author: TORBERT, Chief Justice. EMBRY, Justice

text:
    Glenda BLAND, Trustee for Lashunda Bland, Angela Bland and Consuella Bland, minor children of a mortgagor, Chester Bland v. Virgil HUNTER.
    82-835.
    Supreme Court of Alabama.
    Feb. 3, 1984.
    Rehearing Denied April 6, 1984.
    David A. Sullivan, Birmingham, for appellants.
    M. Wayne Wheeler, Birmingham, for ap-pellee.
   TORBERT, Chief Justice.

This appeal by Glenda Bland, the mother of minor children Lashunda Bland, Angela Bland, and Consuella Bland, is from a judgment denying relief in an action seeking to redeem certain real property. We reverse and remand the cause for further proceedings.

In October of 1978, Chester Bland, deceased, father of the minor children named above, executed a mortgage upon the real property, the subject of this action, to Davis King and his wife Marion King. In February of 1979, Bland gave a second mortgage on the same property to Virgil Hunter. After default, Hunter foreclosed the second mortgage, and he was the purchaser at the foreclosure sale on July 24, 1979. Bland did not exercise his statutory right of redemption regarding this foreclosure,-and the statutory period expired July 24, 1980.

Subsequently, the Kings foreclosed the first mortgage, and they were the purchasers at that sale on January 5, 1982. Then, on February 12, 1982, the Kings conveyed all their rights, title, and interest in the real estate to Hunter.

The Bland children, through their mother as trustee, made demand of Hunter on June 24, 1982, for a statement of debt and other lawful charges. On August 19, 1982, the Bland children, by their mother, filed this action seeking to redeem.

The basic issue raised is whether the children of a mortgagor may redeem from the foreclosure of a first mortgage after expiration of the redemption rights in a previously foreclosed second mortgage.

Hunter filed a motion for summary judgment. Hunter argued that the redemption rights of the Bland children were governed by § 6-5-232 and that the language of that section required redemption within one year of the foreclosure of the second mortgage. The trial court found for Hunter with respect to the time for redemption, while stating some reservations as to the applicability of § 6-5-232:

“It is the opinion of the Court that, to the extent that the provisions of Section 6-5-232 had any application to the fact situation involved in this case, the right of redemption would have had to have been exercised (or at least a demand made for the redemption value) within one year following the foreclosure of the second mortgage on July 24, 1979. This right expired on July 24, 1980, without being exercised and thereafter the Defendant owned all of the interest of Chester Bland in the property and there were no rights in either [him] or the group of persons named in Section 6-5-232 to redeem from the foreclosure of this original mortgage. It is the opinion of the Court that the phrase “within one year from the time of the original sale” as it applies to the right of redemption granted under Section 6-5-232, means, in this case, from the sale held at the foreclosure on July 24, 1979. The Court therefore finds in favor of the Defendant.”

(Emphasis added.) Section 6-5-232 creates a right of redemption by the debtor’s wife, widow, children, heirs, or devisees from a junior mortgagee or junior judgment creditor who had redeemed from a senior mortgagee or creditor. The statute provides as follows:

“(a) In the event a junior mortgagee or junior judgment creditor redeems from the foreclosure of a prior mortgagee or from a prior judgment creditor, the debtor’s wife, widow, children, heirs or devisees may redeem from such junior mortgagee or junior judgment creditor by paying to the junior mortgagee or junior judgment creditor the amount which he paid to redeem, together with:
“(1) Ten percent interest thereon from the time he paid it;
“(2) The amount of the secured debt of the junior mortgagee or junior judgment creditor; and
“(3) The interest and all lawful charges upon the premises which have accrued after the redemption by the junior mortgagee or junior judgment creditor.
“(b) The redemption from the junior mortgagee or junior judgment creditor provided for in this section shall be made within one year from the time of the original sale and in the manner and mode as provided for in cases of redemption from the first or senior mortgagees or other purchasers at execution or judicial sales.”

(Emphasis added.) The issue considered by the trial court was whether the phrase “the original sale” refers to foreclosure of the junior mortgage in 1979 or the subsequent sale of the senior mortgage in 1982.

The parties misunderstand the basic framework which governs the statutory right of redemption. When Hunter foreclosed his second mortgage, and was the purchaser at the foreclosure sale, he became the owner of the equity of redemption in the property subject to the senior mortgage. Hunter, who purchased at his foreclosure sale, ceased to be the junior mortgagee. Instead, he became the owner or assignee of the equity of redemption. Section 6-5-232 contemplates only the situation where the senior mortgage is foreclosed before the junior mortgage. The statute does not apply to the present action where the junior mortgage was foreclosed first. The trial judge was correct in questioning the application of § 6-5-232.

The statute which appears to apply is § 6-5-230:

“Where real estate, or any interest therein, is sold under execution or by virtue of any judgment in a court of competent jurisdiction or under any deed of trust or power of sale in a mortgage, the same may be redeemed by the debt- or, junior mortgagee, vendee of the debt- or or assignee of the equitable or statutory right of redemption, wife, widow, child, heir at law, devisee or any vendee or assignee of the right of redemption under this Code from the purchaser or his vendee within one year thereafter in the manner provided in this article.”

Sections 6-5-230 and 6-5-231 create a set of priorities with respect to potential re-demptioners. The parties listed in § 6-5-230 appear in descending order of priority. In order to redeem within six months of a foreclosure, a putative redemptioner must give notice to those who have a higher priority under § 6-5-230. § 6-5-231, Code 1975. Failure to give notice and otherwise comply with the statutes will give the parties with higher priority a later opportunity to redeem. See Upchurch v. West, 234 Ala. 604, 608-09, 176 So. 186, 189-90 (1937). See generally Coastal Bank of Ga. v. Le-Maistre, 359 So.2d 781 (Ala.1978).

We are unable to reach the issue of the respective priorities of Hunter and the Bland children under § 6-5-230. The trial court has not decided the issue, and the parties have not briefed it. Indeed, the record is not clear as to the transaction on February 12, 1982, wherein Hunter acquired .the subject property from the Kings (the senior mortgagees who had earlier foreclosed their first mortgage and were the purchasers at the foreclosure sale). That instrument was not found in the record. Appellee Hunter, in his brief, contends that he is not a junior mortgagee but is “a purchaser at sale,” but appellant, in her brief, refers to Hunter as having redeemed from the Kings. Moreover, Appel-lee Hunter, in discussing the decision in Huie v. Smith, 236 Ala. 516, 183 So. 661 (1938), refers to himself as having redeemed from the Kings (the senior mortgagees). Whether the transaction on February 12, 1982, was a purchase or a redemption is an important issue in the determination of the rights of the respective parties.

Therefore, we reverse the summary judgment, which applied § 6-5-232 to prevent redemption, and remand the cause for a determination of redemption rights under § 6-5-230.

REVERSED AND REMANDED WITH INSTRUCTIONS.

MADDOX, JONES, SHORES and BEAT-TY, JJ., concur.

FAULKNER and EMBRY, JJ., dissent.

ALMON, J., not sitting.

ADAMS, J., recused.

EMBRY, Justice

(dissenting).

The sole issue for review in this case is whether the children of Chester Bland have a right to redeem under §§ 6-5-230, 6-5-231, and 6-5-232, Code 1975. In my view, these three code sections must be read in pari materia. Section -230 sets out the parties who may exercise the right of redemption and limits exercise of that right to a period of one year. Section -231 sets the order of priorities of the parties with respect to the right to redeem and provides a method and/or a time limit allowing one party to ascend in priority if a party senior in priority fails to act within specified time limits. Section -232 recognizes the right of a wife, children, and others, and permits redemption in the event a junior mortgagee redeems from the foreclosure of a prior mortgage, with a limitation of one year from the original sale. Interpretation of the term “original sale” is the key to adjudication of the timeliness vel non of the Bland children’s attempt to exercise any rights of redemption granted them under the code sections.

The adjudicatory portion of the trial court’s summary judgment is:

“It is the opinion of the Court that the phrase ‘within one year from the time of the original sale’ as it applies to the right of redemption granted under Section 6-5-232, means, in this case, from the sale held at the foreclosure on July 24, 1979. The Court therefore finds in favor of the defendant.”

The parties agreed there are no disputed facts and the trial court needed only to address a question of law.

Appellant places great reliance upon Huie v. Smith, 236 Ala. 516, 183 So. 661 (1938), to sustain her position. That reliance is misplaced. Appellee correctly distinguishes the facts in Huie from the facts in the case sub judice. In Huie there were two mortgages, a first mortgage from Smith to Lamar which was assigned to Armstrong and foreclosed by the latter on 2 February 1934 and the property sold to Huie. A second mortgage, Smith to Gayle, which was foreclosed 5 December 1932 and the property sold to Gayle. Plaintiff, a child of Smith, sought to redeem from Huie under the first mortgage and not from Gayle under the second mortgage. Gayle did not redeem from the first mortgage, as did Hunter in this case. After 24 July 1979 (the foreclosure date of the second mortgage, at which Hunter became the purchaser), Virgil Hunter was the owner and not a junior mortgagee. Hunter subsequently sold his title, rights, and interest to and in the real property here involved. After 5 January 1982, the Kings were owners and not senior mortgagees. In my opinion, the trial court correctly interpreted “original sale” as being that of 24 July 1979, and no notices were given anyone during the one-year period 24 July 1979-24 July 1980. After the latter date, the Bland children’s rights of redemption were terminated.

For the stated reasons, I would affirm the judgment of the trial court.

FAULKNER, J., concurs.

      . The action was originally filed by Glenda Bland as "trustee" of the children. The trial court deemed this filing improper. According to that ruling, Glenda Bland should have filed as "next friend" of the children. The court permitted an amendment and allowed it to relate back to the time of the filing of the original complaint. The propriety of this determination is not before the Court.

