author: MADDOX, Justice. PER CURIAM. MADDOX, Justice

text:
    BLACK BELT WOOD COMPANY, INC. v. Leonard SESSIONS, as Administrator of the Estate of James Karl Sessions, Deceased. S & T TRUCKING COMPANY, INC., a corporation, and Robert Poole v. Leonard Earl SESSIONS, as Administrator of the Estate of James Karl Sessions, Deceased.
    82-906, 82-907.
    Supreme Court of Alabama.
    March 23, 1984.
    On Rehearing July 16, 1984.
    Rehearing Denied Aug. 24, 1984.
    Jack B. Porterfield, Jr. of Porterfield, Scholl, Bainbridge, Mims & Harper, Birmingham, for appellant Black Belt Wood Company, Inc.
    Tony S. Hebson of London, Yancey, Clark & Allen, Birmingham, for appellant S & T Trucking Co., Inc. and Robert Poole.
    R. Gordon Pate and Alex W. Newton of Hare, Wynn, Newell & Newton, Birmingham, for appellee.
   MADDOX, Justice.

The issue on appeal is whether the trial court was correct in ordering a new trial as to all defendants in these cases. We affirm, in part and reverse, in part.

On February 7, 1980, James Karl Sessions, who at the time was driving an automobile along U.S. Highway 11 in Sumter County, Alabama, was killed when a log fell from a truck loaded with pulpwood and crashed through the windshield of his car. The truck hauling pulpwood was owned by S & T Trucking Company, Inc. (S & T). The principal owner of S & T Trucking at the time of the accident was John Tidmore. Robert Poole, an employee of S & T, was the driver of the truck.

The record shows that the logs were loaded onto S & T’s truck by employees of Black Belt Wood Company, Inc. (Black Belt), at its woodyard. The load of logs was to be delivered by S & T to the wood mill of American Can Company (American Can). The evidence indicated that Robert Poole checked the load involved in the accident before leaving the woodyard, and, while transporting the logs, stopped three times prior to the accident to tighten the load. He had previously delivered one load of wood to American Can before the accident occurred.

Leonard Earl Sessions, appellant, as administrator of the estate of James Karl Sessions, filed suit against American Can, Black Belt, S & T, Robert Poole, and John Tidmore. In his complaint, he alleged that the defendants, both separately and severally, were negligent in loading, inspecting and operating the truck and by entrusting the work to an incompetent operator (Robert Poole). During the trial, the plaintiff amended his complaint to allege that American Can and Black Belt were liable under the theory of joint enterprise or agency. Prior to the submission of the case to the jury, a directed verdict was entered by the trial court on behalf of John Tidmore. The jury returned verdicts in favor of defendants American Can, Black Belt, and Robert Poole, but found in favor of the plaintiff against S & T. The plaintiff filed a motion for a judgment notwithstanding the verdict (JNOV), or, in the alternative, for a new trial, against defendants American Can, Black Belt, and Robert Poole. S & T likewise filed a motion for a JNOV.

The trial court granted a new trial as to all defendants, except American Can, and stated the following reasons:

“1. The court does not and did not find any evidence in this case [on] which the jury could have properly returned a verdict against S & T Trucking Company, Inc., only.
“2. The evidence in this case does not support a verdict and judgment only against the defendant, S & T Trucking Company, Inc.
“3. The verdict in this case upon which the judgment is entered only against the defendant, S & T Trucking Company, Inc. is improper and not supported by the evidence.
“4. The defendant, S & T Trucking Company, Inc., could be subject to liability in this case, under the facts, only due to the action or inaction of the defendants, Robert Poole, and/or Blackbelt [sic] Wood company, Inc.
“5. The verdict returned by the jury, in this case, is an inconsistent verdict.
“6. The court is unable to determine in this case whether it was the conduct of the defendant, Blackbelt [sic] Wood Company, Inc., which was the basis of the jury verdict against the defendant, S & T Trucking Company, Inc.”

This appeal followed.

Appellants S & T and Robert Poole assert that the trial court should have granted their motion for a JNOV because under the doctrine of respondeat superior, a finding by a jury for the agent exonerates the principal. Alternatively, they argue that should this Court determine that the trial judge was correct in granting a new trial, then Robert Poole should not be included, because the jury had found him not guilty of negligence with regard to the death of James Karl Sessions.

On the other hand, appellant Black Belt contends that the trial court erred by ordering a new trial following a jury verdict in its behalf. Black Belt argues that S & T could not have been subjected to liability due to the action or inaction of Black Belt under the theories alleged by the plaintiff and under which the case was originally tried, because S & T and Black Belt were separate and independent entities.

Appellee Sessions argues, however, that since the jury found in favor of both Poole (the driver) and Black Belt (which loaded the wood), but against S & T (which owned the truck and employed its driver), the trial court was unable to ascertain who the jury found was guilty of negligence and properly granted the motion for new trial as to all three defendants.

Addressing the contentions of appellant Black Belt first, we note that a strong presumption of correctness is indulged in favor of the trial court regarding its rulings on a motion for a new trial. Shiloh Constr. Co. v. Mercury Constr. Corp., 392 So.2d 809, 814 (Ala.1980); Johnson v. Hodge, 291 Ala. 142, 143, 279 So.2d 123, 125 (1973). An order granting a new trial will not be disturbed on appeal unless some legal right was abused and the record plainly and palpably shows the trial court was in error. Johnson v. Hodge, supra, 291 Ala. at 143, 279 So.2d at 125.

In this case, the record plainly and palpably shows that grounds four and six as enumerated in the trial court’s order, were, as they pertain to Black Belt, incorrect as a matter of law. There was no allegation that Black Belt, by loading the wood, was acting as an agent for S & T. Appellee did amend his complaint to allege that American Can was vicariously liable for Black Belt’s activities because of a joint venture or a respondeat superior relationship, but nowhere in the complaint did the appellee allege either that S & T was vicariously liable for Black Belt’s actions or inactions, or that Black Belt was vicariously liable for 5 & T’s actions or inactions. Indeed, the evidence in this case fails to indicate that S 6 T was Black Belt’s agent or that Black Belt controlled the activities of S & T, or vice versa. What the uncontroverted facts do show is that S & T and Black Belt were separate and independent entities and that Black Belt had merely contracted with S & T to haul wood from its woodyard to American Can’s plant. The record further shows that neither of the parties requested any jury instructions regarding Black Belt’s liability on any theory other than negligence.

Because the record plainly and palpably indicates that, as a matter of law, the trial court erred by ordering a new trial as to appellant Black Belt, we reverse that order as to Black Belt, and order the trial court to reinstate the jury verdict on Black Belt’s behalf.

With respect to S & T and Poole, however, the record does not plainly and palpably show that the trial court erred by ordering a new trial. Johnson v. Hodge, supra. Indeed, it was undisputed in the record that Poole was employed by and worked for S & T and was the driver of its truck at the time of the accident. The jury absolved Poole from any liability in the accident. Our ruling here, however, should not be interpreted to mean that S & T’s alleged liability is solely of a vicarious variety and, therefore, can only be predicated on the negligence of its agent Poole. See, Carter v. Franklin, 234 Ala. 116, 173 So. 861 (1937).

Consequently, the part of the trial court’s order pertaining to appellants S & T and Poole is affirmed.

AFFIRMED, IN PART; REVERSED, IN PART; AND REMANDED.

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

ON APPLICATION FOR REHEARING

PER CURIAM.

The application for rehearing is granted. The judgment appealed from is affirmed.

Upon reconsideration, we are convinced that our reversal of the trial court’s order granting a new trial as to Black Belt Wood Company was in error. Our holding on original deliverance emphasized the absence of any basis in the evidence for the finding of a principal/agency relationship between S & T Trucking Co. and Black Belt; and this misplaced emphasis resulted from our interpretation of the trial court’s new trial order.

Originally, we read the order granting a new trial as to all Defendants as saying that the jury verdict was legally inconsistent with reference to the two named corporate Defendants. Because the evidence will not support a finding of vicarious liability on the part of S & T arising out of the conduct of Black Belt (a point on which all the members of the Court are in agreement) we felt that the trial court had misapplied the law and thus erred in granting Plaintiff a new trial as to Black Belt.

But this misconstrues the trial court’s new trial order. Rather than finding a legal inconsistency, as in the case of S & T and its employee truck driver, the trial judge found a factual inconsistency in the jury verdict in that it imposed liability on S & T and exonerated Black Belt. Although not so denominated, the trial court’s new trial order, as we now understand it, is essentially a weight and preponderance of the evidence ruling.

One of the theories of Plaintiff's claim against S & T was based on its alleged negligent hauling of any improperly loaded truck in violation of Code 1975, § 32-5-75:

“Any person operating a motor vehicle on any highway hauling logs, lumber, pulp wood, tar wood, bale cotton or hay or other articles that may shift or drop onto the highway is required to fasten such load with steel cables or chains of sufficient size to prevent the load from shifting or dropping onto the highway.”

The evidence plainly and palpably supports a finding against S & T based on its allegedly negligent hauling in violation of the above-quoted statute. Likewise, the evidence plainly and palpably supports a finding that Black Belt negligently loaded the truck. Indeed, in addition to the evidence relating to the allegedly negligent loading process, the evidence is without dispute that S & T’s driver stopped the truck more than once before the accident in an effort to tighten the chains and better secure the load of logs, all of which evidence raised a reasonable inference of improper loading — the function of Black Belt, with knowledge that the truck would be operated upon a public highway.

This clarification sheds a different light upon the trial court’s new trial order. It was not the vicarious liability of S & T for the negligence of Black Belt that formed the basis of the separate and several claims asserted by the Plaintiff; rather, the sole assertion against Black Belt was its liability for its own independent negligence. But, reasons the trial judge, the jury verdict against S & T, most probably based, pursuant to the weight of the evidence, upon its violation of the hauling statute, is necessarily premised upon a finding of negligent loading by Black Belt, not as an agent of S & T, but as an independent contractor.

While the trial court’s granting of a new trial, where the verdict is plainly and palpably supported by the evidence, is an abuse of its discretionary prerogative, we are obliged to indulge a presumption of correctness in favor of a new trial order where, as here, it is highly probable that the verdict under review is the result of confusion or misunderstanding or is inconsistent in law or in fact. Cobb v. Malone, 92 Ala. 630, 9 So. 738 (1891). Therefore, because we believe the trial judge properly perceived his discretionary role in preventing an unfair and unjust result under the circumstances, we affirm his order granting a new trial as to all three Defendants.

