text:
    The BYRD COMPANIES, INC., Realtors and John M. Crowder, etc., et al. v. JEFFERSON COUNTY, etc., et al.
    82-364.
    Supreme Court of Alabama.
    Dec. 2, 1983.
    Rehearing Denied Jan. 20, 1984.
    Jesse P. Evans, III of Smyer, White, Taylor, Evans & Sanders, Birmingham, for appellants.
    Charles S. Wagner, Asst. County Atty., for appellees.
   EMBRY, Justice.

This is an appeal from the following judgment:

“FINAL JUDGMENT

“This cause came on to be heard upon testimony taken and evidence produced at an oral hearing at which the Plaintiffs were represented by Attorney Jesse P. Evans, III, the Defendants were represented by Attorney Charles S. Wagner, and the Intervening Defendants were represented by Attorney Patrick H. Boone. Based upon such testimony and evidence, the Court makes the following findings of fact:

“1. The property which is the subject of this cause is a tract of approximately 8.2 acres lying in the Northeast quarter of the Southwest quarter of Section 36, Township 18 South, Range 3 West and is more particularly described as follows:

“ ‘Commence at the NW corner of the NE ½ of the SW ⅛, Section 36, Township 18 South, Range 3 West; thence run South along the West boundary of said V-i-1/. section for a distance of 574 feet to the point of beginning of property herein described; thence turn an angle to the left of 88 degrees 40 minutes 45 seconds and run Easterly along a line 574 feet south of and parallel with the North boundary of said V4-V4 section for 343.5 feet; thence turn an angle of 37 degrees 26 minutes to the right and run southeasterly for 315.35 feet; thence turn an angle of 7 degrees 08 minutes 30 seconds to the right and run Southeasterly for 251.92 feet; thence turn an angle of 27 degrees 46 minutes to the right and run Southeasterly for 267.06 feet; thence turn an angle of 72 degrees 16 minutes 30 seconds to the left and run Easterly for 108.5 feet; thence turn an angle of 57 degrees 33 minutes 30 seconds to the right and run Southeasterly for 152.15 feet to intersection with the South boundary of said V4-V4 section; thence turn an angle' of 122 degrees 22 minutes 30 seconds to the right and run West along the South boundary of said V4-V4 section [to] the intersection with the Northeast boundary of Columbiana Road; thence run Northwest along the Northeast boundary of said road to the intersection with the West boundary of said ¼-¼ section; thence run North along the West boundary of said Vi-h section for 60 feet, more or less, to the point of beginning.
“ ‘LESS AND EXCEPT right of way to the Jefferson County for widening of Columbiana Road, as recorded in deed Volume 6605, page 281, in the office of the Judge of Probate of Jefferson County, Alabama.’ (“Property”)

“2. The property which is zoned for single family use by Jefferson County is bound on the west by Columbiana Road, on the north and east by a fairly large undeveloped tract which is zoned for single family use by Jefferson County, and on the south by a power line right-of-way and then by the Carovel Circle neighborhood which is a single family neighborhood under the zoning of the City of Vestavia.

“3. North of the property, along the east side of Columbiana road, and beyond the undeveloped tract which is zoned R-l single family by the County, is another tract which is zoned for residential use by the County but which is used for a church and its related purposes. Further north is a tract zoned RC-1 Condominium by Vesta-via which is a multi-family residential area and then a large area of R-2 single family zoning and usage.

“To the south of the power line right-of-way is the neighborhood zoned R-2 single family by Vestavia. This is Carovel Circle which is developed with approximately 24 single family residences. South of Carovel Circle there is a fairly large tract which is zoned for residential use by Vestavia but which is used for a church and its related purposes. There is then a tract which Ves-tavia has zoned as an R-5 multi-family use and which is developed with apartment buildings. Further south is a fire station and then various business and office uses with appropriate zoning. Columbiana Road intersects Tyler Road just below the fire station and then intersects U.S. 31 South in the area of the 1-65 and U.S. 31 South interchange. The business property generally lies between Tyler road and U.S. 31 South except for the property located at the intersection itself.

“Across Columbiana Road from the northern part of the Property lies Berry High School on property which is zoned I County Institutional. To the south of the Berry High School tract, but still across from the property, is a small undeveloped tract which is zoned R-l by the County. To the north of Berry High School, along the west side of Columbiana Road, is a very large subdivision that is zoned and developed as R-2 single family by Vesta-via. This area goes as far to the north of the Property on the west side of Columbia-na Road as the property previously described by the Court on the east side of the road.

“To the south of Berry High School and the undeveloped R-l tract, on the west side of Columbiana Road, is another small tract which is zoned C-P by the County and on which an office building is located. To the south of the office building almost all of the way to the intersection of Tyler Road is a large area zoned R-4 multi-family by the County which is fairly heavily developed by apartment complexes. The property at the intersection is zoned B-l by Vestavia and is used for business purposes.

“To the east of the Property is the undeveloped tract which is zoned R-l by the County and to the east of that, coming off of another road, is a tract which is zoned for a multi-family use by the county and which is developed with apartments.

“4. The topography of the Property is such that [it] is fairly level with Columbia-na Road on the west, sloping generally downhill from north to south and it slopes gently to the east for about two-thirds of the width of the tract and then slopes sharply down to a ditch on the eastern edge of the Property. The grade on the slope on the eastern third of the Property is approximately 25%.

“5. Testimony concerning the amount of traffic along Columbiana Road varied, but the Court finds that the traffic generated from the Property, under any development plan currently proposed, would not have a material effect on the traffic on Columbiana Road. From the -testimony, the Court notes that there was a traffic count showing 19,020 vehicles per day along Columbiana Road in October 1973 (Mrs. Cooper’s testimony) and that after Interstate 65 opened in 1974 the traffic count dropped to approximately 5,940 vehicles per day in May, 1974 and 5,690 vehicles per day in July 1975. The traffic is currently estimated at approximately 9,000 vehicles per day (Mrs. Bondarenka’s testimony). It is estimated that Columbiana Road has a capacity for 1,290 vehicles per hour (Mr. Robinson’s testimony). In any event, it seems clear that Columbiana Road is more than adequate to handle any traffic associated with the development proposed for the Property.

“6. A water detention system has been designed and could be constructed on the property which would prevent any increase in the rate of flow of rain water runoff from the Property.

“7. An on-site sewage disposal system has initially been approved by the Jefferson County Health Department (on August 30, 1982) which would be sufficient to handle the first part of the proposed development of the Property.

“8. All proposed and suggested development of the Property anticipates a road ■ coming off of Columbiana Road onto the Property so that the development of the Property will either face toward the interi- or of the tract or at least be contained inside the tract. There was no testimony of any proposed or suggested development which would require structures facing Co-lumbiana Road.

“9. The general development of the area described in paragraph 3 above over the past decade has been mixed with mostly single family and multi-family construction but with some church and office building development.

“10. The Property is zoned R-l Single Family by Jefferson County. The Plaintiff requested a change of zoning from R-l to C-P (Commercial preferred) in order to be able to develop the Property with office buildings. The Planning and Zoning Commission of Jefferson County recommended denial of the request (Plaintiffs’ Exhibit 20) and the Jefferson County Commission did deny the rezoning (Plaintiffs’ Exhibit 22). Plaintiffs then brought this, appeal.

“The role of the trial court in its consideration of zoning cases is set out with particular clarity by the Alabama Supreme Court in the case of City of Birmingham v. Morris, 396 So.2d 53 (Ala.1981), where it stated:

“ ‘In the recent decisions of Jefferson County v. O’Rorke, 394 So.2d 937 (Ala.1980), and Cale v. City of Bessemer [1980], 393 So.2d 959 (Ala.1980), the Court reiterated its abiding adherence to the rule of law that a trial court must not disturb the zoning decision of a duly constituted municipal body so long as that decision is based upon a “fairly debatable” rationale. A zoning determination is said to be fairly debatable “when for any reason it is open to dispute or controversy on grounds that make sense or point to a logical deduction that in no way involves its constitutional validity.” Miami Beach v. Lachman, 71 So.2d 148 (Fla.1953), or where the evidence provides a basis for a fair difference of opinion as to the application of the determination to particular property. See generally, 1 R. Anderson, American law of zoning, Sec. 3.20 (2nd ed. 1977).
“ ‘By virtue of this “Fairly debatable” rule, the role of the judiciary in zoning eases is extremely limited and the dimensions of judicial review are narrowly confined. 4 E. Yockley, Zoning law and Practice Sec. 25.2 (4th ed. 1979); 4 R. Anderson, American law of Zoning Sec. 25.26 (2nd ed. 1977). Courts must recognize that zoning is a legislative function committed to the sound discretion of municipal legislative bodies, not to the courts. Waters v. City of Birmingham, 282 Ala. 104, 209 So.2d 388 (1968); Marshall v. City of Mobile, 250 Ala. 646, 350[35] So.2d 553 (1948). As a result, local governing authorities are presumed to have a superior opportunity to know and consider the varied and conflicting interests involved, to balance the burdens and benefits and to consider the general welfare of the area involved. Episcopal Foundation of Jefferson County v. Williams, 281 Ala. 363, 202 So.2d 726 (1967); Leary v. Adams, 226 Ala. 472, 147 So. 391 (1933). They, therefore, must of necessity be accorded considerable freedom to exercise discretion not diminished by judicial intrusion. Walls v. City of Guntersville, 253 Ala. 480, 45 So.2d 468 (1950). Nevertheless, this discretion is not unbounded, and local authorities may not, under the guise of legislative power, impose restrictions that arbitrarily and capriciously inhibit the use of private property or the pursuit of lawful activities. When such arbitrary and capricious action is made apparent, a reviewing court will not hesitate to disturb the zoning determination as a clear abuse of discretion.’

