author: SHORES, Justice.

text:
    Freeman ARNETT and Mary Arnett v. CITY OF MOBILE, A Municipal Corporation.
    82-834.
    Supreme Court of Alabama.
    Feb. 24, 1984.
    Rehearing Denied April 20, 1984.
    John W. Parker of McFadden, Riley & Parker, Mobile, for appellants.
    William R. Lauten, Mobile, for appellee.
   SHORES, Justice.

Plaintiffs Freeman and Mary Arnett appeal from a summary judgment in favor of the City of Mobile. We reverse and remand.

The Arnetts are real estate developers. In a period extending from 1967 to 1977, they developed an area known as Theodore Highlands outside the corporate limits of the City of Mobile but within the City’s subdivision jurisdiction. This development was conducted in stages or additions, with each addition requiring a separate plat approved by the City of Mobile Planning Commission. As a prerequisite to approval of plats for the Fifth, Sixth, Seventh, and Eighth Additions, the Planning Commission required a reservation of a 100-foot right of way for a future thoroughfare. The plats of the various additions were drawn including the reservation with the notation “future thoroughfare 100’ R/W (reserved for purchase).” On the plat of the Eighth Addition, however, the words “reserved for purchase” do not appear. This reservation, consisting of 6.71 acres, continues of record, although the Arnetts have received no compensation for the land and have no formal dedication as such to any public authority. The thoroughfare has not been paved nor opened for public use. Direct ingress to and egress from the future thoroughfare from Theodore Highlands will be permitted only from two streets within the subdivision.

The Arnetts filed suit in circuit court, requesting damages from the City of Mobile for the taking of their property without compensation, and further requesting a declaratory judgment to the effect that the taking of their property without compensation violated the provisions of §§ 11-52-30, et seq., Ala.Code 1975, and the provisions of § 235 of the Alabama Constitution. Subsequently, the City of Mobile filed a motion for summary judgment, which was granted. The Arnetts appeal.

The City of Mobile is granted subdivision jurisdiction over the area containing Theodore Highlands by § 11-52-30, Ala. Code 1975. The power to regulate the development of subdivisions is delegated by § 11-52-31, which provides:

“The planning commission shall adopt regulations governing the subdivision of land within its jurisdiction. Such regulations may provide for the proper arrangement of streets in relation to other existing or planned streets and to the master plan.... Such regulations may include provisions as to the extent to which streets and other ways shall be graded and improved ... as a condition precedent to the approval of the plat....”

This Court recognizes the authority of the planning commissions to exercise control over the subdivision of lands. We have, however, on repeated occasions, noted that this authority is derived from the legislature, and that planning commissions are to adopt regulations consistent with those statutes. Cottage Hill Land Corp. v. City of Mobile 443 So.2d 1201 (Ala.1983); City of Mobile v. Waldon, 429 So.2d 945 (Ala.1983); Boulder Corp. v. Vann, 345 So.2d 272 (Ala.1977).

The City contends that its subdivision regulations, specifically §§ V.B.(2) and (13) and YII.A.(2), in conjunction with the authority granted in § 11-52-31, Ala.Code 1975, allow it to require the reservation of land area that is in the path of a planned major street as a condition for approval of a subdivision plat. We do not disagree with this contention; however, the facts of this case require consideration of more than just the right of the City to reserve land. In Cottage Hill, supra, this Court held that

“anytime the planning commission requires a developer to reserve property in a proposed subdivision for future streets, the city should be aware that ‘there are limitations on the powers of such commissions’ when they are acting pursuant to powers granted them under § 11-52-31, especially when the need for the future street will be substantially generated by public traffic demands rather than by the proposed development. On those occasions, the guidelines and procedures set forth in §§ 11-52-50 through 11-52-54 should be followed; otherwise, the reservation could amount to an unconstitutional taking of property without due process of law. City of Mobile v. Waldon, supra; see Board of Supervisors of James County v. Rowe, 216 Va. 128, 216 S.E.2d 199 (1975).” (Emphasis in original.)

443 So.2d at 1205.

Additionally, in City of Mobile v. Waldon, supra, this Court cautioned that

“we are not to be understood as allowing a planning commission to require dedication of property anytime it is of the opinion that such dedication is needed; there are limitations on the powers of such commissions. It has those powers alluded to, provided however, that the exercise of same does not run afoul of the enabling act and the constitutional requirements of due process. Lynnwood Property Owners Ass’n v. Lands Described in Complaint [359 So.2d 357 (Ala.1978) ].”

429 So.2d at 948.

Both sides agree that the City of Mobile Planning Commission required the Arnetts to reserve the 100-foot strip along the Theodore Highlands additions in order to secure approval of their plats of those various additions, and that the reserved area lies outside, although adjacent to, the platted subdivision.

The City argues two things: First, that the thoroughfare was dedicated to the City; and, second, that the procedures set out in § 11-52-50, et seq., were not used to secure the area for the future thoroughfare. The record reveals that the thoroughfare was made a part of the subdivision plats following the demand by the City that the reservation be placed on the plats.

The 100-foot right of way was never dedicated to the City of Mobile. This Court, in Sam Raine Construction Co., Inc. v. Lakeview Estates, Inc., 407 So.2d 542 (Ala.1981), stated the law on dedication of a public right of way as follows:

“ ‘A public way is established in either one of three ways: (1) by a regular proceeding for that purpose, or (2) by a dedication as such by the owner of the land the way crosses, with acceptance by the proper authorities, or (3) the way is generally used by the public for twenty years.’ Powell v. Hopkins, 288 Ala. 466, 262 So.2d 289 (1972).”

407 So.2d at 544.

There has not been any proceeding for the purpose of dedicating the area reserved for the future thoroughfare. The Arnetts have not made a dedication to the City of Mobile, and there has not been a dedication by prescription. Most importantly, the lots in the subdivision additions were not sold pursuant to the plat of the future thoroughfare. In fact, the reserved 100-foot right of way lies outside the metes and bounds description of the subdivision.

The City’s second argument is without merit. It is true that no surveys were made to show the exact location of the lines of the Mobile Major Street Plan. No plats were made showing the exact lands to be reserved. No estimates were made of the length of time of the reservation. The City of Mobile adopted no resolution fixing the time, appointing appraisers, or as otherwise required by § 11-52-50. The Planning Commission, however, required the Arnetts to reserve this area and designate it “reserved for purchase” on the various plats of the subdivisions, a proper designation for use with § 11-52-50, et seq. Because the City required this area designated “reserved for purchase,” it comes within the purview of § 11-52-50, et seq. Therefore, the City was in error in not following the procedures set. out in those sections.

The City concedes that it bases its authority on §§ 11-52-30 and 11-52-31 when requiring the reservation of streets according to a major street plan as a prerequisite for the approval of a subdivision plat. Those sections grant the authority for such action; however, as noted previously, there are limitations to the extent of this authority. When the proposed future street is located outside the proposed subdivision, the proper procedure is found in § 11-52-50, et seq. Section 11-52-50 requires the planning commission to estimate the “time or times within which the lands shown on the plat [the city’s major street plan] as street locations should be acquired by the municipality.... [T]he [city] council shall fix the period,of time for which the street locations ... shall be deemed reserved for future taking or acquisitions for public use.” Section 11-52-51 requires the city, following the adoption of a plat of a major street plan, to appoint a board of appraisers who are to “fix the amounts of compensation to be paid, respectively, to the owners of lands reserved for the period of time as shown on the plat and in the resolution adopted by [the] council.”

This decision is not to be interpreted to say that any time a developer is required by a municipality to reserve an area in his development for a future thoroughfare, that the city must follow § 11-52-50. That interpretation would overlook the distinguishing factor in the present case. Here, the reservation is outside the development. It is not, nor has it ever been, a part of the development per se. It is clearly labeled, in keeping with § 11-52-50, “reserved for future purchase.” Lots were not sold pursuant to the future street, and there was no dedication or use of the street.

A municipality is not required to compensate a developer for a reservation in all instances. It is reasonable to require a developer to reserve land for a future street as a condition of approval of a plat, where such street traverses a proposed subdivision. The statutes allow this. Such action is not an unlawful taking of property for public use without compensation. In those instances, we have determined that the owner/developer receives compensation from the enhanced value of his property and other resultant advantages. Highland Realty Co. v. Avondale Land Co., 174 Ala. 326, 56 So. 716 (1911).

Appellee contends that the City of Mobile Planning Commission and Mobile County are indispensable parties and that, without their joinder, the trial court had no jurisdiction and rightfully dismissed the case. In addition, appellee argues that every person who has an interest in any lot in the Fifth, Sixth, Seventh, or Eighth Additions of Theodore Highlands or any lot which abuts any portion of the property designated as “future thoroughfare” should be made a party. These arguments are without merit. We hold that, under Rule 19 of the Alabama Rules of Civil Procedure, the City of Mobile Planning Commission and Mobile County are not indispensable parties whose joinder is required for just adjudication.

The City’s reliance on Jackson v. Moody, 431 So.2d 509 (Ala.1983), for the proposition that all property owners within a recorded subdivision must consent to the vacation of platted streets, is misplaced. Jackson involved a presently existing platted alley and/or street within the metes and bounds description of a platted subdivision. All property owners relying on a particular street within a subdivision have a right to object or consent to the vacation of that particular street pursuant to § 35-2-52, et seq., Ala.Code 1975. The present case is distinguishable from Jackson because the property designated for “future purchase” by the City and/or its designee, the City of Mobile Planning Commission, was outside the metes and bounds description of Theodore Highlands Additions and was so designated on the various plats. The owners of property within the metes and bounds descriptions of the various additions, while having vested rights in and to the streets and alleys designated within the metes and bounds description of the subdivision, have no vested right in and to the 6.71 acres which is the subject of this litigation, until such time as the same is either purchased or opened as a street. Their joinder as parties to this litigation was not necessary.

