text:
    CITY OF GULFPORT, Appellant v. Billy D. SAXTON, Appellee.
    No. 54477.
    Supreme Court of Mississippi.
    Sept. 28, 1983.
    Joseph R. Meadows, Graves, Riley, Meadows & Walker, Gulfport, for appellant.
    Thomas J. Long, Gulfport, for appellee.
    Before PATTERSON, C.J., and BOWLING and ROBERTSON, JJ.
   ROBERTSON, Justice,

for the Court:

I.

This case presents the question of whether an order entered by a circuit court acting within its appellate jurisdiction and without notice to the parties becomes final and irrevocable at the close of the court’s next regular term. Or, to put the matter another way, once the appellate Circuit Court had affirmed (without notice to the parties), did the closing of the next succeeding regular term of the Circuit Court oust that court of jurisdiction to consider what in effect was a petition for rehearing, leaving aggrieved parties with further appeal to this Court as their sole remedy?

The loss of power that normally accompanies the closing of a term of circuit court does not occur when that court is acting within its appellate jurisdiction. We, therefore, answer the above questions in the negative and affirm the Circuit Court’s judgment wherein it reconsidered its original affirmance of a Civil Service Commission order and thereupon reversed.

II.

Prior to the advent of the proceedings in question, Billy D. Saxton served as a lieutenant with the Gulfport Police Department. He was discharged by Chief of Police Larkin Smith on September 22, 1977. This action was upheld by the City of Gulf-port’s Civil Service Commission. Saxton then perfected an appeal to the Circuit Court of the First Judicial District of Harrison County, Mississippi. Miss. Code Ann. § 21-31-23 (1972).

Saxton’s appeal was docketed in the Circuit Court on November 15, 1979. On December 17, 1979, Saxton, as Appellant, filed a brief in support of his appeal. After two extensions of time were granted, the City of Gulfport, as Appellee, on February 28,1980, filed its brief in the Circuit Court. And there the matter lay until September 2, 1981 — a period of some 578 days. We take judicial notice that the Circuit Court of the First Judicial District of Harrison County, Mississippi, holds a term every month. The net effect of this is that the court is almost continuously in session. Between the filing of Appellee’s brief and the September 2, 1981, order, some 19 terms came and went.

Without prior notice as to when the parties might expect a ruling, the Circuit Court on September 2, 1981, entered its order affirming the decision of the Civil Service Commission. For reasons explained by the parties as “inadvertent error”, no notice of this ruling was given at the time. In fact, it was not until October 15, 1981, that the parties had any actual knowledge of the September 2, 1981, order.

In the meanwhile, the September, 1981, term of Circuit Court had come and gone— having begun on September 14, 1981, and having ended on October 2,1981. On October 23, 1981, approximately one week after receiving advice that the Court had ruled upon the appeal, Saxton filed in the Circuit Court a motion to vacate and reconsider.

On February 5, 1982, the Circuit Court granted the motion to reconsider and reversed. On the merits the Circuit Court vacated the order of the Civil Service Commission and ordered Saxton reinstated with full back pay. In pertinent part, the Circuit Court found that through oversights or mistakes neither party was notified of the order of September 2, 1981. The Circuit Court expressly provided that the September 2, 1981, order should be treated for all purposes as having been entered no earlier than October 16,1981, and that all rights of the parties should be preserved the same as if the order had been entered on that date.

The City of Gulfport has perfected its appeal to this Court and has assigned only one error, to-wit: That the Circuit Court was without jurisdiction to reconsider the September 2 order. We find the assignment of error without merit and affirm.

III.

This case was heard by the Circuit Court within its appellate jurisdiction, a jurisdiction separate and distinct in law from its original jurisdiction. Article 6, Section 156 of the Mississippi Constitution of 1890 provides that the Circuit Court shall have “such appellate jurisdiction as shall be prescribed by law”. The same language is found in Miss. Code Ann. § 9-7-81 (1972): “The Circuit Court shall have ... such appellate jurisdiction as prescribed by law.” Nothing in the constitutional power nor the general legislative grant of that power places temporal limits upon the circuit court’s exercise of its appellate jurisdiction. Terms of court are not mentioned.

The instant appeal has been taken from the Civil Service Commission of the City of Gulfport. Jurisdiction of such appeals are vested in the Circuit Court by virtue of Miss. Code Ann. § 21-31-23 (1972), which provides in pertinent part:

If such judgment or order be concurred in by the [Civil Service] Commission or a majority thereof, the accused may appeal therefrom to the circuit court of the county wherein where he resides.... The said circuit court shall thereupon proceed to hear and determine such appeal .... Such hearings shall be confined to the determination of whether the judgment or order of removal, discharge, demotion or suspension made by the Commission, was or was not in good faith for cause, and no appeal to such court shall be taken except upon such ground or grounds.

The statute makes no reference to whether the appeal ought be heard in term .time or in vacation or either. It would certainly be consonant with common sense for the legislature to have considered that in civil service appeals terms of court were irrelevant.

Rule 4.04 of our Uniform Circuit Court Rules provides:

Appeals shall be heard at any time during term time or during vacation upon agreement of the parties in all cases where compatible with the statute or not prohibited thereby. [Emphasis added.]

Under Rule 4.04 the Circuit Court was entitled to hear Saxton’s appeal as though there were no terms of court, as though the court were continuously in session. There is nothing in the civil service appeals statutes in any way prohibiting the hearing of said matters in vacation. Miss. Code Ann. §§ 21-31-23, and -71 (1972). Considering such cases without regard to the opening and closing of court terms was, in the words of Rule 4.06, both “compatible with the statute” and “not prohibited thereby”.

The Circuit Court of the First Judicial District of Harrison County was acting within its appellate jurisdiction as a true appellate court. Whatever stringencies and formalities flowing from our notion of terms of court apply when the court is acting originally, not as an appellate court. Appellate proceedings are simply different.

Parties to an appellate proceeding may reasonably expect notification from the court or its clerk when a ruling' is made. We know of no appellate court which requires that parties police the docket and fail to do so at their peril. Billy D. Saxton and the City of Gulfport in the 18 months prior to September 2, 1981, had every reasonable expectation that each would be notified by the court when a decision on the appeal had been made. In this context, it would be intolerable to subject Saxton to prejudice and the loss of the rights he has subsequently won because he took no action between September 2 and October 15. Such as result would smack of a violation of due process.

The City of Gulfport nevertheless strenuously urges that the Circuit Court was without jurisdiction — absolutely without legal power — to enter the October 23 order; and that, accordingly, the September 2, 1981, order became final at the expiration of the September term of court, subject to review only via further appeal to this Court. Here the City invokes the general rule that, when a final judgment is entered during a regular term and the court adjourns, the trial court no longer has jurisdiction over the subject matter of the case. Evers v. Truly For the Use and Benefit of the Town of Fayette, 317 So.2d 414, 416 (Miss.1975). The City charges that the Circuit Court is powerless to act in vacation unless is specifically authorized to do so by statute, cf., Sperier v. Ward, 233 So.2d 823, 825 (Miss.1970), and that there is no statutory authorization for the action taken by the Circuit Court in this case. United States Fidelity & Guaranty Co. v. Strange, 360 So.2d 682 (Miss.1978) holds that the authority of an order taking a matter under consideration for decision in vacation ended with the commencement of an intervening term of circuit court, and that a final judgment which was entered, in vacation, subsequent to that date was null and void.

These cases and the rules of law they recite and enforce have application only where the circuit court is sitting as a court of original jurisdiction. We here hold that, when a circuit court is sitting as an appellate court and is acting in the exercise of its appellate jurisdiction, terms of court are of no consequence. Specifically, the expiration of a term of court has no effect upon the power of a circuit court qua appellate court to conduct such proceedings and to make and enter such orders as may otherwise be appropriate.

AFFIRMED.

PATTERSON, C.J., WALKER and BROOM, P.JJ., and ROY NOBLE LEE, BOWLING, HAWKINS, DAN M. LEE and PRATHER, JJ., concur.

      . Miss. Code Ann. § 9-7-9 (Supp.1982).

      . On October 15, 1981, the Circuit Clerk addressed a letter to the parties stating in pertinent part:
      Gentlemen:
      Enclosed please find a certified copy of the order entered by Judge J. Ruble Griffin on September 2, 1981, affirming the order of the Civil Service Commission in the above styled and number cause.
      When Judge Griffin gave this order to me, he did not instruct me to send copies, and the matter entirely slipped my mind. The order was entered on the minutes on September 2, 1981, in Minute Book 77, page 363, and no copies were sent to the attorneys involved. I have spoken with Judge Griffin today and he advises me to send the copies to you with this letter explaining the circumstances. He also told me to add that if the Appellant wishes to appeal the case to the Supreme Court, the Judge will enter the necessary order allowing the appeal.

      . See Miss. Code Ann. § 9-7-9 (Supp.1982).

      . The merits of the Circuit Court’s judgment of reversal have not been challenged and are not before us.

      . See City of Meridian v. Davidson, 211 Miss. 683, 695, 53 So.2d 48 (1951); Stegall v. City of Meridian, 230 Miss. 176, 92 So.2d 331 (1957).

      . No appeal was taken from the September 2, 1981, order within the time allowed by law. Accordingly, that right has been extinguished.

      . We have been made aware of no rule which would provide a time limit within which an unsuccessful appellant must file his petition for rehearing in the circuit court. Because the Circuit Court determined that it would hear and grant Saxton’s petition for rehearing, the matter need not detain us. It would, perhaps, be appropriate that some such rule be adopted. Compare this Court’s 15 day rule. Rule 14(a), Miss.Sup.Ct.Rules.


source: Caselaw Access Project

author: BROOM, Presiding Justice,

license: Public Domain

text:
    Wallace W. COBB v. STATE of Mississippi.
    No. 53924.
    Supreme Court of Mississippi.
    Sept. 28, 1983.

      Jack Parsons, Parsons & Matthews, Wiggins, for appellant.
    Bill Allain, Atty. Gen. by Catherine Walker Underwood, Asst. Atty. Gen., Jackson, for appellee.
    Before BROOM, P.J., and DAN M. LEE and PRATHER, JJ.
   BROOM, Presiding Justice,

for the Court:

Probation terms and their constitutionality are at issue in this appeal from the Circuit Court of Stone County, the Honorable J. Ruble Griffin presiding. Wallace W. Cobb, defendant, pled guilty to the charge of aggravated assault: shooting his brother’s son. Sentence imposed by Judge Griffin was 12 years imprisonment. However, on January 15, 1982, the Judge suspended the sentence and put defendant Cobb on probation for five years conditioned that Cobb “leave Stone County” and stay “125 miles ...” away from the county. Additionally, the probation order permitted Cobb to “go to Stone County to take care of personal reasons [sic]” upon his notifying the sheriff upon such intentions. Other not unusual terms appear in the probation order.

