author: PATTERSON, Chief Justice,

text:
    Haskell Odell WHITE, et al. v. CITY OF TUPELO, Mississippi, et al.
    No. 54523.
    Supreme Court of Mississippi.
    Dec. 19, 1984.
    Rehearing Denied Feb. 13, 1985.
    John Booth Farese, Farese, Farese & Farese, Ashland, Roy 0. Parker, Tupelo, for appellant.
    Frank A. Riley, Pat Caldwell, Riley & Weir, Tupelo, for appellee.
    Before PATTERSON, C.J., and DAN M. LEE and ROBERTSON, JJ.
   PATTERSON, Chief Justice,

for the Court:

On October 13, 1980, an automobile owned by Ellen Ratliff and driven by Has-kell White collided with a fire truck at the intersection of Highway 45 and Pinecrest Street in Tupelo. Ratliff was a passenger in the car at the time. In the fire truck, which was allegedly owned by the City of Tupelo, were Tupelo Fire Department Captain Roy Jackson Box and William Estes, a representative of the Belden Volunteer Fire Company, Inc. The record indicates at the time of the crash Box was instructing Estes on the operation of the truck pursuant to an agreement to sell the vehicle to the Belden Volunteer Fire Company, Inc.

Having inflicted serious injuries, the collision resulted in several lawsuits. White filed a complaint against Estes, the City of Tupelo, the Town of Belden, and Tupelo Fire Chief Curtis Sanders for negligence. The City of Tupelo raised the defense of sovereign immunity, and Sanders raised as a defense that this immunity inured to his benefit.

Box sued Estes, White, and Ratliff. Ratliff filed a counterclaim, cross-claim and third party complaint against Sanders, the City of Tupelo, Estes, Box, and the Belden Volunteer Fire Company, Inc. Again, Sanders and the City of Tupelo raised sovereign immunity as a defense.

The suits of White and Box were consolidated for trial. On October 18, 1982, the court conducted a hearing on Sanders’ and the City. of Tupelo’s motions to dismiss.

Afterward, the court concluded, “The actions by the City of Tupelo and its agents which are the basis of this cause of action, were governmental acts, not proprietary, and therefore the motions of the defendants to dismiss should be sustained.”

On appeal White and Ratliff assign as error the court’s dismissal of the City of Tupelo and Curtis Sanders.

We first address the issue whether the court erred in holding the City of Tupelo immune from suit. We first acknowledge that in Mississippi there have been two significant developments in the area of sovereign immunity in the past two years. First, in Pruett v. City of Rosedale, 421 So.2d 1046 (Miss.1982), this Court abolished the doctrine of the immunity of the “sovereign,” including the state and its local subdivisions. However, the court limited this ruling to causes of action accruing on or after July 1,1984. Subsequently, the legislature responded by passing Senate Bill No. 2441, Chapter 495, General Laws of Mississippi (Approved May 15, 1984). However, since this cause of action accrued on October 13, 1980, we must analyze pre Pruett decisions to determine whether the lower court properly applied the doctrine of sovereign immunity in this case.

As stated in Nathaniel v. City of Moss Point, 385 So.2d 599, 601 (Miss.1980), “[Ajbsent statutory provisions, there can be no recovery against a municipality based on negligence in the exercise of functions which are essentially governmental in character; however, when acting in a private or a proprietary capacity, it is liable in tort the same as private corporations.” Tucker v. City of Okolona, 227 So.2d 475, 476 (Miss.1969). Thus the issue, simply stated, is whether the city was acting in its private or proprietary capacity, or exercising its governmental functions, at the time of the incident. If the former is correct, the case must be reversed.

Governmental and proprietary functions were distinguished in City of Pass Christian v. Fernandez, 100 Miss. 76, 82, 56 So. 329 (1911):

The public or governmental duties of a city are those given by the state to the city as a part of the state’s sovereignty, to be exercised by the city for the benefit of the whole public, living both in and out of the corporate limits. All else is private or corporate duty, and for any negligence on the part of the agents or employees of the municipality in the discharge of any of the private duties of the city the city is liable for all damage just as an individual would be....

The following are examples of proprietary or corporate functions, to which immunity does not attach:

(1) The supervision of construction of a retaining wall of a mall. Ditta v. City of Clinton, 391 So.2d 627 (Miss.1980);

(2) The maintenance and operation of traffic control lights. Tucker v. City of Okolona, 227 So.2d 475 (Miss.1969);

(3) The construction of a sidewalk. City of Ruleville v. Grittman, 250 Miss. 842, 168 So.2d 527 (1964);

(4) The maintenance and repair of streets. Bishop v. City of Meridian, 223 Miss. 703, 79 So.2d 221 (1955);

(5) The construction of street bumpers for the purpose of traffic regulation. City of Vicksburg v. Harralson, 136 Miss. 872, 101 So. 713 (1924); and

(6) The hauling of dirt and trash. City of Pass Christian v. Fernandez, 100 Miss. 76, 56 So. 329 (1911).

To the contrary, the court has determined these functions to be governmental, thereby providing immunity:

(1) The establishment and maintenance of a police department, specifically, test driving a malfunctioning police car to determine defect. Jackson v. Smith, 309 So.2d 520 (Miss.1975);

(2) Engaging in matters pertaining to the police powers of the city, specifically, policeman driving patrol car while on duty to pick up second policeman and transport him to city hall. City of Hattiesburg v. Buckalew, 240 Miss. 323, 127 So.2d 428 (1961);

(3) Making repairs on city hall building. Jones v. City of Amory, 184 Miss. 161, 185 So. 237 (1939); and

(4) “Maintaining and operating” a fire department, specifically, driving a fire engine and horses from a temporary storage shed to their regular quarters. City of Hattiesburg v. Geigor, 118 Miss. 676, 79 So. 846 (1918).

The record shows that at the time of the collision Captain Box was accompanying the representative (Estes) of the prospective buyer of the fire truck (the Belden Volunteer Fire Company) on a test drive of the vehicle. The parties stipulated Estes and Box were not answering a fire call. Further, when counsel for White asked “Was this fire truck going out to perform any fire function for the City of Tupelo?”, Chief Sanders responded that it was not. Chief Sanders continued, “The only thing that I would say that they were doing in and for the fire department was to help this man learn to operate this piece of equipment so they could use it. That’s the only thing I have to say.”

Appellants argue the city was acting simply as a “used car dealer,” an activity which had nothing to do with a public purpose. The appellees counter by contending the disposal of a surplus fire truck is an activity incidental to the operation of a fire department and is therefore a governmental duty to which immunity attaches.

We are of the opinion that disposing of equipment which is no longer needed is an inherent part of the maintenance and operation of a fire department, which has been held to be a governmental function. City of Hattiesburg v. Geigor, 118 Miss. 676, 79 So. 846 (1918). Although appellants argue forcefully that the “commercial” nature of the activity rendered it corr porate or proprietary, we find no Mississippi cases holding specifically that the sale of equipment is not a governmental function. Likewise, the fact that the truck was not performing any fire function at the time of the crash does not require the activity to be labeled corporate, since the Geigor case held that moving- equipment from one storage location to another was a governmental function.

Having applied the foregoing cases to. the facts of this case, we are unable to say the lower court erred in dismissing the City of Tupelo on the basis of sovereign immunity.

We turn now to appellants’ proposition, based on Davis v. Little, 362 So.2d 642 (Miss.1978), that the court improperly sustained Chief Sanders’ motion to dismiss. That case distinguished sovereign immunity from the immunity of public officials as follows:

The immunity of public officials, on the other hand, is a more limited principle, since its purpose is not directly to protect the sovereign, but rather to do so only collaterally, by protecting the public official in performance of his governmental function. Given the more limited function, courts have generally extended less than absolute immunity. The most commonly recognized limitation is the dis tinction between discretionary acts as opposed to ministerial acts. Under this distinction the official is immune only where that which he does in the performance of his lawful duties requires “personal deliberation, decision and judgment.” See Prosser, Law of Torts § 132 (4th ed. 1971). (Emphasis added.)
362 So.2d at 643.

In the Davis case, the complaint alleged that Leslie Little, a member of the Simpson County Board of Supervisors, negligently drove her pickup truck onto a sidewalk, causing personal injury to Davis. Little answered she had been driving a county-owned vehicle and had been involved in county business at the time of the incident; she then invoked the doctrine of governmental immunity. In rejecting Little’s defense, the court stated:

Little argues that a public official engaged in county business is per se immune from suit. This is not the rule in this jurisdiction. The immunity of a public official is a limited, not an absolute immunity. Since the purpose of the immunity is to protect the official in his decision-making role, we have held the immunity will not apply unless the action involves a discretionary decision-making process. Phrased otherwise, if the action is merely ministerial, there is no immunity. In Poyner v. Gilmore, 171 Miss. 859, 158 So. 922 (1935), this Court said:
While no inflexible rule can be laid down for determining in every case whether or not an act of a public officer is ministerial or judicial, “The most important criterion, perhaps, is that (if) the duty is one which has been positively imposed by law and its performance required at a time and in a manner or upon conditions which are specifically designated, the duty to perform under the conditions specified not being dependent upon the officer’s judgment or discretion ...” (171 Miss. at 864, 158 So. at 923). (Emphasis added.)
362 So.2d at 644.

Absent a conclusion that Sanders’ part in the occurrence was a ministerial duty, we must hold he was immune from suit and affirm the lower court.

Sanders appears to have been sued solely by virtue of his official capacity and not because of any actual personal involvement in the incident. Box was in charge of the fire station at the time he and Estes boarded the truck. Sanders testified he “was told” Box had accompanied Estes on the truck to show Estes how to drive it. However, Sanders was on the opposite side of town when he learned of the collision.

We find nothing in the record to indicate Sanders was discharging ministerial duties, as defined in Poyner and Davis, at the time in question. For this reason we cannot conclude the lower court was manifestly wrong in holding Sanders immune from suit.

For the foregoing reasons, the judgment is affirmed.

AFFIRMED.

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


source: Caselaw Access Project

author: ROY NOBLE LEE, Presiding Justice, HAWKINS, Justice,

license: Public Domain

text:
    Robert C. GILLIARD, Jr. v. STATE of Mississippi.
    No. 55566.
    Supreme Court of Mississippi.
    Jan. 9, 1985.
    Rehearing Denied Feb, 13, 1985.

