text:
    Mary L. YOUNG v. Mary Bell REDDOCK, et al.
    82-261.
    Supreme Court of Alabama.
    Aug. 26, 1983.

      Arthur D. Shores and Henry L. Penick of Shores, Larkin, Penick & Massie, Birmingham, for appellant.
    John W. Gibson of Gibson & Barr, Troy, for appellees Alice H. Renfroe, Mary H. Stetson and Sara H. Ingram.
    E.C. Orme of Orme & Faulk, Troy, for appellee Troy Broadcasting Corp.
   FAULKNER, Justice.

This is an appeal from denial of a motion for relief from a judgment that was entered pursuant to a settlement agreement éntered by stipulation in the trial court. The issue is whether appellant’s attorneys had authority to enter into the stipulation. We hold that they had such authority and affirm.

The stipulated settlement agreement served to determine the rights and interests of the various parties to an action to quiet title to a parcel of land located in Pike County, Alabama. Appellee, Mary Bell Reddock, filed the action, asking that title be quieted in her, and served notice by publication on the various named defendants and their heirs at law as unnamed defendants. Several of the defendants, including appellant, Mary L. Young, answered the complaint and discovery followed. The action was heard by the trial judge on June 15,1982. No testimony was offered at trial. The parties rather, through their attorneys, entered into certain stipulations delineating the interest of each party to the suit in the subject property. The trial judge entered a final order on August 12, 1982, which mirrored the terms of the stipulations.

Appellant then served notice of a Rule 60(b), A.R.Civ.P., motion for relief from judgment in the trial court, claiming that her attorneys were without authority to enter into the stipulations on her behalf and that the acts of her attorneys constituted a breach of duty and created a conflict of interest such that she could not adequately be represented by them. Appellant requested that the court, upon hearing the motion, set aside the stipulations represented by the August 12, 1982, decree and set the issues for trial. The trial judge denied the motion without a hearing, and appellant brought this appeal.

Appellant’s main argument on appeal is that since she was denied an opportunity to be heard in court due to her former attorneys’ actions concerning stipulations, the trial judge abused his discretion by denying appellant an opportunity to be heard on her motion for relief from judgment. We do not agree with this assertion.

At the threshold, appellant has not met her burden of proving that her attorneys lacked authority to enter into the stipulations. The Alabama Code 1975, § 34-3-21, addresses the issue of attorney authority, stating:

“Any attorney has authority to bind his client in any action or proceeding, by any agreement in relation to such case, made in writing, or by an entry to be made on the minutes of the court.”

It is stated, however, in Senn v. Joseph, 106 Ala. 454, 457, 17 So. 543, 543 (1895), that:

“The statute does not enlarge the duties of an attorney, nor give him authority to compromise the claim of his client, whether liquidated or unliquidated, admitted or controverted.”

Considering both the Code provision and the Seim holding, this court has held that the question of attorney authority is one of fact to be determined by the trier of fact. Hawk v. Biggio, 372 So.2d 303 (Ala.1979).

In the instant case there was no express finding by the trier of fact, here the judge, that appellant’s attorneys were authorized to enter into the stipulations. Such a finding, however, is implicit in the trial court’s judgment. It is supported by the rule that, where the trial judge does not make an express finding of fact, this court will assume that such a finding was made if it is necessary to support the judgment, unless the finding would be clearly erroneous or against the great weight and preponderance of the evidence. See Thomas v. Davis, 410 So.2d 889 (Ala.1982); Lipscomb v. Tucker, 294 Ala. 246, 314 So.2d 840 (1975). There is no showing from the record that such a finding would be clearly erroneous in this case.

Moreover, regardless of the finding on the question of attorney authority, appellant’s argument that the trial judge abused his discretion by denying appellant an opportunity to be heard is without merit. Presumably, appellant is arguing that denial of opportunity to be heard constitutes a valid “other reason justifying relief from the operation of the judgment” under Rule 60(b)(6), since none of the other grounds for relief specified in Rule 60(b) would apply.

Relief is justified under a Rule 60(b)(6) motion when a party is able to show exceptional circumstances sufficient to entitle him to relief. Ex Parte Hartford Insurance Co., 394 So.2d 333 (Ala.1980), Textron, Inc. v. Whitfield, 380 So.2d 259 (Ala.1979). Rule 60(b)(6) is considered an extreme remedy to be used only in extraordinary circumstances. City of Daphne v. Caffey, 410 So.2d 8 (Ala.1981). The decision of whether to grant or deny a 60(b)(6) motion is within the sound discretion of the trial judge, and the standard of review on appeal is whether the trial court abused its discretion. Ex Parte Hartford Insurance Co., supra; Pierson v. Pierson, 347 So.2d 985 (Ala.1977).

Furthermore, the appellate court will review only the correctness of the trial court’s order, Sanders v. Blue Cross-Blue Shield of Alabama, 368 So.2d 8 (Ala.1979); and the decision will not be reversed on appeal unless it is determined “that there is absence of reasonable cause, that rights of others subsequently arising would be adversely affected, or that it is unjust.” Textron, Inc. v. Whitfield, supra at 260, (quoting Nunn v. Stone, 356 So.2d 1212 (Ala.Civ. App.1979)).

The trial judge was certainly in the best position to determine whether this case presented such extraordinary circumstances that appellant should be entitled to Rule 60(b)(6) relief. The judge denied relief based on a review of the pleadings and stipulations and the actions of the parties to the suit. A careful review of the record and briefs filed in this case discloses no abuse of discretion in the decision of the trial judge. The judgment below, therefore, is due to be, and is hereby, affirmed.

AFFIRMED.

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


source: Caselaw Access Project

author: BEATTY, Justice.

license: Public Domain

text:
    Robert E. BLAIR and Caroline C. Blair v. Johnie COOPER, et al.
    82-482.
    Supreme Court of Alabama.
    Aug. 26, 1983.

      Von G. Memory, Montgomery, for appellants.
    Keith A. Howard of Howard, Dunn & Howard, Wetumpka, for appellees.
   BEATTY, Justice.

Appeal by plaintiff from an order striking plaintiffs’ complaint and dismissing the action under Rule 37(b), A.R.Civ.P. We affirm.

This case is the latest episode in a boundary line dispute between plaintiffs, defendants, and other parties. In order to place the present case in its proper setting, a summary of prior litigation between the parties is in order.

Johnie Cooper and Caroline Cooper Blair are brother and sister. Their father, J.S. Cooper, divided his real property located in Elmore County among his family in the 1950’s. Over a period of time, Johnie and Caroline acquired tracts of that property from other family members and ultimately held ownership of several adjoining tracts. A dispute over their boundary lines arose, and a number of surveys were made. One of these was the subject of a lawsuit brought by York Engineering Company against Caroline Blair, resulting in a judgment against her. Blair v. York Engineering Co., Inc., 380 So.2d 878 (Ala.Civ.App.1980). Subsequently, Johnie Cooper and his wife sued Caroline Blair and her husband, seeking to establish the correct boundary lines. In that case the trial court established the boundary lines and awarded the Coopers damages for loss of use of certain pasture land. Blair v. Cooper, 392 So.2d 1205 (Ala.Civ.App.1981).

As part of its decree in Blair v. Cooper, supra, the trial court had mandated that each party pay an equal portion of certain engineering services and enjoined the Blairs from interfering with the placement of the concrete markers and the building of a fence on the boundary lines established by the court. The Coopers later filed a contempt petition seeking to enforce the decree. In that case, the trial court found the Blairs in contempt. This Court affirmed that decision, observing that Caroline Blair’s “own testimony indicated a stubborn opposition to the boundary lines established by the trial court, and also provided a reasonable inference that she opposed the peaceful building of plaintiffs’ fence.” Blair v. Cooper, 429 So.2d 926 (Ala.1983).

The instant case was filed on October 26, 1981, by Caroline Blair and her husband, Robert. They sued her brother, Johnie Cooper, Johnie Cooper’s wife and son, P.J. Jennings, and Thomas M. Park. Jennings was the surveyor involved in the prior Blair v. Cooper cases. Park is an adjoining landowner. This action alleges trespass on real property, wrongful detention of real property, conspiracy to do both, and slander of title. In their answers to the complaint the defendants alleged, among other things, that the matters complained of had already been judicially determined. They filed notice that they would take the depositions of the Blairs on October 28, 1982. At the plaintiff’s request, the depositions were continued until November 2, 1982, at 2:00 p.m.

At about 1:30 p.m. on November 2, the Cooper’s lawyer received a telephone call from Mrs. Blair, who stated that she wanted a continuance because she was “on a job at that time and needed to go see a survey- or about a survey of the property.” She added that she had difficulty contacting her lawyer. The Cooper’s lawyer informed her that he could not talk with her and that she should have her lawyer contact him.

At 2:00 p.m. defendants’ lawyer was present for the deposition. Also present was a court reporter engaged for that purpose. About that time plaintiffs’ lawyer informed defendants’ lawyer that his clients (plaintiffs) would not attend the deposition and thus there was no reason for him to attend. The court reporter remained at the scheduled place until 2:45 p.m., but plaintiffs did not appear.

On November 3, 1982, pursuant to Rule 37, A.R.Civ.P., defendants filed their motion to strike the complaint, dismiss the action, and award expenses for the failure of plaintiffs to attend the deposition. An ore tenus hearing was held, following which the court made the following findings:

“1. The court takes judicial notice of the long history of litigation between plaintiffs and some of the defendants.
“2. On October 19, 1982, defendants gave the plaintiffs, by and through their attorney of record, notice that their deposition would be taken on the 28th day of October, 1982.
“3. That subsequently, at the request of the plaintiffs, depositions were rescheduled for November 2, 1982, at 2:00 P.M.
“4. During the days preceding the scheduled deposition, attorney for defendants spent numerous hours preparing for the scheduled depositions.
“5. That on November 2, 1982, the defendants by and through their attorney, were present at the scheduled time and location.
“6. That on November 2, 1982, at approximately 2:00 P.M. plaintiffs’ attorney informed defendants’ attorney that the plaintiffs would not attend the deposition.
“7. That defendants were caused to incur expenses for a court reporter.
“8. That on November 2, 1982, defendants’ attorney notified plaintiffs’ attorney that defendants planned to ask for sanctions and that the motion should be heard on November 8, 1982, motion docket.
“9. Defendants’ attorney thereafter sent the plaintiffs’ attorney a copy of the motion.
“10. The Clerk’s office sent to plaintiffs’ attorney’s regular business address a notice that the motion would be heard on November 8, 1982.
“11. That $250.00 is a reasonable attorney fee for preparing for the deposition in this cause.
“12. That defendants were required to pay $33.85 as court reporter fees, it is
“THEREFORE ORDERED, ADJUDGED AND DECREED that the Motion to Strike Complaint and Dismiss the action is granted and the complaint is hereby dismissed with prejudice. It is further ordered and adjudged that the plaintiffs pay to defendants’ attorney $283.85, as expenses for failure to attend the deposition, $250.00 being attorney fee and $33.85 being the cost of a court reporter. All costs taxed against plaintiffs.”