Subsequently, on February 11,1982, Cobb filed a motion to correct the sentence or modify it, asserting

[T]he provision requiring that your Petitioner leave Stone County, Mississippi, and remain at a distance of not less than 125 miles and that your Petitioner remain within Neshoba County, Mississippi, is a violation of the U.S. Constitution and specifically a violation of the First, Fifth and Fourteenth Amendments of the U.S. Constitution.

Supporting his motion, probationer Cobb presented the testimony of his wife, Mary Ann Cobb, who related the problems they were experiencing on account of her husband not being able to live in the household with her and their daughter. She testified that she had 24 years service with the U.S. Forestry Service, and was not able to transfer to where her husband might live in another locality because of an existing freeze on employment. She stated that her husband has a back injury and is living with relatives, but that their family has been torn apart. They live out in the country without close neighbors, and she is afraid after dark. She has lost weight and for her to go to Neshoba County, where her husband is presently residing, is too far and too expensive for her. Further, since the incident no problems have arisen between her husband and his brother.

Other testimony introduced by Cobb was given by his pastor, Rev. Elton Brown, minister of the First United Methodist Church in Stone County. He gave his opinion that should “Mr. Cobb be permitted to live at home” there would be no problem or danger created in the community. Reverend Brown thought it would be best if the Cobb family could live together. At the hearing of the motion, neither probationer Cobb, his brother or nephew testified.

First argument asserted is that “The two (2) conditions imposed on the sentence do not bear a reasonable relationship to the purposes of probation.” Cobb argues that any condition requiring separation from his family “bears no reasonable relationship to the purpose of probation” and should not be upheld.

Mississippi Code Annotated § 47-7-35 (Supp.1982) provides that courts shall determine the terms and conditions of probation and may order the probationer to “(g) Remain within a specified area;” In providing that probationer Cobb would remain 125 miles from Stone County, the record shows the following reasoning of the lower court:

BY THE COURT:
I am going to require you to leave Stone County. And I want you to leave right away. Uh, Mrs. Cobb is from Nesh-oba County. I am not going to tell you that you’ve got to live in Neshoba County. The only thing I’m telling you is that you’ve got to stay out of Stone County. I want you to, uh, in order to, uh, to make sure it’s that far away, I am going to impose the condition that you be gone by a week from today from Stone County a distance of not less than one hundred and twenty-five miles. I estimated in my mind that that’s about how far it is from Wiggins to Philadelphia, uh, and that can be Neshoba County....
Or any other County within that range. Of course, I assume that it’s going to be, according to be, according to the pre-sen-tence report, it will be Neshoba County. That’s where Mrs. Cobb is from and I think that she has expressed some desire to return there. Uh, if she leaves and she’s going to have to leave, if she stays with Mr. Cobb; that’s it.

Cases cited by Cobb in his brief are factually distinguishable from the present case. We think the peculiar circumstances of this case justify the conditions complained of and do not show an abuse of discretion by Judge Griffin. According to the trial judge, the ends of justice and the best interests of the public as well as the defendant would be served by the suspension of sentence and imposition of the probation conditions. Recognizing that Cobb had an uncontrollable temper, the court related this to the community, and stated,

... Uh, I wish that it would be such that you and your brother could get back on speaking terms and you all could be friends as well as brothers, or brothers like you should be. Uh, but until you learn to control your temper, I don’t think, Wallace, that that is likely.
I read the presentence report and I am convinced that you, that this was totally unnecessary, your shooting this young man. I’m glad he’s alive and doing well. Uh, I’m convinced that you would be sitting in Jail now, if he had of died, waiting for the Supreme Court to decide what to do about your life sentence you received for murder. And that, that’s a shame that a man with your character, your general character, would get himself into something like this, hurt somebody, over something that amounted to nothing really. Boys, kids threw rocks when they went down the road. They have been doing that ever since we’ve had automobiles and they’re going to be doing it from now on. But, they grow up. People don’t have to shoot them.
I won’t lecture you any further, of course, the only thing to have done was to have approached your brother about that and let him chastise his own children. And I think if you all had gone about it in a brotherly manner, that’s what would have happened, instead of these fits that you get into.

In dealing with Cobb’s motion to modify the terms of probation, Judge Griffin noted that Cobb’s house was only three-eights of a mile from his brother’s. The court stated:

BY THE COURT: ... I do think I have the power to change, the jurisdiction, to remove probation altogether.... I will make everybody here a solemn promise that if he and his brother and his family can get all their difficulties straightened out, I will do that, and the burden is going to be on Wallace, because he is the one that stands with his foot in the trap.

Upon the record as made and presented, we find that the conditions imposed by the sentencing judge were reasonably related to Cobb’s circumstances and his intended rehabilitation. The court recognized that Cobb’s family had experienced considerable trouble, and Cobb had been involved in a shooting of his nephew who lived near Cobb’s place of residence in Stone County. Upon these facts, we are unable to say that removing him from the area was unreasonable or arbitrary. At oral argument, counsel stated that Cobb’s brother refused to come into court in support of the motion to modify the probation terms.

Second argument is that “the two (2) conditions of the sentence violate public policy and defeat the rehabilitative purpose of probation. A Georgia case, State v. Collett, 232 Ga. 668, 208 S.E.2d 472 (1974), involved the banishment of the defendant from a 7-county area in Georgia. There the court noted that the applicable statute granted the trial court authority to require a probationer to remain within a specified location. The court stated:

The defendant in the present case has made only a general attack on the present sentence as being illegal, contending it is per se violative of public policy. There has been no showing in this case that the imposed condition to remain outside the seven specified counties for the period of the sentence (12 months) is unreasonable or otherwise fails to be a logical relationship to the rehabilitative scheme of the sentence pronounced for this drug crime....

208 So.2d at 474.

In Re Buehrer, 50 N.J. 501, 236 A.2d 592 (1967), recognized that a probationer may have more than mere inconvenience when placed on probation. There the New Jersey court so wisely stated that probation is not intended to be without some pain and inconvenience to the probationer. Some amount of punitive aspects of probation serve the public interest as well as the probationer’s interest.

Here trial judge Griffin noted that he could have sent Cobb to the penitentiary but “didn’t want to do that.” He noted that he thought it was best to get Cobb

... away from his brother and family .... I just don’t think I ought to change it at this early stage. I can appreciate the predicament they are in; God knows I don’t want to be mean to them, but compared to what I could have done, I think I have been relatively kind....

Thirdly, Cobb argues that “the two (2) conditions on the sentence as imposed violates Appellant’s rights under the First, Fifth, and Fourteenth Amendments to the United States Constitution.” Cobb’s brief concedes:

Courts have uniformly held that constitutional rights may be abridged by conditions of probation, however, there must be some reasonable relationship to the Appellant’s past or future criminality or to the rehabilitative purpose of probation.

Again, the cases relied upon by Cobb in his brief are factually distinguishable and not controlling here.

Instead of being a matter of right, it is by grace that probation is granted a defendant, and within his sound judicial discretion the trial judge may fix reasonable conditions of parole and probation. Owen v. Kelley, 681 F.2d 1362 (11th Cir.1982). We are unable to agree that the conditions complained of violate the constitutional provisions cited in the appellant’s brief. Here the record shows that the trial judge carefully and meticulously explained to Cobb his rights which shows that Cobb understood that he could be sentenced to 20 years in the penitentiary upon the indictment to which he pled guilty. As found by the trial judge, Cobb voluntarily and knowingly pled guilty and specifically acknowledged his guilt. Then the court deferred sentence, so that the Mississippi Department of Corrections could “conduct an investigation of this defendant” and present a presentence report to the trial court, all of which presumably was done. The judgment of the court fixing the sentence and conditions here complained of shows that Cobb (while represented by counsel) signed the judgment underneath the following language: “I accept the above probation in accordance with the terms thereof”. Upon the record made, we do not agree that the trial judge, in fixing the terms of Cobb’s probation, was unreasonable, arbitrary, or in any sense violated public policy or his authority under the pertinent statutes. Indeed, we find his actions were reflective of commendable compassion, and were judicially sound.

AFFIRMED.

PATTERSON, C.J., WALKER, P.J., and ROY NOBLE LEE, BOWLING, HAWKINS, DAN M. LEE, PRATHER and ROBERTSON, JJ., concur.


text:
    Alden R. MORAN v. Regina Stanford NECAISE.
    No. 54703.
    Supreme Court of Mississippi.
    Sept. 28, 1983.
    Pete H. Carrubba, Dukes, Carrubba, Dukes & Keating, Gulfport, Billy R. Gibson, Bay St. Louis, for appellant.
    Herbert J. Stelly, Sr., Gulfport, for appel-lee.
   ON MOTION TO DOCKET AND DISMISS APPEAL

BROOM, Presiding Justice,

for the Court:

Motion of appellee, Regina Stanford Ne-caise, to docket and dismiss appeal from judgment of the Circuit Court of Hancock County was received and filed in this Court on April 18, 1983, alleging Moran’s failure to timely pay estimated court costs. Appellant, Alden R. Moran, then petitioned this Court on May 13, 1983, for writ of certiora-ri, requesting us to direct the lower court’s clerk and official court reporter to prepare and certify the transcript of the record.

Judgment for movant/plaintiff Necaise on a promissory note was rendered October 12, 1982, by the Circuit Court of Hancock County against the defendant/appellant Alden R. Moran, in the amount of $11,822.00. Motion for a new trial, timely made by defendant Moran, was overruled by the circuit judge on October 18, 1982. Notice to the court reporter(s) to transcribe and estimate costs of the appeal was mailed by Moran’s attorney, Billy R. Gibson, on October 12, 1982. Moran’s petition for appeal with supersedeas was filed with the circuit clerk October 22, 1982. On December 21, 1982, an order was obtained by Moran allowing supersedeas.

On the question of when appellant Moran received notice of the estimate of costs to appeal, he points out that a writ of certiora-ri ordering the circuit clerk and court reporter to furnish him an estimate of costs was issued by Justice Bowling of this Court on January 21, 1983. Moran further states that the clerk’s estimate of costs for appeal was dated January 27, 1983, and filed with the circuit clerk which Moran says he received on January 28, 1983. Additionally, Moran pointed out that the estimate was stamped “Filed, August 4, 1982”, which date is prior to judgment date and obviously not the correct date. Costs were paid by Moran to the circuit clerk on March 11, 1983.