Under § 11-52-50, the City has the option of either continuing or abandoning the reservation of the 100-foot right of way. If the City decides to abandon the reservation, it must compensate the Arnetts for the period during which the reservation has been in existence. If the City opts to continue the reservation, the procedures for such, as set out in the above discussed sections, must be followed.

Therefore, the judgment is hereby reversed and the case remanded to the trial court for determination of the amount due the Arnetts pending the City of Mobile’s decision of whether to maintain or abandon the reservation of the 100-foot right of way.

REVERSED AND REMANDED.

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


source: Caselaw Access Project

author: PER CURIAM.

license: Public Domain

text:
    Claudie WOODSON, Sr. v. Herbert JORDAN, et al.
    82-1073.
    Supreme Court of Alabama.
    Feb. 24, 1984.
    Rehearing Denied April 20, 1984.
    Thomas M. Goggans of Goggans & Mclnnish, Montgomery, for appellant.

      Thomas R. DeBray and Floyd Minor of Wood, Minor & Parnell, Montgomery, for appellees.
   PER CURIAM.

Affirmed on the authority of Abyssinia Missionary Baptist Church v. Nixon, 340 So.2d 746 (Ala.1976), and Code 1975, § 10-4-25.

AFFIRMED.

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


author: MADDOX, Justice. MADDOX, Justice.

text:
    Wendell L. HADDOX and Illa V. Haddox v. FIRST ALABAMA BANK OF MONTGOMERY, N.A.
    82-1150.
    Supreme Court of Alabama.
    Feb. 24, 1984.
    Rehearing Denied April 20, 1984.

      Fred K. Granade of Stone, Partin, Gra-nade & Crosby, Bay Minette, for appellants.
    J. Connor Owens, Jr. of Owens & Simpson, Bay Minette, for appellee.
   MADDOX, Justice.

This case involves the grant of a directed verdict by the trial court.

Wendell and Ilia Haddox (sellers), as owners of certain real property located in Baldwin County, Alabama, known as the Terry Cove Marina, negotiated with Cecil L. and Margaret Ann Murphy (purchasers), for the sale of the marina. A sales contract, signed on June 15, 1978, called for a sales price of $650,000, with the purchasers paying $190,000 at closing and sellers financing the remaining $460,000, secured by a first mortgage on the marina. As provided in the contract, sellers were given $10,-000 as a deposit and the closing was scheduled for August 31, 1978.

An amendment to the contract, prepared by sellers’ attorney, was later signed by the purchasers and sellers. In the amendment, sellers agreed to subordinate the purchase money mortgage to any loan the purchasers obtained from a lender in the amount of $340,000. The loan closing date was extended to October 16, 1978, and sellers were paid $75,000 in addition to the $10,000 received earlier.

The sale was not closed on October 16, but on November 10, 1978. Present at the closing were Wendell and Ilia Haddox, Cecil L. and Margaret Ann Murphy, the Had-doxes’ attorney, the Murphys’ attorney, and attorneys and representatives of First National Bank of Mobile (FNB) and First Alabama Bank of Montgomery (FAB).

Several instruments were executed on the closing date. Wendell and Ilia Haddox conveyed the marina to Sportsman Marina, Inc. (Sportsman) by warranty deed and received a promissory note in the amount of $460,000 from Sportsman secured by a mortgage on the marina. (In accordance with the provisions of the June 15, 1978, contract, title to the property was taken in the name of Sportsman, and not the purchasers.)

Sportsman executed a mortgage to FNB as security for a $340,000 loan and sellers signed an agreement subordinating the mortgage held by sellers on the marina, to FNB and FAB. Purchasers, Sportsman and FAB executed a commitment agreement, while FNB, FAB, the purchasers and Sportsman executed a loan agreement.

At the closing, the sellers received $105,-000 from the purchasers, making the total amount received by sellers from purchasers $190,000. The remainder of the $650,-000 purchase price was to be paid in two annual installments of $80,000, due in January of 1979, and January of 1980, and ten annual installments of $30,000, plus interest, beginning in January 1981.

In September 1979, Terry Cove Marina was severely damaged by Hurricane Frederic and suffered a substantial decline in value. On November 27, 1979, Sportsman defaulted on the loan and FAB took assignment of the loan from FNB pursuant to the “take-out” provision of the loan agreement. The sellers received the second $80,000 payment in January 1980, but have received no further payments from Sportsman or the purchasers. FAB contacted the sellers by telephone in February 1980, and requested that they enter into another subordination agreement in favor of a loan from FAB to Sportsman. Sellers, however, refused.

In February 1981, sellers borrowed money from the Farmers & Merchants Bank of Foley, Alabama (F & M), and used the promissory note of Sportsman, secured by the mortgage on the marina, as security for the loan. On September 1,1981, F & M filed suit against the sellers, the purchasers, Sportsman, FAB, FNB, and six other named defendants. In its complaint, F & M alleged that it was the holder of a promissory note secured by real property known as Terry Cove Marina, and that the named defendants had a promissory note secured by real property known as Terry Cove Marina, and that the named defendants had an interest in the property. F & M requested that the trial court determine the priorities of any indebtednesses secured by the property, order the property sold, and ascertain the amount of any deficiency in a judgment against the sellers, the purchasers, and Sportsman.

FAB answered the complaint, and counterclaimed and cross-claimed, alleging that it was holder of a lien superior to claims by any other parties to the action and requested that the court sell the property with the proceeds from the sale to be used to repay it first. The sellers answered the complaint, raising affirmative defenses; the purchasers and Sportsman answered the complaint by denying all allegations in the complaint. The sellers responded to FAB’s cross-claim, alleging fraudulent inducement by FAB to subordinate sellers’ first mortgage on the marina, contending that laches barred FAB from asserting that its mortgage was prior to sellers’ mortgage on the marina, and arguing that FAB had failed to provide the required notice to sellers of Sportsman’s default. The sellers also filed a cross-claim against FAB in which they alleged that they were defrauded in the transaction; they sought damages, and later amended their complaint to include two counts of breach of contract and amended their answer to assert an affirmative defense of bad faith. FAB answered the seller’s cross-claim and raised as affirmative defenses the statute of limitations and preclusion of oral statements by written memoranda. A motion for summary judgment filed by FAB was denied by the trial court.

A separate jury trial, as requested by the sellers, was had on the cross-claim. A directed verdict for FAB on all counts resulted, and this, appeal by the sellers followed, pursuant to the provisions of Rule 54(b), Ala.R.Civ.P.

I

The sellers assert that FAB had a duty to require purchasers, as owners of other lands located in Monroe County, to substitute this land as collateral for the mortgage on the marina, thereby permitting sellers to resume a first mortgage position. The sellers contend that FAB’s failure to require the purchasers to do so resulted in the breach of a contract of which the sellers were third-party beneficiaries.

Whether a contract is ambiguous is a question of law for the trial court. Mass Appraisal Services, Inc. v. Carmichael, 404 So.2d 666, 673 (Ala.1981). When the terms of a contract are clear and certain, it is the duty of the court and not the jury to analyze and determine the meaning of the contract. C.F. Halstead Contractor, Inc. v. Dirt, Inc., 294 Ala. 644, 649, 320 So.2d 657 (1975). Moreover, two or more instruments executed contemporaneously by the same parties in reference to the same subject matter constitute one contract and should be read together in construing the contract. Cole v. Yearwood, 241 Ala. 437, 443, 3 So.2d 1, 2 (1951).

Having reviewed all the documents in question, i.e., the loan agreement, the commitment agreement, the promissory note, and the mortgage, we conclude that the terms were sufficiently clear to permit the trial court to construe the contract.

The rule with regard to third-party beneficiary contracts is that one who seeks recovery on a contract as a third-party beneficiary must establish that the contract was extended for his direct, as opposed to his incidental, benefit. Holley v. St. Paul Fire & Marine Ins. Co., 396 So.2d 75, 80 (Ala.1981); Sly v. South Central Bell Tel. Co., 387 So.2d 137, 139 (Ala.1980).

Based on the terms of the several parts of the agreement, the trial court was authorized to find that the sellers were not third-party beneficiaries. Indeed, paragraph six of the commitment agreement provides:

“Parties hereto agree that FNB is a third party beneficiary of this agreement, and the parties further agree that FNB shall be entitled to specific performance hereof.”

Applying the familiar bromide expressio unius est exclusio alterius, as it applies to the construction of documents, we conclude that the inclusion of FNB as a third-party beneficiary under the express terms of the agreement indicates that others of the same class, including the sellers, were to be excluded as third-party beneficiaries. See Hall v. Blan, 227 Ala. 64, 68, 148 So. 601 (1933).

II

Whether a representation is made willfully, recklessly, or mistakenly, the critical elements of fraud include: (1) a false representation, (2) concerning a material existing fact, (3) upon which the plaintiff has relied, and (4) has been damaged as a proximate result. Burroughs Corp. v. Hall Affiliates, Inc., 423 So.2d 1348, 1353 (Ala.1982).

As evidence of the alleged fraudulent representation, the sellers offer the following testimony:

“Q. Mr. Haddox, I think when the objection was made, you had testified that some few weeks prior to August 31st, 1978 that you had spoken to Doctor Murphy [purchaser] and Jack Eley [officer of FAB] at your marina, the Terry Cove Marina?
“A. That is true.
“Q. And let me ask you again. Why did Jack Eley say he was there?
“A. He came to explain to me that the First Alabama Bank of Montgomery couldn’t, for some reason, make the loan to Doctor Murphy and it was going to be made by First National Bank of Mobile.
“Q. Now, just a minute, which loan are we talking about?
“A. The $340,000 loan that was to be made for the down payment. .
“Q. All right.
“A. He said that the First National Bank of Mobile had agreed to let First Alabama Bank to let Cecil [Murphy, purchaser] have the money for First Alabama Bank for one year.
“And that they would take it if I would subordinate my mortgage to them for a year. That they had to be in a first position for that one year until First Alabama could take it back.
“Q. What was your reply to this?
“A. That I couldn’t see any reason why it couldn’t be done but that I would talk to my attorneys on it.
“Q. And did you end up agreeing to subordination?
“A. Yes, I did.
“Q. Did Jack Eley say anything to you with respect to your liability under any subordination agreement?
“A. That it would be for a year before they could buy it back from First National Bank and that if it was bought back in a year that they would get additional land for additional security from Cecil Murphy to make up the money that they were letting him have.
“Q. Did Jack Eley indicate at that time that you would be back in a first mortgage situation?
“A. Yes, he did.”

