text:
    Danny Hall SWITZER v. Sharon J. SWITZER.
    No. 54943.
    Supreme Court of Mississippi.
    Dec. 5, 1984.

      Marc E. Brand, Hobbs & Brand, Jackson, for appellant.
    David W. Dreher, Collins & Dreher, Jackson, for appellee.
    Before PATTERSON, C.J., and ROBERTSON and SULLIVAN, JJ.
   ROBERTSON, Justice,

for the Court:

Danny Hall Switzer has been found in violation of certain financial provisions of a property settlement agreement incorporated into a final decree of divorce entered by the Chancery Court of Rankin County, Mississippi, adjudged in contempt, and committed to the custody of the sheriff until he purge himself. He appeals to this Court, arguing that such an incorporated property settlement agreement is not enforceable by contempt proceedings and, in the alternative, that the agreement is too vaguely worded to support an adjudication of contempt. For the reasons set forth below, we reject Switzer’s points and affirm.

Danny Hall Switzer (hereinafter “Danny”) and Sharon J. Switzer (hereinafter “Sharon”) were married on October 5, 1976. At some point in 1981 they separated. No children were born of the marriage. In due course thereafter the parties negotiated a property settlement agreement, obviously contemplating obtaining a divorce on grounds of irreconcilable differences. Miss.Code Ann. § 93-5-2 (Supp. 1984). At the time the parties owned a residence commonly designated by a street number as 303 Bay Road, Brandon, Rankin County, Mississippi. With respect to that residence, the parties provided in the agreement as follows:

HUSBAND and WIFE covenant and agree that HUSBAND shall have the exclusive use and occupancy of the said marital home with the understanding that WIFE shall be given a reasonable period of time from the execution of this Agreement to vacate herself from the premises. HUSBAND shall have the responsibility and obligation to pay the indebtedness on the property inclusive of principal, interest, taxes and insurance. [Emphasis added]

The agreement goes on to provide for various contingencies with respect to the residence. We have studied the agreement with some care. We find nothing in it which would relieve' Danny of the obligation to pay the indebtedness secured by the residence so long as he resides there.

The agreement further provides that The parties agree, stipulate, and consent that the provisions of this Agreement may be incorporated into any decree of divorce entered in the action pending in the Chancery Court of Rankin County, Mississippi, with prior consent of said court.

Thereafter, on August 26, 1982, In The Matter Of The Dissolution Of The Marriage Of Sharon J. Switzer and Danny Hall Switzer, Docket No. 20,605, the Chancery Court of Rankin County, Mississippi, entered its Final Decree Of Divorce which decree in pertinent part provided:

IT IS FURTHER ORDERED, ADJUDGED AND DECREED that Sharon J. Switzer and Danny Hall Switzer be, and they are hereby, ordered and directed to perform all terms and conditions contained in the Agreement entered into by and between them and attached hereto as Exhibit “A” and fully incorporated into this decree in words and figures.

The agreement attached to the decree as Exhibit “A” is that from which we have quoted above.

As fate would have it, Danny failed to make any payments on the house, which were in the amount of $488.97 per month. Notwithstanding, he continued to reside there.

On May 27, 1983, Sharon commenced the instant proceedings in which she sought an adjudication that Danny was in contempt of court for his violation of the property settlement agreement incorporated as it was into the final decree of divorce. The matter came on for hearing on June 6, 1983, before the Honorable Billy G. Bridges, Chancellor, whereupon the parties stipulated that Danny had continued to reside in the house through the middle of May of 1983, that he had made none of the monthly note payments with respect to the indebtedness secured by the home since September 1, 1982, and that the arrearage as of May 31, 1983, including costs incident to a then pending foreclosure was $5,128.30. The Chancellor found that Sharon was responsible for the June 1, 1983, payment in the amount of $488.97.

In this state of the record, the Chancellor entered his decree adjudging Danny Hall Switzer to be in wilful and contumacious contempt of court

for his being in arrears in the house payments and foreclosure charges in the sum of $5,128.30 on this date.

The Chancellor awarded Sharon attorneys fees in the amount of $350.00 plus court costs in the amount of $37.00 rendering a total sum due and owing from Danny in the amount of $5,515.30. The Chancellor thereupon ordered Danny Hall Switzer committed to the custody of the Sheriff of Rankin County, Mississippi, until such time as he should purge himself of his contempt by payment of the aforesaid sum of $5,515.30.

Danny has now perfected his appeal to this Court where the matter is ripe for review.

The first red herring we need lay to rest is that the property settlement agreement somehow remains only a contract and is not a part of the final decree of divorce subject to enforcement via contempt. That proposition is wrong as a matter of law and is certainly wrong when the particulars of this case are considered.

Our Irreconcilable Differences Divorce Act contemplates that the parties will negotiate a settlement of all matters, including a division of property and respective rights and responsibilities in relation thereto. Miss.Code Ann. § 93-5-2 (Supp.1984). The statute further contemplates that this property settlement agreement will be filed with the court before a final decree may be entered.

When the statute has been complied with, the custody, support, alimony and property settlement agreement becomes a part of the final decree for all legal intents and purposes. This is so, whether the agreement is copied verbatim into the text of the decree, whether it is attached as an exhibit and incorporated by reference, or whether it is simply on file with the clerk of the court. If the agreement is sufficient to comply with the statute, that is enough to render it a part of the final decree of divorce the same as if a decree including the same provisions as may be found in the property settlement agreement had been rendered by the Chancery Court following a contested divorce proceeding.

We have heretofore held that, for purposes of subsequent modification proceedings, alimony and child support provisions found in an agreement made incident to an irreconcilable differences divorce are treated the same as though the chancellor had made the award after a contested divorce trial. Marascalco v. Marascalco, 445 So.2d 1380, 1381-1382 (Miss.1984); Tedford v. Dempsey, 437 So.2d 410, 417 (Miss.1983); Taylor v. Taylor, 392 So.2d 1145, 1147-1149 (Miss.1981). There is no reason on principle why a property settlement provision such as that in controversy here should not be similarly treated as though it were a part of the divorce decree. See Rhodes v. Rhodes, 420 So.2d 759, 760 (Miss.1982).

As a matter of law, a property settlement prepared and filed in compliance with the statute can never be a document extraneous to the final decree. Compare Morgan v. United States Fidelity and Guaranty Co., 191 So.2d 851, 853-854 (Miss.1966). This rule is compelled by the logic implicit in Section 93-5-2. Any other rule would exalt form over substance and inevitably produce arbitrary and inequitable results.

This is not to say that, in addition to its taking on all of the attributes of a final decree of the Chancery Court, the property settlement agreement may not also provide for contract remedies. Furthermore, wholly consistent with what we say here is that, where ambiguities may be found, the agreement should be construed much as is done in the case of a contract, with the court seeking to gather the intent of the parties and render its clauses harmonious in the light of that intent. See Owen v. Gerity, 422 So.2d 284, 288 (Miss.1982); Hoar v. Hoar, 404 So.2d 1032, 1035 (Miss.1981); Roberts v. Roberts, 381 So.2d 1333, 1335 (Miss.1980).

Danny Hall Switzer argues at length that the sort of property settlement provisions with which we are here concerned are different from provisions for alimony or child support in that the latter are subject to modification while the former are not. Our attention is called to Logue v. Logue, 234 Miss. 394, 106 So.2d 498 (1958); Stone v. Stone, 385 So.2d 610 (Miss.1980); Taylor v. Taylor, 392 So.2d 1145 (Miss.1981) to the effect that the part of the separation agreement which deals with a property settlement where supported by valid considerations may not be modified. The point escapes us. That such a provision may not be modified in no way negates the power of the court to enforce it via contempt or any other remedy otherwise available in aid of the enforcement of judgments and decrees.

Finally, we have considered carefully Danny’s argument that the decree is sufficiently vague that it is not enforceable via contempt proceedings. To be sure, we recognize that no charge of contempt will be sustained where the final decree is insufficient to advise the party affected in clear and unequivocal language of that which he has been ordered to do. Owen v. Gerity, 422 So.2d 284, 288 (Miss.1982); Hoar v. Hoar, 404 So.2d 1032, 1035 (Miss. 1981). We recognize that with respect to certain aspects of the treatment of the residence in question, the agreement may have been more artfully drawn. In our view, however, there is only one way to read the sentence

HUSBAND shall have the responsibility and obligation to pay the indebtedness on the property inclusive of principal, interest, taxes and insurance.

There is nothing in the agreement that could be construed to relieve the husband of this obligation so long as he resides on the premises. This is the way the Chancellor read the agreement and, we are satisfied, this is the only sensible way to read it.

In the above context, we note that the record reflects that Danny Hall Switzer has, since the final decree of divorce was entered August 26, 1982, paid not one penny toward the indebtedness secured by the home, although he has continued to live there through the middle of May of 1983. Switzer offered nothing to show an inability to pay or to establish a reasonable excuse for his non-performance. He has been correctly adjudged in contempt of court. Rhodes v. Rhodes, 420 So.2d 759, 760 (Miss.1982).

AFFIRMED.

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


source: Caselaw Access Project

author: WALKER, Presiding Justice,

license: Public Domain

text:
    Jerry COMPTON v. STATE of Mississippi.
    No. 55221.
    Supreme Court of Mississippi.
    Dec. 5, 1984.
    J. Norman Brown, Forest, for appellant.
    Edwin Lloyd Pittman, Atty. Gen., by Henry C. Clay, III, Sp. Asst. Atty. Gen., Jackson, for appellee.
    Before WALKER, P.J., and BOWLING and PRATHER, JJ.
   WALKER, Presiding Justice,

for the Court:

This is an appeal from the Circuit Court of Scott County, Mississippi, wherein appellant was indicted, tried and convicted of burglary and sentenced to a term of six (6) years in the custody of the Mississippi Department of Corrections. Aggrieved with the lower court’s holding, he has perfected his appeal to this Court.

On July 1, 1983, a Saturday, Henry Arnold discovered an unoccupied home owned by him and his wife and located in Scott County, Mississippi had been broken into. Entry was obtained through a rear window. Numerous musical instruments as well as other household items were discovered missing. The preceding Thursday Arnold had been to the home at which time all the items were present.