To the contrary, Mrs. Necaise indicates that Moran’s attorney was verbally advised of the estimated court costs as early as October 22, 1982, and was again advised of the same on December 11, 1982. Necaise avers that on January 13, 1983, the court reporter further advised Moran’s attorney of such costs and filed a duplicate of the written estimate with the clerk on the same day after it was found that the original was not in the file. Possibly some of the confusion may have resulted from personnel changes in clerk’s office below.

Mrs. Necaise’s motion to docket and dismiss the appeal was filed with the clerk of this Court April 18, 1983, reasoning that dismissal was warranted due to failure of Moran (defendant below) to timely pay the estimated court costs. Petition for writ of certiorari was filed by Moran on May 13, 1983, requesting that the circuit clerk and court reporter be directed to prepare and certify the transcript of the record of trial.

Two questions are presented here and both may be answered by the same analysis: Should Moran’s requested writ of certiorari be issued? Or, Should Mrs. Ne-caise’s motion to docket and dismiss be granted?

As to her docket and dismiss motion, Mrs. Necaise takes the position that Moran’s attempted appeal was not perfected because of his failure to timely pay the estimated court costs and that, therefore, the appeal should be dismissed. However, her rebuttal brief concedes that under the rationale of Dixieland Food Stores, Inc. v. Kelly’s Big Star, Inc., 384 So.2d 1031 (Miss.1980), a petition for appeal is sufficient to perfect the appeal. Then Mrs. Necaise points out, however, that, if January 13,1983, is considered as the date of notification to Moran of costs, payment was not made within 45 days of that date.

Moran claims that he timely noticed the court reporter to transcribe, timely petitioned for an appeal, and made good faith effort to obtain and pay estimated appeal costs. Although payment was not made until later than 45 days from the date of judgment, Moran claims he paid costs within a reasonable time and that dismissal of his appeal is not justified.

Three of our recent prior decisions and several statutes on appeals may have relevance to the situation presented here. An appeal must be taken within 45 days of rendition of judgment, according to language of § 11-51-5 supra, “saving to persons under a disability of infancy or unsoundness of mind .... ”

Our opinion in Dixieland, authored by Justice Sugg, delineated three methods of appeal to this Court, indicating that either method must be pursued within 45 days in order to “perfect” the appeal:

(1) ... prepaying the costs in the lower court and the fee required by section 25-7-3.
(2) ... filing in the office of the clerk of this Court a transcript of the record of the case in which the appeal is taken.
(3) By petition for appeal....

384 So.2d at 1032-33.

Moran’s appeal in the present case, according to Dixieland, was perfected by his petition for appeal filed October 22, 1982. Mississippi Code Annotated § 11-51-15 (Supp.1982) provides for “Petition for Appeal”. Dixieland further holds that:

[I]n cases where petition for appeal is filed and granted by the clerk of the trial court, the appeal is taken when the petition is filed. Of course, appellant must pay the costs “as then required,” which means after the estimate of costs is prepared by the clerk and before the record is filed in this Court.

384 So.2d at 1033-34.

Under Dixieland, Moran’s appeal was “perfected” in the present case by filing of the petition within the 45-day period, but he still would have to pay the estimate of costs as required under § 11-51-15, supra, after the clerk’s preparation of the estimate of costs. The trial court clerk was required to file a cost estimate within 5 days of judgment according to Mississippi Code Annotated § 11-51-61 (Supp.1982). Mississippi Code Annotated § 11-3-5 (Supp.1982) provides that an appeal “shall” not be dismissed “because of any failure by an officer to comply with the requirements of law in reference to appeals; .... ” [emphasis supplied],

Moran claims that his March 11, 1983, payment of costs was in good faith and within a reasonable time after notification in January of the costs of the appeal from the October 12, 1982, judgment. Authored by Walker, J., Allgood v. Allgood, 367 So.2d 450 (Miss.1979) states:

We also hold that in future cases, if the clerk of the trial court fails to satisfy the statutory requirements as to the bill of costs, the attorney of record desiring an appeal must make a motion in writing to the trial judge, within the allotted forty-five days, compelling production of the cost bill from the trial court clerk. Absent such a written motion within the time for appeal, the appeal must be dismissed for lack of jurisdiction. See Oswalt v. Austin, 192 Miss. 653, 6 So.2d 924 (1942).

Id. at 452.

The appeal was not dismissed in Allgood for lack of timely payment, however, because the circumstances were unique inasmuch as the appeal statutes were new, and the appellant made a good faith effort to appeal according to the case law then existing. Id. at 451-52.

Garrett v. Nix, 431 So.2d 137 (Miss.1983), authored by Prather, J., (but decided subsequent to the main events presented here), stated that:

Although the payment of costs was a necessary step to perfect the appeal under the procedure discussed in Allgood, we think the same procedure should be followed when payment of costs is a procedural step also. In this case, the appellants never made any effort to compel production of the cost bill. This factor alone warrants dismissal of the appeal.

Id. at 139.

As to. timely payment of cost estimates, Garrett further stated:

Payment of estimated costs came fifty-four days after the appellants acquired knowledge of the estimated costs. (January 20-March 15). Payment of court costs, on a date beyond the initial forty-five day period, should follow immediately, absent extenuating circumstances, after receipt of the clerk’s cost bill. The appellants’ failure to do so also justifies a dismissal.

Id. at 139.

Garrett was characterized as a case of unnecessary delay and the appeal was dismissed.

Events transpiring and brought to our attention since Dixieland, Allgood, and Garrett, clearly establish that confusion exists regarding applicable procedures to be »taken in appeals from lower courts. The administration of justice will be better served by only one method of appeal rather than the three discussed above and presently allowable under our statutes and decisions. We now deem it needful and imperative, in keeping with judicial economy, for the prevention of further confusion, to provide for one (and only one) method of appeal to the Supreme Court of Mississippi. No longer is it doubted that we have the power to act accordingly. Newell v. State, 308 So.2d 71 (Miss.1975). Therefore, we now promulgate Supreme Court of Mississippi Rule 48, attached as APPENDIX “A”, to be effective January 1, 1984.

Rule 48, as is true of all other rules, will not likely fit every conceivable situation that may arise in the bringing of appeals. However, when one desiring to take an appeal gives proper notice of appeal provided by Rule 48 and pays the cost estimate as stated therein, he is then entitled to have the record made up and certified to this Court. When the record is made up, a bill or statement of the total costs shall be forthwith furnished to appellant or appellant’s counsel by the lower court clerk. Payment shall then be made by appellant of the total costs, and upon failure of such payment the case shall be subject to docketing and dismissal upon motion of appellee.

To the extent that the cases referred to above, or any other case, rule or statute, conflict with the newly promulgated Rule 48, they are hereby overruled and held for naught. However, the language “saving to persons under a disability of infancy or unsoundness of mind” in Mississippi Code Annotated § 11-51-5, supra, shall remain in effect.

Accordingly, the motion of Necaise to docket and dismiss Moran’s appeal is overruled, and the writ of certiorari is granted Moran directing the circuit clerk and court reporter below to promptly prepare and file here the record of proceedings had below.

MOTION TO DOCKET AND DISMISS OVERRULED; CERTIORARI GRANTED.

PATTERSON, C.J., WALKER, P.J., and ROY NOBLE LEE, BOWLING, HAWKINS, DAN M. LEE, PRATHER and ROBERTSON, JJ., concur.

APPENDIX A

RULE 48

APPEAL AS OF RIGHT — HOW TAKEN — WHEN TAKEN

(a) In all cases, both civil and criminal, in which an appeal is permitted by law as of right to the Supreme Court, there shall be one procedure for perfecting such appeal. That procedure is prescribed in this rule. All statutes, rules or decisions in conflict with this rule shall be of no further force or effect.

(b) In all cases in which an appeal is permitted by law of right to the Supreme Court, the party or parties taking the appeal shall file a notice of appeal with the clerk of the court whose judgment, order or decree is being appealed within 30 days after the date of entry of the judgment, order or decree. A copy of the notice of appeal shall be served upon all other parties in the case and upon the court reporter.

(c) The notice of appeal shall specify the party or parties taking the appeal and shall designate the judgment, order or decree, or part thereof, appealed from. An appeal shall not be dismissed for informality of form or title of the notice of appeal.

(d) A notice of appeal filed after the announcement of a decision or order but before the entry of the judgment, order or decree shall be treated as filed after such entry and on the day thereof.

(e) If a timely notice of appeal is filed by a party, any other party may file a notice of appeal within 14 days after the date on which the first notice of appeal was filed, or within the time otherwise prescribed by this Rule 48, whichever period last expires.

(f) If a timely motion under the Mississippi Rules of Civil Procedure is filed in the trial court by any party: (i) for judgment under Rule 50(b); (ii) under Rule 52(b) to amend or make additional findings of fact, whether or not an alteration of the judgment would be required if the motion is granted; (iii) under Rule 59 to alter or amend the judgment; or (iv) under Rule 59 for a new trial, the time for appeal for all parties shall run from the entry of the order denying a new trial or granting or denying any other such motion. A notice of appeal filed before the disposition of any of the above motions shall have no effect. A new notice of appeal must be filed within the prescribed time measured from the entry of the order disposing of the motion as provided above.

(g) If a timely motion under the Uniform Criminal Rules of Circuit Court Practice is filed in the trial court by the defendant (i) for judgment of acquittal notwithstanding the verdict of the jury, or (ii) for a new trial under Rule 5.16, the time for appeal for all parties shall run from the entry of the order denying such motion. A notice of appeal filed before the disposition of any of the above motions shall have no effect. A new notice of appeal must be filed within the prescribed time measured from the entry of the order disposing of the motion as provided above. Notwithstanding anything in this rule to the contrary, in criminal cases the 30 day period shall run from the date of the denial of any motion contemplated by this subparagraph (g), or from the date of imposition of sentence, whichever occurs later.

(h)(1) Within the same 30 day period for which provision is made under subpara-graph (b) of this rule, as the same may be enlarged or extended as provided by sub-paragraph (f) or subparagraph (g), whichever may be applicable, the party taking the appeal shall estimate the cost of preparation of the record on appeal, including, but not limited to, the cost of the preparation of the transcript, and shall deposit said sum with the clerk of the court whose judgment, order or decree has been appealed. The appellant should immediately thereafter file with the clerk of the trial court his certificate setting forth the facts of his compliance with this subparagraph and should serve a copy of said certificate upon all other parties and upon the court reporter. An appeal shall not be dismissed for informality in the form or contents of this certificate nor for the timing of its filing.

