author: TORBERT, Chief Justice.

text:
    BERKEL AND COMPANY CONTRACTORS, INC. v. PROVIDENCE HOSPITAL, a Corporation.
    82-592.
    Supreme Court of Alabama.
    April 20, 1984.
    Rehearing Denied July 27, 1984.

      Broox G. Holmes and Kirk C. Shaw of Armbrecht, Jackson, DeMouy, Crowe, Holmes & Reeves, Mobile, and Roger W. Penner of Griffin, Dysart, Taylor, Penner & Lay, Kansas City, Mo., for appellant.
    Willis C. Darby, Jr. and Joseph F. Dan-ner of Darby & Myrick, Mobile, for appel-lee.
   TORBERT, Chief Justice.

I. FACTS

This is an appeal from a summary judgment entered by the circuit court in favor of defendant Providence Hospital (“Providence”) as to the four causes of action asserted against it by plaintiff Berkel and Company Contractors, Inc. (“Berkel”). Berkel sued Providence and its architect for claims arising out of the construction of an addition to Providence Hospital in Mobile. Berkel contracted with Greenhut Construction Company, Inc. (“Greenhut”), the general contractor, to install piles for the foundation of the addition.

A. 1979-1980 Project.

Providence issued its invitation for general contractors to bid on the hospital addition on September 17, 1979. Providence made available to bidders the plans, specifications, and addendum prepared by its architect, and a soil report prepared for Providence by an engineering firm, Vester J. Thompson, Jr., Inc. (“Thompson” or “soils engineer”). Thompson’s soils report was based on eight soil test borings, only one of which was taken in the actual excavation site. The evidence is in conflict as to whether the soils report revealed a subsurface stratum which would tend to affect the installation of cast-in-place piles.

Greenhut was the successful bidder and contracted with Providence on January 15, 1980. Greenhut then subcontracted with Berkel to install the piling supports. Berk-el’s contract with Greenhut incorporates by reference certain documents from Green-hut’s contract with Providence, including the general conditions of the contract for construction, the specifications for cast-in-place piles and the bidder’s information package. The plans called for installation of 304 predrilled, cast-in-place piles. The piles were 16 inches in diameter, averaging 85 feet in length, with design capacities of 77 or 97 tons per pile. Each pile was supported with a cage of steel reinforcement bars extending 15 feet below the surface.

The pile specifications included many requirements. First, the admixtures used in the pile grout mix had to possess the property of combining with lime liberated during the process of hydration of Portland cement. Second, the mix design of the pile grout had to be approved by the architect. Third, at least two test piles had to be load tested to at least twice design capacity.

Berkel submitted its grout mixture, referred to as Underwood grout, on February 11, 1980, to Greenhut, who then submitted it to the architect for approval. The architect returned the Underwood grout mix submittal on March 7, 1980, with the notation “Furnished as Noted.” It is unclear whether the architect’s action constituted approval or something else. Berkel began installing test piles.

On May 21, 1980, Berkel installed two test piles. One test pile was 77 feet long and had a design capacity of 77 tons (No. 1); the second was 85 feet long and had a design capacity of 97 tons (No. 2). On June 3, both piles failed a load test of approximately 100 tons.

The parties were at a loss to explain why the test piles failed. Cylinders from both piles were tested for compressive strength and were found to surpass the specification requirements. After additional soil bor-ings, Thompson, the soils engineer, determined that the bearing stratum below the tips was consistent with or better than the criteria used for pile design.

Berkel was instructed by the architect and soils engineer to install an additional test pile. Berkel was specifically instructed by Thompson regarding installation. The additional test pile (No. 3) failed a load test on June 23, 1980. Testing of the grout cylinders for the pile revealed that the aggregate in the grout was finer than specified. The finer sand required a longer time to gain strength.

The architect and soils engineer then requested Berkel to install a pile using Rad-cliff grout. Radcliff grout differed from Underwood grout in that it did not contain an admixture which combined with lime, as required by the specifications; the sand in the Radcliff grout was, however, of the specified gradation.

The test pile using Radcliff grout (No. 4) was installed on June 26, 1980. No conclusion had been reached as to why the Underwood grout test piles had failed while the Radcliff grout test pile had succeeded. Nevertheless, Berkel received instructions through Greenhut from the architect that it was to proceed with installation of the 97-ton production piles. Greenhut had been verbally informed by the architect to proceed, with the promise of written confirmation. No written confirmation was received from the architect. Greenhut did receive a copy of the soils engineer’s letter recommending that installation proceed. Berkel contends that it was authorized to use Underwood grout, provided sand of the correct gradation was used, as verified in biweekly tests.

At the same time Berkel was directed to proceed with installation of the 97-ton production piles, it also was directed to install another 77-ton test pile. This Underwood grout test pile (No. 5) was tested on July 17, 1980, and failed at less than 100 tons. Tests revealed that the pile had sheared at 17 feet below the surface, just two feet below the reinforcement bar cage. The pile was excavated and swirling patterns of foreign material were observed over approximately a two-foot length immediately below the reinforcement bar cage.

On July 18, 1980, the architect directed Greenhut and Berkel to cease installing production piles. Berkel had, by then, installed 87 of the 97-ton production piles.

Thereafter, additional tests were conducted. Three of the production piles using Underwood grout with sand of the specified gradation failed a load test of 110 tons. The parties excavated the soil from around one of the test piles. At approximately 17 feet below the work surface, a fine layer of sand was observed. Water was also found to be flowing from the sand. The evidence presented is in dispute as to whether this stratum of cohesionless sand appeared in the soils report. Still, no consensus was reached as to the cause of the pile failure.

Berkel continued to install test piles at the direction of the architect. The test piles were all constructed with Radcliff grout, but had varying lengths of reinforcement bar cages and were inserted using different methods. By August 15, 1980, five Radcliff test piles had been successfully load tested, though at less than twice their design capacity. The architect authorized Greenhut and Berkel to install production piles using Radcliff grout. Berkel was given the option of either load testing each of the 87 production piles previously installed or replacing them with piles using Radcliff grout. Berkel proceeded to install production piles using Radcliff grout. Installation of all piles was complete on or about September 24, 1980.

B. The 1968 Project.

Following the failure of test piles Nos. 1 and 2 in June 1980, Greenhut and Berkel learned for the first time that a subcontractor installing piles on an earlier, nearby project at Providence Hospital in 1968 had been unable to successfully load test its piles. The 1968 failure was caused by soil conditions which led to the sinking or pushing of piles into the ground. The tests conducted during the period June 4-9, 1980, indicated that the 1980 failure did not involve piles pushing or sinking into the ground.

C. Berkel’s Claim For Additional Compensation.

On October 7, 1980, Berkel submitted its claim for additional compensation to recover what it had expended because of the unaccepted Underwood piles. Greenhut added its claim for additional compensation and presented both claims to Providence and its architect. Both claims were denied and the current action was filed.

Berkel filed a four-count complaint. Count one alleged that Providence and its architect breached their duties of care in directing Berkel’s installation of the permanent piles. Count two alleged that Providence’s agent, the soils engineer, negligently tested and reported subsurface soil conditions. Count three alleged that Providence misrepresented subsurface soil conditions. Count four maintained that Providence suppressed material facts concerning the 1968 project which it was obligated to communicate. The circuit court granted summary judgment on each count as to Providence. Berkel appeals from this order granting summary judgment.

II. STANDARD FOR REVIEW

This Court places a heavy burden on a party who moves for summary judgment.

“A party moving for summary judgment has the burden of clearly showing that ... there is an absence of a genuine issue as to any material fact. The moving party must be entitled to the ... judgment as a matter of law. Furthermore, all reasonable inferences from the facts are to be viewed most favorably to the nonmovant.”

Butler v. Michigan Mut. Ins. Co., 402 So.2d 949, 951 (Ala.1981) (citations omitted). See Day v. Merchants Nat’l Bank of Mobile, 431 So.2d 1254, 1256 (Ala.1983).

By the same token, a summary judgment motion, properly supported as provided for under Rule 56(e), Alabama Rules of Civil Procedure, must be granted “unless the adverse party makes an eviden-tiary or factual showing in opposition to show that there is a genuine issue of fact for trial.” Butler, 402 So.2d at 951. The non-movant need only establish a scintilla of supporting evidence to avoid summary judgment. White v. White, 431 So.2d 1208, 1209 (Ala.1983).

III. SUBSTANTIVE CLAIMS ON APPEAL

A. Count One — Breach of Duty in Directing the Pile Installation.

Berkel contends in count one that Providence and its agent-architect breached their duty of care in directing Berkel’s installation of the permanent piles. Providence first argues that neither it nor its agent owed a duty of care because of the lack of privity with Berkel. Alabama courts have rejected the absence of privity of contract as a defense to a negligence action. In Federal Mogul Corp. v. Universal Constr. Co., 376 So.2d 716 (Ala.Civ.App.1979), the Court of Civil Appeals held:

“As a matter of law, plaintiffs theory of recovery against [the defendant subcontractor] was properly cognizable in the trial court. Our cases hold that, where the charge of negligence is based upon breach of duty arising out of a contractual relationship, no cause of action arises in favor of one not in privity to the contract. However, there are exceptions, such as where there is an invasion of a duty independent or concurrent with the contract. Weston v. National Mfrs. & Stores Corp., 253 Ala. 503, 45 So.2d 459 (1950).
“Stated alternatively, defendant’s duty may arise from a social relationship as well as from a contractual relationship. Williams v. Jackson Co., Ala.Civ.App., 359 So.2d 798, cert. denied, 359 So.2d 801 (Ala.1978).
“Although plaintiff may be barred from recovering from defendant as a third party beneficiary to defendant’s contract with another, plaintiff may nevertheless recover in negligence for defendant’s breach of duty where defendant negligently performs his contract with knowledge that others are relying on proper performance and the resulting harm is reasonably foreseeable.”

