author: BEATTY, Justice. BEATTY, Justice.

text:
    The CINCINNATI INSURANCE COMPANY v. Norma LITTLE.
    82-522.
    Supreme Court of Alabama.
    Nov. 4, 1983.
    As Corrected on Denial of Rehearing Dec. 22, 1983.

      Paul G. Smith and Bert P. Taylor, Birmingham, for appellant.
    Stephen D. Heninger of Hare, Wynn, Ne-well & Newton, Birmingham, for appellee.
   BEATTY, Justice.

After a trial, the jury returned a general verdict against the Cincinnati Insurance Company, and plaintiff’s real estate agent, Tom D. Williams, individually, and d/b/a Tom Williams and Company. Defendant insurance company appeals from the denial of a judgment notwithstanding the verdict in an action based on fraud, breach of contract, and bad faith refusal to pay a claim. We reverse and remand.

This case requires us to examine the type of conduct constituting the tort of bad faith refusal to pay an insurance claim, and to determine whether plaintiff’s evidence was sufficient to avoid a directed verdict on that count, which was submitted to the jury.

Plaintiff, Norma Little, owned rental property located in Homewood, Alabama, which was damages by fire. The damaged property was covered by an insurance policy, face value $35,000, with Cincinnati Insurance Company (Cincinnati).

Mrs. Little’s real estate manager for the property was Tommy Williams. At the time of the fire, Mrs. Little was in the hospital being treated for emotional problems, so Mr. Williams dealt with the insurance company on her behalf. Cincinnati’s insurance adjuster, Huel Carter, told Williams that $21,500 would be available under the policy to repair the property. This figure was less than the face amount of the policy, less than the adjuster’s estimate of the property damage, and less than the $45,000 estimate of repairs of a Birmingham contractor.

When Williams advised Mrs. Little about the amount of coverage available, she cautioned him not to go over that amount, but gave him permission to proceed with the repair work. Thereafter, he completed a proof of loss form, claiming $20,000 for the repair work, and delivered it to Mrs. Little. Mrs. Little had her mother sign the form on her behalf. Williams then delivered it to the insurance company’s agency, and, based on the proof of loss form, the company issued a check for $20,000. The facts are disputed as to who endorsed this check, but Williams deposited the check into his account and began repairing the property.

When the work was completed, Mrs. Little claimed that the repairs were shoddy and outrageous. Mrs. Little’s complaint alleged, among other things, (1) fraud, (2) bad faith refusal to pay, and (3) breach of contract. Cincinnati filed a motion for directed verdict at the conclusion of the plaintiff’s case. The motion alleged a lack of evidence on plaintiff’s claims for breach of contract, fraud, and bad faith refusal to pay. The trial court overruled the motion.

Cincinnati refiled its motion for directed verdict at the close of all the evidence, which the trial court overruled. The court charged the jury on breach of contract, fraud, bad faith refusal to pay, and punitive damages.

After closing arguments and the court’s charges, the jury rendered a general verdict for plaintiff and against both defendants for $80,000. The trial court overruled Cincinnati’s motion for judgment notwithstanding the verdict or, in the alternative, for new trial. In the motions, Cincinnati claimed that the court improperly submitted to the jury the counts of fraud, bad faith refusal, and breach of contract, and the claim for punitive damages.

Under Alabama law:

“[I]f a complaint has more than one count and the defendant believes that the evidence is not sufficient to support one or more of those counts, he must challenge this by motion for directed verdict, specifying the count which is not supported by evidence and detailing with specificity the grounds upon which the particular count is not supported by the evidence. If this is not done and all counts go to the jury and a general verdict is returned, the court will presume that the verdict was returned on a valid count.” Aspinwall v. Gowens, 405 So.2d 134, 138 (Ala.1981).

Cincinnati, having directed its motion to each count, therefore properly preserved these alleged errors for appeal.

We find that as to the count for bad faith refusal to pay the trial court should have granted Cincinnati’s motion for directed verdict or its motion for judgment notwithstanding the verdict or, in the alternative, for new trial. It correctly refused to direct a verdict on the fraud and breach of contract claims. These two claims were properly submitted to the jury, but since the court also improperly submitted the bad faith claim, we cannot conclude that the jury’s general verdict was based upon the properly submitted claims. Therefore, a new trial is required on these two counts.

Proper submission of the count of bad faith refusal to a jury requires sufficient evidence from which permissible inferences could be drawn to support a finding of bad faith refusal to pay. If the evidence is insufficient on this theory, Cincinnati was entitled to judgment notwithstanding the verdict on that claim and .a new trial on the remaining claims. Empiregas, Inc., of Gadsden v. Geary, 431 So.2d 1258, 1259 (Ala.1983).

Under National Security Fire & Casualty Co. v. Bowen, 417 So.2d 179 (Ala. 1982), the plaintiff in a bad faith refusal case has the burden of proving:

“(a) an insurance contract between the parties and a breach thereof by the defendant;
“(b) an intentional refusal to pay the insured’s claim;
“(c) the absence of any reasonable legitimate or arguable reason for that refusal (the absence of a debatable reason);
“(d) the insurer’s actual knowledge of the absence of any legitimate or arguable reason;
“(e) if the intentional failure to determine the existence of a lawful basis is relied upon, the plaintiff must prove the insurer’s intentional failure to determine whether there is a legitimate or arguable reason to refuse to pay the claim.”

417 So.2d at 183. See also National Savings Life Ins. Co. v. Dutton, 419 So.2d 1357 (Ala.1982).

In the present case, the plaintiff did not prove that the insurance company refused to pay the claim. The insurance company paid the full amount claimed on the proof of loss form, which was signed in plaintiffs behalf at her request. The insurance company did not deny Norma Little an insurance benefit under the contract. Rather, the case involves a dispute of whether she received all she claims she was entitled to under the contract and whether the insurance company fraudulently induced Mrs. Little, through her agent, to claim less than the amount to which she was entitled under the policy.

In Sexton v. Liberty National Life Ins. Co., 405 So.2d 18, 22 (Ala.1981), this Court found that because the defendant insurance company had paid a substantial part of the claim there was no refusal, even though the insured asserted that the company should have paid more. Applying Sexton to the present facts, we are compelled to conclude that Cincinnati did not refuse to pay and, therefore, that the plaintiff did not prove a prima facie case of bad faith refusal to pay under Bowen and Dutton.

The case of Gulf Atlantic Life Ins. Co. v. Barnes, 405 So.2d 916 (Ala.1981), does not conflict with Sexton, because in Barnes the insurance company admitted that it should have paid the $7,000 face value of the policy. In that case, there was no payment made on the $7,000 policy under which the plaintiff made her claim because the insurance company had substituted another policy and paid its face value of $1,000. Id. at 923.

Because there was no refusal to pay in the instant case, the count of bad faith refusal will not lie. Accordingly, the motion for the directed verdict on the count of bad faith refusal was improperly denied. Cincinnati was entitled to judgment notwithstanding the verdict on the bad faith claim, the failure to grant which must result in a new trial. The judgment, therefore, is reversed and this cause is remanded for a new trial on the fraud and breach of contract claims.

REVERSED AND REMANDED.

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

ON APPLICATION FOR REHEARING

BEATTY, Justice.

OPINION CORRECTED; APPLICATION OVERRULED.

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


source: Caselaw Access Project

author: PER CURIAM.

license: Public Domain

text:
    INDIAN RIVERS COMMUNITY HEALTH CENTER, et al. v. CITY OF TUSCALOOSA, a municipal corporation.
    81-1039.
    Supreme Court of Alabama.
    Dec. 22, 1983.

      Ralph I. Knowles, Jr. of Drake, Knowles & Pierce, Tuscaloosa, for appellants.
    Robert W. Ennis, IV, City Atty., and Dena D. Byrd, Asst. City Atty., City of Tuscaloosa, for appellee.
   PER CURIAM.

The Indian Rivers Community Health Center (Indian Rivers) appeals from a decree entered in a declaratory judgment action. The trial court held various sections of the zoning ordinance of the City of Tuscaloosa constitutional and also held that they had been properly applied in this case. We affirm.

Indian Rivers operates Andante House, a transitional home for patients of Bryce Hospital who are released on a “trial basis.” The home is presently located on Twelfth Avenue in Tuscaloosa. Indian Rivers would like to move it into two houses on Reed Street, also in Tuscaloosa. Adrian Straley, planning director of the City of Tuscaloosa, informed Indian Rivers that it would be necessary to obtain a “special exception” from the Board of Adjustment (Board) to relocate on Reed Street. Indian Rivers filed its petition and, following a hearing, the Board granted the request. The special exception was granted for a “personal care home for adults” and was subject to conditions outlined by the Board regarding the screening of residents and programming.

Residents of the neighborhood in which the proposed transitional home is to be located appealed the Board’s decision. Subsequently, Indian Rivers filed a motion for declaratory judgment, requesting the court to declare the requirement to obtain a special exception to establish a transitional home violative of § 11-52-75, Ala.Code 1975, and the United States and Alabama Constitutions. The trial court severed the declaratory judgment issues from the appeal of the Board’s decision and, following an ore tenus hearing in the declaratory judgment action, ruled in favor of the City. Indian Rivers appeals from this final judgment.

Indian Rivers argues that the City, through the Board, has applied the Tuscaloosa zoning regulations in a manner that unlawfully discriminates against persons with mental disorders. It claims that the Board has prohibited it from operating Andante House in an RMF-2 zone (multi-family), absent a special exception, but has allowed other persons who are not mentally ill, but otherwise similarly situated, to reside in this zone without restriction. Indian Rivers claims this is unequal and unlawful treatment in violation of the equal protection and due process provisions of the United States and Alabama Constitutions, and § 11-52-75, Ala.Code 1975, which is a codification of these provisions. It does not challenge the constitutionality of the zoning ordinance itself, but restricts its arguments to the constitutionality of the Board’s application of the ordinance.

Indian Rivers urges us to apply strict scrutiny when examining the Board’s actions. It contends that this standard is proper because one of the appellants (Jane Doe) and all prospective residents of Andante House are members of a “suspect class.” The class, if it exists, would consist of persons with mental disorders.

The Supreme Court of the United States has described the traits which characterize a suspect class. They include a history of disenfranchisement and stereotyping, and “an immutable characteristic determined solely by the accident of birth.” Frontiero v. Richardson, 411 U.S. 677, 686, 93 S.Ct. 1764, 1770, 36 L.Ed.2d 583 (1973). The persons included in a suspect class cannot be differentiated from non-suspect classes on the bases of intelligence, physical ability or disability, or ability to perform and contribute to society. We find none of those traits evident in this group and hold that people with mental disorders are not a suspect class.