On August 7, 1983, Officer Will Reed, deputy sheriff with the Scott County Sheriffs Office and investigating officer of the alleged burglary, was approached by the appellant at the Oakdale Apartments. Through information from a reliable source, the appellant was considered a suspect at the time. He voluntarily went with Reed to the Scott County Sheriffs Office where he confessed to the crime following his Miranda warnings.

Compton was indicted along with Gary Glen Hopper and Bobby Blackley. A motion for severance was granted, and Compton was tried for his alleged participation in the crime. Following a jury trial, a verdict was returned finding appellant guilty as charged.

I.

THE TRIAL COURT COMMITTED REVERSIBLE ERROR IN OVERRULING APPELLANT’S MOTION FOR A MISTRIAL ON THE GROUND THAT THE COURT, DURING ITS VOIR DIRE, STATED TO THE JURY PANELS THAT THE DEFENDANT’S COUNSEL WAS COURT APPOINTED.

The voir dire examination is not made a part of the record on appeal. Following voir dire proceedings, the appellant moved for a mistrial as the court’s mentioning counsel for appellant was court appointed might prejudice the jurors’ thinking against both he and counsel.

The court stated that he mentioned the attorney’s name as a court appointed attorney trying to help him thinking that in unpopular cases, often times, a local young attorney can benefit from an announcement that he has been appointed and has no choice in the case. The court then asked counsel if he wished to produce testimony showing prejudice. Counsel declined to offer such testimony.

Appellant cites to Sanders v. State, 429 So.2d 245 (Miss.1983) wherein this Court condemned the practice of attorneys making reference to the fact that they are court appointed. We cited United States v. Naylor, 566 F.2d 942 (5th Cir.1978) in support of our statement. In Naylor the defendant assigned as error a remark made by defense counsel in his opening statement that he had been court appointed. The court noted that while such was not commendable practice, it was not error.

Although we find both attorneys as well as judges should not make reference to the fact one is court appointed, we do not find such reference constitutes reversible error in this case but restate that great caution should be taken in informing jurors that an attorney represents his client as a court appointed attorney.

II.

THE TRIAL COURT COMMITTED REVERSIBLE ERROR IN ALLOWING THE DEFENDANT’S WRITTEN STATEMENT INTO EVIDENCE SINCE THAT STATEMENT WAS TAINTED AND INADMISSIBLE BECAUSE OF A PREVIOUSLY OBTAINED STATEMENT IN WHICH NO MIRANDA WARNINGS WERE GIVEN.

Appellant contends his written confession was inadmissible as it was given after a prior oral confession was made without the benefit of Miranda warnings. This oral confession, he contends, was made to Officer Reed who briefly questioned the appellant concerning a house burglary.

In the presence of the jury, Officer Reed testified he saw the appellant at approximately 7:30 p.m. on August 7, 1983, the same day the written confession was obtained. The appellant walked up to him and before Reed could ask any questions, the appellant started telling him about the crime. Reed stated the defendant tried to tell him of the crime, but he refused to listen.

Outside the jury’s presence, Reed testified he had obtained information from a reliable source that Compton was involved in the burglary. On August 7 he saw the appellant, a suspect in the case, at the Oakdale Apartments. “I got out of the car, and I went to tell him I wanted to talk to him, and before I could tell him, he said he wanted to confess to it.” Reed denied questioning the appellant of his part in this particular case until they arrived at the sheriffs office where Compton was advised of his rights. Reed did, however, state: “I just asked him did he know anything about a house being broken into.... Before I could get through asking him about the house burglary, he was wanting to confess about the house burglary.” According to Reed the appellant voluntarily accompanied him to the sheriffs office.

Objection to the written confession was overruled.

Appellant cites Brunson v. State, 264 So.2d 817 (Miss.1972) in support of his contention. In Brunson two confessions were obtained from the defendant, the first confession without Miranda warnings being given. The case however is readily distinguishable from the factual situation before us now as in Brunson this Court determined that the confessions were not admissible as the defendant was under arrest at the time his first confession was obtained without being advised of his Miranda warnings.

The ruling in Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966) comes into play during custodial interrogations, defined as questioning initiated by law enforcement officers after a person has been taken into custody or otherwise deprived of his freedom of action in any significant way.

In United States v. Montos, 421 F.2d 215 (5th Cir.1970), cert. denied, 397 U.S. 1022, 90 S.Ct. 1262, 25 L.Ed.2d 532 (1970), the court stated:

If the interrogation was not “custodial,” however, a failure by those questioning the defendant to give the Miranda warnings will not require suppression of evidence obtained as a result of such questioning.

421 F.2d 222.

The Montos court also noted that the Miranda procedures are not meant to preclude law enforcement personnel from performing their traditional investigatory functions such as general on the scene questioning as to facts surrounding a crime or other general questioning of citizens in the fact-finding process and further stated:

Where the line between “general investigation” and “custodial interrogation” is crossed is not capable of precise demarcation. Each case will turn upon its own particular facts.
421 F.2d 223.

Also see Pennington v. State, 437 So.2d 37 (Miss.1983).

Under the facts of this case, the appellant was not in custody at the time he initially spoke with Reed and thus Miranda does not come into play and therefore the second confession being voluntarily made was admissible into evidence.

We find appellant’s remaining assignments of error to be without merit.

Finding no errors in the court below, the cause is hereby affirmed.

AFFIRMED.

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


author: PER CURIAM.

text:
    Mack McWHORTER, etc., et al. v. James Harmon WILLIAMS, et al.
    83-492.
    Supreme Court of Alabama.
    Nov. 9, 1984.
    Charles A. Graddick, Atty. Gen., and B. Frank Loeb, Chief Counsel, and Ron Bow-den, Asst. Counsel, Dept, of Revenue and Asst. Attys. Gen., and J. Knox Argo of Argo & Enslen, Montgomery, for appellants.
    David B. Byrne, Jr. and John M. Bolton III of Robison & Belser, and Morris S. Dees and Walter B. Chandler of Chandler & Poole, Montgomery, for appellees.
   PER CURIAM.

This case involves the proper interpretation of House Joint Resolution 153, 1979 Legislature. The proper interpretation of H.J.R. 153 will determine, in turn, the current use value of property in Montgomery County, Alabama, for the tax years of 1978-79, 1979-80, and 1980-81. Plaintiff Taxpayers interpret the resolution one way. The State interprets it another way. The trial court agreed with the Taxpayers’ interpretation. We affirm.

This is the fourth time this case has been before us. For purposes of this fourth and final time, only one of our previous encounters with it is relevant. On October 1, 1979, Plaintiff Taxpayers filed a class action against various officers and employees of Montgomery County and the State of Alabama charged with assessing and collecting ad valorem taxes. The Plaintiff class consisted of all land owners of rural Montgomery County cropland, pastureland, or timberland who had been assessed and had incurred ad valorem tax liability. Plaintiff Taxpayers prayed for a judgment declaring that Defendants had failed to comply with the legislative mandate for ad valorem tax assessment of their lands. Specifically, Plaintiffs alleged that Act No. 135, 1978 Ala. Acts (subsequently codified at Code 1975, § 40-7-25.1, et seq.) mandated that their land be assessed at current use value, and that Defendants had assessed it at fair market value. Plaintiffs also sought a writ of mandamus requiring Defendants to comply with Act No. 135. The Montgomery County Circuit Court found that Defendants had illegally refused to comply with Act No. 135 and issued a judgment for Plaintiff Taxpayers. Defendants eventually appealed to this Court.

We affirmed the circuit court’s judgment in part, reversed in part, and remanded the case to the circuit court. Eagerton v. Williams, 433 So.2d 436 (Ala.1983). We agreed with the circuit court that the legislative intent of Act No. 135 was a current use valuation, and that Defendants had illegally used a fair market valuation in assessing Plaintiffs’ ad valorem taxes. We ordered Defendants to reassess the ad va-lorem taxes on Plaintiffs’ lands, using a current use valuation. Furthermore, we found that the current use formula set out in House Joint Resolution No. 153, 1979 Alabama Legislature, was consistent with the legislative intent behind Act No. 135. Therefore, we ordered that Defendants use the H.J.R. No. 153 formula in reassessing Pláintiffs’ ad valorem taxes. Finally, we ordered that, after the reassessments, each Plaintiff Taxpayer should receive a refund “equal to the difference between ad valo-rem taxes previously paid and the amount of taxes due as figured under the new schedule.” Eagerton at 450.

On remand, Plaintiffs and Defendants disagreed over the proper interpretation of the H.J.R. No. 153 current use formula. The Resolution sets forth a mathematical formula and also contains a table for 1978 as an apparent example of how the mathematical formula should work for that year. However, the current use values arrived at by working through the mathematical formula are considerably higher than the current use values set forth in the 1978 example table. The discrepancy appears to be due to the fact that the mathematical formula requires the use of cropland budgets that have not had a return to management factored out of them. Both Plaintiffs and Defendants agree that a return to management should be factored out, but they disagree on what percentage the return to management should be. Defendants proposed that the proper return to management was 10% and that the cropland budgets should be reduced by 10% to reflect this. Plaintiffs, on the other hand, argued that the proper percentage discount could be found by inference in the 1978 table. The legislature intended, Plaintiffs argued, a percentage return to management (approximately 40%) sufficient to reduce the current use values of their land to that set forth in the table. Once again, the circuit court found for Plaintiff Taxpayers and Defendants appealed.

After careful review of the entire record, including all previous proceedings before this Court, and after due consideration of the respective contentions of the parties, we are of the opinion, and we so hold, that the trial court’s order is in substantial compliance with this Court’s mandate in Eager-ton, supra. Thus, the judgment appealed from is affirmed.

AFFIRMED.

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

FAULKNER and BEATTY, JJ., dissent.


text:
    Ex parte DUNCAN CONSTRUCTION CO., INC. (In re DUNCAN CONSTRUCTION CO., INC. v. R & P PROPERTIES, et al. R & P PROPERTIES v. AMERICAN STATES INS. CO. and R & P PROPERTIES v. BILECO, INC., et al.)
    83-1231.
    Supreme Court of Alabama.
    Nov. 9, 1984.
    Willis C. Darby, Jr. of Darby & Myrick, Mobile, for petitioner.
    J. Don Foster of Foster, Brackin & Bolton, Foley, for R & P Properties.
    Robert H. Smith of Collins, Galloway & Smith, Mobile, for Bileco, Inc.
    Philip H. Partridge and Vincent A. Nolet-to, Jr., of Brown, Hudgens, Richardson, Mobile, for Perry A. Hand Engineering & Surveying, Inc.
   PER CURIAM.