      Lionel R. Barrett, Jr., Nashville, Tenn., for appellant.
    Edwin Lloyd Pittman, Atty. Gen. by William S. Boyd, III and Charles W. Maris, Jr., Sp. Asst. Attys. Gen., Jackson, for appel-lee.
   ON APPLICATION FOR WRIT OF ERROR CORAM NOBIS

ROY NOBLE LEE, Presiding Justice,

for the Court:

This Court affirmed the capital murder death sentence of Robert C. Gilliard, Jr. on February 16, 1983. Gilliard v. State, 428 So.2d 576 (Miss.1983). The United States Supreme Court denied petition for writ of certiorari to the Supreme Court of Mississippi on October 3, 1983. Application for leave to file petition for writ of error coram nobis was filed in this Court November 7, 1983, setting out twenty-nine (29) grounds for relief. We granted the application on two questions and remanded the cause to the Circuit Court of Jones County, Mississippi, for that purpose, 446 So.2d 590. The questions follow:

(1) Petitioner should be granted a new trial in view of the unconstitutional aspects of his plea of guilty.
(2) Petitioner was denied the effective assistance of counsel at his guilt and sentencing trials in violation of the Sixth, Eighth and Fourteenth Amendments.

The Circuit Court of Jones County conducted an evidentiary hearing on the two questions and resolved them against the petitioner, viz, that the petitioner’s guilty plea was free and voluntary and the guilty plea and proceedings in connection therewith were not violative of petitioner’s constitutional rights, and that petitioner was not denied the effective assistance of counsel at his guilt and sentencing trials in violation of the Sixth, Eighth and Fourteenth Amendments. The petitioner has appealed to this Court from the decision of the Jones County Circuit Court on those questions.

I.

Did the lower court err in concluding that the guilty plea, and the proceedings surrounding such plea, were constitutionally sufficient?

In order to meet constitutional standards, a guilty plea must be freely and voluntarily entered. It is essential that an accused have knowledge of the critical elements of the charge against him, that he fully understand the charge, how it involves him, the effects of a guilty plea to the charge, and what might happen to him in the sentencing phase as a result of having entered the plea of guilty. Henderson v. Morgan, 426 U.S. 637, 96 S.Ct. 2253, 49 L.Ed.2d 108 (1976).

The petitioner expressed his desire to enter a plea of guilty to capital murder at the guilt phase of his trial. Before determining whether the guilty plea should be accepted, the trial judge conducted a lengthy interrogation of the petitioner for the purpose of ascertaining whether or not petitioner fully understood the charge against him, the critical elements of the charge, the possible adverse effects of a guilty plea and that, if the guilty plea were accepted by the court, a jury would thén be impaneled and the jury could fix his punishment at death. The interrogation and answers of the petitioner consumed eight (8) pages in the trial record. The expressions and answers of the petitioner appear from the record to be clear, lucid, and knowledgeable. At one point in the interrogation, petitioner stated that he did not wilfully kill Grady Chance. That part of the interrogation is set forth:

Q. Do you realize that when you plead guilty to this charge now before you, that you are saying to this Court that you did on or about the 27th day of August, 1981 here in the Second Judicial District of Jones County, Mississippi, that you did unlawfully, wilfully and fe-loniously, with malice aforethought, kill and murder one Grady Chance, a human being while you were engaged in the commission of the crime of robbery upon him in violation of Section 97-3-19(2)(e) of the Mississippi Code of 1972, as amended?
Do you realize that’s what you are telling the Court?
A. Yes, sir.
Q. Before the Court will accept your plea of guilty the Court must be absolutely satisfied that you understand what you are pleading guilty to.
I have read what the indictment charges you with, and you said that you understood that, but I want to fully understand that you understand each part of it.
You will be telling this Court that this crime occurred on the 27th day of August, 1981; is that what you are telling the Court?
A. Yes, sir.
Q. Are you telling the Court that this happened there in the Second District of Jones County, Mississippi?
A. Yes, sir.
Q. You are telling the Court that you unlawfully killed Grady Chance?
A. Yes, sir.
Q. You are telling the Court that you unllfully killed Grady Chance?
A. No, sir.
Q. You are not telling us that you did willfully do it?
* * * (Conference between Defendant and Public Defender)
A. Oh, yes, sir.
Q. You are telling the Court that you feloniously killed him, with malice aforethought?
A. Yes, sir.
Q. You are also telling the Court that this was done — that this killing occurred while you were engaged in the commission of the crime of robbery?
A. Yes, sir.
Q. Is that what you are telling the Court?
A. Yes, sir.
Q. The purpose of this hearing, as I have stated to you, is to see if you enter your plea freely, voluntarily and intelligently, and I have already explained to you what a jury could do even though you pleaded guilty, and you said you understood that, and is that correct?
A. Yes, sir.
Q. Has anyone offered you anything to get you to plead guilty?
A. No, sir.

The petitioner was called by his own counsel and he was the only witness who testified at the coram nobis hearing. .The State offered no witnesses. Petitioner stated that he repeatedly told his attorney the gun went off accidentally, but that his attorney advised him to plead guilty anyway. His position on this question is that he entered the plea of guilty because his attorney told him to do so.

The coram nobis record reflects that petitioner and his attorney discussed the guilty plea at length and on more than one occasion before it was entered; he and his attorney met with petitioner’s three sisters and discussed the guilty plea and trial strategy with them; two of the sisters were in favor of pleading guilty, while one of them opposed it. Apparently the petitioner and his attorney discussed the overwhelming evidence against petitioner, viz, testimony of an accomplice, an eyewitness (Mrs. Grady Chance), and petitioner’s own confession. Also, it appears that the strategy was for petitioner to be frank with the jury, and hope to arouse their sympathy. Further, there was considered the possibility of excluding certain evidence.

We are of the opinion that the petitioner had full knowledge of the charge against him, the elements of that charge, and the consequences which might result from entering a plea of guilty, and we are of the opinion that the finding of the lower court that the plea of guilty was free and voluntary and was not constitutionally infirm does not constitute error.

II.

Did the lower court err in deciding that the petitioner received effective assistance of counsel in view of Strickland v. Washington, — U.S. -, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984)?

Strickland, decided May 14, 1984, is the most recent case of the United States Supreme Court addressing the question of ineffective assistance of counsel. That Court, speaking through Justice O’Connor, set forth the following important principles dealing with this troublesome question:

(1) There is a strong presumption that counsel’s conduct falls within the wide range of reasonable professional assistance; that is, the defendant must overcome the presumption that, under the circumstances, the challenged action might be considered sound trial strategy.

(2) The two-prong test to determine whether or not defense counsel was constitutionally ineffective is

(a) The petitioner must show that counsel’s conduct was so deficient that he was not functioning as counsel guaranteed by the Sixth Amendment, and
(b) If the petitioner can show that his counsel was ineffective, then he must show that he was prejudiced by counsel’s mistakes.

Strickland states the standard: “The defendant must show that there is a reasonable probability that, but for counsel’s unprofessional errors, the result would have been different. A reasonable probability is a probability sufficient to undermine confidence in the outcome.” — U.S. at -, 104 S.Ct. at 2068, 80 L.Ed.2d at 698.

Applying the standard set forth in Strickland to the effectiveness of petitioner’s counsel, we now consider the nine (9) alleged errors in the original trial, which petitioner claims rendered his trial counsel ineffective in violation of his Sixth Amendment right.

(1)The trial counsel improperly assisted the petitioner to have a preliminary hearing granted in this case.

(3) The petitioner has put on no proof that the failure to have a preliminary hearing was not a strategic move. Also, he has shown no prejudice from the failure to have a preliminary hearing. Further, petitioner has failed to show any advantage or benefit he could have gained from having a preliminary hearing, therefore, we are of the opinion that petitioner has not met the Strickland test.

(2) Petitioner’s counsel did not comply with the Mississippi statute concerning the raising of the question of change of venue.

At the trial, petitioner’s counsel made a motion for change of venue, but the motion did not follow the statute and counsel did not pursue the change of venue. Again, petitioner has not shown prejudice and there is no indication that a change of venue would have effected a different result in the trial.

(3) The trial counsel failed to request individual sequestered voir dire during the selection of the jury for the sentence trial.

This Court has approved questioning the jury as a panel provided the defense is given adequate opportunity to question individual jurors. Peters v. State, 314 So.2d 724 (Miss.1975). Petitioner did not show, or attempt to show, anything different he could have learned through individual voir dire that would have resulted in a different jury panel in the trial of the case. No case has been cited holding the denial of individual voir dire to be error. Prejudice was not shown on the cor-am nobis hearing in the lower court.

(4) The trial counsel failed to provide effective assistance of counsel by failing to introduce proof that the State systematically excluded blacks not only from this trial, but from other trials.

Petitioner complains that his trial counsel failed to introduce proof to show the systematic exclusion of black jurors. However, on the coram nobis hearing, petitioner did not make any attempt to show a systematic exclusion of black jurors and he has not indicated any such exclusion. Neither has he introduced any testimony or evidence that there was a probability of systematic exclusion of such jurors. The claim or allegation of systematic exclusion stands alone and is not sufficient to meet the test. Booker v. State, 449 So.2d 209 (Miss.1984).

(5) The defense counsel permitted the petitioner to plead guilty to deliberate, intentional murder when, prior to the plea of guilty, there had been elicited from his client a statement that contradicted the plea.

(6) The defense counsel should not have allowed his client to enter a plea of guilty to the first count of the indictment of capital murder in view of the recent decision of Enmund v. Florida.

We have held, supra, that the guilty plea entered by petitioner was free and voluntary. Petitioner now contends that, since he admitted he wilfully killed Mr. Chance, petitioner’s credibility was destroyed when he testified in the sentencing trial that the gun was accidentally discharged. The plea of guilty and the conduct of the sentencing trial appear to be strategic decisions on the part of petitioner and his trial counsel. On the coram nobis hearing, the trial judge found that the cross-examination on this point was not as harmful as the petitioner giving different accounts of his part in the crime.

Enmund v. Florida, 458 U.S. 782, 102 S.Ct. 3368, 73 L.Ed.2d 1140 (1982), held that the death penalty cannot be imposed on a defendant who aided and abetted a felony in which a murder was committed, but did not himself kill, attempt to kill, intend to kill, or contemplate that life would be taken. In the present case, petitioner voluntarily armed himself and was the trigger man in the crime. We are of the opinion that Enmund does not afford petitioner any relief.

(7) The defense counsel provided ineffective assistance of counsel by allowing the District Attorney to point out that a sentenced life inmate could be eligible for parole in ten years.