Furthermore, we can find no argument to support Indian Rivers’ contention that requiring it to obtain a special exception to operate a home for the mentally disabled infringes upon the fundamental rights of that group. Roe v. Wade, 410 U.S. 113, 93 S.Ct. 705, 35 L.Ed.2d 147 (1973).

There being no involvement of a suspect class or fundamental right, this Court will not apply the “strict scrutiny” test to examine the ordinance and the Board’s actions. The proper standard of review is the “substantial relationship” test; i.e., is the Board’s action arbitrary and unreasonable, or is it authorized and substantially related to the maintenance of the public health, safety, morals, and general welfare. Village of Euclid v. Ambler Realty Co., 272 U.S. 365, 47 S.Ct. 114, 71 L.Ed. 303 (1926); Woodard v. City of Decatur, 431 So.2d 1173 (Ala.1983); COME v. Chancy, 289 Ala. 555, 269 So.2d 88 (1972).

We begin by stating the objective of the Tuscaloosa zoning ordinance:

“This Chapter is enacted for the following purposes: To promote the health, safety, morals, and general welfare of the inhabitants of Tuscaloosa by lessening congestion in the streets, securing safety from fire, panic, and other dangers, providing adequate light and air, preventing the overcrowding of land, avoiding undue concentration of population, facilitating the adequate provisions of transportation, water, sewerage, schools, parks, and other public requirements, conserving the value of buildings, and encouraging the most appropriate use of land....
“It is recognized that a Zoning Ordinance, in addition to fulfilling the purposes set out in Section 35-2 above, should be related to a broad vision of the City’s future, and should subserve carefully considered, cogently stated community development objectives.”

Tuscaloosa, Alabama, Zoning Ordinance Art. 1, §§ 35-2, 35-3 (1972). This is in accord with § 11-52-72, Ala. Code 1975, which states the general purpose to be furthered by the zoning ordinance. It is also in accord with § 11-52-9, which describes a “comprehensive plan.”

“The plan shall be made with the general purpose of guiding and accomplishing a coordinated, adjusted and harmonious development of the municipality and its environs which will, in accordance » with present and future needs, best promote health, safety, morals, order, convenience, prosperity and general welfare as well as efficiency and economy in the process of development, including, among other things, adequate provision for traffic, the promotion of safety from fire and other dangers, adequate provision for light and air, the promotion of the healthful and convenient distribution of population, the promotion of good civic design and arrangement, wise and efficient expenditure of public funds and the adequate provision of public utilities and other public requirements.”

The proposed site of the transitional home is in a zone designated as “RMF-2 Multi-Family District.” This zone was created for the following purposes:

“[T]o provide minimum standards for the use and redevelopment of certain areas in the vicinity of the University of Alabama characterized by high population density, an aging housing stock, and inadequate parking and open space. It is intended to encourage the consolidation and/or replatting of lots in such areas for apartments, townhouses, and two-family dwellings meeting modern standards.”

Tuscaloosa, Alabama, Zoning Ordinance Art. 3, § 35-31(f) (1972). Permitted uses in an RMF-2 district include single and multifamily dwellings, townhouses, apartments, fraternity and sorority houses, non-commercial parks, playground and recreational areas, public buildings of a governmental nature, public schools, churches, and convents.

Certain uses of property are obviously well suited for this type of zone and may be allowed without an extended review. These are the permitted uses listed above. However, there are some uses which may promote the goals of zoning regulations and the development of the City’s plan, and be desirable under certain circumstances, but questionable under others. In these instances, some method of reviewing the potential usage of the property in the zone must exist to insure that the character of the neighborhood is preserved, and that the health, morals, and welfare of the residents are protected. The Board has the power, under § 11-52-80(a), Ala.Code 1975, to hold hearings and to “make special exceptions to the terms of the ordinance in harmony with its general purposes and interests.” The ordinance defines “special exception” as follows:

“A use that would not be appropriate generally or without restriction throughout a zoning district but which, if controlled as to number, area, location, or relation to the neighborhood, would promote the public health, safety, morals, order, comfort, convenience, appearance, prosperity, or general welfare. The Board of Adjustment may permit such uses in a zoning district as special exceptions if specific provision for such special exception is made in this Chapter.”

Tuscaloosa, Alabama, Zoning Ordinance Art. 1, § 35-5(47) (1972).

The ordinance and the provisions for permitted uses and special exceptions are aimed at controlling the uses of the premises within each zone, not the types of people who may inhabit them. Transitional homes are not a permitted use in an RMF-2 zone. They are distinguishable from all other uses listed as “permitted uses,” because the inhabitants of these homes generally require constant supervision and programming. The homes are the residences for a high concentration of people requiring some assistance and monitoring. Adrian Straley testified that any transitional or personal care home, whether it be for mentally ill adults, alcoholics, drug addicts, or the aged, would be required to obtain a special exception to operate in an RMF-2 zone. Tuscaloosa, Alabama, Zoning Ordinance Art. 3 (1972).

This is the only way the City can control development of this zone in line with the comprehensive plan and ordinance objectives. By requiring a special exception for the operation of all transitional homes in this zone, the Board, acting for the City, has the opportunity to impose conditions on the screening and programming of prospective residents to insure that someone who may present a danger or be a nuisance to the other residents is not accepted to the home. It can also determine, for example, whether the home will require more than the normal amount of public and private services, such as police, ambulance, food delivery, laundry, and transportation. All these services would add to the traffic and congestion in the streets and ultimately affect the character and safety of the neighborhood.

We are mindful that Andante House may operate in a manner similar to the permitted uses in this zone and that its residents may behave no differently than their neighbors. This Court, in Leary v. Adams, 226 Ala. 472, 147 So. 391 (1933), discussed Village of Euclid v. Ambler Realty, supra, and said:

“In that case, the exclusion from the residential district was in general terms of all industrial establishments, and it was observed that such a general provision may exclude, along with the rest, industries which are neither offensive nor dangerous. But the court said that ‘this is no more than happens in respect of many practice-forbidding laws which this court has upheld, although drawn in general terms so as to include individual cases that may turn out to be innocuous in themselves. * * * The inclusion of a reasonable margin, to insure effective enforcement, will not put upon a law, otherwise valid, the stamp of invalidity. Such laws may also find their justification in the fact that, in some fields, the bad fades into the good by such insensible degrees that the two are not capable of being readily distinguished and separated in terms of legislation. In the light of these considerations, we are not prepared to say that the end in view was not sufficient to justify the general rule of the ordinance, although some industries of an innocent character might fall within the proscribed class.’ It cannot be said that the ordinance in this respect ‘passes the bounds of reason and assumes the character of a merely arbitrary fiat.’ ”

Leary v. Adams, 226 Ala. at 474, 147 So. at 393.

Such may be the case here. If, in fact, the use of the two dwellings in question for Andante House will not cause harm to the general character of the neighborhood nor endanger the public health, morals, and welfare, then granting the special exception would be warranted. If, on the other hand, this use would be detrimental to the neighborhood and work against the objectives of the ordinance, the City may exclude it from this zone as a proper exercise of its police power. This should not be interpreted as a ruling upon the merits of Indian Rivers’ petition for a special exception, which is the subject of a separate appeal pending in the Circuit Court of Tuscaloosa County.

We hold that the Board was not only authorized to act as it did, but in doing so, did not discriminate unlawfully against persons who are mentally disordered. Its actions, as dictated by the state enabling statute and the zoning ordinance, were related substantially to the achievement of statutorily mandated objectives.

AFFIRMED.

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


author: SHORES, Justice.

text:
    Harold HACKMAN and Carol Hackman v. Columbus Frank MAUND and Juanita Maund.
    82-486.
    Supreme Court of Alabama.
    Dec. 22, 1983.
    Jack W. Smith of Smith & Smith, Do-than, for appellant.
    G.M. Harrison, Jr. of Merrill & Harrison, Dothan, for appellees.
   SHORES, Justice.

Harold and Carol Hackman, defendants, appeal from a judgment against them in this boundary line dispute between coterminous landowners. We affirm.

The Maunds, plaintiffs, have owned since 1964 eighty acres of land in Geneva County, Alabama. The east boundary line of their property fronts on Morris Street, a paved, city-maintained street. The Hack-mans own the forty acres of land lying directly south of the Maunds’ westernmost forty acres. Access to the Hackman property is by way of Dr. Steven Road, a small, unpaved road running west from Morris Street along the southern boundary line of the Maunds’ eastern forty to the eastern side of the Hackmans’ forty. From that point westwardly, the road is a dirt “field” road. It is the strip of land on which the field road lies that is disputed. The strip is about thirty-three feet wide, measuring north from an old fence which parallels the southern edge of the field road. The road itself is generally straight, except for a slight bend in it; as it extends westward, it tends toward the south. Its westernmost point is about twenty feet further south than its easternmost point.

Both parties claim the disputed strip of land. The Hackmans rely upon a survey performed at their request by John Peacock in October 1981, just a few days before the plaintiffs (Maunds) filed this action seeking to establish the boundary line between the properties of these coterminous owners. The survey fixed the forty line, which the Hackmans contend is the boundary line, on the north side of the field road, placing the road upon land owned by the Hackmans.

The Maunds also claim that they hold the title to the strip of land. Mr. Maund and his immediate predecessor in title testified that the property line was marked by an old fence, part of which still existed. The strip claimed by the Maunds includes all of the road, which is, and has been for many years, used by Mr. Maund as a field road. It is the only access to his back (westernmost) forty acres.

The Maunds’ original complaint sought a permanent injunction against the Hack-mans prohibiting them from blocking the road, and an order declaring a recorded easement from the Maunds’ predecessors to the Hackmans’ predecessors to the field road, null and void. An amendment to the complaint requested the trial court to locate the boundary at the fence and establish permanent judicial landmarks.

