author: JONES, Justice.

text:
    LAPEYROUSE GRAIN CORPORATION and Montgomery Grain Corp. v. Eldon TALLANT, W.O. Evans, James O. Evans, Milton Holiday and James Robert Burks.
    82-12.
    Supreme Court of Alabama.
    Sept. 30, 1983.

      Dexter C. Hobbs of Copeland, Franco, Screws & Gill, Montgomery, for appellants.
    Robert A. Huffaker of Rushton, Stakely, Johnston & Garrett, Montgomery, for ap-pellees.
   JONES, Justice.

Plaintiffs/Appellees are wheat farmers. Defendants/Appellants are Lapeyrouse Grain Corporation and its subsidiary Montgomery Grain Corporation. The Corporations appeal from a $20,000 judgment (based on a general jury verdict) in favor of the farmers. The suit was upon a three-count complaint claiming compensatory damages for breach of contract, and compensatory and punitive damages for conversion and for fraud by misrepresentation of a material fact. The farmers alleged that the Corporations, on a date of their own choosing, bought for resale wheat delivered to them under an open price term agreement which provided that only the farmers could select the date of sale. We affirm.

The following question arises on appeal: Did the farmers present sufficient evidence of property rights to support standing (i.e., capacity) to sue for conversion of goods delivered under an open price term agreement, thereby making the trial court’s denial of defendant Corporations’ motion for a directed verdict as to the conversion claim proper? We address four parts of this issue: 1) What property rights are required? 2) Is the determination of such rights a question of law of or fact? 3) If a question of fact, did sufficient evidence exist upon which a jury could find the required rights? and 4) If so, should the court have charged the jury that it must not find conversion without first finding the plaintiffs possessed such property rights?

Additionally, the Corporations assert: 1) that the trial court erred in admitting into evidence irrelevant and highly speculative calculations of actual damages; 2) that the trial court erred in admitting evidence of inaccurate interest estimates; 3) that the issue of punitive damages was presented to the jury upon insufficient evidence; 4) that the Corporations’ requested jury charges were improperly denied; and 5) that the trial court improperly admitted evidence of the Corporations’ subsequent remedial measures.

FACTS

In the summer of 1981, the farmers delivered more than 11,000 bushels of wheat to Montgomery Grain under an agreement designating the wheat as “unpriced.” The farmers contend that an oral agreement and a course of dealing established that the term “unpriced” meant the farmers had the exclusive right to select the date of the wheat’s sale. They further assert that they would not have delivered their wheat to the defendant Corporations without this provision, by which they hoped to profit from a rise in the fluctuating commodities market.

At the end of a business week in late August of the same summer, an officer of the parent corporation in Mobile called its Montgomery subsidiary to say that the following Monday was “the cut-off date” for wheat and that all unpriced wheat was to be sold at that day’s price, which proved to be two cents per bushel lower than on the preceding day and eight cents lower than on the following day. Although the Corporations maintain that the cut-off date was established prior to the wheat deliveries, they concede that no actions were taken to inform the farmers of such a date and that no employee who dealt directly with the farmers knew of the existence of such a date before the telephone order from Mobile.

When the farmers unexpectedly received checks, they called the Montgomery office to protest. Although the cut-off order was revoked as to one displeased nonplaintiff farmer, and although the Corporations were aware that the plaintiff farmers had not been notified of the cut-off order prior to its execution, the Corporations nevertheless did not restore the “unpriced” status to the wheat delivered by the farmers.

STANDING TO SUE FOR CONVERSION

The Corporations contend that the farmers failed to produce evidence that, on the date of the alleged conversion, they had property rights sufficient to support standing to sue; and, indeed, that they had no such rights because a writing on the back of a ticket, routinely handed to the farmer or his driver upon delivery to Montgomery Grain, stated that, upon delivery and acceptance, title passed to Lapeyrouse Grain Corporation.

The farmers contend that the writing was not an accurate reflection of the agreement between the parties; and that, to the contrary, in all former dealings between the farmers and the Corporations, the farmers had said they wanted to “store” their wheat until pricing and the Corporations consistently responded “fine” or “okay.” The farmers also contend that the Corporations’ action in assessing a storage or handling fee between the date of delivery and the date of pricing is inconsistent with the Corporations’ assertion that the farmers had no title to the wheat on the cut-off date.

The farmers cite Ott v. Fox, 362 So.2d 836 (Ala.1978), which summarizes Alabama law on standing to sue for conversion, and holds that “general or special title to the property or the immediate right to possession” is required for standing. Id., p. 839. The farmers argue that they had “at least a special title” to the wheat because of the storage arrangements evidenced by the fee.

In NYTCO Services, Inc. v. Wilson, 351 So.2d 875 (Ala.1977), this Court found that standing to sue for conversion of commodities delivered under an open price term agreement may be based upon the determination that the parties intended delivery to effect a bailment rather than a sale. NYTCO at 879 approvingly quotes a Georgia Supreme Court decision as follows:

“ ‘If the owner of goods deliver them to another with the understanding that there is to be no sale until the happening of a certain condition, this is a bailment, and the title does not pass until and unless the condition happens.’ Furst v. Commercial Bank, 117 Ga. 472, 475, 43 S.E. 728.”

Although the writing in NYTCO suggests a bailment and the writing in the case before us suggests a sale, NYTCO nevertheless found the writing to be only one factor in determining the intent of the parties. In neither NYTCO nor the instant case is the writing represented to be the final written expression of an agreement. The Alabama statute regarding open price term contracts for sale also makes it clear that the intent of the parties is paramount in determining whether a contract for sale has been concluded prior to the fixing of a price:

“Where, however, the parties intend not to be bound unless the price be fixed or agreed and it is not fixed or agreed there is no contract.” Code 1975, § 7-2— 305(4).

Thus, if the parties in this case intended not to be bound unless the farmers were allowed to choose the date of sale, then the delivery was a bailment rather than a sale; thus, the farmers had standing to sue for conversion. The same authorities also indicate that the determination is properly for the jury. An Official Comment to the Uniform Commercial Code notes that whether the parties have intended a sale is “in most cases a question to be determined by the trier of fact.” § 7-2-305, Official Comment 2.

The NYTCO Court said:

“Therefore the court was not in error in denying defendants’ motion for directed verdict since there was at least a scintilla of evidence that there was a bailment as to Covington Grain.” NYTCO, at 879.

We find that the evidence of record concerning the storage agreement is sufficient to present a jury question as to whether the delivery was a bailment or a sale.

We now consider the question whether it was necessary for the court to instruct the jury that it must find the farmers had title to the grain before it could find conversion of that grain. The Corporations requested jury instructions (denied as untimely) to the effect that conversion might lie where “plaintiffs had general title to the property or immediate right to possession of said property.” The court, however, did not expressly charge the jury “on standing,” but simply defined conversion as “the appropriation of the personal property of one person by another for its own use or benefit [or the] exercise of dominion by another over the personal property of a person to the exclusion or in defiance of the owner’s right.”

Although the requested charge states a correct proposition of law, we find the trial court did not err in its refusal, in light of the court’s oral instructions on the issue of ownership. If the jury decided that the “owners’ rights” were denied, then it must have determined that the farmers were the owners; and that they had not intended to sell their wheat upon delivery, but rather to store it (bail it) until they decided to order its sale. If the agreement was to store, or if there was no agreement to the contrary, then there was no sale; and the farmers owned the wheat on the “cut-off” date.

We conclude that the court did not err in denying the defendant Corporations a directed verdict as to the conversion count. We need not, and do not, reach the issue whether standing would have resulted from a determination that Defendants’ title was fraudulently obtained.

EVIDENCE OF COMPENSATORY DAMAGES

The Corporations argue that the trial court should have excluded calculations based on various wheat prices because they represent “lost profits” that, under Paris v. Buckner Feed Mill, Inc., 279 Ala. 148, 182 So.2d 880 (1966), are too speculative to be admissible. The evidence included the following wheat prices per bushel between the date of the cause of action and the trial date: 1) $3.32 — the highest price paid by Montgomery Grain; 2) $4.00 — the price paid by a Montgomery competitor; 3) $4.64 —the government “trigger price”; and 4) $4.94 — the highest price paid to the Corporations upon resale in Mobile.

We agree with the farmers’ response that the term “lost profits,” as used in Paris, is a mischaracterization of the evidence here. In Paris, the damages disallowed as “lost profits” were those based on the plaintiff’s prospects for profits from subsequent transactions, not encompassed by the contract. In the case before us, however, the farmers seek compensation for the unauthorized sale of their wheat, which directly relates to the agreement between the farmers and the Corporations.

Although the standards for damages may vary among the different claims alleged in this case, and the jury must be properly instructed as to those standards, we hold the price evidence admitted was relevant in determining damages sustained under all of the Plaintiffs’ theories of recovery. The trial court charged:

“Your verdict must not be based on mere speculation or conjecture but must be based upon the evidence and just and reasonable inferences which you may draw from the evidence.”

The Corporations do not contend that the price evidence was irrelevant to the conversion claim. Ott v. Fox, supra. Rather, they contend the price evidence is inadmissible on the fraud and breach of contract claims because it does not relate to prices the farmers could reasonably have expected to receive upon sale.

We reject this contention. Once the farmers had been precluded from selling their wheat on a date of their choosing, any evidence of price obtained for that wheat, regardless of the stage in the marketing process at which that price was obtained, is a factor the jury could use in determining the true damage accruing from the fraud or from breach of contract. Stated differently, each price furnished evidence from which the jury could draw reasonable inferences as to the actual amount of damages sustained. A careful examination of the record reveals no error either in the evidence admitted or in the jury instructions as to the damages issues.

PUNITIVE DAMAGES

The Corporations assert that punitive damages should not have been considered by the jury because there was no evidence of the requisite intent. Punitive damages were requested as to fraud by misrepresentation of a material fact and as to conversion.