“The Plaintiffs do not argue that single family residences cannot be constructed on the property, they argue instead that the costs would be prohibitive or at least in excess of the value of other residential lots in the area. The costs are largely based on the size of the lots needed in order to have septic tank field lines. The Court notes two factors in connection with this argument. First, the sewer moratorium which is now in effect, may not be permanent and the County Commission may rightfully be reluctant to allow permanent changes in the nature of an area due to temporary conditions. [It was undisputed that perhaps twice as many houses and lots could be developed on the Property if they could be connected to the sewer line which is presently available at the property except for the moratorium.] Secondly, the cost estimates are based on the value of the Property for commercial use. The value of the Property for residential uses, as shown by the Plaintiffs’ evidence, may very well be lower than its value for commercial use, however, value alone does not determine the issue and in this instance it is merely one more factor to be considered by the County Commission. [Leary v. Adams, supra, Episcopal Foundation of Jefferson County v. Williams, supra.] It is the opinion of the Court, based on the testimony and evidence presented in this case, that it is at least fairly debatable that the Property has a reasonable, practical and realistic use under the R-l (Single Family) zoning classification.

“Plaintiffs have cited the case of Davis v. Sails, 318 So.2d 214 (Fla.App.1975) and the ‘substantial relationship’ rule set out therein. It seems clear, even under Alabama cases that since the zoning authority is derived from the police power, a zoning regulation must bear a real or substantial relationship to the public health, safety, morals, general welfare, public convenience or general prosperity. [Allen v. Oxford (Axford), 285 Ala. 251, 231 So.2d 122 (1969); City of Birmingham v. Norris, 374 So.2d 854 (Ala.1979) ] The Court finds that, in the present ease, the substantial relationship to the police powers is the intent to preserve the undeveloped property in the area for development as a single family residential area. It is certainly arguable that the character of the neighborhood bears a substantial relationship to its health, safety, morals, general welfare, public convenience and general prosperity. In so finding, the Court does not mean to imply that the proposed development would have a negative impact on any of the elements enumerated above, to the contrary, if the Court were to reach that question, it would find that there was no negative impact, however, since the Court believes the decision of the County Commission did bear a relationship to the police power, and that its decision satisfied the ‘fairly debatable’ test, the Court does not need to go further.

“Accordingly, it is CONSIDERED, ORDERED, ADJUDGED and DECREED by the Court as follows:

“ONE: The decision of the Jefferson County Commission in denying the application for a change of zoning of the Property from R-l (Single Family) to C-P (Commercial preferred) was fairly debatable.

“TWO: The decision of the Jefferson County Commission bears a substantial relationship to the public health, safety, morals, general welfare, public convenience or general prosperity of the community and general area in which the Property is located.

“THREE: The relief which the Plaintiffs request in their Complaint is denied.

“FOUR: Costs of this action are taxed to the Plaintiffs.

“DONE and ORDERED this 29th day of November, 1982.”

The appeal is from the denial of relief requested in an action brought by the owners to have a zoning ordinance declared unconstitutional as applied to their property and for injunctive relief against its enforcement.

The owners filed an application for the rezoning of the property involved in this case with the Jefferson County Planning and Zoning Commission on March 3, 1982. In this application the owners requested a change from the present zoning classification of R-l (single family residential) to the C-P classification to permit the construction of an office building on the property. A public hearing was held by the Planning and Zoning Commission, which recommended to the Jefferson County Commission that the owners’ application be denied. Subsequently, on May 4, 1983, the Jefferson County Commission held a public hearing on the owners’ application and, after taking the matter under advisement, denied the application. The commissioners gave no reasons for their denial.

The owners then filed their complaint for injunctive and declaratory relief, alleging, among other things, that because of the physical characteristics of the property it has no reasonable use under the R-l classification and that the failure of the Commission to rezone the property was arbitrary and capricious, and that the failure to rezone has no relationship to the health, safety, morals and general welfare of the inhabitants of Jefferson County. The owners sought to have the trial court declare the zoning regulation unconstitutional as applied to their property and to enjoin Jefferson County from enforcing or attempting to enforce any zoning regulation more restrictive than the C-P classification.

The County answered by asserting that the decision of the Commissioners was based upon a “fairly debatable” question regarding rezoning of the property. Four such “fairly debatable issues” were specified: (a) residential character of the neighborhood, (b) increased traffic, (c) potential drainage problems, and (d) availability of sewage disposal facilities in the area.

Immediately prior to trial of the case, a number of owners of property to the south of the property involved in this case filed a motion to intervene and an answer. Intervention was allowed over the objection of the owners.

The case was tried without a jury and on November 29, 1982, the trial court denied the relief requested by the owners.

The Issues

The owners state two issues for review.

I

“Does the intent to preserve undeveloped property for single family development bear a substantial relationship to the objects of the police powers so as to justify restrictions on the use and enjoyment of privately owned property where lesser restrictive regulations would produce no negative results on the health, safety, morals, general welfare, public convenience, and general prosperity?”

II

“Is the principle that the enactment of a police power regulation will be held valid so long as it is based upon a fairly debatable rationale applicable to a determination of whether a police power regulation bears a substantial relationship to the objects of the police powers?”

Appellees stated the issues as follows:

I

“Whether an appellate court will disturb the ruling of the trial court which determined that appellee’s decision not to rezone appellants’ property was fairly debatable and where the conclusion of the trial court is supported by credible evidence and is not palpably wrong and manifestly unjust.”

II

“Can a property owner seek a change in classification of property under a zoning ordinance and at the same time and in the same proceeding attack the constitutional validity of such ordinance?”

III

“Whether the trial court correctly applied the fairly debatable rule in upholding the denial of the requested zoning classification change by the Jefferson County Commission?”

The Byrd Companies (Byrd) and Crow-der, individually and as administrator of his mother’s estate, are under contract to permit Byrd to purchase the subject property, on condition that it be rezoned from single family dwelling residential classification (R-l) to commercial preferred (C-P). Application was made by Byrd and Crowder to the Planning and Zoning Commission of Jefferson County seeking that reclassification. Notice was sent them, and other property owners within 500 feet of the property, that a public hearing would be held by the Commission. At that hearing various questions were raised and discussed, focused on the residential character of the neighborhood surrounding the Crow-der property; drainage; access to the proposed office building; traffic on Columbia-na Road; physical characteristics of the land; size, location and area of the proposed office buildings; and effect on property values in the neighborhood. After that hearing the Commission recommended disapproval of the requested rezoning.

Appeal was taken to the Jefferson County Commission and Commissioners Doss and Erdreich heard the matter. The County Commission had before it much of the same information as had the Planning and Zoning Commission, including a Field and Engineering Report, prepared for the latter commission, the Staff Committee Report of that commission, letters of affected property owners opposing the requested rezoning, and the Planning and Zoning Commission’s recommendation of disapproval. In addition to the issues discussed at the Zoning Commission hearing, Bryd and Crowder presented several experts to show the Crowder property was not suitable for single family residential use. After taking the matter under advisement, the County Commission denied the requested rezoning.

This action was then filed. The allegations of the complaint necessary for an understanding of this court’s decision are:

“6) The property is, because of its physical characteristics, unsuitable for any reasonable use under its present zoning classification, and plaintiffs allege that the most restrictive appropriate use of the property is a use permitted under the aforesaid C-P Zoning Classification which Plaintiffs applied for and Defendants denied. Plaintiffs allege that any change in zoning classification of subject property from its present R-l classification to C-P classification will not cause any undue or unreasonable burdens upon neighboring property.
“SPECIFIC ALLEGATIONS
“7) Plaintiffs allege that Defendant’s refusal or failure to grant Plaintiffs’ requested change in zoning classification was arbitrary, capricious, and unlawful, and that such refusal or failure has no conceivable relationship to the health, safety, morals or general welfare of the inhabitants of Jefferson County, Alabama, and such failure is confiscatory and constitutes a taking of the Plaintiffs’ interests in subject property without due process of law. Plaintiffs allege that the said Jefferson County zoning Regulations, as applied to the property are unconstitutional.
“8) Plaintiffs allege that their proposed use of the property will not unduly or unreasonably affect surrounding properties detrimentally, nor will any undue burden or hazard be created by traffic or other incidental characteristics of the proposed use, but that the proposed use of Plaintiff’s property will allow the use of the property which can only reasonably be used if classified C-P as aforesaid.
“9) The property and the surrounding properties have, during the past ten years, experienced substantial change in circumstances and conditions in that the various neighboring properties have been developed by the erection of commercial structures (both retail and office), and multiple family structures (apartments and condominiums).
“10) The Plaintiffs are, because of the present zoning classification of the property, unable to economically develop or put the property to any appropriate use, and that the best use and an appropriate use of the property is as a professional office development as permitted under Section 801 of the Jefferson County Zoning Regulators, as amended.
“11) Plaintiffs offer to do equity.
“Wherefore, premises considered, Plaintiffs pray that this Court will take jurisdiction of this action and will cause process to be issued to the defendants requiring them to plead or answer within the time allowed by law and the rules of this Court or otherwise suffer judgment by default against them, and that this matter will be set for hearing and consideration by this court and that upon a hearing and consideration of this matter, this Court will:
“(A) Declare the Jefferson County zoning regulatipns and ordinances under which the property is presently classified to be unconstitutional as applied to the property;
“(B) Enjoin and restrain Defendants and their successors from enforcing or attempting to enforce the present R-l zoning classification as to subject property and from preventing or interfering with Plaintiff’s construction and development of a professional office building or other appropriate use to which the property may be put under a C-P zoning classification;
“(C) Order and direct the Defendants to approve Plaintiff’s application for rezoning of the property from its present R-l classification to a C-P zoning classification so that the property may be reasonably utilized by Plaintiffs so long as Plaintiffs comply with other orders, rules or regulations of Jefferson County, Alabama, pertaining to the construction, erection, development, completion, and maintenance of professional office buildings.”