      . Since we hold that § 6-5-232 only applies to situations where the senior mortgage is foreclosed before the junior mortgage, the phrase "the original sale” will always refer to the foreclosure of the senior mortgage.

      . In Alabama, a "title state,” a mortgage passes legal title to the mortgagee. The mortgagor is left with the equity of redemption. See Trauner v. Lowrey, 369 So.2d 531 (Ala. 1979). When the mortgagor enters into a junior mortgage, the junior mortgagee is vested with the equity of redemption in the senior mortgage. Under such circumstances, the mortgagor only has the equity of redemption in the junior mortgage.


source: Caselaw Access Project

author: ALMON, Justice. TORBERT, Chief Justice

license: Public Domain

text:
    Charles A. GRADDICK, etc., et al. v. Julian L. McPHILLIPS, Jr.
    82-499.
    Supreme Court of Alabama.
    March 9, 1984.
    Rehearing Denied April 6, 1984.

      Oakley Melton, Jr., Joe Espy, III, and Michael S. Jackson of Melton & Espy, Montgomery, for appellants.
    Julian L. McPhillips, Jr., of McPhillips & DeBardelaben, and L. Gilbert Kendrick, Montgomery, for appellee.
   ALMON, Justice.

This appeal raises the question of whether increases in salary paid to the state attorney general during his term, pursuant to a statute enacted prior to his taking office, violate the section of the Constitution providing that he “shall receive compensation to be fixed by law, which shall not be increased or diminished during the term” for which he is elected. The trial court declared that the increases in salary violated the Constitution, but ordered no repayments of increased amounts.

Julian L. McPhillips, Jr., commenced this action by filing a taxpayer’s action against Charles A. Graddick, individually and as Attorney General of Alabama, and against the state comptroller, finance director, and treasurer. The complaint sought declaratory judgment as to the effect of § 36-15-3, Code 1975, and injunctive relief ordering Graddick to repay approximately $20,000 in allegedly unconstitutional pay raises. The complaint also sought injunctions against the other defendants ordering them to stop paying Graddick a salary in excess of that in effect when he took office, i.e., $39,-500.00.

The three financial officer defendants— Comptroller Brassell, Finance Director Rainer, and Treasurer Gunter — petitioned for a stay of the proceedings because Governor James had requested an advisory opinion from this Court on the same matter. The circuit court granted the stay. On December 22, 1982, this Court issued an opinion declining to answer the question because of the pendency of this litigation. Opinion of the Justices, No. 298, 431 So.2d 496 (Ala.1982). The trial court thereafter dissolved the stay.

On January 18, 1983, McPhillips filed an amended complaint, striking the prayers for injunctions against the financial officer defendants ordering them not to allow payments to Graddick in excess of $39,500.00, on the grounds that such relief had become moot when Graddick began his second term of office on January 17, 1983. The amended complaint substituted prayers for injunctions ordering the financial officer defendants and their successors in office not to authorize or approve payments to an attorney general greater than the salary at the beginning of a particular term of office.

The defendants filed a motion to dismiss, or in the alternative, for summary judgment, and, without waiving these motions, filed an answer. The trial court held a hearing and took the matter under submission. On February 23, 1983, the trial court issued an order holding that “Article V, § 118 of the Alabama Constitution of 1901, as amended, is controlling and superior to § 36-15-3 Code of Alabama (1975). Any salary increased [sic] or decreases during the term of office of the listed officials violate the constitutional prohibition.” Defendants filed notice of appeal to this Court.

Article V, § 118, Constitution of 1901, reads in pertinent part as follows: “The governor, lieutenant governor, attorney-general, [and other named officers], shall receive compensation to be fixed by law, which shall not be increased or diminished during the term for which they shall have been elected....”

The salary increases which are the subject of this lawsuit arose in the following manner: In 1969 the legislature passed Act No. 411, 1969 Ala. Acts, p. 811. This Act provided that “The salary of the attorney general of Alabama shall be an amount equal to the salary of an associate justice of the supreme court of Alabama,” and specified that it was to take effect “upon the expiration of the term of the incumbent Attorney General.” This Act is now codified at § 36-15-3, Code 1975.

In 1973 the voters ratified Amendment No. 328 to the Constitution, adopting a new Judicial Article. Section 6.09 of Amendment 328 created a judicial compensation commission “which shall recommend the salary and expense allowances to be paid from the state treasury for all the judges of this state except for judges of the probate court.” Paragraph (d) of that section provided:

“The commission may submit a report to the legislature at any time within the first five calendar days of any session. The recommendations of the commission shall become law unless rejected by a joint resolution or altered by act of the legislature at the session to which the report is submitted. The compensation of a judge shall not be diminished during his official term.”

Graddick began his first term of office in January of 1979. The associate justices’ salary increased in May, 1980, and April, 1982, pursuant to reports of the judicial compensation commission which became law without alteration by the legislature. Graddick received the same pay increases at both times. After the second of these raises, McPhillips brought this action.

McPhillips correctly perceived that the prayer for injunctions against the financial officer defendants in his original complaint became moot when Graddick began his second term of office in Janury 1983. It is also the case, however, that his other claims for relief were non-justiciable; hence, the trial court should have dismissed the action.

The count requesting the court to order Graddick to repay all compensation in excess of $39,500.00 per year is barred by Code 1975, § 36-5-24, which reads:

“When any state or county official shall have collected or paid out any money as fees, salary or compensation for official services rendered under any law of Alabama, general or special, which law, subsequent to such collection or paying out, shall be declared by the supreme court of Alabama to be unconstitutional or void or illegal, such officer shall not be liable either individually or on his official bond in any civil action brought for the recovery of such money so collected or paid out, nor shall the person to whom the same shall have been paid be liable therefor.”

(Emphasis added.) The defendants’ motion to dismiss urged that the prayers in the complaint were either moot or did not state claims upon which relief could be granted.

We agree that § 36-5-24 precludes any refunds of payments made to Graddick. McPhillips attempts to distinguish the situation at bar from that covered by the statute by saying that he is not seeking to have § 36-15-3 declared unconstitutional, but only to have the interpretation of that statute by the defendants held in violation of § 118 of the Constitution. This distinction does not alter the fact that the relief sought would violate both the spirit and the letter of § 36-5-24. The reference in that section to a statute declared “to be unconstitutional or void or illegal,” is broad enough to include a declaration as to a certain application of the statute. Thus a judgment that the defendants’ interpretation of § 36-15-3 violated § 118 would not authorize an order of repayment because of the prohibitions of § 36-5-24.

Similarly, McPhillips’s other requests for relief were due to be dismissed. His prayers for a judgment declaring that the first-term raises violated § 118 were moot once Graddick entered his second term. Moreover, both the declaratory judgment counts and the amended counts requesting injunctions against same-term pay raises sought, in effect, an advisory opinion. “The proper test of the sufficiency of a complaint in a declaratory judgment proceeding is whether there is a bona fide justiciable controversy which should or ought to be settled.” White v. Thomas, 370 So.2d 983, 984 (Ala.1979); Trabits v. First Nat. Bank of Mobile, 295 Ala. 85, 323 So.2d 353 (1975); cases cited at 7A Ala. Digest, Declaratory Judgment, Key # 313. The same authorities establish that declaratory judgment proceedings will not lie for an anticipated controversy.

This Court has long held that “[t]he declaratory judgment statutes do not empower courts to decide moot questions ... or to give advisory opinions, however convenient it might be to have the questions decided for the government of future cases.” Alabama-Tennessee Nat. Gas Co. v. City of Huntsville, 275 Ala. 184, 192, 153 So.2d 619 (1963); see also State ex rel. Baxley v. Johnson, 293 Ala. 69, 300 So.2d 106 (1974); Smith v. Alabama Dry Dock & Shipbuilding Co., 293 Ala. 644, 309 So.2d 424 (1975).

Because the amended counts for injunc-tive relief are predicated on hypothetical future raises, they seek essentially declaratory relief and do not present a justiciable controversy for the reasons set out above. Moreover, the scheme under which the Legislature approves reports of the Judicial Compensation Commission has changed under Amendment No. 426, which was proclaimed ratified on November 17, 1982. Thus the facts under which any future increases in pay to the Attorney General might take place would be significantly different from those of the case at bar, and any controversy surrounding such an increase should, be decided at the time it arises.

The foregoing analysis establishes that the trial court should have dismissed the action as non-justiciable, and the judgment holding that the salary increases violated § 118 of the Constitution of 1901 is therefore void. An appeal will not lie to reverse a void decree, and the appeal must be dismissed. State ex rel. Baxley v. Johnson, supra, 293 Ala. at 73, 300 So.2d at 110; City of Mobile v. Scott, 278 Ala. 388, 178 So.2d 545 (1965).

APPEAL DISMISSED.

MADDOX, FAULKNER, JONES, SHORES, EMBRY, BEATTY and ADAMS, JJ., concur.

TORBERT, C.J., concurs in part and dissents in part.

TORBERT, Chief Justice

(concurring in part and dissenting in part).

I dissent from the majority’s failure to reach the merits of the alleged conflict between the mandate of Article V, section 118, of the Alabama Constitution (1901, as amended 1969), and the salary adjustments occasioned by the application of the provisions of Code 1975, § 36-15-3. The usual rule as stated by the majority is “that declaratory judgment proceedings will not lie for an anticipated controversy.” However, the conflict presented in this case comes within the exception to the general rule for cases that are “capable of repetition, yet evading review.” Roe v. Wade, 410 U.S. 113, 126, 93 S.Ct. 705, 713, 35 L.Ed.2d 147 (1973); Murphy v. Hunt, 455 U.S. 478, 482, 102 S.Ct. 1181, 1183, 71 L.Ed.2d 353 (1982). Although the action was filed too late to have been finally determined before a new term of office commenced, there is a reasonable expectation that the same controversy could recur, involving the same basic constitutional issue. See Murphy, 455 U.S. at 482, 102 S.Ct. at 1183. “Furthermore, controversies regarding the legality of the acts of public officials, or public agencies, challenged by parties whose interests are adversely affected, is one of the favored fields for declaratory judgment.” White v. Thomas, 370 So.2d 983, 985 (Ala.1979) (Maddox, J., dissenting); Morgan v. Board of School Commissioners of Mobile County, 248 Ala. 22, 26 So.2d 108 (1946). As to the merits of this constitutional issue, it is my view that the trial court was correct — that § 118 of the Alabama Constitution is controlling and that any salary increases or decreases during the term of office of the listed officials would violate the constitutional prohibition contained in that section.