Following an ore tenus hearing, this order was issued:

“The Court further finds that the plaintiff has been in open, notorious, continuous and exclusive possession of the land in question up to the fence since 1964 or for a period of more than ten years. The Court further finds that there was an intent on the part of the plaintiff to hold and enjoy the property up to the line (the fence), claimed by the plaintiff as the true dividing line. The Court further finds that the plaintiff exercised domain [dominion?] over the questioned property and used the questioned property as in its present state it was reasonably adapted to. Mardis v. Nichols, 393 So.2d 976 ([Ala.] 1975); Limbaugh v. Richardson, 402 So.2d 957 ([Ala.] 1975 [1981]).
“Therefore, it is ORDERED, ADJUDGED AND DECREED as follows:
“1. That the boundary line between the plaintiff and the defendant is hereby established as the old fence line and now [sic] which has been in existence at least since 1964.
“2. That the line is more particularly described as follows, subject to an accurate survey of the line:
“(a) Begin where the 40 line or Peacock Survey line traverses the East line of the plaintiffs and defendants. (East being adjacent to the Wood property),
“(b) thence proceed in a westerly direction along the Peacock Survey line until it intersects the south side of the existing farm or field road,
“(c) thence proceed along the south side of the field road to a point parallel to [the] end of the old fence or fence row,
“(d) then proceed to the East end of the old fence or fence row,
“(e) then proceed westerly along the old fence or fence row to the west forty line.
“3. That a surveyor shall be appointed by the Court to establish permanent judicial landmarks according to this judgment. That the Court will appoint a surveyor agreed upon by the parties if the parties submit an agreed name within 15 days from the date of the decree. That the cost of the survey will be borne equally by each party.
“4. That the 20' easement in question in this case is declared null and void.”

On appeal, the Hackmans challenge the findings that the fence marks the boundary line, that the Maunds obtained title to land north of the fence by adverse possession, and that the easement by grant is null and void.

The longstanding rule for reviewing boundary line cases was most recently stated by Mr. Justice Faulkner:

“When evidence is presented ore tenus and a trial court establishes a boundary between coterminous land owners, the decree is presumed correct and need only be supported by credible evidence in order to withstand appeal.”

Hayes v. Cotter, 439 So.2d 102 at 104 (Ala. 1983).

The witnesses called on behalf of the Maunds consistently testified that the fence on the south side of the field road marked the boundary line between the Maunds’ west forty and the Hackmans’ property. The witnesses agreed that the fence and road had never been moved from their present location. Mr. Willoford testified that he was the previous owner of the Maunds’ property and had owned all the land north of the fence. He stated that he had intended to, and did, sell to the Maunds this very same tract of land. Mr. Willoford and Mr. Maund testified that, during their respective periods of ownership, they had regularly performed maintenance work upon the field road and used it to reach the pasture in the back forty. Several witnesses, including Mr. Maund and Mr. Willoford, testified that the Hackmans’ predecessors had used the field road, but only upon the express permission of the Maunds or Willo-fords.

In total opposition, the Hackmans’ witnesses testified that the property line was on the north side of the road, giving title of the disputed area to the Hackmans. There was testimony that the fence, which the Maunds claim to be the southern boundary of their property, had actually been moved from its original position on the north side of the field road to the south side, and then to its present, most southern position. Furthermore, the Hackmans entered into evidence a survey performed at their request which established the line along the north side of the road. They also presented evidence that the Maunds had never performed maintenance work upon the road, and that all work was done by the Hackmans, their predecessors in title, and Geneva County road crews.

We have decided many eases similar to the present one. One case which is particularly compelling is Ray v. Stewart, 442 So.2d 5 (Ala.1983). This Court stated:

“It is understatement to assert as plaintiff did in her brief to this court, that most of the facts in this case were disputed by the parties and their witnesses at trial. There was considerable disagreement concerning not only the location, but also the existence of certain old fences along the boundary lines. This court recently addressed the nature of its review of a circuit court’s establishment of a boundary that was ardently disputed by the parties at trial in Evans v. Green, 411 So.2d 788 (Ala.1982). In that case we said:
“ ‘It is well settled that “[o]n appeal from a decree of the equity court establishing a boundary line between coterminous lands on evidence submitted ore tenus in open court, the decree of the lower court is presumed to be correct and in such case, the trial court’s conclusions of fact will not be disturbed unless palpably erroneous or manifestly unjust.” Jones v. Wise, 282 Ala. 707, 213 So.2d 914 (1968). The facts presented in the lower court are conflicting and contradictory. The trial judge had the opportunity to resolve the conflicting evidence by observing the demeanor of the witnesses as they gave their testimony and by examining the exhibits as they were presented.’
411 So.2d at 788.”

442 So.2d at 6.

We affirm the trial court’s finding that the Maunds had obtained title to the disputed strip, specifically, the land north of the fence which runs along the southern edge of the field road, by adverse possession. There is evidence that from 1953 to 1964, a period of more than ten years, the Maunds and their predecessors openly, adversely, exclusively, and continuously possessed the disputed area under color of title. Mardis v. Nichols, 393 So.2d 976 (Ala. 1981); Code 1975, § 6-5-200. Although the evidence is disputed, it does support the judgment. The judgment is not unjust or clearly erroneous.

Finally, we consider the finding that an easement, given in 1955, is now null and void. The grantors were the Willofords, predecessors in title to the Maunds, and the grantees were the Malones, then owners of the Hackman property. The easement states:

“[T]he said parties of the first part [grantors] ... do grant, bargain, sell and convey unto the said party of the second part [grantees], and unto their heirs and assigns, the use of and the right-of-way over 20 feet in breadth on the South part of the SEVi of the NEV-i, Section 23, Township 2, Range 24, of Geneva County, Alabama, being property on the North now owned by the parties of the second part, for the purpose of ingress and egress of said parties of the second part, their heirs, assigns, tenants, or the occupiers of the premises of the said parties of the second part in common with the parties of the first part, their heirs or assigns or persons holding under them.
“It is further agreed that the party of the second part shall have a right to build a dam on said property, providing the dam shall be of width to accommodate any vehicle, and if the parties of the second part do not comply with the matters and things set out herein, then this easement shall be null and void.”

The Hackmans argue that the document speaks for itself and clearly states that the easement is given “for the purpose of ingress and egress” to the Hackman property. Furthermore, they argue that the grantees had permission or a “right” to build a dam, but certainly were not required to do so as a condition for the continuation of the easement.

Mr. Willoford testified that his intent was to grant an easement to allow the Malones to build a dam of sufficient size and width to accommodate vehicular traffic. However, if the dam were not built at all, or to specification, the easement would be null and void. The purpose for the easement was not solely to give access to the Hackman property. Access to the Hackman property was otherwise provided by Dr. Steven Road. This is still true today. The evidence supports the trial court’s finding. The purpose for which the easement was given has lapsed and, by its terms, the easement is now void. Trustees of Howard College v. McNabb, 288 Ala. 564, 263 So.2d 664 (1972).

AFFIRMED.

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


author: ADAMS, Justice.

text:
    David JONES v. ALABAMA STATE DOCKS, et al. Jethro HATCHER v. ALABAMA STATE DOCKS, et al.
    82-572, 82-781.
    Supreme Court of Alabama.
    Dec. 22, 1983.

      Richard F. Pate and John R. Lockett of Pate & Peters, Mobile, for appellants.
    Alex T. Howard, Jr. and Steven T. Stine of Johnstone, Adams, May, Howard & Hill, Mobile, for appellees.
   ADAMS, Justice.

Suits were filed in the Circuit Court of Mobile County on behalf of David Jones on July 13, 1982, and on behalf of Jethro Hatcher on November 5, 1982. Alabama State Docks Department is named as a defendant in both suits, in which it is alleged that the Department negligently failed to provide appellants Jones and Hatcher with safe equipment to perform their work, that it negligently failed to inspect the grain elevators and equipment, that it failed to remedy unsafe conditions on its premises, and that it failed to warn appellants of unsafe and dangerous conditions on the premises. Both longshoremen sustained personal injuries in the course of loading ships berthed in the port of Mobile at the grain elevator of the State Docks.

The State Docks Department filed motions to dismiss in both cases, asserting that it was immune from suit under Article I, Section 14, of the Constitution of Alabama, 1901. The trial court granted the motion to dismiss in the Jones case, and entered a final judgment pursuant to Rule 54(b), A.R.Civ.P. Thereafter, following an initial denial, the trial court granted the motion to dismiss in the Hatcher case, and entered a final judgment.

Appellants filed timely notices of appeal, and also a motion to consolidate these cases on appeal. The motion was granted by this court.

The sole issue before this court is whether the trial court properly ruled that the State Docks Department is immune from suit for damages for personal injuries alleged to have resulted from the negligence of the department. We think that the department is immune from suit for such damages, and we affirm the judgment of the trial court.

Article I, Section 14, of the Constitution of Alabama, 1901, states:

That the State of Alabama shall never be made a defendant in any court of law or equity.

The immunity conferred by this section extends to the State Docks Department, even though “[i]t may be conceded that the state in engaging in such enterprise is performing a business or corporate power and not a governmental function.” State Docks Commission v. Barnes, 225 Ala. 403, 405, 143 So. 581, 582 (1932), cited in Hutchinson v. Board of Trustees of University of Alabama, 288 Ala. 20, 24, 256 So.2d 281, 284 (1972).

In the Barnes case, this court, having considered “the whole structure of the powers” of the State Docks Department, concluded that “no powers are conferred on [the department] except representative. The [department] only transacts the business as agent for the state, which itself is in that manner operating.” 225 Ala. at 406, 143 So. at 584. Appellants have not persuaded us that we may conclude differently. Consequently, a suit against the State Docks Department must be considered a suit against the state, which is prohibited by Art. I, § 14, Constitution of Alabama, 1901, unless it is of a kind recognized not to be within that prohibition. See Taylor v. Troy State University, 437 So.2d 472 (Ala.1983).

Appellants’ argument that a decision to except the State Docks Department from the cloak of state immunity is supported by the fact that the department is authorized to provide insurance “for the payment of damages on account of the injury to or death of persons,” Code 1975, § 33-1-25, is not persuasive. As the United States Court of Appeals for the Fifth Circuit has observed, “The entire statute is couched in permissive tones,” and “clearly contemplates limited insurance coverage.” Centraal Stikstof Verkoopkanter, N. V. v. Walsh Stevedoring Co., 380 F.2d 523, 533 (5th Cir.1967). The statute is not directory; it does not require the department to obtain coverage for all risks enumerated in it. Id. Moreover, the statute expressly provides that it should not be interpreted as sanctioning suit against the department:

Nothing herein shall be construed to authorize or permit the institution of any civil action or proceeding in any court against the department for or on account of any matters referred to in this section. ...

Code 1975, § 33-1-25. We think the inclusion of this language clearly necessitates our rejection of appellants’ strained interpretation of the statute.

