refusing to honor a letter of credit he held that the defendant bank was entitled to summary judgment, as a matter of law. We hold he did not err.

The judgment of the trial court which dismissed count four of the plaintiff-sellers’ amended complaint and the order granting the defendant-bank’s second motion for summary judgment are due to be affirmed.

AFFIRMED.

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

       (1927) 27 Lloyd’s List L.R. 49.


text:
    Arnold R. MOORE v. Dorothy Howard LOVELACE, et al.
    81-124.
    Supreme Court of Alabama.
    April 23, 1982.

      James G. Stevens, Birmingham, for appellant.
    Frank M. Bainbridge of Porterfield, Scholl, Bainbridge, Mims, Clark & Harper, Birmingham, for appellees.
   BEATTY, Justice.

Plaintiff, Arnold R. Moore, appeals from an adverse judgment rendered against him in this action seeking specific performance of a contract in which defendants, Dorothy and Larry Lovelace, agreed to sell and convey certain tracts of real property in Jefferson County. We affirm.

Defendants, Dorothy and Larry Lovelace, entered into a real estate sales contract with plaintiff, who is a licensed real estate broker, on April 10, 1979. The contract, which was drafted by plaintiff, concerned two parcels of land on Old Rocky Ridge Road in Birmingham, Alabama, which defendants agreed to sell to plaintiff. One parcel contained approximately .46 acres and the other parcel contained approximately 3 acres. The contract provided for the sale to be closed on or before October 10, 1979, but plaintiff had the option to extend the contract an additional six months if needed in order to get certain permits. The option was exercised, thus extending the closing date until April 10, 1980. The parties executed an addendum to the contract on September 17, 1979, which extended the closing date an additional six months until October 10, 1980.

By addendum dated June 15, 1979, the parties agreed that the two parcels could be purchased at different times with a deed and mortgage being given on each parcel independent of the other. The .46-acre parcel was sold pursuant to the terms of the contract in June 1980.

On June 23, 1980, plaintiff attempted to obtain an additional six-month extension of the closing date for the parcel of 3 acres, from October 10, 1980, to April 10, 1981. Defendants rejected the proposal. Thereafter, plaintiff sought another modification of the contract by seeking an increase in his real estate commission on the sale from 10% to 15%. Defendants refused to increase plaintiff’s commission. On September 22, 1980, plaintiff attempted to get the defendants to agree to increase his commission on the sale from 10% to 12% and to release the land from the contemplated mortgage in a piecemeal fashion. Defendants refused to accept either of these propositions.

On October 7, 1980, three days before the closing date, plaintiff’s attorney delivered him the closing documents accompanied by a cover letter which plaintiff mailed to defendants on October 8 and which defendants received October 11, 1980. In addition to being received by defendants one day after the contract expired, the closing documents were not in compliance with other particular terms of the contract, e.g., mathematical inaccuracies in purchase price and mortgage amount. Defendants notified plaintiff that they would not execute the closing documents because they were received a day late.

Plaintiff filed an action for specific performance, and the trial court, after hearing testimony ore terms, made findings of fact and conclusions of law, and entered a decree which reads, in part, as follows:

“There are several problems concerning the Plaintiff’s attempt to close the transaction. First, as mentioned above, the documents were not received by the Defendants until the day after the term of the Contract expired. Second, there had been no discussion as to the method of closing the transaction and the letter from Plaintiff’s attorney dated October 7, 1980 (Defendants’ Exhibit 9) was, at best, an attempt to set-up a closing through escrow in his office. Thus, even if the closing documents had been received during the term of the Contract, the closing itself would have occurred on some later date. Third, there was never a tender of the purchase price to the Defendants. This would have been made through an escrow closing, however, there was never an agreement to close the transaction through escrow, and no actual offer of the purchase price has been made by the Plaintiff. Fourth, the closing documents did not accurately reflect the terms of the Contract. . . .
“The Court, therefore, finds that, considering the fact that the property had already been tied up for 18 months, the actions of the Defendants in refusing to further alter the provisions of the Contract or to extend its terms, made time of the essence of the Contract and that upon the failure of the Plaintiff to at least tender closing documents to the Defendants prior to the expiration of the term of the Contract on October 10, 1980, the Contract terminated by its own provisions. The Court further finds, as a separate and independent ground for its decision, that the purported closing documents contained enough material errors so that they were not in substantial compliance with the terms of the Contract and that therefore no effective offer to close was made on behalf of the Plaintiff.
“It is, therefore, CONSIDERED, ORDERED, ADJUDGED and DECREED as follows:
“ONE: The Real Estate Sales Contract, dated April 10, 1979, as amended, between Arnold R. Moore as Purchaser and Dorothy Howard Lovelace and Larry Clark Lovelace as Sellers, is of no force and effect, the same having terminated in accordance with the provisions contained therein.
“TWO: In accordance with a previous order of this Court, the expenses, in the amount of $386.30 incurred by the Defendants in traveling to Birmingham from Florida in order to have their depositions taken by Plaintiff’s attorney, are to be paid as part of the costs of this case.
“THREE: Costs are taxed one-half (V2) to Plaintiff and one-half (V2) to the Defendants.”