The sellers further allege that the following testimony of Murphy is evidence that Jack Eley, as an officer of FAB, had no intention of fulfilling his representations to the seller:

“Q. Now, Mr. Murphy, with respect to the financing involved in the purchase of the Terry Cove Marina, did you have conversations with Mr. Jack Eley?
“A. That is correct.
"Q. Was Mr. Eley acting on behalf of First Alabama Bank at that time?
“A. That is correct.
“Q. You were working with him to get financing?
“A. That is correct.
“Q. Now, were you familiar with the terms of Paragraph 7 of the commitment agreement which says, ‘The Murphys further warrant that they will not undertake the sale or otherwise encumber said Monroe County real property during the term of the hereinabove said loan agreement.’
“A. Yes, I’ve seen that.
“Q. What did this thing require to you when you read it?
“MR. SIMPSON:
“Your Honor, we are going to object again to — (interrupted)
“MR. GRANADE:
“I will withdraw the question.
“BY MR. GRANADE:
“Q. Mr. Murphy, when you first came to me with this clause, did you ask Mr. Eley about it?
“A. Yes, sir.
“Q. What did you tell him?
“A. I just more or less asked him and told him that I could not tie up my property because I had to have capital assets. I had invested all my money in buying the property.
“Q. What was Mr. Eley’s reply to you about that?
“A. He said, ‘Don’t worry about that, we will work something out.’ We wouldn’t tie up my inherited property or anything like that.”

The evidence is uncontroverted that on June 15, 1978, the purchasers and sellers signed a contract for the sale of the marina. By its terms, the contract was assignable to Sportsman with purchasers retaining the right to demand specific performance of the contract. There was no mention of FNB or FAB in the instrument nor any qualifications as to any other conditions, except that the purchasers agreed to endorse any note in the event the contract was assigned to Sportsman.

The exact date the amendment to the contract was executed does not appear from the facts. The sellers testified at the trial that the amendment had not been signed prior to the discussion with Eley, though Mr. Haddox previously stated in his deposition that the amendment containing a subordination provision was signed upon the advice of his attorney, prior to any conversations with Eley. By the terms of the amendment, the sellers agreed for a valuable consideration to subordinate a mortgage on the marina to a “purchase money mortgage not to exceed $340,000, that [purchasers] may give to bank or lender.”

From the record it is clear that all alleged representations made by Eley to the sellers concerning the position of FNB, the subordination of the mortgage to sellers for one year only, and other lands pledged by purchaser for collateral were incorporated in the agreements executed by the parties after a review by their respective attorneys.

We conclude that under the circumstances of the instant case, the trial court was authorized to apply the rule that prior negotiations of a contract which are subsequently reduced to writing are all merged into the written instrument. Guilford v. Spartan Food Systems, Inc., 372 So.2d 7, 9 (Ala.1979); Long v. Hirs, 270 Ala. 131, 135, 116 So.2d 605, 608 (1959). Moreover, since the amendment to the June 15, 1978, contract obligated sellers to effectuate a subordination agreement at the closing, the trial court was further authorized under the facts to find that sellers’ execution of the subordination agreement on November 10, 1978, was neither due to nor in reliance upon any alleged representations made by Eley. Consequently, in the absence of any proof of sellers’ reliance upon the alleged representations, the directed verdict entered by the trial court was proper. Perdue v. Mitchell, 373 So.2d 650, 652 (1979).

AFFIRMED.

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

ON APPLICATION FOR REHEARING

MADDOX, Justice.

Because the trial court was authorized to determine that any representation made by Eley to Haddox was merged into the written agreement, we conclude that the trial court did not err in directing a verdict on this issue. Perdue v. Mitchell, 373 So.2d 650, 652 (1979).

OPINION EXTENDED; APPLICATION FOR REHEARING OVERRULED.

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


text:
    Dudley L. GODWIN v. The CITY COUNCIL OF the CITY OF McKENZIE, Alabama, et al.
    82-1180.
    Supreme Court of Alabama.
    March 2, 1984.
    Rehearing Denied April 20, 1984.

      Kenneth L. Thomas of Massey, Means & Thomas, Montgomery, for appellant.
    H. Edward McFerrin of Poole & MeFer-rin, Greenville, for appellees.
   PER CURIAM.

Plaintiff Dudley L. Godwin, claiming wrongful discharge, alleges that he, as chief of police, was unlawfully fired by the City Council of the City of McKenzie, Alabama, without being afforded a “for cause” hearing pursuant to Code 1975, § 11-43-160.

The pivotal question on appeal, as below, is Godwin’s employment status with the City of McKenzie. The parties agree that the City of McKenzie has a population of less than 5,000, thus rendering §§ 11-43-180, et seq. (mandating a civil service merit system for law enforcement officers of cities whose population exceeds 5,000), inapplicable. See Chandler v. City of Lanett, 424 So.2d 1307 (Ala.1982).

It is further apparent that, if Godwin was employed, appointed, or otherwise hired as chief of police, as contemplated by § 11-43-5 (whether or not that statute was literally complied with), he was accorded the status of a city official; and thus he could be discharged only after a “for cause” hearing by the City Council, as provided by § 11-43-160.

In other words, Godwin’s right to a hearing, and his protection against discharge except “for cause,” is dependent upon whether he was the police chief or a policeman. If his status was that of chief, he is entitled to a “for cause” hearing; if not, his status was that of an “at will” employee, and his discharge is not subject to further review. Mountain v. Collins, 430 So.2d 430 (Ala.1983).

Because the record is unclear as to whether the trial court properly perceived this factual determination as dispositive of the legal issue presented, we remand this cause (without reversing the judgment) for a rehearing on the sole factual issue of Godwin’s employment status with the City. Should the trial court determine from the evidence on remand that the terms and conditions of Godwin’s employment were substantially in compliance with the appointment of a city official, as contemplated by § 11-43-5, then the trial court should remand the cause to the City Council with instructions to afford Godwin a “for cause” hearing, as mandated by § 11-43-160. Should the trial court, however, find that Godwin was not employed as chief of police, but merely as an “at will” employee, it should enter such findings of record and report the same to this Court within 56 days after the order of remand of this cause.

Without prejudice to the rights of the respective parties hereto, but as a guide to the trial court’s exercise of its factfinding prerogative, we observe that a finding, on the record now before us, that Godwin was not the chief of police would be against the great weight and preponderance of the evidence.

REMANDED WITH INSTRUCTIONS.

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


author: ALMON, Justice.

text:
    BIG THREE MOTORS, INC., a Corporation v. EMPLOYERS INSURANCE COMPANY OF ALABAMA.
    82-807.
    Supreme Court of Alabama.
    April 6, 1984.

      Lucian Gillis, Jr., of Reams, Wood, Vollmer, Philips, Killion & Brooks, Mobile, for appellant.
    A. Danner Frazer, Jr. and Roy W. Scholl, III of Armbreeht, Jackson, DeMouy, Crowe, Holmes & Reeves, Mobile, for ap-pellee.
   ALMON, Justice.

This is an appeal from a summary judgment granted in favor of an insurance company in a declaratory judgment action. The judgment denied coverage as a matter of law, based upon the named insured’s delay of at least three years and nine months in giving notice to the insurer of lawsuits filed against the insured.

On October 23, 1977, Employers Insurance Company of Alabama, Inc. (Employers) issued a general liability automobile policy to Big Three Motors, Inc. (Big Three Motors), wherein Employers agreed to

“pay on behalf of the insured all sums which the insured shall become legally obligated to pay as damages because of (a) bodily injury or (b) property damage to which this insurance applies caused by an occurrence, and the company shall have the right and duty to defend any suit against the insured seeking damages on account of such bodily injury or property damage.”

The policy defines the term “occurrence” as “an ACCIDENT, including continuous or repeated exposure to conditions which result in bodily injury or property damage neither expected nor intended from the standpoint of the insured.” The policy also contained the following notice provisions:

“4. Insured’s Duties in the Event of Occurrence, Claim or Suit:
(a) In the event of an occurrence, written notice containing particulars sufficient to identify the insured and also reasonably obtainable information with respect to the time, place and circumstances thereof, and the names and addresses of available witnesses shall be given by or for the insured to the company or any of its authorized agents as soon as practicable.
(b) If claim is made or suit is brought against the insured, the insured shall immediately forward to the company every demand, notice, summons or other process received by him or his representative.
* * * * *
5. Action Against Company: No action shall lie against the Company unless, as a condition precedent thereto, there shall have been full compliance with all the terms of this policy.”

On April 4, 1978, Fred E. Roan, Jr., repossessed the automobile of C.W. and Christine Rutherford. On April 5, 1978, the Rutherfords filed separate lawsuits against Big Three Motors and other defendants based upon this repossession. .

Christine’s complaint, as amended, alleged that on April 4,1978, she was driving a 1974 Cadillac when Roan, while acting within the scope of his authority as the agent, servant, or employee of Big Three Motors, caused the truck he was driving to force Christine to pull over to the side of the road, where Roan “willfully, intentionally, wantonly, fraudulently and under circumstances attended by malice and deceit” entered her car and forced her to drive to the Big Three Motors car lot, where she was unlawfully arrested and imprisoned and her car taken from her possession. C.W.’s complaint, as amended, alleged that Big Three Motors converted to its own use his 1974 Cadillac and various items of property contained therein and that this repossession occurred without due process of law.