Duncan Construction Co., Inc., petitions for a writ of mandamus directing the Circuit Court of Baldwin County to set aside its order of June 19, 1984, wherein the court severed all third-party claims from the consolidated action pending before it.

THE FACTS

On June 8, 1981, Bileco, Inc., made an offer to R & P Properties for the construction of the Executive House Condominium at Gulf Shores, Alabama, the construction work to be performed by Duncan, a wholly-owned subsidiary of Bileco. On August 25, 1981, Duncan entered into a contract with R & P whereby Duncan would construct the Executive House Condominium.

Three lawsuits resulted: 1) On November 22, 1982, Duncan filed its complaint against R & P Properties, the individual members of the R & P general partnership, the First National Bank of Jefferson Parish (Louisiana), and the owners of the individual condominium units. The complaint sought payment of monies owed Duncan for construction of the Executive House. This complaint was amended on June 10, 1983, to add as third-party defendants (because of R & P’s counterclaim against Duncan) Acorn Building Components and Perry A. Hand Engineering and Surveying, Inc. 2) On February 16, 1983, R & P filed suit against American States Insurance Company for judgment on the performance bond issued to Duncan by American States. 3) On August 25, 1983, R & P sued Bileco, Inc., alleging breach of the contract terms requiring timely construction in a workmanlike manner. Duncan was added as a defendant by amendment.

Upon motion of R & P, the three actions were consolidated. In its answer to R & P’s amended complaint, Duncan enumerated its counterclaims against R & P and its claims against Bileco, and added six third-party defendants: Woolward Brothers Plastering Co; Vannerson & Company, Inc. (supplier of sliding glass doors); C. Frederick Brave (architect); and Dewey W. White, Norene White, and R.C. Craft, Jr. (owners of and partners with Bileco in the Executive House project).

As grounds for its “Motion to Strike Third Party Complaints or in the Alternative to Sever Same,” R & P alleged that allowing the third-party complaints to proceed would delay the trial, cause interest expenses and other damages, “unduly complicate an already complex case; make it more difficult for all parties to try the case; make the trial much lengthier; and be more likely to confuse the jury.”

A responsive motion, filed by Perry A. Hand Engineering and Surveying, requested the court to either deny R & P’s motion to strike or to strike all third-party complaints in order to prevent “piecemeal presentation of the various claims for indemnity.” Duncan’s brief in opposition to R & P’s motion stated that the striking or severing of the third-party claims “would defeat the purpose of Rule 14” by burdening the parties with two trials and the “substantial risk of incurring inconsistent obligation.”

The circuit court’s order granting R & P’s motion states:

“Upon motion of R & P Properties to strike the third-party defendants brought in by Duncan Construction Company, or in the alternative to sever same, the Court has reviewed the entire file and finds that the case will be unduly complicated and very difficult for the jury to comprehend if any third-party defendants are allowed to remain in the case as consolidated; now, therefore,
“It is hereby ORDERED that all third-party claims brought by any of the parties in this case are hereby severed from the cases heretofore consolidated by order of this Court. The cases as consolidated will proceed to trial when scheduled by the Court.”

THE ISSUE

The sole issue presented to this Court is whether the circuit court’s severance action was permissible under Rule 14, A.R.Civ.P. We find that it was not; accordingly, we grant the writ.

An order of severance is the result of a trial court’s exercising its discretion in considering a motion to strike, sever, or separate a third-party claim brought under Rule 14. Duncan’s petition, therefore, correctly initiates this Court’s review in determining whether the circuit court abused its discretion in severing the third-party claims.. See G. McLeod, Trial Practice and Procedure in Alabama, Severance or Separate Trials, p. 194 (1983).

Our review, however, may not reach beyond whether the trial court clearly abused its discretion in severing the third-party claims, and, absent a showing of such clear abuse, the trial court’s order will not be disturbed. Ex parte Guerdon Industries, Inc., 373 So.2d 322, 324 (Ala.1979). We are deliberately judicious in allowing petitions for mandamus, because mandamus is a drastic and extraordinary remedy; and, while it will lie “to compel the exercise of discretion,” it may not compel that exercise “in a particular manner except where there is an abuse of discretion,” State v. Cannon, 369 So.2d 32, 33 (Ala.1979), or “when there is a clear showing that the trial court ... exercised [its discretion] in an arbitrary or capricious manner.” Ex parte Hartford Insurance Co., 394 So.2d 933, 936 (Ala.1981).

Rule 14 authorizes a defending party, such as Duncan, to bring into the pending action a new party who is alleged to be ultimately liable for the claims asserted by the original plaintiff against the defendant. The purpose of this third-party practice (otherwise known as “impleader”) is

“to avoid multiple suits, to allow an entire controversy to be disposed of in one action, thereby saving time and cost and avoiding the serious handicap to the defendant of a time difference between the judgment against him and the judgment in his favor against the party liable over to him. Campbell Contr. Eng’rs, Inc. v. Water Works and Sewer Bd. of the City of Prichard, Ala., Inc., 52 Ala.App. 129, 290 So.2d 194 (1974).” Ozley v. Guthrie, 372 So.2d 860, 861 (Ala.1979).

The Rule goes on to provide that “any party may move to strike the third-party claim, or for its severance or separate trial.” In ruling on a motion to strike or sever, the trial court must weigh the need for one trial involving all issues and parties in furtherance of the stated purpose of the rule against the risk of substantial prejudice to the original parties resulting from an undue complication of issues and evidence because of the addition of the third-party defendants.

When viewed in the light of this “balancing” test, the circuit court’s severance order cannot stand. While the order states that the court “finds that the case will be unduly complicated and very difficult for the jury to comprehend” if the third-party claims are allowed, nowhere does the court set out particular facts or findings in support of its conclusion, nor does the record support such a conclusion.

Neither does the court indicate how the presumed complexity of the issues and the jury’s difficulty in comprehension will result in hardship or prejudice to any party if the third-party claims are tried with the original actions. Further, a finding of complexity alone does not automatically entitle a party to the severance of third-party claims. “The intent of the rules is that all issues be resolved in one action, with all parties before one court, complex though the action may be.” Lasa per L’Industria del Marmo Soc. per Azioni v. Alexander, 414 F.2d 143, 147 (6th Cir.1969).

We find no factual or legal grounds supporting the trial court’s conclusions. We are constrained, therefore, to hold that the court’s severance of all third-party claims was done in an arbitrary manner and amounts to an abuse of that court’s discretion.

Third-party practice, as available under Rule 14, is particularly viable in cases such as this, where the alleged liability of a general contractor has its origin in the defective performance of one or more of the numerous subcontractors or suppliers. Without impleader, a contractor found in breach of the contract and liable for the resulting damages must then initiate one or more actions to determine the liability of the subcontractors and suppliers. The witnesses and evidence presented in these subsequent actions will be substantially identical to those in the first trial, as will the posture of the issues themselves, as well as the factual and legal questions to be resolved.

Indeed, the instant case is an excellent example of a “unitary problem” which the Court has held will normally preclude severance by the trial court. See Robinson v. Computer Servicenters, Inc., 360 So.2d 299, 302 (Ala.1978), for a case referencing the “unitary problem” in the context of a Rule 21 severance.

We hold that the trial court’s severance of the third-party claims from the consolidated actions was a clear abuse of its discretion and was impermissible under Rule 14, A.R.Civ.P.

WRIT GRANTED.

All the Justices concur except ALMON and SHORES, JJ., not sitting.

      . “Our Rules of Civil Procedure are based upon, and are strikingly similar to, the Federal Rules of Civil Procedure. Because these two sets of Rules are virtually verbatim, a presumption arises that cases construing the Federal Rules are authority for construction of the Alabama Rules." Assured Inv’rs Life Ins. Co. v. National Union Associates, Inc., 362 So.2d 228, 231 (Ala.1978).


author: ALMON, Justice.

text:
    Ex parte Robert L. EDWARDS. (In re: Robert L. EDWARDS v. SEABOARD COAST LINE RAILROAD CO.).
    83-1390.
    Supreme Court of Alabama.
    Nov. 9, 1984.
    W. Eugene Rutledge and Clyde E. Riley of Rutledge, Fay & Kelly, Birmingham, for petitioner.
    F. Saunders Aldridge, III of Hunter, MacLean, Exley & Dunn, Savannah, Ga., and Randall A. Jordan of Nightingale, Liles, Dennard & Jordan, Brunswick, Ga., and James L. Clark of Lange, Simpson, Robinson & Somerville, Birmingham, for respondent.
   ALMON, Justice.

This petition for writ of mandamus raises a question of the authority of a circuit judge of this State to grant an order authorizing a party to take a deposition as part of a multi-party, multi-jurisdictional deposition to be taken before a federal magistrate in another state. The instant action is a suit against Seaboard Coast Line Railroad Company by Robert L. Edwards based on injuries allegedly suffered due to exposure to asbestos while Edwards was in the employment of Seaboard.

The deposition in question is that of a doctor from California, allegedly a medical expert in the field of asbestos-related diseases. A federal district court in Virginia ordered that the deposition be taken and videotaped in Kansas City, Missouri. Seaboard, in its motion for an order authorizing the deposition in Edwards’s action, stated that “Several hundred related cases are pending against the defendant and other railroad defendants in various state and federal courts. Consequently, the deposition is intended to be multi-jurisdictional in nature.”

Prior to the filing of Seaboard’s motion, Edwards refused to enter into a stipulation that the deposition would be taken. Edwards opposed the motion, but the trial court authorized the deposition. Edwards filed this petition for writ of mandamus, together with a motion to stay the order authorizing the deposition.

The time scale of these proceedings has been very compressed. Edwards first learned of the proposed stipulation on August 31; the trial court entered the order authorizing the deposition on September 10; Edwards filed this petition and motion for stay on September 11; a “discovery deposition” of the doctor was held in California on September 12; the case was submitted in this Court on the petition, answer, and briefs on September 26; and this Court granted the stay on September 27. The deposition was scheduled to begin on October 1, and nothing has been filed in this Court to indicate that it was postponed.