Pertinent allegations of the answer of defendant commissioners are (we do not deem it necessary for decision to deal with the Intervenors’ answer and role in the trial of this action):

“(7) Paragraph 11 of the Complaint is in the nature of a jurisdictional allegation and does not require an affirmative or negative response by these Defendants.
“SECOND DEFENSE
(Debatable Issue)
“These Defendants further answering state as follows: Records of the Planning & Zoning Commission indicate that on or about April 8, 1982, the Plaintiffs, by and through their attorney, appeared before the Jefferson County Planning & Zoning Commission; and, in accordance with that Commission’s procedure, were allowed to make a presentation in support of their requested zoning change. Numerous opponents to the requested zoning change also appeared before the Jefferson County Planning & Zoning Commission and were allowed, in accordance with that Commission’s procedure, to present arguments in opposition to the requested zoning change. The Jefferson County Planning & Zoning Commission unanimously voted to deny the rezoning request.
“On May 4, 1982, these Defendants, with the exception of Commissioner Moore, considered Plaintiffs’ application, and, following a presentation by Plaintiffs in support of the requested rezoning heard a presentation by numerous opponents to the requested rezoning and took the matter under advisement in accordance with the Defendants’ established procedure. A decision was rendered on May 11, 1982, denying the requested rezoning.
“Both the Planning and Zoning Commission and the County Commission considered numerous debatable issues including the following issues in reaching a decision:
“(a) the residential character of the adjoining properties,
“(b) increased vehicular traffic flow problems that would be created along Columbiana Road,
“(c) the potential drainage problems created by the clearing and grading specifications of the proposed plans for the site, and
“(d) the availability of sewer service in the area.
“Each and every one of these issues was a debatable issue presented to the .Jefferson County Commission and were among many issues considered by them in denying the requested rezoning.
“THIRD DEFENSE
(Failure to State a Claim)
“The Complaint fails to state a claim against these Defendants answering upon which relief may be granted.”

After trial, ore terms, with sharply conflicting evidence, the judgment appearing earlier in this opinion was entered.

The issues as stated by the parties have been set out and we must now look to the controlling principles of law in order to address those issues in light of the facts of this case and the judgment of the trial court. We think that no improvement could be made by this court on the statement of general principles of law governing cases of this nature found in Davis v. Sails, 818 So.2d 214 (Fla.Dist.Ct.App.1975):

“The law is so well settled as to require no citations of authority that a city or county has the right and power, within the confines of applicable enabling statutes, to adopt zoning ordinances or regulations. Further, such zoning ordinances or regulations are, like other legislative acts, presumed valid. Two other rules or law, which sometimes become confused and intertwined, are the ‘substantial relationship rule’, and the ‘fairly debatable rule’. The substantial relationship rule is substantive law, and may be simply stated as follows: In order for a zoning ordinance or regulation to be valid, it must have some substantial relationship to the promotion of the public health, safety, morals or general welfare. When correctly applied, this rule is not in any manner modified by the fairly debatable rule. The latter rule, being a rule of procedure or application, may be simply stated as follows: if the application of a zoning classification to a specific parcel of property is reasonably subject to disagreement, that is, if its application is fairly debatable, then the application of the ordinance by the zoning authority should not be disturbed by the courts. Of course, it is always a matter for the court to determine whether a zoning authority acted reasonably or fairly or whether capriciously or arbitrarily. The fairly debatable rule applies to the application of the ordinance and does not modify the requirement that the ordinance itself and the application thereof must have a reasonable relationship to the health, safety, morals or general welfare. [Emphasis added.]
“The general law, which is also the law of Florida, as to the validity of a zoning. ordinance or classification, as applied to particular parcels of property, is succinctly stated in Volume 101 C.J.S. Zoning as follows:
‘The justification for zoning enactments is the greater benefit which accrues therefrom to the public as a whole, or the paramount interest of the public welfare and the realization that private interests must sometimes be subordinated to the public good, or * ⅜ ⅜ it must be found in some aspect of the police power asserted for the public welfare. Such enactments, however, are subject to limitations on the police power, and cannot validly be extended beyond the accomplishment of purposes rightly within the scope thereof. [Emphasis added.]
“ ‘To be valid, they must be for the superior interest and rights of the public, or they must be predicated on a public interest and founded on a need of the community, and be conducive to, or subserve, the public welfare, or be for the public good. They must have a rational relation to the protection of the basic interest of society, and a public benefit must be derived from them. They are invalid if they disclose no purpose to prevent some public evil or fill some public need. [Emphasis in original opinion.]
‘In order to be valid as a proper exercise of the police power, especially where their application will cause a destruction of property values, zoning laws, ordinances, by-laws, regulations and restrictions must advance, promote or tend or be designed to promote, the public health, safety, morals, or general welfare, or be reasonably necessary for the protection of the public health, safety, comfort, morals, or welfare, or have or bear a real and substantial relation to public health, safety, morals, or the general welfare; and it has been held that such enactments must bear the required relation with respect to the particular premises to which they are applied.’
“It is clearly the duty of the court to determine the validity of zoning ordinances as applied to a specific parcel of property_” (Emphasis added.)

Guided by these principles, after examination of the entire record, after a reading of the quality briefs of able counsel, after scrutinizing with care the learned trial judge’s findings, conclusions and judgment, we will answer the issues as posed by the parties.

We answer appellants’ issue I in the affirmative. Also, we note with interest words of the trial court that “the court does not mean to imply that the proposed development would have a negative impact on any of the elements enumerated above; however, since the court believes the decision of the County Commission did bear a relationship to the police power, and that its decision satisfied the ‘fairly debatable’ test, the court does not need to go further.”

It is evident from a reading of the final judgment in its entirety,' in context, that the zoning regulation here under scrutiny, was determined by the trial court to have a substantial relationship to the promotion of the public health, safety, morals or general welfare. We agree.

Regarding issue II of appellants, we need only state that the evidence and the law support the conclusion of the trial court that the commission’s decision satisfied the fairly debatable test. The trial court in so concluding is correct and we hold that, under the evidence of record, application of the zoning classification R-l to the specific property of appellants is reasonably subject to disagreement (fairly debatable); therefore, the decision of the Jefferson County Commission will not be disturbed. See generally Woodard v. City of Decatur, 431 So.2d 1173 (Ala.1983).

Turning to the issues as stated by appel-lees, we think their first issue has been answered as well as their third issue.

Regarding their second issue, we agree that a property owner may not seek a change in classification of property under a zoning ordinance, or regulation, and at the same time, and in the same proceeding, attack the constitutional validity of such ordinance or regulation. This would be self contradictory. One may not seek relief under an ordinance if it is constitutionally invalid, because the relief sought under it would be unnecessary if that same ordinance did not govern the right to the relief. See City of Homewood v. Caffee, 400 So.2d 375 (Ala.1981). However, we thought it desirable to address the other issues in the hope that by so doing further litigation with the attendant expenditure of attorney and judicial time and manpower, as well as expense, would not be required.

For all the reasons stated, the judgment below is due to be and is hereby affirmed.

AFFIRMED.

FAULKNER, ALMON and ADAMS, JJ., concur.

TORBERT, C.J., concurs in result.

APPENDIX

      . A sketch of the property and that surrounding it is attached as an appendix.


source: Caselaw Access Project

author: EMBRY, Justice.

license: Public Domain

text:
    ALABAMA POWER COMPANY v. BLOUNT BROTHERS CORPORATION and United States Fidelity and Guaranty Company.
    82-515.
    Supreme Court of Alabama.
    Dec. 2, 1983.
    Rehearing Denied Jan. 20, 1984.
    Robert McD. Smith and Lewis W. Page, Jr. of Lange, Simpson, Robinson & Somer-ville, Birmingham, for appellant.
    Edward 0. Conerly of McDaniel, Hall, Parsons & Conerly, Birmingham, and Richard J. Phelan and Donald B. Hilliker of Phelan, Pope & John, Chicago, Ill., and A.J. Noble, III of Bradley, Arant, Rose & White and W. Stancil Starnes for Starnes & Atchi-son, Birmingham, for appellees.
   EMBRY, Justice.

This is an appeal from summary judgment entered against Alabama Power Company (APCO), in favor of Blount Brothers Corporation (Blount Brothers) and United States Fidelity and Guaranty Company (USF & G). We affirm.

The pertinent facts are as follows: Blount Construction Company (Blount Construction) and APCO contracted, pursuant to Contract No. J2-8, for Blount Construction to perform the powerhouse concrete, backfill, and embankment construction for the Jordan Dam No. 2 Development. USF & G was the surety on a performance bond for that construction. The excavation and embankment portions of the contract were subcontracted to Harbert Construction Corporation. Jordan Dam No. 2 was completed in 1967, and is today known as the Walter Bouldin Dam. After the dam was completed, a dispute arose between Blount Construction and APCO over sums due because of delays in construction. Blount Construction claimed $2,400,000 against Alabama Power and APCO claimed $900,-000 against Blount Construction. These claims were compromised and the parties entered into a release agreement. Consideration for the agreement was $500,000 paid by APCO to Blount Construction.

Five years later, in 1975, an earthen dike at the dam failed. APCO brought this action against Blount Brothers, Blount Construction, Harbert, USF & G, and other, unnamed, defendants, on the grounds that Contract No. J2-8 had been breached and certain work on the dam was performed negligently. APCO settled, pro tanto with Harbert, and it was dismissed as a defendant.

A motion to dismiss or, in the alternative, a motion to quash service, was entered on behalf of Blount Construction Company. The ground for the motion was that Blount Construction was dissolved and liquidated effective 13 March 1970. The trial court postponed decision on the motion for pretrial héaring.

Meanwhile, Blount Brothers and USF & G responded with a joint motion for summary judgment under Rule 56, ARCP. That motion was based upon the terms of the release agreement entered into between APCO and Blount Construction.

The trial court found, as a matter of law, that the terms of the release were unambiguous and they barred APCO’s action against both Blount Brothers and USF & G. The release provided in pertinent part:

“(b) Alabama Power Company, its successors or assigns, does hereby release and forever discharge Blount Construction Company, its successors or assigns, of and from any claim, demand or demands, damages, action or actions, cause or causes of action which Alabama Power Company might have or could maintain by reason of any of the matters or things done or suffered to be done, or omitted or suffered to be omitted to be done, and involving in any way Contract No. J2-8 and Jordan Dam No. 2 Development.”