We now address appellants’ argument that a narrow construction of Section 14, permitting actions for damages against the State Docks Department, is justified because of an apparent conflict with Article I, Section 13, of the Constitution of Alabama, 1901. We disagree with this contention. Section 13- “secures every citizen against arbitrary action of those in authority and places him (or her) within the protection of the law of the land ... [citation omitted].” McCollum v. Birmingham Post Co., 259 Ala. 88, 95, 65 So.2d 689, 695 (1953) (emphasis added). To an extent that is appropriate, this court has interpreted § 14 not inconsistently with such purpose. See Gunter v. Beasley, 414 So.2d 41 (Ala. 1982); Ex parte Carter, 395 So.2d 65 (Ala. 1980); Aland v. Graham, 287 Ala. 226, 250 So.2d 677 (1971). Nevertheless, we think appellants’ position constitutes an impermissible erosion of the “almost invincible” “wall” of the state’s immunity, as established “by the people through their Constitution.” Hutchinson v. Board of Trustees of University of Alabama, 288 Ala. at 24, 256 So.2d at 284.

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

AFFIRMED.

TORBERT, C.J., and FAULKNER, AL-MON and EMBRY, JJ., concur.

      . Formerly the Alabama State Docks Commission.

      .Significantly, the United States Court of Appeals for the Fifth Circuit has reached the same conclusion concerning the relationship of the state and the State Docks Department:
      The question of whether or not Docks is a distinct separate legal entity from the state must be determined by state law_ [Citations omitted.] The Alabama Supreme Court in State Docks Commission v. Barnes, 1932, 225 Ala. 403, 143 So. 581, determined that the Docks Commission was not a separate entity from the state. A careful study of the enabling legislation creating the Alabama State Docks Department ... reveals the basis for the Alabama court’s holding. The statute allows the Docks department to develop harbor facilities in the name of the State, title to all property vests in the State of Alabama; suit is to be brought in the name of the state. [Citation omitted.] This incomplete but adequately illustrative summary of the statutory language makes it clear that the Docks is a mere alter ego of the state.

        Centraal Stikstof Verkoopkantoor, N. V. v. Alabama State Docks Dept., 415 F.2d 452, 457 (5th Cir.1969). (Emphasis in last sentence added; other emphasis in original.)

      . Appellants do not argue that their actions against the State Docks Department fall within any recognized exception to the State’s immunity. Rather, they urge this court to overrule State Docks Commission v. Barnes, and to create a new exception based on the State’s involvement in a business or corporate endeavor. We reject this one factor analysis now, just as this court did in State Docks Commission v. Barnes, 225 Ala. at 406, 143 So. at 584, and in Hutchinson v. Board of Trustees of University of Alabama, 288 Ala. at 24, 256 So.2d at 284.

      . Section 13 states:
      That all courts shall be open; and that every person, for any injury done him, in his lands, goods, person, or reputation, shall have a remedy by due process of law; and right and justice shall be administered without sale, denial, or delay.


text:
    Sharlotte PICKRON, as Administratrix of the Estate of Michael Bailey, etc. v. STATE of Alabama, ex rel. P.M. JOHNSTON as District Attorney.
    82-638.
    Supreme Court of Alabama.
    Dec. 22, 1983.

      C. Burton Dunn and J. Mark White, Birmingham, for appellant.
    Charles A. Graddick, Atty. Gen., and Thomas R. Allison, Asst. Atty. Gen., for appellee.
   PER CURIAM.

This is an appeal from a lower court judgment condemning and forfeiting one 1981 Dodge pickup truck and $11,419.49 in U.S. currency. We reverse and remand.

FACTS:

On June 13, 1982, Michael Wayne Bailey was arrested pursuant to two outstanding arrest warrants. One warrant charged Bailey with third degree burglary; the other charged him with criminal mischief. Bailey was arrested by Pickens County Deputy Sheriff Allen Sexton between Bailey’s ex-wife’s house trailer and his 1981 Dodge pickup truck.

After procuring the truck keys from Bailey, Deputy Sexton locked the truck and transported Bailey to the jail in Carrollton. Sexton then returned to the scene and moved the truck to Reform City Hall, where he secured it.

The next day, Deputy Sexton and Officer Joe Walden of the Reform Police Department conducted a warrantless search of the vehicle and inventoried the contents. Among other items in the truck, they found one gram total weight of marijuana and a “trace” amount of cocaine. Additionally, the officers found a paper sack containing $10,000 in various denominations of bills. Bailey also had $1180 in his pocket and $239.49 in a Crown Royal whiskey bottle underneath the driver’s seat.

On June 15, 1982, pursuant to Code 1975, § 20-2-93, the State filed a petition seeking to condemn Bailey’s truck and the $11,-419.49. On July 3, while on bond, Bailey was killed in a motorcycle accident in Florida. Sharlotte Pickron, appointed as admin-istratrix of the Bailey estate in Florida, was substituted as the party defendant in the condemnation proceedings, which were heard by the court ore tenus on December 21, 1982. On February 15, 1983, the court ordered the 1981 Dodge pickup truck and the $11,419.49 forfeited to the State of Alabama. The truck was subsequently sold at public auction for $5,000. This sum is being held, along with the $11,419.49, by the Circuit Clerk of Pickens County pending this appeal by the administratrix.

DECISION

The pertinent portions of § 20-2-93 provide:

“(a) The following are subject to forfeiture:
“(4) Lawful currency (money) of the United States of America seized:
“a. On or within any conveyance, including aircraft, vehicles or vessels, when the same are being used or intended for use to transport or in any manner to facilitate the transportation for the purpose of sale or receipt of property described in subdivisions (1) or (2) of this subsection;
“... provided, however, that:
“1. No lawful currency (money) of the United States of America shall be condemned and forfeited, wherever seized, except by an affirmative finding by the trier of fact, either the court or jury as the case might be, to the following interrogatory — ‘The (court) (jury) is reasonably satisfied from the evidence and inferences attendant thereto that the money in issue was used, or intended for use, in a transaction which would be a violation of the Alabama Controlled Substances Act.
“(5) All conveyances, including aircraft, vehicles or vessels, which are used or intended for use to transport or in any manner to facilitate the transportation for the purpose of sale or receipt of property described in subdivisions (1) or (2) of this subsection; .... ” (Emphasis supplied.)

Subdivision (1) refers to controlled substances, which include marijuana and cocaine.

The parties disagree as to the standard of proof required under § 20-2-93. Appellant contends the burden is preponderance of the evidence, while the State submits the statute calls for reasonable satisfaction. While we agree with the State that the standard of proof required under § 20-2-93 is reasonable satisfaction, we do not find any evidence to support the finding made by the trial court.

The State must establish a prima facie case for the seizure, condemnation, and forfeiture of property under § 20-2-93. Singleton v. State, 396 So.2d 1050, 1053 (Ala.1981). After the prima facie case is established, it is incumbent upon any claimants to show that they had no knowledge or notice of the intended illegal use and could not have obtained knowledge by reasonable diligence. Singleton, supra, at 1053. We need not address the knowledge issue, for we do not find that the state established a prima facie case.

The search of the vehicle in question revealed the presence of .3 gram of marijuana found in the glove compartment of the truck. This amount was not in any kind of container inside the glove compartment, but, instead, had to be “raked out” and placed in a plastic bag in order to be weighed and analyzed. Additionally, .7 gram of marijuana was found in a black shoulder bag behind the front seat. This amount, too, was transferred to a plastic bag to be weighed and analyzed.

A vial found in the Crown Royal bottle was found to contain a small amount of cocaine. The amount in the vial was described as “residue” or a “trace amount” and was insufficient for weighing.

Bailey’s ex-wife testified, over objection, that she “believed” that Bailey was involved in selling drugs. She based this belief on the fact that Bailey himself took drugs and always had large amounts of cash on hand. She further testified, however, that Bailey, in the operation of his logging business, dealt primarily on a cash basis.

It should be noted that Appellant contends that the trial court erred in allowing hearsay testimony to prove an ultimate issue of fact. The testimony to which Appellant refers is that of Earl Walden, an agent for the Department of Public Safety. In response to questions by the District Attorney, Mr. Walden testified as follows:

“Q Did you work a ease in Pickens County involving a defendant by the name of Michael Wayne Bailey?
“A Yes, sir.
“Q And how were you approached about participating in the investigation of that case?
“A Chief Deputy McBride called me on June the 13th in the afternoon hours and informed me that—
“MR. BLOCKER: Object to what the chief told him, Judge. That would be hearsay. He’s about to testify as to what Chief Bailey [sic] told him on June the 13th.
“THE COURT: It depends on what he talked about. If it goes to prove guilt or innocence of anyone—
“MR. JOHNSTON: I’m asking him how he got in the case basically.
“THE COURT: Overruled.
“A. Chief Deputy McBride called me Sunday afternoon and advised me that they had arrested a subject in Reform, Alabama, and that he believed this subject was involved, heavily involved, in drug activities, and gave me the subject’s name and his date of birth, and asked me to check him through our system to see if there was any information to back that up, which I did. And I told him that I would meet him the next day, which would have been the 14th, a Monday, over here and assist him in working the case.”

This testimony was introduced for a limited purpose — that of establishing the manner by which Walden became involved in the ease. Because the trial court’s order does not specify which evidence it considered in making its decision, we must assume it considered Walden’s testimony only for the limited purpose for which it was admitted. Thus, the presence of illegal drugs, the presence of a large amount of cash, and Bailey’s ex-wife’s testimony, comprise the only evidence from which the trial court was “reasonably satisfied” that the truck and currency were “used or intended for use to transport ... for the purpose of sale or receipt [of controlled substances].” We find that the evidence of record does not furnish a reasonable basis for the conclusion reached by the trial judge.

The trial court’s findings in this case were as follows:

“The Court finds that the 1981 Dodge pickup, at the time of its seizure by the State of Alabama, was being used, or was intended for use, to transport marijuana. The Court further is reasonably satisfied from the evidence and inferences attendant thereto that the money in issue was used, or intended for use in a transaction which would be a violation of the Alabama Controlled Substances Act.”

The trial court seems to have overlooked the fact that the statute calls not just for a finding that the truck was used to transport marijuana, but that it was used, or intended for use, to transport a controlled substance for the purpose of sale or receipt.

The evidence was uncontroverted that the $10,000 in cash was the result of a loan negotiated between Max Jones and Bailey three days prior to Bailey’s arrest. The truck was purportedly the collateral for said loan and the lender had, in his possession, the title certificate endorsed by the deceased as evidence of the loan. Bailey’s ex-wife corroborated this evidence, because Bailey had told her of it while he was in jail.

We find it unreasonable to conclude that one gram of marijuana (unpackaged and scattered throughout the vehicle) and a “trace” amount of cocaine (too small to be weighed) could be intended for sale. While it may be arguable that the $10,000 could have been the result of such a sale, there was no evidence to support that conclusion. On the contrary, uncontested, corroborated testimony supported the existence of a legitimate business loan made three days before the seizure. The only possible offense chargeable and sustainable under this proof is that of possession of a controlled substance.