APPLICATION FOR REHEARING GRANTED.

AFFIRMED.

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

MADDOX, FAULKNER and BEATTY, JJ., dissent.

MADDOX, Justice

(dissenting).

I would deny rehearing because I am of the opinion that the law is correctly stated in' the majority opinion as originally written.


source: Caselaw Access Project

author: BEATTY, Justice. TORBERT, Chief Justice

license: Public Domain

text:
    Melvin WILLS v. Dr. Robert P. KLINGENBECK.
    82-958.
    Supreme Court of Alabama.
    June 1, 1984.
    Rehearing Denied Aug. 24, 1984.
    Carl Wade Robinson and Carl Ray Robinson, Bessemer, for appellant.
    James D. Pruett of Pruett, Hudson, Turnbach & Warren, Gadsden, for appellee.
   BEATTY, Justice.

This is an appeal by plaintiff from a summary judgment granted to a co-defendant in an action brought to recover damages for malpractice. We reverse and remand.

The plaintiff’s complaint named as defendants two medical doctors, John William Sherrer and George M. Gibbins; and an optometrist, Robert P. Klingenbeck. In the course of pleading and discovery, Dr. Klingenbeck moved for summary judgment on the ground that no genuine issue of material fact existed. Following argument, the trial court granted that motion. The trial court then certified the summary judgment as final. Rule 54(b), A.R.Civ.P. It is from the summary judgment granted to Dr. Klingenbeck that plaintiff appeals.

Plaintiff’s complaint against Dr. Klingen-beck claims basically that he failed to inform the plaintiff of the consequences of an eye condition, or to refer the plaintiff to an ophthalmologist or a neurosurgeon after the discovery of that eye condition, known as papilledema of the eye. The complaint further alleges:

“That the Defendant negligently failed to diagnose a brain tumor in the head of the plaintiff and negligently failed to inform or properly advise the plaintiff that the papilledema is a symptom of a brain tumor.”

From the evidence before the trial court, it appears that Melvin Wills, plaintiff, was a patient of Dr. Sherrer beginning sometime in 1977. Wills was being treated primarily for hypertension. In the latter part of January 1980, Wills went to Dr. Sherrer complaining of headaches and was hospitalized for tests related to that complaint. After a stay of several days, he was discharged from the hospital.

On February 1, 1980, Wills went to Dr. Klingenbeck for an examination for eye glasses. The facts are disputed as to what occurred during that visit. Wills insists in his deposition that Dr. Klingenbeck told him he had papilledema of the eye, but did not tell him what to do about it. Dr. Klin-genbeck, by deposition, stated that he did not discover the papilledema but that he did ascertain that Will’s blood pressure was very high and that he told him that he ought to see a physician about it at once.

On February 4,1980, Wills again saw Dr. Sherrer, who discovered the papilledema, and Dr. Sherrer then referred Wills to Dr. Gibbins, an ophthalmologist. Wills saw Dr. Gibbins the next day, February 5, and he confirmed Dr. Sherrer’s findings.

Wills claimed he returned to collect his glasses from Dr. Klingenbeck on February 8; however, Dr. Klingenbeck recalled that it was some two to four weeks later. On this second visit, there was no mention of the papilledema or the high blood pressure, and there was no further examination. Dr. Klingenbeck stated that he assumed that Wills was being treated. Wills never returned to Dr. Klingenbeck after that visit.

In October 1980, Wills was diagnosed by Dr. J.F. McRae, Jr., a neurosurgeon in Birmingham, as having a brain tumor. Wills had been referred to Dr. McRae’s group by Dr. M.R. Bernstein, also an ophthalmologist in Birmingham.

The only issue for review is whether the evidence before the trial court provided a scintilla of evidence in favor of plaintiffs claim that Dr. Klingenbeck breached a duty to plaintiff, thereby presenting a genuine issue of material fact and preventing the summary judgment in favor of co-defendant, Dr. Klingenbeck. Rule 56(c), A.R. Civ.P. The plaintiff strenuously argues that Dr. Klingenbeck, after having discovered the abnormality in Wills’s eyes, was under a duty to refer him to an ophthalmologist or a neurosurgeon for the treatment of that condition. He cites Code of 1975, § 34-22-1(1), which reads in pertinent part:

“PRACTICE OF OPTOMETRY. Any of the following:
“a. Any examination of the human eyes and system for the purpose of:
“1. Ascertaining any departure from the normal;
“2. Ascertaining the status of the human visual system, including the refractive and functional abilities thereof; or
“3. Ascertaining the presence of ocular disease or ocular manifestations of systemic disease and any other departure from the normal which may require referral to other health care practitioners.” (Emphasis added.)

Plaintiff contends that it is clear from the statute that Dr. Klingenbeck had a duty to refer him to other health care practitioners once he discovered the problem with his eyes.

Plaintiff further argues that Dr. Klin-genbeck’s claim that because Wills was already under the care of both an ophthalmologist and his own physician and that any steps taken by him to refer Wills would have been futile did not relieve him of his duty. The defendant argues in his brief to the contrary. He contends that any dispute as to this issue is not a question of material fact. Dr. Klingenbeck contends that since Wills “was already receiving treatment from physicians for his condition, regardless of whether or not the Appellee knew about the Appellant’s receiving the said treatment,” everything that could be done was being done. In our view, however, it is clear that the duties and responsibilities of an optometrist would not be relieved under these circumstances. The following extracts from the evidence submitted in opposition to summary judgment indicate to us that plaintiff has at least raised a scintilla on the duty to refer so as to defeat the defendant’s motion. Two affidavits were submitted by plaintiff. The first one read:

“My name is Harry Wallace, and I am a doctor of optometry and have practiced as such for thirty (30) years. It is my opinion that in the course of an examination of a patient, if the optometrist finds the patient to have papilledema, it is the optometrist’s duty and is good optomet-ric practice to refer that patient to an ophthalmologist, neurologist, or neurosurgeon for further definitive medical diagnosis and treatment, or to refer the patient to his family doctor to be referred to such a specialist. It is my opinion that the failure of the optometrist to do so would be a violation of his duty to the patient and would not be good optometric practice.”

The second affidavit read:

“My name is Michael R. Bernstein, and I am a medical doctor with a specialty in ophthalmology. I have previously given a deposition in [this] case.
“... [I]n the situation where an optometrist observes papilledema in a patient such as Mr. Wills, it is good optometric practice and medical practice for the optometrist to refer the patient to either an ophthalmologist or neurologist or neurosurgeon for further definitive medical diagnosis and treatment. Failure of the optometrist to do so for this patient or in the case of Mr. Wills, would be a violation of the optometrist’s duty to that patient or Mr. Wills, in my opinion.”

In this case, there is clearly a dispute as to whether Dr. Klingenbeck in fact observed a papilledema in Wills. It is undisputed that Dr. Klingenbeck did not refer Mr. Wills to an ophthalmologist or a neurosurgeon. Dr. Klingenbeck does claim that he told Wills he should check with his physician concerning his high blood pressure. Evidence by two recognized experts, through affidavits, stated that the failure of an optometrist to refer a patient, such as Mr. Wills, for immediate treatment, would in their opinion be a violation of his duty to the patient.

The defendant offered no evidence to counter this, and in our view there was a question of fact presented for the jury. This Court stated the rule regarding the grant of summary judgment in Gross v. Republic Steel Corporation, 400 So.2d 383, 385 (Ala.1981), as follows:

“[0]n a motion for summary judgment the burden of proof is stricter than on a trial on the merits, because on the motion all reasonable inferences from the facts are to be viewed most favorably to the non-moving party, Campbell v. Alabama Power Company, Ala., 378 So.2d 718 (1979), and the burden is upon the moving party to show that no triable issue of material fact exists. Amason v. First State Bank of Lineville, Ala., 369 So.2d 547 (1979). So that if there is a scintilla of evidence supporting the non-moving party, a mere gleam, glimmer, spark or trace in support of the plaintiffs complaint, summary judgment is inappropriate. Wilson v. Liberty National Life Ins. Co., Ala., 331 So.2d 617 (1976).”

For the reasons stated, the trial court erred in entering summary judgment for the defendant, Dr. Klingenbeck. That judgment, therefore, must be, and it hereby is, reversed and the cause remanded for further proceedings.

REVERSED AND REMANDED.

MADDOX, JONES and SHORES, JJ., concur.

TORBERT, C.J., concurs specially.

TORBERT, Chief Justice

(concurring specially).

The basic issue involved in this case is whether an optometrist is under a duty to refer a patient to proper health care providers when he discovers a condition known as papilledema of the eye. Affidavits were offered in opposition to the defendant’s motion for summary judgment which indicate there was such a duty. Dr. Klingenbeck, the defendant, argues that he was relieved of that duty because the plaintiff, Mr. Wills, was already under the care of a physician.

Initially, I note that there is a dispute as to whether Dr. Klingenbeck was aware of the fact that Wills was seeing a physician. Knowledge on the part of Dr. Klingenbeck of whether Wills was seeing a physician would seem to be relevant in determining whether Dr. Klingenbeck was relieved of a duty. Because there was a genuine issue of a material fact with respect to the duty issue, I agree that summary judgment in favor of the defendant on that ground was improper.

However, I feel compelled to point out that this may be a case where plaintiff can establish a breach of duty but no injury that was proximately caused by that breach. If plaintiff can not establish that an injury was proximately caused by the breach of a duty, then he can not recover. Hall v. Booth, 423 So.2d 184 (Ala.1982). Dr. Klingenbeck’s argument about Wills’s already being under the care of physicians may not affect the outcome of the duty issue, but it may be persuasive in showing that no harm was caused by the alleged breach.


author: PER CURIAM.

text:
    Jennie STEWART v. Harold DICKERSON and Linda Dickerson.
    82-1257.
    Supreme Court of Alabama.
    June 22, 1984.
    Rehearing Denied Aug. 24, 1984.
    Clyde D. Baker, Guntersville, for appellant.
    T.J. Carnes of Carnes & Carnes, Albert-ville, for appellee.
   PER CURIAM.

The only issue on this appeal is whether the grantor was entitled to have a deed declared void pursuant to § 8-9-12, Ala. Code 1975. This section states in full:

“Any conveyance of realty wherein a material part of the consideration is the agreement of the grantee to support the grantor during life is void at the option of the grantor, except as to bona fide purchasers for value, lienees and mortgagees without notice, if, during the life of the grantor, he takes proceedings to annul such conveyance.”