In a separate order, the trial court struck two affidavits presented by APCO in opposition to defendants’ motion for summary judgment. Both affidavits presented information as to the subjective intent of APCO’s signatory to the release and evidence regarding negotiations leading to the execution of the release agreement.

APCO appeals from the trial court’s grant of summary judgment and its decision to strike APCO’s affidavits in response to the motion for summary judgment. It presents to this court three issues:

I
Whether the trial court erred in determining the release agreement was unambiguous and barred, action by APCO against Blount Brothers and USF & G.
II
Whether the trial court erred by refusing extrinsic evidence offered by APCO in opposition to the motion for summary judgment.
III
Whether the trial court erred in determining APCO’s claims against Blount Brothers were barred by the release agreement entered into with Blount Construction.

We will consider the above issues in the order presented. Our standard for review of the trial court’s action in granting the motion for summary judgment is the same standard used by the trial court when ruling on the motion. Long v. Bankers Life & Casualty Co., 294 Ala. 67, 311 So.2d 328 (1975). It was bound to review the record in the light most favorable to APCO. Reasonable inferences were to be made in APCO’s favor and reasonable doubts were to be resolved against Blount Brothers and USF & G. Butler v. Michigan Mutual Insurance Co., 402 So.2d 949 (Ala.1981); Campbell v. Alabama Power Co., 378 So.2d 718 (Ala.1979); Papastefan v. B & L Const. Co., Inc. of Mobile, 356 So.2d 158 (Ala.1978). The moving parties, Blount Brothers and USF & G, had the burden to show there was no genuine issue of material fact; that they were entitled to prevail as a matter of law; and that under no set of discernible circumstances under a cognizable theory of law could APCO recover. Kutack v. Winn-Dixie Louisiana, Inc., 411 So.2d 137 (Ala.1982); Butler v. Michigan Mutual Insurance Co., supra.

I

The first, and foremost, issue is whether the trial court correctly concluded, as a matter of law, that the plain language of the release unambiguously barred the claims in this action. It is uncontroverted that this was properly a question of law for the trial court on motion for summary judgment. In Brown Mechanical Contractors, Inc. v. Centennial Insurance Co., 431 So.2d 932 (Ala.1982), this court stated, “The threshold issue — whether or not the contract is ambiguous — is itself a question of law.”

APCO contends the release agreement is ambiguous in that the release language can be read to limit its application to only those claims known to be in existence at the time of its execution.

When considering the language of a release, the trial court is called upon to discern the intent of the parties. This court recently noted, in Smith v. Smith, 418 So.2d 898 (Ala.1982), that:

“ ‘In ascertaining the intention of the parties, the plain and clear meaning of the [contract’s] terms must be given effect, and parties must be legally presumed to have intended what is plainly and clearly set out.’

418 So.2d at 901 (quoting Financial Inv. Corp. v. Tukabatchee Area Council, Inc., Boy Scouts of America, 353 So.2d 1389, 1391 (Ala.1977). See also Federal Land Bank v. Terra Resources, Inc., 373 So.2d 314, 319-20 (Ala.1979); Willis v. James, 287 Ala. 653, 659, 254 So.2d 717, 722 (1971). In determining whether the language of the release agreement entered into between APCO and Blount was ambiguous, we must also give the words of the agreement their “ordinary meaning.”- Food Service Distributors, Inc. v. Barber, 429 So.2d 1025, 1028 (Ala.1983).

The ordinary meaning of the language employed in APCO’s release is comprehensive and unconditional with respect to the claims it sought to “release and forever discharge,” including:

“any claim, demand or demands, damages, action or actions, cause or causes of action which Alabama Power Company might have or could maintain by reason of any of the matters or things done or suffered to be done ... and involving in any way ... [the construction of Walter Bouldin Dam].” (Emphasis added.)

It is evident from that language that the whole point of the release was to preclude the parties from making any claims which arose out of a contractual relationship that had begun seven years earlier and work that had been completed for three years at the time the release was executed. The quoted language reflects the express intention of two sophisticated parties to “forever” put to rest “any” claims “involving in any way” the construction of Walter Boul-din Dam.

Blount Brothers and USF & G argue:

“Uncertainty about the future is always present when two parties negotiate a , general release of claims with the purpose of putting behind them for all time a transaction and its consequences. It is that very uncertainty that general and unconditional releasing language is designed to encompass.... ”

We must agree that APCO’s discharge of “any claim ... which Alabama Power Company might have or could maintain” shows an intent to encompass exactly that uncertainty about the future. (Emphasis added.)

Other language in the release supports this construction. For example, Blount expressly reserved and excepted certain claims from the release. It would follow that the parties intended a general release, with certain exceptions.

This court considered a similar situation in Barbour v. Poncelor, 203 Ala. 386, 83 So. 130 (1919). There, a release discharged “any claim or any sort or description, growing out of, or arising out of the sale of any of the stock.” The plaintiff contended the agreement did not contemplate the possibility of a fraud claim against the defendant. This court stated:

“ ‘A release, therefore, shall be held to include all demands embraced by its terms, whether particularly contemplated or not; and parol evidence is not admissible to show that a certain claim was not in the minds of the parties.’ ”

203 Ala. at 393, 83 So. at 136.

II

In response to the motion for summary judgment, APCO filed two affidavits. Defendants filed a motion to strike the affidavits as inadmissible extrinsic evidence barred by the parol evidence rule. On appeal, APCO argues that the trial court’s grant of the motion to strike constitutes a separate ground for reversal.

It is axiomatic that parol evidence offered in opposition'to a motion for summary judgment may not vary the terms of a writing. This court recently stated, in Conley v. Harry J. Whelchel Co., 410 So.2d 14 (Ala.1982), that:

“[A] release supported by a valuable consideration, unambiguous in meaning, will be given effect according to the intention of the parties to be judged from what appears within the four corners of the instrument, itself and parol evidence is not admissible to impeach it or vary its claims.... ”

410 So.2d at 15.

Both affidavits presented by APCO in opposition to the motion for summary judgment assert that it was not APCO’s intention to release Blount from future claims. That assertion is in direct contradiction to the ordinary meaning of the language of the release.

“Under Rule 56(e), ARCP, an opposing affidavit must be made on personal knowledge, and must set forth facts as would be admissible in evidence.” (Emphasis added.) Day v. Merchants National Bank of Mobile, 431 So.2d 1254, 1256 (Ala.1983). Because APCO’s affidavits both sought to establish facts not admissible as evidence, they were properly excluded.

Ill

Last, APCO argues summary judgment in favor of Blount Brothers Corporation was inappropriate in that it was not a party to the release agreement and APCO’s complaint alleges acts of independent negligence against Blount Brothers. We find that theory unfeasible. There was no allegation, in APCO’s amended complaint, of independent negligence on the part of Blount Brothers. In every count asserting negligence, APCO specifically names “Blount” as the guilty party. This, after having defined “Blount” in the first paragraph of the complaint to mean Blount Construction Company rather than Blount Brothers Corporation. APCO then alleged the following:

“In 1969, after the apparent completion of the Walter Bouldin Dam project, Blount Brothers Co., then a Florida corporation, withdrew its qualification to do business in the State of Alabama. Plaintiff is informed that in 1970 Blount Brothers Corporation and others acting in concert with it caused Blount Construction Co. to be dissolved. Plaintiff alleges that although ostensibly separate corporations, Blount Construction Co. and Blount Brothers Corporation were one and the same, or in the alternative, that Blount Construction Co. was the mere agent, instrumentality or alter ego of Blount Brothers Corporation and that for these and other reasons, Blount Brothers Corporation is liable for any and all claims against Blount Construction Co. stated herein. ...”

It is clear from a careful reading of the release that its terms absolve Blount Brothers of any legal liability alleged by APCO’s amended complaint. In that release, APCO discharged. “Blount Construction Company, its successors or assigns, of and from any claim ... involving in any way Contract No. J2-8 and Jordan Dam No. 2 Development.” This language unquestionably absolves Blount Brothers Corporation as principal or alter ego of Blount Construction Company.

For the above reasons, we affirm the trial court’s finding that no genuine issue of material fact exists with respect to the broad scope of the release agreement and its application to Alabama Power Company’s claims against both Blount Brothers Corporation and United States Fidelity and Guaranty Company.

AFFIRMED.

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


author: FAULKNER, Justice.

text:
    Richard M. BAYLOR v. Thomas W. JORDAN, et al.
    82-459.
    Supreme Court of Alabama.
    Jan. 20, 1984.

      Frank M. Wilson of Beasley & Wilson, Montgomery, for appellant.
    Oakley Melton, Jr. of Melton & Espy, Montgomery, for appellees.
   FAULKNER, Justice.

The plaintiff, Richard Baylor, appeals from a summary judgment in favor of Thomas W. Jordan, William M. Richardson, and First Montgomery Bank. The gist of Baylor’s complaint was that the defendants fraudulently induced him to sell certain securities for less than their fair market value.

Baylor and Jordan were close personal friends who engaged in various business ventures together for about ten years prior to the events complained of. They had formed a corporation, Furniture Town, Inc., which was engaged in the business of selling furniture on credit. Baylor and Jordan each owned fifty percent of the outstanding shares of the corporation. Both were directors and officers. Baylor ran the day-to-day business of the corporation.

In order to finance the furniture store, Baylor and Jordan borrowed money from First Montgomery Bank. The loans were secured by Furniture Town’s accounts receivable. Richardson, the president of First Montgomery, dealt with both Baylor and Jordan on behalf of the bank. For service of the loans, Furniture Town furnished Richardson with monthly financial statements detailing the store’s operation.

Baylor was working long hours at the store and he became dissatisfied with Jordan’s limited participation in the business. According to Baylor’s testimony in his deposition, he approached Richardson and requested a loan to enable him to buy Jordan’s interest. Richardson allegedly told Baylor that the bank “could not make loans on that type of business.”

Since he was unwilling to continue in the business with Jordan, Baylor met with Jordan and offered to buy Jordan’s shares for $50,000.00. According to Baylor, that price was arrived at on an “individual basis,” that is, what either Baylor or Jordan individually could raise to buy out the other.