See also E.C. Ernst, Inc. v. Manhattan Constr. Co. of Tex., 551 F.2d 1026 (5th Cir.1977), cert. denied, 434 U.S. 1067, 98 S.Ct. 1246, 55 L.Ed.2d 769 (1978) (under Alabama law, an electrical subcontractor on a construction project may proceed on a negligence theory in an action against an architect absent contractual privity between them); Zeigler v. Blount Bros. Constr. Co., 364 So.2d 1163 (Ala.1978) (opinion assumes recovery possible absent privity if damages are foreseeable); Havard v. Palmer & Baker Eng’rs, Inc., 293 Ala. 301, 302 So.2d 228 (1974) (tunnel inspector owes duty of care to third-party tunnel travelers); Looker v. Gulf Coast Fair, 203 Ala. 42, 81 So. 832 (1919) (owner has duty to third parties to act reasonably upon architect’s advice); McGaha v. Steadman, 410 So.2d 420 (Ala.Civ.App.1981). The rationale behind not requiring privity is explained by Professor Prosser:

“[B]y entering into a contract with A, the defendant may place himself in such a relation toward B that the law will impose upon him an obligation, sounding in tort and not in contract, to act in such a way that B will not be injured. The incidental fact of the existence of the contract with A does not negative the responsibility of the actor when he enters upon a course of affirmative conduct which may be expected to affect the interests of another person.”

W. Prosser, Law of Torts § 93 at 622 (4th ed. 1971).

Providence argues that Berkel cannot enforce Providence’s duties under a contract with others absent privity or third-party beneficiary status. Twine v. Liberty Nat’l Life Ins. Co., 294 Ala. 43, 50, 311 So.2d 299, 305 (1975). Providence misconstrues the basis of duties in negligence actions. A plaintiff may argue that another party owes a duty under a contract upon which the plaintiff reasonably relied. McGaha v. Steadman, 410 So.2d 420, 421 (Ala.Civ.App.1981); Federal Mogul Corp. v. Universal Constr. Co., 376 So.2d 716, 724 (Ala.Civ.App.1979). Alternatively, a plaintiff may argue that another party has duties independent of any contract because that party has acted affirmatively. Dailey v. City of Birmingham, 378 So.2d 728, 729 (Ala.1979); Herston v. Whitesell, 374 So.2d 267, 270 (Ala.1979); McGaha v. Steadman, 410 So.2d 420, 421-22 (Ala.Civ.App.1981). This latter proposition is the basis of count one. Providence can be held liqble for negligence injuring third parties, whether or not Providence has a similar duty under contract to some others. The existence of a collateral contract does not negate the obligation imposed in tort to act reasonably. In this case, we need not consider whether an unreasonable omission to perform a contract duty can ever create liability to third parties in a construction setting.

In this case, Berkel does not seek to impose contract duties on Providence or its agents. Instead, Berkel contends that by affirmatively embarking on a course of conduct (whether or not this exercise sprang from a contract setting), Providence assumed a duty to third parties to act reasonably. We recognize that contracts may impose greater or lesser degrees of responsibility and that third parties are generally not entitled to benefit from contract standards which differ from the standard of care generally applicable in negligence actions. See Note, “Architectural Malpractice: A Contract-Based Approach,” 92 Harv.L.Rev. 1075, 1087-88 (1979).

Providence argues further that even if privity is not a defense, the facts disclosed that no duty was owed to Berkel. In deciding whether to impose a duty in a construction context, the' trial court should analyze six factors:

“ ‘(1) [T]he extent to which the transaction was intended to affect the other person; (2) the foreseeability of harm to him; (3) the degree of certainty that he suffered injury; (4) the closeness of the connection between the defendant’s conduct and the injury; (5) the moral blame attached to such conduct; and (6) the policy of preventing future harm.’ ”

Howe v. Bishop, 446 So.2d 11 (Ala.1984) (Torbert, C.J., concurring in the result), quoting from United Leasing Corp. v. Miller, 45 N.C.App. 400, 406-07, 263 S.E.2d 313, 318 (1980). Under this standard, Providence clearly owes Berkel a duty to act reasonably in directing and approving pile construction work. The transaction was intended to affect Berkel, and it was foreseeable that it would. The alleged harm is certain and directly connected to Providence’s conduct. Given the business relationship and lack of personal injury, the question of moral blame is not relevant in this case. The final factor, the policy of preventing future harm, also supports the finding of duty. Providence could have averted the alleged loss either by not acting or by acting reasonably. This Court will impose liability on Providence to require it to act responsibly.

This argument for a legal duty is especially compelling be'eause Providence and its architect had the power through liquidated damages and other means to force Berkel to do as Providence wished. The court in United States v. Rogers & Rogers, 161 F.Supp. 132, 136 (S.D.Cal.1958), explained the responsibilities arising from unequal positions in the context of contractor and architect:

“Altogether too much control over the contractor necessarily rests in the hands of the supervising architect for him not to be placed under a duty imposed by law to perform without negligence his functions as they affect the contractor. The power of the architect to stop the work alone is tantamount to a power of economic life or death over the contractor. It is only just that such authority, exercised in such a relationship, carry commensurate legal responsibility.”

Under the circumstances, Providence and its architect owed Berkel a duty to act reasonably in directing the pile work.

Providence finally argues that its actions did not constitute a breach of duty. Providence alleges that it did not order Greenhut and Berkel to proceed with installation of the piles, but merely authorized them to do so. In addition, Providence contends that even if its conduct constituted an implied order, Greenhut and Berkel were contractually required to obtain clarification of Providence’s intent. Finally, Providence contends that ordering continuation of the work was reasonable. All three arguments are based upon facts which are in dispute. Berkel has provided affidavits and letters which suggest that Providence and its architects negligently directed continuation of the work. Because summary judgment cannot be granted where there are genuine issues of material fact, we reverse the trial court’s summary judgment as to count one.

B. Count Two — Negligent Testing and Reporting of Subsurface Soil Conditions.

Count Three — Negligent Misrepresentation of Subsurface Soil Conditions.

Counts two and three relate to the report of the soils engineer. Berkel presented a genuine issue of material fact as to whether the report was prepared negligently and whether the report did not reveal the soil stratum at the 17-foot level which allegedly caused the piles to fail. Providence contends first that it owed no duty of care in supplying the report to bidders. As we held as to count one, a party “who volunteers to act, though under no duty to do so, is ... charged with the duty of acting with due care.” Dailey v. City of Birmingham, 378 So.2d 728, 729 (Ala.1979). Hence, Providence’s act of furnishing the report imposes on it the duty of reasonableness.

Providence further contends that in its bid information, it disclaimed any liability for negligence. The disclaimer provides as follows:

“12. SOILS INFORMATION. A soils report, prepared by Vester J. Thompson, Jr., Inc., 3707 Cottage Hill Rd., Mobile, Alabama 36609 (205-666-2443), has been prepared for the Owner. Copies of the report dated July 28, 1978 and supplemental reports dated September 4, 1978 and May 21, 1979, concerning Under Floor Drainage System, are on file at that office. No representation or warranty is made by Architect/Engineer, or Owner regarding adequacy or content of this report. Bidders shall obtain, at their expense, information necessary to determine existing site and subsoil conditions to completely perform the Contract as specified in a proper and safe manner.”

The provision clearly and unequivocally disclaims responsibility for reliance on the soils report. The disclaimer provides that the soils report was prepared solely for the owner and is not meant to be relied upon by third parties. The provision also includes the necessary step of requiring the bidder to obtain information at its expense to satisfy itself. The thoroughness of the soils report disclaimer satisfies the elements of a legally effective disclaimer. S & M Constructors, Inc. v. City of Columbus, 70 Ohio St.2d 69, 72-74, 434 N.E.2d 1349, 1352-53 (1982). See Industrial Tile, Inc. v. Stewart, 388 So.2d 171, 174-76 (Ala.1980); Eley v. Brunner-Lay So. Corp., 289 Ala. 120, 123-24, 266 So.2d 276, 279-80 (1972). Hence, Providence has successfully disclaimed liability for the negligence of its agent.

Berkel contends that the disclaimer should be ineffective on policy grounds. Berkel cites Condon-Cunningham, Inc. v. Day, 22 Ohio Mise. 71, 258 N.E.2d 264 (1969), for the proposition that the owner will be held liable when the contractor reasonably relies on the furnished information:

“While the defendant contends that because of the various disclaimers the contractors had no right to rely upon the information given as to the moisture content of the soil, it does seem that it is a strange procedure to furnish the contractors with such information, to invite them to seek more detailed information from the county and to give them extensive boring reports in 11 elaborate pamphlets, which the county invites them to inspect, and then to say because of some of our disclaimers you may not use any of this elaborate information that obviously was obtained by us at much expense and, if you do rely on it, you are doing so at your peril.
“... The county, on the other hand, should know what soil they are dealing with in a project they have under consideration. The information, if gathered by the county, will be useful to the county no matter who gets the job. The county should be the logical one to make the tests or have them made and not the bidders who may or may not get the job.
“If the county has elaborate tests made and makes its finding known to the bidders, the bidders should be able to rely on these tests in all justice and fair play.”

(Citations omitted). See also Jacksonville Port Auth. v. Parkhill-Goodloe Co., 362 So.2d 1009 (Fla.Dist.Ct.App.1978).