Petitioner contends that remarks in his attorney’s closing argument at trial invited highly prejudicial remarks from the district attorney; that this Court so held in the opinion affirming his death penalty; and that his trial counsel was ineffective because of those remarks. Remarks of petitioner’s counsel and the district attorney at trial follow:

BY MR. PARRISH:
I would like to mention one other thing to you at this point. Approximately two weeks prior to this he was convicted of another armed robbery here in town, and he plead guilty to that too, and he received a sentence of thirty years, and if you see fit to give him life, he will be serving thirty years, plus life.
* * * * * *
He doesn’t need to be out, and the only thing that I can say is that Robert Gilli-ard ought to be in the state penitentiary. He is already going there for thirty years, and what you are to decide is whether or not he is going to get those thirty years, plus life, or, if at sometime before those thirty years, he is going to be executed.
* * * * * *
I don’t believe he will ever be a danger to anyone again. I don’t mean he wouldn’t be a danger if we let him walk out on the street because he would probably start drinking again and fall in with other people like Warren Seals, but that's not where he is going, if you come back into the courtroom and inflict a sentence of life imprisonment. We can remove him from society without inflicting the death penalty in this case.
I am glad to know that in addition to a life sentence that he will have thirty years too, because he won’t be around, and the only question is whether or not he ought to suffer death.
BY MR. SMITH (District Attorney):
Speaking of how long things go— about the penitentiary. I think — don’t believe for a second that Mr. Parrish is telling you that, “well, he will get life,” and then I guess he is wanting you to believe that after he dies they are going to keep him up there thirty more years. It doesn’t work like that about how long you are at the penitentiary, and he knows as well as I do, life is ten years and you are eligible then for parole.
Appellant objected to the argument of the district attorney as being improper and prejudicial. The lower court overruled the objection “in view of the argument made by the defense counsel.”

428 So.2d at 583-84.

Petitioner states in his brief that the language of the Mississippi Supreme Court, in holding that the district attorney’s answer did not constitute reversible error, was a prima facie showing of ineffective counsel. However, those remarks are taken in isolation. The full comment of the Court appears in 428 So.2d at 584:

The statement by the district attorney constituted error. Prosecuting attorneys often become overzealous in arguing capital cases, particularly when attorneys for the defendant attempt to overemphasize and exaggerate the real meaning of a life sentence in the penitentiary. Prosecuting attorneys should refrain from making prejudicial or erroneous remarks, even in response to argument of defense counsel. In the present case, the remarks of the appellant’s attorney clearly and obviously were made for the purpose of leading the jury to think that, because of a thirty-year armed robbery sentence and with a life sentence in the present case, the appellant would spend the remainder of his life in the state penitentiary. Without question, those remarks amounted to provocation and caused the district attorney to respond as he did. Therefore, under the decisions of this Court, the error does not require reversal.

428 So.2d at 584.

Petitioner’s attorney at trial argued that, if he was sent to the penitentiary for life, he would not be a threat to society; that the jury should spare his life, because in prison he would no longer be such a threat to society; and that petitioner was basically a good person who fell in with a bad crowd.

Applying the two-prong test and standards of Strickland, the strategy argument of petitioner’s counsel does not render him ineffective counsel.

(8) The petitioner was denied effective assistance as no competent counsel would fail to take advantage of the right to make an opening statement in a death penalty case.

The decision whether to make an opening statement was a strategic one. The district attorney did not make an opening statement, and it is probable that both parties agreed not to make them. Petitioner’s attorney may have felt that he had nothing to gain by making a statement. At any rate, we are of the opinion that no prejudice resulted from a failure to do so.

(9) The fact that the inducement or deal made by the co-defendant was not instructed on by the court was directly the responsibility of ineffective assistance of counsel on behalf of the defense counsel.

An accomplice, who testified for the State, claimed that the State had not promised him he would not be indicted for capital murder, if he testified. However, such promise had been made. Petitioner’s trial counsel requested the trial judge to inform the jury about the bargain, but this request was refused as a comment on the evidence. No further request was made, even though the trial judge indicated he would consider a different instruction. Petitioner’s trial counsel stated at the trial that he intended to do more research before requesting an instruction on this issue. It, therefore, seems that the decision not to request an instruction was not strategic, but probably inadvertent. However, in his closing argument, the district attorney told the jury that he had made a deal with the witness.

In Strickland, the United States Supreme Court said:

In particular, the minor differences in the lower court’s precise formulations of the performance standard are insignificant; the different formulations are mere variations of the over-arching reasonable standard. With regard to the prejudice inquiry, only the strict outcome determinative test, among the standards articulated in the lower courts, impose a heavier burden on defendants than the test laid down today. The difference, however, should alter the merit of an ineffectiveness claim only in the rarest of cases.

— U.S. at -, 104 S.Ct. at 2069, 80 L.Ed.2d at 699.

Applying the Strickland test, we are of the opinion that Point # 9 does not render petitioner’s trial counsel ineffective.

After carefully considering the trial record, the coram nobis hearing, the trial judge’s findings on the coram nobis hearing, and the briefs of the parties, we are of the opinion that the guilty plea of petitioner was free and voluntary and that under Strickland v. Washington, supra, the nine lapses argued by petitioner’s counsel, taken individually and in combination, did not amount to ineffective assistance of counsel. Therefore, the judgment of the lower court on those matters remanded to it for eviden-tiary hearing from this Court is affirmed.

AFFIRMED.

PATTERSON, C.J., WALKER, P.J., and DAN M. LEE, PRATHER, ROBERTSON and SULLIVAN, JJ., concur.

HAWKINS, J., dissents.

HAWKINS, Justice,

dissenting:

I respectfully dissent.

Gilliard complains of a number of deficiencies in his representation by counsel, and many of them certainly raise eyebrows. Any resultant prejudice therefrom, however, can only be conjectural.

Under the guidelines of Henderson v. Morgan, 426 U.S. 637, 96 S.Ct. 2253, 49 L.Ed.2d 108 (1976); and Strickland v. Washington, — U.S. -, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984), one contended dereliction, in my view, was clearly prejudicial.

Unquestionably, while Gilliard was engaged in the commission of a robbery, he shot and killed Mr. Grady Chance, for which he was guilty of capital murder under Miss.Code Ann. § 97-3-19(2)(e). Under this subsection it is not necessary that the killing be intentional in order to constitute the crime of capital murder.

Gilliard has never denied this, and knowingly pleaded guilty to it.

The only defense he had, which was in mitigation, was his contention he accidentally shot Mr. Chance in the chest when the shotgun with which he was armed fell from his shoulder and the butt end struck a store counter and discharged. (Original opinion 428 So.2d 576, p. 578)

That was his only defense on the facts in the circuit court of the Second Judicial District of Jones County and before this Court on his appeal.

The public defender emasculated that one mitigating circumstance, which might have caused the sentencing jury to spare his life.

The majority sets forth at length the questioning of Gilliard by the circuit judge prior to his guilty plea. I re-quote a portion:

Q. You are telling the Court that you unlawfully killed Grady Chance?
A. Yes, sir.
Q. You are telling the Court that you willfully killed Grady Chance?
A. No, sir.
Q. You are not telling us that you did willfully do it?
(Conference between Defendant and Public Defender)
A. Oh, yes, sir.
Q. You are telling the Court that you feloniously killed him, with malice aforethought?
A. Yes, sir.
Q. You are also telling the Court that this was done — that this killing occurred while you were engaged in the commission of the crime of robbery?
A. Yes, sir.

Three things are apparent from this questioning: First, Gilliard told the Court he did not willfully kill Mr. Chance. Next, there was a conference between Gilliard and his public defender. Third, the trial judge did not repeat his initial inquiry to Gilliard as to whether he had “willfully killed” Mr. Chance, but rather asked him if he “feloniously killed him, with malice aforethought.”

Later, at the sentencing phase of the trial, Gilliard on direct examination testified the shooting of Mr. Chance was accidental, whereupon the prosecuting attorney on cross-examination thoroughly discredited this claim by the fact he had just freely and voluntarily pleaded guilty to intentionally and deliberately killing Mr. Chance. The prosecuting attorney made mincemeat of the one contention which stood a chance of saving his life.

To me, Gilliard was prejudicially denied effective assistance of counsel for the following reasons:

1. It was not necessary to constitute the crime of capital murder that he willfully killed Mr. Chance.
2. Gilliard denied intentionally killing Mr. Chance, and his own attorney advised him to state otherwise. Advice of counsel can be the only reason he would have made such a concession in his guilty plea, because his entire defense throughout was that the shooting was accidental.
3. No attorney could be unaware of the fact that in thus advising him, he was not only adding an additional reason to inflict the death penalty, but was depriving him of probably the best, if not the only, chance he had for the sentencing jury to spare his life. Such an admission at this hearing on his plea of guilty destroyed the credibility of his testimony during sentencing. His lawyer had the responsibility to fully and thoroughly inform him of the consequences of this glaring inconsistency.

I would sustain the petition and grant Gilliard a trial.

The prosecution and defense of capital murder cases, while always serious, used to be relatively simple for judges and attorneys. The U.S. Supreme Court has changed all this. That Court has rendered a number of landmark decisions of such subtlety and complexity they tax the minds of the best of legal scholars to comprehend, and even that Court’s own members have sharp disagreement as to their meaning. I endeavored to make this point in a review of U.S. Supreme Court decision in Hill v. State, 432 So.2d 427, pp. 452-462 (Miss.1983).

In interpreting U.S. Supreme Court decisions, our U.S. Court of Appeals in lengthy, complex opinions has super-imposed additional difficult requirements for all death penalty cases, which bind this Court as well.

Our Legislature, following the Federal Courts’ requirements, has enacted detailed death penalty statutes, constantly being revised.

The trial of capital murder cases is now a specialized, difficult field of criminal law.

It is, therefore, foolhardy for any circuit judge or attorney to participate in a capital murder case without protracted study and preparation. Even the most skilled trial attorney needs special, lengthy preparation before undertaking one of these cases.

I make these observations to stress the importance of circuit judges, prosecuting attorneys and defense attorneys familiarizing themselves with this turbulent specialized area of criminal law before participation in such a case.

If the circuit judge assures himself that the attorney he is appointing in a capital murder case will be familiar with the law on this subject, he will not only insure a better and fairer trial. He will also markedly lessen the chance for reversals and avoidable heart-rending delay in the judicial process. Any other course is penny wise and pound foolish.

      . Failure of counsel to properly request a change of venue, failure to request individual sequestered voir dire, failure to object to closing argument, failure to make opening statement in argument.