A proper jury issue on punitive damages was made if the farmers presented evidence of misrepresentation of a material fact made with the knowledge that it was false or made with reckless disregard as to its truth. Burroughs Corporation v. Hall Affiliates, Inc., 423 So.2d 1348 (Ala.1982). We agree the trial judge properly found that a jury question existed as to such reckless disregard, because the evidence showed that the Corporations agreed to let the farmers select the date of pricing and, simultaneously, failed to mention the cutoff date to the farmers — or even to its own employees who dealt directly with the farmers.

To justify punitive damages for conversion, it was necessary for the farmers to produce evidence from which the jury could find that the Corporations converted the wheat in known violation of the farmers’ rights and of the law. Ott v. Fox, supra; Ray Hughes Chevrolet, Inc. v. Gordon, 294 Ala. 638, 320 So.2d 652 (1975). The farmers do not contend that the Corporations’ behavior was otherwise insulting or malicious. A jury could reasonably conclude that the Corporation official in Mobile who ordered the wheat believed that title to the wheat had passed to the Corporation; however, there was also evidence from which a jury could conclude that the statements of the Corporation employees in Montgomery indicated the Corporations knew that the farmers owned the wheat, or may have owned it, on the cut-off date. We find sufficient evidence from which the jury could award punitive damages as to both fraud and conversion.

DENIAL OF DEFENDANTS’ REQUESTED JURY CHARGES

In the absence of a claim that Defendants had inadequate notice of the court’s reasonable direction that requested jury charges be submitted prior to the close of the evidence, a direction authorized by Alabama Rules of Civil Procedure, Rule 51, we find no merit in the Corporations’ assertion of error in the court’s denial of the charges on the grounds they were untimely filed.

EVIDENCE OF SUBSEQUENT REMEDIAL MEASURES

Next, we consider the Corporations’ assertion that the court improperly admitted evidence of the Corporations’ subsequent remedial measures taken to insure that farmers thereafter would know of any cutoff date. The defendant Corporations tried repeatedly to exclude the evidence by pretrial motion and by objections at trial; however, the trial court admitted the evidence even though it was not used under the usual exceptions for impeachment or for proving agency or control.

Alabama law clearly classifies as inadmissible, for the purpose of proving negligence, any evidence of remedial measures taken to prevent future physical injury — the elimination of safety hazards. City of Montgomery v. Quinn, 246 Ala. 154, 19 So.2d 529 (1944). For an exception to this general rule, see, e.g., Norwood Clinic v. Spann, 240 Ala. 427, 199 So. 840 (1941). It is less clear whether subsequent remedial measures to prevent injury resulting from future intentional acts, as here, are similarly protected.

Stated otherwise, the issue is whether the general rule applicable to negligence cases is equally applicable so as to disallow evidence of subsequent conduct as proof of the defendants’ intentional misrepresentation or reckless disregard for the truth. We think the policy considerations are significantly different in the two situations. The due care standard for negligence, embracing notions of cause and effect, requires that the test be applied at the time and place of the wrongful conduct complained about. Norwood Clinic, supra. Additionally, the rule disallowing evidence of subsequent corrective measures as proof of defendants’ prior negligence is based, at least in part, on the policy consideration “that admission of such evidence would discourage persons from improving the condition which caused the injury.” Burbic Contracting Co. v. Cement Asbestos Products Co., 409 So.2d 1 (Ala.1982).

In the case of a claim for legal fraud, however, the policy considerations are materially different. The basis for the exclusion which obtains in the context of a negligence claim does not exist where, as here, the evidence of subsequent conduct is offered to prove the Corporations’ knowledge of material facts allegedly misrepresented. While evidence of subsequent repairs is lacking in probative value to prove the requisite element of negligence, evidence in the instant case that the Corporations took precaution to inform subsequent customers of the sales cut-off dates is relevant to the Corporations’ knowledge of that material fact at the time of their alleged misrepresentations to the plaintiff farmers. Moreover, as we have already observed, the evidence is without dispute that the Corporations did not mention the cut-off date even to their own employees who dealt exclusively with the farmers.

PREJUDGMENT INTEREST

The Corporations’ allegations of error with respect to certain rulings and jury instructions on prejudgment interest fall into two categories: 1) that the damages claimed and proved are not of the sort that permit prejudgment interest; and 2) even if prejudgment interest is allowable, the trial judge erred in instructing the jury that the legal rate of prejudgment interest was 12%, rather than 6% per annum. We disagree with the Corporations’ first assertion, but agree that the legal rate of prejudgment interest is 6% per annum; and our order of affirmance is conditioned on an appropriate remittitur upon remand of this cause to the circuit court.

The statute, § 8-8-8, allowing prejudgment interest on damages for breach of contract, has been part of Alabama law since 1852. In clear and unmistakable language, that statute provides:

“All contracts, express or implied, for the payment of money, or other thing, or for the performance of any act or duty bear interest from the day such money, or thing, estimating it at its money value, should have been paid, or such act, estimating the compensation therefor in money, performed.”

At common law, certain damages were allowable for the detention of a debt, Vincent v. Gilmer, 51 Ala. 387 (1874); and prejudgment interest was allowable at the legal rate in claims other than those contractual in nature where the unliquidated damages could be ascertained by mere computation, or where the damages are complete at a given time so as to be capable of determination at such time in accordance with known standards of value. For two cases applying the common law rule, see Glidden v. Street, 68 Ala. 600 (1881) (disallowing prejudgment interest for nonspecific damages for trespass to land); and Atlanta & Birmingham A.L. Ry. Co. v. Brown, 158 Ala. 607, 48 So. 73 (1908) (allowing prejudgment interest for negligent damage to crops).

The Corporations cite recent federal cases which analyze and summarize Alabama law respecting prejudgment interest. (See C.E. Sawyer’s Industrial Sheet Metal Fabricators, Inc. v. Central Rigging and Contracting Corporation, 653 F.2d 956 (5th Cir.1981), and cases cited therein.) It is apparent from the Sawyer’s summary of the Alabama rule that the cases relied upon by Sawyer’s have attempted, in a somewhat awkward manner, to1 merge the statutory contract rule (§ 8-8-8) with the prejudgment interest rule applicable to noncontract claims as set out in Atlanta & Birmingham A.L. Ry. Co., supra.

Whether we view the prejudgment interest issue as being controlled by two separate rules, or whether it is controlled by a single rule, for purposes of the instant case, we need not decide. If viewed under the contract rule, taking this statute at face value, then certainly prejudgment interest is allowable. Likewise, the unliquidated damages aspect of the tort rule does not prevent prejudgment interest here, because of the ease and certainty with which those damages can be ascertained. Once the jury reached a factual conclusion from the evidence as to the price differential, the compensatory loss could be fixed by a simple mathematical computation, as was the ease in Atlanta & Birmingham A.L. Ry. Co., supra.

We now turn to the Corporations’ second assertion of error, regarding the appropriate legal rate of prejudgment interest. The Corporations assert that § 8-8-10, which now provides that all judgments, where no other rate is established by contract, “shall bear interest at 12% per an-num,” does not also set the prejudgment interest rate at 12% per annum. The Corporations contend that the legal rate of interest, set out in § 8-8-1, is 6%; and therefore, because no rate is specified in § 8-8-8, which provides for prejudgment interest for breach of contract, that the proper applicable interest rate is the legal rate — 6%. We agree with the Corporations’ contention. See our discussion of this issue in Burgess Mining & Construction Corporation v. Lees [Ms. 82-31, Sept. 23, 1983]-So.2d - (Ala.1983).

Having found error in the trial court’s allowance of 12% interest as opposed to the legal rate of 6%, we have no choice but to affirm conditionally — that is, to require the Plaintiffs/Appellees to file respective re-mittiturs commensurate with the difference between the amounts of the judgments as corrected to reflect interest at the rate of 6% per annum; or failing to meet this condition, the Appellees will suffer a reversal of the judgments and the cause will be remanded for a new trial.

Because the exact amount of compensatory damages is left uncertain in the jury’s general verdict, in fairness to the Appellants, Appellees will be required to use $.36 per bushel — the highest difference in the value between the Defendants’ purchase price and the market value — in the computation of the remittiturs. If the Appellees elect to file remittiturs in accordance with this Court’s order of conditional affirmance, such filings shall be made within 28 days in circuit court, accompanied with appropriate explanations of the computations used in calculating the amounts shown therein, with copies to the clerk of this Court.

Upon examination and consideration (including a hearing if deemed appropriate) of any remittiturs and any replies (to be filed within 14 days thereafter) filed pursuant to this Court’s order, the trial court shall enter an order of approval or disapproval as it deems appropriate, giving to the Defendants the benefit of all doubts with respect to the court’s instruction to the jury on the issue of legal interest. The order of the trial court shall be forwarded forthwith to the clerk of this Court.

AFFIRMED CONDITIONALLY.

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

      . Consistent with the vernacular of the parties, we have used the term “standing to sue,” not in its traditional sense, but in the sense of testing the sufficiency of Plaintiffs’ evidence as to the ownership or right of possession of the wheat — a requisite element of conversion.


source: Caselaw Access Project

author: ALMON, Justice.

license: Public Domain

text:
    Helen THOMPSON and Glen Thompson v. Harvey LEE, et al.
    82-21.
    Supreme Court of Alabama.
    Sept. 30, 1983.

      John A. Henig, Jr. and Albert W. Copeland of Copeland, Franco, Screws & Gill, Montgomery, for appellants.
    Randall C. Morgan of Hill, Hill, Carter, Franco, Cole & Black, Montgomery, for ap-pellee Harvey Lee.
    J. Anthony McLain of McLain & Hampton, Montgomery, for appellee Ragsdale Cabinet Shop.
   ALMON, Justice.