On appeal, plaintiffs pose a number of issues for resolution; however, all of these may be reduced to one single question, i.e., whether the trial court erred in applying the sanction of dismissal in this instance.

Among the sanctions authorized by Rule 37, A.R.Civ.P., are dismissing the action and requiring the failing party to pay reasonable expenses, including attorney fees. See Weatherly v. Baptist Medical Center, 392 So.2d 832 (Ala.1981).

Plaintiffs argue that the element of “willfulness” was not shown to exist in their conduct, and that element being absent, dismissal was improper. That argument was answered in Weatherly, supra, which, after taking note of contemporary federal cases, recognized that “the ‘willfulness’ of plaintiff’s refusal to answer ... in this case is a key criterion to the imposition of the drastic sanction of dismissal.” Thus, “willfulness,” i.e., an intentional failure, continues to be a factor, along with others, in the determination to apply the sanction of dismissal. On the record in this case, the trial court could have reasonably viewed plaintiffs’ conduct as willful. Plaintiffs apparently contend that they did not attend the deposition because their lawyer could not attend. Yet, their lawyer did not attend because plaintiffs informed him that they would not attend. Mrs. Blair’s evidence is that she could not attend because she wanted to contact a surveyor, even though five surveys had already been made. It is clear from the record that plaintiffs and their counsel knew of the deposition beforehand.

It was also proper for the trial court to take judicial notice of the prior litigation in that court between these parties in determining whether they had willfully failed to be present for the deposition. In McClendon v. City of Boaz, 395 So.2d 21, 26 (Ala.1981), this Court recognized the authority of a trial court on summary judgment to “take judicial notice of the record in prior litigation between the same parties in the same court [citation omitted], or of its own records and of other cases including the same subject matter or questions of a related nature between the same parties [citation omitted].” The same principle is applicable to this proceeding which is ancillary to the principal action which, in turn, is related to it. Cf. Hamilton v. Morrow, 284 Ala. 229, 224 So.2d 589 (1969). Indeed, plaintiff Caroline Blair, while questioning defendants’ lawyer at the motion hearing, could have given the trial court insight into plaintiffs’ motive for initiating the latest action, when she stated:

“Well, why do you think, George, if you throw it out, what grounds to [sic] we have to get back all the expenses — see, we were sued without a reason, when we were sued.”

And it does not escape notice that at the motion hearing plaintiffs presented no evidence of their inability to attend the deposition proceeding, nor did they indicate their ability or willingness to submit to depositions. Neither did they move for a protective order under Rule 26(c), nor move for a continuance, nor for an enlargement of time, Rule 6(b), nor did they move the trial court to reconsider or to alter, amend or vacate the earlier ruling, Rule 59(e). As this Court observed in Weatherly, supra, such failures “are elements that weigh heavily in the choice of sanctions.” All of this could have been found by the trial court to exemplify bad faith on plaintiffs’ part.

While this Court recognizes the seriousness of the sanction of dismissal, nevertheless, we cannot state, under these facts, that the action of the trial judge in choosing that sanction over others available was inappropriate. For these reasons, the order of the trial court must be, and it is, affirmed.

AFFIRMED.

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


author: SHORES, Justice.

text:
    Donnie HILBURN v. Hubert SHIRLEY.
    82-604.
    Supreme Court of Alabama.
    Sept. 2, 1983.

      R. Blake Lazenby of Wooten, Boyett, Thornton, Carpenter & O’Brien, Talladega, for appellant.
    William C. Roedder and T. Bruce McGow-in of Hand, Arendall, Bedsole, Greaves & Johnston, Mobile, for appellee.
   SHORES, Justice.

This is an appeal by the plaintiff from a summary judgment granted in favor of the defendant in a case growing out of a collision between a tractor-trailer truck driven by the plaintiff and a Chevrolet Vega driven by the defendant, who concedes in brief that “the manner in which it occurred is disputed between the parties.” We reverse and remand.

The plaintiff was driving a tractor-trailer rig loaded with pipe, weighing overall about 84,000 pounds, north on Water Street, a six-lane street, early on the morning of October 14, 1980. He was en route to the State Docks facility and maintained that he had successfully completed a lane change to the middle lane when the defendant “darted” in front of his truck, causing the accident. Defendant, on the other hand, contends that the plaintiff merged his truck into the traffic lane already occupied by the defendant, thereby causing the accident. The plaintiff vehemently denies this and says that the defendant came from the right lane into the middle lane directly in front of the truck, the front bumper of which collided with the driver’s side of the Vega, just behind the front door.

The plaintiff by deposition said that he did not see the defendant’s car before the collision. As soon as he got his rig stopped, he put on the air lock brakes and “jumped out of the truck.” It is about six feet to the ground, and he did not use the steps because: “I was in a hurry to get him [the defendant] out of that car. I didn’t know how bad he was hurt. I didn’t know if his car was on fire. I didn’t know.”

The jump from the truck caused injury to the plaintiff’s lower back, ultimately resulting in surgery.

The single issue is whether under these facts, as a matter of law, it must be said that the proximate cause of the plaintiff’s injury was not the collision, but instead, a separate, independent intervening event which could not reasonably have been foreseen.

As we have said so often since the adoption of Rule 56, A.R.Civ.P., because of the nature of negligence actions, almost always issues of fact are involved so that summary judgment is rarely appropriate in such cases. Tolbert v. Gulsby, 333 So.2d 129 (Ala.1976).

Proximate cause has been defined as “the primary moving cause without which [the injury] would not have been inflicted, but which, in the natural and probable sequence of events, and without the intervention of any new or independent cause, produces the injury.” Mobile City Lines, Inc. v. Proctor, 272 Ala. 217, 224, 130 So.2d 388, 394 (1961). The defendant concedes that the manner in which the accident occurred is disputed. Taking the facts most favorably, as we must, to the non-moving party on motion for summary judgment, they would support a finding of negligence on the defendant’s part in causing the initial collision. However, he argues that the plaintiff’s act of jumping from his truck to see if the defendant was hurt was the superseding cause of his injury, absolving the defendant of liability for his original negligent act. We cannot agree that this is so as a matter of law. “An intervening cause which is set in operation by an original negligent act, or which is a normal response to the stimulus of a situation created by such act, generally will not relieve the original wrongdoer of liability.” Stated differently, “[a]n intervening act does not become a superseding cause if it is a normal response to the stimulus of a situation created by the negligence of another, and the manner in which it is done is not extraordinarily negligent.” 65 C.J.S. Negligence § 111(5) (1966). Restatement (Second) of Torts § 443 (1965).

We think a jury issue is made on the question of whether the plaintiff’s jumping out of his vehicle immediately following the collision was a natural and normal response flowing from the defendant’s alleged negligence. At least one court has addressed the precise issue and observed:

“[I]t has long been settled that the chain of causation is not broken by an intervening act which is a normal reaction to the stimulus of a situation created by negligence, and such normal reaction has been held to include the instinct toward self-preservation, Scott v. Shepard, 2 W.B1. 892 (the lighted squib case), and the equally natural impulse to rush to others’ assistance in emergency....”

New York Cent. R. Co. v. Brown, 63 F.2d 657, 658 (6th Cir.1933).

In Vines v. Plantation Motor Lodge, 336 So.2d 1338 (Ala.1976), we stated:

“This court has held many times that a person, who by some act or omission sets in motion a series of events, is not responsible for the consequences of intervention of another agency, unless at the time of his original act or omission, the act of the intervening agency could reasonably have been foreseen. If so, the causal chain is not broken.”

336 So.2d at 1339.

We are unwilling to hold as a matter of law that it was or was not reasonably foreseeable that the driver of a vehicle involved in a collision might suddenly jump from it and injure himself in an effort to render assistance to another driver whose acts may have caused the accident. This is a matter peculiarly within the province of a jury.

Because the trial court erred in granting summary judgment, its order is reversed, and the cause is remanded.

REVERSED AND REMANDED.

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


author: TORBERT, Chief Justice.

text:
    Grady and Gayle HART v. GENERAL MOTORS ACCEPTANCE CORPORATION.
    82-789.
    Supreme Court of Alabama.
    Sept. 2, 1983.
    C. Michael Quinn, Birmingham, for appellants.
    W.B. Fernambucq of Huie, Fernambucq & Stewart, Birmingham, for appellee.
   TORBERT, Chief Justice.

This appeal is from a summary judgment granted in favor of defendant General Motors Acceptance Corporation (GMAC) in an action for invasion of privacy brought by plaintiffs Grady and Gayle Hart.

Plaintiff Grady Hart was employed as the minister of education at the Ridgecrest Baptist Church of Dothan, Alabama, on July 15, 1979. Prior to his arrival in Do-than, he had had financial trouble and had become delinquent on payments to GMAC. When he and his wife Gayle arrived in Dothan, the GMAC account was transferred to the Dothan office. In September 1979, Charles Newton, the credit representative for GMAC in Dothan, twice called Reverend Austin Phillips, minister at Ridgecrest Baptist Church, to request Reverend Phillips’ aid in encouraging Mr. Hart to make payments on the account.

Joyce Holloway, an employee of GMAC in the section to which Hart’s account was assigned, and her husband Morris Holloway, were also members of Ridgecrest Baptist Church. Mrs. Holloway became aware of Mr. Hart’s delinquency and discussed it with her husband. One of the Holloways discussed the Harts’ financial problems with Reverend Phillips, who in turn discussed it with the Harts. Some time later, the personnel committee at the church met and after discussing several matters relating to Mr. Hart, asked him to resign, whereupon he refused. On July 6, 1980, at a meeting of the congregation, specially called to discuss Mr. Hart, the congregation voted to discharge him.

Grady and Gayle Hart filed suit against GMAC, alleging a cause of action for invasion of privacy. GMAC filed an answer denying all material allegations of the complaint, and filed a motion for summary judgment with supporting documents. After briefing and oral argument by both parties, the court granted summary judgment on December 29, 1981. The plaintiffs appeal from that judgment. We affirm.

The standard for granting a summary judgment was stated in Ryan v. Charles Townsend Ford, Inc., 409 So.2d 784 (Ala.1981).