Article V, section 118, provides in part:

“The governor, lieutenant governor, attorney-general, state auditor, secretary of state, state treasurer, superintendent of education, and commissioner of agriculture and industries, shall receive compensation to be fixed by law, which shall not be increased or diminished during the term for which they shall have been elected, and shall, except the lieutenant governor, reside at the state capital during the time they continue in office, except during epidemics.”

Constitutional provisions, such as this one, prohibiting a change in compensation have been held to be inexorable, and they may not be dispensed with, circumvented, or ignored. 67 C.J.S. Officers § 230(a), p. 733 (1978). However, these constitutional limitations “do not in any way prevent the Legislature, in any proper manner it sees fit and at any time, from passing a law or laws either increasing or diminishing the pay, salaries, or compensation of any officer or employee of the state.” State Docks Commission v. State ex rel. Jones, 227 Ala. 521, 528, 150 So. 537, 542 (1933). These limitations would not impair the validity of such an act, but would only affect the date at which the various provisions of the law' would go into effect. State Docks Commission, 227 Ala. at 528, 150 So. at 543; Hawkins v. Jefferson County, 233 Ala. 49, 169 So. 720 (1936); see Hamilton v. Autauga County, 289 Ala. 419, 268 So.2d 30 (1972).

The increases sought to be recovered in the present action were paid to the attorney general pursuant to an interpretation of Code 1975, § 36-15-3. Section 36-15-3 provides:

“The salary of the attorney general of Alabama shall be an amount equal to the salary of an associate justice of the supreme court of Alabama. The salary provided for herein shall be payable in installments as the salaries of other state officers are paid and shall be the full compensation to which the attorney general is entitled from the state for the performance of his official duties.”

The constitutional prohibition of § 118 must be read into § 36-15-3. State Docks Commission v. State ex rel. Jones, 227 Ala. at 529, 150 So. at 543. The act is not void by reason of this constitutional prohibition, but its effect is held in abeyance insofar as it would otherwise increase or diminish the compensation of the attorney general during a given term. See Hawkins v. Jefferson County, 233 Ala. at 52,169 So. at 722; 69 C.J.S. Officers § 230(c), pp. 737-38 (1978).

While the salary increase paid to the attorney general during this term of office resulted in an unconstitutional application of the provisions of § 36-15-3, nonetheless, it is equally clear, as a matter of law, that the provisions of Code 1975, § 36-5-24, preclude any recovery of state funds already disbursed by the appropriate state officials. Payments of salaries are made by the issuance of a state warrant by the state comptroller, and the warrant is paid by the state treasurer.

Code 1975, § 36-5-24, provides:

“When any state or county official shall have collected or paid out any money as fees, salary or compensation for official services rendered under any law of Alabama, general or special, which law, subsequent to such collection or paying out, shall be declared by the supreme court of Alabama to be unconstitutional or void or illegal, such officer shall not be liable either individually or on his official bond in any civil action brought for the recovery of such money so collected or paid out, nor shall the person to whom the same shall have been paid be liable therefor.”

The Legislature, by enacting § 36-5-24 (previously Code 1940, tit. 41, § 58; Code 1923, § 2619), provided protection to state officials from liability for certain conduct authorized or required by an act subsequently declared unconstitutional. Powers v. United States Fidelity & Guaranty Co., 236 Ala. 389, 392-93, 182 So. 758, 760 (1938). The language of this statute expressly extends protection to an officer paying out public funds pursuant to a statute, as well as to the person receiving them. Cooper v. Hawkins, 234 Ala. 636, 639, 176 So. 329, 331 (1937).

The purpose of this statute is worthy of comment. There are several constitutional provisions which govern the procedure of the Legislature in passing laws. See Ala. Const, art. IV, §§ 45, 61, 62, 63, and 66. Statutes enacted by the Legislature which do not comport with these constitutional provisions have been declared unconstitutional, null and void, and of no force and effect. However, until challenged and declared unconstitutional by a court of competent jurisdiction, statutes enacted by our Legislature have the force and effect of law. As such, public officials are required to comply with their provisions; they are binding on our citizens. The purpose of § 36-5-24 is clearly to encourage compliance with statutes unless and until they are declared invalid. Otherwise, public officials who are charged with the payment of public funds under a statute such as the one in question here would be exposed to liability for complying with the provisions of a law which is subsequently invalidated. This situation seems to be exactly the kind of problem contemplated by the Legislature in 1921 when it adopted the statute barring recovery of payments. Code 1975, § 36-5-24. The attorney general is entitled to the benefit of that statute just as any other state employee or officer is.

While I agree that the payments to the attorney general became proper once he entered his second term, I do not agree that that fact mooted the request for declaratory relief. I would reach and decide the constitutional issue.


author: ALMON, Justice.

text:
    Ex Parte Flora Jane NELSON, d/b/a W.J. Nelson Company. (In re Flora Jane NELSON, d/b/a W.J. Nelson Company v. LAPEYROUSE GRAIN CORPORATION, Lapeyrouse Grain Corporation of Alabama, et al.)
    82-1280.
    Supreme Court of Alabama.
    March 9, 1984.
    Rehearing Denied April 6, 1984.
    Roger S. Morrow of Whitesell, Morrow & Romine, and Robert M. Alton, Jr., Montgomery, for petitioner.
    Caine O’Rear, III, and Kathryn A. Ecker-lein of Hand, Arendall, Bedsole, Greaves & Johnston, Mobile, for respondents.
   ALMON, Justice.

This is a petition for writ of mandamus ordering the trial court to set aside an order granting a change of venue. Petitioner, plaintiff below, contends that the record shows that at least one of the defendant corporations was doing business, at the time the cause of action arose, in the county where the action was brought and thus that venue was proper in that county.

Flora Jane Nelson, the plaintiff, operates the W.J. Nelson Company, a sole proprietorship in Fairhope, Baldwin County, Alabama, formerly operated by her late husband. The business buys grain and soybeans from local farmers and transports them to Mobile to the warehouses of defendants Lapeyrouse Grain Corporation and Lapeyrouse Grain Corporation of Alabama. Lapeyrouse resells the grain and soybeans and sends the proceeds to Nelson. Nelson maintains an account with Lapey-rouse, which Lapeyrouse credits for sales of Nelson grain and debits for advances and payments to Nelson.

The case from which this petition arises involves a number of items entered on the Nelson account. The principal dispute concerns the failure of Lapeyrouse to sell nearly 50,000 bushels of soybeans on November 5, 1980, when Mr. Nelson allegedly instructed Lapeyrouse to sell. Instead of a $465,262.66 credit for a sale at that day’s market price, Lapeyrouse’s books show a continuing storage fee and other charges.

Mrs. Nelson filed this action on January 26, 1983, in the Circuit Court of Baldwin County. Lapeyrouse filed a motion to transfer the action to Mobile County on the grounds that neither corporation was doing business by agent in Baldwin County “at any time relevant to the complaint.” The court, after a hearing on the motion, entered an order finding that venue was improper in Baldwin County and transferred the cause to Mobile County. Mrs. Nelson brought this petition for writ of mandamus.

The parties agree that venue of this action is governed by Code 1975, § 6-3-7, which reads in pertinent part:

“A foreign corporation may be sued in any county in which it does business by agent, and a domestic corporation may be sued in any county in which it does business by agent or was doing business by agent at the time the cause of action arose ....”

Both defendants are domestic corporations, and the dispute is whether they were doing business by agent in Baldwin County at the time the cause of action arose.

Lapeyrouse’s offices and storage facilities are in Mobile, except for one silo in Loxley, a community in Baldwin County. Lapeyrouse stopped using this silo in the fall of 1978 or thereafter, but continues to own and maintain it. Mrs. Nelson’s complaint alleges that the first item in the account that is in dispute is dated April 14, 1978, in the amount of $36,000. She denies that she owes this amount, while Lapey-rouse contends that she does. Mrs. Nelson argues that because agents of Lapeyrouse were operating the silo in Baldwin County at the time this disputed entry was made, Lapeyrouse was doing business by agent in Baldwin County at the time the cause of action arose and thus that venue was proper in that county.

Lapeyrouse argues that the depositions and the evidence taken at the hearing clearly show that Nelson owes the $36,000. This entry arises from a personal loan from Nelson to Ann Greenfield, vice president of Lapeyrouse. She repaid the loan with a Lapeyrouse check, and Lapeyrouse contends that Nelson’s account was properly debited for this amount. Mrs. Greenfield’s deposition, however, indicates that it was common practice for Lapeyrouse officers to informally borrow money from the company by drawing checks, and that Mr. Nelson had reason to know this when he accepted the Lapeyrouse check in payment for the personal loan to Mrs. Greenfield. Nelson thus has at least some claim that Mrs. Greenfield, not Nelson, owes this $36,000 to Lapeyrouse, and that the entry was incorrectly made on Nelson’s account in 1978.

The burden of proving that venue is improper in the county in which a suit is brought is upon the party making such a claim. Ingram v. Omelet Shoppe, Inc., 388 So.2d 190 (Ala.1980); Medical Service Administration v. Dickerson, 362 So.2d 906 (Ala.1978); Johnson Publishing Co. v. Davis, 271 Ala. 474, 124 So.2d 441 (1960). When a party petitions for writ of mandamus to set aside an order transferring venue, this Court is to ascertain whether the trial court abused its discretion or exercised it in an arbitrary and capricious manner. Ex parte Wilson, 408 So.2d 94 (Ala. 1981). Under the facts and circumstances of this case; the trial court erred in granting the motion to transfer.