In considering the motion for stay, this Court was aware that disposition of that motion would effectively decide the petition. Our consideration of the merits at that time led to the conclusion that no provision of Alabama law, whether statute or rule, gave the circuit court the authority to enter the order authorizing the deposition over Edwards’s objection.

The federal courts operate under statutes and rules which provide for both mul-ti-district consolidation or transfer and supervision by magistrates of pretrial proceedings. For example, 28 U.S.C. § 1407, “Multidistrict litigation,” begins: “When civil actions involving one or more common questions of fact are pending in different districts, such actions may be transferred to any district for coordinated or consolidated pretrial proceedings.” Rule 72, Fed. R.Civ.P., and 28 U.S.C. § 636 provide for and govern the reference of pretrial proceedings to magistrates.

Alabama law contains no parallels to these practices. To the extent our law touches upon such matters, it is quite contrary to the procedure contemplated by the federal provisions. Our rules contemplate supervision of depositions and discovery only by the trial court. Rules 30 through 37, A.R.Civ.P. They contain no provision for magistrates as in federal rule 72. Rule 42, A.R.Civ.P., mentions only consolidation of “actions involving a common question of law or fact ... pending before the court.” Thus, the rule provides for consolidation of actions only within a circuit, not among circuits.

Seaboard cites no authority tending to defeat the proposition that the trial court exceeded its authority in granting the order allowing the deposition arranged in a Virginia federal court to pertain to this action. Edwards seeks a writ of mandamus ordering the trial court to set aside its order of September 10. We agree that the court had no authority to enter that order and therefore grant the writ.

WRIT GRANTED.

All the Justices concur.


text:
    B.R. LANDERS v. E.P. JOHNSON.
    83-130.
    Supreme Court of Alabama.
    Nov. 21, 1984.
    William L. Chenault III of Chenault, Hammond & Buck, Decatur, for appellant.
    Charles L. Murphree of Caddell, Shanks, Harris, Moores & Murphree, Decatur, for appellee.
   PER CURIAM.

Because Appellant’s/Defendant’s counterclaim failed to assert a claim upon which relief could be granted, and because the alleged error regarding prejudgment interest was not preserved for appellate review, the judgment appealed from is affirmed.

AFFIRMED.

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


author: MADDOX, Justice.

text:
    Arnetta YORK, Richard L. Allen, et al. v. BOARD OF SCHOOL COMMISSIONERS OF MOBILE COUNTY, Alabama; Dan C. Alexander, et al.
    83-323.
    Supreme Court of Alabama.
    Nov. 21, 1984.
    James U. Blacksher and Gregory B. Stein of Blacksher, Menefee & Stein, Mobile, for appellants.
    Jon A. Green of Sintz, Pike, Campbell & Duke> Mobile, for appellees.
   MADDOX, Justice.

This is a case involving non-renewal of the employment contracts of non-tenured teachers pursuant to Code 1975, § 16-24-12. The specific legal issue presented is whether the statutory language of § 16-24-12 requires that a school Board give individual consideration to teachers whose contracts are being considered for non-renewal and spread their names upon the minutes of its meeting.

In 1979, the Mobile County Board of School Commissioners (hereinafter the Board) established a policy whereby it would not renew the contracts of non-tenured teachers who failed to present their superintendent with an acceptable score on the National Teacher’s Examination (NTE). Plaintiffs/appellants were non-tenured teachers who had been employed by the Board for periods of one to three years. All had entered into a contract for the 1981-82 school year, which provided as follows:

“Continued employment is dependent upon you [sic] taking the National Teacher’s Examination during the next scheduled test date and submitting an acceptable test score to the Personnel Office.”

It is undisputed that none of the plaintiffs presented an “acceptable test score.” It is also undisputed that on or about May 21, 1982, each Board member received an agenda for the Board’s upcoming May 26, 1982, meeting, and that one item on that agenda was consideration of the superintendent’s recommendation that the contracts of all 106 non-tenured teachers who had failed to present an acceptable NTE score not be renewed for the upcoming school year. It is also undisputed that on May 21 each Board member received a letter containing the names of all teachers, including plaintiffs, who were subject to non-renewal. The Board met and approved the superintendent’s recommendation on May 26,1982. Thereafter, all of the affected teachers, including plaintiffs, received proper notice of the non-renewal of their contracts.

On October 27, 1982, plaintiffs brought suit against the Board and its members, alleging that, in failing to renew their contracts, the Board had violated Code 1975, § 16-24-12. Specifically, they asserted that the Board had failed to consider each of the dismissed teachers individually, and had failed to “spread” its decision on the minutes of its May 26 meeting, and to include their names in those minutes. On this basis, plaintiffs filed a motion for a preliminary injunction, which was heard by the court on December 3, 1982, and denied on December 22, 1982, the court finding that “Plaintiffs did not establish that plaintiffs’ contracts were non-renewed in violation of Section 16-24-12_”

Pursuant to Rule 65(a)(2), Ala.R.Civ.P., the parties agreed that the evidence presented at the injunction hearing, plus several depositions taken subsequent thereto, should be considered as the testimony taken at trial. The aforesaid testimony was then submitted to the circuit court, along with each party’s proposed findings of fact and conclusions of law. On November 8, 1983, the circuit court ruled in the Board’s favor, finding no violation of § 16-24-12.

Plaintiffs appeal here, restating their earlier contention that, even though the Board considered them, along with the other teachers who had not presented acceptable test scores, as a group, its failure to individually consider and rule upon each teacher’s non-renewal and failure to evidence that individual consideration in its minutes constituted a violation of § 16-24-12. Under the present facts, we find no error and affirm.

Section 16-24-12 provides, in pertinent part:

“The employing Board of education shall not cancel the contract of any teacher in continuing service status, nor cause notice of nonemployment to be given to any teacher whether in continuing service status or not except by a vote of a majority of its members evidenced by the minute entries of said Board made prior to or at the time of any such action.”

For their interpretation of this section, as applied to their cases, plaintiffs rely on three cases, Ex parte Hayes, 405 So.2d 366 (Ala.1981), Shelton v. Lauderdale County Board of Education, 380 So.2d 835 (1980), and Board of Education v. Baugh, 240 Ala. 391, 199 So. 822 (1941). We are of the opinion that all three cases relied upon by the plaintiffs are clearly distinguishable from the case sub judice.

In Baugh, supra, this Court stated, in general terms, that “[t]he County Board of Education speaks through its records or written memorials”, 240 Ala. at 395, 199 So. at 825, and that “if [a] teacher is not to be retained for another year such teacher has the right to expect that such matter be determined upon the judgment of the County Board, as expressed in its written memorials,” id. That case, however, dealt with a factual situation completely dissimilar from the present one.

In Baugh, the Board gave the superintendent general authority to notify non-tenured teachers that their contracts would not be renewed, leaving to the superintendent’s discretion those who would not be re-employed. Prior to the superintendent’s actions, the Board neither voted for non-renewal nor even knew the names of those whose' contracts would not be renewed. After the affected teachers were notified of their non-renewal, the Board sought to ratify the superintendent’s exercise of discretion by including in its minutes its vote approving the non-renewals. It was this attempted delegation of discretion to the superintendent by the Board that this Court found objectionable; consequently, the Court properly held that the Teacher Tenure Act does not provide for notice of non-renewal by the superintendent, and subsequent ratification by the Board. Baugh, 240 Ala. at 395, 199 So. at' 825.

Similarly, in Shelton, supra, the Board attempted to retroactively approve the non-renewal of a non-tenured teacher. Again, this Court held that even though the Board had access to the names of those subject to non-renewal prior to the superintendent’s notification of the affected teachers, the Board’s retroactive approval was ineffective. This Court stated that “[t]he current statute [§ 16-24-12] does affirmatively require a minute entry reflecting the vote of a majority of the employing Board’s members to ‘cause notice of non-employment to be given.’ ” Shelton at 837 (emphasis original).

Plaintiffs are correct that in Hayes, supra, this Court cited Baugh and stated, in dicta, that the Board “must weigh and make a determination [as to continued employment of a non-tenured teacher] on the facts in each individual case and spread that decision on its minutes.” (Emphasis added.) It is largely this sentence taken from Hayes, supra, upon which plaintiffs base their primary claim. We admit that this language is supportive of plaintiffs’ argument, but this single sentence should not be read out of the context in which it was written, a context, again, dissimilar from the present one. In Hayes, unlike the present case, a non-tenured teacher was terminated during the pendency of an ongoing contract, without a hearing and, as in Baugh and Shelton, with only retroactive approval by the Board.

In the present instance, unlike Baugh, Shelton, and Hayes, the Board members were informed of those teachers who had failed to pass the examination and who were, therefore, recommended for non-renewal; the Board knew the reason for the recommendation, and voted to approve the recommendation for non-renewal prior to the superintendent’s notification of the affected teachers. The Board’s vote approving the recommendation of non-renewal of all teachers in a previously determined objective class — those not having presented acceptable scores — was a majority vote causing notice of non-employment to be given, Shelton, supra, and was evidenced by the following minute entries:

“Approval of Substitute Motion on Non-Renewal of Conditional Contracts Due to NTE Requirements and Postponement of Priority Order for Employment
“Mr. Bosarge moved ‘to approve the recommendation regarding non-renewal of conditional contracts due to the NTE requirement as described in the first paragraph of Exhibit M; to delete the remainder of the recommendation, with the stipulation that the recommendation on priority order for rehiring as relates to NTE requirement is to be brought back to the next Board meeting.’
“Mr. Alexander called for the vote on Mr. Bosarge’s substitute motion. The votes were as follows:
“ ‘Aye’ — Dr. Berger, Mrs. Drago
“ ‘No’ — Mr. Cox, Dr. Gilliard
“ ‘Abstain’ (voiced) — Mr. Bosarge
“ ‘Not voting’—
“There being a tie vote, Mr. Alexander voted ‘Aye,’ and declared the motion carries.”

Although we realize that the primary purpose of § 16-24-12 is to protect teachers, we are not unmindful of the administrative burdens created by the statute. Shelton at 837. While we will construe § 16-24-12 to effectuate the clearly expressed intent of the legislature, id., we are hesitant to impose a requirement not so expressed.