This is an appeal from a summary judgment granted in favor of a manufacturer and a painter in a negligence action.

On October 21, 1980, Helen Thompson, while accompanied by her husband, parents, and a realtor, toured a townhouse as a business invitee of David W. Thames, Inc. (Thames), the owner of this residential unit. During her inspection, Helen attempted to open a kitchen cabinet and the cabinet door fell and struck her on the head and arm. Immediately after the accident, Helen’s father and husband examined the cabinet door and discovered that no screws or other devices were affixed to the door to secure it to the cabinet.

Ragsdale Cabinet Shop (Ragsdale) contracted with Thames to manufacture and deliver the cabinet in question. The cabinet was constructed on an assembly line where a Ragsdale employee would affix screws and hinges to the cabinet door. The cabinet would then be placed upright and a wooden strip nailed across the door to prevent the cabinet from opening during transit. A Ragsdale employee inspected the cabinet before delivery to Thames and found no defects in its construction. Upon delivery of the cabinet to Thames, Ragsdale had no further contact with the cabinet.

After delivery, Gerald Dennis, a subcontractor of Thames, nailed the cabinet to the townhouse kitchen wall. Upon completion of this task, Dennis reported no defects in the cabinet door to Thames. Another Thames subcontractor, Harvey Lee, then applied a sealant to the inside and outside of the cabinet. Although Lee employed four other workers to aid in the three-step process, Lee himself applied the final coat of sealant to the cabinet, a process which he would not have performed if the cabinet door was not properly secured to the cabinet. After a final inspection which revealed no defects, Lee had no further contact with the cabinet.

Thames then employed another worker to affix pulls to the cabinet door. This worker reported no defects in the cabinet to Thames. Both Thames and a Veterans Administration official then inspected the townhouse before the Thompsons toured the facility, and neither person reported any defects in the cabinet.

On October 21, 1980, Helen and Glen Thompson filed suit in Montgomery county circuit court to recover damages for the personal injuries sustained by Helen while on the townhouse premises and for the loss of Helen’s services and companionship sustained by Glen as a result of Helen’s injury. Their complaint alleged that the concurring negligence of Thames, Ragsdale, Dennis, and Lee in negligently constructing, staining, or installing the cabinet in question, or negligently supervising that work on the cabinet, proximately caused the Thompsons’ injuries. Gerald Dennis was never personally served with process and was thus never a party to the action. The remaining defendants filed timely answers, and the court denied Thames and Ragsdale’s motion to dismiss. On April 7, 1982, the United States of America was added as a party plaintiff to recover the cost of medical and hospital services rendered by the United States to Helen as a result of her injuries.

Lee and Ragsdale both filed motions for summary judgment based on the pleadings, affidavits, and briefs submitted in support of their motions. On June 22, 1982, the trial court entered an order of dismissal pro tanto which dismissed Thames with prejudice and reserved the Thompsons’ right to proceed against Lee and Ragsdale. The trial court subsequently granted both Lee and Ragsdale’s motions for summary judgment. The Thompsons’ motion to alter, amend or vacate this judgment was denied, and they filed a notice of appeal to this Court.

The Thompsons contend that the juxtaposition of an unhinged cabinet door with the fact that Ragsdale manufactured, and Lee stained, the cabinet in question presented a scintilla of evidence in support of their position that negligence of either Ragsdale or Lee was the proximate cause of their injuries. We cannot agree with this misplaced reliance upon the doctrine of res ipsa loqui-tur.

It is axiomatic that proof of negligence requires the establishment of a breach of a duty flowing from the defendant to the plaintiff which proximately causes damage to the plaintiff. Sloss-Sheffield Steel & Iron Co. v. Allred, 247 Ala. 499, 25 So.2d 179 (1945); Williams v. Wicker, 235 Ala. 348, 179 So. 250 (1938). Proof of an accident and injury alone is therefore generally insufficient to establish negligence. Mobile Press Register, Inc. v. Padgett, 285 Ala. 463, 233 So.2d 472 (1970). One can infer negligence from the injury itself only in the rare circumstance where the instrumentality causing the injury is in the defendant’s exclusive possession and the injury would not have occurred absent negligence. Such is not the case here, where it is undisputed that the cabinet door was in the exclusive possession of Thames at the time of the accident. The Thompsons were perforce relegated to the traditional burden of proof, and we agree with the circuit court’s determination that as a matter of law neither Lee nor Ragsdale was shown to be negligent.

Because a motion for summary judgment tests the facts to determine if any real issue exists, the failure of the party opposing the motion to offer any affidavits or other testimony to contradict the evidence of the moving party leaves the Court no alternative but to consider that evidence uncontroverted. Donald v. City Nat’l Bank of Dothan, 295 Ala. 320, 329 So.2d 92 (1976). Where, therefore, the Thompsons’ affidavit not only failed to contradict the testimony of Ragsdale and Lee but also failed to indicate who may have caused their injuries, either directly or circumstantially, we must consider the evidence of Ragsdale and Lee uncontroverted.

The scintilla doctrine, moreover, does not vitiate the rule that a conclusion based on speculation or conjecture as to liability is not a proper basis for a jury verdict. Matthews v. Mountain Lodge Apartments, Inc., 388 So.2d 935 (Ala.1980). The Thompsons’ failure to produce even a scintilla of evidence other than speculative, conjectural inferences thus precluded a finding that they had overcome the summary judgment motion. “Evidence which affords nothing more than speculation, conjecture, or guess is wholly insufficient to warrant submission of a case to the jury ..." Williams v. Palmer, 277 Ala. 188, 193, 168 So.2d 220, 224 (1964) (citations omitted), and a summary judgment in favor of Rags-dale and Lee was therefore appropriate.

The trial court decision granting summary judgment on behalf of Harvey Lee and Ragsdale Cabinet Shop is affirmed.

AFFIRMED.

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

      . The Thompsons also included a products liability count in their memorandum in opposition to the motions for summary judgment. In this document, they erroneously stated that the doctrine of manufacturer’s liability in Alabama does not require proof of a specific defect in the cabinet door. In actuality, the substratum of the Alabama Extended Manufacturer’s Liability Doctrine is the proof of an instrumentality which is defective at the time the product leaves the manufacturer’s exclusive control and which is not substantially altered thereafter. Sears, Roebuck & Co. v. Haven Hills Farms, Inc., 395 So.2d 991 (Ala.1981). The Thomp-sons’ failure to shoulder this burden of proof likewise proved fatal to their case.


author: TORBERT, Chief Justice.

text:
    John W. BRANSON, d/b/a Branson Insurance Agency v. MOORE GROUP, INC., d/b/a Dudley L. Moore Insurance.
    82-89.
    Supreme Court of Alabama.
    Sept. 30, 1983.
    Donald H. Brockway, Jr. of Corretti & Newsom, Birmingham, for appellant.
    Joyce E. May of Winston, Winston & May, Birmingham, for appellee.
   TORBERT, Chief Justice.

This appeal is from a judgment entered by the Circuit Court of Jefferson County on May 26, 1982, in favor of plaintiff Moore Group, Inc. (Moore) against defendant John W. Branson (Branson). We find the appeal untimely and dismiss it.

Moore filed a complaint against Branson alleging that Branson was in default on a promissory note executed to it. The complaint claimed the amount due, $41,196.44, plus an attorney’s fee of $6,229.47. By answer, Branson denied the allegations of the complaint.

Moore filed a request for admission of genuineness of a document attached to the request, marked as “Exhibit A,” and identified as the promissory note. Branson’s response admitted the document as genuine.

Next, Moore filed a motion for summary judgment with an attached affidavit signed by its vice-president. Branson filed a motion in opposition with an attached affidavit by the bookkeeper for Branson, setting forth a genuine dispute of fact between the amount claimed by Moore and the amount shown on Branson’s records. This motion for summary judgment and a subsequent motion for summary judgment were denied by the circuit court.

On January 12, 1982, Moore served on Branson interrogatories and a request for production of documents. On March 10, 1982, Moore filed motions for an order to compel answers to interrogatories and an order compelling production. Both motions were granted on March 25,1982. Branson’s attorney requested that he be allowed until April 1, 1982, to comply with the order to answer interrogatories and the order to produce. The circuit court granted the extension and a subsequent extension until April 8, 1982.

Branson filed answers to interrogatories on April 16,1982. Five days later on April 21,1982, Moore filed a motion for sanctions pursuant to Rule 37(b) of Alabama Rules of Civil Procedure, stating that Branson had “failed to answer interrogatories or to produce the documents demanded by virtue of the Request for Production of Documents within 30 days.” The motion further stated that the “Answers to Interrogatories . .. were evasive, incomplete and frivolous.” On April 28,1982, the motion was continued to May 12, 1982, and on May 13, 1982, the judge granted the motion and entered a default judgment in favor of plaintiff and against defendant with leave to prove damages.

On May 26,1982, in open court, the judge heard testimony and assessed damages in favor of plaintiff and against defendant in the amount of Thirty-One Thousand Four Hundred Ninety-Two and 18/100 Dollars ($31,492.18) and costs. On September 23, 1982, Branson filed a motion to set aside the default judgment, stating that the attorney for Branson had produced all that he was able to find which responded to the request for production and that they had continually made Branson’s “warehouse available to Moore’s attorney for him to search through the records to determine whether there [was] anything else that he [thought responded] to the request for production.” The motion further provided that, “There is nothing more that I can do to comply with the rules of civil procedure and/or specifically this request for production.” On October 5, 1982, the judge overruled the motion, stating: “There being no showing that the defendant, John W. Branson, d/b/a Branson Insurance Agency, has a meritorious defense to the claim in this action, the foregoing motion to set aside default judgment is overruled.” Branson filed notice of appeal on November 3,1982, from the judgment of May 26, 1982.