Indeed, Berkel presents affidavits attesting to the industry practice of relying on owner-furnished soils information in preparing bids. Moreover, Berkel is quite right in pointing to the economic inefficiency which would result from requiring the contractors to conduct separate soils tests when logically the owner is in the best position to provide the information. To allow the owner to disclaim responsibility may have the economic effect of increasing the cost of bids to reflect the risk shift of a disclaimer, incurring the prospect of repetitious tests, and reducing the number of bidders. This result will, in the long run, injure parties in the position of Providence,

Despite these economic policy objections, Alabama law firmly embraces the concept of freedom of contract. Contracts between competent parties, voluntarily and fairly made, are valid and enforceable. Vardaman v. Benefit Ass’n of Ry. Employees, 263 Ala. 236, 237, 82 So.2d 272 (1955); Lowery v. Zorn, 243 Ala. 285, 9 So.2d 872 (1942). Providence is legally entitled to disclaim liability for a report prepared by its soils engineer, even though to do so may be irrational from a cost perspective. We reject the notion that a disclaimer is ineffective merely because it is, in a larger sense, inefficient. Joseph F. Trionfo & Sons, Inc. v. Board of Educ. of Harford County, 41 Md.App. 103, 395 A.2d 1207, 1211 (1979). Furthermore, the apparent inefficiency does not offend public policy by creating a permanent condition injurious to society. Therefore, the marketplace, not the judiciary, is the appropriate battleground for such a dispute.

If we were to adopt Berkel’s position and declare disclaimers invalid in this context, an owner would be faced with a dilemma. On the one hand, the owner could provide information prepared for it by another, subjecting the owner to liability for negligent preparation. On the other hand, the owner could simply withhold the report. Such an intentional omission might constitute misrepresentation. See Ala. Code § 6-5-102 (1975). Hence, the owner would be faced with potential liability under all circumstances merely by contracting for a soils report for its own use. To prevent the anomalous result of rewarding ignorance, we hold that an owner may disclaim liability for negligent preparation of a report furnished to bidders, so long as an effective disclaimer accompanies it.

Because of the effective disclaimer, Berkel cannot recover for Providence’s alleged negligence in preparation of the soils reports or any negligent misrepresentation. We affirm the summary judgment as to counts two and three.

C. Count Four—Suppression of a Material Fact.

Berkel’s final cause of action against Providence alleges that Providence suppressed a material fact which it was obligated to communicate. The alleged material fact was that problems had been encountered by the pile subcontractor on the 1968 project. The cause arises under Ala. Code § 6-5-102 (1975):

“Suppression of a material fact which the party is under an obligation to communicate constitutes fraud. The obligation to communicate may arise from the confidential relations of the parties or from the particular circumstances of the case.”

Under § 6-5-102, mere silence is not fraud unless confidential relations or special circumstances exist; active concealment or misrepresentation must be present. Collier v. Brown, 285 Ala. 40, 228 So.2d 800 (1969).

Berkel concedes that this is not a case of active concealment and that there is no confidential relationship present. Instead, Berkel contends that the duty to disclose the problems in the 1968 project arose because of the particular circumstances. Application of the “particular circumstances” language necessarily requires a case-by-case application of several factors.

“A duty to speak depends upon the relation of the parties, the value of the particular fact, the relative knowledge of the parties, and other circumstances. Hall Motor Co. v. Furman, 285 Ala. 499, 234 So.2d 37 (1970)_ Thus, each case must be individually examined to determine whether a duty of disclosure exists; a rigid approach is impossible, and, indeed, the words of the statute itself counsel flexibility.”

Jim Short Ford Sales, Inc. v. Washington, 384 So.2d 83, 86, 87 (Ala.1980).

Application of these factors in this case leads to inconsistent inferences. The first factor, relationship of the parties, does not support a finding of a duty. In a typical construction bidding arrangement, like the one involved in this case, the owner and the subcontractors are economically self-sufficient entities negotiating at arm’s length. The second factor, the value of the particular fact to Berkel, also does not support a finding of a duty. The undisputed evidence shows that the 1968 difficulties were unrelated to those experienced by Berkel. Berkel contends that the 1968 incident “was a material fact which would have affected our bid.” Even so, Berkel must show “an actual pecuniary loss as a result of the fraud.” Pihakis v. Cottrell, 286 Ala. 579, 586, 243 So.2d 685, 692 (1971). See Amason v. First State Bank, 369 So.2d 547 (Ala.1979).

The final factor, the relative knowledge of the parties, conceivably would argue for a finding of a duty. Providence and its agents knew of previous difficulties in the 1968 project; Berkel did not. Providence argues that the soils report gave Berkel notice of the 1968 project, and further, that Providence required all parties to conduct a full inquiry as to soil conditions. The soils report does show the 1968 addition and the soil borings from the site; however, no reference is made to any problems encountered. Without expert testimony as to the custom of inquiry in the pile construction industry, we cannot say that the soils report put Berkel on notice about the 1968 problems. Hence, a genuine issue remains as to this third factor.

In determining the existence of a duty, the trial court makes a legal decision. See, e.g., Hand v. Butts, 289 Ala. 653, 270 So.2d 789 (1972) (duty is a question of law). Even though the third factor is in dispute, we agree with the trial court in this case that Providence did not owe Berk-el a duty. Failure to disclose superior knowledge in an arm’s length bargain, without injury, does not violate a duty of disclosure or constitute fraud.

This decision is supported, alternatively, by the absence of damages, an essential element of a fraud cause of action. Ringer v. First Nat’l Bank of Stevenson, 291 Ala. 364, 281 So.2d 261 (1973). Because Berkel failed to dispute the evidence showing that the 1968 problems were unrelated to the problems in the current case, summary judgment was appropriate as to count four.

IV. CONCLUSION

We affirm the summary judgment as to counts two, three, and four. We reverse the summary judgment as it relates to count one and remand for a determination consistent with this opinion.

AFFIRMED IN PART; REVERSED IN PART; AND REMANDED.

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

      . The architect, Gill, Korff & Associate, Architects and Engineer, P.C., is not a party to this appeal. Gill, Korff has answered the complaint, but Berkel’s claims against it have yet to be tried.

      . A cast-in-place pile is produced by drilling a hollow shaft, continuous flight auger into the soil to a predetermined length, then injecting under pressure a cement base grout through the shaft as the auger is Slowly withdrawn, filling the cavity.

      . Until oral argument, Providence did not dispute that the architect was its agent. The contrary assertion is without foundation. Under the traditional owner-architect-general contractor arrangement, Alabama law recognizes "the well established proposition that an architect is the agent for the owner and the owner is responsible for any damages caused by the architect’s deficiencies [in supervision and coordination] insofar as the other parties are affected thereby.” E.C. Ernst, Inc. v. Manhattan Constr. Co. of Tex., 387 F.Supp. 1001, 1033 (S.D.Ala.1974) (applying Alabama law) (finding Providence’s architect in the 1968 project was its agent), aff'd in part and vacated in part on other grounds, 551 F.2d 1026 (5th Cir.1977), cert. denied, 434 U.S. 1067, 98 S.Ct. 1246, 55 L.Ed.2d 769 (1978). See also Fleming v. Lunsford, 163 Ala. 540, 545, 50 So. 921, 923 (1909). A different standard is applicable for determining whether vicarious responsibility can be imposed on an owner for the architect's negligent preparation of plans and specifications. See, e.g., Looker v. Gulf Coast Fair, 203 Ala. 42, 81 So. 832 (1919).

      . Berkel does not claim third-party beneficiary status under the Providence-Greenhut contract.

      . Compare W. Prosser, Law of Torts § 93 at 623-26 and § 104 at 680-82 (4th ed. 1971), with Caldwell v. Bechtel, Inc., 631 F.2d 989, 1000 (D.C.Cir.1980) (consulting engineer stands in special relationship with other construction parties and has affirmative duty to warn). Increasingly, courts have found that construction managers, consulting engineers, and architects (under the traditional construction arrangement) bear responsibility to act in situations where they are the only party in a position to prevent a loss. See Sweet, “Site Architects and Construction Workers: Brothers and Keepers or Strangers,” 28 Emory L.J. 291 (1979).

      . We do not consider whether a disclaimer is ineffective when the owner is a public agency. Each of the cases cited by Berkel involves a government entity as owner. Obviously, public policy concerns of efficiency and waste are more readily applicable to situations where the taxpayer bears the loss due to diseconomy.

      . Disclaimers may not be effective if the defendant is “actively” negligent or acts willfully. See Miami-Dade Water & Sewer Auth. v. Inman, Inc., 402 So.2d 1277 (Fla.Dist.Ct.App.1981).

      . Berkel's allegation that knowledge of a fact would have materially affected its bid would be an appropriate defense to a contract in an action for rescission. Crooker v. White, 162 Ala. 476, 50 So. 227 (1909). Given the absence of contractual relations between Berkel and Providence, Berkel could not sue for rescission, which presumes contract privity.


source: Caselaw Access Project

license: Public Domain

text:
    L.A. DRAPER & SON, INC. v. WHEELABRATOR-FRYE, INC., a Corporation, et al.
    83-133.
    Supreme Court of Alabama.
    April 27, 1984.
    Rehearing Denied Aug. 10, 1984.

      Thad G. Long, Joseph B. Mays, Jr., and Jere F. White, Jr. of Bradley, Arant, Rose & White, Birmingham, for appellant.
    L. Vastine Stabler, Jr., L. Murray Alley, and Lee E. Bains, Jr. of Cabaniss, Johnston, Gardner, Dumas & O’Neal, Birmingham, for appellees Wheelabrator-Frye, Inc., and Hessco Industrial Supply Co.
    Ralph D. Gaines of Gaines & Cleckler, Talladega, for appellee Fred Z. Hester.
   TORBERT, Chief Justice.

The sole issue presented is whether the filing of an appeal in the federal courts of the dismissal of plaintiff’s pendant unfair competition claim serves under Code 1975, § 6-5-440, to abate plaintiff’s subsequent unfair competition claim and related common law claims brought in state court. The trial court ruled that the state court action was abated. We affirm.