In Reeder v. State ex rel. Myers, 294 Ala. 260, 314 So.2d 853 (1975), the State sought to condemn an automobile in which police officers found .001 gram of marijuana. This Court found that mere possession of a controlled substance did not constitute “sale or receipt” within the meaning of the forfeiture section. The Court stated:

“We conclude that the word, ‘receipt,’ as used in this statute means receiving for the purpose of sale or in some way to facilitate the sale of drugs. It does not mean possession merely. Statutes which authorize condemnation and forfeiture of property are highly penal in nature and must be strictly construed. Smithson v. Handley, 206 Ala. 353, 91 So. 447 (1921); Emerson v. State, 241 Ala. 383, 4 So.2d 186 (1941); Armstrong v. State ex rel. Embry, 248 Ala. 124, 26 So.2d 874 (1946); Satterfield v. Satterfield, 250 Ala. 245, 34 So.2d 4 (1948).” 294 Ala. at 265, 314 So.2d at 857.

The Court in Reeder determined that the evidence in that case showed no more than possession and that the State had failed to meet its burden of proof. Although the statute allowing forfeiture of currency was enacted after Reeder, Reeder ’s rationale is still applicable.

While we cannot overturn a trial court’s ore tenus findings of fact if there is any evidence, or reasonable inference therefrom, to support those findings, where there is no supportive evidence, as here, we are compelled to reverse the judgment based thereon. Because the trial court’s findings are plainly erroneous, being without reasonable evidentiary support, we have no alternative but to reverse the judgment of forfeiture and remand this cause for an order consistent with this opinion. Chism v. Hicks, 423 So.2d 143 (Ala.1982).

REVERSED AND REMANDED.

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


text:
    Bill SANDERS v. LIBERTY NATIONAL LIFE INSURANCE COMPANY.
    82-643.
    Supreme Court of Alabama.
    Dec. 22, 1983.

      Richard W. Whittaker of Pittman, Whit-taker & Pittman, Enterprise, and Henry F. Lee, III, of Kelly, Knowles & Lee, Geneva, for appellant.
    Charles D. Stewart, William N. Ray, and Kenneth T. Fuller of Spain, Gillon, Riley, Tate & Etheredge, Birmingham, for appel-lee.
   ADAMS, Justice.

Bill Sanders, plaintiff below, appeals from adverse rulings on all five counts of his complaint against Liberty National Life Insurance Company, his former employer. The Circuit Court of Coffee County granted Liberty National’s motion to dismiss Count I, which alleged breach of an oral contract of employment. The court held that the alleged contract, which was not to be performed within one year, violated the Statute of Frauds of Florida, where the contract was made. The court also transferred the remaining four counts, of which II through IV alleged fraud and Y alleged bad faith, to the Circuit Court of Geneva County. That court granted summary judgment on these remaining counts, holding that they were barred by Alabama’s one-year statute of limitations.

The facts of this case are as follows:

Sanders was an employee of Liberty National Life Insurance Company from February 14, 1968, to June 9, 1980. He was first employed as an agent in the Pinellas District of Liberty in Clearwater, Florida. In February 1971, he was promoted to sales manager in that district.

Sanders contends that Liberty National, in 1976, represented to him that if he would move himself and his family to California, and there remain for two and one-half years, Liberty National would return him to the “East Coast” in a position as district manager. Liberty National asserts that Sanders requested a transfer to California. In any event, Sanders did transfer to Glendale, California, early in 1976.

In November 1978, Sanders requested to be transferred back to the “East Coast” as a district manager. In December 1978, Liberty informed him that he could only be transferred back to the “East Coast” as a sales manager. Thereafter, Sanders requested a transfer to Montgomery, Alabama, as a sales manager.

After working as a sales manager in Montgomery for five months, Sanders requested a transfer to the Enterprise District of Liberty National as an agent. He was transferred effective July 2, 1979. After working in the Enterprise District for less than one year, Sanders resigned from Liberty National.

Sanders filed a five-count complaint against Liberty National on June 22, 1981. Count I of that complaint alleged breach of an oral agreement between Sanders and Liberty National that if he would transfer from Florida to California, and remain there for at least two years, that Liberty would transfer him to the “East Coast” as a district manager. Counts II-V alleged that Liberty National procured Sanders’s agreement to work in California for two years by making representations fraudulently and in bad faith. Additionally, the complaint alleged that Sanders had fully performed his obligations under the agreement with Liberty National.

Sanders raises the following issues on appeal:

1. Whether the trial court erred in construing the Florida Statute of Frauds as barring an action on an oral contract of employment for more than one year, which allegedly was fully performed by the employee?
2. Whether the trial court properly applied Alabama’s one-year statute of limitations to a cause of action based on Florida’s substantive law of fraud?

Although we agree with the trial court that Alabama’s one-year statute of limitations is applicable in this case, we do not believe that Florida’s Statute of Frauds bars an action on an oral contract of employment for more than one year, which allegedly was fully performed by the employee. The judgment of the trial court is reversed.

The Fourth District Court of Appeals of Florida has directly addressed the first issue raised by Sanders. That court, in reversing a judgment dismissing plaintiff’s complaint for damages for breach of an oral employment contract for two years and for quantum meruit respectively, said:

The sole issue before this court is whether complete performance by an employee of an oral contract of employment, which by its very terms cannot be performed within one year, removes the otherwise barred contract from the operation of the statute of frauds. We hold in the affirmative. See Venditti-Siravo v. City of Hollywood, 418 So.2d 1251 (Fla. 4th D.C.A.1982); Gerry v. Antonio, 409 So.2d 1181 (Fla. 4th D.C.A.1982); W.B.D. Inc. v. Howard Johnson, Co., 382 So.2d 1323 (Fla. 1st D.C.A.1980).

Hiatt v. Vaughn, 430 So.2d 597, 598 (Fla. Dist.Ct.App.1983). The court aptly noted that its decision “comports with the generally accepted and better reasoned view throughout the United States.” Id., citing 73 Am.Jur.2d Statute of Frauds, §§ 533, 534 (1974). On the basis of this authority, we conclude that the trial court’s dismissal of Sanders’s count for breach of contract, which included the allegation of full performance of his duties under the contract, was error. Sanders is entitled to an opportunity to prove the terms of his agreement with Liberty National, and the extent of his performance under that agreement.

In reaching our conclusion concerning Sanders’s count for breach of contract, we reject application of several decisions of the Florida appellate courts that have been cited to us by Liberty National. The case of Food Fair Stores, Inc. v. Vanguard Investments Company, Ltd., 298 So.2d 515 (Fla.Dist.Ct.App.1974), is inapposite because full performance of the contract in question was deemed impossible by the court. Likewise, the case of Tobin & Tobin Insurance Agency, Inc. v. Zeskind, 315 So.2d 518 (Fla.Dist.Ct.App.1975), is inapplicable because the court was clearly of the opinion that the plaintiff had not fully performed its continuing obligation under the contract. 315 So.2d at 519 n. 1, 520 n. 2. In addition, the eases of Ostman v. Lawn, 305 So.2d 871 (Fla.Dist.Ct.App. 1974), and Tanenbaum v. Biscayne Osteopathic Hospital, Inc., 190 So.2d 777 (Fla. 1966), provide no guidance for the decision of the case sub judice because the opinions in those cases contain no discussion of the effect of one party’s full performance of its obligations under an oral contract not to be performed within one year.

We also find the majority opinion in Rowland v. Ewell, 174 So.2d 78 (Fla.Dist.Ct.App.1965), to be of little authoritative value in the determination of the issue under consideration. The majority of the Rowland court regarded the plaintiff’s conduct under the doctrine of part performance, not full performance, and noted:

“In accordance with the general rule ... it has been held or recognized that the part-performance of an oral contract for employment not to be performed within a year did not take the contract out of the statutes of fraud.”

174 So.2d at 80, quoting Annot., 6 A.L.R.2d 1053, 1074 (1949). In contrast, we must consider the effect of Sanders’s allegation of full performance of his obligations under the agreement with Liberty National, about which the same annotation cited by the majority in Rowland says:

It has been generally, though not universally, held or recognized that complete performance by one party of an oral contract not to be performed within a year takes the contract out of the Statute of Frauds.

Annot., 6 A.L.R.2d 1053, 1111 cited in Hiatt v. Vaughn, 430 So.2d at 598; Rowland v. Ewell, 174 So.2d at 81 (dissenting, Justice, J.). Consideration of this authority further supports our conclusion that Sanders should be permitted to pursue his breach of contract claim against Liberty.

We now address Sanders’s argument that Florida’s four-year statute of limitations, rather than Alabama's one-year statute of limitations, should have been applied to his fraud counts by the trial court. Sanders concedes that those counts are barred by the Alabama statute if it is found to be applicable.

Alabama courts will only apply another state’s statute of limitations when it is demonstrated that “the limitation is so inextricably bound up in the statute creating the right that it is deemed a portion of the substantive right itself.” Department of Revenue v. Lindsey, 343 So.2d 535, 537 (Ala.Civ.App.1977). In other words, the limitation must be found to be a part of the “public policy” of the other state. See Bodnar v. Piper Aircraft Corp., 392 So.2d 1161, 1163 (Ala.1980). Sanders has failed to show this court that such is true of the Florida statute of limitations applicable to fraud. Consequently, Alabama’s one-year statute of limitations was properly applied by the trial court, and Sanders’s fraud counts are barred in the courts of this state.

For the foregoing reasons, we reverse the judgment of the trial court as to Count I of plaintiff’s complaint, affirm as to the other counts, and remand the case for proceedings consistent with this opinion.

AFFIRMED IN PART; REVERSED IN PART; AND REMANDED.

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

TORBERT, C.J., recused.

      . Florida’s Statute of Frauds, Fla.Stat. § 725.01 (1979), states: "No action shall be brought ... unless the agreement or promise upon which such action shall be brought, or some note or memorandum thereof shall be in writing and signed by the party to be charged therewith or by some other person by him thereunto lawfully authorized.” The language of the statute differs markedly from the Alabama Statute of Frauds, § 8-9-2, Code 1975, which we do not construe here.


text:
    Alan H. BELCHER v. VERSATILE FARM EQUIPMENT COMPANY, et al. INTERNATIONAL HARVESTER CREDIT CORPORATION v. DIEL & THOMPSON, INC.
    82-798, 82-838.
    Supreme Court of Alabama.
    Dec. 22, 1983.