“It is a long-established rule in this state that on motions for summary judgment, the movant has the burden of negating the existence of any issue of material fact; Plant v. Reid, Inc., 365 So.2d 305 (Ala.1978); Worley v. Worley, 388 So.2d 502 (Ala.1980), and if there is a scintilla of evidence supporting the non-moving party, summary judgment is inappropriate. Studdard v. South Central Bell Tel. Co., 356 So.2d 139 (Ala.1978). In determining the existence of genuine issues of material fact, the record must be viewed by this Court in a light most favorable to the non-moving party. Papastefan v. B & L Const. Co., Inc. of Mobile, 356 So.2d 158 (Ala.1978).”

Rule 56(e), Alabama Rules of Civil Procedure, also provides that once a motion for summary judgment has been made and supported as required by the rule, the motion will be granted unless the non-moving party comes forth with an evidentiary or factual showing that there is a genuine issue of material fact for trial. Butler v. Michigan Mutual Insurance Co., 402 So.2d 949 (Ala.1981). When a motion for summary judgment is made, the non-moving party can not rely upon the mere allegations in his pleadings. Underwood v. Barbour County Board of Education, 372 So.2d 22 (Ala.1979).

The plaintiffs’ complaint contained the following allegation in paragraph 6: “That in June of 1980, or sometime thereafter, the defendants discussed the delinquency of the loan ... to the plaintiff’s employer, the Ridgecrest Baptist Church.” In the plaintiffs’ memorandum in opposition to the motion for summary judgment plaintiffs admitted that GMAC handled the matter professionally except for the acts of its agent-employee Mrs. Holloway. Based on the allegations in the complaint and the admissions in the memorandum, it is clear that only Mrs. Holloway’s conduct as agent-employee of GMAC is the basis of the plaintiffs’ claim.

The conduct supporting a cause of action for invasion of privacy in the context of debtor-creditor relations involves “the wrongful intrusion into one’s private activities in such manner as to outrage or cause mental suffering, shame or humiliation to a person of ordinary sensibilities.” Liberty Loan Corp. of Gadsden v. Mizell, 410 So.2d 45, 47 (Ala.1982); Norris v. Moskin Stores, Inc., 272 Ala. 174, 132 So.2d 321 (1961). Liberty Loan and Norris point out that not every action taken by a creditor to collector will give rise to an action for intrusion and that a test of reasonableness applies. In Berrier v. Beneficial Finance, Inc., 234 F.Supp. 204 (N.D.Ind.1964), a case with similar facts, the court held that summary judgment was proper where plaintiff could show only that the creditor made two telephone calls to the plaintiff’s employer and there was no evidence to show that the creditor’s conduct was otherwise unreasonable, even if it had some coercive effect.

As pointed out, appellant admits that the conduct of GMAC’s agent, Mr. Newton, was not wrongful and was not the basis of this suit. Upon careful examination of the record, we fail to see how the conduct of Mrs. Holloway differed in any material way from that of Mr. Newton. The plaintiffs introduced no evidence showing that Mrs. Holloway or her husband did anything more than seek Reverend Phillips’ help in collecting the debt, and in fact the evidence shows that they sought to provide the Harts with financial aid, either personally or through the church. The plaintiffs’ complaint avers that defendant’s conduct was an “intentional, willful” invasion of the plaintiffs’ privacy, but they offered no factual evidence in support of their claim and in opposition to the defendant’s motion for summary judgment and supporting evidence. “When no evidence is offered to contradict that presented by the movant, then the court has no alternative but to consider the evidence uncontroverted and summary judgment, if warranted by such evidence, may be entered against the non-moving party.” Butler v. Michigan Mutual Insurance Co., 402 So.2d 949 (Ala.1981).

It is apparent from our review of the evidence before the trial court that there was no genuine issue of material fact. The summary judgment was proper and it is hereby affirmed.

AFFIRMED.

FAULKNER, ALMON, EMBRY and ADAMS, JJ., concur.

      . We need not reach the issue of whether Mrs. Holloway was the agent of GMAC with respect to this conduct or whether she as an employee acted within the scope and line of her employment.


text:
    Jimmy COLE v. George A. COOPER.
    82-829.
    Supreme Court of Alabama.
    Sept. 2, 1983.
    John L. Sims, Hartselle, for appellant.
    Ralph E. Slate, Decatur, for appellee.
   SHORES, Justice.

This is an appeal by the plaintiff from a summary judgment entered for the defendant in a defamation action. We affirm.

Plaintiff Cole worked as a maintenance man for Roselawn Cemetery, Inc. He was discharged in early 1981. Defendant Cooper is an accountant who handles Rose-lawn’s books, including filling out and filing forms with the Department of Industrial Relations. By affidavit, which was not contradicted, he said:

“When the forms came in on Jimmy Cole from the Department of Industrial Relations, I had or picked up the forms from Roselawn Cemetery. I inquired of Mrs. Chandler [described by plaintiff Cole as the “boss”] at Roselawn Cemetery, I believe by phone, as to the reason for his termination so I could fill out the forms. She told me that he was suspected of stealing. I told her that was rather strong, and that I would come over and talk to her about it. Before I filled out the forms, I went to the office of Rose-lawn Cemetery, talked to Mrs. Chandler, and after a rather lengthy conversation in which she assured me that Mr. Cole was discharged because of suspected stealing, and after I told her this was a strong statement to send to the Department of Industrial Relations, she told me it was true. She indicated she knew the consequence thereof and that it was true. I had no personal knowledge of the same, investigated it to the extent that I talked to Mrs. Chandler, and as the agent for Roselawn Cemetery, Inc., I filled out the form and sent it to Montgomery to the Department of Industrial Relations, stating what had been told to me by the employer as the reason for his discharge.”

It was not disputed that Cooper acted solely as the agent for the employer in submitting the forms to the Department. He did not know Mr. Cole.

Section 25-4-116, Code 1975, provides in part:

“All letters, reports, communications and other matters, written or oral, from employer or employee to each other or to the director or any of his agents, representatives or employees, or to any official or board functioning under this chapter, which shall have been written, sent, delivered or made in connection with the requirements and administration of this chapter, shall be absolutely privileged and shall not be made the subject matter or basis for any civil action for slander or libel in any court.”

Clearly, under this statute, the communication from Cooper, acting as agent for the employer, was privileged. Whether it is an absolute privilege or merely a qualified one, we have not decided and need not decide here, because there is no suggestion by the plaintiff or anyone on his behalf that the statements made were attended with malice or ill will.

“ ‘Where a communication is conditionally privileged, it is free from the legal imputation of malice and is actionable only if there is actual malice. O’Barr v. Feist, 292 Ala. 440, 296 So.2d 152 (1974). The burden is on plaintiff to prove actual malice. Interstate Electric Company v. Daniel, 227 Ala. 609, 151 So. 463 (1933).
“ ‘This Court has recognized that disposition of the issue of actual malice by summary judgment is generally inappropriate. Loveless v. Graddick, 295 Ala. 142, 325 So.2d 137 (1975). However, where no proof of malice is offered at all, summary judgment is appropriate. Id. “ ‘Actual malice
“ . may be shown by evidence of previous ill will, hostility, threats, rivalry, other actions, former libels or slanders, and the like, emanating from the defendant, or by the violence of the defendant’s language, the mode and extent of publication, and the like.’ ”
‘Kenney v. Gurley, 208 Ala. 623 at 626, 95 So. 34 at 37.’
“Willis v. Demopolis Nursing Home, Inc., 336 So.2d 1117, at 1120 (Ala.1976).”

Dent v. Smith, 414 So.2d 77, 78-79 (Ala.1982).

Here, as in Dent, the movant showed that there was no set of facts which could be shown, not even a scintilla, which would constitute a genuine issue on the question of malice on the part of Cooper; therefore, if the statutory privilege is only a qualified one, the defendant has carried his burden, and summary judgment was proper.

AFFIRMED.

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


author: EMBRY, Justice. TORBERT, Chief Justice

text:
    Oscar H. GREEN and Brenda Green v. George Timothy TAYLOR.
    82-422.
    Supreme Court of Alabama.
    Sept. 9, 1983.
    Larry R. Grissett of Prestwood, Prest-wood & Grissett, Andalusia, for appellants.
    Richard W. Yollmer, Jr. and Patricia K. Olney, of Reams, Wood, Yollmer, Philips, Killion & Brooks, Mobile, for appellee.
   EMBRY, Justice.

This is an appeal from a dismissal “with prejudice” of an action filed by Oscar and Brenda Green after they failed to appear to give depositions. We affirm.

The Greens filed a complaint charging the J & E Development Company, Inc., acting through and with its agent, George Taylor, wantonly caused a truck to collide with an automobile occupied by Brenda Green. J & E Development moved to dismiss on the grounds that any action the Greens could bring against it was barred by the one-year statute of limitations. The order granting that motion is uncontested on appeal.

The Greens continued to pursue their cause of action against Taylor, but had difficulty in obtaining service of process. The trial court originally granted their motion for service of Taylor by publication. It was, however, later denied when Taylor’s insuror, State Farm Mutual Automobile Insurance Company (State Farm), as a real party in interest, requested the trial court’s reconsideration. State Farm alleged the Greens had not made a proper attempt at personal service.

Because an appearance had been made by State Farm, the Greens moved for a default judgment against Taylor, alleging he, through State Farm, had made a general appearance which subjected him to the jurisdiction of the court. This motion was denied. Taylor was then served by publication and filed an answer to the Greens’ complaint.

Taylor then noticed the oral depositions of Oscar and Brenda Green. When they failed to appear, Taylor filed his motion to strike the complaint and dismiss the action. The motion was granted and the action dismissed “with prejudice.” The Greens appealed and present three issues for our review. The dispositive one is whether the trial court erred in dismissing the Greens’ action against Taylor because of their failure to appear for the scheduled depositions.

The trial court clearly had the authority to dismiss under Rule 37(d), ARCP; the Greens do not contest that authority. However, they do contend the trial court abused its discretion in dismissing under the circumstances. We are precluded from review of this issue because the Greens did not present a timely motion, under Rule 60(b), ARCP, to set aside the judgment of dismissal. Neither did they request a rehearing under Rule 59(a)(2), ARCP. Because the trial court did not have an opportunity to review its own decision, we are foreclosed from reviewing it.

