author: DAN M. LEE, Justice,

text:
    Lynn SHELTON v. STATE of Mississippi.
    No. 54075.
    Supreme Court of Mississippi.
    Feb. 22, 1984.

      James H. Herring, Herring & Self, Canton, for appellant.
    Bill Allain, Atty. Gen. by Bill Patterson and Anita Mathews Stamps, Sp. Asst. At-tys. Gen., Jackson, for appellee.
    Before BROOM, P.J., and HAWKINS and DAN M. LEE, JJ.
   DAN M. LEE, Justice,

for the Court:

Lynn Shelton was indicted by the Grand Jury of Lowndes County, Mississippi, at the November, 1981 term. That indictment charged him with abusing Kenneth Shelton, a nine month old child, in violation of § 97-5-39 Miss.Code Ann. (1972) as amended. From a verdict of guilty and a sentence of eighteen (18) years in the custody of the Mississippi Department of Corrections, Shelton now brings this appeal.

At trial the state introduced testimony of several doctors who had treated Kenneth Shelton for various and sundry injuries. Among those injuries were two separate incidents in which a bone in the left leg of the child was broken, and an incident where a pacifier was lodged in the child’s throat. There was also testimony by Beverly Hines, who had baby-sat for the child. She testified that during the time in which she was baby-sitting there was always something unusual about the child. ■ She stated that she noticed bruises, scratch marks, burns on the child’s chin, cuts on his lip, and on one occasion a closed hand-print on the child’s face.

Testimony of Doctors Voller, Simmons, and Rhea was that the break of the child’s leg was of a spiral or twisting nature and that such a break was unusual in non-ambulatory patients such as the child here. Drs. Voller and Simmons testified that the mother gave no reason for the fracture. Moreover, Dr. Rhea testified that the reason given by the mother for the second fracture was inconsistent with the type injury involved. Shelton’s mother-in-law testified as to his treatment of the child. She stated that he would slap the baby’s hand for putting it in its mouth, feed the baby too fast, push the baby’s nose until it cried, and that after the child had sustained one of the breaks, while it was in traction in the hospital, Shelton would take the traction ropes and raise and lower the child with them. There is also testimony from the child’s mother that Shelton was jealous of the child. Shelton’s wife testified that she told the grand jury she would not feel safe if she had to leave the baby with him.

Shelton's first assignment of error is that the indictment is insufficient in that it fails to specify the date on which the offense was committed since time is of the essence in this case. It is contended that inasmuch as the state’s evidence presented the jury with two separate and distinct instances in which the femur bone of the child’s left leg was fractured, the first occurring March 22, 1981, and the second September 20, 1981, the indictment was defective for two reasons. First, it is asserted that the lack of specificity caused the indictment to be improperly duplicitous. The pertinent part of the indictment reads as follows:

Lynn Shelton late of the county aforesaid, on or about the 22nd day of March, 1981 in the county aforesaid, to September 20, 1981, and in between said dates, did willfully, unlawfully, feloniously and intentionally, and not in self defense and not in order to prevent bodily harm to a third party, abused Kenneth Shelton, a nine (9) month old child, in such a manner so that the femur bone of said child was fractured contrary to § 97-5-39 Miss.Code Ann. (1972) as amended.

It has long been the rule in Mississippi that an objection to an indictment for duplicity cannot be made after the verdict. Wilkinson v. State, 77 Miss. 705, 27 So. 639 (1900). Even the Mississippi Code requires that an objection to an indictment must be taken by demurrer prior to the jury being empaneled. Section 99-7-21 Miss.Code Ann. (1972).

In the instant case Shelton filed a motion before trial to make the indictment more definite and certain; however, the record does not indicate that this motion was ever ruled on. The rule in this state is that where the record fails to indicate that a demurrer to an indictment was ever ruled upon by the trial court, then said motion will be considered waived or withdrawn. Sherrod v. State, 90 Miss. 856, 44 So. 813 (1907); Boatwright v. State, 143 Miss. 676, 109 So. 710 (1926).

Shelton’s second assignment of error is that the trial court erred when it gave oral instructions to the jury, commented on the testimony and weight of the evidence, commented on the defendant’s right not to testify, then commented on the testimony of Mrs. Beverly Hines. Review of the record reveals that none of the statements complained of were objected to by defense counsel. As to the instructions, it has long been the rule in this state that error in giving of instructions will not be considered on appeal where the record of the proceedings below reveals no contemporaneous objection. Goss v. State, 413 So.2d 1033 (Miss.1982); Warren v. State, 369 So.2d 483 (Miss.1979); Pittman v. State, 297 So.2d 888 (Miss.1974). Also, Rule 42 of the Mississippi Supreme Court provides that “No assignment of error based on the giving of an instruction to the jury will be considered on appeal unless specific objection was made to the instruction in the trial court...”