As to plaintiffs’ claim that the name of each individual teacher was not considered, we quote from the trial judge’s findings in that regard:

“The Board members considered the individual teachers who were subject to the Superintendent’s recommendation prior to voting on the recommendation. The evidence established that a number of teachers on the list were known to Board members or that the Board members inquired of the staff about the teachers. Each Board member was satisfied that he/she was well acquainted with the facts and circumstances at the time of the vote on May 26.”

We cannot say that these findings of fact are clearly and palpably incorrect and not supported by the evidence.

As to plaintiffs’ argument concerning spreading the names on the minutes, we note that, other than the dicta in Hayes, this Court has never spoken of this requirement. Rather, this Court has only required, as § 16-24-12 provides, that the evidence of the majority vote be recorded in the minutes. Shelton, supra. It is without question that this was done here. Neither § 16-24-12 nor Baugh, Shelton, or Hayes requires that the name of each individual in the affected group appear in the minutes proper. This is especially true where, as the trial court here found, “[the] names were made a part of the record of that meeting where they were considered,” and are thus part of the Board’s records and/or written memorials.

We reached a similar result in Holcombe v. County Board of Education, 242 Ala.20, 4 So.2d 503 (1941). Although Hol-combe is also distinguishable, because of the fact that the statute under which it was decided, the predecessor of § 16-24-12, contained no requirement that the Board’s vote be evidenced by the minutes, Shelton at 837, the holding in Holcombe is helpful here.

In Holcombe, the Board met and discussed the question of re-employment of teachers. The Board determined that certain teachers should not be re-employed and directed in writing that its secretary give written notice to those who were not to be re-employed. That written direction was on file among the Board’s records, and the teachers were given written notice in due time of the Board’s action. The court held that there was substantial compliance with the Teacher Tenure Act by the Board even though the direction to the secretary was not in the form of a resolution by the Board and was not spread on the minutes of the Board. The Court opined:

“The argument is further made that the direction was but the individual action of the members and not of the Board, and it seems to be the insistence there should have been a resolution passed in due form. But we think this insistence looks with too critical an eye upon proceedings of such boards. The authorities generally recognize the fact that proceedings of school boards are usually kept by those not versed in the law and are more or less informal in character, and should not be given a narrow and technical construction. Too strict rules should not be adopted with reference to the records and proceedings of such boards, but they should be construed in such manner as to give effect to the manifest intention of the members. See authorities cited in note, page 235 et seq., 12 A.L.R. [235], and note to Campbell v. Hackensack, 98 A.L.R. 1230 et seq., wherein is noted our own case of Wright v. Campbell, 212 Ala. 493, 103 So. 471 [ (1925) ]. See also 56 C.J. 357.
“To hold, as is insisted, that the direction to give notice was merely the action of the individual members of the board and therefore ineffective as not being the act of the board, would be giving a strict and technical construction to the records and proceedings and entirely out of harmony with the current of authority, founded, as we think, upon sound reasoning.
“The board was in session and the direction upon its face discloses the members were acting in their official capacity and in an earnest effort to comply with the ‘Teacher Tenure Law’, to use the language of the memorial.
“The memorial speaks for itself and in our opinion suffices for all purposes of the statute. Such being our conclusion, the question arising as to the subsequent resolution ordering this direction to be spread upon the minutes needs no determination here.”

242 Ala. at 23, 4 So.2d at 506.

Here, all of the plaintiffs’ contracts were not renewed for a single, pre-determined, objective reason, their failure to meet a Board requirement. The name of each teacher subject to non-renewal was before the Board and it voted not to renew those who failed to pass the test. Furthermore, the Board directed the superintendent to issue the appropriate notices, which he did; consequently, we find that the Board substantially complied with the requirements of Code 1975, § 16-24-12. We affirm.

AFFIRMED.

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


text:
    G. Marshall BURDEN v. Michael Perry FEORE.
    83-607.
    Supreme Court of Alabama.
    Nov. 21, 1984.
    Joseph J. Boswell, Mobile, for appellant.
    Russell S. Terry, Mobile, for appellee.
   MADDOX, Justice.

This is a suit on a promissory note.

The following facts are undisputed: G. Marshall Burden and Michael Perry Feore were co-owners of certain property in Mobile County. On May 5, 1970, they each sold their portion of the property to Larry E. Williams and his wife, taking a vendor’s lien on the property to secure a $17,000 promissory note from the Williamses. After approximately one-and-one-half years, the Williamses defaulted. Thereafter, Burden and Feore assigned their rights in the promissory note and under the lien to Joseph L. Desporte. As consideration, Des-porte, as assignee, conveyed a parcel of land in Prichard, Alabama, which was subject to an existing mortgage, to assignor Burden. The other assignor, Feore, did not want to acquire any title to the Prichard property; he agreed to assign his interest in the Williamses’ note to Desporte only after Burden agreed to execute a $9,100 promissory note, naming him as payee, the note to be secured by a second mortgage on the Prichard property.

On January 7, 1972, Feore made .the assignment to Desporte and Burden and simultaneously executed, along with a second mortgage, the following note:

January 7, 1972
Mobile, Alabama
“$9,100.00
“For value received the undersigned jointly and severally promise to pay to Michael Perry Feore or order, the principal sum of Nine Thousand One Hundred and No/100 ($9,100.00) Dollars with interest thereon from date, at the rate of 7⅛ percent per annum. The said principal and interest shall be payable at the banking house of the First National Bank of Mobile, Mobile, Alabama, in monthly installments as follows, namely: SIXTY-FIVE AND NO/100 ($65.00) Dollars per month, with the first installment being due and payable on the first day of February, 1972, and a like installment being due on the first day of each consecutive month thereafter until the full sum of principal and interest is paid in full.
“Privilege is given to make additional payments on said principal sum at any interest payment date; such additional payments, however, to be made in multiples of $65.00 or the balance due.
“Each maker and endorser waives the right of exemption under the Constitution and laws of Alabama, and each maker and endorser waives demand, protest, and notice of protest, and all requirements necessary to hold them liable as makers and endorsers.
“It is further agreed that the undersigned shall pay all costs of collection, including a reasonable attorney’s fee on failure to pay any installment of principal and interest of this note on the date due hereof.
“This note is to be construed according to the laws of the State of Alabama, and is secured by second mortgage on real estate executed to Michael Perry Feore by the undersigned on even date.
“Upon failure to pay any installment of principal and/or interest when due or if any of the conditions and requirements in said mortgage deed be not complied with, the entire principal sum at the option of the holder, shall become due and payable. Failure to exercise this option shall not constitute a waiver of the right to exercise the same in the event of any subsequent default.
“/s/ Gaillard Marshall Burden”

On August 18,1981, Burden defaulted on the note, and on May 5, 1988, Feore brought suit, seeking $10,702.20 plus interest and costs. Burden answered, raising as an affirmative defense the following:

“Plaintiff and defendant further agreed prior to defendant’s execution of the promissory note sued upon, at the time of the execution of the promissory note sued upon, and subsequent to the date of the execution of the promissory note sued upon, that all of the payments which were called for under the terms of the promissory note sued upon were to be made by defendant to plaintiff from the rental income received by defendant from the Desporte property.
“Defendant thereafter received some rental income from the Desporte property and defendant thereafter made some payments to plaintiff from the rental income from the Desporte property.
“The Desporte property thereafter became unrented and defendant had no income from the Desporte property. Defendant thereafter defaulted

Burden also claims lack of consideration for execution of the note.

On January 13, 1984, Feore moved for summary judgment, submitting a supporting affidavit. Burden filed an opposing affidavit restating the alleged agreement referred to above. On February 10, 1984, Feore’s motion for summary judgment was granted; the trial court awarded him $11,-729.14, plus court costs.

Burden appeals here, contending that the trial court erred by granting summary judgment. Specifically, Burden asserts that the trial judge refused to consider his affidavit in opposition to Feore’s motion because he incorrectly found it to be viola-tive of the parol evidence rule. Even though the trial court’s reasoning is not set forth in the record, because both parties agree that application of the parol evidence rule is the only issue, we will assume that the court’s decision was based on the rule’s application. Reviewing the cases applying the rule in regard to promissory notes, we see no error in the grant of summary judgment and affirm.

Burden admits that parol evidence of pri- or or contemporaneous agreements is generally inadmissible where offered to vary or contradict the terms of a written agreement, but argues that such evidence is admissible if not contradictory, but merely supplemental or explanatory. In particular, he argues that admission of the evidence he sought to produce at trial should have been granted to show that the parties entered into an oral agreement that Burden’s repayment of the note was conditioned upon his receiving sufficient rental income from the Prichard property. He further argues that, because income from the property was insufficient, parol evidence of the alleged oral agreement should be admitted to show partial lack of consideration to support execution of the note. Redmond v. Harrelson, 355 So.2d 356 (Ala.1978); Parker v. McGaha, 294 Ala. 702, 321 So.2d 182 (1975).

Burden cites us to Rhodes v. Schofield, 263 Ala. 256, 82 So.2d 236 (1955); People’s Bank of Mobile v. Moore, 201 Ala. 411, 412, 78 So. 789 (1918); and Waters v. Carleton, 4 Port. 205 (Ala.1836), for the proposition that promissory notes which are payable out of a particular fund are not unconditional and do not carry the maker’s general personal credit. Payment of such notes is, Burden contends, contingent upon the sufficiency of the particular fund from which payment is to be made.

While we concede that these cases, indeed, stand for this proposition, we note that, unlike the present case, in each of the cases cited by Burden the contingency for payment out of a particular fund was contained in the instrument itself, and unlike the present case, the parties did not attempt to prove the contingency by parol evidence.

The use of parol evidence to prove a contingency which must occur before payment of a note is due, for example that the note is to be paid out of profits or rents, is not permissible. S.A. Gard, Jones on Evidence, Volume 3, § 16:60 (1972).

Recently, in Racquetball of Mobile, Inc. v. Wisser, 429 So.2d 1020 (Ala.1983), this Court held that where the note sued upon is unambiguous and due on its terms, but the maker, without asserting fraud or denying execution, relies upon an alleged contemporaneous agreement tending to contradict, vary, or alter the terms of the note, parol evidence of the alleged agreement is inadmissible. This Court further held that such inadmissible evidence does not raise a genuine issue of fact, Rule 56, Ala.R.Civ.P., and that summary judgment is appropriate in such cases. Wisser, supra, at 1021, 1022.