      M. Wayne Wheeler, Birmingham, for appellant Alan H. Belcher (82-798).
    John S. Civils, Jr. of Huie, Fernambucq & Stewart, Birmingham, for appellant International Harvester Credit Corp. (82-838).
    Steven F. Casey of Balch, Bingham, Baker, Ward, Smith, Bowman & Thagard, Birmingham, for appellee Versatile Farm Equip. Co. (82-798).
    Robert M. Echols, Jr., Birmingham, for appellee Diel & Thompson, Inc. (82-838).
   SHORES, Justice.

Belcher, the plaintiff below, appeals from a judgment in favor of the defendants, Versatile Farm Equipment Company (Versatile), Clanton Traetor Company (Clanton), and International Harvester Credit Corporation (IHCC). We affirm.

Belcher filed a complaint for declaratory judgment and rescission of a contract for the sale of a tractor against the above-named defendants and Diel & Thompson, Inc., a dealer in Versatile equipment. Diel & Thompson was dismissed for lack of jurisdiction. IHCC appeals from the order dismissing Diel & Thompson. The appeals by Belcher and IHCC were consolidated. Following a judgment for defendants, Belcher filed a motion for new trial and/or motion for judgment notwithstanding the verdict and a motion for clarification. The trial court denied both motions. A motion to enter a judgment in a sum certain or, in the alternative, motion to amend judgment was filed by IHCC. This motion was granted, and a money judgment in the amount of $30,559.98 was rendered against Belcher.

In 1980, Belcher purchased a Versatile 150 tractor from Clanton Tractor Company. Clanton procured this tractor for Belcher from Diel & Thompson, Inc., of Toledo, Illinois, the nearest Versatile dealer with a 150 model. IHCC financed the sale from Clanton to Belcher, and Belcher assigned a security interets to IHCC. Clanton assigned and transferred to IHCC the contract with Belcher. Belcher has made no payments toward this debt.

Soon after delivery of the Versatile 150, according to Belcher, problems with the machine began. These included the breaking of the spindles, a loud noise in the power take-off, a leak in the hydraulic system, damaged O-rings in the hydrostatic system, several solenoid burn-outs, and various problems with the battery.

The tractor was accompanied by Versatile’s limited warranty included in the owner’s manual. The exclusive remedy for breach of the Versatile warranty was the repair and replacement of defective parts. The warranty also contained a caveat that the alteration or addition of equipment not approved by Versatile for installation on Versatile equipment would avoid the warranty. Clanton was authorized by Diel & Thompson to perform warranty repair work on the tractor.

The tractor was taken to Clanton four times for warranty-covered repair work. Each time, a spindle was repaired and, in addition, on one occasion, the hydraulic system was repaired and, on another, the faulty solenoid was repaired. Each time, Clanton performed the necessary repair work and submitted repair reports/claims to Diel & Thompson. Diel & Thompson, in turn, forwarded warranty claim forms to Veratile for credit. Each time the tractor was taken to Clanton, it was repaired and left the shop operating properly. A few smaller problems were taken care of at the Belcher farm.

The fifth and last time the tractor broke down, Belcher refused to take it to Clanton for repairs. He continued to operate the tractor until the front and rear spindles broke. The tractor was in this condition at the time of trial.

Belcher brought suit against the defendants, seeking rescission of the contract for the sale of the tractor, alleging breach of warranty by Versatile and substantial impairment of the value of the tractor. As indicated, after hearing all the evidence, the trial court rendered a judgment in favor of the defendants and awarded IHCC $30,559.98.

Belcher alleges on appeal that the trial court erred by disregarding facts in evidence and by misapplication of the law of warranty. Belcher also alleges error on the part of the trial court in sustaining certain objections made during Belcher’s cross-examination of Versatile’s expert witness.

The Alabama Code clearly allows a seller to limit his warranty. Ala. Code 1975, § 7-2-316. The Versatile warranty was limited to the repair and replacement of defective or nonconforming parts and was structured in accordance with § 7-2-316. This section provides that express warranties may be limited by putting the limitations in writing, by using the word “merchantability,” and by making the writing conspicuous. The Versatile warranty was prominently displayed on the inside cover of the owner’s manual opposite the table of contents.

This Court has held that a contractual limitation of damages will not be allowed where the circumstances cause an exclusive or limited remedy to fail of its essential purpose or where to allow such limitation or exclusion would be unconscionable. Volkswagen of America, Inc. v. Harrell, 431 So.2d 156 (Ala.1983). We have also held that, if a jury finds that the limited warranty has “failed of its essential purpose,” it may then award damages under the general remedy provisions of the Uniform Commercial Code. Winchester v. McCulloch Brothers Garage, 388 So.2d 927, 928 (Ala.1980). The facts in the present case do not warrant the application of either of these conclusions.

The record also reveals that Versatile honored this warranty, and that each time the tractor was taken to Clanton for repairs, it was repaired, defective parts were replaced, and the tractor was returned to good working order. Efforts to “make right” the tractor by repairing it were not stopped until Belcher himself refused to bring the tractor to Clanton for repairs.

In addition, the warranty warns that the alteration or the addition of equipment not manufactured for installation on Versatile equipment, without the prior approval of Versatile, will void the warranty. Belcher made several unauthorized alterations to the tractor. He welded brackets on the buckets of the front end loader and periodically installed forks in the brackets for moving rolls of hay. In order to counterbalance the tractor when hay was on the forks, Belcher placed additional weight, to-talling approximately 400 pounds (200 pounds on each side), on the rear of the tractor. Additionally, Belcher put water in the tires of the tractor. Versatile authorized the placing of up to a total of 80Ó pounds of “ballast,” normally water, in the rear tires only. The record indicated that if the tires were filled with water, each one would weigh from 700 pounds to 1,000 pounds. It is not clear how much water Belcher put into each tire, but from the evidence the trial court found that water was put into all four tires, not just the rear ones.

These alterations were made without the consent or knowledge of Versatile and clearly violated the warranty. The record shows that prior to the time of the purchase of the tractor, 'Belcher had a copy of the owner’s manual, which contained the warranty, and had ample opportunity to read that warranty. He disregarded the terms of the warranty, however, and made the alterations.

Versatile’s expert witness credited the repeated failure of the spindles to improper maintenance of the tractor, in particular, the drop-box assembly. An examination of the tractor and the spindles themselves showed scarring, or abnormal wearing at the breaking point, which can be attributed to the vibrations and undulations of a loose drop-box. Belcher testified that the nuts on the drop-box bolts were tightened by someone’s putting a pipe on the wrench and pulling as hard as he could, even though the owner’s manual provided instructions and a specific torque for those nuts. The Versatile expert stated that the procedure Belcher employed could stretch the threads on the bolts and cause them to loosen. Any improper movement of the faces or plates in the drop-box or any flexing of the spindles could cause the type of damage that led to the failure of the spindle. Additionally, the expert testified that the solenoid malfunction was caused by improper adjustment.

This Court will not disturb a decision of a trial judge unless the evidence is insufficient to support it or the decision is plainly erroneous, palpably wrong, and manifestly unjust. Chism v. Hicks, 423 So.2d 143 (Ala.1982). A presumption of correctness is accorded the trial judge’s finding on disputed evidence. Silverman v. Charmac, Inc., 414 So.2d 892 (Ala.1982). Considering the record in light of this rule of review, we cannot say that the trial judge’s decision was unsupported by credible evidence, or that it was plainly erroneous and manifestly unjust.

The trial court visually inspected the tractor, and portions of the examinations of Belcher and Versatile’s expert witness were conducted at the scene. Where such an inspection has taken place, there is an even greater presumption of correctness in favor of the trial court’s ruling. Town of Helena v. Country Mobile Homes, Inc., 387 So.2d 162 (Ala.1980).

Belcher also alleges that the trial court committed error by sustaining certain objections made during his cross examination of Versatile’s expert witness. During this cross examination, Belcher attempted through the use of hypothetical questions to elicit certain testimony.

The first question to which Belcher addresses himself involves speculation on the part of the witness. Belcher’s attorney was attempting to lead the witness through a series of speculative questions regarding potential repairs he would make of bolts on drop-boxes if recommended repair and maintenance work did not solve the problem. The specific question to which objection was sustained involved that the witness would suggest if a locking tab and the substance Locktite did not keep certain bolts from vibrating loose. There was no evidence that a locking tab or Locktite had ever been used on any of the drop-box bolts by Belcher and, hence, the question was entirely speculative and was not based on any facts in evidence. As noted by C. Gamble, McElroy’s Alabama Evidence § 136.01 (3d ed. 1977):

“The trial court has the discretion reasonably to limit the range of cross-examination in respect to collateral and irrelevant matters or with respect to matters that unnecessarily consume time in the trial of the case. It has been said, in regard to the trial court’s right to limit cross-examination, that a trial is not meant to be an eternal phenomenon.”

The next two questions asked of the witness by Belcher’s attorney, to which objections were sustained, also involved a hypothetical question, one based on the premise that the tractor was inoperable for 60% of the year. Hypothetical questions must be based upon facts which have been introduced into evidence or which will be placed into evidence at a later time during the trial. C. Gamble, McElroy’s Alabama Evidence § 130.01 (3d ed. 1977). The objections made by defense counsel to Belcher’s question regarding the figure of 60% downtime was based on the fact that there was no testimony setting up the figure of 60% as a period of time in which the tractor was inoperable.

The final question objected to by defense counsel was a similar hypothetical in which Belcher’s attorney injected the phrase “more than half the time” as the time in which the tractor was inoperable, as opposed to the 60% figure used earlier.

The trial court sustained timely objections to those questions. We agree with the trial judge’s ruling.

The judgment of the trial court is due to be, and it hereby is, affirmed. Because we affirm the trial court’s judgment, the issues presented in the appeal by IHCC become moot.

AFFIRMED.

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

      . Various cross-claims and counterclaims were filed by the defendants, none of which are relevant to these appeals.

      . The final judgment of the trial court reads in pertinent part:
      "Belcher has breached the terms of his agreement with IHCC to pay for the Tractor. IHCC may therefore proceed to enforce the terms of its agreement, including without limitation the acceleration of the payment of the indebtedness, the taking of possession of the Tractor, and having it repaired and sold. Any surplus received from a sale shall be returned to Belcher and he shall be liable to IHCC for any deficiency. IHCC may also proceed against Clanton Tractor in accordance with the terms of the sales contract.
      "... To the extent that Clanton Tractor may become liability to IHCC, Clanton Tractor may proceed against Belcher. Clanton Tractor may assert any of the rights or remedies it has under the sales contract.”


author: BEATTY, Justice.

text:
    Donald G. DOUGLASS and Alice C. Douglass, et al. v. CAPITAL CITY CHURCH OF the NAZARENE, a non-profit corporation.
    82-799.
    Supreme Court of Alabama.
    Dec. 22, 1983.
    Coleman Yarbrough and John T. Alley, Jr. of Jones, Murray, Stewart & Yar-brough, Montgomery, for appellants.
    J. Richard Piel and Horace N. Lynn, Montgomery, for appellee.
   BEATTY, Justice.