Branson’s notice of appeal, filed November 3, 1982, provides that appeal is taken “from the judgment dated May 26, 1982.” Generally, a notice of appeal to be timely must be filed with the clerk of the trial court within forty-two days of the date of the entry of the judgment or order appealed from except in the case of certain specified orders and judgments. Ala.R. App.P. 4(a)(1). Branson’s notice of appeal, being filed more than five months after the entry of the default judgment on May 26, 1982, comes too late for review of the judgment. “An appeal shall be dismissed if the notice of appeal was not timely filed to invoke the jurisdiction of appellate court.” Ala.R.App.P. 2(a)(1).

Branson’s motion of September 23, 1982, was filed within the time period allowed to file a motion for relief from judgment pursuant to Rule 60(b) of the Alabama Rules of Civil Procedure. An order denying a Rule 60(b) motion is appeala-ble. Cockrell v. World’s Finest Chocolate Co., Inc., 349 So.2d 1117, 1119 (Ala.1977). However, Branson did not appeal from the trial court’s denial of his motion, but appealed from the judgment of May 26, 1982. This Court is without jurisdiction to review that judgment, and the appeal is dismissed.

APPEAL DISMISSED.

MADDOX, FAULKNER, JONES, AL-MON, SHORES, BEATTY and ADAMS, JJ., concur.

EMBRY, J., not sitting.


author: EMBRY, Justice.

text:
    Aubrey E. SKINNER v. O.H. FLORENCE, as Judge of Probate, Jefferson County, Alabama, and Jack Biddle, III.
    82-115.
    Supreme Court of Alabama.
    Sept. 30, 1983.
    Stephen Grimes, Gardendale, for appellant.
    G. William Noble of Barnett, Tingle, Noble & Sexton and Max C. Pope, Birmingham, for appellees.
   EMBRY, Justice.

This is an action filed by Aubrey E. Skinner, as a taxpayer, voter, and resident of House of Representatives, District 35. He sought injunctive relief from the trial court against O.H. Florence, as Judge of Probate of Jefferson County, Alabama, and Jack Biddle, III.

Skinner requested that court to mandate that Judge Florence remove the name of Biddle from the ballot as a candidate for the position of House of Representatives, District 35, in the Democratic Party Primary Election to be, and since, held on 7 September 1982. Skinner contends that Biddle failed to comply with § 17-22-5, Code 1975, commonly referred to as the “Corrupt Practices Act.” Skinner contends in support thereof that Biddle failed to file with the Probate Judge of Jefferson County the statement required by such statute declaring the name or names of the persons to receive and disburse campaign funds within five days after announcement of his candidacy. The timeliness of the filing of such statement is the sole issue to be examined by this court.

A hearing was initially set on the application of that plaintiff for a preliminary injunction. On the date the matter came to be heard, the parties and their attorneys stipulated and agreed in open court to advance the trial of the action on the merits and submit for adjudication by final judgment. The action was submitted on the pleadings, and evidence.

The trial court concluded as follows:

“The testimony and evidence presented fails to reasonably satisfy the Court that Biddle failed to file his statement required by the provisions of Section 17-22-5, Code, supra, with the Judge of Probate of Jefferson County, Alabama, within the time required by the said statute.
“Upon consideration of such matters, the Court concludes that the relief sought by the Plaintiff is due to be denied.”

Then, Skinner filed a motion for new trial which was denied. This appeal ensued.

It is well settled that there is a presumption of correctness in a trial court’s findings in any case heard ore tenus. Its judgment will not be disturbed unless palpably wrong, without supporting evidence, or manifestly unjust. Chism v. Hicks, 423 So.2d 143 (Ala.1982). We have carefully reviewed the record in the case at bar and find it supports the trial court’s decision.

We here note testimony which indicates the tendencies of the evidence:

(1)Judge O.H. Florence testified he did not know who placed the 8 July 1982 stamp on the qualification form filed by Biddle. He stated he received the document from Biddle, but had no personal recollection of the exact date on which he received it, or of what he did with the document after receiving it. Florence stated there were several date stamps in the probate office which anyone on the premises had access to. He said it would be possible for a stranger to pick up a stamp and mark a document. Florence further testified there was no procedure for logging or stamping qualification forms.
(2) Mrs. Mary Holt, employed in the Probate Court of Jefferson County, testified the qualification forms filed by party candidates with the court were kept in a folder in a file cabinet. She stated she made a search for Biddle’s form on or about 1 July 1982, but did not discover it. On cross examination she stated her brother was a candidate for the Legislature from District 35.
(3) Frances Grant testified she notarized Biddle’s qualification form in Birmingham on 23 June 1982.
(4) Herman Moore testified he accompanied Biddle to the Jefferson County Courthouse on 23 June 1982 so that Biddle could file his qualification form with the Probate Court.
(5) Biddle testified he filed the qualification form by handing it to Judge Florence on 23 June 1982.

From the testimony of Florence and Holt, we ascertain there was not an established procedure at the Jefferson County Probate Court for the filing of candidates’ qualification forms which required that each form be stamped upon receipt by the court. Had there been such a procedure, the stamped date of filing on the document would have been strong evidence of the actual date of filing. Because Skinner did not prove there was any correlation between the stamped date and the actual date of filing with the probate office, the only evidence of the actual date of filing, was testimony presented by Moore and Biddle. They both testified the form was filed on 23 June 1982.

Therefore, the judgment entered in behalf of O.H. Florence and Jack Biddle, III, is due to be and is hereby, affirmed.

AFFIRMED.

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


author: BEATTY, Justice.

text:
    James W. SAVAGE, III, and Marion Savage, d/b/a Home Pest Control Company, et al. v. Elbert Hubbard WRIGHT.
    No. 82-148.
    Supreme Court of Alabama.
    Sept. 30, 1983.
    John T. Kirk, Montgomery, for appellants.
    William G. McKnight, Montgomery, for appellee.
   BEATTY, Justice.

Appeal by the defendants from a judgment for plaintiff in an action based upon fraud, fraudulent concealment, and negligence. We affirm.

The action grew out of the purchase of a 25-year-old house by plaintiff, Elbert Hubbard Wright, from Mr. and Mrs. Henry Wingate. Wright learned of the house through a salesman of Rossi and Turner Realty Company. When Wright inspected the house, it was fully furnished but unoccupied. The closing took place on February 27, 1980.

Approximately two months after moving into the house, plaintiff observed certain defects in the floor and other parts. He had M.K. Johnson, an architect, inspect the house. This inspection disclosed termite damage to the floor and to one of the door frames. Ultimately plaintiff filed a complaint, originally naming the Wingates and fictitious parties. Later, however, the Win-gates were dismissed because of a pro tanto release made with plaintiff, who amended his complaint to add as defendants James W. Savage, III, and Marion Savage, d/b/a Home Pest Control Company. A later amendment added Home Specialty Pest Control Company, Inc., and Aetna Casualty and Surety Company, Inc., as defendants.

A default judgment was entered against Aetna. Summary judgment motions of the other defendants were denied, and the case was tried to a jury, which awarded $10,-000.00 as damages. Defendants’ motion for a new trial was denied and this appeal ensued.

Defendants have raised three issues for our review:

1. Whether the trial court erred in denying defendants’ motion for summary judgment, in view of the caveat emptor rule applicable to the sale of used residential property;

2. Whether the trial court erred in submitting the issue of defendant’s negligence to the jury; and

3. Whether the trial court erred in failing to grant Aetna’s motion to set aside the default judgment rendered against it.

I

The Savages’ motion for summary judgment was filed for themselves and for their Birmingham franchisor. It was supported by a copy of the contract of sale between sellers and purchaser, the deposition of Mr. Wright, an affidavit of Mr. James W. Savage, and a memorandum brief. Plaintiff Wright filed a brief in opposition, with supporting affidavits of himself, Philip Pelham, and Johnny A. Block. Also filed in opposition were a stipulation on the testimony of William A. Ward, chief of the construction and evaluation section of the Montgomery Veterans Administration Office, copies of the “letter of clearance” executed by James W. Savage, the Veterans Administration “certificate of reasonable value,” and the inspection report of Philip Pelham. These materials, together with the pleadings on file, disclose that the plaintiff’s action against the pest control companies was based upon fraud by misrepresentation, fraud by suppression of material facts, and negligence.

Defendants argue that the case of Ray v. Montgomery, 399 So.2d 230 (Ala.1980), foreclosed any recovery against the defendants. There, the purchasers of a used house sued the sellers and a pest control company on the theories of fraud, breach of the duty to disclose termite damage to the purchasers, fraud by the pest control company in failing to disclose termite damage, and breach of contract by the pest control company in failing to adequately treat the house, with the purchasers as third party beneficiaries of that contract. This Court found no evidence of misrepresentation by the sellers to the purchasers. The contract there contained an “as is” clause and did not require a termite inspection. Moreover, there was no breach of any duty to disclose facts in Ray because no confidential relationship was shown to exist between the seller and the purchaser. And finally, the purchasers were found not to be intended beneficiaries of the pest control service contract, because that contract had been entered into between owners who preceded the seller’s title and entered into for the purpose of protecting their house as property rather than for the purpose of protecting possible subsequent purchasers. It should also be noted that in Ray this Court observed that “a purchaser may protect himself by express agreement in the deed or contract of sale.” Ray, supra, at 233.

This case is factually distinguishable from the Ray case. The contract of purchase and sale here was no “as is” contract. Moreover, this contract contained the following clause:

“In the event this contract necessitates the obtaining of a new mortgage loan, ‘it is expressly agreed that, notwithstanding any other provisions of this contract, the PURCHASER shall not be obligated to complete the purchase of the property described herein or to incur any penalty by forfeiture of earnest money, deposits or otherwise unless the SELLER has delivered to the PURCHASER a written statement issued by the Federal Housing Commissioner, Veterans Administration or Conventional appraiser, as appropriate, setting forth the appraised value of the property of not less than $25,000 which statement the SELLER agrees to deliver to the purchaser promptly after such appraised value statement is available to the SELLER.”