These cases were heard in Mobile Circuit Court, and on December 16, 1981, verdicts were rendered in favor of Christine and C.W. Rutherford in the amounts of $15,-000.00 and $10,000.00, respectively. This Court affirmed these judgments in Big Three Motors, Inc. v. Rutherford, 432 So.2d 483 (Ala.1983).

Shortly after these judgments were rendered, Mrs. Fred Roan, Sr., discovered a copy of an insurance policy which Employers had issued to Big Three Motors on October 23, 1977. Mrs. Roan immediately notified Big Three Motors’ independent insurance agent, W.K.P. Wilson, of these judgments, and on or about January 5, 1982, attorneys for Big Three Motors provided copies of the Rutherfords’ complaints as amended to a W.K.P. Wilson & Sons, Inc. representative. On February 2, 1982, another Wilson employee sent a letter to Employers, enclosing a copy of Big Three Motors’ motion for judgment notwithstanding the verdict and/or new trial and/or remittitur.

Employers denied coverage for these judgments and, on April 1, 1982, filed this declaratory judgment action in Mobile Circuit Court to determine its obligation to defend or provide coverage to Big Three Motors for the Rutherfords’ claims. In its complaint, Employers alleged that it owed no coverage to Big Three Motors because 1) Big Three Motors breached the express condition precedent to coverage by failing to immediately forward copies of the Ruth-erfords’ complaints to Employers; and 2) the intentional conduct complained of in the Rutherfords’ suits was not an “occurrence” within policy coverage.

In its answer, Big Three Motors argued that the policy would cover the Ruther-fords’ claims because 1) although notice was given at least three years and nine months after the suits were filed, Big Three Motors was unaware of the existence of this policy until that time; and 2) the injuries which Big Three Motors allegedly inflicted upon the Rutherfords were neither “expected nor intended from the standpoint of the insured,” Big Three Motors, and therefore fell within the definition of the term “occurrence.”

Employers filed a motion for summary judgment, which contained a brief in support thereof. Although Big Three Motors filed a brief in opposition, Employers’ motion for summary judgment was granted on April 29, 1983. Big Three Motors then filed a notice of appeal to this Court.

The issues presented for review are 1) whether the named insured’s delay of at least three years and nine months in forwarding suit papers to its insurer breached the express condition precedent to policy coverage; and 2) whether the allegations in the Rutherfords’ complaints state claims for injuries which are not “occurrences” within the scope of the policy coverage.

The policy which Employers issued to the named insured, Big Three Motors, clearly makes the insured’s duty of immediately forwarding suit papers to the insurer a condition precedent to insurance defense and coverage:

“4. Insured’s Duties in the Event of Occurrence, Claim or Suit:
(b) If claim is made or suit is brought against the insured, the insured shall immediately forward to the company every demand, notice, summons or other process received by him or his representative.
5. Action Against Company: No action shall lie against the Company unless, as a condition precedent thereto, there shall have been full compliance with all the terms of this policy.”

(Emphasis added.)

However, Big Three Motors contends that its three-year-and-nine-month delay in forwarding suit papers to its insurer did not constitute a breach of the express condition precedent to policy defense and coverage because its ignorance of the existence of the policy during this interval constitutes an extenuating circumstance and the delay in no way prejudiced Employers. We disagree.

The term “immediately,” as used in the subject policy, has been construed to require that notice be given “ ‘within a reasonable time’ in view of all the facts and circumstances of the case.” Southern Guaranty Ins. Co. v. Thomas, 334 So.2d 879, 882 (Ala.1976) (related authority omitted).

To determine the reasonableness of a delay in giving notice to an insurer, this Court traditionally considers the length of the delay and the reasons for the delay. Southern Guaranty, supra, 334 So.2d at 882. The question of whether the insurer was prejudiced by the delay is immaterial to this determination where, as in this case, the giving of reasonably timely notice is expressly made a condition precedent to any action against the insurer. American Fire & Casualty Co. v. Tankersley, 270 Ala. 126, 116 So.2d 579 (1959). We, therefore, cannot consider the insured’s argument which alleged that its delay was reasonable because no prejudice to Employers resulted.

The length of the insured’s delay in forwarding suit papers to its insurer is easily computed: The Rutherfords filed their actions against Big Three Motors on April 5, 1978, and judgments were entered in their favor on December 16, 1981. On January 5, 1982, precisely three years and nine months after the Rutherford actions commenced, Big Three Motors provided copies of the Rutherfords’ complaints as amended to its independent agent, W.K.P. Wilson & Sons, Inc. Employers then received written notice of these prior actions and judgments against its insured on February 2, 1982, approximately three years and ten months after the commencement of the Rutherford litigation.

Big Three Motors contends, however, that its delay was reasonable because it had no knowledge of the existence of the policy until January 1982, and upon discovery thereof, immediately notified its insurance agency.

In support of this contention, the insured cites American Liberty Ins. Co. v. Soules, 288 Ala. 163, 258 So.2d 872 (1972), where this Court held that a delay of eleven months was not unreasonable on the part of an unnamed, additional insured where the unnamed insured had no knowledge of the existence of his parents’ homeowner’s policy.

Yet, the rationale for denominating an eleven-month delay on the part of an unnamed insured who neither applied for nor obtained possession of the policy “reasonable” has no relevance to the question of the reasonableness of a delay of at least three years and nine months on the part of the named insured who both applied for and obtained possession of the subject policy only a few months before the Rutherford litigation.

We therefore hold that such an excuse on the part of a named insured is insufficient to justify a delay of at least three years and nine months in forwarding suit papers to its insurer. This dilatory conduct constitutes a breach of the express condition precedent to policy defense and coverage. In view of this holding, we pre-termit consideration of the remaining issue.

The summary judgment on behalf of Employers Insurance Company of Alabama is affirmed.

AFFIRMED.

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


author: BEATTY, Justice.

text:
    William Ed FENDLEY v. DOZIER HARDWARE COMPANY, INC.
    83-318.
    Supreme Court of Alabama.
    April 6, 1984.
    Lee B. Williams, Grove Hill, for appellant.

      Wyman 0. Gilmore, Grove Hill, for appel-lee.
   BEATTY, Justice.

William Ed Fendley appealed from the trial court’s denial of his motions for directed verdict and motion for judgment notwithstanding the verdict or, in the alternative, for a new trial following a jury verdict against him and in favor of Dozier Hardware Company, Inc. (Dozier), in the amount of $13,876.88. We affirm.

The issues before this Court are whether the trial court erred in denying Fendley’s motions for directed verdict and motion for JNOV or, in the alternative, for a new trial.

Dozier is a hardware store, and Fendley is a building contractor. Jerry Ogle is a subcontractor. Most of the remaining material facts of the case are in dispute.

Dozier filed a complaint against Fendley, alleging account stated in the amount of $13,876.88; indebtedness for goods sold and delivered to Fendley; and account stated between Dozier and Fendley for goods sold and delivered by Dozier to Fendley’s servant, agent, or employee, Jerry Ogle. Following several responsive pleadings by both parties, Dozier amended its complaint, alleging that Fendley guaranteed Jerry Ogle’s account with Dozier. Fendley’s answer to the amended complaint denied Dozier’s allegations and affirmatively pleaded the defense of the Statute of Frauds.

The case went to trial on February 16, 1983. Fendley filed a motion for directed verdict at the close of Dozier’s evidence, and again at the close of all the evidence, based upon two Statute of Frauds sections: Code of 1975, § 8-9-2, and § 7-2-201. The trial court denied these motions. The jury returned a verdict in favor of Dozier for $13,876.88 plus 8% interest. The trial court denied Fendley’s motion for JNOV or, in the alternative, for a new trial, and Fendley appealed to this Court.

Mr. W.H. Andrews, an officer of Dozier and a witness at trial, testified that at Fendley’s request Dozier opened an account in the name of Jerry Ogle with the understanding that Fendley would be responsible for paying the account. Furthermore, Andrews stated that Fendley was the only person who paid on the account and that he gave assurances to Dozier that he would pay the account balance.

Another witness for Dozier was Mr. Gerald Corgill, also an officer of the company. He testified that Fendley told him that he had set up the Jerry Ogle account to save himself a lot of leg work and that he would be responsible for the account.

Copies of five checks from Fendley’s company, A.A. & E. Co., Inc., were admitted into evidence. The record shows that these checks were made payable to Dozier, signed by Fendley, and one had the notation “For materials (Jerry)” on it. Andrews testified that the proceeds from four of the checks and a portion of the proceeds from the fifth check (plaintiff’s Exhibit No. 2) were applied to the Ogle account at Fendley’s request.

Fendley, on the other hand, testified that he never authorized Dozier to set up an account in the name of Jerry Ogle and never guaranteed payment of Jerry Ogle’s account. He stated that the payments to Dozier were made with money owed to Ogle on subcontracts.

It is undisputed that no evidence exists of any written authorization, agreement, or memorandum concerning the alleged oral agreement between Fendley and Dozier. Therefore, Fendley asserts that the alleged agreement is void under the Statute of Frauds, and he cites Code of 1975, § 8-9-2 and § 7-2-201, as authority for that assertion. He further contends that the trial court erred in denying his motions for directed verdict and JNOV or, in the alternative, for a new trial, because Dozier did not meet its burden of proving that the agreement did not come within the statutes. To the contrary, Fendley argues, the verdict was against the great weight of the evidence. The issue, then, is the sufficiency of the evidence that the alleged agreement was outside of those Statute of Frauds sections. The familiar rule of appellate review was recently stated in Casey v. Jones, 410 So.2d 5, 7-8 (Ala.1981):

“The standard of judicial review for testing a motion for directed verdict is identical to that for testing a motion for J.N. O.V. Evidence sufficient to take the case to a jury as against a motion for directed verdict is likewise sufficient to withstand a motion for J.N.O.V. ...
“... A post-judgment motion for a new trial, grounded on a claim that ‘the verdict is against the great weight and preponderance of the evidence,’ should be granted only in extreme cases, when to let the verdict stand, though supported by some evidence, would be palpably wrong and manifestly unjust.”