      . The indictment charged Gilliard and Edwin T. Darby with murder under Miss.Code Ann. § 97 — 3—19(2)(e). As above noted, under this subsection, a killing perpetrated while in commission of a robbery is capital murder even though not intentional. Thus, on advice of counsel, Gilliard admitted a fact unnecessary to a plea of guilty to capital murder under this subsection.
      While this admission was unnecessary to constitute a valid plea of guilty, it wreaked havoc with the one reason Gilliard had to give the jury under the facts to spare his life.


author: PRATHER, Justice,

text:
    Norbert KEPPNER and Michael L. Shular v. GULF SHORES, INC., and Wen Coast-Wendelta, Inc.
    Nos. 54371, 54486.
    Supreme Court of Mississippi.
    Jan. 16, 1985.

      Joe Sam Owen, P.C. Alston, Blackwell, Owen & Galloway, Gulfport, for appellants.
    Stanford E. Morse, Jr., White & Morse, Gulfport, for appellees.
   PRATHER, Justice,

for the Court.

This appeal involves the ownership and use of a sewage disposal system, a joint venture of three business corporations. The original joint venturers were Gulf Shores, Inc., Wen Coast-Wendelta, Inc. (Wendy’s) and the Omelette Shoppe. After the Omelette Shoppe’s bankruptcy, Michael Shular, who owned the Gulfport Sheraton Inn (Sheraton), bought the realty owned by the Omelette Shoppe upon which the sewage disposal system was located. Gulf Shores and Wendy’s sought and secured a permanent injunction in the Chancery Court of Harrison County permanently enjoining Michael Shular, Sheraton owner, and Norbert Keppner, Sheraton manager, from discharging sewage from the Sheraton Inn into a sewage lift station constructed and utilized by Gulf Shores, Inc. and Wen Coast-Wendelta, Inc.

A second suit is combined in this appeal for a contempt citation against Shular’s manager of the Sheraton, Keppner, for non-compliance with the injunction.

Shular and Keppner appeal from the issuance of the injunction and contempt order assigning as error:

(1) That the court erred in holding that Shular purchased the property upon which the sewage treatment station is located subject to the terms of a joint venture agreement between the Omelette Shoppe, Wendy’s and Gulf Shores.

(2) That the court erred in admitting pa-rol evidence to supplement the written joint venture agreement between the Ome-lette Shoppe, Wendy’s and Gulf Shores.

(3) That the court erred in holding that Shular and Keppner committed trespass.

(4) That the court erred in holding Keppner in contempt of its order.

I.'

Sometime prior to November 11, 1979, the Omelette Shoppe, Inc., Wen Coast-Wen-delta, Inc., and Gulf Shores, Inc., owned properties contiguous to one another which properties were located on the west side of U.S. Highway 49 in Gulfport. The Ome-lette Shoppe, Inc., and Wen Coast-Wendel-ta, Inc. (Wendy’s) each planned to build and operate a fast food restaurant, and Gulf Shores, Inc., planned to build and operate a 150 room motel, restaurant, lounge, swimming pool and related facilities under a franchise from Holiday Inns of America.

The parties were aware that sewage collection and disposal would be required for the operations of their respective facilities, and jointly agreed to build such facility which consisted of collection lines from each of their properties to a lift station with all necessary pumps, electrical circuits and controls, and a discharge line from such lift station to a sewage collection system which had been jointly built by the City of Gulfport and Harrison County in an unincorporated area located north of the city.

The parties also agreed to construct and operate a water main from such system built by Gulfport and Harrison County which would serve each of their properties.

This agreement was incorporated into a document dated November 11, 1979, and provided inter alia, that the parties would construct a 4 inch water and force main along with a lift station according to plans drawn by T.L. Reynolds at a cost of $50,-425.00. The water was to be separately metered, and all maintenance costs of the system were to be divided equally by the original owners and any subsequent users.

Though it appears that the lift station was located on the property of Omelette, Gulf Shores, Inc., granted to Wendy’s and Omelette an easement on Gulf Shores, Inc., property for location of a portion of the force main in consideration of Omelette granting to Gulf Shores, Inc., the right to connect to the lift station.

The uncontradicted evidence is that the facility was originally designed to accommodate the requirements of the three parties, and that the T.L. Reynolds design would be sufficient to handle a peak flow of 46.96 gallons per minute.

Wendy’s built its restaurant and connected into the system in 1980. Gulf Shores, Inc. started construction of its Holiday Inn in September of 1981. The Omelette Shoppe was not built, and this corporation went into bankruptcy in the year 1981.

Appellant, Michael Shular (Shular), owns the Sheraton Inn which adjoins the Ome-lette Shoppe property. This motel consists of 170 rooms, meeting rooms, a restaurant, lounge and swimming pool. When acquired by Shular, the motel was discharging its sewage into its own package sewage treatment plant, and also permitted another fast food restaurant, the Waffle House, to discharge its sewage into the plant. Sometime around September of 1981, Shu-lar purchased the Omelette Shoppe property from the Trustee in Bankruptcy for $70,-000, which purchase included the Omelette Shoppe’s easement across the property of Gulf Shores, Inc. At the time of the purchase, Shular was not aware of the terms of the agreement between the original parties, though he did believe that the lift station was on the Omelette Shoppe property which he acquired. His expressed reason for acquiring such property was for investment and expansion. Shular continued to use his package treatment plant until it became disabled around the first of November, 1981, and then, upon recommendation of an engineer, Shular caused a four inch plastic line to be attached to his pump at the treatment plant and ran such line across the surface of the Sheraton Inn property and the property acquired from Omelette Shoppe and discharged the raw sewage into the top of the lift station.

Such method of discharging sewage into the lift station was considered to be temporary as it did not meet the standards of the Mississippi Bureau of Pollution Control or regulations of the City of Gulfport and Harrison County. Though Harrison County had originally granted a permit to the original parties to the system, it did not permit this temporary solution adopted by Shular. Neither did the Bureau of Pollution Control.

Mr. Sherwood Bailey (Bailey), Vice President of Gulf Shores, Inc., and one of the principals in this corporation, learned in early February that Shular was discharging sewage into the lift station without the permission of Wendy’s or Gulf Shores, Inc., and wrote Shular and demanded that he stop.

Hearing nothing from Shular, Bailey subsequently employed counsel who also wrote Shular. Shular did not respond, and on May 11, 1982 Gulf Shores and Wendy’s filed their petition in the Chancery Court of Harrison County, seeking to enjoin Shular and Keppner from using the sewage treatment system as a trespass to their rights. Following a hearing for a preliminary injunction, consolidated with a trial on the merits, the court on June 14, 1982, found that Shular succeeded only to the interest of the Omelette Shoppe, and issued its judgment permanently enjoining Shular and Keppner from discharging sewage from the Sheraton Inn Motel into the sewage treatment station in excess of the Ome-lette Shoppe’s estimated usage of five gallons per minute.

II.

Appellant’s challenge to this holding raises three legal questions: (A) Whether the agreement between the Omelette Shoppe, Wendy’s and Gulf Shores constituted a joint venture; (B) whether the bankruptcy of the Omelette Shoppe terminated the joint venture; (C) whether Shular bought the Omelette Shoppe property as an innocent purchaser for value without notice of the joint venture agreement.

A.

The trial court’s conclusion that the agreement between the Omelette Shoppe, Wendy’s and Gulf Shores constituted a joint venture was based upon this court’s decision in Sample v. Romine, 193 Miss. 706, 8 So.2d 257 (1942). In that case, this Court recognized that an exact definition of joint venture to fit all cases could not be given. The case held that determination of whether an association was in fact a joint venture is based upon the terms of the agreement, the acts of the parties, the nature of the undertaking and other facts. In Sample this Court generally defined a joint venture as “an association of persons to carry out a single business enterprise for profit, for which purpose they combined their property, money, effects, skill and knowledge.” 8 So.2d at 260. But the court also recognized that the venture could be for the purpose of material benefit rather than profit. However, the necessary elements to constitute a joint venture were recognized as joint purpose and proprietary control. 8 So.2d at 261.

In the case sub judice the agreement between the Omelette Shoppe, Wendy’s and Gulf Shores provides that the parties will “share equally cost of running four inch water and four inch force main along with lift station as per plans and specifications ...” The agreement further provides that “all maintenance cost of this line and lift station to be divided equally by owners and any subsequent users.” The parties, all businessmen with plans for the development of their properties, recognized that some form of sewage treatment would be necessary and agreed in writing to construct and maintain a sewage treatment station for the mutual benefit of all. Thus there was joint purpose and proprietary control.

This Court agrees with the trial court that these facts meet the necessary requirements of a joint venture. Therefore, the chancellor’s conclusion that, based upon Sample v. Romine, the agreement between the Omelette Shoppe, Wendy’s and Gulf Shores, constituted a joint venture was correct.

B.

Appellants argue that any joint venture agreement between the Omelette Shoppe, Wendy’s and Gulf Shores was terminated in February of 1981 when the Omelette Shoppe became bankrupt.

There are no Mississippi cases, and none have been found from other jurisdictions, discussing the effect upon a joint venture of the bankruptcy of one of the members. Appellant cites 46 Am.Jur.2d Joint Ventures § 30 (1969) for the proposition that the law relating to the termination of partnerships applies as well to joint ventures. Accordingly, appellants urge that this question is governed by Mississippi’s Uniform Partnership Law, which provides that a partnership is dissolved “by the bankruptcy of any partner or the partnership.” Miss.Code Ann. § 79-12-61. Appellants thus urge that Shular did not purchase the Omelette Shoppe property subject to the joint venture agreement because at the time of the purchase the joint venture had been terminated through the bankruptcy of one of its members.

The concept of joint ventures is a creature of the American courts. Aiken Mills v. United States, 144 F.2d 23 (4th Cir.1944), Tompkins v. Commissioner of Internal Revenue, 97 F.2d 396 (4th Cir.1938). “As a legal concept, it is of comparatively recent origin, and is still in the process of development.... [I]t was regarded at common law as merely an informal partnership.” 48 C.J.S. Joint Adventurers, § 1, at 803 (1947).

Partnerships, however, are now statutory creatures and defined by that authority under the Mississippi Uniform Partnership Act of April 1, 1977. Miss. Code Ann. § 79-12-1 et seq. (1984 Supp.). Under this definition a partnership must be an association of two or more people to carry on a business for profit. Miss.Code Ann. § 79-12-11 (1984 Supp.) Since the association in the case sub judice is not a “business for profit,” it is therefore not a partnership as defined by the statute. Therefore, partnership statutes, and particularly section 79-12-61 relating to bankruptcy as a cause of dissolution, do not necessarily apply to joint ventures.