It is clear from this completed provision and from the testimony that the purchaser here was applying for a “V.A. Loan” which required a “V.A. Appraisal” (Certificate of Reasonable Value), and a “termite certificate.” The “termite certificate” to have been furnished is explained in item 26 of the “V.A. Appraisal”:

“The seller shall furnish the veteran purchaser at no cost to the veteran prior to settlement a written statement (or certification) from a recognized exterminator that based on careful visual inspection of accessible areas and on sounding of accessible structural members, there is no evidence of termite or other wood-destroying insect infestation in the subject property, and, if such infestation previously existed, it has been corrected and any damage due to such infestation has also been corrected or alternatively been fully disclosed as follows.. .. ”

The testimony established that the Montgomery office of Home Pest Control Company was contacted by one of the realty agents who was handling the sale, for the purpose of obtaining the “termite certificate,” or letter of clearance. This Montgomery office was operated by James W. and Marion Savage, who held a franchise agreement with Home Specialty Pest Control Company of Birmingham. It was stipulated at trial that James W. Savage was an agent, servant, or employee of the Birmingham company. Savage made the following report:

“Property,
“2322 Overhill
“Montgomery, Al.
“Based on a careful visual inspection of accessible areas and sounding of accessible structural members there is no evidence of active Termites or other wood destroying insect infestation in the subject property.
“If such infestation previously existed infestation has been corrected and any damage due to such infestation has been corrected or alternately [sic] been fully disclosed as follows.
“No visual structural damage.
“This is not a guarantee that there are no Termites in this Building.
“Yours Truly,
“/s/James W. Savage, III
“Home Pest Control Co.”

This document was delivered to plaintiff Wright, who acknowledged its delivery:

“I CERTIFY THAT I HAVE RECEIVED A COPY OF THIS DOCUMENT.
“/s/Elbert Hubbard Wright
“(Date) February 27, 1980”

Defendants nevertheless argue that the sales contract between the buyer and the sellers expressly excluded any guarantee or warranty respecting the condition of the property. Moreover, they contend that the statements in Savage’s report, “No visual structural damage,” and “This is not a guarantee that there are no Termites in this Building,” fall within the bar to liability provided by Ray v. Montgomery, supra,

We cannot agree with that position. The gist of plaintiff’s claims against the pest control defendants was fraud and negligence, not breach of contract. The plaintiff’s evidence opposing summary judgment established that the termite inspection was part of the loan requirements, that it was to be made in his behalf, that the “letter of clearance” was furnished by Home Pest Control Company, and that the plaintiff relied upon it to his detriment. It further tended to establish that there was “visible old termite damage” which pre-ex-isted the inspection conducted by Savage. Savage himself maintained that he had made a careful inspection of the premises by visual inspection and by sounding accessible structural members, and found no infestation. This evidence was contradicted by evidence of plaintiff which tended to establish negligent inspection as well as misrepresentation and non-disclosure. Although Savage denied either hiding or willfully failing to disclose the existence of damage, the evidence of his “letter of clearance,” which affirmatively reported “a careful visual inspection ... and sounding” and that “[i]f such infestation previously existed infestation has been corrected and any damage due to such infestation has been corrected or alternately [sic] been fully disclosed,” in the face of plaintiff’s evidence of extensive and long-existing termite damage, made factual issues for the jury. Indeed, it is well established that summary judgment is authorized only when the moving party clearly shows that there is no genuine issue as to any material fact, and the movant is entitled to a judgment as a matter of law, Kutack v. Winn-Dixie Louisiana, Inc., 411 So.2d 137 (Ala.1982); if there is a scintilla of evidence supporting the party against whom the motion is made, summary judgment may not be granted. Campbell v. Alabama Power Co., 378 So.2d 718 (Ala.1979). Although Savage himself had no contact with the purchaser, cf. Mid-State Homes, Inc. v. Startley, 366 So.2d 734 (Ala.1979), and made no direct representation to the buyer, Wright, it was inferable from the materials before the court on the motion for summary judgment that James W. Savage knew not only the purpose of his employment but that his “letter of clearance” would be presented to, and was for the benefit of, the purchaser. The fact that his letter was addressed to “the property” cannot reasonably be taken as implying that Savage intended his inspection solely for the benefit of the seller. The facts show that Savage was contacted by a real estate agent in connection with the sale. It is at least inferable that Savage’s representations, if they were made “to the property,” so as to be made to the seller only, were made with the intention or the knowledge that the purchaser might act on them. Dexter v. Baker, 382 So.2d 552 (Ala.1980). It is inferable therefore that, were it otherwise, Savage would not have been employed, because, were it not for the loan, an inspection would not have been necessary. There was also evidence leading to the conclusion that Savage, as the expert, was under a duty to disclose the material condition of termite damage, if any, to Wright, the layman. Hall Motor Co. v. Furman, 285 Ala. 499, 234 So.2d 37 (1970). Cf. Crystal Pier Amusement Company v. Cannan, 219 Cal. 184, 25 P.2d 839 (1933); Anno. 91 A.L.R. 1363 (1934).

It follows from the foregoing discussion that the doctrine of caveat emptor as applied in Ray v. Montgomery, supra, did not apply to the facts of this case, and that the trial court did not err in denying summary judgment.

II

Did the trial court err in submitting the issue of negligence to the jury? We think not.

The testimony adduced by plaintiff is revealing on the negligence issue.

Plaintiff, the purchaser, testified that he made an inspection of the premises but that he was untrained insofar as inspection for termites is concerned. He testified additionally that he expected a “letter of clearance” and relied upon the representations made therein. Savage, the actual inspector, on the other hand, stated during trial that pest control work required expertise, that one so engaged had “to be able to locate damage in a particular structure,” and that a layman probably would not be so familiar with this specialized field and would have difficulty in knowing what to look for if looking for termites.

Plaintiff testified that following the closing, and after he had occupied the house for several months, he noticed “sponginess” in the floor at various places, spaces between the boards, and nailheads rising from the kitchen floor. He also discovered softness in a door frame. The floor in question, hardwood throughout except for kitchen and bath, was constructed upon a concrete slab. Carpet had been placed on the floors of two bedrooms and a hallway by the sellers a few months before this sale.

An architect, M.K. Johnson, inspected the house at plaintiffs request. According to his testimony, the floor was constructed with two-by-fours about sixteen inches on center, with pine one-by-sixes and one-by-eights nailed to two-by-fours (making a subfloor), with the hardwood floor above that subfloor. He noticed on inspection that the floor would “give.” This problem was generally over the entire house. In his opinion it was termite damage. He recommended that a section of the floor be taken up to confirm his opinion, and Mr. Wright made arrangements to do so. Johnson was present when a section of the hardwood was removed to expose the pine subflooring. We quote his further testimony of the condition:

“You could see, it was just deteriorated and eaten up. Then, we didn’t have to cut, it was tight in some places and we lifted those pieces up and you could see that the sleepers underneath — those were the two-by-fours that ran directly on the slab — and you could tell that they were just gone.
“They were eaten up except for the, you know, the greeny parts which termites do not eat.”

As to the length of time this condition had existed, Johnson stated:

“It wasn’t fresh damage and it wasn’t any sights of termites under there. If there had been actual termites, I would have seen them.”

He concluded that it was old damage, two years old “or probably further back than that.”

Dr. Johnny Block, Director of Agricultural Chemistry for the State of Alabama’s Department of Agriculture and Industries, which regulates and licenses pest control companies, testified concerning the recommended procedure for inspection of a slab-constructed house for termites. He stated that an inspector should “sound” all wooden structural objects. He also testified that the Montgomery office of Home Pest Control Company was operating under the license issued to Home Specialty Pest Control Company in Birmingham.

Another employee of the Department of Agriculture and Industries, Philip Pelham, a specialist in wood-destroying organisms, testified to the proper manner of conducting an inspection of a slab house for termites, and of his personal inspection of the Wright home. It was his expert opinion that the termite damage in the closet of one of the bedrooms and on a closet door facing, which he found, should attract the attention of an expert. He also found termite damage in three rooms and on different sides of the house which, in his opinion, would have taken termites three years to accomplish. He further testified to the importance of “sounding” floors for evidence of termite damage.

Defendant James W. Savage, on cross-examination, conceded that specialized knowledge was required in the pest control business, and that the average layman would not likely know what to look for during a termite inspection. Savage also stated that he had received only ten days of formal training in such work, and had failed the test for “certified operator” administered by the State of Alabama on wood-destroying organisms. He testified that the Montgomery office should have had a certified operator but had operated for years without one, and that the Birmingham office gave annual updates on literature but did not actively supervise the Montgomery operation nor conduct annual training sessions for them. He himself operated under the authority of another person’s license who neither regularly supervised him nor inspected his work. Savage testified further that it was necessary for him to inspect for termites by “sounding” as well as visually to assure the purchaser that the house had been inspected. Savage maintained that he had “sounded” the house and that the letter of clearance was accurate, i.e. that he found “no visual structural damage.” Savage also testified that he knew that this letter would be used to “assure the home owner that the house has been inspected and is okay ... as far as termites go” and “to give assurance to people who are buying old houses that there is not any problem with the termite damage.” Additionally, Savage knew that this letter was being issued in connection with a loan closing and that it would be submitted to the purchaser.

This evidence clearly made out a case for submission to the jury on the issue of negligence of the defendants. Cf. Waites v. Toran, 411 So.2d 127 (Ala.1982); United States Fidelity & Guaranty Co. v. Jones, 356 So.2d 596 (Ala.1978).