Jennie Stewart, aged 84, conveyed to Harold and Linda Dickerson all of her interest in a parcel of land upon which was the house she had lived in for about thirty years. Linda Dickerson is her granddaughter, and Harold Dickerson is Linda’s husband. Harold and Linda moved into the house in March 1981. About one year later, Jennie Stewart moved out.

Jennie Stewart filed this action to void the deed under § 8-9-12, Ala. Code 1975. After an ore tenus hearing, the trial court found that the deed to Linda and Harold was not within the purview of the statute and refused the requested relief. Mrs. Stewart appeals from this final judgment. We reverse.

The only issue is whether there was clear, satisfactory, and convincing evidence that a material part of the consideration for the deed was the promise of the grantees to support Jennie Stewart for the rest of her life.

The deed was prepared by the granddaughter, Linda, and stated that the consideration was “One Dollar and other valuable considerations.” “Parol evidence is admissible to show that the actual consideration for the execution of the deed was the promise on the part of the grantee[s] to support the grantor during ... [her] life. Entrekin v. Entrekin, 388 So.2d 931 (Ala.1980).

Harold and Linda Dickerson testified that, as consideration for the deed, they had promised Jennie Stewart that she could continue to live in the house for the rest of her life. They also promised to provide her with food, “warmth in the wintertime, and cool in the summer.” Mrs. Stewart apparently did pay for some of the groceries on occasion. However, this fact does not remove the deed from the purview of the statute. See Heartsill v. Thompson, 245 Ala. 215, 16 So.2d 507 (1944). There was evidence that, prior to the execution of the deed, one of Mrs. Stewart’s other granddaughters had been living in the house with her, but this granddaughter would be leaving to go to college. There was a consensus in the family that Mrs. Stewart should not live alone and that someone should be there to look after her. The Dickersons testified that they moved in to provide “good, stable — and proper assistance when she [Jennie Stewart] needed it.” It is undisputed that no other consideration was given.

We hold that the evidence is clear, satisfactory, and convincing that the Dicker-sons’ promises were tantamount to a promise to support Mrs. Stewart for the rest of her life in consideration for the deed. The Dickersons, by their own testimony, have stated as much. The agreement was contemplated and accepted by the parties prior to the execution of the deed and was undis-putedly a material part of the consideration.

The statute was enacted to protect “the aged, weak, or afflicted [who] had improvidently executed conveyances upon the promise of support.” Heartsill v. Thompson, 245 Ala. at 218, 16 So.2d at 509, citing Bush v. Greer, 235 Ala. 56, 177 So. 341 (1937). Our holding today upholds this purpose. At the time the deed was executed, Mrs. Stewart was 84 years old. Her eyesight has deteriorated greatly, and she apparently can no longer live alone. In March 1982, she moved out of the house, and she has been living with her son and daughter-in-law since then. She no longer receives support from Harold and Linda Dickerson. These facts present the classic case which the statute was designed to prevent.

We hold that, under the undisputed facts, the trial court erred in holding that the case did not come within the purview of § 8-9-12, Ala. Code 1975. Accordingly, the judgment is reversed and the cause remanded.

REVERSED .AND REMANDED.

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


text:
    Richard MYRICK v. Gwendolyn TEEL, et al.
    No. 83-264.
    Supreme Court of Alabama.
    June 22, 1984.
    Rehearing Denied Aug. 24, 1984.
    Jim L. DeBardelaben of McPhillips & DeBardelaben, Montgomery, for appellant.
    J. Robert Faulk and Theron 0. McDowell, Jr., Prattville, for appellees.
   PER CURIAM.

The facts in this case are almost identical to those considered by the Court in Harrelson v. Glisson, 424 So.2d 591 (Ala.1982). Therefore, the judgment of the trial court is due to be, and it is hereby, affirmed on the authority of that decision.

AFFIRMED.

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


author:
FAULKNER, Justice.
      BEATTY, Justice

text:
    CITY OF BIRMINGHAM, a municipal corporation, et al. v. FEDERATION OF CITY EMPLOYEES, an unincorporated labor association, et al.
    82-1267.
    Supreme Court of Alabama.
    July 6, 1984.
    Rehearing Denied Sept. 7, 1984.
    Charles T. Bradshaw and Samuel Fisher, Asst. City Attys., Birmingham, for appellants.
    Raymond P. Fitzpatrick, Jr., Birmingham, for appellees Federation of City Employees, et al.
    David P. Whiteside, Jr. and Michael L. Hall of Johnston, Barton, Proctor, Swedlaw & Naff, Birmingham, for appellee the Personnel Bd. of Jefferson County.
   FAULKNER, Justice.

The Federation of City Employees brought this action for a declaratory judgment against the City. The employees sought to determine whether the adoption of the City’s 1984 fiscal year budget containing an appropriation of funds sufficient for a pay increase for city workers was the only action necessary in order for the Jefferson County Personnel Board to consider granting the pay increase. Since the case involves the application of law to undisputed facts, the trial court entertained cross motions for summary judgment. It ruled that under the applicable statutes adoption of the budget ordinance was all that was necessary, and on September 8, 1983, it ordered the Personnel Board to consider the pay increase.

On September 14 at 11:58 A.M., the City filed its notice of appeal. Prior to the Board’s 1:00 P.M. meeting, the City served the Board with a notice of appeal. At the meeting the Board approved the pay increase and, after motions to stay the implementation of the pay increase were denied by the trial court and by this Court, the City began paying the increased salaries.

The budget ordinance in question was duly enacted by the City. The Mayor submitted a proposed fiscal year budget, which was adopted by a majority vote of the City Council. See §§ 5.02, 5.10 Mayor-Council Act of 1955 (Act. No. 452, 1955 Ala. Acts). Because a general election in which members of the City Council were to be elected was scheduled within twelve months of the passage of the ordinance, it was necessary that any pay increase be approved by the Personnel Board. See § 12 of the Personnel Board Aet of Jefferson County (Act No. 248, 1945 Alabama Acts, as last amended by Act. No. 684, 1977 Ala. Acts). The Mayor’s budget message stated that the funds for the wage increase would be obtained by cutting the costs of employee benefit programs for future years. Because the City was involved in negotiations with the employees regarding the manner in which the benefit programs would be modified in order to realize the desired savings, the City refused to take any action to officially advise the Jefferson County Personnel Board of the proposed salary increase. The City took the position that passage of the budget ordinance did not constitute a commitment to grant the pay increase. It contended that it intended to enact a separate ordinance or resolution to implement the pay increase after an agreement was reached with the employees.

The employees took the position that the adoption of the budget ordinance was all that was necessary, subject to the approval of the Personnel Board, to implement the pay raise. In response to the City’s argument that the budget ordinance merely allocates funds from which the Mayor can, at his discretion, grant a pay raise (see § 4.06(8) of the Mayor-Council Act, supra), the employees argue that the Personnel Board Act provides that salaries are to be set by ordinance and that, although the Mayor has discretion with regard to certain expenditures, salaries provided for by ordinance and approved by the Personnel Board are obligatory expenditures. See § 12 of the Personnel Board Act and § 5.13 of the Mayor-Council Act, supra.

By this appeal the City seeks a review of the trial court’s construction of the applicable statutes with regard to their effect on the granting of pay increases to City employees. We deem it inappropriate, however, to reach the merits of the case, because it is moot. The raise sought by the employees is in effect, and the City does not contend that it would seek to lower the salaries upon rendition of a favorable decision by this Court. Nor has the city council sought to decrease the salaries during the pendency of this case. Indeed, the date for submission of the next fiscal year’s budget has passed. When an event occurs during the pendency of an appeal rendering the appeal moot, the appeal should be dismissed. Arrington v. State ex rel. Parsons, 422 So.2d 759, 760 (Ala.1982).

We opine that this case does not present facts of such great public importance or a situation so likely to recur that an exception to the mootness doctrine is warranted. See Arrington, supra, and Willis v. Buchman, 240 Ala. 386, 199 So. 892 (1940).

The appeal is hereby dismissed.

APPEAL DISMISSED.

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

TORBERT, C.J., and SHORES and BEATTY, JJ., dissent, with opinion by BEATTY, J.

ADAMS, J., recused.

BEATTY, Justice

(dissenting):

I respectfully dissent from the majority opinion. While I readily concede mootness on the facts presented, I think this is just the sort of “situation so likely to recur that an exception to the mootness doctrine is warranted.” 455 So.2d 812. It is highly unlikely that this will be the last pay raise received by Birmingham city employees. Due to inflation and the ever-increasing cost of living, periodic pay raises are simply a fact of life. City officials need to know what actions on their part constitute an implementation of a pay raise. By failing to render a decision on the merits, the Court leaves the City of Birmingham with no guidance in the matter.

TORBERT, C.J., and SHORES, J.' concur.

      . The City’s fiscal year begins July 1, and the proposed budget for the fiscal year must be submitted no later than May 20. See §§ 5.01 and 5.02 of the Mayor-Council Act.


author: FAULKNER, Justice.

text:
    Jo Anne HALL v. William B. HALL.
    83-112.
    Supreme Court of Alabama.
    July 6, 1984.
    Rehearing Denied Sept. 7, 1984.

      J. Gusty Yearout and Joanne E. Boyd of Lorant, Harris & Yearout, Birmingham, for appellant.
    Frank M. Bainbridge of Porterfield, Scholl, Bainbridge, Mims & Harper, Birmingham, for appellee.
   FAULKNER, Justice.

Jo Anne Hall brought this action against her ex-husband for damages stemming from representations he allegedly made in connection with the parties’ divorce. The gist of her claim is that the defendant induced her to “consent to the termination of their marriage” by representing to her that he wanted a divorce for “business reasons” and by promising that after the divorce they would continue living together as man and wife, when in fact he wanted the divorce so he could move and marry another woman. The plaintiff does not seek to have the divorce decree set aside or modified. Instead, she seeks damages for the embarrassment, humiliation, and reduced standard of living allegedly caused by the defendant’s misrepresentations. The trial court granted the defendant a summary judgment and the plaintiff appeals.

The facts contained in the pleadings, depositions, and answers to interrogatories, when viewed most favorably toward the plaintiff, are as follows:

During the months prior to their divorce Mr. Hall convinced his wife that they were in danger of losing their home because of his business failures and that she and the children would be “thrown out into the street” unless she consented to a divorce. Hall promised his then-wife that if she agreed to a “business divorce” they would continue to live together as man and wife after the divorce and he would continue to support her as he had in the past.