As to the remarks of the trial judge during the testimony of Beverly Hines again, the record indicates that no objection was made by defense counsel. In Baker v. State, 327 So.2d 288 (Miss.1976), we held:

An objection to the testimony of a witness, conduct of opposing counsel or a remark of the court should be made contemporaneously with the occurrence or matter complained of so that the court may, when possible, correct the error with proper instructions to the jury.

327 So.2d at 292, 293.

Shelton’s next assignment of error is that the court erred in allowing his wife to testify against him and in allowing the district attorney to cross-examine her as an adverse witness. Again, we note that defense counsel failed to make the proper objection during the course of the trial. However, even had the objection been made, § 13-1-5 Miss.Code Ann. (Supp.1983) provides as follows:

Husbands and wives may be introduced by each other as witnesses in all cases, civil or criminal, and shall be competent witnesses in their own behalf, as against each other, in all controversies between them. ■ Either spouse is a competent witness and may be compelled to testify against the other in any criminal prosecution of either husband or wife for a criminal act against any child, for contributing to the neglect or delinquency of a child, or desertion or nonsupport of children under the age of sixteen (16) years, or abandonment of children. But in all other instances where either of them is a party litigant the other shall not be competent as a witness and shall not be required to answer interrogatories or to make discovery of any matters involved in any such other instances without the consent of both.

Therefore, it is clear that there is no spousal immunity in a prosecution for child abuse.

Shelton also argues in his third assignment of error that the cross-examination of his wife during a voir dire of her, out of the presence of the jury, was improper because the district attorney did not follow the guidelines of Gardner v. State, 368 So.2d 245 (Miss.1979), in attempting to impeach her. Those guidelines require that before a party impeaches a witness introduced by himself he must first show that the witness is unexpectedly hostile. The witness may then be asked if he has made contradictory statements out of court, the times, places and circumstances of the statements being described to him in detail. In the instant case those requirements were sufficiently met because it was quite evident that the prior inconsistent statements about which the district attorney was questioning the witness were those statements given by the witness to a Lowndes County Grand Jury on a day certain.

Shelton’s next assignment of error is that the trial court erred in not advising him, outside the presence of the jury, of his right to testify on his own behalf. The appellant argues that Culberson v. State, 412 So.2d 1184 (Miss.1982), requires a trial judge to inform a defendant of his right to testify in his own behalf. In Culberson, we held:

We suggest to the trial judges of the state that, in any case where a defendant does not testify, before the case is submitted to the jury, the defendant should be called before the court out of the presence of the jury, and advised of his right to testify. If the defendant states he does not wish to testify, he may not be forced to take the stand; however, if he states that he wants to testify he should be permitted to do so. A record should be made of this so that no question about defendant’s waiver of his right to testify should ever arise in the future.

412 So.2d at 1186, 1187.

Culberson is not dispositive here for two reasons. First, as is apparent from the above quoted excerpt, in Culberson we merely suggested that trial judges inquire into whether or not the defendant desired to testify, and while that suggestion was certainly strong, it was not mandatory. Second, the facts of Culberson and those of the case at bar are distinguishable. In Culberson, the record clearly indicated that on motion for new trial, Culberson stated to the trial judge that he indeed desired to take the stand. In the case at bar, nowhere does the record indicate such a desire to testify by Shelton. Indeed, on motion for a new trial, the failure of the trial court to advise the appellant was not even assigned as error. Therefore, though the better practice undoubtedly is to follow the suggestion of Culberson and to have such advisement appear in the record, inasmuch as Shelton was represented by counsel throughout the proceeding and the record does not reflect any desire by appellant to testify, the failure of the trial court to advise Shelton of his right to testify does not constitute reversible error.