(2) The court reporter shall immediately upon appellant’s compliance with subpara-graph (h)(1) commence preparation of the transcript. If dissatisfied with the amount tendered, either the clerk of the trial court or the court reporter may apply for an increase to the trial court which, after reasonable advance notice and opportunity to be heard having been afforded all parties, and for good cause shown, may order the amount of the deposit increased. The party taking the appeal shall comply with any such order within 14 days of the date of entry. The deposit and any such order shall be provisional, subject to adjustment after the transcript has been completed and the actual cost thereof ascertained.

(i) Appeals may be taken in forma pau-peris where such is allowed by law. Where a party desires to proceed in forma pauper-is, he shall, within the same 30 day period for which provision is made under paragraph (b) of this rule, as the same may be enlarged or extended as provided by sub-paragraph (f) or subparagraph (g), whichever may be applicable, file with the clerk of the trial court his application for leave to so proceed. If leave to proceed in forma pauperis be granted, subparagraph (h) of this rule thereupon becomes inoperative as to that appeal. If leave to proceed in forma pauperis is denied, the appellant shall within 14 days of entry of the order denying such leave estimate the cost of preparation of the transcript and shall deposit said sum with the clerk of the court whose judgment, order or decree has been appealed. Thereupon, the remainder of subparagraph (h) of this rule shall be fully operative.

(j) In the case of parties under a disability of infancy or unsoundness of mind, the various periods of time for which provision is made in this rule and within which periods of time action must be taken shall not begin to run until the date on which the disability of any such party shall have been removed. However, in cases where the appellant infant or person of unsound mind was a plaintiff or complainant, and in cases where such a person was a party defendant and there had been appointed for him or her a guardian ad litem, appeals to this Court shall be taken in the manner prescribed in this rule within two years of the entry of the order, judgment or decree which would cause to commence the running of the thirty (30) day time period for all other appellants as provided in this rule. [See Miss.Code Ann. § 11-51-5 (Supp. 1982)].

(k) A stay of the enforcement of the judgment, order or decree appealed from, with or without supersedeas bond, may be obtained as otherwise provided by law. If the other provisions of this rule be complied with, the appeal has been perfected without regard to whether stay or supersedeas has been applied for or the timing of such application.

(l) This rule shall govern all appeals as of right from judgments, orders or decrees entered from and after January 1, 1984.

      . The facts (in considerable dispute) as given are stated according to the exhibits following the appellee’s motion to docket and dismiss appeal, and the exhibits following the appellant’s affidavit in opposition to the motion.

      . Mississippi Code Annotated § 11-51-15 (Supp.1982).

      . Note that under Dixieland, supra, the appeal was “perfected” on the date of filing of the petition in October and not on the filing of the costs estimate in January.

      .Time period in which appeals must be taken under Mississippi Code Annotated § 11-51-5 (Supp.1982) prior to this opinion.

      . Garrett’s language provides that payment should be made “after receipt of the clerk’s cost bill”. The court reporter’s affidavit herein states that Moran’s attorney was “verbally” advised in October of 1982 of the cost estimate, although Necaise’s brief states that the estimate was actually filed.

      . We point out that most of the wording and phraseology of Rule 48 was supplied by Robertson, J.


text:
    MISSISSIPPI STATE BAR v. A MISSISSIPPI ATTORNEY.
    Misc. No. 103.
    Supreme Court of Mississippi.
    Sept. 28, 1983.
    Andrew J. Kilpatrick, Jr., Jackson, for appellant.
   BROOM, Presiding Justice,

for the Court:

Before us is the Mississippi State Bar’s motion to “reconsider the pleadings filed herein” and enter an “order disbarring Respondent for his conviction of constructive criminal contempt ... or in the alternative to enter such other orders” as we deem proper. Commencement of this proceeding was the “Formal Complaint” of the Bar filed May 26, 1982, which complaint asked that respondent “be disbarred .... ” Basis of the complaint was that respondent, in the County Court of - County, had been convicted of “constructive criminal contempt and was sentenced” to serve thirty days in jail and pay a $100.00 fine, based upon a jury’s verdict finding him guilty of the criminal contempt charge. The formal complaint recited that respondent attorney had appealed his conviction to the Supreme Court of Mississippi, which appeal was not at the time of the filing of the complaint concluded. By separate motion, filed May 26, 1982, the Bar, pursuant to Mississippi Code Annotated § 73-3-339 (Supp.1982), requested the Supreme Court to “forthwith strike” respondent attorney’s name from the rolls of the Mississippi State Bar and suspend him “from the practice of law pending final disposition of these disciplinary proceedings until respondent’s appeal or appeals have been concluded.”

Respondent attorney, on July 1, 1982, filed a written pleading answering the complaint which the Bar had filed against him. His pleading requested that the matter “be held in abeyance pending” his appeal to the Supreme Court regarding his conviction on the constructive criminal contempt. In response to his motion that we hold the matter in abeyance pending respondent’s appeal, the State Bar on July 8,1982, filed its response stating that the Bar had “no objection to respondent’s motion to abate the captioned cause” until the Supreme Court acted upon respondent’s appeal from his aforesaid conviction.

The matter is now before us upon the Bar’s “Motion to Reconsider” filed August 10, 1983, asking us to enter an order “disbarring” respondent attorney for his conviction of constructive criminal contempt, or in the alternative to enter such order as we deem proper under the circumstances.

Then, on September 12, 1983, respondent attorney filed his Motion to Remand the cause to the “Committee on Complaints or to a complaint tribunal” for hearing. His motion charged:

That Complainant has proceeded in this matter under Section 73-3-339 of the Mississippi Code of 1972, as amended, which reads in part as follows:
Whenever any attorney subject to the disciplinary jurisdiction of the court shall be convicted in any state court or in any federal court, or enter a plea of guilty or a plea of nolo contendré therein, of any felony other than manslaughter or any violation of the United States Internal Revenue Code, or of any offense involving fraud, dishonesty, misrepresentation, deceit, failure to account for money or property of a client, or of any offense involving moral turpitude, a certified copy of the judgment of conviction shall be presented to the court by the board of commissioners.
That Section 73-3-339 of the Mississippi Code of 1972, as amended, applies to convictions, pleas of guilty or pleas of nolo contendré to a felony or to any offense involving fraud, dishonesty, misrepresentation, deceit, failure to account for money or property of a client, or any other offense involving moral turpitude. This Court has held in the case of Ramsay v. Ramsay, 125 Miss. 715, 88 So. 280 (1921) that contempt actions prosecuted to preserve the power and vindicate the dignity of the Court and to punish for disobedience of its orders is quasi-criminal in nature, and it cannot be said that constructive criminal contempt is an offense involving moral turpitude as a matter of law.

His motion to remand recites that there is “other evidence which was not introduced” at his contempt trial, but which should be “made a part of the record” in the disciplinary proceeding against him.

From our study and analysis of all the pleadings herein and their contents, we conclude that the matter should be remanded to a complaint tribunal to be designated by the Chief Justice of the Mississippi Supreme Court pursuant to Mississippi Code Annotated § 73-3-323 (Supp.1982). That tribunal shall hear the matter and cause to be made a full development of the facts and law according to the statutes referred to above and the pleadings. After such a hearing the tribunal shall “determine the matter ... ”, according to § 73-3-323 and enter its proper order.

MOTION TO REMAND GRANTED; CAUSE REMANDED TO COMPLAINT TRIBUNAL FOR ACTION NOT INCONSISTENT WITH THIS OPINION.

PATTERSON, C.J., WALKER, P.J., and ROY NOBLE LEE, BOWLING, HAWKINS, DAN M. LEE, PRATHER and ROBERTSON, JJ., concur.

      . Pursuant to Mississippi Code Annotated § 73-3-343 (Supp.1982), which provides for “confidentially” in proceedings of this sort, the actual name of the respondent attorney and other identifying data are omitted from this opinion as published. His name remains on the original opinion filed in the cause.


author: JONES, Justice.

text:
    James D. STACEY, et al. v. Harris SAUNDERS.
    82-469.
    Supreme Court of Alabama.
    July 1, 1983.
    Rehearing Denied Sept. 2, 1983.

      Ralph E. Coleman and Ralph E. Coleman, Jr., Birmingham, for appellants.
    William Bew White and Samuel H. Franklin of Bradley, Arant, Rose & White, Birmingham, for appellee.
   JONES, Justice.

Appellants/Plaintiffs James D. Stacey and Virginia King initiated this cause, individually and as executors of the estate of their mother, Grace Morrison Saunders, against their stepfather, Harris Saunders, alleging: 1) fraudulent misrepresentation by Saunders of his net worth prior to execution of an ante-nuptial agreement with Mrs. Saunders; 2) breach of that same ante-nuptial agreement; 3) that Plaintiffs were third-party beneficiaries of the ante-nuptial agreement between Mr. and Mrs. Saunders; and 4) that Mr. Saunders breached an oral agreement with Mrs. Saunders to make irrevocable a trust instrument created pursuant to terms contained in the ante-nuptial agreement.

Mr. Saunders filed a motion to dismiss that portion of Plaintiffs’ complaint alleging fraud. The crux of the motion to dismiss was that the fraud claim did not survive the death of the decedent, Grace Saunders. This motion was granted. He then filed a motion for partial summary judgment as to the remaining aspects of Count I of Plaintiffs’ complaint. Mr. Saunders asserted that he was entitled to partial summary judgment on the basis of the clear and unambiguous language of the ante-nuptial agreement and the trust instrument subsequently executed by him.

Mr. Saunders also alleged that his revocation of the trust, subsequent to Mrs. Saunders’s death, was entirely consistent with the anti-nuptial agreement, which, according to Mr. Saunders, provided that Mrs. Saunders would become entitled to the trust proceeds only if she should survive Mr. Saunders. Mr. Saunders contended that Plaintiffs’ allegation that he had entered into an oral agreement with Mrs. Saunders to make the trust irrevocable, violated the statute of frauds and the parol evidence rule. Additionally, he maintained that Plaintiffs were not third-party beneficiaries under the ante-nuptial agreement because the agreement was intended, at most, for their “incidental,” and not for their “direct,” benefit.

From the trial court’s order granting the motion for partial summary judgment (subsequently made final), Plaintiffs appeal. We affirm.

FACTS

Grace Morrison, mother of Plaintiffs James D. Stacey and Virginia King, executed an ante-nuptial agreement' on May 25, 1973, with her then husband-to-be, Harris Saunders. The ante-nuptial agreement recognized that property owned by Mr. Saunders was worth approximately, $1,300,-000.