Plaintiff first filed suit in federal court, asserting that defendants conspired to destroy plaintiff’s business in violation of federal antitrust law and state unfair competition law. The federal court had jurisdiction of the unfair competition claim on the basis of pendant jurisdiction. At the close of plaintiff’s case, the court granted a directed verdict with respect to the federal antitrust claim and dismissed the pendant state unfair competition claim when defendants stipulated that they would not raise a statute of limitations defense (as to the time between the filing of the federal suit and the dismissal of the claims) to plaintiff's unfair competition claim if it was filed in state court. A final order was issued on March 16, 1983. On April 13, 1983, plaintiff filed suit in state court on the unfair competition and other related common law claims and on the next day appealed the federal court’s dismissal of the unfair competition claim. Defendants moved to dismiss the state court action on the grounds that the same action was still pending in federal court. The trial court granted the motion and this appeal ensued.

Code 1975, § 6-5-440, and the case law interpreting that section control the resolution of this question. Section 6-5-440 provides:

“No plaintiff is entitled to prosecute two actions in the courts of this state at the same time for the same cause and against the same party. In such a case, the defendant may require the plaintiff to elect which he will prosecute, if commenced simultaneously, and the penden-cy of the former is a good defense to the latter if commenced at different times.”

It has been interpreted to include situations where one suit is filed in federal court and the other in state court. Fegaro v. South Central Bell, 287 Ala. 407, 252 So.2d 66 (1971); Johnson v. Brown-Service Insurance Co., 293 Ala. 549, 307 So.2d 518 (1974); Terrell v. City of Bessemer, 406 So.2d 337 (Ala.1981). In Terrell, plaintiff brought claims under 42 U.S.C. § 1983, along with common law claims, in federal court. The federal court refused to entertain the pendant common law claims. Plaintiff then brought the common law claims in state court, and defendants moved to dismiss the claim in light of § 6-5-440. This Court recognized that there was one cause of action for the single wrong even when the wrong leads to actions under both state and federal law. 406 So.2d at 339. This Court in Terrell adopted the position that if “the court in the first action would clearly not have had jurisdiction to entertain the omitted theory or ground (or, having jurisdiction, would clearly have declined to exercise it as a matter of discretion), then a second action in a competent court presenting the omitted theory or ground should not be precluded.” 406 So.2d at 340. Therefore, we carved out an exception to the rule allowing a cause of action for the same wrong against the same party to be pending in only one court at a time.

This case and Terrell are procedurally similar except in one respect. While the plaintiff in Terrell did not appeal the dismissal of the common law claims by the federal court, the plaintiff in this case did. Therefore, it is not clear in this case that the federal court will not entertain the common law claims. Furthermore, in Orman v. Lane, 130 Ala. 305, 30 So. 441 (1901), this Court said that the pendency of an appeal of the federal court’s refusal to sustain defendant’s demurrer was sufficient to dismiss the state court action subsequently filed by the plaintiff.

Appellant points out that in Orman the federal court’s refusal to sustain the demurrer meant that the federal action was still pending, and says that in this case the dismissal of the common law claim by the federal court prevents that claim from being pending. Appellant also points out that in this case the suit was brought in state court before the federal appeal was , filed. We do not find these factual distinctions to be persuasive.

An action is deemed pending in federal court so long as a party’s right to appeal has not yet been exhausted or expired. Knights of the K.K.K. v. East Baton Rouge Parish School Board, 679 F.2d 64, 67 (5th Cir.1982); Mendoza v. Blum, 560 F.Supp. 284 (S.D.N.Y.1983); Berman v. Schweiker, 531 F.Supp. 1149 (N.D.Ill.1982). Appellant had thirty days from the issuance of the final order in which to perfect an appeal. F.R.App.P. 4(a)(1). Appellant filed the state court suit before the thirty days had expired; therefore, the state court suit was filed while the federal court action was still pending.

Orman makes it clear that the purpose of § 6-5-440 is to prevent a party from having to defend against two suits in different courts at the same time brought by the same plaintiff on the same cause of action. “Whether the prior suit is capable of being made effectual, is, in the second suit, a collateral and incidental inquiry; however it may be then decided, the defendant is not by its decision relieved from its burdens. There is a continuing necessity that he should remain before the court, prepared to make defense against it.” 130 Ala. at 308, 30 So. at 442. In Orman, the federal court refused to dismiss the suit and defendant appealed. Here, the federal court did dismiss the suit and plaintiff appealed. The harm that § 6-5-440 is directed at is present in this case just as it was in Orman. Defendant is still required to defend simultaneously against the same cause of action brought by the same plaintiff in two courts.

The judgment of the trial court is affirmed.

AFFIRMED.

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

      . In Terrell the parties did not raise, and we did not consider, the issue of whether the plaintiff could have sought review of the federal court's decision not to exercise pendant jurisdiction of plaintiff's common law claims.

      . Appellant also filed a petition for writ of mandamus on March 7, 1983, seeking, among other things, to compel the federal court to hear the pendant common law claims. The order of the Eleventh Circuit Court of Appeals denying the petition was entered on April 11, 1983, but was not filed with the federal district court until April 15, 1983. The fact that the order denying the petition had not been filed with the federal district court on April 13, 1983, when the state court suit was filed supports our conclusion that the federal suit was still pending.


author: ALMON, Justice.

text:
    Ralph E. JONES, an individual and Ralph E. Jones & Associates, Inc., a Corporation v. William McGUFFIN and Virginia McGuffin.
    82-45.
    Supreme Court of Alabama.
    May 4, 1984.
    Rehearing Denied July 13, 1984.
    Thomas R. DeBray of Wood, Minor & Parnell, Montgomery, for appellants.
    Dexter C. Hobbs of Copeland, Franco, Screws & Gill, Montgomery, for appellees.
    Calvin M. Whitesell, Roger S. Morrow and Wesley Romine, Montgomery, for ami-cus curiae Alabama Council of the American Institute of Architects.
   ALMON, Justice.

In an innocent misrepresentation and breach of implied contract action, a structural engineer and his company appeal from a judgment based on a jury verdict in favor of the purchasers of a home.

William and Virginia McGuffin planned to move from Houston, Texas, to Montgomery, Alabama, and contacted Linda Totty, a real estate agent with Aronov Realty, who showed the McGuffins approximately 12 houses in the Montgomery area during the fall of 1980.

On March 31, 1981, the McGuffins returned to Montgomery, and Totty showed them a house located at 3301 Warrenton Road in south Montgomery. The McGuf-fins liked the thirteen-year-old house, but noticed some cracks in the ceiling and walls of the residence. The McGuffins instructed Totty to obtain a structural engineering report on the house and conditioned their purchase of this residence upon receipt of a favorable report.

Approximately two months later, on the date of closing, May 22, 1981, Totty contacted Ralph E. Jones & Associates, Inc., and asked Ralph Jones, a structural engineer licensed in Alabama, to conduct a structural inspection of the Warrenton residence. Jones conducted two inspections of the house later that morning. Totty accompanied Jones on his first inspection, and he pointed out to her the particular conditions which formed the basis of his subsequent written report. Jones then conducted a second outdoor inspection of the house later that afternoon.

On the same day of the inspection, but before receiving Jones’s written report, Totty telephoned Mrs. McGuffin in Houston and told her “about the cracks and that Mr. Jones said the house was in excellent structural condition.”

After receiving this phone call, Mrs. McGuffin authorized the closing of the house on May 22, 1981. On May 25, 1981, Jones mailed the following written report to Totty:

“Dear Mrs. Totty:
“At your request I inspected the [War-renton] residence to determine its general structural condition. This letter summarizes my findings and opinions.
“The house is a one story wood framed structure supported by a monolithic concrete slab-on-grade foundation. The exterior finish is brick veneer. The interior ceilings are gypsum board. The interior walls are gypsum board and wood panel-ling. The floor finishes consist of carpet and hard tile. I understand that the house is about fifteen (15) years old.
“The house appeared to be in excellent structural condition except for some minor cracks in the south end, namely:
“1. A small brick crack over the window of the southeast bedroom.
“2. Two small cracks across the ceiling of the hall.
“3. A small wall crack over the door at the south bathroom.
“I could find no evidence that these cracks were caused by foundation movement. It appears more likely that they are due to thermal expansion and contraction of the roof. In my opinion, these cracks do not represent any major problem and are of little consequence.
“There are some cracks in the carport slab, but these are very common and are to be expected. There is a crack in the ceiling of the carport caused by the automatic door lift. This could be easily corrected with a little block bridging between ceiling joists.
“In summary, it is my opinion that the house is in excellent structural condition.”

After taking possession of the house on or about June 29, 1981, the McGuffins immediately noticed that the cracks noted by Jones had widened considerably and new cracks had appeared. In mid-July, 1981, the situation worsened, and they called Jones to conduct a follow-up inspection of the home. Jones discovered that there had been substantial foundation movement and severe cracking since his last inspection.

To remedy the situation, Jones recommended Jacque Pebworth, who performed the necessary repair work, which consisted of underpinning the house with 24 piers. The repair work took two months to complete and cost the McGuffins $12,300.00.

On February 18, 1982, the McGuffins filed a complaint in Montgomery Circuit Court which alleged that Jones, an employee of Ralph E. Jones & Associates, Inc., negligently inspected the Warrenton residence and breached an implied contract between Jones and Totty to properly inspect the residence in a professional manner and to render an accurate report to the McGuf-fins, third party beneficiaries of this implied contract. The McGuffins sought damages in the amount of $20,000.00 to compensate them for the repair work and their concomitant mental anguish.