The court denied plaintiff’s motion for a new trial, and this appeal followed.

Plaintiff claims that the trial court erred to reversal by its finding that time was of the essence in the contract and that plaintiff’s failure to tender payment caused the contract to expire by its terms and precluded an action for specific performance.

It is an axiom of equity that as a general rule time is not of the essence of a contract. Gay v. Tompkins, Ala., 385 So.2d 973 (1980). However, the parties might make time essential by “clear manifestation of the intent of the parties in the contract itself, by subsequent notice from one party to the other, by laches in the party seeking to enforce it, or by change in the value of the land or other circumstances which would make a decree for the specific performance inequitable.” Isom v. Johnson, 205 Ala. 157, 158, 87 So. 543, 544 (1921) (quoting Barnard v. Lee, 97 Mass. 92 (1867).

In Isom the real estate sales contract provided for payment of the purchase price on or before December 1, 1919, with possession to be given by January 1, 1920, after payment. The parties later agreed that payment “any time during December would do for the payment of the purchase money. 205 Ala. at 159, 87 So. at 544. The purchaser did not make a tender in December and later filed suit for specific performance. We held that the new agreement extending the time for payment made time of the essence. In the case at bar, the parties extended the time for payment from April 10, 1980, to October 10, 1980. Thereafter, plaintiff sought at least three modifications of the contract, all of which were rejected. We agree with the trial court’s finding that “it is clear that the Plaintiff knew, or should have known, by Defendants’ actions, that the Defendants were demanding strict adherence or compliance with the terms of the contract.” The granting of the six-month extension made time' of the essence. And, under the terms of the contract, the sellers had the right to cancel, at their election, upon the failure of the purchaser to carry out the terms of the agreement.

Plaintiff has never, either before or after the expiration of the contract on October 10, 1980, tendered payment to defendants. Specific performance cannot be enforced in favor of a party who has not fully and fairly performed all the conditions precedent on his part to the obligation of the other party. Durden v. Furniture Fair of Dothan, Ala., 348 So.2d 1375 (1977). In the present case, plaintiff claims that defendants would not have accepted payment and that an act of tender would have been a futile gesture. That contention is not supported by the evidence. Furthermore, without a waiver of the strict time requirement, plaintiff would be unsuccessful in this specific performance action even if he had tendered payment prior to the suit.

A strong presumption as to the correctness of the trial court’s findings of fact exists, and those findings are not to be disturbed unless they are found to be clearly erroneous and against the great weight of the evidence. Ragland v. Walker, Ala., 411 So.2d 106 (1982). Our review of the record convinces us that the trial court had sufficient evidence before it to justify its finding that time was of the essence of the contract.

Let the judgment be affirmed.

AFFIRMED.

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


text:
    Leonard DAVIS v. FIRST COLBERT NATIONAL BANK.
    81-314.
    Supreme Court of Alabama.
    April 23, 1982.
    James L. Hunt, Tuscumbia, for appellant.
    Stanley E. Munsey of Rosser & Munsey, Tuscumbia, for appellee.
   SHORES, Justice.

This is an appeal from a summary judgment granted in favor of First Colbert National Bank (hereinafter Bank) and against Leonard Davis (Davis) for money due on a promissory note.

Briefly, the facts reveal that, on August 21,1979, Steven W. Cox (Cox) and Davis, as co-makers, executed a promissory note with the Bank in the principal amount of $17,-886.43, for a term of 182 days and at a rate of interest of twelve percent per annum.

The note was not paid and, on May 8, 1980, the Bank sued Cox and Davis on the note. Davis filed an answer; Cox did not. Default judgment was entered against Cox on June 18, 1980.

On July 3, 1980, the Bank, pursuant to the terms of the promissory note, applied to the payment of the debt proceeds from certificates of deposit held by the Bank to the account of Davis. Thereafter, on July 9, 1980, the Bank filed a motion to dismiss the action as to Davis, which the court granted on July 14, 1980. However, on August 12, 1980, Davis’s motion to reinstate the case was granted by the court.

Davis later filed a counterclaim wherein he claimed $50,000 as damages, alleging that on the date that Davis co-signed the note, the Bank had loaned various other sums of money to Cox and that the Bank failed to disclose such facts to Davis, which caused Davis to act to his detriment. Davis also alleged that, as the result of the failure to disclose such facts to him, he was caused to incur doctor bills, hospital bills, and bills for medicine and treatment due to physical problems caused by having to repay the loan. Davis further claimed that the Bank confiscated some certificates of deposit held by the Bank for Davis without notice to Davis and without a request for him to pay the promissory note from other funds due to him, thereby causing him to lose interest upon the certificates of deposit and unjustly enriching the plaintiff. Davis also claimed restitution of sums confiscated from him, including interest and early withdrawal penalties. The Bank answered and pleaded the general issue.