The presumption of correctness of a jury verdict is strengthened when the trial court overrules the motion for a new trial. Id. Section 8-9-2 provides:

“In the following cases, every agreement is void unless such agreement or some note or memorandum thereof expressing the consideration is in writing and subscribed by the party to be charged therewith or some other person by him thereunto lawfully authorized in writing:
“(3) Every special promise to answer for the debt, default, or miscarriage of another;”

This Court recently considered § 8-9-2 in Herrington v. Central Soya Co., 420 So.2d 1 (Ala.1982). The issue before the Court in Herrington was whether the trial court erred in granting a motion for new trial based upon the grounds that his oral charge to the jury with regard to § 8-9-2 was erroneous and caused prejudice to the movant. While that issue is not the one before this Court, the discussion of that statute in the decision is relevant. In Her-rington, we recognized that the Alabama courts have distinguished "collateral” agreements from “original” agreements in determining which promises are within the Statute of Frauds and which are not. “Collateral” agreements are those in which the object of the promise is to become the guarantor of another’s debt; these are within the statute and must be in writing to be enforceable. Herrington, 420 So.2d at 3. “Original” agreements are those in which the effect of the promise is to pay the debt of another, but the object of the promise is to promote some purpose of the promisor. Id.

Another test for determining which promises are within the Statute of Frauds is set out in Boykin & McRae v. Dohlonde & Co., 37 Ala. 577, 582 (1861):

“When, therefore, an action is brought against one charging him with the value of goods delivered to another, and on his promise to pay; and it is set up in defense, that the promise was to pay the debt of another, and was not in writing, the decisive question is, to whom was the credit given. If the credit was given solely to the defendant — that is, if the goods were really sold to him, though delivered to another — the statute is then out of the case. But, if the whole credit was not given to the defendant — that is to say, if any credit at all was given to the party receiving the goods — the promise of the defendant is collateral, and within the statute....”

The Court continued:

“[W]hen there is any conflict of evidence upon the subject, the weight to be given to any particular circumstance should be left to the jury, who, in deciding the question, to whom the credit was given, should take into consideration ‘the extent of the undertaking, the expressions used, the situation of the parties, and all the circumstances of the case.’ ...” 37 Ala. at 584.

Based upon the preceding authorities and in light of the conflicting evidence, a question of fact existed concerning to whom Dozier extended credit, and whether the alleged promise was “collateral” or “original.” Therefore, the trial court properly denied Fendley’s motions for directed verdict based upon his assertion that the oral agreement was void under § 8-9-2 and submitted this question to the jury. It follows, therefore, that the motion for JNOV based upon this ground was also properly denied.

From our review of the record, it further appears that the verdict is not so against the great weight and preponderance of the evidence as to be palpably wrong and manifestly unjust. Accordingly, the trial court did not err in denying Fendley’s motion for a new trial based upon the defense of § 8-9-2.

Fendley’s motions were also based upon another statute of frauds provision, Code of 1975, § 7-2-201, which states:

“(1) Except as otherwise provided in this section a contract for the sale of goods for the price of $500.00 or more is not enforceable by way of action or defense unless there is some writing sufficient to indicate that a contract for sale has been made between the parties and signed by the party against whom enforcement is sought or by his authorized agent or broker. A writing is not insufficient because it omits or incorrectly states a term agreed upon, but the contract is not enforceable under this paragraph beyond the quantity of goods shown in such writing.
“(3) A contract which does not satisfy the requirements of subsection (1) but which is valid in other respects is enforceable:
“(c) With respect to goods for which payment has been made and accepted or which have been received and accepted (section 7-2-606).”

Fendley contends that Dozier did not move that the alleged agreement was outside of the coverage of § 7-2-201 and that, consequently, the agreement is void because it was not in writing. Under this section, no writing is required with respect to goods which have been received or accepted. The official comment to § 7-2-201 includes the following statement pertaining to partial performance: “Receipt and acceptance either of goods or of the price constitutes an unambiguous overt admission by both parties that a contract actually exists.”

In Engel Mortgage Co. v. Triple K Lumber Co., 56 Ala.App. 337, 341, 321 So.2d 679, 682 (1975), the Court of Civil Appeals aptly .stated:

“This text [§ 7-2-201] clearly indicates that, even where the value of the goods named to a contract exceeds $500, the absence of a signed writing does not bar seller from recovering the price of goods when the following are found to have happened: (1) an agreement of purchase and sale regarding the goods has actually been reached; (2) delivery of the goods in the manner, time and place agreed upon has been accomplished; and (3) any act or omission constituting acceptance of the goods under UCC § 2-606 has been manifested.”

Under the evidence, the jury could have reasonably concluded that Fendley and Dozier had reached an agreement of purchase and sale regarding the goods and that the goods had been delivered and accepted. Therefore, sufficient evidence was presented at trial to avoid a directed verdict or JNOV for Fendley based upon § 7-2-201. Additionally, the jury’s verdict is not against the great weight and preponderance of the evidence; and, therefore, the trial court did not' err in denying Fend-ley’s motion for a new trial.

Let the judgment be affirmed.

AFFIRMED.

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


author: MADDOX, Justice.

text:
    Marcia FINKELSTEIN v. Sharon R. LOVELL.
    83-21.
    Supreme Court of Alabama.
    April 20, 1984.
    R. Clifford Pulford of Fulford, Pope, Natter, Donovan & Mullins, Birmingham, for appellant.
    Robert E. Cooper of Rives & Peterson, Birmingham, for appellee.
   MADDOX, Justice.

The issue on appeal here is whether a complaint which is filed on the day the statute of limitations would run, but which contains the notation “NO SERVICE TO BE MADE AT THIS TIME,” is sufficient to commence a civil action, if it is not in fact served that day.

Marcia Finkelstein, plaintiff/appellant, was injured in an automobile accident which occurred on May 12, 1981, in Home-wood, Alabama. The other automobile involved in the accident was driven by Sharon R. Lovell, but the automobile was owned by her husband, James G. Lovell. Appellant filed a complaint, for injuries she allegedly sustained in the accident, in the Circuit Court of Jefferson County, on May 12, 1982, naming both of the Lovells and State Farm Insurance Company, the Lo-vells’ automobile liability insurer, as defendants. Appellant filed her complaint on the last day of the limitations period. See Code 1975, § 6-2-39.

The complaint was prepared by appellant’s son, Mayer Finkelstein, who practiced law in New Orleans, Louisiana, and it was entitled “Petition for Damages”; in form, it was similar to the forms used in Louisiana for personal injury actions. It was signed by Leon Capouano of Volz, Capouano, Wampold & Sansone, P.A., Montgomery; and by Mayer Finkelstein as “of counsel.”

Appearing on the last page of the complaint, between Attorney Finkelstein’s signature and the jury demand signed by Attorney Capouano, was this notation: “NO SERVICE TO BE MADE AT THIS TIME.”

Each of the summonses attached to the complaint bore the clerk's stamp and the date May 12, 1982, the date the complaint was filed. The sheriff’s summonses and returns reflect, however, that they were received in the Jefferson County Sheriff’s Department on June 14, 1982, and served on State Farm on June 15,1982, and served on the Lovells on June 17, 1982.

Each defendant answered the complaint and also filed a motion for summary judgment. State Farm’s motion for summary judgment was granted on December 21, 1982. Likewise, summary judgment was granted for James Lovell on March 23, 1983, and for Sharon Lovell on September 2, 1983. The appeal taken by plaintiff is only from the summary judgment entered with respect to Sharon Lovell. Thus, the other summary judgments entered by the trial court in this ease are not before the Court.

Appellee Sharon Lovell asserts in her brief, as she did in her motion for summary judgment, that Freer v. Potter, 413 So.2d 1079 (Ala.1982), and Ward v. Saben Appliance Co., 391 So.2d 1030 (Ala.1980), are dispositive of the issue here. We agree.

In Ward v. Saben Appliance Co., appellant’s attorney filed a complaint which was timely, but he directed the clerk to withhold personal service until he could obtain additional information on the case. Appel-lees were eventually served nearly four months later. There, this Court held that while the filing of a complaint is a significant factor in commencing an action and suspending the operation of the applicable statute of limitations, it is not the sole factor to be considered. The Court concluded by stating:

“We hold that in the present case the action was not ‘commenced’ when it was filed with the circuit clerk because it was not filed with the bona fide intention of having it immediately served. To hold otherwise would permit a party to extend unilaterally the period of limitations by an oral request that actual service be withheld, thereby giving that party an additional period of time within which he could conduct an investigation to determine whether in fact, he had a claim. To permit this would violate the fundamental concept of repose found within every statute of limitations.”

391 So.2d at 1035.

Likewise, in Freer v. Potter, the plaintiff ordered the clerk to withhold service of process. We held, among other things, that the action in that case was barred by the statute of limitations because, although the complaint had been filed, there had been no commencement of the action, since there was no intent on the plaintiff’s part to prosecute the claim at the time of the filing.

Appellant contends, however, that the facts of this case are distinguishable from the facts in both Ward v. Saben Appliance Co. and Freer v. Potter, because the clerk of the circuit court testified in this proceeding that she did not hold up service regardless of what appeared on the complaint. Appellant states:

“The legend on the complaint, ‘NO SERVICE TO BE MADE AT THIS TIME,’ reflects [the intention of the appellant’s attorney] that no service was to be made when this ease was filed, but his intention was thwarted by the clerk who did her duty, issued the summonses and processed the papers for service.” (Emphasis in original.)