The offer came as a somewhat of a surprise to Jordan and he asked for some time to think about it. Later the same day they discussed their differences again. Baylor was firm in his opinion that their business relationship needed to be dissolved. Baylor testified in his deposition that when they met the next day Jordan stated that, since they had “known each other so long, wouldn’t it only be fair that if you made the offer to buy, that you would give me the same offer to buy?” Despite the fact that a sale of the business’s tangible assets would have netted Baylor and Jordan $75,-000.00 to $80,000.00 each, Baylor agreed to sell his shares to Jordan for $50,000.00 because of their “close relationship.”

The next day Jordan purchased Baylor’s shares for $50,000.00. Unknown to Baylor, Jordan had entered into an agreement with Richardson (acting in his own behalf) whereby Jordan agreed to convey fifty percent of the outstanding shares of Furniture Town to Richardson in exchange for financing arranged by Richardson which was used to purchase Baylor’s shares.

It is undisputed that Jordan made no material misrepresentations of material fact in connection with the transaction. Baylor contended, however, that Jordan and Richardson had a duty to disclose Richardson’s role in the transaction, because the price was arrived at on an “individual basis” between Jordan and Baylor. Baylor claimed that, had he known that a third party was involved, he would not have sold his shares for less than their fair market value. He conceded that, as a general rule, a purchaser of securities is under no obligation to disclose that he is acting on behalf of an undisclosed principal. ■ Baylor argued that in this case, however, an obligation to disclose arose out of the confidential relations of the parties or the particular circumstances of the case. Section 6-5-102, Code of Alabama.

Baylor argued that Jordan owed him a fiduciary duty because Jordan was an officer and a director of the corporation and because of their close, personal relationship. Baylor's argument overlooks the fact that Jordan was not dealing with Baylor in his capacity as an officer or director. They were dealing with each other as shareholders. We have recognized á duty on the part of majority shareholders to act fairly to minority stockholders. See Burt v. Burt Boiler Works, 360 So.2d 327 (Ala.1978). We know of no authority, however, to support a proposition that when two shareholders who possess equal knowledge of the material facts and have relatively equal bargaining power and business acumen buy and sell securities they stand in a confidential relationship to one another. It is true that when two old friends are dealing with each other there might be a tendency to be less cautious than strangers who transact business with each other. The totality of the facts, even when viewed most favorably toward Baylor, do not, however, support his contention that Richardson’s role was a material fact which Jordan had a duty to disclose. It was Baylor who decided that they should terminate their business relationship. He suggested the price of $50,000.00, knowing that that amount represented less than one-half the net value of the corporation’s assets. Even though he alleged that the offer was made on an “individual basis,” he admitted in his deposition that “neither one of us had that much money” apd acknowledged that he knew at the time that whoever bought the other out would have to arrange some sort of financing. Finally, there were no restrictions on further sales of the stock. Once he owned Baylor’s shares, Jordan was free to sell as many of the shares as he saw fit at whatever price he could obtain.

Baylor also argued that under the circumstances of this case we should recognize a fiduciary relationship between the bank and Baylor. Courts have traditionally viewed the relationship between a bank and its customer as a creditor-debtor relationship which does not impose a fiduciary duty of disclosure on the bank. A fiduciary duty may arise when the customer reposes trust in a bank and relies on the bank for financial advice, or in other special circumstances. See Brasher v. First National Bank of Birmingham, 232 Ala. 340, 168 So. 42 (1936); Annot., “Bank as Fiduciary—Duty of Disclosure,” 70 A.L. R.3d 1344 (1976).

There were no allegations that Baylor placed trust and confidence in the bank or that he relied on Richardson to counsel him. Nor do we opine that other special circumstances exist here which would warrant a fiduciary duty on the part of the bank to disclose. This is not a situation where a party with superior knowledge acted to the detriment of a party in an inferior position. There was no weakness of age, no lack of mental strength, and no absence of business intelligence. The plaintiff was a sophisticated businessman accustomed to buying and selling securities.

Baylor relies heavily on several cases involving appropriation by loan officers of opportunities for which prospective borrowers sought financing. Dolton v. Capitol Federal Savings and Loan Ass ’n, Colo. App., 642 P.2d 21 (1982); Warsofsky v. Sherman, 326 Mass. 290, 93 N.E.2d 612 (1950); Pigg v. Robertson, 549 S.W.2d 597 (Mo.App.1977). In each case the plaintiff desired to purchase certain property. He went to a bank in an attempt to seek financing and in connection with the loan application disclosed details of the proposed transaction to the loan officer. In each case the loan officer purchased the property for which the customer sought financing. Each case stated a claim for equitable or other appropriate relief on the theory that a loan officer should not be allowed to use information provided in confidence to the detriment of the customer who disclosed the information.

The cases cited by the plaintiff are distinguishable from the case at bar. Here the loan officer did not purchase the property which Baylor sought to buy. Richardson cannot be said to have appropriated an opportunity for which Baylor sought financing, since Baylor was the seller, not the buyer. Nor was there any misuse of confidential information supplied by Baylor to Richardson. Richardson learned that Baylor had agreed to sell when Jordan approached Richardson with the idea of buying Baylor’s shares. There was no information supplied by Baylor in connection with his loan application which was employed by Richardson in deciding to buy.

It is undisputed that the idea of terminating Baylor’s and Jordan’s business relationship originated with Baylor. Jordan purchased the shares on terms proposed by and agreed on by Baylor. He acquired financing through Richardson much in the same way that Baylor had sought to do. All three were sophisticated, intelligent businessmen who knew the true value of what they were buying and selling. Although he knew that Jordan had to acquire some sort of financing to enable him to make the purchase, Baylor never inquired as to his source of funds. Under those facts Baylor cannot now be heard to complain that he was the victim of fraudulent concealment by the defendants.

AFFIRMED.

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


text:
    Ellis M. FILES v. Avery Bird SCHAIBLE.
    82-470.
    Supreme Court of Alabama.
    Jan. 20, 1984.

      Richard S. Manley of Manley & Traeger, Demopolis, for appellant.
    Thomas H. Boggs, Jr. of Lloyd, Dinning, Boggs & Dinning, Demopolis, for appellee.
   EMBRY, Justice.

This is a dispute over the enforceability of a noncompetition clause in a contract entered into between Ellis M. Files and Avery Bird Schaible.

Briefly, the facts are as follows:

Appellant Files operated the Ellis Red Barn Restaurant in Demopolis, Alabama, until a fire caused significant damage to the building in which the restaurant was housed. Files decided not to reopen the restaurant and spoke with Jim Bird, the owner of the building in which it was located, regarding the possibility of Files’s selling his restaurant equipment to Bird’s daughter, Avery Bird Schaible, and teaching her the restaurant business. At that time Bird requested that, if an agreement was reached between Schaible and Files, Files agree not to go into competition with Schaible.

The agreement reached is represented by the following writing:

“KNOW ALL MEN BY THESE PRESENTS, that I, Ellis Files, in consideration of TEN DOLLARS ($10.00) and other good and valuable consideration to him paid by Avery Bird Schaible, the receipt whereof is hereby acknowledged, do bargain, sell and deliver to said Avery Bird Schaible the following goods and chattels: The restaurant equipment, inventory, office equipment and other goods and chattels connected with the restaurant business located in Ellis’ Red Barn, located on U.S. Highway 80 in Demopolis, Marengo County, Alabama. The vendor agrees that he will not for the period of five (5) years from the date hereof assume ownership of any restaurant business within the radius of five (5) miles of the City of Demopolis, Alabama, provided, however, that his agreement shall not preclude the vendor from engaging in the catering business.
“Witness my hand and seal this 6th day of June 1978.
“/S/ Ellis Files (L.S.)”

Once repairs were completed on the restaurant building, in May of 1978, Schaible opened her restaurant and called it “The Red Barn.” Files worked with Schaible for several weeks thereafter in order to teach her the business and to provide her with introductions to his regular customers. At Files’s suggestion, during that period, Schaible sponsored a party for a number of Files’s regular customers.

In early 1979, a restaurant called “Ellis V” began operating across the street from the Red Barn Restaurant. Schaible brought suit against Files, alleging Ellis V was owned and operated by Ellis Files, and that he had breached his covenant not to assume ownership of a restaurant within a five-mile radius of the Red Barn for a period of five years. After trial, a jury returned a verdict for Schaible and fixed her damages at $50,000. Judgment was entered accordingly.

Files appealed after the trial court denied his motion for judgment notwithstanding the verdict or for new trial. He raises four issues:

“(1) Did the court err in failing to grant the defendant a new trial or a judgment notwithstanding the verdict when the plaintiff failed to prove the existence of any consideration for the alleged sale of good will?
“(2) Did the court commit reversible error when it allowed the plaintiff to proceed in a lawsuit on an alleged breach of a covenant not to compete when there was no sale of good will?
“(8) Did the court commit reversible error by failing to grant a motion for a new trial or in the alternative judgment notwithstanding the verdict in favor of the appellant when the testimony proved that the appellant had not breached a contract made the basis of this suit by assuming ownership of a business?
“(4) Did the court commit reversible error in denying the defendant’s motion for a new trial on the grounds that the damages could not be traced to the alleged breach of contract and are so remote and speculative as to be unrecoverable?” (Citations omitted.)

Prior to our discussion of those issues, we should note that all favorable presumptions will be afforded by this court to the correctness of the jury’s verdict, and that verdict will not be disturbed unless it is clearly divergent from the evidence and the law. Baswell v. Wilks, 57 Ala.App. 98, 326 So.2d 292 (1976). These presumptions are strengthened because the trial court refused to grant a new trial or enter judgment notwithstanding the verdict. Birmingham Southern R. Co. v. Ball, 271 Ala. 563, 126 So.2d 206 (1961).

I

The first two issues presented by Files on appeal concern whether there was a sale of good will of the business. That is relevant because § 8-1-1, Code 1975, provides that all contracts by which one is restrained from exercising a lawful trade, business, or profession is void, unless allowed by subsections (b) or (c) or that statute. Subsection (b) permits the seller of the good will of a business to agree with the buyer to refrain from carrying on or engaging in a similar business. Subsection (c) is not applicable in this case.