This is an appeal from an order of the trial court denying plaintiffs’ motion for relief under Rule 60(b), Alabama Rules of Civil Procedure. We affirm.

On April 23, 1981, plaintiffs filed their complaint seeking injunctive relief to prevent the defendant, Capital City Church of the Nazarene, from building church facilities on a certain lot located within Green Acres subdivision. Plaintiffs’ complaint alleged the existence of certain protective covenants, and quoted from them:

“These covenants are to run with the land and shall be binding on all parties and all persons claiming under them for a period of 25 years from the date of the recording of this plat, after which time said covenants shall be automatically extended for successive period[s] of ten (10) years unless an instrument signed by a majority of the then owners of the lots has been recorded agreeing to change said covenants in whole or in part....
“1. No lot shall be used except for residential purposes.... ”

Plaintiffs’ complaint also alleged:

“Defendant is attempting to build a church building, gymnasium and parsonage on Lot 1 in violation of the ... protective covenants.”

Proximate injury was also alleged.

Defendant filed its motion to dismiss the claim, accompanied by the affidavit of Charles Martin, pastor of the defendant church, who stated the following:

“Prior to the filing of the Complaint in the Circuit Court of Montgomery County, Alabama, ... my Church caused to be filed in the Office of the Judge of Probate of Montgomery County, Alabama, Petitions signed by a majority of the property owners in Green Acres Plat No. 1, ... wherein they agreed to permit a church building on Lot No. 1 of said Plat....”

The record contains a list of 53 names of alleged property owners who consented to the construction of the church building.

In opposition to the defendant's motion to dismiss, the plaintiffs, on July 10, 1981, filed the affidavit of Coleman Yarbrough, attorney for the plaintiffs, who averred that the probate records reflected that:

“1. The restrictive covenants as set out in the verified complaint herein were adopted and filed of record June 6, 1955, in the aforesaid Probate office....
“2. The ‘Petitions signed by a majority of property owners in Green Acres Plat No. 1’ were filed of record in the aforesaid Probate Office on August 19, 1980....
“3. ... a number of persons signing the aforesaid Petitions have requested that their signatures be removed as is shown by Exhibit ‘A’ hereto.”

To this affidavit was attached a list containing 21 names, allegedly of persons who had signed the petition giving permission to build the church building but who now expressed the desire that their signatures “be removed” from that petition “because of misunderstanding of the facts, or a misrepresentation.”

On July 30, 1981, after a hearing, the trial court entered an order which granted the defendant’s motion to dismiss:

“The motion to dismiss for failure to state a claim, supported by affidavit, filed by the defendant, Capital City Church of the Nazarene, has been submitted to the court for determination. The question before the court concerns whether Capital City Church of the Nazarene has met the requirements for changing a restrictive covenant on the property described as lot number 1, Green Acres, Plat # 1, in the West one half of sections 23 and 26, township 16 north, Range 18 East, as the same appears of record in the office of the Judge of Probate of Montgomery County, Alabama, in Plat Book 13, at page 163.
“This court has reviewed the court record in this case and in Capital City Church of the Nazarene, et al. vs. Douglass, et al., Civil Action Number CV 78-1320-H, wherein Capital City Church of the Nazarene unsuccessfully sought to relieve the aforementioned restrictive covenant. This court treats the record in Civil Action Number CV 78-1320-H as part of the record in this case. This court concludes from its review of the records in this case and in Civil Action Number 78-1320-H that Capital City Church of the Nazarene has now conformed to every criterion and every step required to change the restrictions referred to in the Plaintiffs complaint. The affidavit of Reverend Charles Martin establishes that prior to the filing of the complaint in this case, Capital City Church of the Nazarene caused to be filed in the Office of the Judge of Probate of Montgomery County, Alabama, petitions signed by a majority of the property owners of Green Acres Plat # 1 as recorded in the Office of the Judge of Probate, Montgomery County, Alabama, Plat Book 13, page 163, wherein they agreed to permit a church building on lot number 1 of said Plat. The Petitions appear in the Office of the Judge of Probate, Montgomery County, Alabama, in Book 495, on pages 903 through 916, and Book 497, page 291.
“In accordance with the foregoing opinion, the motion to dismiss for failure to state a claim, supported by affidavit, filed by Defendant Capital City Church of the Nazarene is hereby granted.
“Costs of this proceeding are hereby taxed against Plaintiff.
“DONE this the 30th day of July, 1981.
“/s/Perry 0. Hooper
“Circuit Judge”

Later, on November 9, 1982, plaintiffs, pursuant to Rule 60(b), A.R.Civ.P., filed a motion for relief from that order, alleging the following grounds:

(1) That plaintiffs’ counsel did not receive a copy of the order until November 1, 1982, “when counsel went to the office of the Circuit Court of Montgomery County, Alabama, to obtain same after being informed by said clerk that such Order had been entered.”

(2) That the order was not a final order which could be appealed because “it fails to state that anything is ordered, adjudged, or decreed.”

(3) That the order was contrary to law and the weight of the evidence because the petitions from the majority of the property owners were filed more than 25 years after the restrictive covenants were filed.

(4) That the order was contrary to law and the weight of the evidence because a significant number of those property owners withdrew their support of those petitions, and thus a majority of the property owners did not consent to the changes in the restrictive covenants.

Accompanying' this Rule 60(b) motion was an affidavit by plaintiffs’ attorney, in which he stated:

“I did not receive the Order entered in said cause granting Defendant’s Motion to Dismiss, and did not know it had been entered, until my associate ... picked up said Order at the Circuit Clerk’s office on November 1, 1982.”

Following a hearing on this motion on February 4, 1983, the plaintiff’s motion for relief was denied on April 1,1983, and from the denial of that relief this appeal ensued.

The plaintiff poses several issues for our review. The first of these is whether or not the order of July 30, 1981, quoted above, is a final order. With deference to able counsel for plaintiffs, this issue may not be considered under a Rule 60(b) motion for relief. As Rule 60(b) itself recites, “[A] motion under this subdivision does not affect the finality of a judgment or suspend its operation.” Moreover, the only matter reviewable on appeal in this instance is the order of the denial itself. Thus, neither the merits nor the correctness of the underlying judgment nor matters properly brought on appeal may be examined in this review. We are limited solely to determining whether the trial court abused its discretion in denying 60(b) relief. Maddox v. Druid City Hospital Board, 357 So.2d 974 (Ala.1978); City of Daphne v. Caffey, 410 So.2d 8 (Ala.1981). This position also prevents review of plaintiffs’ second issue, i.e., whether the trial court erred in granting defendant’s motion to dismiss. In their brief, plaintiffs argue the evidence of the restrictive covenants and the effect of the time limitations upon them, as well as the allegations of the subsequent petition of some of the assenting property owners. This aspect of plaintiffs’ appeal is not an attack upon the order denying plaintiffs’ Rule 60(b) motion, but is an attack on the underlying judgment itself, because it attacks the evidence tendered below. Thus, plaintiffs attempt to use Rule 60(b) as an appeal from the final judgment, which is not permitted under our rules. City of Daphne v. Caffee, supra.

The final issue is whether or not the trial court erred in denying plaintiff’s motion for relief.

Although plaintiffs’ motion does not state the specific basis for Rule 60(b) relief, the record of the hearing on the motion in the court below contains references to Rule 60(b)(6), and that provision apparently is the basis for plaintiffs’ appeal to this Court. Thus, plaintiffs maintain that they were entitled to relief from the judgment below for “any other reason justifying relief from the operation of the judgment.” Rule 60(b), supra.

In the court below and upon this appeal, the gist of plaintiffs’ argument for Rule 60(b)(6) relief is that they had no notice of the judgment entered on July 30, 1981, until November 1,1982. Plaintiffs’ counsel acknowledged that he had expected an adverse ruling on the motion to dismiss, and did receive a letter from one of defendant’s counsel inviting comments on a proposed order defendant’s counsel had drafted for the judge’s signature. Plaintiffs’ counsel also represented to the court below that the circuit clerk’s office had no record of having furnished him a copy of the judgment. It was also established that defendant’s counsel did receive a copy of the judgment bearing the stamp of the clerk’s office.

Did this lack of actual notice require the trial court to grant relief from the judgment?

Relief under Rule 60(b)(6) is reserved for extraordinary circumstances, and is available only in cases of extreme hardship or injustice. Howell v. D.H. Holmes, Ltd., 420 So.2d 26 (Ala.1982). No evidence of extreme hardship on the part of plaintiffs is shown by the record. Plaintiffs’ counsel did state at the hearing below that had he received the notice in timely fashion he would have appealed from the order. Yet, at that hearing, the trial judge stated that he had made himself “pretty clear” on how he would rule, and thus the prospect of a forthcoming unfavorable order was not unknown to plaintiffs’ counsel.

Additionally, Rule 77(d) furnishes some guidance on the ultimate effect of an absence of actual notice because of a failure to receive the clerk’s notice. That rule provides:

“Lack of notice of the entry by the clerk does not affect the time to appeal or authorize the court to relieve a party for failure to appeal within the time allowed, except that upon a showing of excusable neglect based on a failure of the party to learn of the entry of the judgment or order the circuit court in any action may extend the time for appeal not exceeding 30 days from the expiration of the original time now provided for appeals in civil actions.”

This provision, applicable when lack of notice of the order is shown to have been based upon excusable neglect, only gives the trial court discretionary power to extend the time in which to take an appeal for 30 days beyond the normal time. Its analogous application to this situation, therefore, would be time-barred even with a showing of excusable neglect. Snowden v. United Steelworkers of America, 435 So.2d 62 (Ala.1983), discusses this point under similar facts.

We have concluded that the lack of knowledge of the trial court’s order on the motion, under these circumstances, presented no extraordinary circumstances. Moreover,

“A party remains under a duty to take legal steps to protect his own interests. In particular, it ordinarily is not permissible to use this motion to remedy a failure to take an appeal .... ” Wright and Miller, Federal Practice and Procedure, § 2864 at 214-215.