The defendants filed a motion to dismiss on March 19, 1982, which was later denied. The defendants then answered the McGuf-fins’ complaint, denying negligence in the inspection and denying that a contract between the parties existed or alternatively denying the inaccuracy of the report when rendered.

The McGuffins then amended their complaint to include a count for innocent misrepresentation under Code 1975, § 6-5-101. Defendants then filed a motion for leave of court to make service on third-party-defendant Linda Totty, which was denied due to an untimely filing.

Defendants answered the amended complaint, denying any misrepresentation of material fact. The McGuffins subsequently amended their complaint a second time to delete the negligence count. The pretrial order stated that the original complaint and all amendments would be followed at trial. No stipulations or admissions were included in this order.

The McGuffins also filed a motion in limine to prevent the introduction of any testimony or comments concerning the defendants’ alleged negligence or whether the defendants knew or should have known that the elevation footings at the south end of the dwelling were allegedly at an inadequate depth. Both sides submitted briefs in response to this motion. Following a hearing, the trial court granted the motion.

The case was tried before a jury, which returned a verdict against both defendants in the amount of $20,000.00. Defendants filed a motion for new trial or in the alternative for judgment notwithstanding the verdict. This motion was denied.

The issues presented for review are 1) whether the trial court erred in denying the appellants’ motion for a directed verdict, which challenged the sufficiency of the evidence on the McGuffins’ fraud count; 2) whether the trial court erred in refusing the appellants’ affirmative charge which stated that opinions are not actionable under Code 1975, § 6-5-101, absent proof of actual fraudulent intent at the time the opinion is rendered; and 3) whether the trial court abused its discretion in granting the McGuffins’ motion in limine, which precluded the admission of the routine inspection practices of the structural engineering industry in both the fraud and breach of implied contract counts.

The first issue presented for review is whether the trial court erred in denying the appellants’ motion for directed verdict.

The McGuffins contend that the statement of Jones that “it is my opinion that the house is in excellent structural condition” constituted an innocent misrepresentation of material fact under Code 1975, § 6-5-101, upon which they relied to their detriment.

The appellants respond, however, that this statement of Jones is merely a professional opinion and not actionable under Code 1975, § 6-5-101, and, therefore, that the lower court erred in denying their motion for directed verdict.

Section 6-5-101, Code 1975, defines legal fraud as follows:

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

To recover under either the willful, reckless, or innocent species of legal fraud, the plaintiff must establish the following elements: 1) a false representation; 2) the false representation must concern a material, existing fact; 3) the plaintiff must rely upon the false representation; and 4) the plaintiff must be damaged as a proximate result. See International Resorts, Inc. v. Lambert, 350 So.2d 391, 392, 394 (Ala.1977).

It is axiomatic that mere statements of opinion are not material facts upon which actions for legal fraud can be maintained. See Harrell v. Dodson, 398 So.2d 272 (Ala.1981). Although the denomination of a representation as one of opinion or fact is not in itself conclusive, the ultimate determination of the true nature of a given representation depends upon all the circumstances of the particular case. See Fidelity & Casualty Co. v. J.D. Pittman Tractor Co., 244 Ala. 354, 13 So.2d 669 (1943).

The following testimony clearly establishes that under the particular circumstances of this case, the statement “it is my opinion that the house is in excellent structural condition” was a mere expression of professional opinion which could not form the basis of an innocent misrepresentation action.

Jacque Pebworth, a structural engineer whom the McGuffins proffered as their expert, testified that all conclusions as to the structural soundness of a residence consist of professional opinions on the quality of a dwelling, statements which are inherently subjective and therefore incapable of a truth function:

“Q: When you do structural engineering reports, requests of people living in residences or builders or real estate agents, are you asked to form a conclusion — are you frequently asked to form a conclusion as to the structural condition of the house?
“A: Yes, sir.
“Q: What is that conclusion generally based on?
“A. Well, my conclusion is always — it is my opinion as of this date that certain conditions exist. This does not conclude that any time prior the foundation movement cannot — it is no guarantee, in other words, that you won’t have foundation movement. This is a visual inspection that is made, and you cannot tell anything other than what you see visually. So a foundation can last a hundred years or it can break in a short while after the inspection is made.”

The McGuffins then corroborated this testimony when they testified that the conclusions in Jones’s written report, which were clearly denominated subjective statements of his professional opinion, did not constitute a warranty or guarantee as to the future condition of the home.

And, most importantly, Dr. McGuffin conceded the true nature of Jones’s representation on cross-examination:

“Q. Do you consider this statement [“]it is my opinion [that] the house is in excellent structural condition[”] a statement of opinion?
“A. That’s all a professional ever gives.”

Dr. McGuffin’s testimony conclusively established that the McGuffins were not justified in treating Jones’s statement of professional opinion as a material fact upon which they relied to their detriment. Thus, because the McGuffins could offer no evidence which, if believed, would support a verdict in their favor on the innocent misrepresentation count, the trial court erred in refusing the defendants’ motion for directed verdict. See Herston v. Whitesell, 374 So.2d 267, 270 (Ala.1979).

Based upon the foregoing error, we pre-termit consideration of the second issue and necessarily limit our review of the final issue to the implied contract count.

The final issue presented is whether the trial court erred in granting the McGuf-fins’ motion in limine. This motion excluded the routine inspection practices of the structural engineering industry in the McGuffins’ breach of implied contract count which alleged that Jones failed to properly inspect the residence in a professional manner and to render an accurate structural report.

The MeGuffins contend that the pre-trial order’s description of their implied contract count as Jones’s failure to render an accurate structural report necessarily implied that only this portion of the original count would be followed at trial.

Where neither side stipulated to such an amendment, however, we cannot say that this informal, shorthand transcription of their implied contract count takes precedence over the precise language of the pre-trial order which declared that the original complaint, which included allegations of not only Jones’s failure to render an accurate structural report but also Jones's failure to properly inspect the residence in a professional manner, would be followed at trial.

Thus, under the language of the MeGuf-fins’ original complaint, the appellants could clearly offer evidence of the routine inspection practices of the structural engineering industry to ascertain whether Jones did in fact properly inspect the residence in a professional manner. It was therefore error to grant the MeGuffins’ motion in limine to exclude evidence of such routine practices in regard to the breach of implied contract count.

The judgment of the circuit court is reversed and the cause remanded for further proceedings consistent with this opinion.

REVERSED AND REMANDED.

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


author: EMBRY, Justice. BEATTY, Justice JONES, Justice

text:
    Richard G. STEWART v. STATE FARM INSURANCE COMPANY.
    82-1120.
    Supreme Court of Alabama.
    May 11, 1984.
    Rehearing Denied July 6, 1984.

      James A. Philips, Mobile, for appellant.
    William W. Watts and Fred W. Killion, III of Reams, Wood, Vollmer, Philips, Kil-lion & Brooks, Mobile, for appellee.
   EMBRY, Justice.

This is an appeal from a partial summary judgment made final by entry of a proper Rule 54(b), ARCP, order. The judgment dismissed counts three and four of the complaint. We affirm.

In count three, Richard G. Stewart sought to recover damages of State Farm Insurance Company on the theory that he was a third party beneficiary of the insurance contract between State Farm and David B. Braddock, also a defendant in this action. That count alleged that he, Stewart, was a third party beneficiary because of his status as a member of the public injured by Braddoek’s neligent operation of a motor vehicle.

By count four, Stewart sought compensatory and punitive damages for the bad faith breach of an alleged settlement agreement between him and State Farm.

The issues here for review are two in number and are correctly stated by State Farm as:

“1. Whether a member of the public injured as a result of the operation of a motor vehicle by an insured is a third party beneficiary of the automobile insurance policy owned by the insured and thus entitled to bring a direct action for bad faith against the insurer.
“2. Whether the tort of bad faith exists in Alabama for breach of an ordinary settlement agreement between two parties.”

By count three, Stewart is seeking to maintain a direct action against defendant Braddock’s insurer. This is not permitted in Alabama. Maness v. Alabama Farm Bureau Mutual Casualty Insurance Co., 416 So.2d 979, 982 (Ala.1982). This matter is properly addressed to the legislature.

Breach of the alleged settlement agreement does not create a cause of action sounding in tort. Kennedy Electric Co. v. Moore-Handley, Inc., 437 So.2d 76 (Ala.1983).

Because the damages for which the insured Braddock is legally liable have not been reduced to judgment, there cannot yet have been a breach of an alleged settlement agreement between Stewart and State Farm providing for payment to Stewart of damages for which Braddock would become legally liable. Further, the tort of bad faith refusal to pay is that refusal to pay valid claims made by the insured of his insurance carrier. Chavers v. National Security Fire and Casualty Co., 405 So.2d 1 (Ala. 1981).

The judgment below is due to be, and it is hereby, affirmed.

AFFIRMED.

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

SHORES and BEATTY, JJ., concur in part, dissent in part.

JONES, J., dissents.

TORBERT, C.J., not sitting.

BEATTY, Justice

(concurring in part; dissenting in part):

I concur with the majority opinion regarding the dismissal of Count IV. I dissent as to the dismissal of Count III and would reverse, because summary judgment was improper under the facts of this case. While it is true that the general rule in Alabama prohibits direct actions against a defendant’s insurer, Maness v. Alabama Farm Bureau, 416 So.2d 979 (Ala.1982), appellant contends that he is not claiming as a general member of the public but as a third party beneficiary under the terms of the contract of insurance. Alabama eases have recognized third party beneficiary status in the insurance context where the contract was obviously intended to directly benefit specific third parties. See American Southern Ins. Co. v. Dime Taxi Service, Inc., 275 Ala. 51, 151 So.2d 783 (1963); Mutual Benefit Health & Accident Association of Omaha v. Bullard, 270 Ala. 558, 120 So.2d 714 (1960). Although these eases are exceptions to the general rule, they appear applicable to the present case. Plaintiff put into evidence the complaint, and he claims in Count III that he is entitled to recover under the terms of the insurance contract.