In Wisser, this Court cited with approval Jackson v. Sample, 234 Ala. 75, 173 So. 510 (1937), wherein the Court held parol evidence of a collateral agreement, that a note was to be paid upon demand but only when the. earnings of a particular company were sufficient to pay the note, was inadmissible. We see no distinction between Wisser and Jackson and the present case. Therefore, we follow those cases and affirm the trial court’s disallowance of parol evidence of the alleged agreement between Burden and Feore. That evidence having been properly excluded, the trial court correctly granted summary judgment. Wisser, at 1022.

While in Wisser this Court did state that parol evidence is admissible to show lack of consideration or failure of consideration, we find no support for Burden’s contention that there was a failure of consideration in the present transaction. The consideration for which the parties bargained, and which they received, was execution of a $9,100 note by Burden in return for an assignment of interest by Feore. The alleged oral agreement, even if it was in fact made, would only have been a collateral agreement, the failure of which would not affect the original consideration. Therefore, parol evidence of the alleged agreement was not admissible for the purpose of proving failure of consideration, and the trial court properly excluded its use.

AFFIRMED.

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


text:
    TRUCK INSURANCE EXCHANGE v. WIXOM BROTHERS COMPANY, et al.
    83-875.
    Supreme Court of Alabama.
    Nov. 21, 1984.
    W. Michael Atchison and E. Martin . Bloom for Starnes & Atchison, Birmingham, for appellant.
    Max Hudson, Birmingham, for appellees.
   PER CURIAM.

Reversed and remanded to the trial court for reconsideration in light of this Court’s opinion in United States Fidelity & Guaranty Company v. Warwick Development Company, 446 So.2d 1021 (Ala.1984).

REVERSED AND REMANDED WITH INSTRUCTIONS.

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

BEATTY, J., dissents.

ALMON, J., not sitting.


text:
    Andrew FRANKLIN, a Minor Who Sues through his Mother and Next Friend, Viola Franklin v. Fred ROGERS, an individual, and the Attalla City Schools.
    83-1336.
    Supreme Court of Alabama.
    Nov. 21, 1984.
    Walden M. Buttram of Finlayson & But-tram, Gadsden, for appellant.
    Larry H. Keener of Floyd, Keener & Cusimano, Gadsden, for appellees.
   PER CURIAM.

Because this Court’s careful and thorough study of the record on appeal fails to disclose any genuine issue of material fact, and because the undisputed facts entitle the Defendants/Appellees to judgments as a matter of law, we affirm the orders of the trial court granting summary judgments. Rule 56(c), A.R.Civ.P.

AFFIRMED.

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


author: BOWEN, Presiding Judge.

text:
    Vernon James KING v. STATE.
    1 Div. 608.
    Court of Criminal Appeals of Alabama.
    Nov. 13, 1984.
   BOWEN, Presiding Judge.

The judgment in this case was reversed and the cause remanded because the trial judge failed to prepare a written statement as to the evidence relied on and the reasons for revoking the appellant’s probation. King v. State, 451 So.2d 367 (Ala.Cr.App. 1984).

In response to the order of reversal and remand, the trial judge prepared a written order of his findings and reasons in compliance with Armstrong v. State, 294 Ala. 100, 312 So.2d 620 (1975). Subsequently, this Court set aside its order of reversal and restored the cause to the docket.

The judgment of the circuit court revoking appellant’s probation is affirmed.

AFFIRMED.

All Judges concur.


author: HARRIS, Judge.

text:
    Angela Delane SEXTON v. STATE.
    3 Div. 794.
    Court of Criminal Appeals of Alabama.
    Nov. 13, 1984.

      Gatewood A. Walden, Montgomery, for appellant.
    Charles A. Graddick, Atty. Gen., and Thomas R. Allison, Asst. Atty. Gen., for appellee.
   HARRIS, Judge.

Appellant was arrested on March 17, 1983, and charged with criminal mischief in the third degree and with the unauthorized use of a vehicle. A hearing was held in the Juvenile Division of the Circuit Court for Montgomery County on March 31, 1983. The appellant pleaded not guilty on both counts.

At the close of the State’s case, appellant moved that the charges be dismissed and the proceedings quashed. The court dismissed the charges as to criminal mischief in the third degree, but denied the motion as to the charge of unauthorized use of a vehicle.

After hearing all the evidence, the judge concluded that the appellant should be committed to the Training School for Girls, subject to a ruling in a subsequent hearing which was in fact held April 7, 1983. In the April 7 hearing, the Judge abided by his former ruling, with the provision that the commitment to the Training School for Girls would be suspended if the appellant was accepted in the Chins Home program. This appeal followed.

The primary issue before us is appellant’s contention that the State failed to establish a prima facie case.

The record reveals that the State’s case in chief was based solely on the testimony of Police Investigator Neil Alspach and Ms. Lavonne Lawrence, the owner of the automobile used without permission.

Officer Alspach testified that Mrs. Penny Sadler brought her daughter, the appellant, into police headquarters and stated to him that the appellant on the previous night “had taken a vehicle belonging to her sister-in-law without permission” and further stated that the car had been involved in an accident. The car referred to was owned by Ms. Lavonne Lawrence, who had loaned the automobile to appellant’s mother for her use.

We are of the opinion that the State failed to establish the basis of Mrs. Sa-dler’s knowledge as to the appellant’s unauthorized use of the vehicle. Whether or not the basis of Mrs. Sadler’s knowledge of the incident was based on an admission by the appellant is not clear. However, if Mrs. Sadler in her aforementioned statement to the police officer did rely on a statement made by the appellant as to her use of the vehicle, such an admission would not support the charges appellant was accused of. Section 12 — 15—66(b), Code of Alabama, 1975, reads:

“(b) An extrajudicial statement which would be constitutionally inadmissible in a criminal proceeding shall not be received in evidence over objection. Evidence illegally seized or obtained shall not be received in evidence over objection to establish the allegations against him. An extrajudicial admission or confession made by the child out of court is insufficient to support a finding that the child committed the acts alleged in the petition unless it is corroborated by other evidence.” (emphasis added)

Assuming, arguendo, that the appellant did in fact inform her mother that she had used the automobile in question, no other evidence was presented by the State that corroborated the out of court admission as related by the appellant's mother.

Moreover, while the State attempts to argue that the statement made by Mrs. Sadler to Officer Alspach did not violate the hearsay rule on the basis that the appellant was present when the statement was made, we are convinced that such an argument is not sanctionable. The State’s attorney relies on Hill v. State, 394 So.2d 106 (Ala.Crim.App.1981), for the proposition that “statements of a third person, not made in the defendant’s presence, are hearsay and inadmissible” and analogously asserts that the statements by Mrs. Sadler in the case at bar were obviously made in the presence of the defendant. The key to the aforementioned argument and proposition of law is that the appellant should have a chance to cross-examine the witness testifying as to statements he has heard. However, while the above proposition would seem to apply in the present case, it must be read in its proper context and accorded appropriate application. In order to allow out of court statements into evidence as heard by a third party in the accused’s presence, the party that made the statement must be a witness in the proceeding against the accused. In two recent decisions of this court, the facts revealed that, at the trial of the defendants, the “parties that actually made the statements were present in court and had testified and were available for cross-examination.” Reeves v. State, 456 So.2d 1156 (Ala.Crim.App.1984), and Hammock v. State, 401 So.2d 292 (Ala.Crim.App.1981). Both of these decisions turned on the fact that the parties who made the statements, who were the victims in these two cases, were in court, served as witnesses, and had been available for cross-examination by the accused.

In the case at bar, the party who made the statement about the appellant’s unauthorized use of an automobile chose not to testify, by invoking her Fifth Amendment Constitutional right against self-incrimination. Therefore, appellant did not have the opportunity to cross-examine the party that actually made the statement to the third party. If such an opportunity had been available to the appellant, then the third party’s testimony concerning the statement would have been proper and nonprejudicial. However, we are of the opinion that to allow a third party to testify as to statements he heard one assert against an accused without the accused being accorded the opportunity to examine the “statement maker” violates the basis of the hearsay rule. Here, the relayed out of court statement by the third person was used to prove the truth of the matter asserted, that being the unauthorized use of the automobile by the appellant.

The only other evidence received by the Judge at the hearing was the testimony of Ms. Lavonne Lawrence. She simply testified that she was the owner of a 1976 Cutlass Oldsmobile and that it had been loaned to her sister-in-law and subsequently involved in an accident. Nothing in her testimony substantiated the allegation against the appellant.

It is apparent that the State did not prove beyond a reasonable doubt, based upon competent, material, and relevant evidence, that the appellant committed the act she was accused of. Therefore, the court’s finding could not have been based on clear and convincing evidence that was both material and relevant in nature. See Code of Alabama, 1975, § 12-15-65(d) and (e). Thus, the court erred in considering the evidence presented before it, since the essence of the evidence was the testimony of Officer Alspach, and his testimony as to statements made by the appellant’s mother should have been excluded.

Appellant’s second contention, that the trial court erred in denying her motion requesting an in forma pauperis appeal, is unfounded. The trial judge is accorded discretion in ascertaining whether a defendant is in need of appointed counsel. The trial judge may weigh the following considerations in determining the need for appointed counsel on appeal:

“(1) Whether or not the defendant has arranged to be represented by counsel;
(2) Whether or not the defendant desires the assistance of counsel; and
(3) Whether or not the defendant is able financially or otherwise to obtain the assistance of counsel.”
Code of Alabama, 1975, § 15-12-20. But see § 15-12-22(a).

The appellant’s mother had secured legal counsel to represent her daughter. Therefore, the need for appointed counsel was not present. The trial judge did not err by denying the appellant’s in forma pauperis motion.

For the initial foregoing reason, the judgment of the trial court is due to be reversed and rendered.

REVERSED AND RENDERED.

All the Judges concur.


author: TYSON, Judge.

text:
    Edward Eugene CALHOUN v. STATE of Alabama.
    4 Div. 269.
    Court of Criminal Appeals of Alabama.
    Nov. 13, 1984.

      W. Terry Bullard, Dothan; for appellant.
    Charles A. Graddick, Atty. Gen. and Richard L. Owens, Asst. Atty. Gen., for appellee.
   TYSON, Judge.