Pursuant to terms of the ante-nuptial agreement, set forth below, Mr. Saunders agreed to establish an inter vivos trust, with a corpus of $350,000 current value:

“A. In the event of the marriage of the parties hereto, Mr. Saunders agrees that he will cause to be created an inter vivos trust with a corpus of $350,000 current value; such trust will be drawn in such a manner as to enable the trust to qualify for the ‘marital deduction' in his estate and will result in no present gift taxes. It will give, after his death, all of the income of such trust as defined by the federal estate tax statutes, to Mrs. Morrison for her lifetime and will further give to her a power to appoint by will to her estate, or to such persons as she may elect, the entire corpus and any undistributed income of the trust.” (Emphasis added.)

In return for Mr. Saunders’s agreeing to set up the inter vivos trust, Grace Morrison Saunders agreed to make no claim to any portion of his estate as his surviving wife, other than that provided in the ante-nuptial agreement contract. Additionally, she specifically waived any dower, homestead, widow’s election, widow’s award, or other statutory or equitable right to property owned or thereafter acquired by Mr. Saunders.

Grace Morrison and Harris Saunders were married shortly after execution of the ante-nuptial agreement. On June 20, in accordance with the ante-nuptial agreement, Mr. Saunders executed an Indenture and Declaration of Trust with Harris Saunders, Jr., John R. Saunders, and Plaintiff James D. Stacey, as trustees.

The following articles of the instrument of trust are significant for our consideration:

Article One provided that the income therefrom would be paid to Harris Saunders.

Article Five provided that, in the event Mrs. Saunders survived Mr. Saunders, she would receive the income of the trust during her life and be given a general testamentary power of appointment.

Article Six provided that, effective at the death of the survivor of Harris Saunders and Grace Saunders, the trustees would be possessed of the then trust principal of the trust estate, and should thereafter apportion it with 60% to James D. Stacey and 40% to Virginia M. King.

Article Nine reserved the right in the grantor, Harris Saunders, to amend, modify, or revoke the trust in whole or in part, by delivering such an instrument in writing to the trustees. Simultaneously with the execution of the trust, Mr. Saunders delivered a number of promissory notes with principal amounts totaling $350,000 to the trustees in fulfillment of his obligations under the ante-nuptial agreement.

Grace Morrison Saunders died of a heart attack on June 27, 1981. On July 6, 1981, Harris Saunders revoked the Indenture and Declarations of Trust in the manner specified in the trust agreement.

PLAINTIFFS AS THIRD-PARTY BENEFICIARIES

In this State, one must establish that a contract was intended for his direct, as opposed to incidental, benefit, in order to qualify as a third-party beneficiary. Holley v. St. Paul Fire and Marine Insurance Co., 396 So.2d 75 (Ala.1981).

Paragraph 7-H of the ante-nuptial agreement reads as follows:

“H. This Agreement shall be binding upon, and shall inure to the benefit of the parties hereto and the heirs, executors, administrators, devisees, legatees, successors and assigns and all other successors in interest of the parties hereto.”

According to Plaintiffs, the aforementioned language clearly indicates a desire that the ante-nuptial agreement inure directly to their benefit. Consequently, Plaintiff says, once it is established that one is a third-party beneficiary, that person is fully entitled to enforce the promise made for his benefit.

Defendant, while conceding that Plaintiffs have standing to bring this action as executors of Grace Saunders’s estate, opposes any attempt by Plaintiffs to sue individually as third-party beneficiaries, arguing that the ante-nuptial agreement was never intended to benefit them directly in their individual capacities.

Giving effect to the clear intentions of the parties, we hold that the ante-nuptial agreement inured only to the benefit of Mrs. Saunders directly. Had Mrs. Saunders survived Mr. Saunders, which, according to its unambiguous terms, she was required to do in order to receive any benefit from the ante-nuptial agreement, then any possible benefit that might have inured to Plaintiffs would have been dependent upon the discretionary exercise by Grace Saunders of her then power to appoint by will. While we cannot speculate as to what course Mrs. Saunders might have pursued, we cannot totally discount the possibility that she may have exercised her power of appointment so as to afford Plaintiffs no benefit whatsoever from the agreement.

In Logsdon v. Logsdon, 412 Ill. 19, 104 N.E.2d 622 (1952), the Illinois Supreme Court held that grown children by a previous marriage were not third-party beneficiaries to an ante-nuptial agreement entered into by their parent, despite the fact that they were specifically mentioned therein. The Court stated:

“We are of the opinion that the children of [the deceased spouse] acquired no rights under this instrument as third-party beneficiaries. It was not entered into for their direct benefit.” 104 N.E.2d at 626.

Any benefit to Plaintiffs under the ante-nuptial agreement was, if anything, merely incidental, and depended solely upon Grace Saunders’s discretionary power of appointment by will. Thus, they were not third-party beneficiaries capable of enforcing unaccrued benefits under the agreement.

INTERPRETATION OF THE ANTE-NUPTIAL AGREEMENT

As both parties concede, the crucial consideration in deciding whether the trial court properly granted summary judgment is the ambiguity vel non of the ante-nuptial agreement. Plaintiffs recite numerous principles concerning the construction of ambiguous contracts. If the agreement is not ambiguous, however, its proper construction is to be determined by the court as a matter of law. Wheeler v. First Alabama Bank of Birmingham, 364 So.2d 1190, 1194 (Ala.1978). The trial court, subject to appellate review, determines whether a contract is ambiguous; and, if it is not, the court then determines the force and effect of the terms of the contract as a matter of law. Wigington v. Hill-Soberg Co., Inc., 396 So.2d 97 (Ala.1981). Once a court determines that no facial ambiguity is present in a contract, it cannot proceed to examine extrinsic evidence. Quick v. Campbell, 412 So.2d 264, 266 (Ala.1982).

The central issue before us, then, is whether the trial court properly found that the ante-nuptial agreement clearly and unambiguously required that Mrs. Saunders survive Mr. Saunders to become entitled to the trust proceeds. In paragraph “A” of the ante-nuptial agreement, Mr. and Mrs. Saunders agreed that Mr. Saunders would thereafter create an inter vivos trust with a corpus of $350,000 current value. The parties further provided in that paragraph that the trust was to be drawn “in such a manner as to enable the trust to qualify for the ‘marital deduction’ in his estate and will result in no present gift taxes.” The final sentence in paragraph “A,” which Plaintiffs correctly call the “key” one, and which they claim to be ambiguous, describes the trust to be created pursuant to the ante-nuptial agreement as follows:

“[The trust] will give, after his death, all of the income of such trust as defined by the federal estate tax statutes, to Mrs. Morrison for her lifetime and will further give to her a power to appoint by will to her estate, or to such persons as she may elect, the entire corpus and any undistributed income of the trust.” (Emphasis added.)

The relevant question is not whether one sentence of a 10-page agreement is ambiguous; rather, whether the document, when considered as a whole, is ambiguous. The principle of construction, which is most often expressed in disputes over interpretation of coverage in insurance policies, was reiterated in Schmidt v. Ladner Construction Co., Inc., 370 So.2d 970 (Ala.1979). The Schmidt Court stated:

“The test is a more practical one and is so well known as to require no citation of precedent: A written agreement is unambiguous and will be enforced (if otherwise enforceable) where the intent of the parties can be fairly and reasonably gleaned from the four corners of the document.”

In paragraph One of “Recitals” to the ante-nuptial agreement, the parties remark that “[b]ecause residence in Alabama is contemplated, no effort has been made to deal with, or discuss, the laws of other states respecting the rights of a surviving spouse in and to the property of the deceased spouse.” (Emphasis added.)

Paragraph Four is a comprehensive discussion of Mrs. Saunders’s rights under Alabama and federal law to participate in Mr. Saunders’s estate in the absence of the ante-nuptial agreement. Again, these.provisions describe rights Mrs. Saunders would have if she were to survive Mr. Saunders.

REVOCATION OF THE TRUST

Article Nine of the indenture and declaration of trust, executed by Mr. Saunders subsequent to consummation of the ante-nuptial agreement, reads as follows:

“The Grantor reserves the right, at any time and from time to time, by instrument in writing delivered to the' Trustees during the Grantor’s lifetime to amend, modify or revoke this Indenture in whole or in part.”

Plaintiffs admit that Mr. Saunders revoked the trust instrument in the manner specified by Article Nine, but contend that he breached the ante-nuptial agreement when he revoked the trust.

There is no question that a set-tlor/grantor may retain a power to revoke a trust. Merchants National Bank of Mobile v. Cowley, 265 Ala. 125, 132, 89 So.2d 616, 622 (1956). Accordingly, the query before this Court is whether Mr. Saunders’s exercise of the power to revoke the trust after his wife’s death was consistent with the language and purpose expressed in the ante-nuptial agreement.

Although the ante-nuptial agreement does not contain a section expressly providing whether the trust was to be revocable or irrevocable, the terms of the agreement were, we think, entirely consistent with Mr. Saunders’s retention of-the power to revoke contained in the trust instrument. Paragraph A of the ante-nuptial agreement, previously quoted in its entirety, specified that the trust Mr. Saunders was to create would result in no present gift taxes.

Transfers under ante-nuptial agreements are generally subject to gift tax. See Commissioner v. Wemyss, 324 U.S. 303, 65 S.Ct. 652, 89 L.Ed. 958 (1945); Merrill v. Fahs, Collector of Internal Revenue, 324 U.S. 308, 65 S.Ct. 655, 89 L.Ed. 963 (1945). Under federal gift tax law, however, a transfer to a trust, subject to a power of revocation by the donor, is not considered a completed gift and, therefore, does not result in present gift taxes. See Burnet, Commissioner of Internal Revenue v. Guggenheim, 288 U.S. 280, 53 S.Ct. 369, 77 L.Ed. 748 (1932).

Defendant argues that since the ante-nuptial agreement specifically named the beneficiary of the trust (Grace Saunders) and the time (at Mr. Saunders’s death) and manner of enjoyment of the beneficiary’s interest (life estate with general testamentary power of appointment), the only remaining power over the trust that would have prevented the trust from resulting in present gift taxes was the power of revocation.

In other words, as Defendant submits, according to the terms of the agreement, the only manner in which present gift taxes could have been avoided was the inclusion of the power of revocation in the subsequently created trust instrument. Plaintiffs, on the other hand, contend that the power of revocation could have been exercisable by Mr. Saunders in conjunction with either of Mrs. Saunders’s children, and this result would have required no present payment of gift taxes.

The joint exercise of a power of revocation with a party who has a potential substantial adverse financial interest in a trust does result in payment of present gift taxes. In Commissioner of Internal Revenue v. Prouty, 115 F.2d 331, 336 (1st Cir.1940), it is stated, “A substantial chance of coming into a good thing may constitute a ‘substantial adverse interest,’ ” and “[t]he interest need not be presently vested in possession and enjoyment.”