Despite the fact that the appellant’s complaint was filed with the clerk on May 12, 1982, the last day of the limitations period, the action was not commenced when it was filed, because of the notation contained on the face of the complaint. On cross-examination by appellee’s counsel, Mayer Finkel-stein testified, as follows:

“Q With regard to the complaint that’s an exhibit, you don’t dispute you typed that legend on there, no service to be made at this time?
“A It was done at my direction, yes. My secretary did that at my direction.
“Q And it was on there at the time you signed the complaint as being of counsel, was it not?
“A That’s correct.
“Q And it was in fact your intention that no service was to be made once the case was filed? Wasn’t that your intention?
“A At that time, that’s correct. With, I might add in explanation of my answer, that was done knowing that that was customary and that State Farm abides by that practice.
“Q In Louisiana?
“A Yes, sir.
“Q You are not contending that that’s the practice in Alabama, are you?
“A No. I was handling the claim in Louisiana.
“Q And you never received any assurances from Sharon Lovell that she would not assert the statute, did you?
“A No, sir.
“MR. COOPER: That’s all I have.”

As the testimony of Mayer Finkelstein plainly indicates, the complaint filed on behalf of the appellant, his mother, was filed without the bona fide intention of having it served immediately. Consequently, we hold that the rationale of Ward v. Saben Appliance Co. is controlling under these facts and that Sharon Lovell was entitled to judgment as a matter of law, Houston v. McClure, 425 So.2d 1114 (Ala.1983); Fountain v. Phillips, 404 So.2d 614 (Ala.1981). The summary judgment is hereby affirmed.

AFFIRMED.

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


text:
    Warren STRICKLAND v. BIRMINGHAM BUILDING & REMODELING, et al.
    83-136.
    Supreme Court of Alabama.
    April 20, 1984.
    Charles F. Carr of Rives & Peterson, Birmingham, for appellant.
    Robert M. Girardeau of Huie, Fernam-bucq & Stewart, Birmingham, for appel-lees.
   SHORES, Justice.

On July 24, 1980, Warren Strickland was injured in the course of his employment with Birmingham Building and Remodeling (Birmingham Building). He applied for and received workmen’s compensation benefits. At one point, Seibels Bruce Group, the managing company for South Carolina Insurance Company (South Carolina), the compensation carrier, received information that Strickland had returned to work and suspended payment of the benefits.

Strickland filed this action against Birmingham Building, South Carolina, and Sei-bels Bruce Group to enforce his benefits under the Workmen’s Compensation Act. At the same time, he sought damages for the defendants’ “wrongful, malicious and bad faith refusal to pay” the benefits, and for a breach by Birmingham Building of its implied warranty that the work premises were safe. The defendants moved for summary judgment on all counts except the compensation claim. The motion was granted, and judgment was entered pursuant to Rule 54(b), Alabama Rules of Civil Procedure. Strickland appeals. We affirm.

It is undisputed that, for purposes of the Workmen’s Compensation Act, Strickland was an employee of Birmingham Building. There was an agreement between Strickland and Birmingham Building, and/or South Carolina, to provide Strickland with workmen’s compensation coverage under the policy which Birmingham Building had with South Carolina. Furthermore, Strickland states in his complaint that he “was employed by the defendant, Birmingham Building and Remodeling Company, and the relationship of employer and employee, or master and servant, existed between the defendant, Birmingham Building and Remodeling Company, and the plaintiff [Strickland]. Both parties were subject to and governed by the Workmen’s Compensation laws of Alabama.” This statement was included in every count of the complaint. It is further undisputed that Strickland was injured in the course of his employment, and that he received and accepted benefits under Birmingham Building’s compensation insurance policy. Although the benefits were suspended for a period of time, they have been reinstated. The compensation claim is still pending in the circuit court.

Having elected to be compensated under the Workmen’s Compensation Act, and being entitled to be so compensated because he is an employee and was injured in the course of his employment, Strickland is barred from pursuing his other claims. The exclusive remedy provision of the Act states:

“No employee of any employer subject to this article, nor the personal representative, surviving spouse or next of kin of any such employee shall have any right to any other method, form or amount of compensation or damages for any injury or death occasioned by any accident proximately resulting from and while engaged in the actual performance of the duties of his employment and from a cause originating in such employment or determination thereof other than as provided in this article.”

Ala.Code 1975, § 25-5-52.

Strickland’s claim against only his employer, Birmingham Building, for breach of its implied warranty that the workplace was safe, is clearly barred by this provision. As to the claim for damages for the defendants’ alleged bad-faith refusal to pay compensation benefits, we have held that this claim “is so interwoven with the compensation award under the provisions of the Act, that to allow an independent common law action would circumvent the statutory provisions and the policy behind the statute.” Waldon v. Hartford Ins. Group, 435 So.2d 1271, 1274 (Ala.1983). We hold that the bad faith claim is barred by the exclusive remedy provision of the act.

The trial court properly granted the defendants’ motion for summary judgment on the grounds that there was no genuine issue of material fact, and that the defendants were entitled to judgment on these counts as a matter of law. Rule 56, A.R. Civ.P.

AFFIRMED.

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


text:
    Holly Ann HALE, et al. v. CITY OF TUSCALOOSA. Gary N. BROWN v. CITY OF TUSCALOOSA.
    83-325, 83-326.
    Supreme Court of Alabama.
    April 20, 1984.

      R. Gordon Pate of Hare, Wynn, Newell & Newton, Birmingham, for appellants.
    Robert W. Ennis, IV, City Atty., and Robert B. Harwood, Jr. of Rosen, Har-wood, Cook & Sledge, Tuscaloosa, for ap-pellee.
   SHORES, Justice.

These appeals are by the plaintiffs from a partial summary judgment entered in favor of the City of Tuscaloosa.

On January 24, 1981, Holly Ann Hale, Dennis Houston Brown, and Thomas Buell Adams were involved in an automobile accident when their car collided with a stopped railway tank car on Hackberry Lane in Tuscaloosa, Alabama. Prior to the accident, the three students had been drinking alcoholic beverages at a local bar known as Tivoli’s. They left the bar just after 11:00 p.m. in a car driven by Adams.

As they approached the railroad crossing, two separate pairs of warning lights were flashing, and the signal bells were working. The tank car had been parked at the crossing for approximately thirty-five minutes when the Adams vehicle ran under the tanker, critically injuring Miss Hale and killing Dennis Brown. The warning lights were kept flashing for the entire time the 144-car train was stopped. The driver of the car, Buell Adams, had a .14% blood alcohol reading, according to tests made after the accident. Adams was driving a small Honda automobile, and the specific railway car with which it collided was a black gas tank car; it had no reflectors on its side and was much higher off the ground than a regular box car, the bottom of the car being three to three and one-half feet above the top of the rail. The headlights of the Honda shown beneath the tank, giving the illusion of no blockage.

Miss Hale and her father brought an action to recover damages for her personal injuries and medical expenses, and Gary Brown, father of Dennis Brown, brought an action to recover damages for the wrongful death of his son. Named as defendants in their complaints are Southern Railway, the City of Tuscaloosa, Benners-Nichols Enterprises, Inc., d/b/a Tivoli’s, and the Alabama Great Southern Railroad Company.

The plaintiffs’ claims against the City are based on the theory that it breached its statutory duty to remedy a defect on a public road. The trial court granted summary judgment in favor of the City of Tuscaloosa, eliminating all claims against it except for the claim of negligent failure to maintain the crossing at which the accident occurred. The trial court limited this claim to the single factual allegation of the failure to maintain a painted emblem on the pavement of the street. The claims against the other defendants are not a subject of these appeals; the trial court entered an order pursuant to A .R.Civ.P. 54(b) to allow an appeal by the plaintiffs. For purposes of this decision, the Hale and Brown eases have been consolidated. We affirm.

It is true, as appellants argue, that summary judgment should be granted only when, after viewing the evidence in a light most favorable to the non-moving party, it appears that there is no genuine issue of material fact, and the non-moving party cannot prevail as a matter of law; and summary judgment is improper if there is a scintilla of evidence to support the non-moving party. Allen v. Whitehead, 423 So.2d 835 (Ala.1982); Robertson v. City of Tuscaloosa, 413 So.2d 1064 (Ala.1982); Ra- ley v. Royal Ins. Co. Ltd., 386 So.2d 742 (Ala.1980); Rule 56(c), A.R.Civ.P.

Tort liability of municipalities is governed by statute in Alabama. Jackson v. City of Florence, 294 Ala. 592, 320 So.2d 68 (1975). In this case, the plaintiffs’ claim against the City is based on the theory that it breached its statutory duty to remedy a defect in a public road.

Section 11-47-190, Alabama Code 1975, states:

“No city or town shall be liable for damages for injury done to or wrong suffered by any person or corporation, unless said injury or wrong was done or suffered through the neglect, carelessness or unskillfulnesS of some agent, officer or employee of the municipality engaged in work therefor and while acting in the line of his duty, or unless the said injury or wrong was done or suffered through the neglect, carelessness or failure to remedy some defect in the streets, alleys, public ways or buildings after the same had been called to the attention of the council or other governing body or after the same had existed for such unreasonable length of time as to raise a presumption of knowledge of such defect on the part of the council or other governing body and whenever the city or town shall be made liable to an action for damages by reason of the unauthorized or wrongful acts or the negligence, carelessness or unskillfulness of any person or corporation, then such person or corporation shall be liable to an action on the same account by the party so injured.”

This Court has long recognized that persons traveling on a municipality’s streets may reasonably rely on the municipality to fulfill its obligation to maintain such public ways in a reasonably safe condition for travel. City of Florence v. Stack, 275 Ala. 367, 155 So.2d 324 (1963). A city also has a duty to warn of a dangerous condition on or near the roadway. Isbell v. City of Huntsville, 295 Ala. 380, 330 So.2d 607 (1976).

The City’s responsibility and accountability, however, to remedy such a defect are premised upon the receipt of actual notice of the defect or upon the defect’s remaining for such a length of time and under such conditions and circumstances that the law will infer that the defect should have been discovered and remedied. City of Tallassee v. Harris, 431 So.2d 1177 (Ala.1983); City of Gadsden v. Ryan, 284 Ala. 484, 226 So.2d 87 (1969); Jacks v. City of Birmingham, 268 Ala. 138, 105 So.2d 121 (1958).