This holding is premised upon Wade v. Pridmore, 361 So.2d 511 (Ala.1978). There we held that where a default judgment was taken against the defendant for failure to attend trial, this court could not review the decision to grant a default where no request had been made that the trial court set aside its judgment. There, we stated:

“We opine that a party in default should make a formal motion to set aside a judgment of default. The granting or denying the motion will involve the exercise of the sound discretion of the trial court, and that will be interfered with by an appellate court only where there is an abuse.
“As the judgment by default is a final judgment binding the defendant to the same extent as if the allegations of the complaint had been contested, we cannot reach the issue of whether it was error to deny Wade’s summary judgment motion. The order denying the motion was interlocutory—not an appealable order.... ”

361 So.2d at 513.

The rationale behind the Wade decision and the general rules regarding the necessity for post-trial motions is that, ordinarily, issues not raised before the trial court may not be raised for the first time on appeal. Hutchins v. Shepard, 370 So.2d 275 (Ala.1979). This principle assures proper development of the record in the court below and places the primary responsibility on the trial judge to determine whether the sanction of dismissal for failure to comply with discovery orders is merited. The procedure affords the trial court, which has a feel of the case, an opportunity to correct its own errors and prevent the hardships of an appeal. Cf. Great Atlantic and Pacific Tea Co., Inc. v. Sealy, 374 So.2d 877 (Ala.1979); State v. Long, 344 So.2d 754 (Ala.1977).

Because the Greens did not timely file a motion to set aside the dismissal of their action, the question of whether .the trial court erred in that regard is not properly before us.

Here, as in Wade, other issues presented for our review cannot be considered because they are of an interlocutory character. Those additional issues are: (1) Whether the trial court committed reversible error in granting State Farm’s motion to reconsider allowing service of Taylor by publication; (2) Whether the trial court erred in allowing State Farm to enter the case as a real party in interest; and, (3) Whether the trial court erred in denying the Greens’ motion for a default judgment against Taylor. As stated, these issues are interlocutory, not appealable, and a review of them was waived by the failure to properly contest the trial court’s dismissal, by post judgment motions, of their case.

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

AFFIRMED.

FAULKNER, ALMON and ADAMS, JJ., concur.

TORBERT, C.J., concurs specially.

TORBERT, Chief Justice

(concurring specially).

While I concur in the result in this case, I think the reasons underlying that result should be more fully explained. The decision in Wade v. Pridmore, 361 So.2d 511 (Ala.1978), dealt with the failure of the appellants to make a motion to set aside the default judgment before they appealed from that judgment. This Court correctly decided that case based on Rule 55(c), A.R. Civ.P., which specifically deals with the setting aside of default judgments, and the policy behind it. The rule was designed to allow the trial court the opportunity to revise its decision and set aside the default judgment if justice so required, preventing the hardship of an unnecessary appeal. Cf. Great Atlantic and Pacific Tea Co., Inc. v. Sealy, 374 So.2d 877 (Ala.1979). If the trial court refused to set aside the default judgment, then there would be a fully developed record in the court below, and that would enable this Court to make an informed decision as to whether the trial court erred. Without the subsequent hearing on the motion to set aside the default, the record on review before this Court would obviously be incomplete as it would only reflect the position of the party moving for default.

For the same reasons, the result reached by the majority in this case is correct. The dismissal for failure to comply with the discovery rules occurred after something less than a full hearing. Failure of the appellants here to move to set aside the dismissal under Rule 60(b), A.R.Civ.P., prevents the trial court from correcting its decision and deprives this Court of a fully developed record from which to decide whether the trial court abused its discretion.


author: PER CURIAM. TORBERT, Chief Justice

text:
    Richard A. ABSTON v. Thomas B. WOODARD, III, et al.
    81-446.
    Supreme Court of Alabama.
    Sept. 16, 1983.

      Jack Drake of Drake, Knowles & Pierce, Tuscaloosa, for appellant.
    Raymond E. Ward of Ray, Oliver & Ward, Tuscaloosa, for appellees.
   PER CURIAM.

This is the second appeal in this case. In Abston v. Woodard, 398 So.2d 237 (Ala.1981) (Abston I), this Court reversed the trial court and remanded the cause for determination of whether the nonrenewal of Abston’s employment contract was imper-missibly based on his exercise of First Amendment free speech rights. On remand the trial court allowed no inquiry into other reasons for non-renewal and only required the defendant school board members to testify in summary and conelusory terms whether Abston’s protected conduct motivated them in deciding not to renew his contract. This limitation of the scope of inquiry was error, and we again reverse and remand.

The facts are set out fully in Abston I, so we shall reiterate them only briefly here. Richard A. Abston was a successful football coach at Pickens County High School. In his third year, while he was still untenured, the Pickens County Board of Education notified him that his contract would not be renewed. The Board acted on the recommendation of the superintendent of the Pickens County School Board, who acted on the recommendation of James Lawrence, the principal of Pickens County High School. Abston had instigated an investigation into football game gate receipts, which were under Lawrence’s control, and found that they were short by amounts ranging from $250.00 to $1000.00 per game. Lawrence resigned immediately after the Board notified Abston of his contract non-renewal.

Abston sued the Board, alleging that his nonrenewal was based on his complaints about deficits in the gate receipts for home football games. The trial court entered judgment for the Board, finding that Ab-ston had not mef his burden of proving that his speech was protected and was a substantial or motivating factor in the Board’s decision not to rehire. This Court reversed, stating in the course of the opinion, “we cannot but conclude that Abston, at least minimally, met the standard of showing that Lawrence’s recommendation for his nonrenewal was based upon Abston’s efforts in the gate receipts matter.” Abston I, supra, at 241.

The opinion concluded,

“Since the trial judge based his denial of relief upon the principle that Abston failed to meet his burden of proof, and since we find that there was sufficient evidence to show that his nonrenewal may have been based on his having exercised his constitutional right of freedom of expression, we hold that Abston is entitled to have the Board show that the reason for his nonrenewal, at the time the decisions were made, was not based upon his exercise of freedom of speech; therefore, the judgment is due to be reversed and the cause remanded.
“The question to be answered in this case on remand is: Would the Board have reached the same decision in Abston’s case absent its knowledge, if any, of Ab-ston’s involvement in the ‘gate receipts’ matter, or in the attempt to get Lawrence fired?”

Id., at 242 (citations omitted).

On remand, the parties and the court reopened the case for defendants to prove that Abston’s nonrenewal was not based on his exercise of free speech rights. The court observed,

“... I based my initial ruling upon the fact that Mr. Abston failed to meet his burden of proof showing that his non-renewal was based on his having exercised his constitutional rights. The Supreme Court, apparently, establishes a new rule of evidence and they said that he proved that he may have been dismissed for that reason.
“I didn’t know he had any burdens of proof where the test was whether something ‘may have been.’ I thought the burden of proof was whether or not you determine that it had, in fact, been or had not been.”

The court quoted the final paragraph of Abston I, quoted above, and determined: “[T]he hearing will be limited to that question. It is not relevant if he was not renewed for a reason other than his involvement in this matter.”

Counsel for Abston stated his position: “Judge, we disagree with the court’s interpretation and our position is that we have • made out a prima facie case and the Board must now defend against. Our position would be that the scope of inquiry is much broader.” The hearing proceeded on the basis stated by the trial court. Counsel for the defendants established that the Board members voted not to renew Abston’s contract based on the superintendent’s recommendation without any further discussion. He then asked each of them whether any involvement by Abston in the gate receipts matter or the effort to have Lawrence fired influenced their decision, to which each answered, “No.”

Abston’s counsel asked the Board members whether they were aware of the controversy and they testified that they were, either through participation on the Board or through public knowledge as citizens, or both. After the first witness, counsel for Abston remarked, “Judge, in light of your ruling that I can’t inquire into the reasons that he may have had individually or so forth, I don’t have any further questions.”

We agree with Abston’s position that the scope of inquiry should have been broader on remand. The clear import of the prior opinion of this Court is that Abston had presented a prima facie case and the Board must rebut by showing “by a preponderance of the evidence that it would have reached the same decision as to respondent’s reemployment even in the absence of the protected conduct.” Mount Healthy City School District Board of Education v. Doyle, 429 U.S. 274, 287, 97 S.Ct. 568, 576, 50 L.Ed.2d 471 (1977). See also, Givhan v. Western Line Consolidated School District, 439 U.S. 410, 99 S.Ct. 693, 58 L.Ed.2d 619 (1979).

Mount Healthy, the paradigm case in this area, presents a situation strikingly similar to the one at' bar. Nonrenewal of the contract of an untenured teacher (Doyle) was recommended by the superintendent to the Board, which accepted the recommendation without discussion. A crucial difference is that in Mount Healthy there was evidence of reasons why Doyle would not have been rehired independent of his constitutionally protected conduct; here, there was none, other than the bare statement by the Board members that in this, as in virtually all other cases, they accepted the superintendent’s recommendation. This will not suffice in the face of their admission that they knew that the controversy surrounding Ab-ston stemmed from his attempt to stop the loss of school funds through apparent embezzlement.

Alabama law requires no justification or reason for not renewing the contract of an untenured teacher. Code 1975, § 16-24—1 et seq.; Foster v. Blount County Board of Education, 340 So.2d 751 (Ala.1976). Such was the case also under the law applicable in Mount Healthy, however, and the United States Supreme Court held that Doyle “may nonetheless establish a claim to reinstatement if the decision not-to rehire him was made by reason of his exercise of constitutionally protected First Amendment freedoms.” Mount Healthy, supra, 429 U.S. at 283-84, 97 S.Ct. at 574 (citation omitted).

The court below placed undue emphasis on the statement in Abston I that Abston’s nonrenewal “may have been” based on his exercise of First Amendment rights. This Court could not have said, as the trial court seems to think it should have, that Abston’s nonrenewal was based on his protected conduct. Such would have amounted to rendering the cause, when the opinion merely held that Abston had made out a prima facie case. At any rate, the opinion clearly held that Abston had made out at least a minimal prima facie case and the Board would have to rebut by showing either that the protected conduct did not influence the decision or, if it did, that Abston would not have had his contract renewed anyway.

In the face of the Board members’ acknowledgement that they were aware of the reasons for the controversy over Ab-ston, an assertion that they followed the superintendent’s recommendation as a matter of course does not rebut evidence tending to prove that the nonrenewal was based on the protected conduct. Abston’s prima facie case raises the inference that Lawrence had a retaliatory motive in recommending non-renewal to the superintendent. If the superintendent made his recommendation only because of Lawrence’s recommendation, the impermissible motive carried through to the Board’s action, even though the Board members asserted that they acted only on the superintendent’s recommendation and not out of a motive relating to Abston’s protected conduct.

With the Board taking the position that it acted solely on the superintendent’s recommendation, it now has the burden of going forward with evidence that the superintendent would have made the same recommendation absent Abston’s protected conduct. In Waters v. Chaffin, 684 F.2d 833 (11th Cir.1982), the Eleventh Circuit Court of Appeals, applying the Mount Healthy test, held:

“The employee has the initial burden of demonstrating that his speech was constitutionally protected and was a substantial or motivating factor in the decision to discipline him. If the employee meets this twin burden, the burden of proof shifts to the government to show by a preponderance of the evidence that it would have reached the same decision to discipline the employee in the absence of the protected speech.”