Edward Eugene Calhoun was indicted for assault in the first degree in violation of § 13A-6-20, Code of Alabama 1975. The jury found the appellant guilty of the lesser included offense of assault in the second degree and the trial judge sentenced him to 20 years’ imprisonment in the penitentiary as a habitual offender.

The facts of the case will be stated briefly. On the night of October 1, 1983, the victim, Todd Howell, was stabbed by the appellant. Howell and the appellant did not know each other prior to this occasion. There was evidence that both Howell and the appellant had been drinking heavily that night.

I

On rebuttal the State offered the testimony of two officers, Danny Shirah and John Collier. Both officers testified that they had known the appellant for five years and each had seen him intoxicated on approximately ten occasions. The officers stated this appellant was violent on four or five of those ten occasions. Both officers stated that the four or five times the appellant became violent, he was under arrest. They admitted that the appellant did not have a habit of becoming violent when he was intoxicated but did have a habit of becoming violent when arrested.

The State was attempting to prove that this appellant had a habit of becoming violent when he was intoxicated and, therefore, since he had been drinking on the night in question he became violent and stabbed the victim, Howell. Defense counsel objected to the officers’ testimonies at trial and contends on appeal that this evidence was inadmissible because it constituted evidence of the appellant’s bad character rather than his habit of becoming violent whén he is intoxicated.

Generally, the State cannot present evidence of an accused’s bad character to prove that the accused acted with that trait of character on a particular occasion unless the accused has previously offered evidence of his good character. Gamble, McElroy’s Alabama Evidence, § 42.01(1) (3d ed. 1977). The exception to this rule is that the habit of a person can be introduced as proof that the person acted in conformity with that habit on a particular occasion. McElroy’s, supra, § 42.01(3).

The issue before us is to determine whether Officers Shirah’s and Collier’s testimonies constituted evidence of the appellant’s bad character or evidence of the appellant’s habit of becoming violent while intoxicated. Character and habit are closely related concepts. However, the distinction between the two is extremely important because that distinction determines whether certain evidence is admissible or not.

“Character is a generalized description of a person’s disposition, or of the disposition in respect to a general trait, such as honesty, temperance or peacefulness. Habit, in the present context, is more specific. It denotes one’s regular response to a repeated situation_ A habit ... is the person’s regular practice of responding to a particular kind of situation with a specific kind of conduct.” E. Cleary, McCormick on Evidence, § 195 (3d ed. 1984).

The underlying rationale for the admission of habit evidence to prove that an individual acted in a certain way on a particular occasion is that evidence that an mdividual habitually does a certain thing, has more probative value than the general character traits of that individual. However, habit evidence can be established if, and only if, there is evidence that a person repeatedly and regularly responds to a particular situation in a particular manner. McCormick’s, supra, § 195. Thus, in order to present evidence that a person has a habit of doing a particular thing, evidence must be presented that this person almost always does this particular thing when confronted with this particular situation.

In the case at bar, Officers Collier’s and Shirah’s testimonies were not sufficient to prove that the appellant has a habit of becoming violent when he is intoxicated. The officers stated that they had seen the appellant intoxicated on ten occasions but that he was violent on only four or five of those ten occasions. Half of the times the officers saw the appellant intoxicated he was violent. The other half of the occasions he was not. Certainly this evidence was not sufficient to prove the appellant had a habit of becoming violent while intoxicated. If so, then it could be said that he also had a habit of being peaceful while intoxicated. The officers’ testimonies were not evidence of the appellant’s habit but were evidence of his bad character (he is not a peaceful person). Therefore, this evidence could not be used to prove that since he was intoxicated on the night in question he became violent and stabbed the victim, Howell.

Furthermore, the officers stated that the appellant had a habit of becoming violent when he was arrested. Certainly this was not probative of the appellant’s conduct on the night of the assault.

The State, in its brief, contends that this evidence was not error because the appellant was allowed to present evidence of Howell’s habit of becoming violent while intoxicated. Defense counsel presented the testimony of Randy Sasser who stated he had known Howell for two years. Sas-ser testified that he had seen Howell drinking on fifty or more occasions and that, on five or six occasions, lent. Howell became vio-

Just because Sass ir was allowed to testify for the defense is that Officers Shirah’s anc Collier’s testimonies did not constitute no reason to hold reversible error. ih Howell’s habit intoxicated. Nei-Based on the above discussion, Sasser’s testimony did not establi of becoming violent while ther Sasser’s testimony nor the officers’ testimonies should have been admitted and, in this instance, two wrongs do not make a right.

Therefore, this case is reversed and remanded for a new trial.

REVERSED AND REMANDED.

All the Judges concur.


author: PATTERSON, Judge.

text:
    Terry Wayne McLESTER v. STATE.
    4 Div. 294.
    Court of Criminal Appeals of Alabama.
    Nov. 13, 1984.

      William J. Baxley of Baxley, Beck, Dillard & Dauphin and Jeffrey H. Long, Montgomery, for appellant.
    Charles A. Graddick, Atty. Gen., and J. Anthony McLain and James F. Hampton, Sp. Asst. Attys. Gen., for appellee'.
   PATTERSON, Judge.

The appellant, Terry Wayne McLester, appeals the trial court’s dismissal of his petition for writ of habeas corpus, or in the alternative, petition for writ of error coram nobis. Among the allegations in his petition, McLester alleged that his sentence of life without the possibility of parole is vio-lative of the eighth amendment proscription against cruel and unusual punishment, for it is disproportionate to the crime committed and it is the result of the application of the Alabama Habitual Felony Offender Act in which seven prior felony convictions arising out of a single occurrence were considered as seven separate felonies rather than as a single offense.

These allegations were supported by the following facts either alleged in McLester’s petition or elicited at a hearing on the petition’s merits:

McLester was indicted and convicted on November 17, 1981, for the offense of robbery in the first degree. Regarding this offense, McLester testified that, prior to the robbery, he had drunk about a case of beer and probably smoked “a couple of joints;” however, he did not testify at his robbery trial. He was on work release at the time of the robbery.

For this conviction of first degree robbery, McLester was sentenced to life imprisonment without the possibility of parole. At the time, he was twenty-five years old. His sentence was pursuant to the mandate of the Habitual Felony Offender Act, for McLester had pleaded guilty in 1979 to seven charges of burglary in the second degree. These convictions are the consequences of a common event in which McLester broke into a mall and then proceeded to break into several stores. McLester claimed that between about dark and after midnight when he broke into the mall, he had drunk probably a bottle of whiskey, smoked “about twenty joints”, and snorted three or four grams of cocaine.

I

McLester first argues that the trial court erred in denying his petition on the ground that his sentence is so disproportionate to the offense committed that it violates the eighth amendment’s prohibition against cruel and unusual punishment. He claims that the disproportionate sentence is a result of the trial court’s treatment of the seven felony convictions arising out of one continuous action and entered upon guilty pleas on the same day as seven separate convictions rather than as a single conviction.

These assertions were decided adversely to McLester in the direct appeal of his conviction for robbery in the first degree and his sentence of imprisonment for life without possibility of parole. In McLester v. State, 423 So.2d 286 (Ala.Cr.App.1982), the court relied on Seritt v. State, 401 So.2d 248 (Ala.Cr.App.), cert. denied, 401 So.2d 251 (Ala.l981),in holding that McLester’s seven convictions arising out of a common occurrence properly constituted seven separate convictions for the implementation of the Habitual Felony Offender Act. 423 So.2d at 289-90. The court further ruled that McLester’s mandatory punishment of imprisonment for life without parole does not constitute cruel and unusual punishment, for it is not excessive in light of the underlying prior convictions. 423 So.2d at 290.

McLester urges our reconsideration of these issues in light of the recent United States Supreme Court opinion of Solem v. Helm, 463 U.S. 277, 103 S.Ct. 3001, 77 L.Ed.2d 637 (1983), in which the Supreme Court explicitly held that a noncapital punishment could be so excessive in length as to be disproportionate to the defendant’s crime, thus violating the eighth amendment. Helm’s punishment pursuant to a recidivist statute was imprisonment for life without the possibility of parole. This enhanced punishment was authorized pursuant to six prior offenses which involved nonviolent property crimes and were alcohol-related and to a subsequent conviction for uttering a “no-account” check in the amount of $100. The majority (five to four) held “that a criminal sentence must be proportionate to the crime for which the defendant has been convicted.” 103 S.Ct. at 3009. The Court set forth the following objective factors to be weighed by a court in its proportionality analysis: (i) an assessment of the gravity of the offense and the harshness of the penalty; (ii) a comparison of the punishment with the sentences imposed on other convicted defendants in the same jurisdiction; and (iii) a comparison of the punishment with the sentences imposed for the commission of the same crime in other jurisdictions. 103 S.Ct. at 3011.

However, even in stressing the general rule and the test to be followed in ascertaining whether a sentence bears a reasonable relationship to the crime, the Court indicated its intention that the application of this proportionality analysis be limited, for it stated the issue in Solem as an extremely narrow one: “[Wjhether the Eighth Amendment proscribes a life sentence without possibility of parole for a seventh nonviolent felony.” 103 S.Ct. at 3004 (emphasis added). In observing the Court’s expression of its narrow holding in Solem, we have declined to apply the So-lem test if the “triggering” offense is one which the legislature has classed as a serious “life-endangering” crime, such as robbery in the first degree. Casey v. State, 456 So.2d 1161 (Ala.Cr.App.1984). Unless the factual situation before the appellate court presents a “triggering offense” which is one of the less serious offenses, Solem is “factually different and therefore inapposite.” Seritt v. Alabama, 731 F.2d 728, 732 (11th Cir.1984). Because McLes-ter’s “triggering offense” is first degree robbery, the Solem analysis is not applicable.