In the present case, the tank car was painted black, and its height placed the bottom of the tanker above the beam of the headlights of an oncoming vehicle. There were no reflectors on the side of the tanker to reflect the headlights of an approaching automobile. It had been in the position blocking the crossing for thirty-five minutes, and the record shows that it was the unusual length of that particular train that caused it to extend across the Hackberry Lane crossing. These unusual circumstances combined to make the crossing dangerous at that particular moment.

We do not agree, however, that a defect in a public road was created by these converging conditions but, assuming that it was, we would still be compelled to affirm the trial court’s summary judgment in favor of the City, because there is no evidence, not even a scintilla, that the City either created the defect or had notice of it, or that it had existed for such a period of time as to constitute constructive notice of its existence. The trial court correctly held that the danger created by the tank car’s being stopped on the crossing existed for an insufficient time, as a matter of law, to create an inference of constructive notice on the part of the City.

The trial judge was also correct in limiting the claim of negligent failure to maintain the crossing to the single factual allegation of the failure to maintain a painted emblem on the pavement of the street.

It is within the discretion of the trial judge to limit certain claims to single or multiple factual allegations. Such a decision will not be disturbed on review unless it is clearly an abuse of that discretion and clearly erroneous. Ex parte Guerdon Industries, Inc., 373 So.2d 322 (Ala.1979); Williamson-Johns Co. v. Johns, 355 So.2d 706 (Ala.1978).

The affidavit of the City’s traffic engineer, Joseph Allen Robinson, establishes that the City agreed with the State of Alabama to maintain the pavement markings on city right-of-way that were installed by a contractor employed by the State. The City has not otherwise attempted to install or maintain any of the advance warning signals and guards at the Hack-berry Lane crossing.

It is true that, under certain conditions, a railroad crossing may be a hazardous defect at or near the street, and if the City has actual or constructive notice of such a defect, it has the duty to remedy that defect. In the present case, however, the only question of liability for the fact-finder to decide, regarding the City, is whether the painted emblem on the street was maintained in such a manner as to constitute adequate warning of the crossing. This appeal presents no questions of fact regarding liability on the part of the City of Tuscaloosa.

Therefore, the decision of the trial judge is due to be, and hereby is, affirmed.

AFFIRMED.

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


author: WRIGHT, Presiding Judge.

text:
    Mary Ann HAMRICK and Robert Hamrick v. Frank Gantt DANIEL, Jr.
    Civ. 3757.
    Court of Civil Appeals of Alabama.
    April 11, 1984.

      Darryl C. Hardin, Tuscaloosa, for appellants.
    Larry Bradford of Zeanah, Donald & Hust, Tuscaloosa, for appellee.
   WRIGHT, Presiding Judge.

This case is a suit for damages arising out of an automobile accident. Plaintiffs-appellants, Robert Hamrick and Mary Ann Hamrick, sought damages for negligence and wanton misconduct of defendant-appel-lee, Frank Gantt Daniel, Jr., in driving his automobile through an intersection without having the right-of-way. Plaintiffs allege that they suffered property damage to their vehicle, including damages for the loss of use of the vehicle during the ninety-three days elapsing between the date of the accident and the date of completion of repairs.

Mr. Hamrick, during in-chambers conference, testified that he owned the automobile his daughter, Mary Ann, had driven on the date of the accident. He stated that the automobile was one which he used in his business as a motel operator in Alexander City, Alabama, for transporting his motel customers. He added that he had lent his vehicles to his motel guests on more than two hundred occasions. Prior to the in-chambers testimony, the court had ruled that Mr. Hamrick was not competent to testify as to the reasonable rental value of his vehicle during the time it was out of service for repairs.

The evidence was submitted to the jury without testimony having been taken in open court as to the damages suffered for the loss of the vehicle during the time of repair. The court did not charge the jury that the reasonable rental value of the vehicle could be considered by the jury in assessing the damages should they find for plaintiffs.

The jury found for plaintiffs, and judgment was entered in favor of plaintiffs in the sum of $1,798.42. Plaintiffs appeal.

The issue on appeal is twofold: whether the trial court was correct in requiring plaintiffs to either follow its pretrial order or to present evidence of the reasonableness of claimed damages, and whether Mr. Hamrick was competent to testify as to the reasonable value of the automobile’s use or hire during the time it was being repaired.

In Hannah v. Brown, 400 So.2d 410 (Ala.Civ.App.1981), we stated that the “loss of use of a personal automobile during a reasonable period of repair is an element of recoverable damage in addition to the difference between the before and after reasonable market value. Such is the general prevailing rule.” Clearly, one cannot recover for loss of use without proof of the reasonableness and necessity of the claimed damages. See, Sweet v. Foust, 419 So.2d 260 (Ala.Civ.App.1982); Union Springs Telephone Co. v. Green, 47 Ala. App. 427, 255 So.2d 896 (1971). Neither the reasonableness nor the amount of damages may rest on speculation. Crommelin v. Montgomery Independent Telecasters, Inc., 280 Ala. 391, 194 So.2d 548 (1967).

Because an amount claimed for loss of use was not submitted for pretrial stipulation, plaintiff attempted to testify at trial as to the reasonable rental value of his automobile during the time it was out of service for repair. After an in-chambers conference the trial court determined plaintiff was not competent to offer such testimony.

Plaintiffs cite § 12-21-114, Code of Alabama 1975, as support for Mr. Hamrick’s competency to testify as to rental value. Section 12-21-114 provides that, “Direct testimony as to the market value is in the nature of opinion evidence; one need not be an expert or dealer in the article, but may testify as to value if he has had an opportunity for forming a correct opinion.” (Emphasis supplied.) Plaintiff is competent to testify as to the market value of the automobile. Mr. Hamrick testified that the automobile was worth $9,000 prior to the accident and $2,000 after the accident. He satisfied the court that he was sufficiently familiar with the market value of the automobile to have an opportunity to form an opinion as to its value.

The question of whether a witness has had ample opportunity of forming a correct opinion of the value of an article is a preliminary question for the court and is a matter largely within the court’s discretion. Blount County v. Campbell, 268 Ala. 548, 109 So.2d 678 (1959); Farm Industries Division of Quaker Oats Company v. Howell, 39 Ala.App. 131, 95 So.2d 808 (1957). Moreover, such a determination will not be overturned except where clearly unjust. See, Id.

In the present case the court decided that Mr. Hamrick lacked sufficient opportunity from which to form an opinion. Plaintiff stated to the court during in-chambers conference only that no business in Alexander City rented vehicles and that he had never rented a vehicle. We cannot say that the trial court abused its discretion in finding that Mr. Hamrick was not qualified to testify as to the reasonable rental value of the car while it was out of service for repairs. Absent any abuse of discretion, we must affirm the trial court. See, Hicks v. Huggins, 405 So.2d 1324 (Ala.Civ.App.), cert. denied, 405 So.2d 1328 (1981).

AFFIRMED.

BRADLEY and HOLMES, JJ., concur.


author: BRADLEY, Judge.

text:
    Peggy Hensarling DELCHAMPS v. John Randolph DELCHAMPS.
    Civ. 4019.
    Court of Civil Appeals of Alabama.
    April 11, 1984.

      Barry A. Friedman, Mobile, for appellant.
    Joseph C. Sullivan, Jr., Mobile, for appel-lee.
   BRADLEY, Judge.

This is an appeal from the setting aside of a divorce decree.

The parties to this appeal were first divorced on December 3, 1982 by a decree of the Circuit Court of Mobile County. The decree incorporated an agreement of the parties which, among other things, divided the parties’ real and personal property and awarded the wife alimony in gross and periodic alimony.

On March 9, 1983 the husband filed a motion to vacate, set aside, amend, or alter the judgment of divorce, alleging the agreement incorporated into the divorce decree was obtained by fraud and duress. Rule 60(b), Alabama Rules of Civil Procedure.

After an ore tenus hearing on March 29, 1983, the court entered an order granting husband’s motion to set aside the decree on grounds of duress. Thereafter, on August 31, 1983, a second judgment of divorce was rendered by the Circuit Court of Mobile County. This decree awarded the wife considerably less than she received in the first decree. Wife appeals.

The only argument here is that the trial court erred to reversal in setting aside the first judgment of divorce on grounds that husband signed the agreement under duress. Wife contends that husband entered into and signed the settlement agreement of his own free will and she did not coerce him into signing it.

We have held that where the trial court alone hears disputed evidence a presumption of correctness attends the court’s findings and such findings will not be overturned except for palpable error, manifest unjustness, or where unsupported by the evidence. Cotton States Mutual Insurance Co. v. Conner, 387 So.2d 125 (Ala.1980). In deciding a rule 60(b) motion to set aside a judgment of divorce, the trial court has wide discretion, and its determination will be reversed only for an abuse of that discretion. Tucker v. Tucker, 403 So.2d 273 (Ala.Civ.App.1981); McSween v. McSween, 366 So.2d 293 (Ala.Civ.App.1979).

It is also the rule in this state that a settlement agreement given effect by a divorce decree must be fair, reasonable and just, and free from fraud, duress or other coercion. Cary v. Cary, 257 Ala. 431, 59 So.2d 659 (1952). “Duress” has been defined as subjecting a person to improper pressure which overcomes his will and coerces him to comply with demands to which he would not yield if acting as a free agent, and is a ground on which to support a setting aside of a divorce decree and underlying agreement. Cary v. Cary, supra; Head v. Gadsden Civil Service Board, 389 So.2d 516 (Ala.Civ.App.1980); see, 17 C.J.S. Contracts § 168. The party seeking to set aside an agreement on grounds of duress must prove by clear and convincing evidence that the duress existed at the time of execution. Johnson v. Johnson, 182 Ala. 376, 62 So. 706 (1913); Reiss v. Reiss, 46 Ala.App. 422, 243 So.2d 507 (Ala.Civ.App.1970). Moreover, the moving party must prove that he was free from fault or negligence in suffering the judgment to be entered. Stephens v. Stephens, 251 Ala. 431, 37 So.2d 918 (1948); Lindsey v. Lindsey, 48 Ala.App. 495, 266 So.2d 298 (Ala.Civ.App.1972).