Id., at 837 (footnote omitted).

Lest the Board or the trial court assume that the controversy arising from Abston’s discovery suffices, without more, as evidence that the superintendent would have made the same recommendation even without Lawrence’s tainted recommendation to the superintendent, we point out that the Federal courts for the eleventh circuit and the former fifth circuit have rejected such arguments:

“... In Sterzing v. Fort Bend Independent School District, 496 F.2d 92 (5th Cir.1974), the former fifth circuit held that the existence of an antagonistic relationship could not justify the refusal to reinstate a teacher who had been discharged for exercising his first amendment rights. In reaching this conclusion, the court stated that ‘[ejnforcement of constitutional rights frequently has disturbing consequences. Relief is not restricted to that which will be pleasing and free of irritation.’ Id. at 93.”

Allen v. Autauga County Board of Education, 685 F.2d 1302, 1305 (11th Cir.1982).

Of course, if the controversy were such as to disrupt the functioning of the school, or if Abston conducted himself in such a way as to exacerbate the problems, the mere fact that the controversy arose from protected speech in the first instance should not completely shield Abston. Cf. Tinker v. Des Moines Independent Community School District, 393 U.S. 503, 89 S.Ct. 733, 21 L.Ed.2d 731 (1969). There is no evidence of such extenuating circumstances in the record, however. If, on a fuller hearing, the Board rebuts Abston’s prima facie case that he was not rehired solely because of his conduct protected by the First Amendment, the trial court shall weigh the evidence as factfinder and enter judgment accordingly.

For the reasons stated, the judgment is reversed and the cause remanded.

REVERSED AND REMANDED.

MADDOX, ALMON, SHORES, EMBRY and ADAMS, JJ., concur.

TORBERT, C.J., and FAULKNER, and BEATTY, JJ., dissent, with opinion by TORBERT, C.J.

TORBERT, Chief Justice

(dissenting).

This appeal has occasioned my re-examination of the opinion in this case on its first appeal, Abston v. Woodard, 398 So.2d 237 (Ala.1981) (Abston I), in which I concurred. The learned trial judge focused attention on the problem when he observed that “[t]he Supreme Court, apparently, [in the first appeal] establishes a new rule of evidence and they said that he [Abston] proved that he may have been dismissed for that reason.” For the reasons hereinafter stated, it is my considered judgment that Abston I palpably misapplies federal law protecting first amendment exercises as announced in Mt. Healthy City School District Board of Education v. Doyle, 429 U.S. 274, 97 S.Ct. 568, 50 L.Ed.2d 471 (1977), and unreasonably restricts the trial court in its function as the factfinder. I dissent to point out this view in the hope that this Court can soon correct the holding of Abston I.

While it is clearly the law that a non-tenured teacher is protected from employment retaliation for the exercise of his constitutionally protected right of free speech, the burden is on the teacher to show that the protected conduct was a “substantial” or “motivating factor in the Board’s decision not to rehire him.” Mt. Healthy, 429 U.S. at 287, 97 S.Ct. at 576. Only then must the board come forward and “prove by a preponderance of the evidence that the same decision would have been reached in the absence of the protected conduct.” Allen v. Autauga County Board of Education, 685 F.2d 1302, 1304 (11th Cir.1982). Failure of the plaintiff to meet his prima facie burden is a matter for determination by the trial court as the factfinder.

Abston I goes astray of federal law by reversing the factfinder’s determination that plaintiff failed to prove that the board’s non-renewal decision was based upon his free speech exercise. The language of Abston I itself suggests that the factfinder did not abuse his discretion or commit clear error: “[W]e find that there was sufficient evidence to show that his nonrenewal may have been based on his having exercised his constitutional right of freedom of expression.... ” 398 So.2d at 242 (emphasis added). The Court in Abston I addressed the trial court with the following question: “Would the Board have reached the same decision in Abston’s case absent its knowledge, if any, of Abston’s involvement in the ‘gate receipts’ matter, or in the attempt to get Lawrence fired?” Id. (emphasis added). If plaintiff had met his prima facie burden, this Court could have confidently stated that the board did have knowledge, an obvious prerequisite to a finding that such knowledge was a substantial or motivating factor in the decision not to renew Abston’s teaching contract.

Even more revealing is the language used by this Court in Abston I to announce its disagreement with the trial court’s findings:

“Viewing the evidence in a vacuum, one could conclude, as did the trial judge, that neither principal Lawrence nor the school board knew of Abston’s activities involving the ‘gate receipts’ matter, but we do not sit in a vacuum. We have read the whole record and we are convinced that from the evidence presented, it is not mere speculation to conclude from the direct and circumstantial evidence that Lawrence must have known that Abston was connected with the effort to get him fired.”

398 So.2d at 241. The Court admits, after reviewing the evidence, that “one could conclude” the school board did not know about Abston’s protected conduct. Suggesting that the trial court operated in a vacuum in considering the evidence should not be grounds for invalidating the findings; indeed the finder of fact should objectively examine all available evidence, excluding outside information not properly before the court. Moreover, this Court’s announcement that “it is not mere speculation to conclude” is a backhanded and misleading method of reversing a trial court’s finding of fact. Whether or not this Court is persuaded by the findings below is immaterial to appellate review. “Where a trial judge, sitting without a jury hears evidence presented ore tenus, its judgment will not be disturbed unless plainly and palpably erroneous.” Haynie v. Byrd, 429 So.2d 973, 975 (Ala.1983). The trial court concluded that the board did not reach its decision based in any degree upon Abston’s exercise of free speech. The uncertainty and inconsistency of this Court’s opinion in Abston I makes it obvious that the trial court’s findings were not plainly and palpably erroneous.

Mt. Healthy does not ask for a change in the ore tenus doctrine or similar rules of fact review on appeal. These procedural matters are the province of state courts. Wright, Miller, Cooper & Gressman, Federal Practice and Procedure: Jurisdiction § 4028 at 747 (1977). Rather, the U.S. Supreme Court established what must necessarily follow once plaintiff has met his pri-ma facie burden.

The trial court, understandably confused by the Abston I ruling, attempted to limit the inquiry to the one question which this Court remanded. The trial court believed that this Court has “established] a new rule” with respect to the evidence necessary to satisfy a burden of proof. We must have misunderstood the facts in Abston I, and this Court should have affirmed the trial court’s ruling that Abston did not fulfill his prima facie burden. I am convinced that we did not intend to suggest the development of a new rule of evidence or procedure in Abston I.

To allow the result of Abston I to remain in effect poses serious public policy concerns for orderly school administration. Had the correct standard been applied, the trial court’s decision would have been affirmed in Abston I. School boards should not be required to produce reasons for termination of non-tenured employees based upon a rule of evidence that the board’s decision “may have been” based on the exercise of first amendment rights. It is the rule that when a prima facie case has been established, the constitutional concerns must become paramount to those of administration. Any other decision would upset the careful balance established in Mt. Healthy. From the school board’s point of view, this balance forces them to carefully consider why they terminate teachers, yet only requires revelation when a constitutional violation has presumptively occurred.

Allowing Abston I to remain uncorrected deceives litigants and lower courts by giving them cause to believe that a showing that the board may have had knowledge of the constitutionally protected activity is sufficient for plaintiff to fulfill his burden. This Court has already ruled following Ab-ston I that a plaintiff, to avoid summary judgment, must offer evidence that the discharging authority actually knew about the protected conduct and acted upon such knowledge. Holliyan v. Gayle, 404 So.2d 31 (Ala.1981) (non-tenured police officer terminated for allegedly exercising right of free speech). To now reaffirm the standards of Abston I will leave the law unsettled, a result antithetical to this Court’s purpose.

This state of confusion should be resolved by remanding this matter to the trial court to allow plaintiff to present evidence to fulfill his prima facie burden. Remanding this cause would serve the interests of justice and fairness by preventing appellate error from prejudicing the rights of litigants. In any event, Abston I’s implications should be expressly renounced.

FAULKNER and BEATTY, JJ., concur.

      . Boyd Edgeworth, one of the Board members, testified:
      “People were talking about it pretty strong. About as many against it as there was for it and a lot of people didn’t say anything. It was really a hassle.”


author: PER CURIAM. JONES, Justice

text:
    Sherry CONLEY & Ricky Conley v. William A. BEAVER, et al. Sherry CONLEY & Ricky Conley v. CURTIS MACHINE CO., et al.
    81-817, 81-1072.
    Supreme Court of Alabama.
    Sept. 16, 1983.

      Stephen D. Heninger of Hare, Wynn, Ne-well & Newton, Birmingham, for appellants.
    Lyman H. Harris and Virginia L. Jordan of Lorant, Harris & Yearout, Birmingham, for appellees.
   PER CURIAM.

Sherry Ann Conley and Ricky Conley, plaintiffs and the appellants herein, brought an action on December 6, 1979, for injuries Sherry Conley sustained when her hair became caught in the unguarded part of a grain auger. Defendants in that suit were L.H. Chandler and the Harry J. Whel-chel Company, the distributors of the auger; Hutchinson Division, Lear Siegler, Inc., the manufacturer of the auger; and Curtis Machine Company, the manufacturer and distributor of the gear box. Suit was not filed against the owner of the farm equipment, William A. Beaver. Mr. Beaver was insured by the South Carolina Insurance Company. That company employed General Adjustment Services Bureau (G.A.B.) to adjust the claim under the policy. One of G.A.B.’s adjusters, Peter D. Lenhart, was negotiating a settlement with the Conleys. After the action was filed, Mr. Lenhart concluded the settlement of the Conleys’ claim against William Beaver for $15,000 plus $500 medical benefits. In consideration for that amount, appellants were asked to and did sign a general release. The release was not read to Sherry or Ricky Conley, though they were given the opportunity to read the release for themselves. The Conleys testified that they were informed that the release covered only Mr. Beaver. The form which Mr. Lenhart took to appellants’ home, however, was a general release, which contained broad language that exceeded Mr. Lenhart’s explanation of who would be released under the settlement agreement.

On April 15,1980, Curtis Machine Company, Inc., filed a motion for summary judgment based on the contention that the release barred the action against it. Subsequently, Lear Siegler, Inc., Harry J. Whel-chel Company, and L.H. Chandler filed motions for summary judgment, claiming that the release was a bar against any claims involving injuries sustained by Sherry Conley on November 4, 1979. On October 29, 1980, the court granted the summary judgment motion of Curtis Machine Company, Inc. The trial court granted the motions for summary judgment for the remaining defendants on February 6, 1981, stating that it found that the release “clearly releases the subject defendants,” and that “the wording and the meaning of the words are neither complex nor misleading.” The court concluded that “[tjhere is no ambiguity in its terms.”