Mr. Hall gave his wife a piece of paper with an attorney’s name on it and told her to see him about the divorce. Mrs. Hall met with the attorney on one occasion for twenty minutes prior to the time when the case was set for trial. She claims to have told the attorney about the arrangement and that she did not want the divorce and that he replied, “Jo Anne, you’ve got to. You can’t back out now.”

A divorce decree was rendered based on oral testimony. Mrs. Hall admitted in her deposition that she testified at the trial of the divorce case that she wanted a divorce and that during the questioning by attorneys for both parties and by the trial judge she never mentioned the alleged agreement with Mr. Hall to live as man and wife after the divorce. The divorce decree awarded Mrs. Hall the family residence and all the personal property therein except for one television and a shotgun, which were awarded to the defendant. Mrs. Hall was awarded custody of the three minor children and was awarded $250.00 per month child support per child and $250.00 per month of periodic alimony. Mr. Hall was ordered to maintain hospitalization insurance on the children and to maintain a life insurance policy on himself and to pay all the debts of the marriage except the mortgages on the house.

The parties continued to live together for about three months until Mr. Hall moved to Atlanta. He came home on weekends for several weeks before he informed his ex-wife that he “wasn’t coming home any more.”

Mrs. Hall filed a four-count complaint alleging fraud, conspiracy to defraud, breach of contract, and bad faith. Mr. Hall filed an answer denying the allegations of the complaint and pleading the statute of limitations, res judicata, and estoppel. The trial court granted the defendant summary judgment on the grounds that the agreement which formed the basis of the plaintiffs claim was tainted with illegality and that, if her allegations were true, Mrs. Hall had actively participated in a fraud on the court in obtaining the divorce.

I.

THE CONTRACT COUNT

Agreements aimed at collusive dissolution of a marriage are illegal and unenforceable. Merchants Nat. Bank of Mobile v. Cotnam, 250 Ala. 316, 327, 34 So.2d 122, 131 (1948); Wright v. Martin, 214 Ala. 334, 336, 107 So. 818, 820 (1926). Such agreements are violative of both public policy and an Alabama statute prohibiting consensual divorce. Section 30-2-3, Code of Alabama (1975). Executory contracts based on the consideration of future illicit cohabitation are similarly unenforceable. Merchants Nat. Bank of Mobile, supra, 250 Ala. at 325, 34 So.2d at 129. The plaintiff is not entitled, therefore, to maintain an action for breach of contract.

II.

THE BAD FAITH COUNT

Mrs. Hall’s claim for bad faith fails to state a claim on which relief can be granted. The tort of bad faith has been recognized in this State only within the insurance policy context. See Kennedy Electric Co. v. Moore-Handley, Inc., 437 So.2d 76, 81 (Ala.1983). Given the illegal nature of the contract, we are not prepared to extend the tort to cover this sort of situation.

III.

THE FRAUD COUNTS

Although a party may bring an action seeking relief from a judgment procured by fraud, A.R.Civ.P. 60(b), the plaintiff does not seek to have the divorce decree set aside or modified. Presumably, she would be unable to have the decree set aside, because she participated in the fraudulent procurement of the decree and has freely enjoyed the fruits of the divorce. Shapiro v. Shapiro, 280 Ala. 115, 190 So.2d 548 (1966).

We are of the opinion that the plaintiff should not be allowed to do indirectly what she would be unable to do by directly attacking the decree. An inquiry into the damages she suffered by relying on the defendant’s representations would necessarily require an inquiry into the adequacy of the award in the divorce action. Since Mrs. Hall has chosen not to attack the award in the divorce decree, she should be bound by it.

Even if the situation were such that the plaintiff was not estopped from attacking the divorce decree, the facts in the record do not support her claim that she “allowed herself to be divorced from the defendant without contest.” The divorce decree was based on oral testimony, not on an agreement between the parties. A different situation might be presented in a case where a litigant is fraudulently induced to enter into an agreement settling a case on disadvantageous terms.

The trial court’s decision is hereby affirmed.

AFFIRMED.

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

EMBRY, J., not sitting.


author: MERRILL, Chief Justice.

text:
    Barbara PIPPIN, et al. v. Malcolm BRASSELL, et al. Willie T. BENNETT v. Malcolm BRASSELL, et al. T. Eric EMBRY, et al. v. Malcolm BRASSELL, et al. Ronald L. MYERS v. Malcolm BRASSELL, et al.
    83-224 to 83-227.
    Supreme Court of Alabama.
    July 6, 1984.
    Rehearing Denied Aug. 24, 1984.
    Robert C. Black of Hill, Hill, Carter, Franco, Cole & Black, Montgomery, for appellant Willie T. Bennett.
    Robert A. Huffaker of Rushton, Stakely, Johnston & Garrett, Montgomery, for appellants T. Eric Embry and Reneau P. Al-mon.
    George Beck, Montgomery, for appellants Barbara Pippin, et al.
    E. Terry Brown, Montgomery, for appellants Ronald L. Myers, et al.
    Jim Zeigler, Montgomery, for appellee Malcolm Brassell.
    Philip C. Davis and Rosa Davis, Montgomery, for appellees Charles A. Graddick and Annie Laurie Gunter.
    Guy Hayes and Bruce J. Downey III of Capell, Howard, Knabe & Cobbs, Montgomery, for appellees Tom Brassell and Henry Steagall.
   MERRILL, Chief Justice.

All the members of the Supreme Court of Alabama recused themselves in these cases. The following were appointed to hear and decide them. Retired Justice Pelham J. Merrill of Montgomery was appointed to serve as Chief Justice and retired Justice Robert B. Harwood of Tuscaloosa, retired Circuit Judges Robert M. Hill, Sr., of Florence, Eris F. Paul of Elba, Ingram Beasley of Birmingham, James H. Sharbutt of Vincent and William D. Bolling of Mobile were appointed to serve as Associate Justices “with full and complete authority as if they were the active Justices of the Supreme Court of Alabama, until the final determination of these cases.”

The case was argued and submitted to this Court on June 19, 1984.

The suit was filed in January 1983 by appellant Brassell showing that certain officers and employees whose salaries were set by law were going to receive more pay than they should because there were twenty-seven pay days in the fiscal year 1982-83, rather than the usual twenty-six and if those officers and employees continued to be paid the same amounts every two weeks that they had been receiving, they would receive more than their annual salary which was fixed by law. This did not affect the state employees under the merit system because they are hired and paid under a two weeks pay schedule. The statute under which the officers and employees were paid at that time was Section 36-6-1, Code of Alabama 1975.

“The salaries of all officers and employees of the state of Alabama shall be payable biweekly; except, that where the day on which such salaries are payable is a holiday, such salaries shall be payable on the last working day preceding such holiday. Every state officer or employee whose salary is fixed in accordance with the pay plan of the state merit system shall be entitled to recieve one half of his monthly salary as prescribed in the pay plan at the end of such pay period. The salary of every other officer or employee shall be payable bi-weekly and shall be an amount which is to be determined by dividing the number of pay periods in the fiscal year into his annual salary. Any unpaid salaries may be paid upon the expiration of the term of employment of the officer or employee.”

Some parties were allowed to intervene in the suit including two justices, a few circuit judges, a court reporter, a circuit clerk and a district attorney.

All of the circuit judges of the 15th Judicial Circuit (Montgomery County) recused themselves and Chief Justice Torbert assigned the case to retired Circuit Judge James 0. Haley of Birmingham.

After several hearings Judge Haley rendered his decree on July 11, 1983.

The appellants made motions for a rehearing and a new trial. The motions for rehearing were granted, extensive testimony was taken, and the original decree was amended in one particular — to rectify any compensation due a salaried officer or employee who resigned or retired during the period when the pay was diminished to keep from overpaying the officer or employee the salary due him by law.

We think and agree that Judge Haley’s decrees are excellent, understandable and fair, and we affirm his holding. We adopt his decrees as ours and we quote them verbatim except that we add ten words in brackets at one place in his opinion.

“FINAL DECREE

“This matter coming on to be heard at three hearings and after the submission of briefs by the parties, the following Order is made:

“1. That the motions of the Intervenors are due to be granted by agreement of the parties and the same are hereby GRANTED;

“2. That all Motions to Dismiss, including that by the plaintiff, with the parties’ agreement, are DENIED;

“3. That the motion for class certification is, with consent of all parties, DENIED based on the determination by the Court that the action is properly one for a Declaratory Judgment and further based on the agreement by the Alabama Department of Revenue that all similarly situated officers and employees covered by the declaration will be similarly treated;

“4. That no money judgment need be entered for any individual plaintiff against any defendant;

“5. That by agreement of the parties all demands for trial by jury are WITHDRAWN and all rights to trial by jury WAIVED;

“6. Normally, there are 26 pay periods, and/or ‘pay days’ in a calendar or fiscal year but in each eleventh year there will be 27 pay periods or ‘pay days.’ This controversy centers around the 27th pay day since it does occur in the 1982-83 year. Every party to this lawsuit admits that each officer and employee who is paid on an annual basis is entitled to his or her full annual pay, no more and no less. A cursory consideration of the problem would lead one to the conclusion that the answer is an easy one, but that is not the case. By using a divisor of 27 in the year 1982-83 instead of 26 would result in the under payment of those persons who were not in the office for the full year unless the Court accepts the contention of the Finance Director that the annual pay goes to the office and not the incumbent of that office. The Court rejects this contention.

“Strong arguments have been made by some of the intervenors in an effort to show that by going back into the pay they have received in past years and by using a per day wage and sometimes a calendar year basis rather than a fiscal year basis, they have been under paid. The State’s budget and the appropriation to meet the budget are based on the fiscal year and the Court must decide the case on that basis. This Court in the present proceeding is being asked to construe the law so as to assure that those persons affected will receive the correct amount of pay for 1981-82 and 1982-83 in view of the 27 pay days in 1982-83. The Court does not have the authority to go back beyond this period and correct any under payments or any over payments in years prior to the period involved. The Court is of the opinion that this Order does assure every person affected his or her full salary for the two years involved. [This was supported by evidence from both appellants and appellees.] Each year prior thereto had 26 pay days whether the payments were on a bi-weekly or a semi-annual basis and presumably they received Vk of their annual salary each time they were paid.