The writ of mandamus is therefore due to be granted, and the trial court is hereby ordered to vacate the order transferring the cause to the Circuit Court of Mobile County and to restore the case to the docket in the Circuit Court of Baldwin County.

WRIT GRANTED.

All the Justices concur.

      . We shall refer to the two corporations simply as “Lapeyrouse,” because if venue is proper as to either, it is proper as to both. Ingram v. Omelet Shoppe, Inc., 388 So.2d 190 (Ala.1980); Ex parte Maness, 386 So.2d 429 (Ala.1980).


author: PER CURIAM.

text:
    Jacob Harold REACH v. ST. CLAIR SHORES MARINA, INC., and Donald Watts.
    82-960.
    Supreme Court of Alabama.
    March 23, 1984.
    J. William Thomason, Bessemer, for appellant.
    No briefs for appellees.
   PER CURIAM.

This appeal challenges the trial court’s order granting a directed verdict as to each of Plaintiff’s claims — misrepresentation and conversion. Because of our reversal and the impending retrial as to Plaintiff’s claims for misrepresentation, a detailed recital of Plaintiff’s evidence would be inappropriate. Suffice it to say that the testimony supportive of Plaintiff’s fraud claim, if believed by the jury, would warrant a plaintiff’s verdict. International Resorts, Inc. v. Lambert, 350 So.2d 391 (Ala.1977); Mid-State Homes, Inc. v. Johnson, 294 Ala. 59, 311 So.2d 312 (1975).

As to the conversion claim, the evidence fails to show the requisite element of Plaintiffs title or right of possession to the property allegedly converted. Ott v. Fox, 362 So.2d 836 (Ala.1978).

AFFIRMED IN PART; REVERSED IN PART; AND REMANDED.

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


author: BEATTY, Justice.

text:
    William E. MOSELEY and Loretta Moseley v. Herman LATHAN and Dorothy B. Lathan.
    82-1157.
    Supreme Court of Alabama.
    March 23, 1984.

      John T. Crowder, Jr. of Cunningham, Bounds, Yance, Crowder and Brown, Mobile, for appellants.
    Thomas M. Galloway, Jr. of Collins, Galloway & Smith, Mobile, for appellees.
   BEATTY, Justice.

Plaintiffs, the Moseleys, sought to set aside a foreclosure sale. The circuit court, following a hearing, denied the relief sought. Plaintiffs appealed. We affirm.

On or about November 1, 1976, the plaintiffs and defendants entered into an agreement whereby plaintiffs were to purchase from the defendants .69 acres of land and the improvements thereon. The agreement was evidenced by plaintiffs’ promissory note made payable to defendants and secured by a mortgage of the same date. The purchase price of $64,200.00 was to be payable over 16 years at 6% per annum by monthly installments of $520.94, each installment being due on the first day of the month. The promissory note contained terms which placed the makers in default for failure to pay a monthly installment by the first day of the month; however, it also specified that such a default could be cured by payment prior to the due date of the next installment. The note further provided that if the default was not cured the entire principal sum and accrued interest “shall at once become due and payable without notice at the option of the holder of this note.”

Having encountered problems with late payments, the parties reached an agreement pertaining to the method by which payments would be made in timely fashion. The purchasers began making payments to the sellers through their respective banks in the following manner. The purchasers’ bank, the Washington County State Bank in McIntosh, upon notification of a deposit, would issue its own cashier’s check made payable to the sellers and would send this check to the sellers’ bank, the Jackson Bank and Trust Company in Jackson. The latter bank then would deposit the check into the sellers’ account.

On February 23, 1982, plaintiffs deposited the amount of the February installment (which was due February 1, 1982), with their bank. ■ On or about February 26, 1982, a cashier’s check was prepared by plaintiffs’ bank but was not sent by it to the defendants’ bank until March 1, 1982. This check was received by defendants’ bank on March 2, 1982, and deposited into defendants’ account on that same day.

On or about March 24, 1982, the sellers’ bank received the purchasers’ March payment (due March 1), and it was deposited directly into the sellers’ account.

There is some dispute as to the time when the defendants first learned that the February payment exceeded the grace period provided in the note. In its final order, the trial court noted that the plaintiffs failed to prove what date the defendants acquired knowledge of the late February payment. The defendants rejected the payment and returned the February and March payments to the plaintiffs by a letter dated April 9, 1982.

On June 7, 1982, the property was sold at a foreclosure sale. On July 1, 1982, the plaintiffs filed suit in the Circuit Court of Clarke County to set the foreclosure sale aside.

Following a hearing, the trial court entered an order denying the relief sought by the plaintiffs. This appeal ensued.

The first question presented is whether or not the acceptance of the February and March payments by the sellers’ bank constitutes an acceptance by the sellers themselves so as to waive the sellers’ right to accelerate the payments under the note?

There is no dispute that the February installment, due on February 1, was in default. Although plaintiffs had deposited money with their bank in McIntosh on February 23, 1982, the cashier’s check sent by that bank on behalf of plaintiffs was not received by the defendants’ bank in Jackson until March 2, 1982, two days beyond the grace period allowed by the note. Accordingly, the defendants-sellers had acquired the option to declare the entire principal and accrued interest due and payable.

Thus, the question becomes whether the sellers accepted the payment, waiving their rights under the acceleration clause, when their bank in Jackson deposited the McIntosh bank’s check in their account. Or, in other words, was the Jackson bank in the position of an agent with the power -to accept payments made after the grace period had expired and thus bind its principals, the sellers?

Agency is a question of fact and, as such, it is subject to the ore tenus rule. Wood Chevrolet Co. v. Bank of the Southeast, 352 So.2d 1350 (Ala.1977). Although in its order the trial court made no specific finding regarding the agency status of the sellers’ bank, the judgment denied plaintiffs relief. When the trial court does not make specific findings of fact, this court must, nevertheless, assume that the trial, court found facts supporting its judgment, unless such a finding would be clearly erroneous and against the preponderance of the evidence. Lipscomb v. Tucker, 294 Ala. 246, 314 So.2d 840 (1975). The purchasers insist that the sellers’ own evidence discloses opportunities to instruct their bank to reject late payments, opportunities of which the sellers did not avail themselves. On the other hand, the tendencies of Mrs. Lathan’s evidence are that the sellers’ bank did not have the authority to accept late payments after the expiration of the grace period. The evidence, therefore, made the agency of the sellers’ bank an issue of fact on which the court’s decree found in favor of the sellers. That decree is presumed correct. Farm Country Homes, Inc. v. Rigsby, 404 So.2d 573 (Ala.1981). Given the history of the parties’ dealings, the terms of the promissory note and mortgage, and the special agreement concerning the process of payment from bank to bank, it is reasonable to conclude, in conformity to the trial court’s conclusions, that the direct deposit arrangement did not constitute a waiver of the sellers’ right to accelerate the installments when a payment was made after the grace period. Subsequent payment after default by a mortgagor does not extinguish the mortgagee’s right to declare a promissory note and mortgage due and payable. Parker v. Oliver, 106 Ala. 549, 18 So. 40 (1895).

The plaintiffs also maintain that it was inequitable to allow the forfeiture of the plaintiffs’ interest.

The defendants agreed to purchase the property for $64,200.00 over 16 years at 6% interest. The evidence was that as of May 31, 1982, the amount owed was $67,180.78; of this, $49,436.68 was attributable to principal. The bid-in price at foreclosure was $69,680.00. On the other hand, the record establishes that the purchasers were consistently in default on their note payments, although they cured the defaults within the grace period. This situation had led to prior court action between the parties which was resolved by the parties’ agreement to the deposit arrangement. But even after this arrangement, the purchasers continued to be in default by not putting the necessary funds into their own bank at McIntosh until after the 10th day of each month. Thus, it was the purchasers who had a history of frustrating compliance with the payment arrangements. Under those circumstances, it was not improper for the trial court to deny equitable relief by refusing to set the foreclosure aside. Cf Diveto v. Mid-State Homes, Inc., 279 Ala. 277, 184 So.2d 357 (1966).

The plaintiffs urge this Court to disallow to the mortgagees any unaccrued interest in the event the foreclosure sale is not set aside. Respectfully, we cannot presume to make such an order because that subject was not made an issue in the court below. The purchasers alleged only that the property was bid in by the mortgagees at $69,680.00, when the total indebtedness was only approximately $44,000.00, and then asked that the foreclosure sale be set aside. There was no contest of the amount payable under the mortgage and note, i.e., $67,180.78. There was no allegation requesting the court to fix a redemption amount, nor any evidence contradicting the amount owed. That issue cannot be raised on appeal for the first time.

Let the judgment be affirmed.

AFFIRMED.

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


text:
    Paul F. WILLIAMS v. FIRST CITY NATIONAL BANK OF OXFORD, a Corporation, et al.
    82-1215.
    Supreme Court of Alabama.
    March 23, 1984.
    Charlie D. Waldrep and Greggory M. Deitsch of Gorham, Waldrep, Stewart & Kendrick, Birmingham, for appellant.
    Michael K. Wright of Norman, Fitzpatrick & Wood, Birmingham, for appellee First City Nat. Bank of Oxford.
    Jake B. Mathews, Jr. of Merrill, Merrill, Mathews & Allen, Anniston, for appellee Ray Parris.
   PER CURIAM.

Because the undisputed facts in support of Defendants’ motions for summary judgment leave no genuine issue as to any material facts and entitle the Defendants to respective judgments as a matter of law as to each of Plaintiff’s claims, we have no alternative but to affirm the trial court’s grant jof summary judgment as to each Defendant. See Hart v. General Motors Acceptance Corporation, 437 So.2d 1255 (Ala.1983).