On February 26, 1981, the Conleys filed their notice of appeal to this Court. Their appeal was taken against Harry J. Whelchel Company and Lear Siegler. The record on appeal included all depositions that had been taken during discovery in this action. This Court rendered its decision on February 5,1982, affirming the trial court’s order granting summary judgment. Conley v. Harry J. Whelchel Co., 410 So.2d 14 (Ala.1982).

After this Court affirmed the lower court’s judgment, appellants filed two proceedings. Appellants filed a motion in the Jefferson County Circuit Court for relief from judgment pursuant to Rule 60(b), A.R. Civ.P., and a motion under Rule 62(b) for a stay until the circuit court ruled on the petition for reformation. Appellants also filed a petition for reformation of the release in the Jefferson County Circuit Court. The defendants named in that petition were William A. Beaver, South Carolina Insurance Company, General Adjustment Services Bureau, Inc., and Peter Lenhart. Harry J. Whelchel Company and Hutchinson Division, Lear Siegler, Inc., petitioned the court to intervene in this action. The motions for intervention as of right were granted on June 17, 1982. On that same day, the circuit court granted summary judgment in favor of the defendants.

On September 7, 1982, the Jefferson County Circuit Court denied appellants’ 60(b) and 62(b) motions.

In case 81-817 plaintiffs appeal from the order of the trial court denying their petition for reformation and granting the petitions to intervene by Harry J. Whelchel Company and Hutchinson Division, Lear Siegler, Inc. Notice of appeal was timely filed on June 30, 1982. The trial judge’s order of September 7, 1982, denying appellants’ 60(b) and 62(b) motions is the subject of a notice of appeal filed on September 24, 1982, in case 81-1072.

Case 81-817 was consolidated with case 81-1072 for purposes of filing one record on appeal and oral argument.

The primary issue in this case is whether the reformation of the release at issue has been precluded by the prior litigation. The Harry J. Whelchel Company asserts that the doctrine of res judicata applies in the present case and that appellants are precluded by the prior judgment from reliti-gating a matter which was or could have been litigated in the previous action. We hold that the issue respecting the validity and the effect of the release was concluded in the prior action.

Res judicata and collateral estoppel are rules for determining the eonclusiveness of prior judgments. Wheeler v. First Alabama Bank of Birmingham, 364 So.2d 1190 (Ala.1978). In Wheeler, this Court set out the elements of collateral estoppel or “issue preclusion” as the term is used in Owen v. Miller, 414 So.2d 889 (Ala.1982).

“Collateral estoppel operates where the subsequent suit between the same parties is not on the same cause of action. Requirements for collateral estoppel to operate are: (1) issue identical to one involved in previous suit; (2) issue actually litigated in prior action; and (3) resolution of the issue was necessary to the prior judgment. ... If these elements are present, the prior judgment is conclusive as to those issues actually determined in the prior suit. Gulf American Fire & Casualty v. Johnson, 282 Ala. 73, 209 So.2d 212 (1968).”

364 So.2d at 1199.

Applying these criteria to the facts in this case, it is clear that collateral estop-pel or issue preclusion works to prohibit relitigation of the effect to be given to the release in question. Defendants Curtis Machine Company, Harry J. Whelchel Company, and Lear Siegler, Inc., in their motions for summary judgment in the prior action, averred that the release released all the defendants from any liability arising from the accident. In its order granting the summary judgment, the lower court took notice of the fact that the plaintiffs argued that the release was executed through a misunderstanding of the parties. Final judgment was entered in favor of Harry J. Whelchel Company and Lear Siegler, Inc., on the basis that the release barred recovery against them. The trial court determined that the release was unambiguous and that no parol evidence could be considered to vary the terms of the release.

In reviewing that decision of the trial court, this Court agreed with the finding that there was no ambiguity in the terms of the release and that the entire release was valid as a matter of law. We stated:

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

Conley v. Harry J. Whelchel Co., 410 So.2d 14, 15 (Ala.1982).

In the present action, in their petition for reformation, appellants aver that through mutual mistake, innocent misrepresentation or fraudulent misrepresentation, the release was executed in a form which did not reflect the intent of the parties. They seek to reform the release so that it reflects a partial or pro tanto settlement of claims against Beaver only, rather than a release of all the alleged tortfeasors. The issue decided by this Court in the previous action was stated as follows:

“She [appellant] asks this Court to fashion a new remedy, i.e., a ‘partial revocation’ of the release. The release cannot be construed as valid to Mr. Beavers [sic], yét void as to appellees. The entire release must be construed as either [valid] or invalid as to all parties. We find that the unambiguous release is valid as a matter of law....”

410 So.2d at 16.

The issue in the prior case was whether the release was a bar to recovery. This same issue is presented in appellants’ petition for reformation. The issue decided in the prior case was clearly necessary and that issue was actually litigated and determined by the trial court and affirmed by this Court on appeal. See Crowson v. Cody, 215 Ala. 150, 110 So. 46 (1926); Irwin v. Alabama Fuel & Iron Co., 215 Ala. 328, 110 So. 566 (1925).

Appellants contend that in the previous action the release was only “incidental” to the products liability suit. Additionally, appellants claim that in the products liability case they should not be required to expand the parties to that action to bring in the parties to the release. The difficulty with these contentions is simply that (1) the release, unambiguous on its face, precludes, as a matter of settled law, any action for damages brought by or on behalf of the persons executing the release, and (2) once the release has been offered in bar of plaintiffs’ claim for damages, it was incumbent on plaintiffs to take the necessary action to avoid the legal effect of the release. In the previous case of Conley v. Harry J. Whel-chel Co., supra, the majority, as well as the Justices concurring, clearly stated that appellants could have petitioned to reform the release to express the true intent of the parties pursuant to § 8-1-2, Code 1975. Rather, in the prior case, they sought a partial revocation as to the named defendants in the products liability cause of action.

Appellants further argue that the trial court in the first case did not have the power to reform the release. The procedure for trying legal and equitable claims and issues has been merged, and since the adoption of our Rules of Civil Procedure litigants have the right to present legal and equitable claims in an orderly manner in the same action. The circuit court of Jefferson County clearly had the power to determine equitable issues, such as the reformation of the release. See, Ex Parte Reynolds 436 So.2d 873 (Ala.1983).

While this result may appear harsh, it is clear that when the release was pleaded in bar of plaintiffs’ action for damages the proper procedure would have been for them to seek to reform the release. It is significant and conclusive that in the prior case they only sought a partial revocation of the release, not reformation.

Appellants also argue that the trial court erred in granting the Harry J. Whel-chel Company’s motion to intervene as of right. The general rule is that error, if any, must be presented by properly invoking adverse erroneous rulings of the trial court. Error may not be argued before the Supreme Court for the first time. Holt v. Davidson, 388 So.2d 548 (Ala.1980). See also, Brown v. Robinson, 354 So.2d 272 (Ala.1978); Southern Railway Co. v. McCamy, 270 Ala. 510, 120 So.2d 695 (1960). Because there is insufficient evidence in the record as to the fact or grounds for any objection by appellants, we do not believe that the issue is properly before us.

For the foregoing reasons, the judgment of the trial court is affirmed.

AFFIRMED.

TORBERT, C.J., and MADDOX, FAULKNER, ALMON, SHORES, EMBRY and BEATTY, JJ., concur.

JONES and ADAMS, JJ., dissent.

JONES, Justice

(dissenting).

Were I to assume the correctness of this Court’s holding in this case on its first appeal, 410 So.2d 14 (Ala.1980), I would agree that plaintiffs’ claim for reformation is barred by the issue preclusion doctrine. Because I do not agree, and because the instant majority opinion is necessarily predicated upon the holding and rationale of the majority opinion in the prior case, I must respectfully dissent in this case. My views are expressed in the earlier ease at p. 16.

ADAMS, J., concurs.


author: EMBRY, Justice.

text:
    Ray EVERS, M.D., P.A. v. John TAYLOR and Gerald Parker.
    82-10.
    Supreme Court of Alabama.
    Sept. 16, 1983.
    Albert W. Copeland and E. Terry Brown of Copeland, Franco, Screws & Gill, Montgomery, for appellant.
    Alan C. Livingston of Lee & Mclnish, Dothan, for appellees.
   EMBRY, Justice.

Plaintiff-appellant, Ray Evers, M.D., brought this action against John Taylor and Gerald Parker for money had and received. The complaint reads in full as follows:

“Defendants owe plaintiff $15,000 for money had and received from the plaintiff on or about June 18, 1981.
“WHEREFORE, plaintiff prays judgment against the defendants for $15,000, interest and costs.”

Taylor and Parker filed a motion to dismiss based upon service inadequate to impose in personam jurisdiction upon Taylor and Parker. The trial court 'dismissed Ev-ers’s complaint without prejudice, with leave to amend. His amendment provides:

“Now comes Ray Evers, M.D., Plaintiff in the above styled cause, by and through his attorney of record, and with leave of the Court, amends his Complaint by adding thereto the following:
“This cause of action arises out of action of Defendants within the State of Alabama.”

Taylor and Parker submitted a second motion to dismiss based solely on the trial court’s lack of in personam jurisdiction. Again, the trial court granted the motion with leave to amend and without prejudice.

Instead of amending a second time, Evers chose to stand on his complaint and appeal directly to this court. As a prerequisite to any consideration of the merits of this appeal, we must determine whether the trial court’s order was final so as to support an appeal.