While Plaintiffs contend that such an interpretation of the ante-nuptial agreement would “only be recognized by a tax expert,” Section 5 of the agreement specifically afforded Mrs. Saunders an opportunity to consult “any attorney whom she might select.” Because of its importance, we set forth Section 5 in its entirety:

“During the discussion of this contract between Mrs. Morrison and Mr. Saunders, Mr. Saunders informed her that she was free to consult anyone whom she wished with reference to any matter incorporated in this agreement, or the discussions between them respecting its contents, including especially her children and any attorney whom she might select. The use of technical terms may make that desirable, and not all the provisions hereof were specifically agreed on in said discussions. She has again been informed herein that she is free to consult any outside party with respect to any such matters.”

Under the terms of Section 5, as written, and because we find no allegations of any coercion of Mrs. Saunders to sign the ante-nuptial agreement, we are compelled to hold that the agreement was not violated by Mr. Saunders’s exercise of the right of revocation of the subsequently created trust.

DISMISSAL OF PLAINTIFFS’ COUNT FOR FRAUD

Plaintiffs allege in Count One of their complaint that Mr. Saunders fraudulently misrepresented his net worth and that Mrs. Saunders relied on that misrepresentation in agreeing to enter into the ante-nuptial agreement. Mr. Saunders moved to dismiss that allegation on the ground, among others, that Plaintiffs’ claim did not survive the death of Mrs. Saunders. The motion was subsequently granted.

Code 1975, § 6-5-462, states:

“In all proceedings not of an equitable nature, all claims upon which an action has been filed and all claims upon which no action has been filed on a contract, express or implied, and all personal claims upon which an action has been filed, except for injuries to the reputation, survive in favor of and against personal representatives; and all personal claims upon which no action has been filed survive against the personal representative of a deceased tort-feasor.”

This statute has been interpreted to provide that tort causes of action, including those for fraud, do not survive the death of the injured party when no action was pending at the time of death. In Bates v. L & N Employees Credit Union, 374 So.2d 323, 324 (Ala.1979), the Court said:

“As we read it and as the plaintiff’s counsel concedes, the present action sounds in tort and no action having been filed before the death of the allegedly defrauded party, it does not survive in favor of his personal representative [citing § 6-5-462].”

Plaintiffs’ reliance on National States Insurance Co. v. Jones, 398 So.2d 1361 (Ala.1980), is misplaced. In that case, allegedly fraudulent misrepresentations were directed at the plaintiff herself, who relied thereon. To the contrary, Plaintiffs in the case before us have failed to allege that they themselves relied to their detriment on any representations Mrs. Saunders might have made. As a result, their claim for fraud was properly dismissed.

We have carefully reviewed each of the issues presented and find no reversible error.

AFFIRMED.

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

      . Plaintiffs’ original complaint contained three, counts. Counts II and III sought possession of certain personal property, as well as damages for alleged conversion thereof. Plaintiffs, however, orally moved on January 28, 1982, to strike Counts II and III, whereupon the trial court, having previously granted motions to dismiss and for partial summary judgment regarding Count I, rendered a final judgment in favor of Mr. Saunders.

      . At the time the ante-nuptial agreement was executed, Mr. Saunders was 79 years old.

      . While we have addressed the third-party beneficiary issue in the context in which it is presented and argued by the parties, any consideration of the Plaintiffs’ standing as third-party beneficiaries, in reality, begs the question. It is not their lack of standing, but their failure to meet the burden of showing entitlement to benefits pursuant to the terms of the agreement that is fatal to their claim.

      . Plaintiffs concede that, according to the quoted sentence, Mrs. Morrison was required to survive Mr. Saunders to receive the income of the trust. Plaintiffs maintain, however, that the phrase “after his death” was somehow restricted or limited to the first portion of the quoted sentence and did not have any effect on the remainder of the sentence.

      . See, e.g., Southern Guar. Ins. Co. v. Wales, 283 Ala. 493, 496, 218 So.2d 822, 825 (1969) (“In construing a policy we must avoid taking a single provision or sentence and attaching to it greater significance than is intended by the whole terms of the policy”); North River Ins. Co. v. Jackson, 278 Ala. 604, 606, 179 So.2d 731, 733 (1965) (“[A]n isolated sentence of the policy should not be construed alone, but in connection with other provisions of the said policy in order to arrive at a construction reasonably calculated to accomplish the intent and purpose of the parties”).

      . The retention of a power of revocation by the donor is not the only manner in which a trust can be drawn so that the trust will result in no present gift taxes. In fact, the federal gift tax laws provide that present gift taxes may also be avoided if the donor retains a power to change beneficial interests, see R. Stephens, G. Maxfield & S. Lind, Federal Estate and Gift Taxation ¶ 10.01[6] (1978), or a power to change the time or manner of enjoyment of the beneficiary’s interest, see id. ¶ 10.01 [7],

      . Here, again, we address this issue (revocation) in the context in which it is presented and argued. We note, however, that, while the tax consequences may shed light on the motivation of the parties, even such clearly expressed intentions are not necessarily dispositive of the ultimate question of whether the power of revocation and its exercise as to the trust is viola-tive of the ante-nuptial agreement. In the instant case, because Mrs. Saunders predeceased her husband, and because his revocation of the trust occurred after her death, any issue concerning violation of the ante-nuptial agreement has been mooted.


author: ALMON, Justice.

text:
    Damon V. BECK & Cynthia Beck v. The OLIN COMPANY, et al.
    81-795.
    Supreme Court of Alabama.
    Aug. 26, 1983.

      Warren L. Hammond, Jr. of Conrad, Hammond & Barlar, Mobile, for appellants.
    Donald F. Pierce and Davis Carr of Hand, Arendall, Bedsole, Greaves & Johnston, Mobile, for appellees Olin Corp., Reese Graves, Charles Humphrey and Allan Chafin.
    A. Neil Hudgens and Michael S. McGlo-thren of Brown, Hudgens, Richardson, Whitfield & Gillion, Mobile, for appellee Amrich Const. Co.
   ALMON, Justice.

This is an appeal from a summary judgment in favor of defendants in a personal injury action. Plaintiff Damon Beck was injured by caustic chemicals while working on the premises of defendant Olin Corporation.

Damon Beck is employed by Corrosion Proof Construction, a division of the Ceil-cote Company. Ceilcote makes coatings used to line storage tanks, walkways, floors, etc., chiefly for resistance to harsh and corrosive chemicals. At the time of the accident, Beck was a foreman for Corrosion Proof Construction, overseeing the application of Ceilcote liners. On April 16, 1979, Beck was sent to McIntosh, Alabama, where he was to supervise preparations for a Ceilcote job at the Olin plant in McIntosh.

The Olin plant includes a chemical production facility known as Mercury Cell Room “B”. This is a two story concrete building three hundred feet long with no exterior side walls. Chemicals are produced on the second floor, where the floor is periodically washed down and the residue runs out of the open side of the building. A walkway runs the entire length of the building below the open areas where the chemicals are washed out of the second floor. Chemicals in the runoff had corroded the walkway, and the Ceilcote job for which Beck reported was to repair the sidewalk and coat it with a Ceilcote liner.

To protect the walkway from spills while the concrete and the liner were being applied, Ceilcote arranged with Olin for a protective cover to be built over the walkway. Ceilcote hired Amrich Construction Company to construct this shelter, which consisted of a wooden frame running the length of the building and covered with plastic and fiberglass. The frame was shorter on the side toward the building— about seven feet high, whereas it was about ten feet high on the high side — so that liquids would run off of the shelter into a drainage basin between the walkway and the building. The frame was covered with sheets of polyethylene and then panels of corrugated fiberglass.

When Beck arrived, George Amrich and his crew had completed the wooden frame and had begun covering it with the plastic and fiberglass. The liquids coming out of the building were getting underneath the fiberglass and forming puddles or bubbles in the plastic. Beck testified in deposition that he was aware of at least one place where the liquids had burned or corroded through the fiberglass. In other places it appeared to have leaked around the supporting posts or between the fiberglass panels.

Beck, Amrich, and some Olin employees consulted on how to stop the liquids from penetrating the fiberglass and collecting in the plastic. Reese Graves testified that he and Charles Humphrey decided to have Am-rich empty some of the bubbles by tying a knife to a long stick and cutting the plastic. This spilled the fluids onto the walkway, however, so Beck suggested placing another layer of plastic over the fiberglass. He testified on deposition that he was also considering placing plywood or steel over the worst places.

The accident in question occurred when Beck reached up to touch one of the bubbles to learn whether it contained liquid or crystalline matter. Beck had watched crystalline material fall out of the plastic when Amrich cut the bubble underneath the point where the liquids had burned through the fiberglass, so he reasoned that if a bubble contained crystals, the shelter might need extra reinforcement at that point. He placed his palm under the bubble and pushed up on it slightly. As he pulled his hand away, the bubble burst and the liquid in it streamed down on him. He tried to avoid it, but some of it got under his safety goggles and into his left eye. The first aid attendants at the plant rinsed his eye and he was taken to a hospital, but he lost most of his sight from that eye.

Beck sued Olin, Amrich Construction Company, and three supervisory personnel employed by Olin: Reese Graves, Allen Chafin, and Charles Humphrey. The complaint alleged as follows:

“That the Plaintiff’s injuries and damages were caused as a direct and proximate result of the combined and concurring negligence of the Defendants, their agents, servants or employees in one or more of the following particulars:
“A) Defendants, the Olin Company, Reese Graves, Allen Chafin and Charles Humphrey, negligently failed to provide Plaintiff, Damon V. Beck, with a safe place to work.
“B) Defendants, The Olin company and/or Amrich Construction Company, Inc. negligently failed to protect Plaintiff, Damon V. Beck, from contact with and exposure to highly dangerous, toxic and caustic chemical substances.
“C) Defendants, the Olin Company, Reese Graves, Allen Chafin and Charles Humphrey negligently failed to warn Plaintiff, Damon V. Beck, of the highly dangerous nature of the chemicals and gases manufactured and used in the manufacturing process by Olin, in the area where Plaintiff was required to work.
“D) Defendants, The Olin Company, Reese Graves, Allen Chafin and Charles Humphrey, negligently failed to provide Plaintiff, Damon V. Beck, with proper safety instructions and equipment.
“E) Defendant, Amrich Construction Company, Inc., negligently failed to provide Plaintiff, Damon V. Beck, with adequate protection from contact with dangerous, toxic and caustic chemicals.
“F) Defendants negligently conducted its [sic] business in such manner as to expose Plaintiff, Damon Y. Beck, to an unreasonable risk of personal injury.”