This Court acknowledges, however, that partnership law and joint venture law under the common law are analogous. Further consideration is necessary, therefore, to determine if bankruptcy causes dissolution of a joint venture.

It has been held by other jurisdictions that sale or assignment by one joint venturer of his interest does not, in and of itself, terminate the joint venture. Salem-Fairfield Telephone Ass’n v. McMahan, 78 Or. 471, 153 P. 788 (1915), Meinhard v. Salmon, 249 N.Y. 458, 164 N.E. 545 (1928), Kaufman v. Catzen, 100 W.Va. 79, 130 S.E. 292 (1925). Selwyn v. Waller, 146 N.Y.S. 7, reversed on other grounds, 212 N.Y.S. 507, 106 N.E. 321 (1914). We hold that whether a joint venture terminates when one of the joint venturers becomes bankrupt turns upon proper construction of the joint venture agreement. See Johnston v. Holiday Inns, Inc., 595 F.2d 890 (1st Cir.1979), Cohen v. Lansburgh, 366 So.2d 154 (Fla.App.1979). The agreement sub judice contains no definite term of expiration. By contrast, it does provide for equal maintenance costs by the owners “and any subsequent users.” By use of such language, the original parties contemplated an indefinite period of continuance for an ongoing association and the possibility of other “subsequent users.” The bankruptcy caused a sale, not only of the real estate of Omelette, but also the sale of the rights of the joint venture that attached to that realty. The above cited jurisdictions have held that a sale and assignment of an interest in a joint venture does not dissolve the venture, and this Court finds this reasoning to be sound. This Court therefore holds that sale, whether transferred through bankruptcy or directly by the owner, is not a cause for automatic termination of a joint venture. Other factors may give rise to termination, but we do not address them here.

It should be pointed out here that the joint venture of these parties concerned itself with the construction and maintenance of the sewage treatment system. It does not concern itself with title to real estate and any easement rights thereto.

C.

Under this Court’s decision in Sample v. Romine, supra, a trust imposed upon property as a result of a joint venture agreement follows the property until it passes into the hands of an innocent third party purchaser. 8 So.2d at 262. The question then is whether Shular was an innocent purchaser of the Omelette Shoppe property where the deed refers to an easement agreement.

The deed to the Omelette Shoppe property contains no reference to the joint venture agreement between the Omelette Shoppe, Wendy’s and Gulf Shores. Moreover, the joint venture agreement was never recorded. However, the deed to the Omelette Shoppe property refers specifically to the easement granted by Gulf Shores to the Omelette Shoppe. The easement agreement between Gulf Shores and the Omelette Shoppe was recorded.

In Dead River Fishing and Hunting Club v. Stovall, 147 Miss. 385, 113 So. 336 (1927), this Court stated:

A purchaser of land is charged with notice not only of every statement of fact made in the various conveyances constituting his chain of title, but he is also bound to take notice of and to fully explore and investigate all facts to which his attention may be directed by recitals in said conveyance contained. The duty is also imposed on him to examine all deeds and conveyances previously executed and placed of record by his grant- or — either immediately or remote — if such deeds or conveyances in any way affect his title. And if in any such deed or conveyance theré is contained any recital sufficient to put a reasonably prudent man on inquiry' as to the sufficiency of the title, then he is charged with notice of all those facts which could and would be disclosed by a diligent and careful investigation. Parker v. Foy, 43 Miss. 260, 5 Am.Rep. 484; Deason v. Taylor, 53 Miss. 697; Alliance Trust Co. v. Nettleton Hardwood Co., 74 Miss. 584, 21 So. 396, 36 L.R.A. 155, 60 Am.St. Rep. 531; Baldwin v. Anderson, 103 Miss. 462, 60 So. 578; Crago v. Vitter, 120 Miss. 103, 81 So. 646.

113 So. 337-338.

The recorded easement agreement sets forth that the easement “is granted as a perpetual easement to run with the land” and was granted for the purpose of installing and maintaining water and sewer lines. The agreement further provides that exchange for the easement Gulf Shores would have the right to attach its sewer lines to the sewer lines of the Omelette Shoppe. Under the rule of Stovall, this Court concludes that reference to the easement agreement in the Omelette Shoppe deed and the language in the recorded easement was sufficient to put a reasonably prudent man on notice to inquire of an arrangement between Gulf Shores and Omelette Shoppe for the treatment of sewage. This Court holds that the trial court properly found Shular purchased the interest of Omelette in the joint venture. Further, the court correctly held that the purchase of the real estate upon which the sewage treatment station was located was subject to the terms of the joint venture agreement.

III.

Appellants further argue that, even if Shular became a member of the joint venture upon purchasing the Omelette Shoppe property, his rights in the lift station were unduly restricted by the judgment below. The chancellor limited the future use of the lift station by Shular to five gallons of discharge per minute, the use originally contemplated by the Ome-lette Shoppe. This Court finds no limitation in the terms of the original agreement among the joint venturers to justify this restriction. Moreover, the original agreement provided that all maintenance costs of the sewage line and lift station would be divided equally by the owners “and any subsequent users”, thereby evidencing proportionate use of the station by the parties. We, therefore, modify the limitation of usage placed upon Shular’s operation and hold that Shular is entitled to use one-third of the lift station capacity by virtue of his ownership of one-third of the rights in the lift station and liability for one-third of its maintenance.

IV.

At the trial the court permitted Sherwood Bailey, vice president of Gulf Shores, to testify that the objective of the agreement between the Omelette Shoppe, Wendy’s and Gulf Shores was to provide a sewage treatment facility which would service two fast-food restaurants and one motel. Mr. Bailey further testified that it was the understanding of all the parties to the agreement that the Holiday Inn would use more of the system than Wendy’s and the Omelette Shoppe.

Appellants contend that this testimony was admitted in violation of the parol evidence rule, which provides that:

It is a general rule that parol or extrinsic evidence is not admissible to add to, subtract from, vary or contradict judicial or official records or documents, or written instruments which dispose of property, or are contractual in nature and which are valid, complete, unambiguous, and unaffected by accident or mistake. This rule, which is known as the parol evidence rule, is one of substantive law and not merely one of evidence; and it obtains in equity as well as at law.

Fuqua v. Mills, 73 So.2d 113, 118-119 (Miss.1954). The parol evidence rule has no application where the writing is incomplete, ambiguous or where the evidence is not offered to vary the terms of the written agreement. Byrd v. Rees, 251 Miss. 876, 171 So.2d 864 (1965); See also Corbin, Contracts, Yol. 3, § 579 (1960).

In the case sub judice the agreement between the Omelette Shoppe, Wendy’s and Gulf Shores is silent on the subject of the relative use of the sewage treatment system by the parties. Therefore, the admission of testimony regarding the matter does not violate the parol evidence rule.

V.

Appellants assign as error the trial court’s holding that the actions of Shular and Keppner in appropriating the capacity of the sewage treatment system constituted a trespass. The argument here is simply that, inasmuch as Shular holds the title to the property upon which the treatment system is located, there can be no trespass by Shular.

However, this finding by the chancellor was of a trespass upon the property rights of the joint venturers, as distinguished from the real estate owned by Shular. A trespass may be an offense to another’s person, health, reputation, or property. 75 Am.Jur.2d Trespass, § 1, (1974). This situation is analogous to the owner of a servient estate interfering with the enjoyment of the easement rights of another, even though the easement is non-possessory. This assignment is without merit.

VI.

Appellant Keppner argues that the court erred in holding Keppner in contempt, contending that compliance with the order was literally impossible on Keppner’s part. Keppner relies upon McHenry v. State, 91 Miss. 562, 44 So.2d 831 (1907). In that case, this Court reversed a judgment of contempt, stating “where it appears that it is or was impossible to comply with the order without fault on the part of the one charge, there is no contempt.” 44 So. at 835. See also Hansbrough v. State, 10 So.2d 170, 171 (Miss.1942) (It is an essential element to a contempt that the party charged shall have been able to comply with the order).

In the case sub judice, the evidence showed that on June 28, 1982, two weeks after the court had issued its injunction, the Sheraton was continuing to discharge sewage into the sewage treatment station in excess of the amount allowed by the court’s decree. At the hearing Keppner testified that he had wo authority to restrict the flow of sewage from the Sheraton and that it was not possible for him to comply with the order. Keppner testified that he had contacted Shular but that Shular was dealing with Clark Malchow, the engineer for the Sheraton, and not with Keppner. Clark Malchow testified that he and Shular were studying the available options. According to Malchow the least time-consuming of these options — construction of a steel tank to hold the Sheraton’s sewage— would take at least two weeks.

This Court concludes that it was impossible for defendant Keppner, the hotel manager, to have brought the motel within the terms of the injunction, and we therefore reverse the contempt citation against the employee Keppner.

The June 14, 1982 judgment of the court enjoining any discharge of sewage by the Sheraton in the sewage treatment is affirmed, as modified. The decree holding defendant Keppner in contempt of the order is reversed.

AFFIRMED IN PART AS MODIFIED AND REVERSED IN PART.

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


text:
    Peter CAMP v. John R. ROBERTS.
    No. 54540.
    Supreme Court of Mississippi.
    Jan. 16, 1985.
    Michael J. Malouf, Malouf & Malouf, Jackson, for appellant.
    L. Arnold Pyle, Kenneth R. Dreher, Pyle, Harris, Dreher & Mills, Jackson, for appel-lee.

      Before PATTERSON, C.J., and DAN M. LEE and ROBERTSON, JJ.
   PATTERSON, Chief Justice,

for the Court:

On September 27, 1982, Peter Camp filed suit against John R. Roberts in the Circuit Court of the First Judicial District of Hinds County, charging Roberts with (1) alienation of the affections of Camp’s wife from Camp, and (2) criminal conversation with Camp’s wife. The complaint also alleged Camp was a resident of New York, New York, and that Roberts maintained residences in both Ocean City, New Jersey, and Queens, New York.

Roberts filed a special motion to dismiss the complaint for lack of in personam jurisdiction. In support of this motion he filed an affidavit stating he (1) was an adult non-resident of the State of Mississippi; (2) had committed no tort in whole or in part against Peter Camp in Hinds County, Mississippi, or anywhere else in the State of Mississippi; and (3) had never been served with process in this cause.