Ill

Did the trial court err in denying Aetna’s motion to set the default judgment aside?

Count V of plaintiff’s complaint was added by amendment on August 24,1981, making Aetna Casualty and Surety Company a party defendant. It was alleged that defendants Savage, d/b/a Home Pest Control Company, were bonded through their parent company in Birmingham, and that Aet-na was the surety on that bond. The bond, it was further alleged, was required by Code of 1975, § 2-28-10(a), and had been breached by the defendant-principal by “failure to perform under the bond in a skillful and workmanlike manner and as otherwise required by law.”

On September 14,1981, service of process was obtained on Aetna’s registered agent. The record also shows that on August 26, 1981, by mail sent to its home office, Aetna was notified of the claim under its bond. No appearance having been filed, on October 21, 1981, plaintiff obtained a default judgment against Aetna. On October 26, 1981, Aetna moved to set the default aside. A hearing on the motion was heard on November 25, 1981, after which the motion was denied. In its motion, Aetna alleged “they have defenses to assert,” and “that the failing to answer ... was based upon reasonable misunderstandings.” No specific averment of any meritorious defense was made, nor does the record disclose any such offer of proof at the hearing on the motion.

Under Rule 55(c), A.R.Civ.P., the trial court “may set aside an entry of default and the court may set aside a judgment of default within 30 days thereafter.” In its discretion the trial court refused to do so in this instance. No Rule 60(b) motion was made by Aetna. In order to obtain relief from a default judgment, one must allege and prove a meritorious defense. Raine v. First Western Bank, 362 So.2d 846 (Ala.1978). No such proof having been made, the trial court did not err in denying the motion.

Let the judgment be affirmed.

AFFIRMED.

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


author: ADAMS, Justice.

text:
    Kenneth W. UNDERWOOD, Jr. v. STATE of Alabama, et al.
    82-186.
    Supreme Court of Alabama.
    Sept. 30, 1983.

      Kenneth W. Underwood, Jr., pro se.
    Charles A. Graddick, Atty. Gen., and Thomas R. Allison, Asst. Atty. Gen., for appellees.
   ADAMS, Justice.

Plaintiff filed this action for injunctive relief and declaratory judgment in the Circuit Court for Montgomery County. He asked the court to declare that he was not in violation of Code 1975, § 36-25-7(a), a section of the Ethics Act. The trial court held that the plaintiff’s status placed him in violation of the statute, and denied him the relief he sought. The plaintiff appealed. We find that the facts of this case did not present to the trial court a justiciable controversy, and dismiss the appeal.

The facts of the case, as presented at trial, are as follows:

The plaintiff, Kenneth W. Underwood, Jr., was employed by South Central Bell Telephone Company, and had been so employed since May, 1956. At the time of trial, his title was Assistant Vice President, Governmental Affairs, for the Alabama operating area of the company. In this capacity he served as liaison between the company and state and federal governments. He also appeared before legislative committees and offered testimony in favor of or in opposition to proposed legislation affecting his employer. In addition, his duties required that he entertain members of the legislature. Underwood was registered as a lobbyist .with the State Ethics Commission.

Underwood also served as associate member on the Board of Appeals of the Alabama Department of Industrial Relations (the Board). He was classified as a representative of employers. He had held that position since 1968. Members of the Board of Appeals can receive up to $8,000.00 per year for their service, plus $.20 per mile in travel pay and $30.00 per diem.

In October, 1982, the Ethics Commission (the Commission) rendered and adopted advisory opinion # 652, advising that for Underwood to occupy both his position on the Board and his position as a lobbyist put him in violation of § 36-25-7(a). The executive director of the Commission then wrote to the director of the Department of Industrial Relations, informing him of the opinion and requesting that the director remove Underwood from the Board. That same day, Underwood filed his complaint for in-junctive and declaratory relief.

The case was submitted on testimony of the plaintiff, briefs filed by the parties, and oral argument. At the hearing, counsel stipulated that the court had jurisdiction of the case, that an actual controversy existed, and that the claim was ripe for declaratory judgment.

In deciding that the case was not properly before the court, we call attention to the following details, all of which were noted in the memorandum opinion of the trial judge:

Underwood, in his complaint, did not challenge the constitutionality of § 36-25-7(a) on its face or in its application to him. Likewise, he did not contend that the Ethics Commission exceeded its authority in rendering the advisory opinion or in requesting that the director of the Department of Industrial Relations remove Underwood from the Board. He merely challenged the correctness of the conclusion expressed in the advisory opinion.

The Ethics Commission is granted the authority in Code 1975, § 36-25^(9), to render advisory opinions. Such an opinion has the effect of protecting “such person to whom it is directed from liability to either the state, county or municipal subdivision of the state because of any official action or actions performed as directed or advised in such opinion.” § 36-25-4(9). The Commission has no authority to enforce its opinions, but is limited to reporting suspected violations of law to the appropriate law-enforcement authorities (§ 36-25-4(8)), and reporting its findings to the director and the appointing authority. Underwood, having been appointed, to the Board by the governor, is subject to removal only by action of the governor (§ 36-13-7) or by impeachment (§ 25-2-12). Therefore, as pointed out by the trial court, the Commission’s request that the director remove Underwood from the Board was a nullity.

The trial court, in its opinion, stated:

Inasmuch as the Commission has exhausted its power and has no enforcement authority, it is difficult to ascertain what bona fide justiciable controversy exists to be resolved by this court inasmuch as there exists merely a difference of opinion between the Commission and the plaintiff. It is well to point out, however, that in these circumstances the plaintiff may either resign his position on the Board, he may resign his private employment, he may request his employer to assign him different responsibilities which do not include lobbying before the legislature, or he may risk prosecution in the event the proper authorities agree with the Commission’s interpretation of § 7(a) and the authorities conclude that prosecution is warranted under the circumstances.

The trial court then went on to note that the Uniform Declaratory Judgment Act, under which this case was brought, is a remedial act that is to be liberally construed and administered. Code 1975, § 6-6-221. Because of this, the court concluded that, although Underwood was merely requesting the court to resolve a difference of opinion as to the interpretation of the law, it should proceed to construe § 36-25-7(a) as it applies to Underwood. We disagree.

This court has held many times that the declaratory judgment statutes do not empower courts to decide moot questions or abstract propositions, or to give advisory opinions, however convenient it might be to have the questions decided for the government of future cases. State ex rel. Baxley v. Johnson, 293 Ala. 69, 300 So.2d 106 (1974); Alabama-Tennessee Natural Gas Co. v. City of Huntsville, 275 Ala. 184, 153 So.2d 619 (1963); Birmingham Trust National Bank v. Garth, 263 Ala. 121, 81 So.2d 590 (1955). The anticipation of a justiciable controversy is not sufficient to warrant a judicial declaration of rights. See Smith v. Alabama Dry Dock & Shipbuilding Co., 293 Ala. 644, 309 So.2d 424 (1975); Talton v. Dickinson, 261 Ala. 11, 72 So.2d 723 (1954).

As pointed out by the trial court, at the time of trial Underwood had several options open to him. While Underwood might prefer not to have to exercise any of these options, it is obvious that he had several choices which would eliminate the possibility of a controversy altogether. In the absence of the power of enforcement of the Commission’s advisory opinion, it is uncertain at this point whether a controversy would arise, even if he chose to disregard the opinion.

While Alabama law has recognized the right of a plaintiff to test a rule or regulation of an administrative board which carries with it the power of law or authority for enforcement (see Gibbs v. Cochran, 281 Ala. 22, 198 So.2d 607 (1967)), such a situation is not presented in this case. The validity of the statute which was interpreted in the Commission’s opinion was not challenged, nor was the authority of the Commission to render the opinion. An advisory opinion alone, having no force of law, is not subject to review by the courts, either by appeal or by action for declaratory judgment. Under the circumstances, we find that there was no justiciable controversy before the trial court, and, thus, that court had no jurisdiction. See Wallace v. Burleson, 361 So.2d 554 (Ala.1978).

Since the judgment of the trial court was void because of the lack of a justiciable controversy between the parties, and since a void judgment will not support an appeal, it follows that the appeal is due to be dismissed. Smith v. Alabama Dry Dock & Shipbuilding Co., supra; State ex rel. Baxley v. Johnson, supra; City of Mobile v. Scott, 278 Ala. 388, 178 So.2d 545 (1965).

APPEAL DISMISSED.

TORBERT, C.J., and JONES and BEAT-TY, JJ., concur.

MADDOX, ALMON and SHORES, JJ., dissent.

FAULKNER and EMBRY, JJ., recused.

      . § 36-25-7(a) states:
      No public official or employee or his family shall solicit or receive any money in addition to that received by the official or employee in his official capacity for advice or assistance on matters concerning the legislature, an executive department or any public regulatory board, commission or other body.


author: FAULKNER, Justice.

text:
    STATE of Alabama, acting By and Through the ALABAMA STATE DOCKS DEPARTMENT, an Agency of the State of Alabama v. William A. ATKINS, et al.
    82-197.
    Supreme Court of Alabama.
    Sept. 30, 1983.

      Joseph C. Sullivan, Sr. and Joseph C. Sullivan, Jr. of Butler & Sullivan, Mobile, for appellant.
    Samuel L. Stockman of Stockman & Bed-sole, Mobile, for appellees.
   FAULKNER, Justice.

This is an eminent domain proceeding. The question before us involves the determination of just compensation for the taking of a segment of public roadway by the State.

The subject parcel was a portion of the Dauphin Island Parkway, a public road in Mobile County. The road came to a dead end at the northern edge of the Theodore Barge Canal on the middle fork of the Deer River. The Alabama State Docks Department of the State of Alabama instituted condemnation proceedings in order to widen the canal to allow ship travel. The property in question was approximately 80 by 114 feet and comprised approximately .21 acre. Mobile County owned an easement across the property for purposes of a public road and William Atkins owned the underlying fee. The State appealed from a verdict of $21,600.00 in favor of the owners.