AFFIRMED.

MADDOX, ALMON, JONES, SHORES and BEATTY, JJ., concur.


author: MADDOX, Justice. JONES, Justice

text:
    Donald R. RIGBY v. AUBURN UNIVERSITY, et al.
    83-26.
    Supreme Court of Alabama.
    March 23, 1984.
    Jim L. DeBardelaben, Montgomery, for appellant.
    Thomas D. Samford, III and Robert C. Black, Opelika, for appellees.
   MADDOX, Justice.

The sole issue on appeal is whether the trial court was correct in dismissing plaintiff’s complaint against all the named defendants based on the doctrine of sovereign immunity.

The plaintiff filed his complaint against Auburn University; Hanley Funderburk, as President of Auburn University; James 0. Williams, as Chancellor of Auburn University at Montgomery; Fob James, as ex officio President of the Board of Trustees of Auburn University; Dr. Wayne Teague, as ex officio member of the Board of Trustees of Auburn University; R.C. Bamberg, as Vice-president of the Board of Trustees of Auburn University; and Robert H. Harris, Charles M. Smith, III, John Pace, III, Henry Steagall, John Denson, Frank P. Samford, Jr., William Nichols, Michael McCartney, and Morris Savage, as members of the Board of Trustees of Auburn University.

Plaintiff alleged that he was hired on December 7,1981, by Auburn University as a police officer at the Auburn University at Montgomery (AUM) campus for an annual salary of $10,500. The authority for Auburn to hire security personnel is found in Code 1975, § 16-48-12. Plaintiff further alleged that the 1974 University Personnel Manual stated that the university policy was to maintain salary schedules for all classifications that would assure uniform treatment of comparable positions, and that under this manual by these schedules plaintiff should have been hired for $11,200. Finally, plaintiff alleged that because he was paid less than authorized by the university compensation plan for his job classification, this constituted fraud, a breach of a confidential relationship, and willful breach of an employment contract.

As a consequence, the plaintiff sought money damages, and an order compelling Auburn to pay him a salary in conformity with the compensation plan. Plaintiff, in his first amendment to the complaint, alleged that the salary for his job classification, as established by the compensation plan, was approximately $11,200, and that the university’s agents were guilty of fraud and bad faith and acted beyond their authority when they established his annual salary below the salary set by the university compensation plan. Plaintiff, in his second amendment, added Hanley Funder-burk, individually and as President of Auburn University, and James 0. Williams, individually and as chancellor of AUM, and substituted Robert T. Phillips and Linda Shonesy, both individually and as agents, servants, or employees of Auburn University, for the fictitious parties named in the original complaint.

Plaintiff originally sought an injunction to compel Auburn University to pay him a salary that conformed with the university compensation plan for his job classification and to compel the university to conform with an overtime plan contained in a 1973 personnel manual, as well as compensatory damages of $100,000. In his amended complaint, he requested a writ of mandamus to compel defendants to pay him a salary as specified in the university compensation plan for his job classification.

The trial court granted the defendants’ motion to dismiss and this appeal ensued.

The trial court ruled that the state’s constitutional immunity, as set forth in Ala. Const., art. 1, § 14, shielded the defendants from suit in this instance. See Carter v. Board of Trustees of the University of Alabama at Birmingham, 431 So.2d 529 (Ala.1983); Bell v. Chisom, 421 So.2d 1239 (Ala.1982); First State Bank of Altoona v. Bass, 406 So.2d 896 (Ala.1981); Moody v. University of Alabama, 405 So.2d 714 (Ala.1981); Carter v. Forester, 395 So.2d 65 (Ala.1981), as cited by the trial court in its order granting the defendants’ motion to dismiss.

Appellant argues that the doctrine of sovereign immunity should not be applicable in this instance because Auburn University is a public corporation which, as an entity separate and distinct from the state, can issue bonds to which the state’s credit is not pledged. See Code 1975, §§ 16-48-1 through 16-48-12; see also Opinion of the Justices, 294 Ala. 571, 319 So.2d 699 (1975). Appellant further contends that because Auburn University receives funds from sources other than the State of Alabama, a contract or property right of the state is not affected.

In the early case of Cox v. Board of Trustees of the University of Alabama, 161 Ala. 639, 49 So. 814 (1909), the Court stated:

“... It therefore clearly appears that the University of Alabama, by whatever corporate name or under the control of whatever agents it may be, is a part of the state; that it was founded by the state; that it is under the state control, and that the University is therefore a public municipal corporation....
“The cases above referred to settle the law in this state that public institutions created by the state purely for charitable or educational purposes are a part of the state, or a mere agency of the state; that the property of such corporations is really and in fact the property of the state, and that they are not subject to suit under section 14 of the Constitution of 1901, which prohibits the state from being made a party defendant in any court of law or equity, although the charters and acts of the Legislature incorporating such institutions expressly provide that they may sue and be sued as an individual....”

161 Ala. at 648-649, 49 So. at 817.

In a more recent case, the Court, quoting from an earlier case, emphasized:

“The power of the State to create a body corporate as its agent to carry on certain special kinds of work for its benefit or for the public interest cannot be doubted. And where this power is exercised, the institution thus established is in every sense a State institution, and belongs to the State, although managed and its affairs administered under the supervision of trustees of the body corporate created for that purpose.... And where [the corporations] are created, who has the property interest in these institutions? Clearly the State. In the exercise of its right of sovereignty it established them for public purposes; it donates the property or the funds to purchase it upon which they are built, supplies the means by which they are maintained and operated. They have no capital stock, or shares held by individuals. Indeed, they have no membership or stockholders. They are not created for profit, but solely as public benefactors, the beneficiaries being the people who compose the State.”

Armory Commission of Alabama v. Staudt, 388 So.2d 991, 992-993 (Ala.1980) (quoting White v. Alabama Insane Hospital, 138 Ala. 479, 482, 35 So. 454 (1903)). Thus, as this Court concluded and held in Armory Commission of Alabama v. Staudt, supra:

“... Whether a lawsuit against a body created by legislative enactment is a suit against the state depends on the character of power delegated to the body, the relation of the body to the state, and the nature of the function performed by the body. All factors in the relationship must be examined to determine whether the suit is against an arm of the state or merely against a franchisee licensed for some beneficial purpose.” (Citation omitted).

388 So.2d at 993.

Despite appellant’s argument to the contrary, we conclude that because of the character of the power delegated to it by the state, its relation to the state as an institution of higher learning, and the nature of the function it performs as an institution of higher learning, Auburn University is an instrumentality of the state and therefore immune to suit by the terms of Section 14 of our state constitution. The motion to dismiss with respect to Auburn University was, therefore, due to be granted.

Generally, Section 14 of the constitution not only prohibits suits against the state, but also suits against its officers and agents in their official capacity when a result favorable to the plaintiff would directly affect a contract or property right of the state. Milton v. Espey, 356 So.2d 1201, 1202 (Ala.1978). That case involved a suit by a university employee for breach of contract and fraud against a supervisor who allegedly altered the terms of plaintiffs employment. This Court allowed the fraud claim. The appellant here has alleged that the university’s agents were guilty of fraud and bad faith and acted beyond their authority. Hence, the individuals named as defendants in appellant’s complaint are not protected by the terms of Section 14. Unzicker v. State, 346 So.2d 931, 933 (Ala.1977); Wallace v. Board of Education of Montgomery County, 280 Ala. 635, 639, 197 So.2d 428, 431-432 (1967). See Carter v. Board of Trustees of the University of Alabama at Birmingham, 431 So.2d 529, 531 (Ala.1983), and Aland v. Graham, 287 Ala. 226, 229, 250 So.2d 677, 679 (1971).

Based on the allegations of the appellant’s complaint, we reverse the trial court’s order dismissing this action as to the named defendants other than Auburn University, and remand the case to the trial court for further action consistent with this opinion.

AFFIRMED, IN PART; REVERSED, IN PART; AND REMANDED.

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

JONES, J., concurs specially.

JONES, Justice

(concurring specially).

I concur in the result in that part of the opinion affirming as to Auburn University.

I concur as to the remaining parts of the opinion.


author: SHORES, Justice.

text:
    Dorothy N. BROWN v. TRANSPORTATION INSURANCE COMPANY, et al.
    83-120.
    Supreme Court of Alabama.
    March 23, 1984.
    W.W. Conwell of Conwell & Gloor, Birmingham, for appellant.
    John M. Laney, Jr. of London, Yancey, Clark & Allen, Birmingham, for appellees.
   SHORES, Justice.

This action was brought by an employee against her employer and its insurer, claiming damages for the alleged bad faith refusal to pay a claim for workmen’s compensation disability benefits. The trial court dismissed the complaint on the employer’s motion asserting that the claim was barred by the exclusive remedy provisions of the Workmen’s Compensation Act. Ala.Code 1975, § 25-5-51, et seq. The employee appealed.

The trial court dismissed the complaint, based upon Waldon v. Hartford Insurance Group, 435 So.2d 1271 (Ala.1983). Waldon holds that the exclusivity provisions of the Workmen’s Compensation Act bar an action against the workmen’s compensation carrier for bad faith refusal to pay a claim for benefits. The employee argues that Waldon wrongly construes the Workmen’s Compensation Act and invites a reconsideration of the question. We hold that the trial court correctly dismissed the complaint and that Waldon, supra, compelled that action, and affirm.