The party moving for summary judgment has the burden of showing that there is no genuine issue of material fact and that he is entitled to judgment as a matter of law. Loveless v. Graddick, 295 Ala. 142, 325 So.2d 137 (1975); Houston v. McClure, 425 So.2d 1114 (Ala.1983). In determining whether the moving party has met this burden, the trial court must view evidence offered in support of the motion in the light most favorable to the opposing party. Fulton v. Advertiser Co., 388 So.2d 533 (Ala.1980). In this case, plaintiffs complaint was before the trial court, and the defendant had no evidence to counter this. Thus, summary judgment was improper.

SHORES, J., concurs.

JONES, Justice

(dissenting).

I respectfully dissent. I think the case should be reversed as to both Counts III and IV. I say this because of the posture of the proceedings before us. If we were free to exercise a personal belief concerning Plaintiffs statements of his claim, I would be reasonably comfortable with the speculation that Plaintiff cannot prove a bad faith claim under either of these theories; i.e., as a third party beneficiary under these “other” automobile liability insurance policies or by virtue of an alleged settlement agreement with the “other driver’s” insurance carrier. But that is just the point: It would be pure speculation.

Although the Defendant insurer styled its last motion as a “Motion for Summary Judgment,” it submitted the motion solely on the “pleadings filed in this action.” There is no evidence — not even the insurance policy. The trial judge had previously denied Defendant’s motion to dismiss and had denied its motion for reconsideration of the denial of the motion to dismiss (in typical Mobile pleading style); he then granted summary judgment on precisely the same “file” that he had before him at the time of his two earlier rulings.

For the trial court’s premature dismissal of Counts III and IV, I would reverse and remand.


author: PER CURIAM. MADDOX, Justice

text:
    Janice M. WHITE v. Mr. Jarrett C. LAW, Mrs. Jarrett C. Law, et al.
    82-1265.
    Supreme Court of Alabama.
    May 18, 1984.
    Rehearing Denied July 6, 1984.

      William H. Brittain, II of Ball, Ball, Duke & Matthews, Montgomery, for appellant.
    William J. Donald and William J. Donald, III of Zeanah, Donald & Hust, Tuscaloosa for appellees.
   PER CURIAM.

This case involves the appropriateness of a summary judgment for the defendants in a dog bite case.

On the afternoon of March 5, 1981, plaintiff White went to her daughter’s residence to pick up her granddaughter. Upon arrival, White was informed by the granddaughter’s babysitter that a neighbor’s dog had dug under the backyard fence and was chasing the family’s female dog around the backyard. When she opened the gate leading to her daughter’s backyard, White was knocked to the ground and bitten at least once on the knee by the intruding dog. As a result of the injury, White required emergency medical treatment and later physical therapy.

On February 16, 1982, White filed a complaint against Mr. and Mrs. Jarrett C. Law, the owners of the dog, and in her original complaint she alleged negligence and/or wanton conduct on the part of the Laws. On December 8, 1982, the Laws filed an answer in which they denied the general allegations of the complaint. On May 3, 1983, the Laws filed a motion for summary judgment. White amended her complaint on May 24, 1983, adding a count for trespass under Code 1975, § 3-1-5, and responded to the summary judgment motion. The defendants relied upon two affidavits and the depositions of White and Mrs. Law to support their claim to summary judgment. The trial court granted the Laws’ summary judgment on August 17, 1983, as to all counts of the complaint.

We note initially that the plaintiff does not appeal that part of the summary judgment relating to the trespass count, the wantonness count, or the denial of in-junctive relief. Where the appellant does not raise issues on appeal, we will not review them. Barrett v. Farmers & Merchants Bank of Piedmont, 451 So.2d 257 (Ala.1984).

The issue is: Was there a scintilla of evidence that the Laws had knowledge pri- or to this incident, either express or implied, that this dog had a propensity for such an attack?

Our examination of the record on appeal, in its factual context, reveals the following: White’s deposition regarding any knowledge the Laws may have had is set out below (in regard to a telephone conversation between White and Mrs. Law, White summarized the conversation thusly):

“[Mrs. Law] apologized for the dog-bite. She just did not know why the dog did that. He had never offered to bite anybody else. But, then, she turned around and said that when my daughter and her husband bought that house, the first thing she did was take that 6 year old [White’s granddaughter] to the fence to get her to introduce her to the dog Brutus, to get her to make friends with the dog Brutus in case he ever got out. If they were — if she and the dog were friends, the dog would never attack her. She told me the reason the dog was vicious and like he was was because the previous owners of that house had two small boys that aggravated the dog, that threw rocks at him and something. And they had made him that way, particularly around children. She told me that she thought the neighbors in the neighborhood were glad they had the dog because he protected the neighborhood, that he— nobody but nobody came into that neighborhood, into their yard because of that dog.”

The statements made in the two affidavits offered by White regarding any knowledge or scienter on the part of the Laws are set out below:

Pat Crawford, a neighbor, in her affidavit, stated:

“My backyard connected to the backyard of Mr. and Mrs. Jarrett C. Law. There is a fence separating our yards.
“On numerous occasions prior to March 1, 1981, I would be in my backyard and the Laws’ German Shepard [sic] would charge the fence, growl, bark and act viciously. On some of these occasions, Mr. or Mrs. Law would be in the backyard and- view the dog exhibiting such actions.”

White’s daughter also gave a statement by affidavit:

“My property connects to the property and home of Mr. and Mrs. Jarrett Law.... My backyard and the Laws’ backyard is divided by a fence that I had constructed.
“Prior to March 1, 1981, I would be in my backyard or in my driveway when Mr. and Mrs. Law’s dog would charge the fence, barking and growling. There was more than one occasion when this was in the presence of Mr. Law. Occasionally Mr. Law would speak to the dog but not always.
“Shortly after moving to this property Mrs. Law and I had a conversation concerning the treatment of the animal by the previous neighbor’s children. Mrs. Law advised me that the dog had been teased and harassed by the children and she had been concerned about it. I informed her that my children would not do anything to tease the dog. Sometime after this conversation, I saw Mrs. Law with my youngest daughter at the fence with the dog. After talking with my child, I found that Mrs. Law was trying to get [my child] to make friends with the dog. I instructed my child to stay away from the dog at all times.
“The dog has continued his barking even though he sees my family every day.”

The pertinent portion of the deposition of Mrs. Law which was submitted by White reads in full:

“Q. [Y]ou’ve never seen that dog jump up on that fence and try to get after somebody on the other side of that fence?
“A. With the exception of two little girls visiting that were sticking sticks through the fence at him.
“Q. He tried to jump up on the fence and get at them?
“A. No. He didn’t want them sticking a stick in his face. These were not Susie’s children.
“Q. I understand that.
“A. He just didn’t want the stick in his face.
“Q. I asked you had you ever seen the dog jump up on the fence like he was trying to get at someone and you said no with the exception of, and I asked you then he was trying to do it then and then you said no.
“A. No. He was trying to get the stick.
“Q. He was trying to get the stick?
“A. Because they were poking it in his face.
“Q. Have you ever had any conversation with Mrs. White or Mrs. Culp in reference to the dog not liking children?
“A. Only that those two little girls would poke sticks at him through the fence, but now, Susie’s [Mrs. Culp’s] children did not do that. They did not abuse him in any way.
“Q. Tell me about that conversation you had and who did you have it with, Mrs. White or Mrs. Culp?”
“A. Susie [Mrs. Culp].
“Q. You had a conversation with Susie, and what was that conversation?
“Q. That two children, either company of theirs or the previous family, the same thing I just got through telling you; that two little girls visiting in the backyard had teased Brutus and that I would like to take Jennifer with me, that was their youngest child who was at that time was about I guess four or five years old. I’m not sure because I don’t know how old she is now. And Jennifer would go over there with me and would pet Brutus through the fence. And I was teaching her to be nice to Brutus and that Brutus was not a mean dog.
“Q. Was that the conversation you had with Mrs. Culp?
“A. Uh-huh (positive response). And I did work with Jennifer.
“Q. You worked with Jennifer and brought her over and got her to pet the dog?
“A. Several times. In fact, Jennifer used to meet me twice a week to help me unload my groceries and to pet Brutus.”

This is the total evidence before the trial court as to whether the defendants actually knew or should have known of their dog’s possible vicious propensities.

This Court recently summarized the law in cases where a dog has attacked someone off its owner’s premises.

“[The Court of Appeals] in Kershaw v. McKown, 12 Ala.App. 485, 68 So. 559 (1915), reiterated the common law rule that the owner of a dog is not liable for acts of the dog unless the owner had knowledge of the vicious propensities of the dog that resulted in the injury complained of.... This Court held in Owen v. Hampson, 258 Ala. 228, 62 So.2d 245 (1952), that the common law rule was still applicable in Alabama. The most recent case is Reddett v. Mosley, 45 Ala.App. 38, 222 So.2d 369 (1969), wherein the Court of Civil Appeals stated: ‘The rule is one of judicial notice and requires proof of the defendant’s knowledge (actual or imputed) of the domestic animal’s dangerous propensity as a sine qua non in the elements of the claimed negligence.’ 45 Ala.App. at 40, 222 So.2d at 370.
“* * * Appellant cites Owen v. Hampson, in which this Court, quoting from a previous opinion, stated:
“ ‘Previous knowledge of the animal’s vicious habits must be alleged and proved. But positive proof is not always necessary. It may be inferred from the circumstances. But the knowledge of the vicious habits of an animal need not refer to circumstances of exactly the same kind. All that the law requires to make the owner or keeper liable is knowledge of facts from which he can infer that the animal is likely to commit an act of the kind complained of.’
258 Ala. 228, 232, 62 So.2d 245, 248 (1952), quoting Strouse v. Leipf 101 Ala. 433, 438, 14 So. 667, 668 (1893) (emphasis added). In his treatise, Professor Pros-ser has also stated that notice of the character of the animal ‘must extend to the trait or propensity which caused the damage.’ W. Prosser, Handbook of the Law of Torts, § 76 (4th ed. 1971).”