Numerous issues were raised on appeal. All of the issues revolve around the central question of how the parcel should be valued for purposes of eminent domain. The State sought to value the interests of the County and of Mr. Atkins separately. It argued that the County, which is merely a political subdivision of the State, is not entitled to compensation in the traditional sense for the taking of a roadway but is only entitled to any costs of providing substitute facilities. United States v. City of New York, 168 F.2d 387 (2nd Cir.1948); United States v. Des Moines County, 148 F.2d 448 (8th Cir.1945). Atkins’s interest in the parcel, the State continued, should be valued in light of the easement which burdened the fee. The owners, on the other hand, sought to recover the full value of the land taken as if it were an unencumbered fee, on the theory that the defendants could join together and merge title. To allow evidence as to the extent of each owner’s interest in the property would require the court, according to the owners, to “try title” to the property. A condemnation proceeding is not the proper place to try title. State v. J.E. Paterson Lumber Co., 284 Ala. 648, 227 So.2d 418 (1969).

We disagree with the State’s contention that Mobile County was not entitled to compensation for the taking. In State v. Jefferson County Board of Education, 282 Ala. 303, 211 So.2d 146 (1968), the State condemned a portion of the grounds of a public high school in Jefferson County. We rejected the State’s argument that since the prqperty was owned by its political subdivision and dedicated to a public use its rededi-cation by the legislature to a different use did not give rise to an obligation on the part of the State to compensate the board of education. We ruled that the Board of Education was entitled to just compensation for the taking. Ala. Const. § 23; Code of Alabama, § 18-1-1 et seq.

While we agree with Mobile County that it is entitled to just compensation, we note that the “substitute facilities” doctrine espoused by the State in support of its motion to dismiss Mobile County as a party defendant is applicable to the question of what constitutes “just compensation” to the county for the taking. Ordinarily, of course, market value is the measure of compensation in condemnation cases. Special problems arise, however, in eminent domain proceedings involving publicly owned property which is adapted to a special use. Since bridges, streets, sewers, parks and similar facilities are rarely sold on the open market, the “market value” test is inappropriate. Even when it is possible to establish a market value for such property, the con-demnee may not be fully compensated where it must acquire substitute facilities at a greater cost than the value of the facilities taken in order to fulfill its governmental obligations. See “Note,” 6 Seton Hall L.Rev. 711 (1975); 40 A.L.R.3d 143. In order to adequately compensate governmental entities for the condemnation of property specially adapted to a public use, the courts have adopted the “substitute facilities” doctrine. If a public need existed at the time of the taking which made it reasonably necessary for the condemnee to provide substitute facilities, then the cost of providing substitute facilities constitutes the measure of just compensation for the taking. County of Sarpy v. United States, 386 F.2d 453 (Ct.C1.1967); City of Wichita v. Unified School District, 201 Kan. 110, 439 P.2d 162 (1968). When the taking is of such a nature as to obviate the need for the facility, the governmental entity, which is in the business of providing public services, suffers no loss as a result of the taking. If anything, the condemnee is relieved of the burden of maintenance. Therefore, when no substitute facilities are necessary, only nominal damages or salvage value should be awarded. Washington v. United States, 214 F.2d 33 (9th Cir.1954); California v. United States, 169 F.2d 914 (9th Cir.1948); United States v. City of New York, 168 F.2d 387 (2d Cir.1948).

In the instant ease the need for a public road on the parcel in question ceased upon expansion of the canal because the segment of road in question served only as access to adjacent parcels which were also taken when the canal was widened. Since the overwhelming weight of authority is to the effect that a political subdivision is entitled to compensation for the taking of a public road only to the extent that it is necessary to provide a substitute conveyance, Washington v. United States, 214 F.2d 33, 39 (9th Cir.1954), just compensation to Mobile County for the taking in the case sub judice was nominal.

During the trial the State attempted to introduce the deed granting the county an easement for a public road. The defendants’ objection to the introduction of the deed was sustained on the ground that the parcel should be valued without regard to the individual interests of the defendants. On appeal, the State argued that it should have been allowed to introduce the deed because the easement affected the value of Mr. Atkins’s fee.

An argument similar to the one advanced here by the owners was rejected by the United States Supreme Court in Boston Chamber of Commerce v. City of Boston, 217 U.S. 189, 30 S.Ct. 459, 54 L.Ed. 725 (1910). In that case the city sought to condemn a parcel owned by the Chamber of Commerce. An abutting land owner, The Central Wharf and West Dock Corporation, had an easement of way, light, and air over the land in question. The owners argued that they should be allowed to recover the full value of the land taken as an unrestricted fee. The parties agreed that the value of the fee if it were unencumbered was $60,000.00, but that its value as restricted was only $5,000.00. In upholding an award for $5,000.00 the court ruled that:

“[The Constitution] does not require a parcel of land to be valued as an unencumbered whole when it is not held as an unencumbered whole. It merely requires that an owner of property taken should be paid for what is taken from him. It deals with persons, not with tracts of land. And the question is what has the owner lost, not what has the taker gained. We regard it as entirely plain that the petitioners were not entitled as a matter of law to have the damages estimated as if the land was the sole property of one owner, and therefore are not entitled to $60,000 under their agreement.”

Boston Chamber of Commerce, supra at 195, 30 S.Ct. at 460.

In determining the fair market value of a parcel taken by eminent domain, consideration should be given to any factors which a reasonably prudent buyer would consider before purchasing the property. Clearly, the presence of an easement for a public road on the parcel would have to be considered in determining the fair market value of the property. See 22 A.L.R.3d 961. The owners, likewise, should be allowed to introduce evidence as to the possibility of the removal or termination of the restriction. Moschetti v. City of Tuscon, 9 Ariz.App. 108, 449 P.2d 945 (1969); Schwartz v. State, 95 Misc.2d 525, 408 N.Y.S.2d 239 (Ct.Cl.1978).

We agree that the State should have been allowed to introduce evidence of the easement. Generally, where property burdened with an easement is condemned, the property must be valued in its existing condition, not as an unencumbered fee. 4 Nichols, Eminent Domain § 12.411. Thus, the owner of the fee subject to an easement is entitled to recover the value of the land subject to the easement. Terminal Coal Co. v. United States, 76 F.Supp. 136 (W.D.Pa.1948), aff'd, 172 F.2d 113. In this case the trial court erred in refusing to allow introduction of the deed and in refusing to give the State’s requested charge instructing the jury as to the nature of the easement and the respective rights of the parties with regard to the parcel as burdened by the easement. Ruble v. City of San Antonio, 479 S.W.2d 86, 89 (Tex.Civ.App.1972). See also Terminal Coal Co. v. United States, supra.

While there are very few cases dealing with the value of a privately owned fee encumbered by a public road, our research revealed a few informative decisions. In King v. Mayor and Council of Rockville, 249 Md. 243, 238 A.2d 898 (1968), the plaintiff owned property which was being condemned as part of an urban renewal project. Like Mr. Atkins, Mrs. King owned property abutting a road as well as a naked fee in a portion of the roadbed subject to an easement. In its ruling with regard to the value of the fee, the court stated that in absence of evidence that the property would not have continued to be used indefinitely as a street but for the condemnation, the fee interest in the roadbed had only nominal value. 249 Md. at 251, 238 A.2d at 903. In United States v. Certain Parcels of Land, 54 F.Supp. 667 (Md.1944), aff’d, 147 F.2d 786, the federal government condemned city streets as part of a large parcel taken for a shipyard. The court ruled that the municipality which owned an easement for the streets and the owners of the fee subject to the easement were not jointly entitled to compensation for the whole. The owners of the fee interest in the roadbed were awarded only nominal damages for its condemnation. 54 F.Supp. at 669.

In light of the foregoing authority we think the proper rule is that where the fee is burdened with an easement for a public road the fee must be valued in light of the restrictions placed on it. In the absence of evidence of some probability that the easement would have terminated but for the condemnation or proof of some special value attaching to it such as valuable subsurface rights, the underlying fee will, in the ordinary case, have little, if any, value. Peck v. Baltimore County, 41 Md.App. 323, 397 A.2d 615 (1979), rev’d on other grounds, 286 Md. 368, 410 A.2d 7 (1979); Anhoco Corporation v. Dade County, 127 So.2d 464 (Fla.Dist.Ct.App.1961), rev’d on other grounds, 144 So.2d 793 (Fla.1962); People v. Schultz, 123 Cal.App.2d 925, 937-938, 268 P.2d 117, 126 (1954).

We opine that the trial court erred in refusing to allow the State to introduce evidence of the easement as a burden on Mr. Atkins’s fee affecting its worth. While we disagree with the State’s position that Mobile County should have been struck, we agree that the proper rule to be applied in valuing Mobile County’s interest in the road is the substitute facilities doctrine. We also note that the trial court, over objection, allowed testimony regarding the cost of constructing boat ramps on the property. While we recognize that property should be valued according to its highest and best use, Sayers v. City of Mobile, 276 Ala. 589, 165 So.2d 371 (1964), the jury should not be allowed to consider imaginary or highly speculative possible uses. Alabama Cent. R. Co. v. Musgrove, 169 Ala. 424, 428-429, 53 So. 1009, 1010 (1910). In light of the easement allowing the county to use the property only as a road and in light of the fact that permission by the condemnor would be necessary for such a project, we deem such testimony to be too speculative to be probative as to the value of the parcel.

Reversed and remanded for further proceedings.

REVERSED AND REMANDED.

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


text:
    Richard Allen WALLACE v. James M. BEASLEY, et al. James M. BEASLEY and Linda C. Beasley v. Richard Allen WALLACE. W.F. CHASTAIN and James W. Davis, d/b/a D & C Mortgage Company v. Richard Allen WALLACE.
    82-250, 82-282 and 82-283.
    Supreme Court of Alabama.
    Sept. 30, 1983.