The Bank then filed a motion for summary judgment together with a supporting affidavit wherein the affiant stated:

“1. My name is Jerry Wages and I am an officer of First Colbert National Bank, the plaintiff in this action, and I am authorized to represent the plaintiff. I have personal knowledge of the promissory note executed by Steven W. Cox and Leonard Davis to First Colbert National Bank on August 21, 1979.
“2. The amount of the loan referred to above was $17,886.43, plus interest.
“3. The total amount of principal, plus interest, due on the note as of the 3rd day of July, 1980, is $19,750.54. This figure does not include a reasonable attorney’s fee, which is provided for in the note.”

The court found that no genuine issue as to any material fact existed and rendered judgment against Davis in the amount of $19,992.54, together with costs. This appeal followed. We affirm.

The only issue presented on this appeal is whether the court properly granted summary judgment.

Rule 56(e), Alabama Rules of Civil Procedure, states:

“Supporting and opposing affidavits shall be made on personal knowledge, shall set forth such facts as would be admissible in evidence, and shall show affirmatively that the affiant is competent to testify to the matters stated therein. Sworn or certified copies of all papers or parts thereof referred to in an affidavit shall be attached thereto or served therewith. The court may permit affidavits to be supplemented or opposed by depositions, answers to interrogatories, or further affidavits. When a motion for summary judgment is made and supported as provided in this rule, an adverse party may not rest upon the mere allegations or denials of his pleading, but his response, by affidavits or as otherwise provided in this rule, must set forth specific facts showing that there is a genuine issue for trial. If he does not so respond, summary judgment, if appropriate, shall be entered against him.”

Davis made a fatal procedural error by resting on his pleadings once the Bank filed a motion for summary judgment along with the supporting affidavit. There is no error here.

AFFIRMED.

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


text:
    Ex parte Troy PARKER. (In re FIRST NATIONAL BANK OF FAYETTE v. Troy PARKER and Fayette Tractor Company, Inc.)
    81-440.
    Supreme Court of Alabama.
    April 23, 1982.
    Thomas E. Snoddy, Double Springs, for petitioner.
    Lewis P. Moore of Holder, Moore & Gro-cholski, Fayette, for respondents.
   BEATTY, Justice.

Petition for writ of mandamus directed to the Honorable Clatus Junkin, Judge of the Circuit Court of Fayette County, to enter an order transferring venue to the Circuit Court of Winston County. The writ is granted.

On June 11, 1981, plaintiff, First National Bank of Fayette, filed suit in the Circuit Court of Fayette County on a promissory note executed by defendant Troy Parker. Defendant filed a motion for change of venue to Winston County, the county of his residence. Thereafter, plaintiff amended its complaint to add Fayette Tractor Company, Inc., a corporation doing business in Fayette County, as a party defendant. The amended complaint alleged that Fayette Tractor Company was an endorser, surety or guarantor of the promissory note executed by defendant Parker. On October 15, 1981, the court held a hearing on the motion for change of venue and, on that date, orally denied the motion. A written order denying the motion was entered on February 2, 1982, and defendant Parker filed this petition for writ of mandamus.

The only issue presented by this petition is the propriety of the trial court’s order denying transfer of venue from Fayette County to Winston County. Rule 82(b)(1)(A), Alabama Rules of Civil Procedure, provides that an action against an individual residing in this state “must be brought in the county where the defendant or any material defendant resides at the commencement of the action.” Petitioner claims that he resided in Winston County at the commencement of the action, and that the attempt by respondent First National Bank to cure the improper venue by adding Fayette Tractor Company as a party defendant did not cure the defect. We agree.

Rule 82(d), Alabama Rules of Civil Procedure, states that “[w]hen an action is filed laying venue in the wrong county, the court, on timely motion, shall transfer the action to the court in which the action might have been properly filed and the case shall proceed as though originally filed therein.” The Committee Comments provide that this applies “only where the original venue was not proper.” Thus, if venue is not appropriate when suit is filed, the case “shall” be transferred. Ex parte Wilson, Ala., 408 So.2d 94 (1981).

The present suit was filed against petitioner in the wrong county. Fayette Tractor Company was not added as a party defendant until after the filing of petitioner’s motion for. change of venue. That endeavor to cure the improper venue did not serve to defeat the trial court’s mandate to transfer the action pursuant to Rule 82(d) from Fayette County to Winston County.

Respondents contend that the order of the trial court denying transfer of venue should be affirmed because petitioner failed to meet his burden of proving improper venue. They allege that petitioner produced no evidence of his residency before the trial court. However, the record reveals that at the hearing on the motion respondent First National Bank admitted to the court that petitioner is a resident of Winston County. Furthermore, attached to the complaint served upon petitioner were directions to the sheriff of Winston County detailing directions to the home of Troy Parker, i.e., petitioner. The promissory note being sued upon also shows the Winston County address of petitioner.

The writ of mandamus is not granted unless there is a clear showing of error in the trial court to the injury of the petitioner. Ex parte Slade, Ala., 382 So.2d 1127 (1980). Here, the petitioner’s right to relief is clear. Accordingly, the petition for writ of mandamus must be, and is, granted.

WRIT GRANTED.

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