In Guilford v. Spartan Food Systems, Inc., 372 So.2d 7 (1979), this court considered whether the dismissal of a complaint for failure to state a claim on which relief can he granted was a final order capable of supporting an appeal. The court analyzed the issue as follows:

“Defendants contend that the order dismissing the complaint with leave to amend is not a final order capable of supporting an appeal. Although there are several cases which hold that, under the Federal Rules of Civil Procedure, an order dismissing a complaint in the absence of an order dismissing the action is interlocutory [e.g. Jung v. K & D Mining Co., 356 U.S. 335, 78 S.Ct. 764, 2 L.Ed.2d 806 (1958); Midwestern Dev., Inc. v. City of Tulsa, 319 F.2d 53 (10th Cir.1963), cert. denied, 379 U.S. 989, 85 S.Ct. 702, 13 L.Ed.2d 610 (1965); Tietz v. Local 10 of International Association of Bridge, Structural and Ornamental Iron Workers, 525 F.2d 688 (8th Cir.1975)], where the plaintiff cannot amend or declares his intention to stand on his complaint such an order then becomes final and appeala-ble. Borelli v. City of Reading, 532 F.2d 950 (3rd Cir.1976).
“Plaintiff was given leave to amend his complaint within ten days of the order dismissing the complaint. His failure to submit an amended complaint within the specified period coupled with his filing an appeal is a sufficient manifestation of his intention to stand on his complaint.
“Moreover, the primary basis for those cases which hold that an order dismissing a complaint is not an appealable order is Rule 58, FRCP, which reads as follows:
“ ‘Subject to the provisions of Rule 54(b): (1) upon a general verdict of a jury, or upon a decision by the court that a party shall recover only a sum certain or costs or that all relief shall be denied, the clerk, unless the court otherwise orders, shall forthwith prepare, sign, and enter the judgment without awaiting any direction by the court; (2) upon a decision by the court granting other relief, or upon a special verdict or a general verdict accompanied by answers to interrogatories, the court shall promptly approve the form of the judgment, and the clerk shall thereupon enter it. Every judgment shall be set forth on a separate document. A judgment is effective only when so set forth and when entered as provided in Rule 79(a). Entry of the judgment shall not be delayed for the taxing of costs. Attorneys shall not submit forms of judgment except upon direction of the court, and these directions shall not be given as a matter of course.'
“As the Committee Comments to Rule 58, ARCP, indicate, the Alabama Rule ‘departs substantially in form from the Federal Rule in order to clarify the procedure as to rendition of judgments’ and the language of the Alabama Rule ‘emphasizes the intention ... to do away with unnecessary technicalities heretofore common in orders, judgments, and decrees.’ Rule 58(b), ARCP, states that ‘[t]he judgment or order or the minute entry thereof will be sufficient if it indicates an intention to adjudicate considering the whole record, and if it indicates the substance of the adjudication.’ (Emphasis supplied.) We find that the requisite intention to adjudicate was present in the instant case.
“Since we consider that the order dismissing the complaint will support the appeal, we now proceed to a consideration of the merits.” (Complaint and intention to adjudicate emphasized in Guilford; other emphasis added.)

372 So.2d at 8-9.

Guilford indicates that a trial court’s order of dismissal with leave to amend will support an appeal if it indicates an ‘intention to adjudicate’ as is required for a judgment under Rule 58, ARCP. In Guilford, where the subject of the order was the adequacy of the complaint to state a cause of action, this court thought it was clear that the trial court intended to adjudicate concerning the action. In the instant case, however, where the dismissal of a complaint with leave to amend was due to lack of in personam jurisdiction, the trial court’s intention is not so clear.

Regarding the finality of an involuntary dismissal due to lack of in personam jurisdiction, Rule 41(b), ARCP, states:

... Unless the court in its order for dismissal otherwise specifies, a dismissal under this subdivision and any dismissal not provided for in this rule, other than a dismissal for lack of jurisdiction, for improper venue, or for failure to join a party under Rule 19, operates as an adjudication upon the merits.”

According to the rule, the dismissal of a complaint due to lack of in personam jurisdiction will not generally act as an adjudication on the merits so as to dispose of the action. Rather, unless a contrary intention is clearly expressed, it is interlocutory and incapable of supporting an appeal.

In the instant case the trial court’s order dismissing Evers’s complaint with leave to amend was interlocutory. It did not direct that all relief be denied. It left the suit pending for further proceedings either by amendment of the complaint, or by entry of a final order.

Because the trial court’s order that is the subject of this appeal is not final, this appeal is due to be and is hereby dismissed.

APPEAL DISMISSED.

TORBERT, C.J., and MADDOX, FAULKNER, ALMON, SHORES, BEAT-TY and ADAMS, JJ., concur.

JONES, J., concurs in the result.


author: ALMON, Justice. ADAMS, Justice,

text:
    Mattie L. JOHNSON v. Kirtley W. BROWN.
    82-263.
    Supreme Court of Alabama.
    Sept. 16, 1983.

      Robert H. Turner of Chestnut, Sanders, Sanders & Turner, Selma, for appellant.
    J. Garrison Thompson of Pitts, Pitts & Thompson, Selma, for appellee.
   ALMON, Justice.

This is an appeal by Mattie L. Johnson, one of the defendants in the circuit court, from a final judgment which reformed a deed.

A district judge in the circuit was appointed to sit on the circuit court bench in this case by assignment of the presiding circuit judge. Rule 13, Alabama Rules of Judicial Administration.

Mattie Johnson seeks a reversal of the judgment, contending that 1) the trial court committed error in refusing to grant a jury trial; 2) the judgment is against the great weight of the evidence; and 3) Rule 13, ARJA, is unconstitutional.

On February 15, 1955, Lonnie Jemison purchased from Mr. and Mrs. E.L. Coley approximately 20 acres of realty located in Perry County, Alabama. The deed, which Lonnie duly recorded, described the property as being “N ½ of NW Vt of the SE ¼ of Section 6, Township 20, Range 8 East, containing 20 acres, more or less” (emphasis added). The following year Lonnie conveyed to his wife Mary Ella an undivided ½ interest in the above described property, by a deed which was also duly recorded.

Lonnie died intestate in 1967. At the time of his death, his widow Mary Ella had two children: a daughter, defendant Mattie Johnson, who was admittedly not the natural child of Lonnie, and a son, defendant McArthur Jemison, whose paternity was in dispute. No other heirs or next of kin of Lonnie were known to exist.

On September 26, 1979, Mary Ella executed an affidavit which stated that she and her deceased husband Lonnie had no children together and that she was his sole heir and next of kin. Believing that she had inherited the remaining ½ undivided interest in the realty, Mary Ella then sold the entire 20 acre parcel for $4,800.00 to C.J. Tucker on October 9, 1979. Because of reliance upon incorrect descriptions contained in prior instruments in the chain of title, the warranty deed, which Tucker duly recorded, erroneously described the realty as the “NE ¼” rather than the “NW ¼.” Although Tucker included this erroneous description in a subsequent deed to Mr. and Mrs. William D. Suddeth, he corrected the description to read “NW ¼” in a duly recorded correction deed to the Suddeths. After Mary Ella’s death in 1981, the Sud-deths conveyed the property to the plaintiff, Kirtley W. Brown, on February 19, 1981, incorporating the correct description of the realty in the deed.

On September 2,1981, Brown sued Mattie Johnson, McArthur Jemison, and all unknown and unborn heirs of Mary Ella Jemi-son, seeking reformation of the deed executed by Mary Ella to Tucker.

On October 2, 1981, Mattie Johnson filed an answer, which included a general denial and several affirmative defenses but which did not include a request for a jury trial. McArthur, however, filed a separate answer which requested a jury trial and which alleged that Lonnie was his natural father.

At a pre-trial hearing on January 7, 1982, the trial judge granted Brown’s motion to strike McArthur’s jury demand and ordered that counterclaims be filed by January 14, 1982. When McArthur dilatorily filed a counterclaim on January 21, 1982, which restated a jury trial request, the trial court granted Brown’s motion to dismiss the counterclaim.

The court entered a final judgment on March 8, 1982, which reformed the deed from Mary Ella to Tucker to read “NW ¼” based on a finding of mutual mistake of the parties and on Mary Ella’s status as the sole heir and next of kin of her deceased husband, Lonnie. The motion for a new trial was denied.

In failing to make a timely demand for a jury trial in accordance with Rule 38, A.R.Civ.P., Johnson waived her right to a trial by jury. Forrester v. Putman, 409 So.2d 773 (Ala.1981). She, therefore, may not assert error in the lower court’s refusal to grant a jury trial.

[2] Moreover, she cannot complain of any error which affected the non-appealing party, McArthur Jemison, who timely requested a jury trial below. Otts v. Gray, 287 Ala. 685, 255 So.2d 26 (1971) (plaintiff cannot assert error adverse to third party plaintiff where plaintiff never asserted claim against third party defendant and third party plaintiff dismissed appeal); Coastal States Life Ins. Co. v. Gass, 278 Ala. 656, 180 So.2d 255 (1965) (respondent cannot appeal error affecting non-appealing co-respondent).

Additionally, a party is not entitled to a jury in an action for reformation of an instrument. Holloway v. Nationwide Mut. Ins. Co., 376 So.2d 690 (Ala.1979).

Johnson’s assertion that the verdict is against the great weight of the evidence must likewise be limited to errors affecting Johnson only. Coastal States Life Ins. Co., supra, 278 Ala. at 661, 180 So.2d at 259.

After a detailed review of the record, we conclude that there was sufficient evidence to support the trial judge’s finding that the description in the 1979 deed was erroneous and did not express the true intent of the parties. Roach v. Hinds, 292 Ala. 641, 299 So.2d 246 (1974).

Because of the presumptions militating in favor of the trial judge’s decree when the case has been presented ore tenus and without a jury, we will not disturb the lower court’s judgment granting reformation. Baughn v. Lott, 291 Ala. 113, 278 So.2d 698 (1973).

Lastly, Johnson seeks to contest the constitutionality of Rule 13 of the Alabama Rules of Judicial Administration, which authorizes a presiding circuit judge to temporarily assign a circuit or district judge to serve in either a circuit or district court within the circuit. This alleged error was not preserved for review, because Johnson failed to object before the close of the trial to the trial judge’s hearing the case. Kimball v. Penney, 117 Ala. 245, 22 So. 899 (1897).

Even if Johnson had properly raised the Rule 13 issue, this Court has recently held that Rule 13 does not violate the constitutional provision vesting this assignment authority in the Chief Justice. State ex rel. Locke v. Sweeney, 349 So.2d 1147 (Ala.1977).

The judgment of the circuit court is therefore affirmed.

AFFIRMED.

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

MADDOX, BEATTY and ADAMS, JJ., dissent, with opinion by ADAMS, J.

ADAMS, Justice,

dissenting.

I respectfully dissent. I dissent because Rule 13, A.R.J.A., is unconstitutional. The Alabama Constitution, § 149, places the power of assignment of trial judges for temporary service in the Chief Justice of the Supreme Court. Although the Supreme Court has been given rule making power, that power cannot supersede the Constitution of the State of Alabama.

Because the authority for the appointment of Judge Burke in this case is found in the state’s Constitution, his improper appointment goes to the very jurisdiction of the court to hear and try this case. Being jurisdictional, it cannot be made the subject of waiver. I recognize that 46 Am.Jur.2d Judges, § 260 (1969) states:

Generally, it has been held that objections to the appointment or authority of a special or substitute judge may be waived, either expressly, or by proceeding in the cause before him without objecting. Under this view, a party who agrees to have his case tried by or before a particular special or substitute judge waives his right to object to that judge. Ordinarily, the objection must be made at or before the trial. If not made in the trial court, it will generally be regarded as waived. Thus, most of the cases hold that it is too late to object after trial, by motion in arrest of judgment or similar motion.