The decision to grant or deny a Rule 60(b)(6) motion is within the sound discretion of the trial judge, and the standard of this Court’s review is whether the trial court abused its discretion. Textron, Inc. v. Whitfield, 380 So.2d 259 (Ala.1979); Pierson v. Pierson, 347 So.2d 985 (Ala. 1977). On the record, we cannot state that the trial court abused that discretion. Accordingly, the judgment denying the motion must be, and it hereby is, affirmed.

AFFIRMED.

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

      . The defendant’s motion to dismiss was both supported and opposed by affidavits, indicating that in reality the trial court treated it as a Rule 56 motion for summary judgment. Rule 12(b), A.R.Civ.P.


text:
    SUNSHINE HOMES, INC. v. Billy W. NEWTON and Billie Faye Newton.
    82-800.
    Supreme Court of Alabama.
    Dec. 22, 1983.
    Jack B. McNamee of Topazi, Morton & McNamee, Birmingham, for appellant.
    R.B. Jones, Birmingham, for appellees.
   PER CURIAM.

This is an appeal resulting from the trial court’s order denying Defendant’s motion for directed verdict, made at the close of the Plaintiffs’ evidence, as well as the denial of its alternative motion for judgment notwithstanding the verdict.

We deny the Appellees’ motion to dismiss the appeal; affirm the order granting a new trial; affirm the denial of defendant’s motions for directed verdict and for judgment notwithstanding the verdict; and remand the cause to the trial court for further proceedings.

FACTS

Billy W. Newton and Billie Faye Newton filed a complaint against Sunshine Homes, Inc. (Sunshine), and Shelby County Mobile Homes (Shelby) alleging breach of contract and breach of implied warranties. At the close of the Plaintiffs’ evidence, Defendant Sunshine moved for a directed verdict, which was denied. Sunshine did not renew its motion for directed verdict at the close of all the evidence. The jury returned a verdict in favor of the Newtons and against Shelby for $10,000, and in favor of the Newtons and against Sunshine for $40,000.

On March 3, 1983, Sunshine filed a “Motion for Judgment Notwithstanding the Verdict, or in the Alternative, Motion for New Trial.” The transcript shows that the court entered an order on April 8, 1983, granting Sunshine a new trial, but making no reference to any disposition of the motion for JNOV. On April 12, 1983, the Newtons filed a motion for reconsideration of the court’s order granting Defendant’s motion for new trial. On May 4, 1983, Sunshine filed a notice of appeal. Plaintiffs thereafter filed a motion to dismiss the appeal as prematurely filed.

ISSUES

Three issues are presented for this Court’s determination: 1) Does Plaintiffs’ motion for reconsideration toll or extend the time for taking an appeal? 2) Can Sunshine properly appeal pending disposition of Plaintiffs’ motion? 3) In the event the notice of appeal was timely filed (i. e., not filed prematurely), did the trial court err in granting a new trial, as opposed to a JNOV, where Sunshine did not move for a directed verdict at the close of all the evidence?

DECISION

I and II

Motion to Dismiss Appeal

(Timeliness and Prematurity)

At the outset, we should explain that we have postulated the timeliness issue from the implications of Appellees’ argument in support of their motion to dismiss the appeal. Given the fact, as here, that Sunshine filed its notice of appeal well within the 42-day period following the trial court’s ruling on its post-judgment motion, seasonable filing of the notice of appeal, strictly speaking, is not in issue. Appellees argue, however, that the pendency of their reconsideration motion, testing the propriety of the trial court’s order granting a new trial, rendered the appeal premature. In other words, Appellees do not argue that the appeal was taken beyond the allowable 42-day period, but that it was taken prematurely.

Because the answer to this question depends upon the efficacy of Appellees’ motion to reconsider as a Rule 59(e) motion tolling the time for taking an appeal, we deem the resolution of the timeliness issue essential to our disposition of Appellees’ motion to dismiss. That is to say, whether the appeal was taken prematurely depends upon whether the time for taking the appeal commenced to run upon the entry of the order granting a new trial, or whether it commenced to run upon the trial court’s subsequent ruling on Plaintiffs’ motion to reconsider. Thus, because the two inquiries — timeliness and prematurity — are essentially one and the same, we merge our discussion of these two issues.

Plaintiffs’ motion for reconsideration of the trial court’s order granting a new trial may appear, at first blush, to be a timely filed Rule 59(e) motion, thus further tolling the time for appeal. But, as we shall see, this is not a correct interpretation of such a post-judgment motion. The Court of Civil Appeals dealt with a situation somewhat similar to the case at bar in Wilger v. Department of Pensions and Security, 343 So.2d 529 (Ala.Civ.App.1977). In Wilger, a judgment was entered adverse to the Wilgers; whereupon, on April 16, 1976, they filed a Rule 59(a) motion for a new trial and a Rule 59(e) motion to alter judgment. On June 21, 1976, these motions were denied by the trial court.

On July 21, the Wilgers filed a motion to reconsider the order denying their Rule 59(a) and Rule 59(e) motions. This motion was denied on August 6, 1976. The notice of appeal was filed on September 14, 1976. The court, determining that the July 21 motion to reconsider did not toll the running of the time for appeal, quoted 9 Moore’s Federal Practice, TÍ 204.12(1), 951-52:

“ ‘A motion to reconsider an order disposing of a motion of the kind enumerated in Rule 4(a) does not again terminate the running of the time for appeal. An initial motion to reconsider the judgment is a motion under Civil Rule 59(e) and does terminate the running of the time for appeal. But a motion to reconsider the reconsideration does not terminate the running of the time for appeal. The fair and obvious reading of Rule 4(a), as well as its rationale, compels such a result, and the courts are in accord.’ ”

The Wilger Court continued:

“The rationale for the preceding statement is clear. A motion to reconsider a ruling on a Rule 59 motion is not a motion of the type encompassed within Rule 59. Therefore, its filing does not suspend the running of the time for appeal, as Rule 4(a)(3) specifically provides that only motions filed pursuant to Rule 59 (and other rules herein inapplicable) have that effect. Randolph v. Randolph, 91 U.S.App.D.C. 170, 198 F.2d 956 (1952).
“Moreover, as stated by the United States Court of Appeals for the District of Columbia in Yates v. Behrend, 108 U.S.App.D.C. 56, 280 F.2d 64 (1960):
“ ‘There is nothing in the Rules to suggest that a second motion for reconsideration, made after the denial of a timely initial motion, has the effect of again terminating the running of the time to appeal from the judgment. Such a construction of the Rules would permit dilatory tactics destructive of the finality of the judgment. The proper construction is that the running of appeal time from the judgment is not suspended by merely making a second motion for reconsideration, ...’ (280 F.2d at 65-66)
“In similar circumstances other courts have reached the same conclusion we reach herein — that filing of a motion to reconsider an order denying a new trial or refusing to alter or amend a judgment does not suspend the running of the time for appeal. Ellis v. Richardson, 471 F.2d 720 (5th Cir.1973); Dockery v. Travelers Co. of Hartford, Connecticut, 349 F.2d 1017 (5th Cir.1965); Marten v. Hess, 176 F.2d 834 (6th Cir.1949); Yates and Randolph, supra.” (Emphasis original) 343 So.2d at 531-532.

It is clear, in the present case, that Plaintiffs’ motion to reconsider a ruling on a Rule 59 motion is not itself a post-judgment motion contemplated by the rule. Otherwise stated, while a Rule 59- motion tolls the time for taking an appeal, a subsequent request, by whatever label, seeking the trial court’s reconsideration of its ruling on the former Rule 59 motion, does not operate to further toll the time for the appeal. We recognize that Wilger dealt with a situation where the second motion sought reconsideration of the order denying the-first motion, and that here we are dealing with a situation where the second motion seeks reconsideration of an order granting the first motion. Nevertheless, we adopt the reasoning of the Court of Civil Appeals in Wilger, and extend it to hold also that a motion to reconsider an order granting a post-trial motion does not suspend the running of the time for taking an appeal.

It follows, then, that Sunshine can appeal, notwithstanding Plaintiffs’ pending motion for reconsideration. Because Plaintiffs’ motion does not toll the time for taking an appeal, it would be illogical to require Sunshine to delay filing a notice of appeal. If disposition was required before appeal, the time for appeal could expire before the trial court ruled on the motion. Indeed, we find nothing in the Rules mandating that the trial court entertain a post-judgment request for reconsideration of its disposition of a Rule 59 motion. Certainly, once an appeal is timely filed, following the disposition of a Rule 59 motion, the trial court loses jurisdiction and cannot entertain a motion for reconsideration of its prior ruling.

Ill

On the Appeal

(Necessity of Directed Verdict Motion)

Plaintiffs submit that Sunshine’s post-judgment motion for JNOV was improper, because Sunshine had not moved for a directed verdict at the close of all the evidence. We agree. In Great Atlantic & Pacific Tea Co. v. Sealy, 374 So.2d 877 (Ala.1979), the Court said:

“We find the procedures contained in Rule 50 devise a precise plan for attacking the sufficiency of the evidence. This plan recognizes the important role played by the trial judge in determining that sufficiency. The final step in preserving appellate review of the sufficiency of the evidence in a jury trial is the making of a timely motion for J.N.O.V. Failure to make that motion prohibits appellate review of the sufficiency of the evidence. This is one reason a motion for directed verdict must be made at the close of all the evidence. Failure to make the latter motion at the close of all the evidence precludes the party complaining of the insufficiency of the evidence from later making a motion for J.N.O.V. See Rule 50, ARCP. This preclusion, thus, prevents the appellate court from reviewing the sufficiency of the evidence in a jury trial. See Delchamps, Inc. v. Borkin, [429 F.2d 417 (5th Cir. 1970) ]. For this Court to review a jury verdict on the ground there was insufficient evidence to support it, both a motion for directed verdict at the close of all the evidence and a post-trial motion for J.N.O.V. must be made.” (Emphasis supplied.) 374 So.2d at 881-882.

We have no alternative but to decline to review Sunshine’s assertion that insufficient evidence was presented against it at trial, due to its failure to move for a directed verdict at the close of all the evidence.

We hold, therefore, that the motion to dismiss the appeal filed by Sunshine Homes, Inc., is due to be, and it hereby is, denied; the judgment granting a new trial is affirmed; and the cause is remanded to the trial court for further proceedings pursuant to its order granting a new trial.

MOTION TO DISMISS DENIED; AFFIRMED; REMANDED FOR A NEW TRIAL.

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

      . Shelby was not represented at trial and is not a party to this appeal.

        . Appeal from an order granting a new trial is authorized by Code 1975, § 12-22-10, though such an order is interlocutory.