Roberts’ motion was sustained on January 6, 1983, when the court dismissed Camp’s action for lack of jurisdiction of the person of Roberts. Camp appeals, maintaining the dismissal was erroneous.

Since July 1, 1980, our long arm statute has provided that where a non-resident of this state commits a tort in whole or in part against another non-resident, the aggrieved party may maintain an action in a Mississippi Court. Mississippi Code Annotated, § 13-3-57 (Supp.1984). Therefore the threshold question is whether the complaint alleges Roberts committed a tort in whole or in part in Mississippi. If so, § 13-3-57 (Supp.1984), would apply.

The complaint alleges Roberts “by his own acts and deeds intentionally alienated the affections of ... [Camp’s wife] from the plaintiff, thereby violating plaintiff’s marital harmony with his spouse.” Further, Roberts is charged with “criminal conversation with the plaintiff’s spouse” inasmuch as Roberts had committed adultery with Camp’s wife.

Both alienation of affection and criminal conversation are recognized as torts in Mississippi. Walter v. Wilson, 228 So.2d 597 (Miss.1969). That case held that where a husband is wrongfully deprived of his rights to the “services and companionship and consortium of his wife,” he has a cause of action “against one who has inter-ferred with his domestic relations.” 228 So.2d at 598. The husband might then sue for criminal conversation, which may be proved by showing the defendant committed adultery with the plaintiff’s wife; and/or alienation of affection, which does not require proof of adultery. In any event, both causes of action are recognized in Mississippi.

Having studied the pleadings in this case, we are of the opinion the complaint contains sufficient allegations that Roberts committed a tort at least in part within this state. While we think this state is being used as a forum of convenience, inasmuch as both parties are residents of states which do not recognize these causes of action, we must hold the lower court had in personam jurisdiction over Roberts by virtue of Mississippi Code Annotated, § 13-3-57 (Supp.1984). Thus Camp’s suit should not have been dismissed. We therefore reverse the judgment and remand the cause for further proceedings.

REVERSED AND REMANDED.

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


author: FAULKNER, Justice. TORBERT, Chief Justice

text:
    Santina C. GEORGE v. Charles Howard NEVETT and Mary S. Nevett.
    83-397.
    Supreme Court of Alabama.
    Oct. 5, 1984.
    Rehearing Denied Jan. 11, 1985.

      S.P. Keith, Jr. of Keith, Keith & Keith, Birmingham, for appellant.
    Michael L. Chambers, Birmingham, for appellees.
   FAULKNER, Justice.

This is an appeal from a fraud and breach of contract action which arose in connection with a real estate sale between plaintiffs, Charles Howard Nevett and Mary S. Nevett, and defendant, Santina C. George. The jury rendered a verdict in favor of the plaintiffs and against the defendant in the sum of $95,000.00. After a motion for new trial was denied, defendant appealed.

On December 14, 1981, the parties entered into a real estate contract whereby the Nevetts agreed to buy George’s home in Fairfield, Alabama, for $210,000.00. The contract provided that the Nevetts were to pay $5,000.00 earnest money on January 15, 1982, and principal of $70,000.00 cash upon closing the sale. Mrs. George agreed to hold a purchase money mortgage for the balance, $135,000.00, payable over a ten-year period.

Additionally, the contract provided that the seller was to convey the property free of all encumbrances not excepted in the contract. The parties agreed that any encumbrances not excepted in the contract, or assumed by the purchasers, could be cleared at the time of closing from the sale proceeds. The contract also stated:

“The Seller warrants that there is no unpaid, indebtedness on the subject property except as described in this contract. These warranties shall survive the delivery of the above deed.”

The only unpaid indebtedness listed in the contract was a mortgage to Birmingham Federal Savings and Loan Association, which the seller agreed to pay from the proceeds at closing.

The deed which was delivered to the Nev-etts at closing states that the property was conveyed free from all encumbrances except those set out in the instrument. According to the deed, the conveyance was subject only to 1982 taxes, easements, mineral rights, and the $135,000.00 purchase money mortgage held by George.

At the closing of the sale there was evidence that Birmingham Trust National Bank (BTNB) held a $25,000.00 mortgage on the property. Apparently, the title insurance company held the $25,000.00 in escrow pending the outcome of a dispute between George and BTNB. The seller did not reveal the existence of this encumbrance prior to closing, nor was it indicated in the contract or the deed. The Nevetts, however, signed a closing statement which stated that $25,000.00 was to be withheld from the balance due the seller for “Escrow for BTNB mortgage.” The title binder, which was delivered to the Nevetts, also showed the BTNB mortgage and indicated that it was recorded in the Bessemer Division of the probate office of Jefferson County, Alabama.

Mr. Nevett claims that he did not discover the mortgage to BTNB until approximately two months after the closing, when he attempted to obtain a loan from Finance America Corporation, borrowing against the equity in the home he had just purchased. Nevett needed the loan in order to make the first two payments on the purchase money mortgage held by George. Finance America declined Nevett’s application for the loan because of BTNB’s outstanding mortgage.

The Nevetts failed to make any payments to Mrs. George under her mortgage. On October 18, 1982, a foreclosure deed was executed conveying title to the property back to George. The BTNB mortgage was finally released by satisfaction of mortgage on April 25,1988, and the encumbrance was removed from the title.

The Nevetts’ complaint was based on breach of contract and fraud. The jury returned a general verdict for $95,000.00. The trial court denied the defendant’s motions for a judgment notwithstanding the verdict or in the alternative for a new trial.

On appeal, George argues that the trial court made numerous errors regarding the admission of evidence and that the evidence adduced was insufficient to sustain the jury verdict. We disagree.

Although many of the facts in this case were in dispute, it is the function of the jury, which is authorized to draw all reasonable inferences from the evidence, to resolve controverted factual inferences. Fleming v. Kirkpatrick, 371 So.2d 16 (Ala.1979).

Clearly, in this case, the jury could reasonably conclude that the Nevetts were entitled to a judgment for breach of contract. It is undisputed that the parties entered into a contract in which George warranted that the property was free of all encumbrances not set out in the contract. The mortgage to BTNB was an encumbrance not described in the contract and not satisfied at the time of closing.

Considering all the evidence, the jury also could reasonably have concluded that George was liable for intentional fraud. Fraud by misrepresentation of a material fact is defined in Alabama Code 1975, § 6-5-101:

“Misrepresentations of a material fact made willfully to deceive, or recklessly without knowledge, and acted on by the opposite party, or if made by mistake and innocently and acted on by the opposite party, constitute legal fraud.”

In order to make out a prima facie case of fraud, the plaintiff must prove: (1) that the defendant made a false representation concerning an existing material fact; (2) that the plaintiff was deceived by the misrepresentation and that he relied on it; (3) that his reliance was justified under the circumstances, and; (4) that as a proximate result of the misrepresentation, the plaintiff suffered damages. See Mahoney v. Forsman, 437 So.2d 1030 (Ala.1983); Cecil Crews Chevrolet-Oldsmobile, Inc. v. Williams, 394 So.2d 912 (Ala.1981).

In this case George represented that there were no outstanding mortgages other than the first mortgage to Birmingham Federal. George knew of the BTNB mortgage, yet failed to disclose it in the sales contract or in the deed. Based upon the evidence presented, the jury could reasonably have concluded that the Nevetts were deceived by the misrepresentation and that they justifiably relied on it in purchasing the property.

The jury apparently resolved the factual dispute of whether the misrepresentation was intentional in favor of the Nev-etts, and we will not disturb that finding. Although arguably the Nevetts had notice of the BTNB mortgage, since it was indicated on the closing statement and on the title binder, the intentional misrepresentation occurred at the time of closing, when the encumbrance was not cleared in accordance with the contractual provisions. Furthermore, the BTNB mortgage was not satisfied until approximately one year after the closing.

The jury returned a verdict of $95,000.00 in favor of the Nevetts. The general verdict was returned without specifying upon which theory liability was imposed.

According to Mr. Nevett, he sustained a total of $89,477.01 in damages, as follows: (a) $67,888.97 actual cash paid to George as a result of the sale; (b) $8,300.00 real estate commission which Mr. Nevett agreed to undertake, of which only $3,800.00 had been paid at date of trial; and (c) $13,-288.04 interest paid by Nevett on money borrowed to make the original payments to George. It appears that the balance was based upon a punitive damages award.

In Big Three Motors, Inc. v. Smith, 412 So.2d 1222 (Ala.1982), this Court quoted with approval from 22 Am.Jur.2d Damages § 249 (1965):

“ ‘Exemplary damages, if recoverable at all, may be recovered only in eases where the wrongful act complained of is characterized by, or partakes of, some circumstances of aggravation, such as wilfulness, wantonness, maliciousness, gross negligence or recklessness, oppression, outrageous conduct, indignity and contumely, insult, or fraud or gross fraud....
“ ‘One or more of the conditions under which exemplary damages are recoverable is sufficient.’ ” (Emphasis added in Big Three Motors, Inc.)

In the instant case, the evidence indicates that George made the representation with knowledge of its falsity. George represented that the conveyance was free from an encumbrance, when, in fact, she knew the property was encumbered by a prior mortgage. There is also evidence from which the jury could reasonably have inferred that George or her closing attorney knew or intended that the Nevetts would be injured thereby. Although the closing attorney testified that he informed all parties of the BTNB mortgage, he nevertheless failed to inform the Nevetts that the mortgage in escrow would encumber their title or that they would be unable to secure a loan on the property.

This court has often noted the following principles:

“There is a very strong presumption in this state in favor of upholding jury verdicts on appeal. Wagner v. Winn-Dixie, 399 So.2d 295 (Ala.1981); Trans-South-Rent-A-Car, Inc. v. Wein, 378 So.2d 725 (Ala.1979). A denial of a motion for a new trial strengthens the presumption of correctness of the jury’s verdict. Shiver v. Waites, 408 So.2d 502 (Ala.1981); Cecil Crews Chevrolet-Oldsmobile, Inc. v. Williams, 394 So.2d 912 (Ala.1981). This court must review the tendencies of the evidence most favorable to the prevailing party and indulge such inferences as the jury was free to draw. Cooper v. Peturis, 384 So.2d 1087 (Ala.1980); Wiggins v. McLeod, 371 So.2d 660 (Ala.1979). The reviewing court will not reverse a judgment based on a jury verdict unless the evidence is so preponderant against the verdict as to clearly indicate that it was wrong and unjust. Cecil-Crews Chevrolet-Oldsmobile, Inc. v. Williams, supra.