Depositions and other discovery were conducted, after which the defendants moved for summary judgment. Beck opposed the motion, basing his opposition on the pleadings, depositions, and exhibits in the ease, and the affidavit of George W. Douglas, Ph.D., the head of the department of mechanical engineering at the University of South Alabama. Douglas based his affidavit on the matters of record; he gave his opinion that the shelter was inadequate and improperly constructed, and then concluded with the statement, “Plaintiff does not appear to have been adequately warned by Defendants of the dangerous nature of the chemicals in the area.” The trial court granted summary judgment for all defendants.

Beck argues that the trial court erred in granting summary judgment; he starts from the proposition, supported by numerous decisions of this Court, that summary judgment is ordinarily not appropriate in negligence cases. His second point is that a landowner has the duty to give an invitee sufficient warning of dangers on the premises to allow the invitee to avoid injury. As his third argument, he contends that a jury question is presented as to whether the activities of Olin on its premises were abnormally dangerous. He claims he was given neither adequate warning of the hazards of the chemicals used in the area, nor adequate safety instruction regarding the plant, nor adequate safety equipment; that the shelter was essentially of Olin’s design and was inadequate to protect him from the hazardous chemicals; and that the rule that an independent contractor is alone liable does not apply where the work is intrinsically dangerous. The fourth argument Beck raises is that the trial court erred in holding that the danger was open and obvious as a matter of law.

Appellees counter that there is no duty to warn of open and obvious dangers. The Olin defendants add that the owner of premises owes no duty to an employee of an independent contractor injured during the course of his work. Pate v. United States Steel Corp., 393 So.2d 992 (Ala.1981). Am-rich adds that it was a subcontractor of Ceilcote and the duty of safety is on the general contractor.

The appellees correctly cite the law that “the owner of premises has no duty to warn an invitee of open and obvious defects in the premises which the invitee is aware of or should be aware of in the exercise of reasonable care.” Gray v. Mobile Greyhound Park, Ltd., 370 So.2d 1384, 1388 (Ala.1979), quoting Tice v. Tice, 361 So.2d 1051 (Ala.1978); see also Hand v. Butts, 289 Ala. 653, 270 So.2d 789 (1972); Crawford Johnson & Co. v. Duffner, 279 Ala. 678, 189 So.2d 474 (1966).

Beck contends that an exception to this rule, that the owner may be held liable where the work is intrinsically dangerous, applies in this case. Boroughs v. Joiner, 337 So.2d 340 (Ala.1976); Knight v. Burns, Kirkley, & Williams Const. Co., Inc., 331 So.2d 651 (Ala.1976); Ledbetter-Johnson Co. v. Hawkins, 267 Ala. 458, 103 So.2d 748 (1958); Scoggins v. Atlantic & G.P. Cement Co., 179 Ala. 213, 60 So. 175 (1912). The exception does not apply, however, because Ceilcote’s contract specified that Ceilcote would be responsible for safety. Olin provided Ceilcote with a comprehensive safety manual. Indeed, Beck was on the site to supervise construction of the shelter to shield the concrete and protect the workers from spills.

Beck was aware that some of the chemicals being washed down from the building were caustic. He knew, for instance, that George Amrich was burned on his wrist by spilt chemicals a few days before Beck’s accident. Beck placed his hand on the bubble which burst on him to determine whether it contained hot caustic like that which had burned through the fiberglass in another part of the shelter.

The very concern that motivated Beck to test the bubble was that the plastic would not hold the liquids. “I knew by this time the one sheet of polyethylene wasn’t going to stop the leaks everywhere. If there were burns here from hot caustic, there were burns other places. That’s what I was trying to do, is see them.”

Beck presented evidence that the shelter was principally designed by Olin and cites the proposition that “where the owner undertakes to prepare and furnish the plans and specifications for his contemplated structure and such plans are faulty or defective the deficiencies therein are attributable to the owner ... and he is liable for the proximately consequent injury and damages.” St. Louis-San Francisco Ry. Co. v. Kimbrell, 226 Ala. 114, 145 So. 433 (1932). This rule cannot shift the burden to Olin in this instance because Ceilcote was also responsible for the design and construction of the shelter, as evidenced by the fact that Beck was undertaking to correct the design defects.

Beck has not shown that the trial court erred in applying the rule that an owner of premises is not liable to an employee of an independent contractor for injuries arising from an open and obvious defect. The trial court correctly granted summary judgment for the Olin defendants.

Amrich’s argument, that it was Ceil-cote’s subcontractor and therefore Ceilcote was responsible to Amrich for the safety of the shelter, is well taken. Southern Minerals Co. v. Barrett, 281 Ala. 76, 199 So.2d 87 (1967). Amrich built the shelter according to specifications and directions provided by Olin and Ceilcote. If Beck had shown that negligent construction by Amrich caused the accident, summary judgment might not be appropriate. The record shows no factual question as to negligent or faulty construction by Amrich, however, so summary judgment was properly granted on Am-rich’s motion.

The summary judgment is affirmed.

AFFIRMED.

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

EMBRY, J., concurs in the result.

      . The distinction between Ceilcote and Corrosion Proof Construction is not material for our purposes; in most cases we shall refer to Beck as an employee of Ceilcote.


author: FAULKNER, Justice.

text:
    GENERAL ELECTRIC CREDIT CORPORATION v. STRICKLAND DIVISION OF REBEL LUMBER COMPANY, INC.; Tommy Smith; Tommy Smith, etc.; et al.
    81-1006.
    Supreme Court of Alabama.
    Aug. 26, 1983.

      Ronald F. Súber of Martin & Ford, Tus-cumbia, for appellant.

      Gary P. Wilkinson of Poellnitz, Cox, McBurney & Jones, Florence, for appellees.
   FAULKNER, Justice.

This is a Uniform Commercial Code case wherein a secured creditor, by virtue of an “after-acquired property” clause in a security agreement, claimed possession of certain items of inventory furnished to the now-insolvent debtor by the defendants pursuant to “consignment” agreements. The secured creditor, General Electric Credit Corporation (GECC), appealed from a judgment in favor of the consignors, Strickland Division of Rebel Lumber, Inc. (Strickland) and Tommy Smith d/b/a Tri-Cities Portable Buildings (Smith).

Larry Terry operated a business known as Larry Terry Sales, where he sold metal buildings and various other items, including cars, trucks, and appliances. Strickland furnished Terry with his inventory of metal buildings on consignment. Since Terry wished to increase the size of his inventory beyond the number of metal buildings which Strickland would deliver on a consignment basis, Strickland introduced Terry to representatives of GECC, who agreed to floor plan Terry’s inventory.

On August 20, 1980, Terry and GECC entered into a financing agreement whereby GECC agreed to pay Strickland for buildings as they were shipped to Terry. Terry then repaid GECC as each building was sold, with the full amount for each shipment due within six months. Terry granted GECC a security interest “in all inventory, new and used, presently owned and hereafter acquired, together with all proceeds of the sale or other disposition thereof.”

GECC began making payments to Strickland for shipments beginning in September 1980 and continued to do so until Terry wrote GECC a bad check in January 1981. At that time GECC notified Strickland that it would not finance any further shipments to Terry and Strickland informed GECC orally that it would resume shipments to Terry “on consignment.”

When Strickland resumed shipping buildings to Terry, it sent the invoice for each shipment directly to Terry instead of to GECC. Although the invoices, which were on printed forms prepared by Strickland, purported to contain a “purchase agreement” indicating that the buildings were “sold to” Terry, Strickland and Terry entered into an oral “consignment agreement” whereby Terry was given the right to return unsold buildings to Strickland. Each invoice contained the wholesale cost of each building plus a 5% “upcharge.” Terry was to remit the wholesale price plus the up-charge to Strickland upon the sale of each building. Terry was allowed to sell the buildings for whatever price he could get from the buyer and was allowed to keep as profit the difference between the amount he received and the wholesale price plus 5%. Even if Terry was unable to sell a building and returned the building to Strickland he would still be liable to Strickland for the 5% “upcharge.”

Smith also shipped metal buildings to Terry pursuant to an oral “consignment” agreement. Under the terms of his agreement with Smith, Terry was paid a commission based on a percentage of the amount received for each of Smith’s buildings he sold.

Strickland began shipping buildings to Terry knowing that Terry owed GECC an outstanding balance which was secured by the inventory on his lot purchased under the floor plan. Although Terry was still making payments to GECC, GECC called Robert Hawkins, Strickland’s president, in the early part of July 1981, and told him that GECC was “getting ready to close out Larry Terry Sales.” Hawkins suggested that GECC wait until Terry found out whether he would be able to get a loan to pay off GECC. GECC agreed to wait; however, on or about July 22, 1981, the State Department of Revenue padlocked Terry’s lot.

The issue presented on appeal is whether GECC can claim the buildings shipped by Strickland and Smith to Terry “on consignment” by virtue of the “after-acquired property” clause contained in its security agreement and properly filed financing statement.

The threshold issue is whether GECC had a perfected security interest in the goods in question as of July 1981. The trial court found that the “security agreement was terminated as indicated by the actions of the parties on or about January of 1981, and therefore, no security interest attached to any inventory or other property of Larry Terry after January of 1981.”

Strickland argued that there was evidence to support a finding that GECC and Terry mutually agreed to rescind the security agreement. Terry separated the buildings into three groups; one group for buildings financed by GECC, one for those furnished by Strickland, and one for those furnished by Smith. GECC only inventoried the buildings it financed and it did not demand payment for the buildings furnished “on consignment” as they were sold.

The finding that the parties mutually rescinded the security agreement was clearly erroneous. If GECC had voluntarily abandoned its security interest there would have been no reason to inventory any of the buildings on Terry’s lot. Furthermore, the ruling is clearly contrary to the express provisions of the U.C.C., which states:

“A security interest is not invalid or fraudulent against creditors by reason of liberty in the debtor to use, commingle or dispose of all or part of the collateral (including returned or repossessed goods) or to collect or compromise accounts or chattel paper, or to accept the return of goods or make repossessions, or to use, commingle or dispose of proceeds, or by reason of the failure of the secured party to require the debtor to account for proceeds or replace collateral.”

Section 7-9-205, Code of Alabama (1975).

The defendants also argued that even if it had a valid security interest, GECC waived its rights to assert its lien on the property. With regard to that contention, the trial court ruled:

“GECC had actual knowledge of Strickland’s interest in the buildings it shipped to Larry Terry between January and July of 1981, and did not attempt to enforce its security interest (if any it had). This delay in asserting its interest resulted in Strickland continuing to ship buildings all to its ultimate detriment. Due to its inaction in promptly asserting its claimed interest, GECC is now estopped from asserting that claimed interest.”