Files alleges there was no sale of good will because: (1) There was no express mention of the sale of good will in the written agreement; and (2) There was no consideration for the sale of good will.

It is well settled that, in order for a covenant not to complete to be valid when executed in connection with a sale of a business, it is not necessary that the contract of sale specifically state the transaction includes a sale of good will. This court held, in Maddox v. Fuller, 233 Ala. 662, 173 So. 12 (1937):

“It is not necessary that the contract specifically mention a sale of the business, nor the good will thereof. The taking over of the same business by the vendee, and the covenants designed, in the nature of them, to protect the good will, which in much consists in the disposition of customers to continue to do business of the same kind at the same place, imply a sale of the good will, and all the circumstances may be averred and proven to show such intent. Smith v. Webb, 176 Ala. 596, 58 So. 913, 40 L.R.A. (N.S.) 1191; J.L. Davis, Inc. v. Christopher, [219 Ala. 346, 122 So. 406] supra; Moore & Handley Hardware Co. v. Towers Hardware Co., 87 Ala. 206, 6 So. 41, 13 Am.St.Rep. 23.”

233 Ala. at 665, 173 So. at 14-15. See also Yost v. Patrick, 245 Ala. 275, 17 So.2d 240 (1944).

The tendency of the evidence in this case is that Files intended to sell the good will of his restaurant. Representative is evidence that Schaible took over Files’s restaurant operation; Files agreed to include the covenant not to compete in the written agreement; Files spent considerable time teaching Schaible the restaurant business, and introduced her to his best customers. We find Files’s contention that there was no sale of good will untenable because all the circumstances surrounding the transaction between Files and Schaible clearly imply a sale of the good will of the business.

II

Second, Files contends that because the written agreement, containing his agreement not to compete, does not express consideration specifically for the covenant not to compete, that covenant is not enforceable.

Adequate consideration exists, or is implied, if it arises from any act of the plaintiff from which the defendant derived a pecuniary benefit (i.e. the profitable sale of the restaurant business), if such act was performed by the plaintiff to the desired end, with the expressed or implied assent of the defendant. That which creates and carries a benefit to the party promising, or causes trouble, injury, inconvenience, prejudice, or detriment to the other party, is sufficient consideration. Cristie v. Durden, 205 Ala. 571, 88 So. 667 (1921). Conflicting evidence as to whether the consideration was adequate creates a question of fact to be determined by the trier of fact. Hyatt’s Supply Co. v. Lyle, 222 Ala. 460, 133 So. 3 (1931); Bush v. Russell, 180 Ala. 590, 61 So. 373 (1913).

The written agreement signed by Files can be interpreted, as Files urges, as two separate contracts. However, contrary to Files’s assertion, each is supported by adequate consideration. That Schaible would not have entered the agreement for the sale of the restaurant equipment absent the covenant not to compete supplies sufficient consideration to support the obligation in that Schaible has thereby suffered a legal detriment. See National City Bank of Mobile, v. Barrett, 217 Ala. 611, 117 So. 55 (1928); Baumhauer v. McGill, 15 Ala.App. 433, 73 So. 753 (1917); First Alabama Bancshares, Inc. v. McGahey, 355 So.2d 681 (Ala.1978); Clayton and Associates v. McNaughton, 182 So.2d 890, 279 Ala. 159 (1966).

III

Files alleges Schaible failed to prove he assumed ownership of the restaurant called Ellis V. He contends he merely served as a paid employee for owner Dale Hunt and because the bill of sale made the basis of this suit contained no provision prohibiting him from working for another restaurant owner, this was not a prohibited assumption of ownership. He presented evidence that he received a salary from the restaurant and that all the tax and business records are in the name of a third party, that of Dale Hunt.

The transcript is full of evidence that Files had complete control and ownership of Ellis V and that Hunt was merely a front for Files in order to avoid the non-competition clause in his agreement with Schaible.

The record reveals Files began negotiating with Margie Acker for the purchase of the Coach House Restaurant a short time after the Red Barn had opened under Schaible. Margie Acker testified that Files indicated he was negotiating for himself and asserted to her that the noncompetition clause in the agreement with Schaible would be no problem because he was going to put the Red Barn out of business.

Dale Hunt, a former waitress at Ellis Red Barn Restaurant, actually signed a lease/purchase agreement for the restaurant building and worked at the Ellis Y in some capacity. There was, however, sufficient testimony to indicate she neither owned, leased, nor managed Ellis Y.

Files testified that Dale Hunt had put $10,000 into the Ellis V Restaurant business. He testified he eo-signed a note for that amount, but on deposition stated he did not co-sign that note. He also testified he paid the note off for Hunt.

There was evidence that Ellis actually paid leasing expenses incurred for the restaurant. He purchased the restaurant property under Hunt’s lease/purchase option. All monies paid to Acker during the period the building was leased were applied to the purchase price for the building. It was undisputed that Files owned all the restaurant equipment used at Ellis V.

Furthermore, testimony was presented that Files managed the business without the help of Hunt. The chef at Ellis V testified that he was instructed by Files to take orders from no one except Files.

Most damaging to Files was testimony that he had told a number of people, prior • to the opening of Ellis V, that he had managed to find a way to get around the noncompetition agreement with Schaible.

'We find the great weight of the evidence supports Schaible’s contention that Files actually owned and managed Ellis V and used Hunt to mask his ownership.

IV

Last, Files argues the awarded damages were remote and speculative. We find, however, that damages proved by Schaible were considerably more than the amount awarded.

The law in Alabama regarding damages for breach of contract is clear. Damages should restore the injured party to the condition he or she would have occupied if the contract had not been violated, or had been fully performed. Coastal States Life Ins. Co. v. Gass, 278 Ala. 656, 180 So.2d 255 (1965).

These damages need not be measured with mathematical precision. The plaintiff only needs to produce evidence sufficient to afford a reasonable basis for estimating loss. Champion v. Gaines, 48 Ala.App. 484, 266 So.2d 150 (1972).

George Davis, accountant for Schaible, who had also been the accountant for Files while he owned the Ellis Red Barn Restaurant, testified regarding Schaible’s monetary losses after Files opened Ellis V. His testimony included a detailed analysis of the Red Barn’s business records during the eight months Schaible operated the Red Barn prior to the opening^ of the latter. In toto, losses established by the testimony of Davis amounted to $126,616. This amount includes a downward adjustment for Schai-ble’s income from a collateral source subsequent to the failure of the Red Barn Restaurant.

Additionally, Schaible presented substantial evidence that there were no reasons for loss of business besides the competition from Files, such as uncleanness, poor food quality, or poor service. She also presented evidence that a number of her regular customers patronized Ellis V rather than the Red Barn after Files began to operate that restaurant.

We find Schaible presented evidence sufficient to form a reasonable basis for establishing her losses pursuant to Files’s breach of contract.

The rulings of the trial court being correct, and its review of the issues on motion for new trial having been correctly decided, the judgment below is due to be, and is, hereby; affirmed.

AFFIRMED.

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

      . For a more complete discussion of Alabama law concerning covenants not to compete, see Edwards, Covenants Not to Compete in Alabama, 44 Ala.Law 306 (November 1983).


author: MADDOX, Justice.

text:
    Patricia IVORY v. Fannie M. FITZPATRICK, Administratrix of the Estate of Willie Fitzpatrick, deceased.
    82-487.
    Supreme Court of Alabama.
    Jan. 20, 1984.

      Robert D. Segall of Copeland, Franco, Screws & Gill, Montgomery, for appellant.
    Tom E. Ellis, Birmingham, for appellee.
   MADDOX, Justice.

The two issues before the Court on this appeal are: (1) whether a wrongful death claim pursuant to Code 1975, § 6-5-410, against a decedent’s estate, is subject to the provisions of the nonclaim statute, § 43-2-350; and (2) whether notice (within six months) given to the attorney for the estate of the defendant and the liability insurer precluded the entry of summary judgment. We respond in the affirmative as to the first issue and in the negative as to the second issue, and affirm the judgment below.

The facts of this case are uncomplicated, and are basically as follows:

An automobile accident involving two vehicles occurred on June 29, 1980, in Fort Deposit. Both drivers, Arthur James Ivory and Willie Fitzpatrick, died as a result of the accident. Arthur Ivory was a resident of New York.

In July of 1980, an attorney in New York contacted Robert D. Segall, the attorney of record for appellant in the instant case, and asked Segall to ascertain the liability limits of Willie Fitzpatrick’s automobile insurance policy. Segall contacted both the attorney representing the estate of Willie Fitzpatrick and the liability insurer and informed them that the New York attorney would be contacting them regarding the accident. On August 19, 1980, appellee Fannie Fitzpatrick petitioned the probate court for letters of administration for the estate of Willie Fitzpatrick. The last notice of appointment was published on September 18, 1980.

On December 23, 1981, the New York attorney contacted Segall and asked him to represent the appellant, Patricia Ivory. A wrongful death action seeking a total of $75,000 in damages was subsequently filed on June 9, 1982, in Macon County.

In the action below, the appellee filed what was styled as a “motion to dismiss or in the alternative for summary judgment” stating as grounds that the appellant had failed to comply with the nonclaim statute. The trial court granted summary judgment on the ground that the wrongful death action was barred because appellant had failed to comply with the nonclaim statute. This appeal followed.

I

Appellant asserts that no Alabama case has directly held that the nonclaim statute applies to wrongful death actions. Appellant further contends that under the circumstances of this case, the nonclaim statute does not bar the claim, because no claim is being made against estate funds but against proceeds from the deceased’s automobile liability insurance; therefore, appellant contends, the appropriate time period within which to bring an action is the two-year period contained in the wrongful death statute. Finally, appellant argues that the underlying policy of allowing an action for wrongful death is to punish the wrongdoer and to deter others and that this policy should override the policy behind the nonclaim statute, which is “to promote a speedy, safe and definitive settlement of estates by giving the personal representative notice of all claims against the estate in his hands.” Smith v. Fellows, 58 Ala. 467, 471 (1877).