“7. That the cycle creating an extra payday in each eleventh fiscal year could be best addressed by legislative correction providing for semi-monthly payments to these officers and employees, but that the present bi-weekly salary basis does not create such a problem as to be constitutionally impermissible;

“8. That the officers and employees covered by this action fall into two general classes for the purposes of this Order, those who received their full annual salary in fiscal year 1981-82 and those who did not;

“9. That the Circuit and District Judges of this state are in the latter category and those who served in the prior fiscal (1981-82) year failed to receive their final paycheck in that year. This Order directs the Department of Finance to correct this underpayment in accordance with the following provisions of the Order.

“Based upon the above and foregoing findings it is the ORDER, JUDGMENT and DECREE of this Court that each officer and employee should receive the entire annual salary, or proportion thereof, provided for his office during each fiscal year.

“It is further ORDERED that in order to achieve this result the Finance Department of this state should calculate the amount each such officer and employee has received this fiscal year (to include the October 1, 1982, payment) up to the beginning of the first full pay period after the effective date of this Order and then subtract that amount from the annual salary for these officers and employees and pay the remaining balance to those officers and employees in equal installments over the remaining paydays occurring in this fiscal year. In order to administratively implement this Order, the Finance Department is directed to pay such remaining amount in equal installments commencing with the payday of the first full pay period after the effective date of this Order. If any officer or employee was underpaid in the fiscal year 1981-82, as the District and Circuit Judges were, the amount of this underpayment should be added to the authorized annual salary for this fiscal year before this calculation is made in order that he or she shall receive the full compensation due him or her. It is determined that the Circuit Judges were underpaid $1,538.50 in fiscal year 1981-82 and the District Judges were underpaid $1,230.80 in that fiscal year.

“If an officer or employee was underpaid in fiscal year 1981-82, he or she shall be entitled to the same treatment based on repayment of the fiscal year 1981-82 underpayment and payment for the portion of the present fiscal year in office at a daily rate determined by dividing the annual salary by 365 and multiplying this daily rate by the total number of days in office in the 1982-83 fiscal year.

“If an officer or employee has only worked a portion of this fiscal year, then he or she should receive the daily rate times the number of days in office this fiscal year.

“Every officer and employee’s rate of pay should be such that will insure that he receives his full daily rate for the number of days in office in the fiscal year 1982-83. For example, any employee who has been receiving less than the daily rate during said fiscal year shall have his daily rate adjusted for the remaining paydays to insure full compensation.

“Attorney Jim Zeigler has petitioned the Court for an order allowing him an attorney’s fee for filing this suit on behalf of a tax payer. At the last hearing the Court reserved ruling on this Motion and gave to attorney Zeigler and the attorney for the Finance Department, time to submit briefs on the legal question of the Court’s authority to award an attorney’s fee in a case of this type. Mr. Zeigler has submitted a brief and argument but has cited no Alabama authority for the allowance of a fee. He did submit a Law Review article from Wake Forest Law Review. The Supreme Court of Alabama, however, in the case of Shelby County Commission v. Smith, 372 So.2d 1092 (1979) and in the case of City of Montgomery v. Collins, 355 So.2d 1111 [1978], refused to allow attorney’s fees in tax payers suits unless specifically authorized by statute. Alabama statutes do not provide for attorney’s fees in cases of this type and no fund out of which the fees can be paid has been created as a result of this lawsuit. As a matter of fact, the underpayments which have been ordered paid most likely will result in the state paying out more than it will save as a result of this litigation, if in fact, it saves anything.

“For the reasons that the Court lacks authority to award an attorney’s fee, the Motion for a fee is DENIED.

“Each party shall bear his own costs.

“DONE and ORDERED this 11th day of July, 1983.

“(Signature of Judge James 0. Haley, Circuit Judge Retired, Sitting by Special Appointment from the Supreme Court)”

The order after the rehearing reads as follows:

“IT IS THEREFORE ORDERED, ADJUDGED AND DECREED that the original decree is amended as follows:

“If the employment of any officer or employee was terminated between October 1, 1982 and September 30, 1983, the Department of Finance shall compute the amount of salary earned in said period by using a divisor of 27 in computing his biweekly salary rather than using the per day basis contained in the original decree.

“Except in the respects hereinabove decreed all motions for rehearing and/or to alter, amend or vacate the final decree entered on July 11, 1983 are overruled.

“DATED this the 4 day of October, 1983.
“(Signature of James O. Haley, CIRCUIT JUDGE)”

The decree of the trial court, as amended, is due to be, and it is hereby, affirmed.

The best feature of this case is that this problem will not arise again. Following Judge Haley’s suggestion in paragraph 7 of the final decree, the 1983 legislature amended the law so that all officers and employees whose salaries are fixed by law will be paid on the fifteenth and last day of each month, thereby eliminating all of these officers and employees from the “pay period” provision.

AFFIRMED.

HARWOOD, HILL, PAUL, BEASLEY, SHARBUTT and BOLLING, JJ., concur.

       (Added by this Court.)


author: ALMON, Justice.

text:
    Lester E. WHITE, et al. v. Leslie BOGGS, et al.
    82-1292.
    Supreme Court of Alabama.
    July 13, 1984.
    Rehearing Denied Aug. 31, 1984.
    Clarence T. Heliums, Jr. of Heliums & Meigs, Centreville, for appellants.
    William D. Davis, III, Bessemer, for ap-pellees Luther C. May and Morris R. Nelson.
    Michael L. Murphy, Centreville, for ap-pellee Estate of Issac M. Fowler.
   ALMON, Justice.

This appeal involves a dispute over ownership of real property. The parties claim certain parcels of land under conflicting deeds, and plaintiffs claim another parcel by adverse possession. The trial court held that defendants own all the parcels, and plaintiffs appeal.

On July 6, 1946, John Swindal and his wife conveyed to Lester E. White 38 acres, the NE ¼ of the NE ¼ of Section 21, Township 22, Range 5 West, less two acres previously deeded for two cemeteries. White had the deed recorded on that date.

County Road 24 runs east and west approximately in the middle of the quarter-quarter section. Swindal had lived in a house on the south side of the road, and Lester White and his wife Lula Mae White moved into that house when they bought the property. The land in dispute lies north of the county road. Isaac Fowler and his wife owned land north of the section line and land west of the quarter-quarter section line bounding on the west the property described in White’s deed. The Fowlers’ house was just north of the quarter-quarter section.

In 1937, well before the Whites purchased from Swindal, a controversy arose between Swindal and Isaac Fowler. Fowler claimed to own certain portions of the land within the quarter-quarter section. Swindal had bought the land in 1934, and had a survey done to find out where his land was and how much he had. As he testified, the survey “went through ... Mr. Fowler’s front yard at the north quarter line.” Fowler executed a quitclaim deed to Swindal, apparently conveying his interest in the portion of the quarter-quarter section north of the road. Swindal, in turn, conveyed to Fowler three described parcels: six acres, more or less, on the east side of the disputed property, two acres, more or less, known as the oak grove in front of Fowler’s house, and one acre, more or less, including a spring. The parties describe these parcels as comprising 7.2 acres in the quarter-quarter section north of the road.

Swindal had his quitclaim deed from Fowler recorded on November 12,1937, but Fowler did not record his eontemporane-ously-executed deed from Swindal until September 10, 1948, more than two years after White purchased the property. White contends that because he purchased the entire quarter-quarter section without record notice of Fowler’s interest, he owns the 7.2 acres in addition of the rest of the property north of the road.

The appellees, Fowler’s heirs, reply that White purchased the land with actual notice from Swindal that-he had conveyed the 7.2 acres to Fowler. The trial court agreed in its findings of fact:

“According to J.V. Swindal’s testimony he had previously deeded to Isaac M. Fowler the 7.2 acres in question in 1937. He further testified that he had made Mr. White aware of this fact. The testimony further showed that a barn was built in 1949 and a pump house was built [at the spring] on the property. That pine timber had been cut off the land in question in 1954. The testimony further revealed that the Whites lived only a short distance from the Fowlers but never objected to the building of the pump house, barn or the cutting of timber and maintaining approximately] two acres [the oak grove] along the side of the drive up to the Isaac M. Fowlers’ house. The testimony further revealed that the Plaintiff and Swindal’s [sic] were lay people and had not consulted a lawyer to advise them as to how to prepare the deed in 1946.
“The deed should have excepted the 7.2 acres which had already been deeded to the Fowlers.”

If a deed conveying real property is not recorded, it is void as to a subsequent party who purchases without notice of the prior deed. Code 1975, § 35-4-90(a). “[W]hatever is sufficient to excite attention and put the party on his guard and call for inquiry is notice of everything to which the inquiry would have led; ... one who has knowledge of facts sufficient to put him on inquiry as to the existence of an unrecorded deed is not a purchaser without notice within the protection of the registry statutes.” Jefferson County v. Mosley, 284 Ala. 593, 599, 226 So.2d 652, 656 (1969) (citations omitted).

White disputes the trial court’s finding that he purchased with notice of Fowler’s interest, by citing Swindal’s testimony and pointing out that Swindal could not definitely recall that he told White of the earlier deed to Fowler before he conveyed the property to White. On direct examination, Swindal testified:

“Q. You told Mr. White you deeded some property to Mr. Fowler?
“A. Yes.
“Q. And was this before you sold the property to Mr. White?
“A. It was ‘long about the time I sold it. It was before or right after, I don’t know.”

At the end of Swindal’s testimony, the court asked him some further questions, during which the following exchange took place:

“A. He was told what he was getting. I told him.
“THE COURT: Did you walk and show him the corners and all?
“A. I told him what I deeded him. I deeded him the grove and that acre going down by this spring and all that back to the Kynard fence.
“THE COURT: You told Mr. White you had — that you had deeded that to Mr. Fowler?
“A. Yes.”

While neither exchange specifically shows that Swindal imparted the information to White before giving him the deed, both do admit of that conclusion. When supported by the evidence of possession by the Fowlers, particularly the maintenance of the oak grove and the indication that they used it for their driveway, the record supports the trial court’s finding that White had notice either of the Fowlers’ deed, or at least of facts sufficient to put him on inquiry, prior to purchasing the property.

White further argues that the trial court erred in disallowing certain rebuttal testimony. The acceptance or rejection of evidence not strictly in rebuttal is within the sound discretion of the trial court. Gulf Refining Co. v. First National Bank of Mobile, 270 Ala. 351, 119 So.2d 1 (1960); Bertolla v. Kaiser, 267 Ala. 435, 103 So.2d 736 (1958). We find no abuse of that discretion in this case. The question regarded the cutting of timber on the 7.2 acres, but brought up new matter regarding C.E. Hornsby, who had not been previously mentioned.