In his fifth assignment of error Shelton contends that he was denied a fair and impartial trial by admission into evidence of prejudicial and irrelevant matters calculated to confuse, mislead and inflame the jury. Essentially Shelton here argues that the state was improperly allowed to present to the jury “Almost a dozen instances of alleged child abuse, each unrelated to the other.” This question is settled by our decision in Aldridge v. State, 398 So.2d 1308 (Miss.1981). In Aldridge, expert oral testimony as well as X-ray evidence was admitted showing fractures of an “infant’s” bone inflicted over a “comparatively short period of time” indicating abuse, “extending over almost the entire brief life span of the child.” Aldridge at 1311. The age of the infant was not stated, but the opinion does indicate that some of the fractures were “about a month old.” Aldridge at 1310. In addressing this point, we stated:

We think this evidence, indicating a series of injuries inflicted upon the child, was properly admitted as an exception to the general rule that evidence of more than one offense cannot be admitted upon the trial of a criminal case. The evidence complained of strongly supports an ongoing, continuing and purposeful course of criminal abuse of the child and tends to negate the idea that the injuries were the result of a fall or other isolated accident. Readus v. State, 272 So.2d 659 (Miss.1973); Strickland v. State, 209 So.2d 840 (Miss.1968). The trial court did not err in admitting this evidence.

398 So.2d at 1312.

Though the evidence admitted here transpired over a period of approximately six months, Aldridge remains dispositive. The evidence complained of shows a continuing and purposeful course of criminal abuse of the child. The relevance of the evidence is obvious where, as here, it was needed to negate the testimony of appellant’s wife that the injuries were the result of a fall or other isolated accident. Inasmuch as the evidence was admissible to show a continuous and purposeful course of criminal abuse of the child and inasmuch as the evidence was relevant to negate the testimony of the wife' that the child’s leg was broken as the result of a fall or other isolated incident, appellant’s fifth assignment of error is not well taken.

Appellant’s sixth and final assignment of 'error is that the trial court erred in failing to grant his motion for a directed verdict. As has been held many times, in passing upon a motion for a directed verdict, all evidence introduced by the state is accepted as true, together with any reasonable inferences that may be drawn from that evidence, and if there is sufficient evidence to support the verdict, the motion for a directed verdict must be overruled. Bayse v. State, 420 So.2d 1050 (Miss.1982). Applying this standard to the case at bar it becomes evident that Shelton’s final assignment of error is without merit. The testimony of the doctors in combination with that of appellant’s wife and mother-in-law are sufficient to support the jury verdict.

Based on all of the foregoing, appellant’s conviction of child abuse is hereby affirmed.

AFFIRMED.

PATTERSON, C.J., WALKER and BROOM, P.JJ., and ROY NOBLE LEE, BOWLING, HAWKINS, PRATHER and ROBERTSON, JJ., concur.


source: Caselaw Access Project

author: WALKER, Presiding Justice,

license: Public Domain

text:
    The MISSISSIPPI BANK v. Steve Randall KELLY, Jr., A Minor, By and Through His Guardian, Rebecca Ann S. KELLY.
    No. 54657.
    Supreme Court of Mississippi.
    Feb. 22, 1984.
    Robert A. Biggs, III, McDavid, Edmon-son & Noblin, Jackson, for appellant.
    William Andy Sumrall, Jackson, for ap-pellee.
    Before WALKER and ROY NOBLE LEE, P.JJ., and BOWLING, J.
   WALKER, Presiding Justice,

for the Court:

This is an appeal from the chancery court of the First Judicial District of Hinds County, wherein the chancellor held the appellant in contempt and ordered it to pay unto the appellees the sum of $8,150.00 to purge itself of said contempt. From this order the appellant perfected an appeal to this Court and assigns as error, inter alia, the following:

The Mississippi Bank was never made a party to the court decree under which it was found to be in contempt of court.

On May 24, 1974 Steve Randall Kelly, Sr. petitioned the chancery court for a decree appointing him as general guardian of the estate of Steve Randall Kelly, Jr. The petition listed the sole asset of the estate as an unliquidated claim for damages arising out of injuries sustained as a result of an overdose of Demerol while a patient at Hinds General Hospital. The decree was granted and letters of guardianship were issued on May 30, 1974. A requirement of thé decree was that the petitioner obtain a $50,000.00 guardian’s bond.

Thereafter, Steve Randall Kelly, Sr., the guardian, petitioned the court for authority to compromise the unliquidated claim. Authority was granted and the claim was settled for $100,000.00. On May 30, 1974 the money was deposited in the Mississippi Bank in accounts styled “Steve R. Kelly, Sr., guardian of S.R. Kelly, Jr.” Authorized signatures were Steve R. Kelly, Sr. and William Selph, Mr. Kelly’s attorney.