The employee has also filed here a motion “for remand with instructions to vacate judgment of dismissal, grant leave to amend and instructions pursuant to Garvin v. Shewbart,” 442 So.2d 80 (Ala.1983). As grounds for her motion, the employee points out that subsequent to the filing of the appeal here, challenging the dismissal .of her claim for bad faith, this Court rendered its decision in Garvin v. Shewbart, supra, which held that an employee’s suit against an employer and its insurer for outrageous conduct in the denial of a claim for workmen’s compensation benefits is not barred by the exclusive remedy provisions of the act, although suits for bad faith refusal to pay claims are barred. The employee asks us to remand the cause and order the trial court to vacate its order of dismissal and allow an amendment to state a claim for damages for outrageous conduct. This motion is denied. There is a basic difference between this case and Gar-vin. In Garvin, the plaintiff’s complaint contained a claim based upon outrageous conduct, which the trial court dismissed. We reversed the order of dismissal as to that count. Here, there was no claim in the complaint seeking damages for outrageous conduct. Therefore, there is nothing for an appellate court to review. The trial court has committed no error in dismissing the complaint, and since we can only review alleged error by the trial court, it would be inappropriate to remand the cause to allow a new theory of liability to be presented at this stage of the proceeding. We do not have that authority under the general rules of appellate review and should not assume it under our inherent authority of general superintendence of the circuit courts. The employee could have, as the employee did in Garvin, stated a claim for damages based upon the now suggested outrageous conduct of the defendants. She could have done so initially, or she could have amended her complaint to do so after the court entered its order of dismissal of the bad faith claim. She did neither. Had she done so, and had the trial court dismissed the claim, we would have reversed its order on the authority of Garvin. The trial court has not disallowed an offered amendment, nor has it dismissed a claim upon which relief may be granted in this state. It has simply properly dismissed a claim upon which relief may not be granted. The employee brings nothing to this Court to review with respect to the claim for damages based upon outrageous conduct, since the facts alleged to support the bad faith claim do not, when construed most favorably to the plaintiff, demonstrate the kind of outrageous conduct necessary to constitute a tort of that kind.

The judgment appealed from is affirmed. The alternative motion for remand with instructions is denied.

AFFIRMED; MOTION FOR REMAND DENIED.

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


text:
    Ex parte Charles R. WARD, individually and as next friend of Robin Ward, a minor. (In re: ASSOCIATED INDUSTRIES OF ALABAMA GROUP HEALTH BENEFITS TRUST v. Charles R. WARD, individually and as next friend of Robin Ward, a minor, et al.)
    83-298.
    Supreme Court of Alabama.
    March 23, 1984.

      Carleton P. Ketcham, Jr., of Dominick, Fletcher, Yeilding, Wood & Lloyd, Birmingham, for petitioner.
    Fournier J. Gale, III, and James L. Goyer, III, of Cabaniss, Johnston, Gardner, Dumas & O’Neal, Birmingham, for respondents.
   SHORES, Justice.

This petition for writ of mandamus seeks an order directed to Judge Jack D. Carl of the Circuit Court of Jefferson County, directing him to grant a jury trial in an action for declaratory judgment where the petitioner has filed a counterclaim based on breach of contract. The petition is granted.

Petitioner Ward is employed by Health Science Products, Inc., and as an employee is entitled to hospital benefits for himself and his dependents under a group policy issued by Associated Industries of Alabama Group Health Benefits Trust (AIA). AIA is not a corporation in the true sense, but is a trust which qualifies as an employee benefit plan under the Employees Retirement Income Security Act of 1974 (ERISA), 29 U.S.C. § 1001 et seq. (1976).

Ward is also a retiree from the United States Navy, which entitles him to insurance coverage for his dependents through its Office of Civilian Health and Medical Programs of the Uniformed Services (CHAMPUS).

The AIA policy contained a nine-month waiting period for coverage of a “pre-exist-ing condition.” Ward’s minor daughter underwent neurosurgery for the removal of a brain tumor five months after he became a member of the group policy with AIA. The hospital bills amounted to some $66,000. AIA denied coverage, claiming the brain tumor was a pre-existing condition. It filed a declaratory judgment action seeking a determination that it was not liable. Ward filed an answer and demand for a jury trial. He thereafter filed a counterclaim against AIA for breach of contract and for violation of ERISA.

The United States Government intervened, because if AIA is liable for coverage, the CHAMPUS policy will be secondary only. If the AIA policy does not provide coverage, CHAMPUS will be the only coverage, and Ward will be responsible for almost the entire amount of the hospital bills.

AIA filed a motion to strike the jury demand on the basis that AIA is a trust regulated by ERISA, and therefore that Ward is not entitled to a jury trial on his breach of contract claim. The motion was granted, and the jury demand stricken.

This Court in Hoffman v. Chandler, 431 So.2d 499 (Ala.1983), recognized that a beneficiary under a welfare benefit plan/trust may bring an action in tort in state court. We now extend that reasoning to cover an action based on breach of contract.

The United States Code, Title 29, § 1132(e)(1) (1976), provides:

“Except for actions under subsection (a)(1)(B) of this section, the district courts of the United States shall have exclusive jurisdiction of civil actions under this subchapter brought by the Secretary or by a participant, beneficiary, or fiduciary. State courts of competent jurisdiction and district courts of the United States shall have concurrent jurisdiction of actions under subsection (a)(1)(B) of this section.”

Subsection (a)(1)(B) of § 1132 provides that a civil action may be brought by a beneficiary or a plan participant:

“to recover benefits due to him under the terms of his plan, to enforce his rights under the terms of the plan, or to clarify his rights to future benefits under the terms of the plan....”

ERISA’s preemption of state law and the limits of that preemption are delineated in 29 U.S.C. § 1144 (1976), which provides:

“(a) Supersedure; effective date
“Except as provided in subsection (b) of this section, the provisions of this sub-chapter and subchapter III of this chapter shall supersede any and all State laws insofar as they may now or hereafter relate to any employee benefit plan
“(c) Definitions
“For purposes of this section:
“(1) The term ‘State law’ includes all laws, decisions, rules, regulations, or other State action having the effect of law, of any State....
“(2) The term ‘State’ includes a State, any political subdivisions thereof, or any agency or instrumentality of either, which purports to regulate, directly or indirectly, the terms and conditions of employee benefit plans covered by this subchapter.”

In Hoffman, this Court held that ERISA did not preempt state law claims. That case involved a situation similar to the one at bar. There, Ms. Chandler submitted a claim for hospital and medical costs to American Employees Benefit Trust, an organization under the regulation of ERISA. Her claim was denied because of a pre-ex-isting condition clause in the policy and the existence of an alleged pre-existing condition associated with her illness. In Hoffman, as in the present case, the claim was for the recovery of benefits due the beneficiary of the plan under the terms of the plan, and not for the removal or regulation of the activities of the trustees, and, as such, came directly under the concurrent jurisdiction granted in § 1132(e)(1) and § 1132(a)(1)(B).

In addition, our reading of cases in the area of preemption suggests four factors that appear to influence the determination of the preemption issue:

(1) the extent to which the law in question relates to an area traditionally within the state’s domain;

(2) the extent to which the purpose or effect of the law impinges upon employee benefit plans;

(3) the extent to which the relief sought for procedures employed are incompatible with those of ERISA, and;

(4) the extent to which the rights sought to be enforced by the aggrieved party actually arise under an employee benefit plan.

In the case at bar, petitioner seeks no relief that is incompatible with the aims of ERISA nor which impinge upon the employee benefit plan. A suit for breach of contract has long been within the domain of state courts. In allowing petitioner access to our courts to seek such redress, we do not trespass against any interests protected by ERISA. Therefore, state law, in this instance, is not preempted by ERISA.

It'is unclear whether litigants have a right to a jury trial in ERISA suits. Some courts have construed ERISA to grant such a right, but more have held that Congress did not intend to provide the right of jury trial in ERISA claims. This issue we need not address. In the present case, there existed a contract between Ward and AIA. Ward claims that there was a breach of that contract and has brought an action based on that breach. Whether or not such a breach occurred is a factual determination accompanied by the right to a jury trial if so demanded. The fact that AIA, a party to this suit, is a trust regulated by ERISA does not destroy that right.

This Court will not issue a writ of mandamus in the absence of a “clear showing of error in the trial court to the injury of the petitioner.” Ex parte Harrington Manufacturing Co., 414 So.2d 74 (Ala. 1982). We find that the trial judge erred in denying the petitioner a jury trial. Accordingly, the writ of mandamus is granted, and a jury trial in this proceeding is ordered.

WRIT GRANTED.

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


text:
    I.B. ANDERSON and Jolene Anderson v. Jesse L. GRIGSBY.
    83-406.
    Supreme Court of Alabama.
    March 23, 1984.
    Edward W. Doggett and Michael F. Terry, Florence, for appellants.
    William T. Musgrove, Jr., of Walker & Musgrove, Florence, for appellee.
   SHORES, Justice.

This is an appeal by the plaintiffs from a summary judgment entered in favor of the defendant on a complaint alleging fraud and misrepresentation by the defendant about a tract of land sold by him to the plaintiff. We affirm.

The complaint alleged that the defendant misrepresented that the tract of land bought by the plaintiffs was part of a commercial subdivision which was restricted to commercial use.

The complaint alleged that the representation was made on or about August 17, 1977, while the parties were negotiating the property transaction. The complaint was filed November 18, 1982. The defendant’s answer and motion for summary judgment raised the statute of limitations of one year. Section 6-2-3, Ala.Code 1975, provides:

“In actions seeking relief on the ground of fraud where the statute has created a bar, the claim must not be considered as having accrued until the discovery by the aggrieved party of the fact constituting the fraud, after which he must have one year within which to prosecute his action.”

The deposition of the plaintiffs demonstrates that, assuming the defendant did represent that the tract they bought was a part of a commercial subdivision, they knew more than one year before the suit was commenced that this was not true. Dr. Anderson testified that he knew in the summer of 1981 that other tracts had been sold by the defendant without restriction to commercial use. In fact, Dr. Anderson himself had bought another lot in the subdivision without restriction to commercial use more than one year before bringing this action.