Finally, White argues that the trial court erred in denying his claim of adverse possession of a four-acre parcel west of the property described in his deed. This parcel is situated in the NW ¼ of the NE ¼ of Section 21 and adjoins the land undisputedly convéyed to White in the western part of the NE ¼ of the NE Vi north of County Road 24. The Fowlers are record owners of this land. White claimed to have fenced the four acres, planted pine trees, and done other acts establishing possession. The Fowlers, however, denied the existence of a fence or of planted timber, and introduced evidence of acts establishing their claim to own the land.

The trial court found “no testimony that the Plaintiffs held 4 acres in the [NW Vi of the NE Vi\ ... openly and continuously for twenty years.” The judgment of a trial court in a boundary line dispute carries a presumption of correctness where the evidence is presented orally. The presumption is particularly appropriate where, as here, the witnesses referred and pointed to exhibits and maps, some of which are not in the record. Kirby v. Jones, 370 So.2d 250 (Ala.1979); Smith v. Clark, 341 So.2d 720 (Ala.1977); Barnett v. Millis, 286 Ala. 681, 246 So.2d 78 (1971).

The trial court’s findings and judgment are not to be disturbed unless clearly erroneous. Rule 52, A.R.Civ.P., and cases cited, supra. The judgment of the trial court is not clearly erroneous, and so it is due to be affirmed.

AFFIRMED.

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

      . Both Mr. and Mrs. White are plaintiffs/appellants, but only Mr. White is named as a grantee on the deed.


text:
    Blanche B. ANGELL v. Charles E. SHANNON.
    83-345.
    Supreme Court of Alabama.
    July 13, 1984.
    Rehearing Denied Aug. 31, 1984.
    Julian L. McPhillips, Jr. and Robert D. Segall, Montgomery, for appellant.
    Albert L. Roemer, Montgomery, for ap-pellee.
   PER CURIAM.

Blanche Angelí appeals from an order dismissing her complaint against the defendant, Charles E. Shannon, for breach of contract. We affirm.

The complaint in this action was filed on August 23, 1983, alleging a breach of a March 7,1966, agreement between Blanche Angelí and Charles E. Shannon, who was her husband at the time of the agreement, but from whom she had become divorced on March 14, 196.6. Angelí argues that the six-year statute of limitations was tolled by § 6-2-3, Code of Alabama 1975, due to the fraudulent suppression of a material fact by Shannon.

Shannon filed a motion to dismiss on the grounds that the complaint did not allege fraud with particularity, as required by Rule 9(b) A.R.Civ.P., and that the cause was barred by the statute of limitations. Angell’s amended complaint stated that she discovered the falsity of Shannon’s representations less than one year prior to the filing of the present lawsuit. The complaint did not state the time or circumstances of the discovery of the alleged fraud. On October 14, 1983, a hearing on the motion to dismiss was held. On December 5, 1983, the lower court entered an order dismissing Angell’s complaint, stating that it was barred by the statute of limitations.

This judgment is affirmed on the authority of Papastefan v. B & L Construction Co., 385 So.2d 966 (Ala.1980), which requires that the complaint show the time and circumstances of the discovery of the alleged fraud in order for a plaintiff to successfully assert that the statute of limitations has been tolled. Cf. A.R.Civ.P. 9(b); Code of Alabama 1975, §§ 6-2-3, 6-2-39.

AFFIRMED.

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


author: JONES, Justice. BEATTY, Justice

text:
    MICHIGAN OIL COMPANY v. Richard BLACK and Audie Black. MICHIGAN OIL COMPANY v. James E. BOMAN and Anna W. Boman. CHARLES L. CHERRY AND ASSOCIATES, INC. v. James E. BOMAN and Anna W. Boman. CHARLES L. CHERRY AND ASSOCIATES, INC. v. Richard BLACK and Audie Black.
    82-1181 to 82-1184.
    Supreme Court of Alabama.
    July 16, 1984.
    Rehearing Denied Aug. 24, 1984.

      James J. Sledge of Rosen, Harwood, Cook & Sledge, Tuscaloosa, for appellant Michigan Oil Co.
    Isaac P. Espy of Gray, Espy and Nettles, Tuscaloosa, for appellant Charles L. Cherry and Associates, Inc.
    L.E. Gosa of Young, Gosa & Brown, Vernon, for appellees Richard Black, Audie Black, James E. Boman and Anna W. Bo-man.
    T. Thomas Cottingham and Dwight L. Mixson, Jr. of Thomas, Taliaferro, Forman, Burr & Murray, Birmingham, Mary R. McKay of Watson & Harrison, Tuscaloosa, for appellee W. E. Sistrunk.
   JONES, Justice.

This is an oil and gas case. The Defendants appeal following an adverse ruling in a declaratory judgment action declaring that leases on two tracts of land had expired at the end of the primary term. We affirm.

FACTS

The west half of Section 33, Township 13 South, Range 14 West, in Lamar County, Alabama, is owned as follows: The Blacks own the west half of the southwest quarter of the section; the Bomans own the west half of the northwest quarter of the section, less 9 acres; the Sorrells own the remaining 9 acres; I.V. Smith owns the east half of the northwest quarter of the section; and Perkins owns the east half of the southwest quarter of the section.

On July 25, 1979, Cherry and Associates, Inc., obtained oil, gas, and mineral leases covering the Black and Boman property. Each lease had a primary term of three years. Subsequently, Cherry assigned 85% of its rights under the leases to Michigan. In addition to the rights held by Cherry and Michigan on the Black and Boman property, they own oil, gas, and mineral rights to the Perkins property. The oil, gas, and mineral rights to the Smith property are held by W.E. Sistrunk and Phillips Petroleum Company. The oil, gas, and mineral rights to the Sorrells’ property are held by Pruit Production Company.

By the terms of the leases held by Cherry and Michigan, expiration would occur on July 25, 1982, at midnight, unless validly extended by the lessees. Extension could be accomplished in one of two ways: either the lessees could conduct operations on either the Black or Boman property before expiration of the lease; or the lessees could conduct operations on property which had been joined or “pooled” with the Black or Boman property in a valid unit. In order to “pool” or “unitize” leases, the lessee must obtain a force-pooling order from the Oil and Gas Board or the owners of the other leases must agree to pool. Code 1975, § 9-17-13. The parties agreed that operations had not been conducted on the Black or Boman property prior to the expiration of the lease. The parties also agreed that the lessees did not attempt to obtain a force-pooling order from the State Oil and Gas Board. Rather, Michigan and Cherry maintain that they conducted operations on property (namely, the Perkins property) that had been voluntarily joined with the Black and Boman property in a unit. Michigan “believed” that it had obtained permission from Sistrunk and Phillips to unitize the entire west half of Section 33. Alternatively, Appellants contend that agreement as to the 320 acres was not necessary, but that the unit formed consisted of lands (of less acreage) whose owners had agreed to unitize. Appellees, of course, disputed this; and Michigan’s factual contentions on this point were rejected by the trial court.

In keeping with its contention that a voluntary unit was formed, Michigan filed, on July 20, 1981, a “Declaration of Unit” with the Probate Office of Lamar County. The Declaration purported to “pool” or “unitize” all of the leases existing on property in the west half of Section 33.

On June 15, 1982, Michigan wrote Sis-trunk a letter by which Michigan proposed to form voluntarily a unit consisting of the 320 acres in the W 1/2 of Section 33 for the purpose of drilling a gas well at a location on the Perkins property. Michigan requested that Sistrunk voluntarily pool the Smith property with the unit. The letter included an “Authorization for Expenditure” requiring Sistrunk’s signature if Sis-trunk agreed. Michigan sent the same documents to Phillips Petroleum Company on the same day. Neither Sistrunk nor Phillips ever signed and returned the “Authorization for Expenditure.”

After drilling was commenced on the Perkins property, Sistrunk wrote Michigan a letter by which he specifically declined to participate in the formation of the proposed unit. He also wrote a letter to the Oil and Gas Board setting out his objections to the formation of the unit. On August 3, 1982, Sistrunk filed an emergency petition with the board seeking to reform the unit for the Perkins drilling to forty acres instead of the original 320 acres. The petition alleged that Michigan did not have control of the full 320 acres in that it did not have Sistrunk’s permission, and, therefore, asked the board to reform the unit. The petition was initially denied without a hearing and was appealed to the trial court. The court ordered the board to have a hearing on the petition, which was held on September 17, 1982. At the conclusion of the hearing, because the issue then before the board had been rendered moot,, Sis-trunk withdrew his petition.

At trial of these actions, the court found Michigan did not have authority to include the Smith property in the “Declaration of Unit” filed on July 20, 1982, and that the declaration therefore was ineffective to create a valid unit. Because the unit was not voluntarily formed, and neither Michigan nor Cherry received a force-pooling order from the board, the trial court held that the Black and Boman leases had expired at the end of their primary term. Therefore, the Plaintiffs/Appellees were entitled to the cancellation of their leases. From this order, Defendants appeal.

ISSUES

The primary issue presented is whether the “Declaration of Unit” filed by Michigan on June 20, 1982, served to pool the unit so that the leases held by Michigan and Cherry on the Black and Boman properties were extended past their primary term of three years.

Michigan and Cherry also contend that the trial court was without jurisdiction to hear this case because the Plaintiffs did not exhaust their administrative remedies before the Oil and Gas Board before coming before the trial court.

DECISION

Code 1975, § 9-17-13(a), establishes the procedures by which a unit may be formed. That section provides:

“(a) When any mineral or other related interests deriving from two or more separately owned tracts of land are embraced within an established or a proposed drilling or production unit, or when there are separately owned interests in all or a part of an established or proposed drilling or production unit, or any combination of such, the persons owning such interests therein may validly agree to integrate or pool such interests and to develop such interests and associated lands as a drilling or production unit. Where, however, such owners have not agreed to so integrate or pool such interests, the board shall, for the prevention of waste or to avoid the drilling of unnecessary wells, require such persons owning such interests to do so and to develop their interests and the associated lands as a drilling or production unit.”

Appellees contend, and the trial court agreed, that the “proposed drilling or production unit” in the present case is the 320-acre west half of Section 33 described in Michigan’s “Declaration of Unit” filed on July 20, 1982. No other unit was “proposed” by declaration or otherwise prior to July 26, 1982. Because all the parties did not agree to form the unit, Michigan and Cherry had but one alternative by which to form a valid unit, i.e., obtain a force-pooling order from the Oil and Gas Board. The parties agree that neither Michigan nor Cherry did this.