On August 22, 1975, over a year later, Steve R. Kelly, Sr. filed in chancery court a petition for waiver of the guardian’s bond. That same day the chancellor entered a decree waiving the bond. The decree further provided “that the entire assets of the minor’s estate remain in Mississippi Bank and Trust Company in certificate of deposit 437 and Golden Savings Account 225-9500-3 and savings account # 125-9860-3 until such further order of this court shall be entered from time to time, and that no disbursements or withdrawals be permitted except upon direct order of this court.” A certified copy of this order was delivered to The Mississippi Bank by Mr. Kelly’s attorney.

Between December 24, 1980 and May 15, 1981 Steve R. Kelly, Sr. made withdrawals totalling $8,150.00 from two of these accounts. None of the withdrawals were authorized by the chancery court.

On August 7, 1981 Rebecca Ann S. Kelly petitioned the court for appointment as general guardian of the estate of Steve Randall Kelly, Jr. Her petition recited the fact that Steve R. Kelly, Sr., the former guardian, had since deceased. The chancellor then entered a decree appointing Mrs. Kelly as guardian.

Mrs. Kelly then filed a motion for citation for contempt against The Mississippi Bank. In her motion she alleged that The Mississippi Bank violated the August 22, 1975 court order when it allowed the former guardian, Steve R. Kelly, Sr. to make withdrawals without a court order. At a hearing on the motion both parties stipulated to the facts set forth above. The Bank, however, denied that it violated any court order in allowing the withdrawals.

After the hearing the chancellor found that the Bank had violated the court order in allowing Steve R. Kelly, Sr. to make the withdrawals. The chancellor then held The Mississippi Bank in contempt and ordered it to repay the funds wrongfully withdrawn in order to purge itself of said contempt.

On appeal the Bank urges reversal, contending first that it was never made a party to the court decree under which it was found to be in contempt for having allegedly violated.

The chancellor’s decree waiving the guardian’s bond and requiring that the funds not be withdrawn from the Bank without a court order was made pursuant to Mississippi Code Annotated section 93-13-17 (Supp.1983), which provides in pertinent part:

A guardian need not enter into bond, however, as to such part of the assets of the ward’s estate as may, pursuant to an order of the court in its discretion, be deposited in any banking corporation, building and loan association or savings and loan association in this state so long as such deposits are fully insured, such deposits there to remain until the further order of the court, and a certified copy of the order for deposit having been furnished the depository and its receipt acknowledged.

The appellees contend that this statute makes the court order binding upon the appellant Bank even though the Bank was neither served with process nor given an opportunity to be heard. We disagree.

In Sinquefield, v. Valentine, 159 Miss. 144, 132 So. 81 (1931) this court was faced with the question of whether a decree of the chancery court was binding upon a party who had no notice of the action. In that case the chancellor, under Section 1863, Code of 1930, held the appellant father to be an unsuitable parent for his two children and awarded custody to the children’s grandparents. Construing the section there involved, this court held:

It will be seen from a reading of this section that nothing is said with reference to notice or service of summons to the opposing party in proceeding under this section, but such notice is required by the due process clause of the State Constitution and the Fourteenth Amendment to the Federal Constitution, and the provisions for summons are made in different cases in the chapter in the Code on process.
Where a statute does not expressly provide for notice and a hearing, other statutes must be looked to, and the process authorized under them should be had before a decree or judgment can be entered. The Legislature cannot dispense with such notice. The court, in all cases, must proceed upon notice and inquiry. It must hear before it can adjudge, and it must give an opportunity to persons affected by the judgment to be heard before it is rendered, or else the judgment does not affect them.

(emphasis added). 159 Miss. 149, 152, 132 So. 82, 83. The validity of this same chancery court decree was again in issue in Sinquefield v. Valentine, 160 Miss. 61, 133 So. 210 (1931). That case involved an appeal of the father from an order of the chancery court adjudging him to be in contempt when he failed to surrender custody of the children. Finding the custody decree void for failure to give the father an opportunity to be heard, this Court held that the chancellor was without power to hold the father in contempt.

More recently, in McKinney v. McKinney, 374 So.2d 230 (Miss.1979), this Court held that a defendant could not be adjudged in contempt for failure to follow a court order in an action where he had not been properly served with process.

In the case sub judice, the decree of the chancery court requiring that the guardianship funds not be withdrawn without court order was entered without giving the Bank notice and affording it an opportunity to be heard. Consequently, the order was void insofar as it affected the Bank. Applying the principles of Sinquefield and McKinney, supra, the Bank cannot be held in contempt for failure to abide by the chancery court’s decree.

It is not necessary for us to address the remaining assignments of error.

The judgment of the chancery court holding the appellant in contempt and imposing a fine against it in the sum of $8,150.00 is reversed and the judgment vacated without prejudice to appellee to pursue any other appropriate relief.