Mahoney v. Forsman, 437 So.2d 1030, 1033 (Ala.1983).

In light of the above discussion, we find that the jury verdict is neither contrary to the preponderance of the evidence nor palpably wrong or manifestly unjust. The judgment of the trial court is therefore affirmed.

AFFIRMED.

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

TORBERT, C.J., concurs specially.

TORBERT, Chief Justice

(concurring specially).

The majority opinion seems to convey the impression that the outstanding BTNB mortgage was not disclosed to the Nevetts either at the time of the contract or at the time of closing. It is clear, however, that the mortgage was disclosed at the time of closing, because the closing statement and the title binder both included reference to that mortgage.

The .majority also indicates that the fraud was in failing to list the BTNB mortgage on the deed. As a general proposition, failing to note an outstanding mortgage on the deed indicates that the seller intends to pay off that mortgage out of the proceeds of the sale. I would affirm on the basis that the jury was authorized to find under the evidence that fraud occurred at closing when Mrs. George represented in the closing statement that $25,000 was to be held in escrow to pay off the mortgage if the jury found that, in fact, she had no intention of releasing that money to pay off the mortgage.


author: PER CURIAM.

text:
    Mary P. DUNKIN and Harold J. Dunkin v. DRUID CITY HOSPITAL REGIONAL MEDICAL CENTER.
    No. 83-892.
    Supreme Court of Alabama.
    Dec. 21, 1984.
    Rehearing Denied Jan. 25, 1985.
    William R. Murray, Northport, for appellants.
    James J. Jenkins and Alyce Manley Spruell, Phelps, Owens, Jenkins, Gibson & Fowler, Tuscaloosa, for appellee.
   PER CURIAM.

Finding no genuine issue of material fact, and being of the opinion that the defendant is entitled to judgment as a matter of law, we affirm the summary judgment entered below in favor of the defendant. Rule 56, A.R.Civ.P. See Knowles v. Blue, 209 Ala. 27, 95 So. 481 (1923); Donald v. Swann, 24 Ala.App. 463, 137 So. 178, cert. denied, 223 Ala. 493, 137 So. 181 (1931).

AFFIRMED.

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


author: HOLMES, Judge.

text:
    John Wayne RUDDER v. Trez Van Lee RUDDER.
    Civ. 4280.
    Court of Civil Appeals of Alabama.
    Sept. 12, 1984.
    Rehearing Denied Oct. 17, 1984.
    Certiorari Denied Feb. 1, 1985 Alabama Supreme Court 84-134.

      Claude D. Boone, Mobile, for appellant.
    Barry A. Friedman, Mobile, for appellee.
   HOLMES, Judge.

This is a domestic relations case.

The former husband appeals from an order of the Circuit Court of Mobile County, which found that an arrearage of $8,700 was owed for unpaid child support installments.

The husband on appeal contends, through able counsel, that an action for the amounts past due is barred by the doctrine of laches and that the trial court erred in establishing the amount of arrearages.

Viewing the testimony, as revealed by the record, with the attendant presumptions accorded the trial court’s action, we find the following:

The parties were divorced in 1965 and the wife was awarded custody of the three minor children. Under the divorce decree, the husband was ordered to pay ten dollars per week per child or thirty dollars per week in child support. The court order also awarded the wife $1,228 for child support that had already accrued. All payments were to be made through the Accounts Clerk of Mobile County. The records indicate that only $582 was paid under that decree.

In 1966, the wife discovered that the husband was living in Washington, D.C., and filed an action to recover child support through the Department of Investigation and Recovery and Non-Support. The Washington, D.C., court lowered the husband’s payment to twenty-five dollars per week. The record indicates that from this decree certain payments were made through the court from 1966 to 1970.

A second reciprocal non-support action was filed in 1970 while the husband was living in Tennessee. According to the record, payments resulting from this action were made by the husband until 1971, when the husband moved to Maryland. At that time he stopped paying any child support installment through the courts; however, there was evidence that some payments were made directly to the wife.

Both parties testified that they had not kept records of the amount of child support that was paid directly to the wife. The husband did, however, produce some receipts from the payments that he had made, totaling less than $2,000. The wife testified that no more than $3,000 had been paid directly to her from 1971 to 1980, when the youngest son turned nineteen.

There was testimony that the middle son quit school when he was fifteen and went to work on a sporadic basis. The youngest son also quit school at age sixteen and began working. Both continued to live at home and relied on their mother for support.

When considering the total child support due from 1965 to 1980 and reducing that total by the amounts paid, there was evidence that the husband owed more than $9,000 in arrearage. The trial court, after an ore tenus hearing, found that the husband was in contempt and ordered a lump sum payment of $8,700 for the amounts past due.

The husband contends that the action for the past-due child support is untimely because of the delay in filing the action and should be barred by the doctrine of laches. We do not agree.

The doctrine of laches is applied when a delay will make it difficult or impossible to do justice. The principle has no basis for application when dealing with past-due child support payments from a valid divorce decree. Morgan v. Morgan, 275 Ala. 461, 156 So.2d 147 (1963).

Furthermore, in the case at hand, it appears that the delay caused no injustice. The husband was aware of the divorce decree for a number of years and knew that the child support payments were due.

The husband also contends that the trial court erred in determining the amount of child support arrearages, maintaining that the children were self-supporting and that he was due a credit for that period of time.

The meaning of “self-support” is the independent support of oneself. Taylor v. Taylor, 412 So.2d 1231 (Ala.Civ.App.1981).

Here, there was evidence that the two youngest sons did work. The work, however, was not continuous, sometimes being only three days per week. There was also testimony that even during this period the two sons relied on their mother for support. It appears that they were not independently supporting themselves.

Additionally, the award or denial of a credit against an arrearage in child support is within the sound judicial discretion of the trial court, and this judgment will not be reversed without a showing of abuse. Marsh v. Marsh, 426 So.2d 847 (Ala.Civ.App.1983).

The trial court heard the evidence and examined the various items of documentary proof offered by the parties. When considering the divorce decree which determined the child support payments and the fact that the children were not self-supporting, we find that this action was not untimely nor was the judgment in excess of an amount reasonably supported by the evidence. There is no reason to disturb the court’s award.

This case is due to be and is affirmed.

AFFIRMED.

WRIGHT, P.J., and BRADLEY, J., concur.


author: WRIGHT, Presiding Judge. WRIGHT, Presiding Judge

text:
    Bertha Adcock TURNER v. Arvie Dewey TURNER.
    Civ. 4197.
    Court of Civil Appeals of Alabama.
    Oct. 3, 1984.
    Rehearing Denied Oct. 31, 1984.
    Certiorari Denied Jan. 25, 1985 Alabama Supreme Court 84-200.

      Carleton P. Ketcham, Jr. of Dominick, Fletcher, Yeilding, Wood & Lloyd, Birmingham, for appellant.
    No brief for appellee.
   WRIGHT, Presiding Judge.

This appeal comes from a denial of a 60(b) motion to set aside a final judgment of divorce.

On April 29, 1981, the day their divorce was set for trial, Mrs. Turner and Mr. Turner reached a settlement agreement and reduced it to a memorandum. The trial court adopted the terms of this memorandum agreement and incorporated them into the parties’ final judgment of divorce on May 1, 1981.

In December 1982, Mrs. Turner came upon a eash-in receipt for a certificate of deposit at the First National Bank, Wood-lawn Branch, in Birmingham. The date on the receipt was April 24, 1980. Starting to investigate, she checked at First Alabama Bank and found that Mr. Turner also had a certificate of deposit at that bank that had matured in May 1980. This led to the filing of the 60(b) motion to set aside the divorce judgment on March 7, 1983. Mrs. Turner alleged that Mr. Turner misrepresented his assets to her in order to induce a settlement. After some discovery, Mrs. Turner moved to enjoin Mr. Turner from disposing of a $120,000 cashier’s check (believed to be linked to the assets of Mr. Turner prior to the divorce), pending a hearing on the merits. The temporary restraining order was granted but after a preliminary injunction hearing, the temporary restraining order was dissolved and the motion for the preliminary injunction was denied. After a hearing on the merits held October 27-28, 1983, the motion to set aside the judgment was denied.

The evidence showed Mr. Turner had on several previous occasions withdrawn monies at approximately the same time he was served with court papers. He was served with the original divorce complaint on January 21, 1981. The same day he closed an investment account and obtained a cashier’s check for $40,768. The evidence also revealed that during his deposition taken in April 1981, Mr. Turner had that cashier’s check and another in the amount of approximately $90,000 in his pocket, which was not disclosed. Five days after the divorce, Mr. Turner took these checks and purchased a certificate of deposit for approximately $130,000 at City National Bank.

Mr. Turner claimed the timing of the withdrawals was coincidental and that they were the result of his business of buying used industrial machinery, for which bids were made and cash must be readily available. Mr. Turner also defended by saying he was confused as to what an account was when asked during discovery and that the accounts could have been discovered if Mrs. Turner’s attorney had properly examined all the information supplied by Mr. Turner and his accountant.

Mrs. Turner contends that Mr. Turner committed fraud on the court and hence the trial court erred in denying her Rule 60(b), Alabama Rules of Civil Procedure, motion. The 60(b) motion was brought twenty-two months after the original divorce decree. Rule 60(b)(3), A.R.Civ.P., provides that a motion for fraud must be made not more than four months after the judgment is entered. But Rule 60(b) thereafter says that the court has the power to entertain an independent action brought within a reasonable time, but not over three years, “to relieve a party from a judgment, order, or proceeding, or to set aside a judgment for fraud upon the court.” Mrs. Turner claims to be within this exception to the four-month limit on 60(b) motions.

A court has inherent power to set aside and vacate a judgment because of supervening invalidity based on fraud practiced upon the court by a party in the procurement of a judgment. Crisco v. Crisco, 294 Ala. 168, 313 So.2d 529 (1975). The remedy afforded under Rule 60(b), A.R.Civ.P., is merely cumulative with that provided by the ancient bill of review in equity. Evans v. Evans, 365 So.2d 78 (Ala.Civ.App.1978). In passing upon an attack upon a final judgment because of supervening invalidity based on fraud upon the court, the trial court is allowed wide discretion; and in exercising such discretion, the trial court must balance desire to remedy injustice against the need for finality of judgments. Denton v. Sanford, 383 So.2d 847 (Ala.Civ.App.1980). Not only is the finality of judgments favored, Stewart v. Stewart, 392 So.2d 1194 (Ala.1980), but if there was fraud upon the court, it must be sufficient to have infected the judgment. Clements v. Barber, 49 Ala.App. 266, 270 So.2d 815 (1972).