However, that section also states:

The lack of jurisdiction of one assigned to hold court in another district, to determine new questions arising on subsequent proceedings in causes submitted to him in such district, after his return to his own district, cannot be waived.

And 46 Am.Jur.2d Judges § 261 (1969) states:

[I]f the record affirmatively shows that the judge deciding the case was neither a de jure nor a de facto officer, a litigant adversely affected may object for the first time upon appeal. A challenge on constitutional grounds to the authority of a substitute trial judge may be raised for the first time on appeal.

Here, the record affirmatively shows that Judge Burke was neither a de jure nor a de facto officer and, accordingly, should not have sat for the trial of this case, as his mere presence nullified the proceedings in this case.

MADDpOX and BEATTY, JJ., concur.

      . A full development of the reasons why Rule 13 is unconstitutional can be found in Justice Beatty’s dissent in State ex rel. Locke v. Sweeney, 349 So.2d 1147 (Ala.1977).


author: PER CURIAM.

text:
    Judge Wilson A. HAYES, Circuit Judge of the Twenty-Eighth Judicial Circuit v. ALABAMA COURT OF the JUDICIARY.
    82-281.
    Supreme Court of Alabama.
    Sept. 16, 1983.

      Michael Gillion of Brown, Hudgens, Richardson, Whitfield & Gillion, Mobile, and Tolbert M. Brantley, Bay Minette, for appellant.
    Edward E. Carnes, Asst. Atty. Gen., for appellee.
   PER CURIAM.

The appeal in this case was taken from the judgment and sanction of the Court of the Judiciary, suspending Judge Wilson Hayes from office without pay until the end of his term. This judgment was entered on December 9, 1982, and Judge Hayes’s term expired on January 17, 1983. His bid to be re-elected to office had failed in the November election of 1982. We believe the judgment, as well as the sanction imposed by the Court of the Judiciary, to be proper, and we affirm.

Judge Hayes had been a circuit judge of Baldwin County since December 17, 1976. A divorce proceeding, Freddie Lee Scott v. Dorothy Woodyard Scott (Baldwin County Case No. DR 81-000586) came to trial before him on December 17, 1981. The evidence at that trial showed Mr. Scott and Mrs. Scott had five children. They had been separated approximately seven years. Mr. Scott continued to live on the property that had been their homeplace. Mrs. Scott had an interest in the title to at least part of this property. At the time of the divorce trial, Scott was living with another woman and was the father of two children by her. The only disputed issues between Mr. Scott and Mrs. Scott were support of the children and disposition of the homeplace.

At the conclusion of the presentation of evidence at the trial, Judge Hayes stated that he would look with great interest to whether Mr. Scott would have a vasectomy and that he expected to hear from Mr. Scott within 14 days concerning whether he had such an operation. He further stated that he was totally serious, and that he felt sure that Mr. Scott would have a vasectomy because whether he did so would have a great deal to do with the decree that Judge Hayes would enter in the case. Judge Hayes made a note, “Expect to hear of vasectomy in 14 days.”

After the trial, Mr. Scott’s attorney followed Judge Hayes into chambers and asked him if he were serious about the vasectomy, commenting that there were serious constitutional questions involved. The judge described this conversation:

I spoke sharply to his counsel and in effect told him that I thought it was a marvelous idea and that his good faith might be indicated by his vasectomy, and would look forward to hearing a report from it, but that I would defer my decision pending my DPS report. ...
The attorney described it:
Q. What did Judge Hayes say?
A. He said thank you for reminding me of the constitution, but if Mr. Scott has the vasectomy, then he will probably be allowed to keep the home place. If he doesn’t, then I will break up the home place.
Q. Did Hayes say anything else to you?
A. Yes. He made the statement that as far as he was concerned, there were enough pickaninnies in the world.

Three issues are raised by the appeal in this case.

1. Did the court err in finding that Judge Hayes had violated Canon 2(A) and Canon 2(B) of the Alabama Canons of Judicial Ethics?
' 2. Are the judgment and sanction due to be reversed because counsel for the Judicial Inquiry Commission argued that a prior case against Judge Hayes was relevant on the issue of the proper sanction to be applied in this case?
3. Is the penalty imposed by the court too severe under the circumstances?

We shall discuss each issue separately.

I.

Counsel for Judge Hayes advance the argument that their client cannot be guilty of violating Canons 2(A) and 2(B) of the Judicial Canons because he was not guilty of any misconduct in office. Misconduct in office is defined as unlawful behavior by a public officer in relation to the duties of his office, which is willful in character. They say judges, like other human beings, are subject to fits of anger, pressure, tiredness and overwork. They say this was particularly true in Judge Hayes’s case, handling the domestic relations docket in Baldwin County, and seeing, in this case, a man who had fathered seven children and was only making $645.00 per month as a hospital orderly. They also argue that Judge Hayes’s comment was just that, a comment, and not an order; and that any harm which befell Mr. Scott was of his own doing.

As to Judge Hayes’s argument that he was not guilty of unlawful conduct in the technical sense and, therefore, could not be guilty of misconduct in office, we agree. But this argument completely misses the point. Judge Hayes was charged with unethical conduct, not misconduct. Because of the difference in charges, counsel’s reliance on this court’s decision in In Re: Emmet, 293 Ala. 143, 300 So.2d 435 (1974), is misplaced. In that case, Judge Emmett was charged with misconduct solely. Canons 2(A) and 2(B) prescribe the conduct that a judge must follow at all times in order to promote public confidence in the integrity of the judicial system and not bring high office into disrepute.

Members of the Bar should think twice before they hold themselves available for judicial office. Judges are not to be measured by the standards of ordinary men and women. Because of the awesome responsibilities of their office (and corresponding awesome powers), the public expects them to be a cut above the ordinary. Noblesse oblige — From one to whom much is given, much is expected.

Can one seriously contemplate that the public would not be enraged by the judge’s suggestion of action on the part of Mr. Scott which he could not legally or constitutionally order? Such conduct harks back to an attitude which we have made substantial progress m eliminating. It cannot be tolerated in our courts of justice.

Judge Hayes’s argument that Mr. Scott’s action in having the vasectomy was voluntary is inconsistent with his statement to the effect that he was serious about what he suggested to Mr. Scott, and that he was well aware of the fact that what judges say has a lot of weight with the public. Furthermore, Scott testified:

I didn’t want to have any more children, but I did not want to have that vasectomy, sir.

And he testified:

I want my body to stay just like the good Lord gave it to me.

We conclude that the evidence was clear and convincing that Mr. Scott did not voluntarily have himself sterilized by a vasectomy procedure.

II.

Our search of the record does not reveal, by brief, testimony, or oral argument, that Judge Hayes’s previous case before the Court of the Judiciary, where he was given a censure, was ever used to influence the court to find the judge guilty. It was used, and properly so, to influence the court as to the proper sanction to be given in this case.

The United States Court of Appeals for the Fifth Circuit has stated:

At a sentencing, a Court can consider many matters that might not be admissible at a trial including evidence of crimes for which the defendant has been indicted but not convicted, and evidence of other crimes. Such consideration does not constitute double jeopardy since the defendant is not punished a second time for the same offense, but the repetition of criminal conduct aggravates his guilt and justifies heavier penalties when he is again convicted. Even facts disclosed during the course of a prior trial which ended in an acquittal or was reversed on appeal can be considered by the Court. United States v. Sweig, 454 F.2d 181 (2nd Cir.1972).

United States v. Bowdach, 561 F.2d 1160, 1175 (5th Cir.1977) (Emphasis deleted.) This rule is also applicable in judiciary proceedings. In re: Inquiry of Lee, 336 So.2d 1175, 1177 (Fla.1976); Kuehnel v. State Commission on Judicial Conduct, 49 N.Y.2d 465, 469-470, 403 N.E.2d 167, 169, 426 N.Y. S.2d 461, 463 (1980); Matter of Albano, 75 N.J. 509, 515, 384 A.2d 144, 146-47 (1978).

The Court of the Judiciary announces its judgment and sanction at the same time; therefore, it was entirely appropriate that previous disciplinary action be offered before the judgment was announced.

III.

In the ease of In the Matter of Samford, 352 So.2d 1126 (Ala.1978), Justice Faulkner compared the difference in the old system of trying judges with the new system under the 1973 Amendment to the Constitution of the State commonly called the “Judicial Article.” Under the old system, the Judicial Commission would “recommend” to the Supreme Court retirement, censure, suspension, or removal, as indicated by the facts in the particular case. The Supreme Court would then review the record of the proceedings on the law and facts and accept the “recommendation” or entirely reject it. However, under the “Judicial Article,” the Court of the Judiciary is given

authority after notice and public hearing (1) to remove from office, suspend without pay, or censure a judge, or apply such other sanction as may be prescribed by law for violation of a canon of judicial ethics, misconduct in office, failure to perform his duties, or (2) to suspend with or without pay, or to retire a judge who is physically or mentally unable to perform his duties.
(b) A judge aggrieved by a decision of the court of the judiciary may appeal to the supreme court. The supreme court shall review the record of the proceedings on the law and facts.

In the Matter of Samford, 352 So.2d at 1129. This court concluded in the Samford case that if the record shows by clear and convincing evidence that the charge had been committed, it did not have the authority to reduce or reject the sanction.

As previously stated, we are of the conclusion that the charges are proven by evidence that is clear and convincing. In fact, most of the facts are admitted by the judge. Under the circumstances, we have no alternative but to affirm the actions of the Court of the Judiciary, both as to the judgment and as to the sanction.

AFFIRMED.

MADDOX, JONES, ALMON, SHORES, EMBRY and ADAMS, JJ., concur.

FAULKNER and BEATTY, JJ., concur in the result.

TORBERT, C.J., recused.

      . The specific charges of the complaint were that Hayes, by his comments and actions:
      Charge One
      Failed to observe high standards of conduct so that the integrity and impartiality of the judiciary may be preserved (Canon 1);
      Charge Two
      Failed to avoid impropriety and the appearance of impropriety in all of his activities (Canon 2);
      Charge Three
      Failed to conduct himself at all times in a manner that promotes public confidence in the integrity and impartiality of the judiciary (Canon 2(A));
      Charge Four
      Failed to maintain the decorum and temperance befitting his office (Canon 2(B)); and
      Charge Five
      Failed to avoid conduct prejudicial to the administration of justice which brings the judicial office into disrepute (Canon 2(B)).
      Judge Hayes was found guilty of violation of Canons 2(A) and 2(B) of the Alabama Canons of Judicial Ethics.