We have read all of the evidence which was before the trial court on motion for summary judgment, and we agree that there is no genuine issue of material fact as to whether the plaintiffs’ cause was barred by the statute of limitations. The evidence shows without conflict that more than one year prior to filing the complaint in this case the plaintiff had knowledge of facts sufficient to put a prudent person on inquiry, the pursuit of which would have led to discovery of the alleged fraud. Seybold v. Magnolia Land Co., 376 So.2d 1083 (Ala.1979).

We hold that the trial court was correct in granting summary judgment in favor of the defendant, because there is no conflict in the evidence with respect to when the plaintiffs discovered; or could, with reasonable diligence, have discovered, the alleged fraud, and this being more than one year prior to the filing of the complaint in this case, the claim is time barred.

The judgment of the trial court is affirmed.

AFFIRMED.

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


author: FAULKNER, Justice.

text:
    James David ARMSTRONG, etc., et al. v. AETNA INSURANCE COMPANY.
    82-177.
    Supreme Court of Alabama.
    Sept. 30, 1983.
    Rehearing Denied April 6, 1984.

      Patrick M. Sigler, Mobile, for appellants.
    Victor T. Hudson and Carl Robert Gott-lieb, Jr. of Reams, Wood, Vollmer, Philips, Killion & Brooks, Mobile, for appellee.
   FAULKNER, Justice.

This is an appeal from a summary judgment granted in favor of the defendant, Aetna Insurance Company, in an action for negligent inspection by a workmen’s compensation carrier. We affirm.

James David Armstrong, a minor, was the employee of Lonnie Manning, who had been hired by The Country Club of Mobile to remove the light bulbs above its tennis courts and replace them with a different type of bulb. Manning and Armstrong used a scaffold, which Manning had rented, to change the bulbs. According to Manning, at the end of the work day in question the club’s tennis pro asked Armstrong to push the scaffold against some trees on the far side of the courts. While Armstrong and a country club employee were moving the scaffold it came into contact with overhead power lines, resulting in injury to Armstrong.

Armstrong filed a complaint by and through his father as his next friend against numerous defendants. The complaint, as last amended, alleged: (1) that Aetna, the club’s workmen’s compensation carrier, undertook to inspect the premises and to provide a safety engineering service to the club, (2) that in making the inspection Aetna negligently failed to advise the club of an unsafe condition, the uninsulated electrical wires, (3) that the allegedly dangerous condition should have been obvious to anyone skilled in making such inspections, (4) that Aetna should have known, by the exercise of reasonable diligence, of the dangerous condition, and (5) that Armstrong’s injuries were the proximate result of Aetna’s negligence. Another count alleged wanton inspection by Aetna.

Aetna’s motion for summary judgment was granted on October 25, 1982. The following day Aetna filed an affidavit containing the following text:

“1. My name is E.M. “Bert” Meadows and I am employed by the Defendant, Aetna Insurance Company. I am familiar with the terms and conditions of the policy of workmen’s compensation insurance issued by Aetna to the Country Club of Mobile. This policy of workmen’s compensation insurance did not provide workmen’s compensation insurance coverage to either of the Plaintiffs since neither of them were employees of the Country Club of Mobile at the time of the accident made the basis of this suit.”

On November 10, 1982, the trial court entered an order expressly finding that there was no just reason to delay entry of a final judgment and directed that a final judgment be entered pursuant to A.R.Civ.P. 54(b) on behalf of Aetna.

On appeal Aetna took the position that the October 25th order was in full force and effect when the November 10th order was entered and, therefore, that the subsequent order was a nullity. See Williams v. Continental Oil Co., 387 So.2d 130 (Ala.1980). We disagree with Aetna’s contention that Williams is controlling here. In that case, the trial court granted a motion seeking to reinstate a counterclaim after the case in chief had been dismissed with prejudice. In the case at bar, however, other claims had not been adjudicated, so the action was still pending as to all claims of all parties following entry of the October 25th order, because the order contained no express determination that there was no just reason for delay and made no express direction for the entry of a final judgment. A.R.Civ.P. 54(b). Since the action was still pending when the November 10th order was entered, the order was valid. A judgment such as the one entered on October 25th which adjudicates fewer than all the claims or adjudicates rights and liabilities of fewer than all the parties, is “subject to revision at any time” before the entry of a final judgment as to all claims against all parties. A.R.C.P. 54(b). Therefore, the November 10th order made the October 25th order appealable.

This case raises the novel question in Alabama whether a workmen’s compensation carrier can be held liable on a negligent inspection theory for injuries incurred by an employee of an independent contractor who was not covered by the policy of workmen’s compensation insurance issued by the defendant. The tort of negligent inspection is based on the theory that when an insurer undertakes the performance of the duty owed by the insured to a third party, the insurer may be liable to that third-party if the third-party was injured as the proximate result of the insurer’s failure to exercise reasonable care in said performance. Restatement (Second) of Torts § 324A (1976). Thus, when an insurer undertakes to inspect an insured employer’s premises for safety, it assumes the duty of the insured employer to provide a safe place for its employees to work. Beasley v. MacDonald Engineering Co., 287 Ala. 189, 249 So.2d 844 (1971).

Under Alabama law, the premises owner is also under a duty to employees of an independent contractor to maintian the premises in a reasonably safe condition, except with respect to conditions arising in the progress of the work on the contract. Pate v. United States Steel Corp., 393 So.2d 992, 994 (Ala.1981); Green v. Reynolds Metals Co., 328 F.2d 372, 374 (5th Cir.1964). In making a safety inspection, does a workmen’s compensation carrier assume the insured employer’s duty as a premises owner to employees of independent contractors?

When a workmen’s compensation carrier inspects its insured’s work place, it does so to promote its interest in underwriting, rating, and loss prevention with respect to the policy of insurance. The duty of care to third persons which it assumes, therefore, must be limited. While an action for negligent inspection sounds in tort and is, therefore, not based on the contract of insurance per se, the class of persons who are the intended beneficiaries of the inspection is limited to those covered by the policy. Since the duty in question is one which is gratuitously assumed by the insurer, we opine that the scope of the duty should be concomitant with the class of persons covered by the policy.

There being no duty owed by Aetna to the plaintiff, the summary judgment was proper, and is hereby affirmed.

AFFIRMED.

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


author: ADAMS, Justice.

text:
    Aubrey BAKER and Ruby Baker v. Berlin C. JOHNSON and J.R. Johnson as Administrators of the Estate of Fayette Julius Ellison, deceased.
    82-481.
    Supreme Court of Alabama.
    Sept. 30, 1983.
    Rehearing Denied April 6, 1984.

      Joe G. Burnett, Clanton, and Fred Blan-ton, Fultondale, for appellants.
    John M. Higgins, Clanton, for appellees.
   ADAMS, Justice.

This is an appeal from a summary judgment granted by the Circuit Court for Chil-ton County. The judgment declared that a deed conveying eighty acres of timberland, granted by Fayette Julius Ellison to defendants Aubrey and Ruby Baker was null and void, and the Bakers appealed.

The following issues are dispositive of this case:

1. Was the summary judgment rendered by the trial court on December 2, 1981, a final, appealable judgment, rendering this appeal untimely?
2. Did the Probate Court of Chilton County have jurisdiction to appoint a curator for Ellison under Code 1975, § 26-7A-1, as amended?
3. May a curator of the grantor elect to declare a conveyance null and void under Code 1975, § 8-9-12?
4. Was the plaintiff entitled to a summary judgment?

As to the first issue, we find that the summary judgment was not final until November 11, 1982, and thus, the appeal is timely. We answer “yes” to the other issues, and affirm.

The following is a summary of the facts in this case:

On March 17, 1978, Ellison suffered a stroke and a heart attack. After several hospital confinements during the course of more than a year, Ellison’s family contracted with the Bakers to care for him in their home. The initial agreement was that the Bakers would be paid $400.00 per month for this care, but within a short time the amount was raised to $500.00. In addition, the Bakers were to be reimbursed for Ellison’s medicine and medical supplies. Ellison was in the care of the Bakers from about May 26, 1979, to about October 28, 1980.

On January 24, 1980, the Bakers recorded a deed to eighty acres of land from Ellison to them. The recited consideration therefor was one dollar “and other valuable consideration.” On February 9, 1980, the Bakers recorded an agreement unilaterally executed by them, stating that the “other valuable consideration” included an agreement to provide a home for Ellison and attend to his physical needs for the rest of his life.

On February 25, 1980, this suit was brought in Ellison’s name by his sister and next friend, Carrie Catón, pursuant to Rule 17(c), A.R.Civ.P. Attached to the complaint was an affidavit of a doctor who had treated Ellison at the time of his heart attack and stroke and on several occasions thereafter. It was stated by the doctor that “the stroke and heart attack caused Mr. Ellison to be so weak and sick and so mentally and physically defective that in my opinion he has been since March 17, 1978, unable to take care of his property and business matters, and in consequence thereof, he is liable and most likely to dissipate or lose his property and money, or to become the victim of designing persons.” The complaint asked the court to set aside the deed and agreement, alleging fraud and undue influence.

The Bakers filed a notarized motion to dismiss, signed by them and Ellison, who at that time was still in their care. In the motion they stated that Ellison’s sister had no authority to bring the lawsuit, and that Ellison was not incompetent, but was fully competent and could act for himself. The Bakers subsequently filed an answer denying the material allegations.

On January 5, 1981, Rhonie Johnson was named curator of Ellison by the Probate Court of Chilton County pursuant to Title 26, Chapter 7A, Code 1975, as amended. Then Mr. Johnson joined Carrie Catón in ratifying and confirming the previously filed complaint and in moving the trial court to substitute Mr. Johnson as plaintiff-representative of Ellison. At the same time Mr. Johnson filed an amendment to the complaint on Ellison’s behalf, adding a cause of action pursuant to Code 1975, § 8-9-12, which allows a grantor the option of voiding a conveyance of land wherein a material part of the consideration is the agreement of the grantee to support the grantor during his life. The substitution was entered March 19, 1981.