Even though appellant advances a novel theory, we hold that the case of Moore v. Stephens, 264 Ala. 86, 84 So.2d 752 (1956), is controlling under the facts of the case. In Moore, a wrongful death action was filed by the estate of Moore against the estate of Stephens some nine months after the probate court had granted the letters of administration to the administratrix of the Stephens estate. The Court stated that the “decided weight of authority [from other jurisdictions] requires the filing of notice of a tort claim within the time provided in the statute of nonclaim” and concluded:

“[T]he statute of nonclaim is clear and unambiguous and must be construed to mean just what the words import, and the words ‘all claims against the estate of the decedent’ should be construed to include all claims not specifically excepted, and thus to include tort claims.”

264 Ala. at 86, 84 So.2d at 760.

Indeed, the six-month nonclaim period and the two-year limitation period of the wrongful death statute are conditions precedent to the maintenance of a suit against an estate of an alleged wrongdoer based upon a wrongful death cause of action. See Jones v. Drewry, 72 Ala. 311, 317 (1882). See also Woodward Iron Co. v. Craig, 256 Ala. 37, 40, 53 So.2d 586, 588 (1951). While the filing of a suit in circuit court within the six-month limitation period obviates the need of filing a claim in the probate court as required by the nonclaim statute, Barrett v. Fondren, 262 Ala. 537, 80 So.2d 243 (1955), appellant neither filed a claim nor a suit within the six-month period.

The Court recognizes that statutes of limitation are not applicable to wrongful death actions, Woodward Iron Co. v. Craig, supra, 256 Ala. at 40, 53 So.2d at 588; however, the nonclaim statute is not simply a statute of limitations: “The whole theory of the statute is to create a defense broader in its operation than the statute of limitations, not only barring remedies, but extinguishing debts and liabilities.” Fretwell v. McLemore, 52 Ala. 124, 144 (1875). (Emphasis added.) As the Court elaborated in Yniestra v. Tarleton, 67 Ala. 126 (1880):

“The following authorities show that, under our decisions and legislation, the statute of non-claim has never been regarded merely as a statute of limitations, but that the two systems have been recognized as separate and distinct, and embrace scopes of policy not commensurate, but, in many particulars, essentially diverse. — Fretwell v. McLemore, 52 Ala. [124], 140; McDowell’s Adm’r v. Jones’ Adm’r, 58 Ala. 25; Halfman’s Ex’rs v. Ellison, 51 Ala. [543], 545; Branch Bank v. Donelson, 12 Ala. [741], 742.”

67 Ala. at 129.

This reasoning has also been recognized as it relates to “claims for damages growing out of torts against [a] municipality” which must be presented to the city clerk within six months or be barred, Code 1975, § 11-47-23. The six-month limitation period relating to claims against a municipality has been construed to be not merely a statute of limitation but a statute of non-claim similar to the probate nonclaim statute. See Taylor v. City of Clanton, 245 Ala. 671, 18 So.2d 369 (1944); City of Huntsville v. Goodenrath, 13 Ala.App. 579, 68 So. 676 (1915).

The appellant urges this Court to “carve out an exception to the nonclaim statute to the extent that a third party [(e.g.), insurance liability carrier] is fully liable for the damages claimed” and “the estate is not jeopardized in any way.” In the case of Clarke v. Organ, 329 S.W.2d 670 (Mo.1959), a similar argument was articulated by the plaintiff. Rejecting the suggestion that there was no charge being made against the estate because of the existence of liability insurance, the Missouri Supreme Court observed:

“We note also that although there may be liability insurance, an estate would always be subject to a contingent liability upon a tort judgment, which liability might arise upon the insolvency of the insurer or because of the unenforcibility of the policy for violation of its provisions, or otherwise. The mere existence of insurance is not always a complete exoneration of the estate and its assets and heirs. If the courts should presume to say as we are asked to do here, that the assets of an estate valued at $125.00 should be disregarded and a recovery permitted directly against the insurance, —then what, — may we ask — should we rule on an estate valued at $500.00, $1,000, $2,500.00 or $5,000.00, under otherwise similar circumstances? Where could one possibly draw the line, looking merely at the practical side of the question? The rulings sought here might well introduce a measure of chaos into the administration of estates (and the decisions of the courts) dependent to an extent upon the existence of liability insurance and the running of the five-year tort statute of limitations or the one-year death limitation, with all the contingencies engendered by these factors. We cannot rewrite the law for one particular set of facts and circumstances, though the result may be harsh. [Cite omitted.] There is an ever present temptation to let bad cases make bad law, which must sometimes be resisted.”

329 S.W.2d at 675, 676. The Court finds the reasoning of the Missouri Supreme Court to be persuasive, and under the circumstances of this case we refuse to create a special exception where liability insurance is, or could be, involved. This reasoning also conforms with, and is supported by, our rule that an injured party cannot bring a direct action against the insurance carrier, absent a final judgment against its insured. Maness v. Alabama Farm Bureau Mut. Casualty Ins. Co., 416 So.2d 979, 981-982 (Ala.1982).

Consequently, the Court finds the rationale of Moore v. Stephens, supra, applicable to the instant case and holds that a wrongful death claim against an estate, irrespective of the existence of insurance proceeds, is barred by the statute of non-claim unless the claim is presented within six months after the probate court grants letters testamentary. Accord Swann v. Estate of Monette, 265 F.Supp. 362 (W.D. Ark.1967), aff'd, 400 F.2d 274 (8th Cir.1968); Hayles v. Thomas, 161 So.2d 545 (Fla.App.1964); Toney v. Adair, 120 So.2d 622 (Fla.App.1960); Jackson v. Arooth, 359 Mass. 721, 271 N.E.2d 586 (1971); Clarke v. Organ, 329 S.W.2d 670 (Mo.1959); King v. Hargis, 37 Ohio App.2d 92, 307 N.E.2d 40 (1973); Moultis v. Degen, 279 S.C. 1, 301 S.E.2d 554 (1983). Cf. Pitzer v. Smith, 123 Cal.App.3d 73, 176 Cal.Rptr. 407 (Ct.App. 1981); Jackson v. Bates, 133 Colo. 248, 293 P.2d 962 (1956). But see Bodine v. Stinson, 85 Nev. 657, 461 P.2d 868 (1969); Force v. Sanderson, 56 N.C.App. 423, 289 S.E.2d 56 (1982).

II

The appellant insists the undisputed evidence is that both the attorney for the estate of Willie Fitzpatrick and a representative of the insurance liability company were notified of the appellant’s claim very shortly after the claim arose and consequently “[tjhere is no rational difference which should cause the present case to be treated any different than a case already pending against Willie Fitzpatrick at the time of his death.” Rule 25(a), Ala.R. Civ.P., which relates to the substitution of parties when the defendant in the case dies, is cited by appellant in support of this contention. Rule 25(a)(3) provides:

“In any such pending action the failure of any party to comply with [§ 43-2-350] (Statute of non-claims) shall not be a bar to a claim against the estate to the extent that the estate is entitled to assert any right under any contract providing for the payment of the judgment in said action.”

Hence, appellant’s argument is that if a deceased is insured, the failure to file a claim against the estate of the deceased does not bar the pending claim.

The Court, however, is unpersuaded by appellant’s argument in this respect. Knowledge by the personal representative of a claim against an estate does not suffice to conform with the nonelaim state; there must be some formality of presentation. Roberts v. Grayson, 233 Ala. 658, 661, 173 So. 38, 40 (1937). As stated in Fretwell v. McLemore, supra:

“Knowledge of the existence of a claim, on the part of the personal representative, no matter how full and complete, will not dispense with an actual presentment, or something equivalent thereto.”

52 Ala. at 140.

The Court finds that the wrongful death claim filed by the appellant, despite any notice appellant may have given to the attorney for the estate of Willie Fitzpatrick or to the representative of the insurance carrier, was filed more than six months after appellee was granted the letters of administration as administratrix of the estate of Willie Fitzpatrick, and the Court concludes that the claim was barred by the nonclaim statute; therefore, the trial court acted properly in granting summary judgment.

AFFIRMED.

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

      . Section 43-2-350(b) provides:
      "All claims against the estate of a decedent, other than the claims referred to in subsection (a) of this section, whether due or to become due, must be presented within six months after the grant of letters testamentary or of administration; and if not presented within that time, they are forever barred and the payment or allowance thereof is prohibited. Such presentation must be made by filing a verified claim or verified statement thereof in the office of the judge of probate of the county in which the letters are granted. Claims which have not been filed and which are liens against the real or personal property of the decedent may be paid by the personal representative to protect the assets of the estate. The provisions of this subsection do not apply to heirs or legatees claiming as such.”

      . Section 6-5-410(d) provides: "Such action[s] must be commenced within two years from and after the death of the testator or intestate.”


text:
    NOLAND COMPANY v. SOUTHERN DEVELOPMENT CO., INC., et al.
    82-491.
    Supreme Court of Alabama.
    Jan. 20, 1984.

      Harry Asman, Birmingham, for appellant.
    Fred Ray Lybrand, Anniston, for appel-lees.
   EMBRY, Justice.

This is an action to establish a material-man’s lien on real property in Piedmont, Alabama. Appellant, Noland Company, commenced the action by filing a complaint against Southern Development Co., Inc., Southern Development Company of Piedmont, Ltd., Management Builders, Inc., Lovelace Plumbing Contractors, Inc., and First National Bank of Montgomery, Alabama.

In the process of pretrial pleading and during the oral hearing no issue was taken nor testimony introduced against the interests of Southern Development Co., Inc., and First National Bank of Montgomery. The trial court entered a judgment in favor of Noland Company, but only against Lovelace Plumbing Contractors, Inc., which had, meanwhile, changed its corporate name to Lovelace Brothers, Inc. Therefore, the ap-pellees are Southern Development Company of Piedmont, Ltd. (Southern Development), Management Builders, Inc., and Lovelace Brothers, Inc.