      A. Richard Maples, Jr., Mobile, for appellant/cross-appellee.
    Joe E. Basenberg of Hand, Arendall, Bed-sole, Greaves & Johnston, Mobile, for appel-lees/cross-appellants James M. Beasley and Linda C. Beasley.
    Beth McFadden Rouse of McFadden, Riley & Parker, Mobile, for appel-lees/cross-appellants W.F. Chastain and James W. Davis, etc., et al.
   FAULKNER, Justice.

These are appeals from the judgment of the trial court determining the amount required to be paid by appellant Richard Wallace to redeem a parcel of land located in Mobile County, Alabama. We affirm in part; reverse in part; and remand.

The facts of this case are that in 1971 appellees/cross-appellants W.F. Chastain and James W. Davis, doing business as D & C Mortgage Company (“D & C”), sold a parcel of land to Mr. Allen W. Wallace and his wife, Mrs. Dallas G. Wallace, for the sum of $14,500.00. The Wallaces paid $50.00 down and agreed to pay the balance in specified monthly installments. “D & C” reserved, in the deed to the property, a vendor’s lien to secure payment of the balance due. The vendor’s lien included a power of sale that allowed “D & C” to sell the property at public outcry if the Wallac-es defaulted on their scheduled payments. A few months later the Wallaces did default and “D & C” foreclosed and also bought the property at the foreclosure sale.

In October 1981, “D & C” resold the property to James M. and Linda C. Beasley, appellees herein, for $18,000.00, which included a down payment of $500.00 and a vendor’s lien for the balance which was to be paid in monthly installments of $300.00. The deed from “D & C” to the Beasleys further provided:

“Grantors herein agree that should the property herein described be rightfully redeemed for an amount less than the consideration herein recited, Grantors shall refund unto Grantees the difference or surplus of the money actually paid by the Grantees to the Grantors over and above the amount paid to redeem less and except the amount of $300.00 per month which shall, in such event, be charged to the Grantees as monthly rent. It is the intent of the parties hereto that should redemption occur, the Grantees shall only be charged the sum of $300.00 per month as rent and that all other sums of money, after refund to the Grantees of surplus due them, paid in redemption shall be paid to the Grantors.”

At the time of the conveyance by “D & C” to the Beasleys, appellant Richard Allen Wallace had acquired the statutory right of redemption to the property by virtue of a warranty deed executed to him by his parents, Allen Wallace and Dallas G. Wallace. Upon learning of the sale by “D & C” to the Beasleys, appellant Richard Wallace, through his attorney, gave written notice to the Beasleys of his intention to redeem, and demanded a statement of lawful charges from the Beasleys within ten days as required by statute.

The Beasleys, by letter dated October 30, 1981, advised Mr. Wallace that the total of the purchase price and permanent improvements made by them totaled $40,000.00, and that this was the amount Mr. Wallace would be required to pay in order to redeem. By written notice dated November 6, 1981, appellant through his attorney, gave written notice to1 the Beasleys and their attorney that appellant did not agree with the value of permanent improvements claimed by the Beasleys.

At this point each party, as required by statute, appointed a referee to determine the true value of the improvements made by the Beasleys. The referees conferred but were unable to reach an agreement as to the value of the improvements, whereupon, appellant Richard Wallace filed suit in the Circuit Court of Mobile County.

In his complaint, Wallace averred the above stated facts and asserted that the value claimed by the Beasleys for improvements made to the property was unreasonable and had been exaggerated for the purpose of thwarting and frustrating his legal right to redeem the property. In his prayer for relief, Wallace asked the court to ascertain the true value of the permanent improvements and to fix the amount required by him to be paid to redeem the property.

Trial was held before Judge Robert L. Byrd, Jr., on October 21,1982. At trial, the parties stipulated that the total amount necessary to satisfy the purchase money mortgage, including interest and other lawful charges, owing to the defendant D & C Mortgage Company was $11,353.72.

The parties further stipulated that the issues before the Court for trial were to be the treatment to be given to payments, labeled rent, made by the Beasleys to “D & C” since the date of the filing of the complaint for redemption and also the value of permanent improvements made by the Beasleys since their purchase of the property from “D & C”.

After hearing the evidence ore tenus, Judge Byrd ordered that the value of permanent improvements made by Mr. & Mrs. James Beasley to the subject property was $20,900.00. He further ordered that Richard Wallace was entitled to a credit of $900.00 against the stipulated sum of $11,-353.72 necessary to satisfy D & C Mortgage Company, said credit representing the payments made or accrued by the Beasleys to “D & C” since the date of filing of the redemption action.

Richard Wallace is before this court appealing the trial court’s valuation of the permanent improvements to the subject property. W.F. Chastain and James W. Davis, individually and d/b/a D & C Mortgage Company, are before this court as appellees and cross-appellants appealing the trial court’s judgment as to the $900.00 credit.

Concerning Mr. Wallace’s appeal, it is undisputed that he must pay the amount determined by the court to be the value of the permanent improvements to the property in order to effect redemption. See Code of Alabama 1975, § 6-5-235. Mr. Wallace, however, contends that the trial court erroneously determined the value of the permanent improvements to the property to be $20,900.00. Mr. Wallace’s strongest argument in support of his position is that the trial court’s valuation is erroneous because the value of the improvements as determined by the court is much higher than the actual proven cost of the improvements. Unfortunately, we are not persuaded.

Code of Alabama 1975, § 6-5-244, provides that “Any person offering to redeem must pay to the then holder of the legal title the value of all permanent improvements made on the land since the foreclosure sale.... ” This court, interpreting this language, has determined that the section does not deal with the cost, but rather with the value, of the permanent improvements. Ladd v. Parmer, 278 Ala. 435, 178 So.2d 829 (1965). While the cost of improvements is related to the value, the reasonable value is made the basis of payment by the redemptioner. Ladd v. Parmer, supra.

In the instant case, the trial judge was presented with conflicting evidence as to the value of the permanent improvements from each party’s expert witness. The court also heard evidence of the cost of each particular improvement. In this case, it was the duty of the court, as the trier of fact, to make a determination of the proper value to be assessed to the improvements, taking into consideration the evidence presented. Furthermore, it is stated:

“Where a trial court has heard the evidence ore tenus, its findings of fact will not be disturbed on appeal unless clearly erroneous or manifestly unjust, and such rule is especially applicable in cases in which the trial court makes its findings of fact after hearing conflicting evidence; every presumption will be indulged in favor of the court’s findings, and those findings will not be disturbed unless palpably wrong.”

Reliance Insurance Co. v. Substation Products Corp., 404 So.2d 598, 603 (Ala.1981). See also Leslie v. Pine Crest Homes, Inc., 388 So.2d 178 (Ala.1980). We find no such palpable error in the valuation decision of the trial judge in the present case. Thus, the order of the lower court is affirmed as to this issue.

The issue brought on appeal by Mr. Chastain and Mr. Davis concerns Code of Alabama 1975, § 6-5-235(6), which provides that the purchaser at a foreclosure sale is entitled to all rents and profits accrued on the property until the date of redemption. This has been read to mean that the redemptioner, then, is entitled to any rents or profits accruing subsequent to the redemption date. See Dicie v. Morris, 285 Ala. 650, 235 So.2d 796 (1970). The date of redemption is deemed to be the date of the filing of the original complaint to redeem. Dicie v. Morris, supra. Furthermore, a purchaser in possession of land as purchaser under a valid foreclosure is the absolute owner and is not chargeable with rent in respect to another whose rights were .foreclosed. Coon v. Henderson, 242 Ala. 144, 5 So.2d 397 (1941).

A review of these principles and the record presented on appeal leads us to the conclusion that the trial court erred in its decision to credit the redemptioner Wallace with the payments made by the Beasleys to “D & C”. Under the statute referred to above, a redemptioner is only entitled to look to the purchaser in possession on the date of redemption for rents and profits accrued. At the date of redemption the Beasleys were the owners in possession of the property, and they were the ones from whom the property would be redeemed; therefore, Wallace, as redemptioner could only demand rents and profits collected by the Beasleys had any been collected.

The statute does not contemplate that a redemptioner can collect rents or profits from a prior owner or purchaser of the redeemed property. Wallace would have us go behind the private agreement or contract between the present purchaser in possession and the former owner of the redeemed property to allow the redemptioner credit for payments made pursuant to a private contract. This the statute does not authorize us to do. Thus, the trial court’s ruling that Wallace was to receive credit for the payments made by the Beasleys to “D & C” was erroneous, and is due to be, and is hereby reversed.

It should be noted that the Beasleys, as appellees, bring an issue on appeal as to whether the redemption in this case was proper in the first instance. They argue that the redemptioner Wallace initially failed to comply with the statutory procedure for redemption in Code of Alabama 1975, § 6-5-235, which requires that in order to redeem the redemptioner must pay to the purchaser, or into court, the amount required to redeem or provide an adequate excuse to the court for his failure to do so.

We find the Beasleys’ contention to be without merit, since, reviewing the record, we are satisfied that the redemptioner provided a sufficient excuse — that there was a bona fide disagreement as to the amount of lawful charges due in this case. See Dicie v. Morris, 285 Ala. 650, 235 So.2d 796 (1970); Slaughter v. Webb, 205 Ala. 334, 87 So. 854 (1921).

We have carefully reviewed the record and excellent briefs of counsel in this case. We find that the court’s valuation of permanent improvements is due to be affirmed; that the court was in error in crediting the redemptioner $900.00 as accrued rents; and that there is no merit in the Beasleys’ contention that redemption was improper.

AFFIRMED IN PART; REVERSED IN PART; AND REMANDED.

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