In further contrasting the instant facts with those in Solem, we recognize that McLester’s sentence was mandated by the Alabama Habitual Felony Offender Act, while Helm’s life sentence was merely authorized as within the statutory limitation, rather than mandated. In Solem, the length of the sentence actually imposed was within the trial court’s discretion, while, in the instant case, it was mandated by legislative act. Thus, the avoidance of judicial intrusion into the legislative mandate as advanced by the United States Supreme Court in Rummel v. Estelle, 445 U.S. 263, 274-75, 279-85 & n. 27, 100 S.Ct. 1133,1139, 1142-45 & n. 27, 63 L.Ed.2d 382 (1979), is of more appropriate significance in the instant case than it was in Solem. See Case Comment, Solem v. Helm: Extension of Eighth Amendment Proportionality Review to Noncapital Punishment, 69 Iowa L.Rev. 775, 783, 793-94 (1984). Accordingly, we reiterate the Rummel Court’s proposal that “the length of the sentence actually imposed is purely a matter of legislative prerogative.” 445 U.S. at 274, 100 S.Ct. at 1139. A legislatively mandated sentence carries a presumption of validity, because the legislature presumably considered proportionality objectives when it defined the offense and set the corresponding penalty; Solem provides constitutional protection in the event the legislative standards fail. Case Comment, supra, at 793-94. In regard to McLester’s sentence, we are given no reason why the Alabama legislature’s definite expression of the public interest in setting the punishment for robbery in the first degree should not be given the substantial deference recognized by the Rummel Court and reiterated by the Solem Court when it stated: “Reviewing courts, of course should grant substantial deference to the broad authority that legislatures necessarily possess in determining the types and limits of punishments for crimes.... ” 103 S.Ct. at 3009. See also id. at n. 16.

Aside from these factual distinctions limiting the observation of the Solem proportionality review, the Court indicated that its opinion should not be construed to hold that extensive appellate review of all prison sentences is constitutionally mandated, for the Court noted:

“[W]e do not adopt or imply approval of a general rule of appellate review of sentences. Absent specific authority, it is not the role of an appellate court to substitute its judgment for that of the sentencing court as to the appropriateness of a particular sentence; rather, in applying the Eighth Amendment the appellate court decides only whether the sentence under review is within constitutional limits. In view of the substantial deference that must be accorded legislatures and sentencing courts, a reviewing court rarely will be required to engage in extended analysis to determine that a sentence is not constitutionally disproportionate.”

Solem, 103 S.Ct. at 3009, n. 16. Likewise, as observed by the Rummel Court, a proportionality principle would come into play in an “extreme example” such as “if a legislature made overtime parking a felony punishable by life imprisonment.” 445 U.S. at 274, n. 11, 100 S.Ct. at 1139, n. 11. Thus, “[i]n many cases, an eighth amendment claim attacking a prison sentence will require only the most cursory review by a court before a finding of constitutionality is made.” Note, Solem v. Helm: Extending Judicial Review Under the Cruel and Unusual Punishments Clause to Require “Proportionality” of Prison Sentences, 33 Cath.U.L.Rev. 479, 514 (1984). See also Moreno v. Estelle, 717 F.2d 171, 179, 180 & n. 10 (5th Cir.1983) (recognizing that a cursory analysis per Solem is required unless Rummel applies and controls those facts not clearly distinguishable from the Rum-mel facts).

The instant case is not an “extreme example” requiring us to engage in an extended analysis of McLester’s eighth amendment claim. On numerous occasions, this court has upheld the mandatory sentence of life without parole for a conviction for robbery in the first degree after three prior felony convictions against an attack that said sentence constitutes cruel and unusual punishment under Solem v. Helm. E.g., Casey v. State, supra; Thomas v. State, 447 So.2d 203 (Ala.Cr.App. 1984); Wabbington v. State, 446 So.2d 665 (Ala.Cr.App.1983); Robertson v. State, 442 So.2d 162 (Ala.Cr.App.1983).

Furthermore, even if we disregard the distinctions between this case and So-lem and apply the Solem objective criteria to McLester’s conviction and sentence, McLester’s claim is still without merit. In Seritt v. Alabama, supra, the Eleventh Circuit considered the specific issue now before us within an array of facts virtually indistinguishable from the instant facts. Like McLester, Seritt was sentenced to life without parole as a habitual offender pursuant to a conviction for first degree robbery. Seritt’s underlying convictions were four 1975 convictions for violations of the Alabama Uniform Controlled Substances Act and a 1973 conviction for selling controlled substances. As noted in this court’s opinion on Seritt’s direct appeal of his robbery conviction, the four drug offenses arose out of a common occurrence or event and the four convictions rested upon pleas of guilty entered on the same day. Seritt, 401 So.2d at 250. After holding that the situation is indistinguishable from Rum-mel, for it is not an “extreme case,” 731 F.2d at 731, and that Solem is “sharply distinguishable” and therefore inapposite, 731 F.2d at 732, the Seritt court weighed the objective factors delineated in Solem. It determined that a sentence of life imprisonment without parole is not unduly harsh for a four-time convicted felon, who subsequently commits the crime of first degree robbery, 731 F.2d at 734; that Seritt was treated in the same manner in being sentenced to life imprisonment without parole as a habitual offender as defendants who have also been convicted of three prior felonies and then commit a Class A life-endangering offense, 731 F.2d at 735; and that it is not clear that Seritt had been treated more harshly than he would have been in Georgia, Mississippi, Florida, or Tennessee. 731 F.2d at 736. In conclusion, the court held that Seritt’s sentence is proportionate to his crime of robbery in the first degree and that, under the facts, “the eighth amendment does not proscribe a sentence of life imprisonment without parole for a three-times convicted felon who thereafter commits a violent, life-threatening felony.” 731 F.2d at 737.

We see no obstacle in following the rationale and appraisal of Seritt. “Outside the context of capital punishment, successful challenges to the proportionality of particular sentences [will be] exceedingly rare.” Solem, 103 S.Ct. at 3009 quoting Rummel, 445 U.S. at 272, 100 S.Ct. at 1138 (brackets and emphasis added in Solem). This is just one in a long line of unsuccessful attempts to escape the service of a sentence mandated by the Alabama Habitual Felony Offender Act; it is not one of the “exceedingly rare” cases contemplated by the United States Supreme Court.

II

In an alleged attempt to meet the second objective criterion set out in Solem, which requires a review of the sentences imposed on other criminals in the same jurisdiction, McLester submitted interrogatories to the Houston County District Attorney and Sheriff requesting the following information: (1) the name, date of conviction, sentence imposed, and date of release of each person convicted of robbery in the first degree in Alabama since January 1, 1980, and (2) the name, date of conviction, crime for which convicted, sentence imposed, pri- or record of convictions, and date of release of each person sentenced to serve time in the State penitentiary since July 30, 1979 (the effective date of the Habitual Felony Offender Act). The trial court granted the request for protective order filed by the District Attorney on behalf of the State and the Board of Corrections. McLester now alleges that this action was error, for it denied him the proof necessary to establish that his sentence is disproportionate to those imposed on other Alabama criminals.

We find that the requested information was irrelevant to the inquiry before the trial court, since we held in our discussion of Issue I that the extended analysis of Solem was inapplicable in the instant case. Furthermore, such information is not necessary for an application of the proportionality analysis propounded in Solem. In Pulley v. Harris, — U.S. —, 104 S.Ct. 871, 79 L.Ed.2d 29 (1984), the Supreme Court held that comparative proportionality review of a death sentence is not required by the eighth amendment in every case. In so holding, the Court distinguished proportionality to determine if a sentence is unacceptable in a particular case and proportionality used in Solem to determine if a particular punishment is cruel and unusual for particular crimes, as follows:

“Traditionally, ‘proportionality’ has been used with reference to an abstract evaluation of the appropriateness of a sentence for a particular crime. Looking to the gravity of the offense and the severity of the penalty, to sentences imposed for other crimes, and to sentencing practices in other jurisdictions, this Court has occasionally struck down punishments as inherently disproportionate, and therefore cruel and unusual, when imposed for a particular crime or category of crime. See, e.g., Solem v. Helm, 463 U.S. 277, 103 S.Ct. 3001, 77 L.Ed.2d 637 (1983)....
“[A different] sort of proportionality review presumes that the death sentence is not disproportionate to the crime in the traditional sense. It purports to inquire instead whether the penalty is nonetheless unacceptable in a particular case because disproportionate to the punishment imposed on others convicted of the same crime.”

Pulley, 104 S.Ct. at 875, 76.

In observing the “abstract evaluation” of traditional proportionality, the trial court would not have been aided by the statistics requested by McLester. See Seritt v. Alabama, supra. Rather, the pertinent information is the statutory penalties authorized and imposed for other crimes within Alabama. The specific concern is “[i]f more serious crimes are subject to the same penalty, or to less serious penalties,” since “that is some indication that the punishment at issue may be excessive.” So-lem, 103 S.Ct. at 3010. Accordingly, the trial court committed no error in granting the State’s request for a protective order.

Our consideration of the issues raised on appeal convinces us that the judgment of the circuit court is due to be, and it is hereby, affirmed.

AFFIRMED.

All the Judges concur.

      . U.S. Const, amend. VIII provides: "Excessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted.”

      . A further limitation on the application of So-lem, not present in the case before us, is its crucial distinction that Helm would never be eligible for parole. The Solem Court purported to distinguish Rummel v. Estelle, 445 U.S. 263, 100 S.Ct. 1133, 63 L.Ed.2d 382 (1980), on the basis that Helm was completely barred from the possibility of parole and the Court accordingly declared that this distinction set the facts of Solem outside the perimeter of the Rummel principles. 103 S.Ct. at 3016-17, n. 32. Thus, in delineating this specific distinction, the Court seems to be suggesting that the availability of parole is of primary concern in ascertaining whether the rule of Rummel or the three-prong proportionality analysis of Solem is controlling. See Moreno v. Estelle, 717 F.2d 171, 180 (5th Cir.1983). This court in Brooks v. State, 456 So.2d 1142 (Ala.Cr.App. 1984), and Wilbourn v. State, 457 So.2d 1001 (Ala.Cr.App. 1984), has indicated that, when confronted with any punishment other than life without parole, the proportionality test applied in Solem should be rejected for the rationale of Rummel. Compare Whitmore v. Maggio, 742 F.2d 230 (5th Cir.1984) (where the court held that a sentence of 125 years’ imprisonment without the benefit of parole required a Solem analysis).

      . It appears that by this circumscription alone, we will rarely, if ever, be required to reckon with the precise holding of Solem, for as recognized by the court in Seritt v. Alabama, 731 F.2d 728, 734 (11th Cir.1984), with the exception of the offense of treason, all felonies triggering a mandatory sentence of life without parole are "only the most serious of offenses and those involving the risk that a human life will be taken.” Thus, it is virtually inconceivable under the Alabama Habitual Felony Offender Act that a defendant convicted of a nonviolent crime would receive a mandatory sentence of life without parole.