The essential elements of equitable estoppel are: (1) The person against whom estoppel is asserted, who usually must have knowledge of the facts, communicates something in a misleading way, either by words, conduct, or silence, with the intention that the communication will be acted on; (2) the person seeking to assert estop-pel, who lacks knowledge of the facts, relies upon that communication; and (3) the person relying would be harmed materially if the actor is later permitted to assert a claim inconsistent with his earlier conduct. Mazer v. Jackson Ins. Agency, 340 So.2d 770, 773 (Ala.1976).

There were no allegations that GECC ever made any misleading communications to the defendants with regard to GECC’s security interest. At most, GECC failed to inform Strickland of its interest in the after-acquired inventory when Strickland informed GECC of its intent to supply goods to Terry “on consignment.” We find the defendants’ implicit assumption, that GECC had a duty to make such a disclosure, questionable at best. That question notwithstanding, in addition to the fact that both defendants were put on constructive notice of GECC’s interest by the financing statement, which was filed, Strickland’s president admitted at trial that he knew about the floor plan and that he was aware of Terry’s outstanding balance when he shipped the buildings. Having negated the presence of the necessary element of lack of knowledge by its own testimony, Strickland cannot rely on estoppel. As to Smith, there was no evidence that GECC even knew of Smith’s intention to place inventory on Terry’s lot, and certainly no evidence that Smith placed the buildings on the lot in reliance on a misleading communication on the part of GECC.

While we recognize that, under certain circumstances, estoppel may properly be invoked against a creditor with a perfected security interest, we reject the notion that a creditor who, in order to assist the debtor and enhance the likelihood of repayment, fails to declare the debtor to be in default at the first available opportunity waives his lien on the debtor’s property. Such a rule would violate § 7-9-205, which affords creditors wide latitude in dealing with debtors. It is often in the best interest of all parties concerned to allow a financially unsound debtor to continue in business in hopes that he will thereby have the opportunity to generate revenues in excess of the value of the collateral which may be used to satisfy obligations to secured and unsecured creditors. National Acceptance Co. of America v. Virginia Capitol Bank, 491 F.Supp. 1269, 1276 (E.D.Va.1980).

Having determined that GECC had a valid security interest in the inventory as of July 1981, we must now examine the priority of the parties’ claims to the property.

The defendants’ claim to the property was based on their consignment agreements with Terry. Unfortunately, the U.C.C.’s treatment of consignments is, in the words of two prominent authorities on the U.C.C., “fraught with uncertainty.” J. White and R. Summers, Handbook of The Law Under The Uniform Commercial Code § 22-4 at 883 (1980 2d ed.). Prior to the adoption of the U.C.C., courts viewed all consignments with disfavor due to a dislike of “secret liens.” Two categories were developed. In “true consignment” situations title remained in the consignor and the consignee acted as an agent or bailee of the consignor. If the consignee had an absolute right to return unsold goods without any obligation to pay for them, the arrangement fell outside the requirement for chattel mortgages and liens. Any deviation from a true agency or bailment transaction caused courts to treat the transaction as a “fake” consignment and to subject it to the filing provisions of the state’s chattel mortgage laws. See Bell, Consignments Under The Uniform Commercial Code, 53 Okl. B.J. 1329, 1329-1330 (1982).

The U.C.C. retained the distinction between “true” consignments and consignments “intended as security.” Goods shipped on consignment to a business which deals in goods of the kind involved under a name other than that of the consignor are subject to the claims of the consignee’s creditors even though the agreement purports to reserve title to the consignor, unless the consignor either establishes that the person conducting the business is generally known by his creditors to be substantially engaged in selling the goods of others or the consignor complies with the filing provisions of Article 9. Section 7-2-326, Code of Alabama (1975). Consignments “intended as security,” on the other hand, are governed by Article 9 on secured transactions. Article 9 applies to any transaction (regardless of its form) which is intended to create a security interest in personal property, including a consignment “intended as security.” Section 7-9-102, Code of Alabama (1975).

We must determine whether Article 9 applies to the consignments in the case sub judice by deciding whether the parties “intended to create a security interest.” White and Summers, supra at 887. Under his agreement with Strickland, Terry was given complete control over the buildings, subject only to the requirement that he remit the wholesale cost for each building to Strickland as each was sold. He was allowed to keep whatever profit he was able to charge over the wholesale price and he was absolutely obligated to pay Strickland the 5% “upcharge” even if he was unable to sell the buildings. Furthermore, the invoice prepared and delivered by Strickland with each shipment described itself as a “purchase agreement.” Those indicia did not support a finding that Terry was acting as Strickland’s agent in selling the buildings, but, to the contrary, supported a finding that Strickland’s “consignment agreement” was the functional equivalent of GECC’s floor plan with Terry. Therefore, we feel that Strickland’s consignment agreement was an attempt to create a security interest and, therefore, was governed by Article 9 of the U.C.C. § 7-9-102, supra. Since the agreement was oral, it was not enforceable as a security agreement against third parties. Section 7-9-203(1), Code of Alabama (1975); McDonald v. Peoples Automobile Loan & Finance Corp. of Athens, 115 Ga. App. 483, 154 S.E.2d 886 (1967). Therefore, Strickland was nothing more than an unsecured creditor of Terry Sales, and since GECC had a valid, perfected security interest in the goods it was entitled to prevail.

Smith’s agreement, on the other hand, was a “true consignment.” Terry sold Smith’s buildings on a commission basis and was not obligated to pay any charges on buildings he was unable to sell. Therefore, since Smith’s agreement was a true consignment, not a consignment intended as security, it was governed by § 7-2-326(3). The buildings shipped by Smith were subject to the claims of Terry’s creditors unless he complied with the filing requirements found in Article 9 or unless Terry was generally known by his creditors to be engaged in selling the goods of others. Section 7-2-326(3). The trial court found that Terry was generally known by his creditors to be so engaged. Its findings based on evidence presented ore tenus carry a presumption of correctness which will not be disturbed on appeal unless palpably wrong, without supporting evidence, or manifestly unjust. The finding was supported by evidence that Terry had a flashing sign in front of his business advertising that he sold goods for other people. He also advertised on radio that he sold goods for others. Several creditors testified that Terry had sold their goods and that it was commonly known that he sold goods for others. Finally, GECC knew Terry sold goods for others. While we are aware that courts strictly construe § 7-2-326(3)(b) and that the burden of proof was on Smith, we are not prepared to rule that the trial court’s finding that Terry was generally known to his creditors to be engaged in selling the goods of others was palpably wrong or manifestly unjust.

Since Strickland’s consignment was intended as security, it was governed by Article 9. Therefore, since no valid security agreement was created by the oral consignment, GECC was entitled to prevail. Smith, however, was able to avail himself of § 7-2-326(3)(b), since his was a “true” consignment.

Therefore the judgment is affirmed as to Smith and reversed as to Strickland.

AFFIRMED IN PART; REVERSED IN PART; AND REMANDED.

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

      . Section 7-2-326 also creates an exception when the consignor complies with an applicable “sign law” evidencing his interest. No such sign law exists in Alabama. Bischoff v. Thomasson, 400 So.2d 359, 368 (Ala.1981).


author: EMBRY, Justice.

text:
    Miles Carl DUTTON, Charles Dutton and Nelson Gary v. Janet Dutton Gary LEMASTER, nee Gary.
    82-181.
    Supreme Court of Alabama.
    Aug. 26, 1983.

      T.J. Carnes of Carnes & Carnes, Albert-ville, for appellants.
    James D. Walker, Albertville, for appel-lee.
   EMBRY, Justice.

This appeal is from a judgment that reads as follows in that part pertinent to a decision in this case:

“Upon consideration of the above, the court finds that the partnership herein, known as Dutton Trucking Company, should be dissolved upon application of Janet Dutton Gary, based on § 10-8-94(4)(5) and (6), Code of Alabama; it is therefore adjudged that the above said partnership be and is hereby dissolved as of May 1, 1982, and the members of the partnership are hereby directed to wind up the business affairs of said partnership.”

Janet Dutton Gary, Charles Dutton, and Janet’s former husband Nelson Gary had each intervened in a divorce action involving her parents Bobbie Tidmore Dutton and Miles Carl Dutton. Intervenors established that each was a partner in a business known as Dutton Trucking Company. As a result, part of the judgment in the divorce action declared that Miles Carl and Charles Dutton were each vested with a one-third interest, and Janet Dutton Gary and Nelson Gary were vested with an undivided one-third interest in the partnership.

Subsequently, Janet filed an action seeking dissolution, injunctive relief, an accounting, distribution of assets, money damages and other appropriate relief. The case was set for hearing, as per order of the trial court, to determine whether an order of dissolution should issue “and such other matters as may be appropriate if such order should issue.” (Emphasis added.) After that hearing and adducement of testimony and other evidence, the judgment was entered containing the order first noted in this opinion. We reverse.

Appellants state the following issues for review:

“1. The question of collateral estoppel arising from judgment in circuit court case as follows:
“(a) Whether a fact stated in said judgment gives rise to collateral estoppel when the case has been appealed and is pending on appeal....
“(b) Whether the evidence was sufficient to give rise to collateral estop-pel....
“2. Whether the evidence was sufficient to authorize a dissolution of the partnership by order of the court....
“3. Whether the judgment declaring a dissolution was proper and adequate ....”.

Because the case must be remanded upon the basis of issue number three and the evidence more fully developed upon retrial, we need not address issues numbered one and two. There would be little purpose served by the court’s pointing to the deficiencies and inadequacies of both the evidence and judgment in this case to be the bases of fashioning a remedy consistent with the Alabama law relating to partnerships found in § 10-8-1, et seq., Code 1975. See Jebeles v. Costellos, 391 So.2d 1024 (Ala.1980), and Costellos v. Jebeles, 406 So.2d 393 (Ala.1981). Also, note especially § 10-8-97, Code 1975. Declaring the partnership dissolved as of May 1, 1982 and directing the partners, who are obviously in antagonistic positions, to wind up the business affairs of the partnership most certainly falls far short of what the applicable statutes contemplate when a court ordered dissolution occurs.

As pointed out by appellants, a judgment dissolving a partnership should contain: A date of dissolution; a determination of the assets and indebtedness of the partnership; a marshaling of the assets or accounting; a determination of partnership property; and, a distribution of the assets and liabilities and a determination of contri-, bution. See Briley v. Briley, 51 Ala.App. 671, 288 So.2d 733 (1974).

For the stated reasons, the judgment below is reversed and this cause remanded for further proceedings consistent with this opinion.

REVERSED AND REMANDED.

FAULKNER, ALMON and ADAMS, JJ., concur.

TORBERT, C.J., concurs in result.