Allen v. Whitehead, 423 So.2d 835, 836-838 (Ala.1982). The law in Alabama is clear; a motion for summary judgment may be granted only when there is no genuine issue as to any material fact and the moving party is entitled to a judgment as a matter of law. Fountain v. Phillips, 404 So.2d 614 (Ala.1981), Ala.R.Civ.P. 56. All reasonable inferences from the facts are to be viewed most favorably to the non-moving party. Chiniche v. Smith, 374 So.2d 872 (Ala.1979). Finally, the summary judgment rule is to be read in the context of the “scintilla evidence” rule. Ala.R.Civ.P. 56 and comments, Barrett v. Farmers & Merchants Bank of Piedmont, 451 So.2d 257 (Ala.1984). In Allen v. Whitehead, supra, this Court stated:

“Appellant Allen asserts that there is a genuine issue of material fact relating to the alleged vicious propensities of the dog and the knowledge of appellee as to such propensities. Our examination of the record in its factual context reveals the following. In answers to interrogatories propounded by appellee, appellant stated in substance that (1) the dog was large and mean looking and frequently barked at neighbors; (2) the dog was allowed to run wild; and (3) the dog frequently chased cars and barked at them. On the other hand, appellee, by way of affidavit and also in answers to interrogatories propounded by appellant to him, in effect, stated: (1) the dog was friendly and ‘enjoyed’ playing with his children and other children in the neighborhood; (2) appellee had never received any complaints from anyone nor had any reason to believe that the dog represented any kind of threat to anyone; (3) there was nothing aggressive or threatening about the dog’s manner or behavior, but on the contrary, his disposition was quiet and gentle, and the dog was affectionate and enjoyed being petted; and (4) that to the best of the knowledge and belief of appellee, the dog had never bitten anyone prior to the instance in question. Appellee admitted that the dog was not confined.
“Considering the evidence submitted to the trial court on appellee’s motion for summary judgment most favorably to appellant, the nonmoving party, we cannot find that there existed a genuine issue of material fact. Accordingly, we hold as a matter of law that evidence that a dog was large and mean looking, chased and barked at cars, and frequently barked at neighbors is not sufficient to present an issue of fact as to the dangerous propensities of such an animal.”

We must decide whether there was any evidence that the Laws had prior knowledge of facts from which they could infer that their dog was likely to commit an act similar to that committed on White. Affidavits and other evidence offered in response to a summary judgment motion must present facts that would be admissible into evidence, and must be more than a mere statement of allegations contained in the pleadings. Ala.R.Civ.P. 56(e); Morris v. Morris, 366 So.2d 676 (Ala.1979); Whatley v. Cardinal Pest Control, 388 So.2d 529 (Ala.1980).

The affidavits and depositions reveal that the Laws’ dog had been observed in the Laws’ fenced backyard, that the dog would bark, growl, and charge the fence, including occasions in which the Laws were present, and that two young children had “teased” the dog by thrusting a stick through the fence. However, the most important evidence presented is the fact that Mrs. Law was apparently concerned about how the dog would react to Mrs. White’s granddaughter. The testimony indicates that Mrs. Law feared that the action of the previous neighbor’s children in teasing the dog might cause the dog to harm Mrs. White’s granddaughter. She had taken steps to acquaint Mrs. White’s granddaughter with the dog.

In Allen we reiterated that the crucial issue is “whether the owner knows, or has reason to know, of the animal’s dangerous propensities.” 423 So.2d at 838. The testimony in this case presents at least a scintilla of evidence that the Laws knew, or had reason to know, of the dog’s dangerous propensities. Here, unlike in Allen, there is evidence that the dog owners were concerned about the animal’s past behavior and had taken some steps to avoid problems in the future. The measures the Laws took to acquaint the dog with the new neighbors to avoid problems are commendable, but those actions, together with the other evidence concerning the dog’s previous behavior, creates an inference that the owners knew of the dog’s dangerous propensities.

We conclude that there was at least a scintilla of evidence that the dog had exhibited dangerous propensities, and that the Laws knew of these propensities.

REVERSED AND REMANDED.

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

MADDOX, J., dissents, with whom JONES and ALMON, JJ., concur.

MADDOX, Justice

(dissenting).

The dog involved in this case was fenced. He dug out under the fence to get into the neighbor's yard. The Court, in Allen v. Whitehead, 423 So.2d 835 (Ala.1982), specifically pointed out in that case “that the dog was not confined.” Yet, the Court affirmed the grant of summary judgment there and reverses this case where the dog was confined.

I realize that summary judgment is rarely appropriate in a negligence action; nevertheless, it appears to me that Allen v. Whitehead would mandate the same treatment for the dog owner here that was accorded the dog owner in that case; therefore, I respectfully dissent.

JONES and ALMON, JJ., concur.


author: JONES, Justice. JONES, Justice.

text:
    Ann K. WRIGHT v. Reedus D. FOUNTAIN. Reedus D. FOUNTAIN v. Ann K. WRIGHT.
    82-777, 82-778.
    Supreme Court of Alabama.
    May 25, 1984.
    As Modified on Rehearing July 13, 1984.

      C. Delaine Mountain and Herbert M. Newell III, Tuscaloosa, for appellant/ cross-appellee.
    William J. Donald III of Zeanah, Donald & Hust, Tuscaloosa, for appellee/cross-appellant.
   JONES, Justice.

The appeal by Defendant/Counterclaim Plaintiff (Wright) challenges the trial court’s order granting the motion of Plaintiff/ Counterclaim Defendant (Fountain) for a new trial. The cross-appeal by Plaintiff/Counterclaim Defendant asserts as error the trial court’s denial of his motion to enforce a settlement agreement. We affirm as to both the appeal and the cross appeal.

This civil action was filed by Plaintiff/Appellee Reedus D. Fountain against Defendant/Appellant Ann K. Wright, alleging that Fountain was the owner of an independent insurance agency; that he employed Wright as an office manager and bookkeeper for the agency; and that during her employment she committed various acts of misfeasance in the operation of his business. He also sought equitable relief, including the return of insurance business records in Wright’s possession and an accounting of all receipts and .disbursements handled by her in the course of her employment as office manager and bookkeeper, in addition to damages due to her alleged negligence and/or intentional acts.

Wright’s initial answer denied the material allegations of the complaint, and requested trial by jury. She then filed a two-count counterclaim against Fountain, seeking damages for alleged defamation, and for monies had and received. She later amended her counterclaim by adding Count III (the only claim that ultimately went to the jury), alleging breach of a constructive or quasi-contract, and claiming damages of $125,000. Before trial, Wright amended her original answer, asserting that she was given authority by Fountain to do any and all acts required in the conduct of his business and financial affairs.

After the case was set for trial, but before the actual trial began, Fountain filed a motion to enforce an alleged settlement agreement. After a hearing, the trial court denied the motion.

Shortly before trial, Fountain answered .Wright’s counterclaim, denying its material allegations and contending, alternatively, that Wright never made any “loans” to his insurance business; that, if money was loaned, she took more from the business than she loaned back; that any such loans were made without Fountain’s knowledge or his consent; that the loans, if made, were made by Wright under a scheme to take money from his business or to replace funds taken through Wright’s intentional, wanton, or negligent acts. Further, Fountain amended his original complaint by adding Counts II and III. Count II alleged that Wright breached her employment agreement by negligently, wantonly, or intentionally failing to perform her duties as office manager. Count III reaffirmed Plaintiffs initial allegations against Mrs. Wright, and added an additional prayer for damages of $200,000.

Following a jury verdict for Wright on her counterclaim in the amount of $65,000, Fountain timely filed a motion for judgment notwithstanding the verdict, or, in the alternative, a new trial. He alleged that the jury’s verdict was against the great weight of the evidence; that the verdict was against the law as contained in his requested jury charges; and that the verdict was a result of prejudice generated by Wright’s testimony concerning Plaintiff’s alleged sexual misconduct towards Defendant.

The trial court denied Fountain’s motion for judgment notwithstanding the verdict, but granted his motion for a new trial. This appeal and cross-appeal ensued.

FACTS

Reedus D. Fountain owns the Fountain Insurance Agency in Gordo, Alabama, where he has been in business for over 22 years. The company is licensed to write multi-line insurance, including fire, automobile, liability, workmen’s compensation, life, accident, and health insurance. In addition to his insurance business, Mr. Fountain raises cattle on his farm in Pickens County.

In January 1972, Fountain hired Ann K. Wright, a resident of Gordo, as secretary and office manager for his insurance business. Her duties included taking applications for insurance and calculating premiums, customer billing, payment of Mr. Fountain’s business, farm, and personal debts, and assistance in the preparation of Fountain’s income tax returns, as well as other general responsibilities.

Fountain maintained three separate checking accounts — one for the insurance business, one for the farm, and another personal account. . Wright was explicitly authorized to write checks on the business and personal accounts, but not the farm account. After a period of time, however, she began signing checks on the farm account as well.

Fountain’s different bank accounts were from time to time overdrawn. According to Wright, she began borrowing money in 1974 from individuals and banks in her own name and placing the money in Fountain’s accounts. Additionally, Wright placed some of her own personal savings in these accounts, as well as funds from the sale of real estate belonging to her and her husband.