The trial court found that Michigan and Cherry’s attempt to validate the leases after the expiration date by filing an Amended “Declaration of Unit” is without force or effect. In other words, Michigan and Cherry never attempted to pool the Boman, Black, and Perkins leases into a 240-acre unit before the expiration of the lease term; rather, they attempted to pool the Boman, Black, Perkins, Smith and Sorrells leases into a 320-acre unit. Their Amended “Declaration of Unit” filed after the expiration of the lease term cannot be held to relate back to a time prior to the expiration of the lease term.

Appellants, however, maintain that because they filed a “Declaration of Unit” (including all the property located in the west 1/2 of Section 33) and began “operations” (within the meaning of the leases) on that unit before the expiration of the primary term, they validly formed a unit which would extend the expiration time of the leases past the primary term. At trial, witnesses for Michigan and Cherry testified that they had communicated with Sis-trunk and that he had given his permission for the unitization. On cross-examination, however, Mr. Gibson, Michigan’s representative, stated that he never received permission from Sistrunk “personally.” The trial court found that neither Sistrunk nor Phillips had given permission for the unitization. The question remains whether that permission was necessary to form a valid unit.

Alternatively, Michigan and Cherry argue that, even if Sistrunk and Phillips withheld permission to pool their interests in the unit, the pooling is effective with respect to the remaining leases, and those leases were extended by the operations on the Perkins well. Appellants rely on Paragraph 4 of the pertinent leases to support their position:

“Lessee is hereby granted the right, at its option, to pool or unitize all or any part of said land and of this lease as to any or all minerals or horizons thereunder, with other lands, lease or leases, or portion or portions thereof, or mineral or horizon thereunder, as to establish units containing not more than 80 acres plus 10% acreage tolerance; provided, however, a unit may be established or an existing unit may be enlarged to contain not more than 640 acres plus 10% tolerance, if unitized only as to gas or only as to gas and liquid hydrocarbons (condensate) which are not a liquid in the subsurface reservoir. If larger units are required, under any governmental rule or order, for the drilling or operation of a well at a regular location, or for obtaining maximum allowable, from any well to be drilled, drilling, or already drilled, any such unit may be established or enlarged, to conform to the size required by such governmental order or rule. Lessee shall exercise said option as to each desired unit by executing an instrument identifying such unit and filing it for record in the public office in which this lease is recorded. Each of said options may be exercised by lessee from time to time, and whether before or after production has been established either on said land or on the portion of said land included in. the unit or on other land unitized therewith and any such unit may include any well to be drilled, being drilled or already completed. A unit established hereunder shall be valid and effective for all purposes of this lease even though there may be land or mineral, royalty or leasehold interests in land, within the unit which are not pooled or unitized. Any operations conducted on any part of such unitized land shall be considered, for all purposes, except the payment of royalty, operations conducted under this lease. There shall be allocated in the land covered by this lease included in any such unit that proportion of the total production of unitized minerals from wells in the unit, after deducting any used in lease or unit operations, which the number of surface acres in the land covered by this lease included in the unit bears to the total number of surface acres in the unit. The production so allocated shall be considered for all purposes, including the payment of delivery of royalty, overriding royalty, and any other payments out of production, to be the entire production of unitized minerals from the portion of said land covered hereby and included in such unit in the same manner as though produced from said land under the terms of this lease.” (Emphasis supplied.)

In further support of their contention, Appellants urge us to adopt the reasoning of the Oklahoma federal district court in Heath v. Fellows, 526 F.Supp. 723 (W.D.Okla.1981), as there does not appear to be any controlling case law from Alabama on the issue presented. Indeed, cases dealing with this issue are few. But the Heath Court, relying heavily on 5 Summers, Oil and Gas, § 967, at 104-106 (1966), was interpreting common law with respect to the pooling provisions of the lease there in question.

Alabama law, however, is controlled by a statute — Code 1975, § 9-17-13. It is this statute upon which the trial court based its final judgment. Although the leases in question may be read to allow a pooling with less than unanimous agreement, we cannot so read Code 1975, § 9-17-13.

That section plainly allows pooling of leases in one of two ways: 1) by agreement of the parties; or 2) by obtaining a force-pooling order from the Oil and Gas Board. It is not disputed that Appellants never did the latter; the evidence shows they never did the former. Therefore, no unit was formed.

Michigan and Cherry also argue that the Oil and Gas Board is vested with the authority to hear disputes of the kind and type with which we are concerned in the present case. Because Appellees did not challenge the validity of the drilling permit before the board, Appellants assert that the trial court lacked jurisdiction to hear the evidence and determine the matter.

Additionally, Appellants contend that because Sistrunk withdrew his petition before the board had an opportunity to rule on it, the Appellees lacked standing to challenge the validity of the unit.

Appellees, however, refute these arguments by explaining that Sistrunk withdrew his challenge before the Oil and Gas Board only after the board declared that the permit applied only to 40 acres on the Perkins property and that it considered the permit issue moot. The Bomans and Blacks were not parties to the board meeting. Furthermore, the issue before the trial court and this Court is not whether the permit was valid, but whether the formation of the unit was valid, an issue that was never before the board. Michigan’s and Cherry’s contention with respect to the jurisdictional issue is without merit.

Therefore, because we find no error in the trial court’s ruling, and agree that the leases expired at the end of their primary term, the judgment of the trial court is due to be, and it hereby is, affirmed.

AFFIRMED.

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

BEATTY and ADAMS, JJ., dissent.

TORBERT, C.J., and SHORES, J., not sitting.

BEATTY, Justice

(dissenting):

The issue is correctly stated in the majority opinion: Whether the “Declaration of Unit” filed by Michigan on June 20, 1982, served to pool the unit so that the leases held by Michigan and Cherry on the Black and Boman properties were extended past their primary term of three years.

The leases held by Michigan and Cherry on these properties provided that these leases would expire July 25, 1982, at midnight, unless extended in one of two ways: either the lessees could conduct operations on either the Black or Boman property before expiration of the lease; or the lessees could conduct operations on property which had been joined or “pooled” with the Black or Boman property in a valid unit.

The majority goes on to observe that “in order to ‘pool’ or ‘unitize’ leases, the lessee must obtain a force-pooling order from the Oil and Gas Board or the owners of the other leases must agree to pool. Code 1975, § 9-17-13,” and further states that § 9-17-13(a) establishes the procedures by which a unit may be formed. Nevertheless, the issue of the validity of the unit declared by Michigan for purposes of the statute is different from the issue of validity for purposes of the leases in question, and the latter issue is expressly controlled by the terms of the lease:

“Lessee is hereby granted the right, at its option to pool or unitize all or any part of said land and of this lease as to any or all minerals or horizons thereunder, with other lands, lease or leases, or portion or portions thereof, or mineral or horizon thereunder .... Lessee shall exercise said option as to each desired unit by executing an instrument identifying such unit and filing it for record in the public office in which this lease is recorded. ... A unit established hereunder shall be valid and effective for all purposes of this lease [e.g. extending the primary term thereof] even though there may be land or mineral royalty or leasehold interests in land within the unit which are not pooled or unitized. ...” (Emphasis added.)

I agree that in order to pool and develop the production unit as originally declared by Michigan in its June 20, 1982, declaration a force-pooling order would be necessary as to the Smith and Sorrell properties. However, this is not the issue here, and as for the real issue of the validity of the unit for purposes of extending the Black and Boman leases, I believe the terms of the leases should control.

For these reasons, I respectfully dissent.


author: MADDOX, Justice.

text:
    MOBILE & GULF RAILROAD COMPANY v. Melba A. CROCKER, etc., et al.
    83-344.
    Supreme Court of Alabama.
    July 20, 1984.

      Walter Henley and Jerry Shirley of Henley, Whitehurst & Shirley, Northport, for appellant.
    Robert F. Prince of Prince & McGuire, Tuscaloosa, for appellees.
   MADDOX, Justice.

The issue on this appeal is: Does a state court have subject matter jurisdiction of an abandonment of a railroad right-of-way, or is the question of abandonment pre-empted by the Interstate Commerce Act under 49 U.S.C. § 10501 et seq.

Appellant Mobile and Gulf Railroad is owned by Brown Wood Preserving Company, which purchased the railroad from J. Graham Brown Foundation, Louisville, Kentucky, in 1980. The railroad owns twelve (12) miles of track, all of which is located in Tuscaloosa County, Alabama. The railroad traverses the Crockers’ (appellees’) property near Buhl. In 1926, the railroad acquired an easement across the property of the Crockers through a condemnation proceeding in Tuscaloosa County Probate Court. On February 28, 1971, the railroad granted and conveyed by warranty deed to Boyce Crocker and his heirs and assigns the “full and exclusive right to cultivate, rent, pasture, occupy, and otherwise use in any manner not inconsistent with the rights required by the appellant in the right-of-way.”

In 1979, appellant ceased all operation of trains across the right-of-way in dispute. At that time, the Tuscaloosa County Engineering Department paved over the section of appellants’ track which crossed the old Columbus Highway near the Crockers’ property. Furthermore, on March 10, 1980, an agent and employee of the railroad, Ray Bobo, told the Crockers that the easement was “not going to be used as a railroad anymore.”

In reliance on this statement by the vice-president of the railroad, the Crockers claim, they expended approximately $1,000 to keep the right-of-way clear on this strip of land so that their cattle could graze on the property. The Crockers also erected fences and planted a garden on the right-of-way. No objections were made at that time by the railroad to either the planting of the garden or the construction of the fences.

The Crockers filed a petition for declaratory relief with the Tuscaloosa County Circuit Court requesting that the court declare that the railroad’s right-of-way had been abandoned. The railroad filed its answer and counterclaim and requested a preliminary injunction ordering the removal of the fences placed across the railroad tracks. The railroad also asked the court to hold that the right-of-way had not been abandoned. The railroad later added claims for trespass and interference with a business contract to its counterclaim. The railroad also filed a motion to dismiss the Crockers’ complaint on the ground that the court lacked subject matter jurisdiction. The trial court denied the motion and the railroad filed a request with this Court, asking permission to appeal, pursuant to Rule 5, Ala. R.App.P. This Court granted the railroad permission to appeal from the interlocutory order entered by the trial court.