After hearing on the merits ore tenus the trial court held on January 11, 1984, that the “[Pjlaintiff’s motion for relief from judgment pursuant to rule 60(b) Alabama Rules of Civil Procedure be and it hereby is denied.” The court made no findings of fact.

The standard of review applied by the appellate courts to such a determination by the trial court is whether the trial court abused its discretion. Tucker v. Tucker, 403 So.2d 273 (Ala.Civ.App.1981). In determining whether there was an abuse of discretion in denying the relief, this court looks to the grounds presented by the motion and the matters presented in support thereof. Pitts v. Henley, 384 So.2d 1105 (Ala.Civ.App.1980).

We have reviewed the record and find many facts in dispute. Although Mrs. Turner claims Mr. Turner concealed much of his money in certificates of deposit and cashiers’ checks, there was evidence that she knew of similar transactions during their marriage and that she specifically knew Mr. Turner had $40,000. There was also confusion as to whether the money was Mr. Turner’s or a loan from his company. The evidence showed that the company’s continued vitality was important to both parties. Mrs. Turner owns the property on which the company is located and receives $1,200 per month rent under a fifteen-year lease.

Considering all the presumptions in favor of the trial court, we find there was no abuse of discretion.

Mrs. Turner also contends that the trial court erred when it refused to allow the evidence from the preliminary injunction to become part of the trial record. We find the appellant never moved to include the full record. Issues not raised in trial court cannot be raised for the first time on appeal. Hutchins v. Shepard, 370 So.2d 275 (Ala.1979). Furthermore, the trial court allowed Mrs. Turner to offer portions of the testimony from the preliminary injunction hearing for purposes of impeachment.

AFFIRMED.

BRADLEY and HOLMES, JJ., concur.

ON REHEARING

WRIGHT, Presiding Judge

Ordinarily this court does not respond to motions for rehearing unless we find cause in the motion and brief thereon to alter, amend or withdraw our original opinion. However, in this instance, in view of the contents of appellant’s counsel’s introduction to his brief, we make an exception.

Counsel’s comments in brief come very close to expressing impertinence and showing contempt not only for this court but the entire system of courts which he serves as an official. We recognize and understand the disappointment of failing to carry one’s view and suffering a loss in a case. However, such an event comes often to every counsel who represents a client in court. To lose a case does not give license to abuse the court before whom the case is tried nor the court before which appeal is taken. This court will always accept disagreement with our decisions and review them upon reasonable legal grounds brought to our attention by motion and brief for rehearing. However, we will not, in the future, accept impertinent and emotional accusations such as the absence of justice in the courts of our state and that the courthouses of this state are to become the new meeting place for the “Liar’s Club,” because perjury and falsehood are countenanced there.

We have again carefully reviewed the record of 547 pages to determine if we erred in our original opinion. We find no error!

Grounds 1 and 2 of the application for rehearing relate to the alleged refusal of the trial court to permit into testimony evidence presented at the hearing on preliminary injunction. There is no such ruling on refusal in the record. In fact, there was an offer by counsel of “certain portions of the transcript” that appears on page 488 of the record. The court accepted the offer on page 490 and offered to allow in the whole transcript on a question and answer basis with opportunity for objection by opposing counsel. There were thereafter certain piecemeal stipulated entries.

Ground 3 requires no response. It is self-evident.

Ground 4 charges this court with “failing and refusing to decide the real issue presented by the appeal.” That issue is stated to be whether the trial court, after “wrestling” with the issue of the existence of intrinsic or extrinsic fraud, wrongfully decided that Mr. Turner committed “mere intrinsic fraud.” We have looked in the record to find when the “wrestling” occurred, and a decision thereon was entered. We have looked in vain. We pointed out in our original opinion that the judgment of the astute and learned trial judge who heard the conflicting evidence made no finding of fact or law but merely denied the 60(b) motion.

We find no sufficient ground for changing our original conclusion that we find no abuse of judicial discretion by the trial court.

OPINION EXTENDED; REHEARING DENIED.

BRADLEY and HOLMES, JJ., concur.


author: BRADLEY, Judge.

text:
    George L. REYNOLDS and Mary Reynolds v. The FOUR SEASONS CONDOMINIUM ASSOCIATION, INC.
    Civ. 4289.
    Court of Civil Appeals of Alabama.
    Oct. 24, 1984.
    Rehearing Denied Nov. 28, 1984.
    Certiorari Denied Jan. 25, 1985 Alabama Supreme Court 84-278.
    Sallie M. McConnell, Birmingham, for appellant.
    Donald R. Harris, Jr., Chamblee & Harris, Birmingham, for appellee.
   BRADLEY, Judge.

This is an appeal from the judgment of the Circuit Court of Jefferson County rendered in favor of The Four Seasons Condominium Association, Inc. (the Association), and against George and Mary Reynolds.

In March 1980 the Reynoldses purchased a unit at the Four Seasons Condominium from August, Inc. It was a back unit, facing a wooded vacant lot.

The tenant agreement of purchase and sale (purchase agreement) and the acceptance of offer (acceptance) were executed on March 2, 1980. The acceptance was signed by Patricia R. Wade, a sales agent and the assistant secretary of August, Inc. At the time of the sale August, Inc. owned greater than seventy-five percent of the units. The acceptance had a handwritten addendum which stated that, “Sale contingent on buyer obtaining 12¼% financing. Buyer will be permitted to enclose patio and add door to patio entrance.”

Stewart Dudley, a C.P.A., son of the owner of August, Inc., and vice president of August, Inc., testified that in January 1980 August, Inc. owned all of the units at the Four Seasons. In January 1980 the board of directors of the Association (the Board) passed a resolution allowing unit owners to enclose their patios if their unit did not face other units and if the enclosure would not interfere with other units. The resolution was passed in compliance with the requirements of the declaration of condominium (declaration) and the bylaws. The resolution was never filed with the secretary of state. The current board claims to have no record of that resolution.

In March 1981 the Reynoldses, in reliance on their purchase agreement, began building a glass enclosure around their patio area. The Board, which had by now been turned over to the unit owners by the developer, had actual knowledge of the construction, discussed it at a meeting, and took no action. The Reynoldses finished the enclosure.

In March 1982 the Board had again changed leadership. The new Board discussed the Reynoldses’ enclosure and decided to send a letter to the Reynoldses demanding that they remove the structure. The Reynoldses declined to do so and the association instituted this suit seeking specific performance of the declaration of condominium and its bylaws as well as $15,000 damages for breach of contract.

The trial court concluded that the patio area the Reynoldses enclosed was a common element of the condominium; the result of the enclosure was to improperly appropriate common elements to the Reyn-oldses’ exclusive use; the written permission in the Reynoldses’ purchase agreement was invalid as to owners and purchasers of August, Inc. in that it was not recorded pursuant to section 35-8-6(d), Code 1975; and that the Reynoldses did not have a defense of laches or estoppel.

The trial court was correct in concluding that the patio area at issue is properly defined as a common element. The Alabama Condominium Ownership Act, §§ 35-8-1 through -22, Code 1975, defines common elements as “A part or parts of the condominium property as set forth in the declaration in which all of the unit owners have an undivided interest.” § 35-8-2(2), Code 1975. The Four Seasons’ declaration of condominium, in section 6.2(b), includes entry porches in its definition of common elements.

But the trial court then held that the Reynoldses had wrongfully appropriated the patio area to themselves in violation of section 35-8-6(d), Code 1975. We disagree. Section 35-8-6(d) allows for altering the undivided interests of all of the unit owners by means of an amendment to the declaration by agreement of all affected unit owners and lienholders. The agreement must be “duly recorded.” Though the resolution the early Board passed met all the requirements of the declaration and bylaws, it was never recorded.

We do not reach the issue of the effect of this lack of recordation or who had the burden of recording. The association is equitably estopped from raising this issue.

The Reynoldses have a • written agreement which is signed by an agent of the entity which owned all of the units at the time of sale which purported to allow them to enclose their patio. In reliance on this they began construction. The Board knew of the construction while it was in progress, yet took no action. The construction was completed. A full year passed before the Board complained to the Reyn-oldses and demanded removal of the enclosure. Estoppel is found where there is a representation by words, deeds, or silence to a party which that party relies upon to his detriment. See General Electric Credit Corp. v. Strickland Division of Rebel Lumber Co., 437 So.2d 1240 (Ala.1983); Quality Shell Homes & Supply Co. v. Roley, 186 So.2d 837 (Fla.Dist.Ct.App.1966).

Similar cases have arisen m Florida. In Plaza Del Prado Condominium Association v. Richman, 345 So.2d 851 (Fla.Dist.Ct.App.1977), the court held that the association was estopped from claiming lack of compliance with the condominium’s bylaws where a sales representative granted a condominium purchaser permission to make changes in terrace railings, the changes were made, and the association failed to complain for one year. In Fifty-Six Sixty Collins Avenue Condominium, Inc. v. Dawson, 354 So.2d 432 (Fla.Dist.Ct.App.1978), the condominium unit owner installed shutters on the balcony of her unit in reliance on the condominium association board’s vote to approve installation of the shutters subject to relevant municipal provisions. The unit owner told the building manager of her proposed addition, as did the installer. No one objected, though they had actual notice of when installation began. The trial court held, and the appellate court affirmed, that the association was “ ‘... estopped to deny that Defendant had secured the requisite approval for the installation of her shutters or that she failed to comply with the provisions of the Declaration of Condominium.’ Dawson, supra (emphasis added).

We agree with the reasoning of the Florida court. Estoppel is a defensive weapon, to be raised as a shield and not as a sword. Penn Mutual Life Insurance Co. v. Mallory, 255 Ala. 256, 50 So.2d 740 (1951). Thus, estoppel prevents the Association from raising the failure to record the resolution.

We also note that the Reynoldses did not wrongly appropriate legal title to part of the common element to their unit. Title to this area, as a common element, remains in the Association. See Parrillo v. 1300 Lake Shore Drive Condominium, 103 Ill.App.3d 810, 59 Ill.Dec. 464, 431 N.E.2d 1221 (1981).

Thus, we affirm the trial court’s ruling that the area at issue was a common element; however, we reverse its holding that the defense of estoppel did not apply and that the common elements were improperly appropriated to the Reynoldses’ use,

AFFIRMED IN PART, REVERSED IN PART, AND REMANDED FOR ENTRY OF JUDGMENT CONSISTENT WITH THIS OPINION.

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