The trial court’s findings were as follows:

“Southern Development Co. [Ltd.] contracted with G.B. Construction Co. for it to build a project known as Piedmont Manor in Piedmont, Alabama; that G.B. Construction Co. as general contractor retained Management Builders, Inc. to supervise the construction project; that the subcontract for plumbing was let to Lovelace Plumbing Contractors, Inc. on May 8, 1978; that on May 26, 1978, No-land Company and Management Builders entered into an agreement wherein Management Builders would guarantee payment of purchases by Lovelace Plumbing Contractors for the Piedmont Manor project. On June 26, 1978, Noland Company subordinated this agreement to allow payments to be made to Lovelace’s bank with reservations to rescind the subordination agreement of June 16, 1978. That on August 10, 1978, Management Builders sent a check to Lovelace and Noland in the sum of $7,689.96, and that this was the last payment made to Lovelace Plumbing Contractors; that there is no evidence that Management Builders or Southern Development Co. [Ltd.] owed Lovelace Plumbing Contractors any sum of money after the payment on August 10, 1978; that the sum of $21,384.00 is owed by Lovelace Plumbing Contractors to Noland Company as of this date.
“The Court is of the opinion that the plaintiff is entitled to a judgment against Lovelace Plumbing Contractors, Inc. [Lovelace Brothers, Inc.] in the sum of $21,384.00, plus costs. The Court is further of the opinion that plaintiff did not give notice to owner of furnishing material to subcontractor as required by law. The plaintiff made a contract with Management Builders to protect their interest, but voluntarily subordinated their contract and later reinvoked their contract, which was honored by Management Builders as long as Lovelace Plumbing Contractors were the subcontractors. The Court is further of the opinion that the plaintiff is not entitled to a judgment or lien against any of the other defendants.”

The trial court's factual findings have the effect of a jury's verdict. A judgment, grounded on such findings, is accorded, on appeal, a presumption of correctness which will not be disturbed unless plainly erroneous or manifestly unjust. Mayo v. Andress, 373 So.2d 620 (Ala.1979); Cauley v. Sanders, 388 So.2d 891 (Ala.1980); Elmer Tallant Agency, Inc. v. Bailey Wood Products, Inc., 374 So.2d 1312 (Ala.1979).

Noland Company presents two issues for this court’s review. The first is whether the trial court erred by refusing to impose a lien in its favor against the Piedmont Manor property, owned by Southern Development Company, Ltd., because of No-land’s alleged failure to meet statutory notice requirements prerequisite to the establishment of a lien. Second, Noland Company contends the trial court erred in determining that Noland’s contract of guarantee with Management Builders estopped No-land from asserting a statutory lien against Piedmont Manor.

Because the evidence is basically uncon-troverted, we will make no further statement of the facts except as relevant to the issues here presented.

I

Section 35-11-210, Code 1975, essentially provides that when a materialman furnishes materials to a subcontractor, and complies with the provisions of that section, he can take a lien on property involved. Two types of liens are provided for therein. First, the statute provides:

“Every mechanic, person, firm or corporation who shall do or perform any work, or labor upon, or furnish any material, fixture, engine; boiler or machinery for any building or improvement on land, or for repairing, altering or beautifying the same, under or by virtue of any contract with the owner or proprietor thereof, or his agent, architect, trustee, contractor or subcontractor, upon complying with the provisions of this division, shall have a lien therefor on such building or improvements and on the land on which the same is situated, to the extent in ownership of all the right, title and interest therein of the owner or proprietor, and to the extent in area of the entire lot or parcel of land in a city or town; or, if not in a city or town, of one acre in addition to the land upon which the building or improvement is situated; or, if employees of the contractor or persons furnishing material to him, the lien shall extend only to the amount of any unpaid balance due the contractor by the owner or proprietor, and such employees and materialman shall also have a lien on such unpaid balance.... ”

Noland Company claims under the above section.

The second portion provides a more inclusive lien in the event the materialman notifies the owner of the property of its plan to supply materials prior to furnishing them:

“But if the person, firm or corporation, before furnishing any material, shall notify the owner or his agent in writing that such certain specified material will be furnished by him to the contractor or subcontractor for use in the building or improvements on the land of the owner or proprietor at certain specified prices, unless the owner or proprietor or his agent objects thereto, the furnisher of such material shall have a lien for the full price thereof as specified in the notice to the owner or proprietor without regard to whether or not the amount of the claim for such material so furnished exceeds the unpaid balance due the contractor, unless on the notice herein provided for being given, the owner or proprietor or his agent shall notify such furnisher in writing before the material is used, that he will not be responsible for the price thereof. Such notice may be given in the following form, which shall be sufficient:
“ ‘To_, owner or proprietor:
“ ‘Take notice, that the undersigned is about to furnish_, your contractor or subcontractor, certain material for the construction, or for the repairing, altering or beautifying of a building or buildings, or improvement or improvements, on the following described property:
and there will become due to the undersigned on account thereof the price of said material, for the payment of which the undersigned will claim a lien.’ ”

Noland contends, and we agree, that the trial court erred in its judgment by imposing on Noland Company the prior notice requirement of the second portion of § 35-11-210 rather than the subsequent notice provision for declaring a more limited form of lien under the first portion.

Noland Company calls our attention to § 35-11-218, Code 1975, which provides as follows:

“Every person, except the original contractor, who may wish to avail himself of the provisions of this division, shall before filing his statement in the office of the judge of probate, give notice in writing to the owner or proprietor, or his agent, that he claims a lien on such building or improvement, setting forth the amount thereof, for what, and from whom it is owing; and after such notice, any unpaid balance in the hands of the owner or proprietor shall be held subject to such lien. But the provisions of this section shall not apply to the case of any material furnished for such building or improvement, of which the owner was notified in advance as provided in section 35-11-210.”

In Crane Co. v. Sheraton Apartments, Inc., 257 Ala. 332, 58 So.2d 614 (1952), this court was confronted by the very issue presented by the instant case. There, notice to the owner was not given prior to the materialman’s furnishing of goods to a subcontractor. This court held the material-man could, under the statute, fix a lien, on the building and land to the extent of any unpaid balance due the original contractor by the owner at the time the lien was claimed and notice was given as required by Tit. 33, § 46, Code 1940. That section is identical to the statute above quoted, and now applicable, § 35-11-218, Code 1975.

It is undisputed that Noland Company gave notice in writing to Southern Development Company of Piedmont, Ltd., the owner of the subject real property, that it was claiming a lien on Piedmont Manor. That notice stated, as per the statute, the amount claimed, for what, and from whom it was owing. It is undisputed' that when that notice was given, there were monies due the original contractor from Southern Development.

Under the Crane interpretation of the above quoted series of statutes, the conclusion is inescapable that Noland complied with the statutory notice requirements.

II

The second basis for the trial court’s decision that Noland Company would not prevail except against Lovelace Brothers, Inc., is stated by that court as follows:

“The plaintiff made a contract with Management Builders to protect their interest, but voluntarily subordinated their contract and later reinvoked their contract, which was honored by Management Builders as long as Lovelace Plumbing Contractors were, the subcontractors _”

Noland Company argues that because it does not wish to pursue its claim against Management Builders, Inc., on its agreement of guarantee, the agreement is not material to the issues in this case. We deem it significant in discussing this issue. An agreement by a person entitled to a lien that he will look exclusively to the contractor or some person other than the owner for the payment of his claim may be a waiver of his right to a lien. See United States v. Village of Alsip, 345 F.2d 365 (7th 1965), cert. den., 383 U.S. 906, 86 S.Ct. 242, 15 L.Ed.2d 158 (1965). Floyd v. Rambo, 250 Ala. 101, 33 So.2d 360 (1948). In Floyd v. Rambo, this court outlined the application of the doctrine, in Alabama, of waiver as applicable to mechanic’s liens:

“While the lien created by the statute may be waived or released just as any other lien may be waived or released, the presumption is that the right to the lien exists if the claimant has brought himself within the protection of the statute by complying with all the formalities prescribed. This appearing, it rests upon the defendant to show that the claimant has knowingly surrendered or waived his lien.
“ ‘Whether or not the taking of collateral security by the contractor will amount to a waiver of his lien is a question upon which the courts are not in accord. Quite a number hold that it will, but it is believed that the weight of opinion is that unless there is manifest intention between the parties that it shall so operate, this will not be equivalent to a waiver. And especially is this true where the enforcement of the lien will not affect the vested rights of anyone. * * *.’ ” (Citations omitted.)

33 So.2d at 363.

Under Floyd, it is clear there was no express or implied waiver of its right to a statutory lien upon the part of Noland Company because of the guarantee agreement.

The agreement of guarantee entered into between Noland Company and Management Builders, Inc., provides in pertinent part:

“It is expressly understood and agreed that notice of and requirement of legal proceedings against the original debtor named herein is hereby waived and that Noland Company may, at its discretion, grant an extension of the indebtedness or otherwise modify the terms of the debt, without impairing the obligation of the undersigned guarantor [Lovelace Brothers, Inc.]. The guarantor shall be liable to Noland Company for the debt according to the same terms of payment as that established by Noland Company for the original debtor as described herein.”

We find no evidence of an express nor an implied intention in the aboye instrument by Noland Company to waive its statutory right to claim a lien against Piedmont Man- or. Neither do we find the contract of guarantee to be inconsistent with the enforcement of a lien by Noland against Southern Development Company, Ltd. Furthermore, there was no evidence presented by defendants of a knowing waiver by Noland Company in any other instrument or by other actions upon its part.

Under Crane, it is clearly the defendants’ burden to show that Noland Company knowingly surrendered or waived its right to a statutory materialman’s lien fixed or imposed. Our careful review of the record has revealed the only evidence presented as to waiver was the guarantee agreement above quoted. We find, therefore, that defendants failed to meet their burden of proof as to this issue.

Because the trial court misapplied the law set out in § 35-11-210, Code 1975, and further, because it failed to apply correct legal precedents regarding an express or implied waiver of a statutory material-man’s lien, we are compelled to reverse its decision and remand to that court with directions that it modify its judgment consistent with the views expressed herein.

REVERSED AND REMANDED WITH DIRECTIONS.

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