In the instant case the trial court found that the evidence supported a setting aside of the judgment of divorce based on duress.

The parties were married in September 1978 after having lived together since 1975. No children were born of the marriage. In August 1982 the couple separated, and on November 22, 1982 they signed a settlement agreement that was adopted by the court in its divorce decree of December 3, 1982. The agreement was signed by both parties in the office of husband’s attorney.

On December 29, 1982 husband’s second wife intervened in the parties’ divorce action on the ground that her son’s and her support rights would be materially affected by the settlement agreement of the parties which was incorporated into the December 3, 1982 divorce decree. The trial court subsequently denied the relief sought by the second wife; however, it should be noted that at the hearing on second wife’s petition, husband testified that he did not want the December 3, 1982 divorce set aside.

On March 9, 1983 husband filed his motion seeking to have set aside the December 3, 1982 divorce decree on the grounds of fraud and duress. In support of his claim of duress, husband points to many instances of verbal and physical assaults and threats of grievous bodily harm.

Although the evidence relating to the threats and assaults is in sharp dispute, there is substantial testimony supporting the husband’s charges.

The incident precipitating the parties’ separation occurred on August 13, 1982. The husband was at the Terminal Restaurant in Mobile with some friends when wife came into the restaurant and commenced cursing and berating husband, and demanded that he leave. They left the restaurant and got in wife’s car. They got into a fight in the car. Husband persuaded wife to return to the restaurant so that he could get his car. Husband followed wife home.

On arrival at home, wife physically attacked husband, got a gun, threatened to kill him, and then locked him in the house. The house had deadbolts on all outside doors. Wife had taken husband’s glasses and keys to the house, so husband had to break out a window to escape from the house. Being fearful of his wife, he hid in a ditch for several hours to be sure wife would not find him. Thereafter, he caught a ride to the Hilton Hotel where he spent the night. He telephoned a friend to get a car for him so that he could leave Mobile. He spent the next two nights in a hotel near Pensacola, Florida.

.The friend testified that he received threatening telephone calls from wife and her mother during the time husband was out of town.

Husband returned to Mobile and stayed in a friend’s apartment.

Husband returned home later when his children by a former marriage returned for a visit. He said he felt safe with them being present.

On a subsequent occasion, an altercation arose between husband and wife, and wife started cursing and threatening him. Being in fear of his life, he fled the scene.

In September 1982 husband flew into the Mobile airport from a ball game, and as he was attempting to leave in his car, his path was blocked by wife’s car. Again wife berated and accused husband of various acts of indiscretion, and he said he felt threatened. He managed to leave the scene without further difficulty.

About a week later husband was about to leave the Mobile Air Center for a business trip to New Orleans at night when he was accosted by wife. She commenced cursing him, grabbed his glasses and threw them away, grabbed his briefcase, and began beating him over the head with it. Finally, wife got in her car and left, taking husband’s briefcase with her. Husband stated he had to continue his trip sans glasses and briefcase.

Husband testified that over the next several weeks he received numerous telephone calls from wife in which she threatened him.

In October 1982, again while at the Terminal Restaurant, husband received a telephone call from wife, during which she told him what she would require in the way of a settlement for a divorce. According to husband, the demands were so unreasonable that he disagreed, but was told by wife that if he did not agree to her demands that what would happen to him would be worse than the Leverett affair. The Leverett affair was an apparent spousal murder that had received wide publicity in the Mobile area.

On another occasion while at the Terminal Restaurant, husband was advised that wife’s brother and another man were in an automobile outside the restaurant. Husband said he was afraid of wife’s brother, so he called a friend to come get him. He and the friend left by the restaurant’s back door.

Husband did testify that he told his lawyer to prepare the settlement agreement to incorporate the demands of wife. The lawyer advised husband not to agree to such a settlement. Husband stated that he was afraid not to agree to wife’s demands.

After the- first divorce decree had been entered, and while at a court hearing on a motion to intervene filed by his second wife, husband testified that he did not want the terms of the divorce with wife changed. He stated later that the reason he so testified was because wife had told him that if he changed his mind she would blow his brains out.

Husband testified that there had been many altercations where wife had threatened his life with a gun and that he had managed to take the gun away from her on those occasions.

Other witnesses testified that wife had threatened husband with a gun in times past and that husband was afraid that wife would eventually kill him.

A psychologist testified that husband was afraid of wife and was fearful that wife would do him bodily harm.

Based on the evidence in the record, we conclude that the trial court did not abuse its discretion in finding that there was clear and convincing proof that husband signed the settlement agreement which was incorporated in the first divorce decree under duress. Hence, we hold that the trial court acted within its authority in setting aside the first decree divorcing the parties. To hold otherwise would be to substitute our judgment for that of the trial court. This the law does not permit. Sutton v. Sutton, 55 Ala.App. 254, 314 So.2d 707 (Ala.Civ.App.1975).

Wife’s request for attorney’s fee on appeal is denied.

AFFIRMED.

WRIGHT, P.J., and HOLMES, J., concur.


text:
    Helen L. BROMLEY v. Ralph M. BROMLEY.
    Civ. 4035.
    Court of Civil Appeals of Alabama.
    April 11, 1984.

      Joe R. Whatley, Jr. of Stewart, Falken-berry & Whatley, Birmingham, for appellant.
    No brief for appellee.
   BRADLEY, Judge.

The appeal is from a modification of a divorce decree.

The parties to this proceeding were divorced by the Circuit Court of Blount County on July 27, 1982. On August 3, 1982 the husband filed a motion for reconsideration of that aspect of the divorce decree requiring husband to pay for one-half of the maintenance on the house, the possession of which was awarded to the wife, and one-half of the insurance on the house. This motion was denied by the trial court on August 23, 1982.

On October 29, 1982 the husband amended his motion for reconsideration of the divorce decree by asking the court to either divide the parties’ real property equitably between them or sell the property for division.

This amended motion for reconsideration was heard by the trial court on January 11, 1983 and a decree was rendered on July 26, 1983, wherein the' court modified the divorce decree to award the wife in fee simple a portion of the property on which the house was located and awarded the husband the remainder of the property in fee simple. The court further provided that the title to the remainder of the parties’ lands shall be retained by them as joint owners with right of survivorship. It was further ordered that the husband pay the ad valorem taxes on the part of the lands awarded to him by this modification. Wife was ordered to pay taxes on the property awarded to her. The husband was ordered to maintain all jointly-held property, but was relieved of the obligation to maintain the house, which was awarded to the wife in fee simple by this modification decree. Husband was also ordered to pay wife $700 as being one-half of the difference between the appraised value of the two parcels of land.

Wife argues here (husband did not favor this court with a brief), that the trial court had no jurisdiction to modify the divorce decree in the manner that it did because the motion for reconsideration filed October 29, 1982 was not ruled on within the time provided by rule 59.1, Alabama Rules of Civil Procedure.

Rule 59.1, A.R.Civ.P., provides, in part, as follows:

“No post-trial motion filed pursuant to Rules 50, 52 or 59 shall remain pending in the trial court for more than 90 days, unless with the express consent of all the parties, which consent shall appear of record .... A failure by the trial court to dispose of any pending post-trial motion within the time permitted hereunder, or any extension thereof, shall constitute a denial of such motion as of the date of the expiration of the period.”

Wife says that the motion for reconsideration. that was filed on October 29, 1982 was not decided by the trial court until July 26, 1983 and, thus, was too late under rule 59.1, A.R.Civ.P.

It is true that the amendment to the motion for reconsideration was filed on October 29, 1982 and was not ruled on until July 26, 1988. The ruling, therefore, was made more than ninety days after the motion was filed and was too late under rule 59.1. The motion was thus deemed denied by operation of law long before the trial court ruled on it. Thompson v. Keith, 365 So.2d 971 (Ala.1978).

In addition, we note that the original motion for reconsideration was denied by the trial court on August 23,1982. Consequently, that motion could not be amended as husband apparently tried to do on October 29, 1982.

If the motion filed on October 29, 1982 could not be treated as an amendment to the motion filed on August 3, 1982, then it would have to be considered as a new motion for reconsideration of the divorce decree. So treated, the motion was late. It was filed more than thirty days after the divorce decree of July 27,1982. Motions to alter, amend, or vacate a judgment must be filed within thirty days of the entry of judgment. Rule 59(e), A.R.Civ.P.

Could the motion filed on October 29, 1982 have been considered by the trial court as a petition for modification of the divorce decree rather than a rule 59(e) motion?

There is language in the court’s decree that suggests that the court might have considered the. motion as a petition for modification. The court said in its decree that it was modifying the original divorce decree to make disposition of the parties’ real property contrary to what it had done in the divorce decree.

Wife says the trial court had lost jurisdiction to modify the property settlement encompassed in the divorce decree. We agree.

In the original decree the trial court awarded all of the parties’ real property to them as joint owners with right of surviv-orship, and authorized the wife to occupy the dwelling house and gave the husband the right to farm the remainder of their land. Each party was ordered to pay one-half of the taxes and insurance, and one-half of the maintenance on the property. The court also made disposition of the parties’ personal property.

In the modification decree the trial court changed completely the disposition of the parties’ real property made in the first decree. A divorce decree dividing the parties’ property between them is not subject to modification, except for clerical errors, after the lapse of thirty days from entry of the decree. Culverhouse v. Culverhouse, 389 So.2d 937 (Ala.Civ.App.1980). The petition to reconsider or modify was filed more than thirty days after the original decree. The trial court erred in modifying a non-modifiable property division decree.

For the reasons set out above, the trial court’s decree of July 26, 1983 is reversed and the cause is remanded for entry of a decree denying the amended motion for reconsideration filed on October 29, 1982.

REVERSED AND REMANDED WITH DIRECTIONS.

WRIGHT, P.J., and HOLMES, J., concur.