According to Fountain, Wright obtained a loan from the Bank of Reform, Alabama, in December 1979, by forging his and his wife’s signatures to loan documents and putting up property owned by him and his wife as collateral. The loan amounted to $14,000.

Wright testified that her personal financial contributions to Fountain’s three accounts totalled over $79,000. She further testified that the reasons behind her contributions included: 1) Promises by Fountain that she would someday own the insurance business; 2) sexual intimidation; and 3) coercion. All of this testimony was denied by Fountain. On June 22, 1981, Mrs. Wright terminated her employment with Reedus Fountain’s insurance agency, and this litigation ensued.

THE APPEAL

We note at the outset that Counterclaim Defendant’s (i.e., Plaintiff’s) post-judgment motion limited its attack to the verdict and judgment in favor of the Counterclaim Plaintiff (i.e., Defendant). Accordingly, the trial court’s order granting a new trial in this cause is limited to the counterclaim and does not carry with it a retrial of the original claim asserted by Fountain against Wright; therefore, our review will be so limited.

The trial judge found sufficient evidence to defeat the Plaintiff’s motion for a directed verdict as well as his subsequent motion for judgment notwithstanding the verdict, the test for the two being the same. Casey v. Jones, 410 So.2d 5 (Ala.1981). He granted a new trial, however, as to the judgment for Defendant on her counterclaim on the express ground that the verdict was against the great weight of the evidence. Pepsi-Cola Bottling Company of Dothan, Alabama, Inc. v. Colonial Sugars, 423 So.2d 190 (Ala.1982).

Fountain’s motion for JNOV called upon the trial court to review its earlier ruling on Fountain’s motion for directed verdict, because both motions test the sufficiency of the evidence. The trial court exercises no discretionary prerogative in making this determination. The judge must determine whether the Counterclaim Plaintiff (i.e., Defendant) met her burden with respect to the sufficiency of the evidence to take the case (her counterclaim) to the jury. Casey, supra. In relative terms, this test is an objective one. Either the Counterclaim Plaintiff met her burden of proof and the directed verdict motion was properly overruled; or her case failed for lack of proof and the moving party (i.e., Plaintiff) was entitled to have his directed verdict motion granted.

Our review of the evidence convinces us that the trial judge correctly overruled the motions for directed verdict and JNOV. We find, as did the trial judge, that Counterclaim Plaintiff (i.e., Defendant) met her burden of proof by her testimony with respect to the monies which she claims to have expended from her own funds to pay for the operating expenses and liabilities of Fountain's insurance business. There was at least an inference of fact from the total circumstances of these transactions that Fountain knew and approved of these “loans.”

Admittedly, the test for a new trial is different and more subjective in nature than the standard for directed verdict and JNOV motions. Bekins Van Lines v. Beal, 418 So.2d 81 (Ala.1982). In case of the latter, no verdict can be sustained without supporting evidence; and rulings of the trial court with respect thereto do not reach the appellate court with any presumption of correctness. Perdue v. Mitchell, 373 So.2d 650 (Ala.1979); Chavers v. National Security Fire & Casualty Co., 405 So.2d 1 (Ala.1981). While the exercise of discretionary functions by the trial court are normally favored with a presumption of correctness on appellate review, that presumption is tempered by an equally strong presumption favoring the sanctity of a jury verdict which has already withstood the sufficiency of the evidence test. Pepsi-Cola, supra.

Where the verdict is plainly and palpably supported by the evidence, even as against a preponderance of the evidence, the trial judge should exercise his discretion in favor of the jury verdict’s validity. Rowell v. McCollough, 270 Ala. 576, 120 So.2d 729 (1960). Our case law makes it clear that the “against the great weight of the evidence” ground should be the most carefully scrutinized and rigidly limited ground for a new trial; and a new trial should be granted only in extreme cases, when to let the verdict stand would sanction a palpably wrong and manifestly unjust result. Cooper v. Peturis, 384 So.2d 1087 (Ala.1980).

With the admonition of this test firmly in mind, and with a full understanding and appreciation of Appellant Wright’s earnest contentions to the contrary, we conclude from a thorough review of the record that the trial court did not err in ordering a new trial as to her counterclaim.

Appellant’s argument is highly persuasive. In an excellent brief, she leads us step-by-step through a voluminous record, pointing to the evidentiary basis for her counterclaim: 1) The undisputed testimony indicates that Wright placed a substantial amount of her personal funds into Fountain’s bank accounts, and that Fountain received a benefit therefrom; 2) during direct testimony of Wright when questioned by her own attorney, her funds are traced into Fountain’s business by means of checks, deposit slips, and bank statements; 3) the record is devoid of any evidence which would dispute the fact that she placed these funds into Fountain’s accounts; and 4) Fountain’s own attorney described the “issue” as balancing the amount she had put in with how much she had repaid herself from the business.

This is countered by Appellee Fountain, who would uphold the granting of a new trial, thusly: 1) In December of 1979, Wright obtained a loan from the Bank of Reform in Fountain’s name for $14,000 by forging his signature and his wife’s signature on the loan documents and putting up Mr. and Mrs. Fountain’s property as collateral; 2) Fountain never authorized Wright to put her money into his bank accounts, or to borrow money, whether in her name or his, in order to keep the insurance agency going or to help pay his expenses; 3) none of Fountain’s previous office managers had ever loaned money to the insurance business to keep it going; and 4) Fountain had no actual notice that Wright was borrowing money in her name or his, transferring these monies into Fountain’s accounts, or “loaning” money to his business.

While the issue is a close one, and while we would not have disturbed the trial judge’s denial of a new trial, we feel that the trial judge’s conclusion that the verdict is so against the great weight of the evidence as to be palpably wrong and manifestly unjust should not be disturbed. The trial judge’s presence at the trial places him in a superior position to judicially review the relative credibility of the witnesses. Particularly is this true where, as here, it is apparent from the record that this trial took place in a highly tense atmosphere arising out of the past relationship of the parties. These considerations cause us to defer to the subjective judgment of the trial court in its post-trial review of the verdict.

THE CROSS-APPEAL

According to Fountain, “Prior to the trial the parties entered into an oral settlement agreement_” He says: “After the agreement was reached, Mrs. Wright experienced ‘settlor’s remorse’ and desired to be no longer bound. The Trial Court denied Mr. Fountain’s motion to enforce the settlement agreement.”

Rule 47, A.R.A.P., reads as follows:

“AGREEMENTS IN WRITING
“No private agreement or consent between the parties or their attorneys, relating to the proceedings in any cause, shall be alleged or suggested by either against the other, unless the same be in writing, and signed by the party to be bound thereby; provided, however, agreements made in open court or at pretrial conferences are binding, whether such agreements are oral or written.”

See, also, Code 1975, § 34-3-21, and Anonymous v. Anonymous, 353 So.2d 515 (Ala.1977).

While Plaintiff sought to set forth in writing the terms of the parties’ alleged settlement agreement, we are not persuaded that the parties’ negotiations produced a document reduced to writing and agreed upon by both parties. Contrary to the factual basis for this Court’s holding in Brocato v. Brocato, 332 So.2d 722 (Ala.1976), the instant record does not disclose that this “oral agreement” was made in open court or at a pretrial conference. The record does disclose that the trial judge made his decision to deny enforcement of the alleged agreement subsequent to a hearing and argument by both parties.

Because the trial judge was fully aware of, and played an integral role in, the parties’ settlement negotiations, and because we find evidence to support his findings, we uphold his order rejecting enforcement of the settlement agreement.

AFFIRMED AS TO THE APPEAL.

AFFIRMED AS TO THE CROSS-APPEAL.

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

ON APPLICATION FOR REHEARING

JONES, Justice.

The Plaintiff/ Counterclaim Defendant (Fountain) applies for rehearing and requests that the new trial m this cause include the issues involved in his complaint against Wright. Viewing the record in its totality, and considering that neither party raised this issue, the Court is persuaded by Fountain’s arguments. The opinion of May 25, 1984, is hereby modified to specifically adjudge that the new trial in this cause shall include all the claims and issues litigated in the original trial.

Three issues must be decided in Fountain’s favor in order to grant the relief requested by his application for rehearing. The first problem concerns the three verdict forms provided to the jury. Although there was no verdict form resolving the Plaintiff’s original claim in favor of the Defendant, it is apparent that the court and both parties understood that Fountain’s direct claim was subsumed in the verdict form resolving Wright’s counterclaim in her favor. We decide, therefore, that the verdict form returned by the jury, which awarded Wright $65,000 on her counterclaim, also denied Fountain’s direct claims. The judgment on the verdict was, therefore, a final judgment.

The second issue involves the intent and effect of Fountain’s post-trial motion. The alternative motion for new trial was included in the same document with the motion for JNOV and did not specifically state any grounds for the motion for new trial. We interpret the motion for new trial to have included the three grounds asserted in Fountain’s motion for JNOV. The trial judge’s order granted the motion for new trial on the ground that the verdict was against the great weight of the evidence. This we affirm.

Third, we decide that the request for a complete new trial was properly before the trial judge. Therefore, because his order granting the motion for new trial does not limit the new trial to particular claims or issues, we construe the order as granting a complete new trial as to all the claims and issues.

The issue on rehearing is whether the new trial will be a complete new trial on all the claims and issues or a new trial only as to Wright s counterclaim. The new trial is to be a complete new trial because: 1) the jury verdict, and the judgment thereon, denied Fountain’s direct claims; 2) Fountain’s motion for new trial was directed to the whole verdict and judgment; and 3) the trial judge’s order granting Fountain’s motion for new trial was intended to grant a complete new trial on both the complaint and the counterclaim.

REHEARING GRANTED; OPINION MODIFIED AND EXTENDED.

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