We first address a procedural question concerning our scope of review. The Crockers contend that our review should be limited to only that evidence which was submitted to the trial judge at the time the railroad filed its motion to dismiss. The railroad contends that if there is an absence of subject matter jurisdiction, the lower court had no power to act, and that “jurisdiction over the subject matter cannot be created by waiver or consent.”

The procedural context in which this dispute arises is as follows: The initial complaint was filed on October 6, 1982, and the railroad filed an answer and counterclaim on October 15, 1982. On February 4, 1983, the railroad filed a motion for summary judgment and attached to the motion several affidavits to the effect that the railroad was a duly licensed common carrier under and pursuant to the regulations of the Interstate Commerce Commission, and that no proceedings had been initiated to abandon the railroad pursuant to federal law. The trial court denied the motion for summary judgment on March 14, 1983. The railroad filed an amendment to its counterclaim on August 3, 1983, and on September 6, 1983, filed its motion to dismiss, which was denied on October 27, 1983. The railroad did not, within the time specified in Rule 5, Ala.R.App.P., request permission to appeal from the lower court’s order denying its motion for summary judgment. As already stated, this Court granted the railroad’s request for permission to appeal the trial court’s denial of its motion to dismiss. The entire record before the trial court was designated and transmitted to us for consideration on this appeal.

The Crockers claim that on this review we should not consider any of the documents which were filed in connection with the railroad’s motion for summary judgment. We cannot agree with them. The question of jurisdiction is always fundamental. As this Court held in Norton v. Liddell, 280 Ala. 353, 194 So.2d 514 (1967):

“The question of jurisdiction is always fundamental, and if there is an absence of jurisdiction over either the person, or the subject matter, a court has no power to act, and jurisdiction over the subject matter cannot be created by waiver or consent. Rinehart, etc. v. Reliance Life Ins. Co. of Georgia, 272 Ala. 93, 128 So.2d 503. Absence of jurisdiction over the subject matter ends all inquiry, and the matter may be raised on appeal.”

The railroad, of course, could have made its defense of lack of subject matter jurisdiction before it filed its answer and counterclaim. The precise question is whether the trial court and this Court can consider the documents filed in connection with the railroad’s motion for summary judgment in determining the jurisdictional question. We hold that both the trial court and this Court can consider matters not submitted contemporaneously with the motion to dismiss, but which are included in the record. Rule 12(h)(3), Ala.R.Civ.P., provides that “whenever it appears by suggestion of the parties or otherwise that the court lacks jurisdiction of the subject matter, the court shall dismiss the action.”

Facially, the Crockers’ complaint appears sufficient to show that the trial court had jurisdiction, but we are not limited on this appeal to the allegations of the complaint. Matters outside the pleadings show that there was a legal question whether the trial court had subject matter jurisdiction. Consequently, we will review that question based upon what is before us in the record.

We now consider the question whether the trial court had the power to determine the abandonment issue.

There is an uncontradicted affidavit in the record which indicates that the railroad was a duly licensed carrier under and pursuant to the regulations of the Interstate Commerce Commission, but it is also undisputed that the tracks were not being used as an active railway, but were being used by the railroad to store railway cars. The Interstate Commerce Commission had not authorized the abandonment of the railroad right-of-way.

In view of these facts, we are of the opinion that the abandonment of a railroad right-of-way is within the exclusive authority of the Interstate Commerce Commission, pursuant to the provisions of the Interstate Commerce Act.

This act is among the most pervasive and comprehensive of federal regulatory schemes and under this act the Interstate Commerce Commission is given exclusive and plenary authority in regard to railroad abandonments. Chicago & N.W. Transp. Co. v. Kalo Brick & Tile Co., 450 U.S. 311, 101 S.Ct. 1124, 67 L.Ed.2d 258 (1981).

In Kalo Brick, the Court held:

“The Commission’s power to regulate abandonments by rail carriers stems from the Transportation Act of 1920, ch. 91, 41 Stat. 477-478, which added to the Interstate Commerce Act a new § 1(18), recodified at 49 U.S.C. § 10903(a) (1976 ed., Supp.III). That section stated in pertinent part:
“ ‘[N]o carrier by railroad subject to this chapter shall abandon all or any portion of a line of railroad, or the operation thereof, unless and until there shall first have been obtained from the Commission a certificate that the present or future public convenience and necessity permit of such abandonment.’
This section, we have said, must be ‘construed to make federal authority effective to the full extent that it has been exerted and with a view of eliminating the evils that Congress intended to abate.’ Transit Comm’n v. United States, supra, [289 U.S. 121] at 128, 53 S.Ct. [536] at 538 [77 L.Ed. 1075]. Among those evils is ‘[m]ultiple control in respect of matters affecting [interstate railroad] transportation,’ because such control, in the judgment of Congress, has proved ‘detrimental to the public interest.’ 289 U.S. at 127, 53 S.Ct. at 538. See Chicago v. Atchison, T. & S.F.R. Co., supra, [357 U.S. 77] at 87, 78 S.Ct. [1063] at 1069 [2 L.Ed.2d 1174], Consequently, we have in the past concluded that the authority of the Commission to regulate abandonments is exclusive. Alabama Public Service Comm’n v. Southern R. Co., 341 U.S. 341, 346, n. 7, 71 S.Ct. 762, 766, n. 7, 95 L.Ed. 1002 (1951). See Colorado v. United States, 271 U.S. 153, 164-166, 46 S.Ct. 452, 455, 70 L.Ed. 878 (1926). The Commission’s authority over abandonments is also plenary. So broad is this power that it extends even to approval of abandonment of purely local lines operated by regulated carriers when, in the Commission’s judgment, ‘the over-riding interests of interstate commerce requirfe] it.’ Palmer v. Massachusetts, 308 U.S. 79, 85, 60 S.Ct. 34, 37, 84 L.Ed. 93 (1939). The broad scope of the Commission’s authority under § 1(18) has been clear since the Court first interpreted that provision in Colorado v. United States, supra. There, the Court rejected a challenge by the State of Colorado to the power of the Commission to grant a certificate permitting an abandonment of a wholly intrastate branch line operated by an interstate carrier. Justice Brandéis wrote for the Court:
“ ‘Congress has power to assume not only some control, but paramount control insofar as interstate commerce is involved. It may determine to what extent and in what manner intrastate service must be subordinated in order that interstate service may be adequately rendered. The power to make the determination inheres in the United States as an incident of its power over interstate commerce. The making of this determination involves an exercise of judgment upon the facts of the particular case. The authority to find the facts and to exercise thereon the judgment whether abandonment is consistent with public convenience and necessity, Congress conferred upon the Commission.’ 271 U.S. at 165-166, 46 S.Ct. at 454-55.
“The exclusive and plenary nature of the Commission’s authority to rule on carriers’ decisions to abandon lines is critical to the congressional scheme, which contemplates comprehensive administrative regulation of interstate commerce.”

450 U.S. pp. 319-321, 101 S.Ct. pp. 1131-1132.

Similarly, in Hayfield Northern R.R. v. Chicago & N.W. Transp. Co., 693 F.2d 819 (8th Cir.1982), the Court held that a state law which authorized the plaintiff to condemn a defendant’s abandoned railway line for continuing rail purposes stood as an obstacle to the objectives of Congress and thus that the state law was pre-empted by the federal railroad abandonment statute. Revised Interstate Commerce Act, 49 U.S. C.A. § 10905.

In Palmer v. Massachusetts, 308 U.S. 79, 60 S.Ct. 34, 84 L.Ed. 93 (1939), the United States Supreme Court held that the Interstate Commerce Commission’s power is so broad that it extends even to approval of abandonment of purely local lines operated by regulated carriers when, in the commission’s judgment, “the overriding interests of interstate commerce requir[e] it.”

The nature of the Commission’s authority to rule on carriers’ decisions to abandon lines is critical to the congressional scheme, which contemplates comprehensive administrative regulation of interstate commerce. Chicago & N.W. Transp. Co. v. Kalo Brick & Tile Co., 450 U.S. 311, 101 S.Ct. 1124, 67 L.Ed.2d 258 (1981). An example of this extensive regulation is § 10905(a). This section requires the filing of an application for certificate of abandonment or discontinuance under § 10903 and requires that a notice of intent to abandon or discontinue be filed with the ICC. Such filing triggers an extensive administrative procedure which is followed before the ICC enters a decision on the issue of abandonment. If ultimately dissatisfied with the Commission’s action, a party may then seek review of its action in the appropriate court. The structure of the act thus makes it clear that Congress intended that an aggrieved party should seek relief in the first instance from the Commission. Kalo Brick, 450 U.S. at 323, 101 S.Ct. at 1133.

In a case similar to this one, Kansas City Area Transp., etc. v. Ashley, 555 S.W.2d 9, (Mo.1977), cert. denied, 434 U.S. 1066, 98 S.Ct. 1243, 55 L.Ed.2d 767 (1978), the Kansas City Area Transportation Authority sought to condemn a right-of-way and operating equipment of an embargoed freight railroad owned by the Ashleys. The Supreme Court of Missouri held that the legal abandonment of the appellant railroad’s line of track or discontinuance of service could only be accomplished by order of the Interstate Commerce Commission, that the ICC was the agency which, at that time, had jurisdiction of the matters involved in that case.

We hold that the Interstate Commerce Commission has exclusive jurisdiction to determine whether there was an abandonment of the railroad right-of-way.

The “doctrine of exhaustion of administrative remedies” also supports our position. This doctrine “requires that where a controversy is to be initially determined by an administrative body, the courts will decline relief until those remedies have been explored and, in most instances, exhausted.” Fraternal Order of Police, Strawberry Lodge #40 v. Entrekin, 294 Ala. 201, 209, 314 So.2d 663, 670 (1975). In United States Navigation Co. v. Cunard S.S. Co., 284 U.S. 474, 481, 52 S.Ct. 247, 249, 76 L.Ed. 408, 410 (1932), the United States Supreme Court, while comparing the Shipping Act of 1916 to the Interstate Commerce Act, stated:

“The rule had become settled that questions essentially of fact and those involving the exercise of administrative discretion, which were within the jurisdiction of the Interstate Commerce Commission, were primarily within its exclusive jurisdiction, and with certain exceptions not applicable here, that a remedy must be sought from the Commission before the jurisdiction of the courts would be invoked.”

For the reasons stated, we reverse the trial court’s denial of the railroad’s motion to dismiss.

REVERSED AND REMANDED.

JONES, ALMON, EMBRY and BEAT-TY, JJ., concur.