Johnson filed a motion for summary judgment. While this motion was pending, the complaint was amended to add a claim under § 35-1-2, as amended, seeking to have certain gifts of personal property to the Bakers declared void. The court, on December 2, after considering the pleadings, motions, answers to interrogatories, and exhibits, granted summary judgment in favor of the plaintiff with regard to the deed, reserving all other issues for further hearing and decree.

Ellison died December 15, 1981. On December 16 the Bakers filed a motion for new trial and/or application for rehearing. Subsequently, the administrators of Ellison’s estate, Berlin C. Johnson and J.R. Johnson, were substituted as plaintiffs in this case, and the motion for new trial/rehearing was denied. On June 8, 1982, the Bakers filed a motion to permit a late filed appeal, which the court denied, stating that it had lost jurisdiction.

On November 11, 1982, the following bench note was written and made a part of the record:

November 11, 1982, in open [court] came the parties with their attorneys, and this case having been previously set for this date, and the Plaintiffs waiving their claim to decedent’s personal property and the real estate issue having been decided on Summary Judgment, this case is dismissed.

The Bakers filed notice of appeal on November 17, 1982.

I.

The appellees argue that the summary judgment was a final judgment on December 2, 1981, and, therefore, that this appeal is untimely. They claim that the judge intended a severance with relation to the action on the deed, and that “the substance of the court’s action, not its form, controls,” citing Key v. Robert M. Duke Insurance Agency, 340 So.2d 781 (Ala.1976). In Key, the defendants had expressly asked for, and had been expressly granted, a severance. This court held that the substance of the court’s action was consistent with its form, and there was a severance in fact as well as form.

The record in the case before us shows no suggestion of a severance. The case is much more nearly parallel with many in which we have found that there was no final judgment. In Chambers v. Chambers, 356 So.2d 634 (Ala.1978), a cause with multiple parties and claims, the issue of title to real property was tried to a jury. The trial court issued a decree on that issue, expressly reserving the other issues for further action. The real property issue was appealed, and this court stated:

As yet the trial court has not decided whether the property can be equitably divided, or whether a sale is necessary, or whether the multiple plaintiffs are entitled to the accounting requested. Furthermore, the trial court did not enter a final judgment as to “fewer than all of the claims of parties only upon an express determination that there is no just reason for delay and upon an express direction for the entry of judgment.” Rule 54(b), ARCP. In the absence of such a determination in a multiple party or multiple claim ease, no decision is final and the order will not support an appeal.

Chambers v. Chambers, 356 So.2d, at 635.

In McKiever v. King & Hatch, Inc., 366 So.2d 264 (Ala.1978), an appeal from a summary judgment, this court stated:

When there are multiple parties or multiple claims, any order which adjudicates fewer than all the claims or the rights and liabilities of fewer than all the parties is not a final judgment. Appeal may be had “only upon an express determination that there is no just reason for delay and upon an express direction for the entry of judgment.” Rule 54(b), ARCP; Kelley v. U.S.A. Oil Cory., 363 So.2d 758 (Ala.1978); Chiniche v. Smith, 362'So.2d 853 (Ala.1978).

McKiever v. King & Hatch, Inc., 366 So.2d, at 265.

The fact that the trial court denied the motion to allow a late appeal on the ground that it had lost jurisdiction does not render the summary judgment final. In Martin v. Hinson, 364 So.2d 674 (Ala.1978), an appeal from the denial of a motion to set aside the granting of a 12(b)(6) motion, this court noted that there had been no disposition of the case with respect to the other defendants, and that there was neither an “express determination that there was no just reason for delay” nor “an express direction for the entry of judgment” as required by Rule 54(b), A.R.Civ.P. The court then continued:

Notwithstanding the filing and acceptance of an appeal bond in the circuit court, there has been no final judgment in this case to support an appeal. Chambers v. Chambers, 356 So.2d 634 (Ala. 1978); Powell v. Republic National Life Insurance Co., 293 Ala. 101, 300 So.2d 359 (1974).

Martin v. Hinson, supra.

Based on the above principles, we find that the summary judgment was not final on December 2, 1981, and did not become a final judgment until November 11, 1982, when the other issues were disposed of. This appeal, therefore, cannot be dismissed.

II.

The Bakers attack the validity of the letters of curatorship granted under § 26-7A-l. They argue that if the curatorship was invalid, then the question of voiding the deed pursuant to § 8-9-12 was never properly before the trial court prior to the death of Ellison. The Bakers’ claim of invalidity of the statute is based on the fact that § 26-7A-l states, in pertinent part, “Any probate court, in the exercise of its equity jurisdiction, may appoint a cura-tor_” Neither the Constitution of Alabama, 1901, nor any statutes of the state grant general equity jurisdiction to the probate courts. The Bakers argue, then, that only those probate courts having been specifically granted equity jurisdiction may validly appoint a curator under the statute, and the Probate Court of Chilton County does not appear to have been granted such jurisdiction.

The appellees call our attention to Act 83-153, Acts of Alabama, Second Special Session, 1983, an amendment to § 26-7A-l, which, they say, clarified that all probate courts have jurisdiction to appoint curators and ratified, all curators previously appointed pursuant to the statute. Act 83-153 is set out below, along with its stated purpose:

AN ACT
To amend Section 26-7A-1 of the Code of Alabama 1975, as amended, which provides for curators being appointed in the probate court so as to clarify that curators may be appointed in any probate court in the State of Alabama and to ratify previous curator appointments by any probate judge which otherwise would qualify under Chapter 7A of Title 26 of the Code of Alabama and in existence on the date of this Act.
Be It Enacted by the Legislature of Alabama
Section 1. Section 26-7A-1, as amended, of the Code of Alabama 1975, is hereby amended to read as follows:
§ 26-7A-1. Probate court; grounds. Any probate court may appoint a curator to take charge of, manage and conserve the property of any person permanently or temporarily residing in this state, who shall become physically incapacitated, or feeble-minded or epileptic or so mentally or physically defective by reason of age, sickness, use of drugs, the excessive use of alcohol or for other causes that he or she is unable to take care of his or her property, and in consequence thereof, is liable to dissipate or lose the same, or to become the victim of designing persons.
Section 2. All curators previously appointed by any probate judge which otherwise qualify under Chapter 7A of title 26 of the Code of Alabama and in existence on the effective date of this Act are hereby ratified.
Section 3. The provisions of this Act are severable. If any part of this act is declared invalid or unconstitutional, such declaration shall not affect the part that remains.
Section 4. This Act shall become effective immediately upon its passage and approval by the Governor, or upon its otherwise becoming a law.
Approved February 22, 1983

While neither party brought it to our attention, we note that Section 2 of the Act purports to ratify all curators in existence on the effective date of the Act. However, to hold that only the curatorships continuing into 1983 were ratified, while those created in the exact same manner, but which terminated at an earlier date were invalid, would unreasonably discriminate against a narrow class of curators. It would also cast a cloud of doubt on all acts done on behalf of their wards by curators appointed by probate courts pursuant to § 26-7A-1, unless the appointing probate court had been specifically granted general equity jurisdiction, or unless the ward survived to the effective date of the Act. We find no rational basis for such a result. This court will construe statutes, if possible, to uphold their validity. See Pruitt v. Patton, 288 Ala. 710, 265 So.2d 130 (1972). We, therefore, construe Act 83-153 to ratify all curators previously appointed by any probate judge who otherwise qualify under Chapter 7A of Title 26, Code 1975. (See Ransom v. Ransom, 401 So.2d 746 (Ala. 1981); Orr v. Orr, 374 So.2d 895 (Ala.Civ. App.1979).)

III.

Having held that the appointment of the curator was valid in this case, we next consider whether a curator has the right to file an action to void a deed under § 8-9-12. Rule 17(c), A.R.Civ.P., states, in pertinent part, “Whenever an incompetent person has a representative such as a general guardian or a like fiduciary, the representative may sue or defend in the name of the incompetent person.” A curator has generally the same powers as a guardian under § 26-7A-16, and is qualified to file suit on behalf of his ward under Rule 17(c). The Bakers argue that the right to declare a conveyance null and void under § 8-9-12 is personal to the grantor, and may not be done by anyone in his name under Rule 17(c). They insist that the situation is similar to the former right of a widow to dissent from her husband’s will. That right was absolute with the widow, herself, but, when undertaken on her behalf by her personal representative, required proof that it was in her best interest.

We have examined this argument and the applicable law. Without going into the details of both situations, we find that the two are not parallel, and that the election to void the deed pursuant to § 8-9-12 was properly exercised by the curator under Rule 17(e).

IV.

The final issue raised is whether summary judgment is appropriate in this case. Regarding the grant of a summary judgment, Rule 56(c), A.R.Civ.P., says:

The judgment sought shall be rendered forthwith if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law.

The Bakers claim that the fact that Ellison signed, under oath, the motion to dismiss, which stated that he was not incompetent, placed the curator’s right to act in his behalf at issue, and testimony should have been required relating to this issue.

The motion to dismiss was filed pri- or to the appointment of a curator pursuant to Chapter 7A of Title 26. That chapter requires a hearing at which the petitioner must prove by a preponderance of the competent evidence that the proposed ward is incapacitated within the definition set forth in § 26-7A-l. In our case, the letters of curatorship were made a part of the record, and were before the trial court. We hold that, absent any evidence of irregularity in the proceedings to appoint the curator, Ellison’s incapacity was no longer at issue at the time the summary judgment was rendered. No other material facts being at issue, we view the inferences from the facts most favorably to the non-moving party, and conclude that summary judgment in favor of the plaintiff was appropriate in this case.

The judgment of the trial court is affirmed.

AFFIRMED.

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

ALMON, J., concurs in the result.