REVERSED WITHOUT PREJUDICE.

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

SULLIVAN, J., not participating.


author: ALMON, Justice. TORBERT, Chief Justice ALMON, Justice.

text:
    COFFEE COUNTY ABSTRACT AND TITLE CO., and Frank E. Hearn v. STATE of Alabama ex rel. Phillip W. NORWOOD, etc.
    81-838.
    Supreme Court of Alabama.
    Sept. 23, 1983.
    As Modified On Rehearing Dec. 2, 1983.
    Rehearing Denied Feb. 3, 1984.

      Joel F. Dubina and Robert E. Sasser of Jones, Murray, Stewart & Yarbrough, Montgomery, for appellants.'
    William H. Morrow, Jr., Gen. Counsel, Alabama State Bar, Montgomery, for ap-pellee.
    Patricia D. Gurne and Albert A. Foer of Jackson, Campbell & Parkinson, Washington, D.C., and M. Roland Nachman, Jr. for Steiner, Crum & Baker, Montgomery, for amicus curiae American Land Title Ass’n.
   ALMON, Justice.

This appeal arises from a judgment granted on a petition for writ of quo war-ranto filed in the Circuit Court of Coffee County. The State of Alabama, on the relation of Phillip W. Norwood, individually and as chairman of the Unauthorized Practice of Law Committee of the Alabama State Bar, sought the writ against Coffee County Abstract and Title Company, Inc., James C. Key, and Frank E. Hearn, Jr. The complaint charged the defendants with the unauthorized practice of law and sought to have them enjoined from further acts constituting the practice of law.

The circuit court held that James C. Key had not unlawfully engaged in the practice of law, but that Coffee County Abstract and Title Company and Frank E. Hearn, Jr. were unlawfully intruding into the profession and practice of law. The court dismissed Key as a defendant and excluded Hearn and Coffee County Abstract and Title from the profession and prohibited them from practicing law in Alabama. The judgment enjoined these two defendants from:

“a. Preparing, drawing, assisting in preparing or drawing or filling out blanks of deeds, mortgages or other instruments of conveyancing for others which affect or relate to secular rights unless defendants have a proprietary interest in such property; and
“b. Conducting real estate closings in Alabama whether or not the closing is incidental to issuance of title insurance or no fee is made other than, the title insurance premium.”

The following facts led to the filing of this proceeding: on June 27, 1980, Dennis R. Sundell and John Michael Tomkovich purchased a townhouse in Enterprise, Alabama. They were lieutenants in the United States Army stationed at Fort Rucker and wanted the house as a residence and an investment. Both men were single. Upon arriving in Enterprise, they had gone to Whittaker-Warren Realtors, where Suzanne Byars agreed to show them available houses. They agreed to buy the townhouse at 13 Anthony Circle and signed an agreement of purchase on May 31, 1980. James C. Key signed the agreement as seller. K & G Development owned the property, and Key was the president of K & G.

The sale was closed on June 27, 1980, at the office of Coffee County Abstract and Title. Sundell, Tomkovich, Hearn, and Byars were present, as were Marti Foster, a broker for K & G Development, and Mr. Warren of Whittaker-Warren Realtors. Hearn conducted the closing and at the conclusion thereof invited Sundell and Tom-kovich to call him if they had any questions. During the closing, Tomkovich asked Hearn if title was passing in such a way that, should either grantee die, that grantee’s heirs would take his interest. Hearn told them that was the case, but the deed in fact passed title to them jointly with right of survivorship.

Shortly after the closing, Sundell and Tomkovich received a telephone call from a local lawyer who informed them he had seen their deed at the courthouse and thought it unusual that two single men had taken title jointly with right of survivor-ship. Sundell and Tomkovich telephoned Hearn, who continued to advise them that they had received title so that if either died his interest would pass to his heirs at law rather than to the surviving grantee.

The State brought this action charging Key, Hearn, and Coffee County Abstract and Title with practicing law in violation of state statutes and judicial decisions. The practice of law is defined in Alabama at Code 1975, § 34-3-6:

“§ 34-3-6. Who may practice as attorneys.
“(a) Only such persons as are regularly licensed have authority to practice law.
“(b) For the purposes of this chapter, the practice of law is defined as follows:
“Whoever,
“(2) For a consideration, reward or pecuniary benefit, present or anticipated, direct or indirect, advises or counsels another as to secular law, or draws or procures or assists in the drawing of a paper, document or instrument affecting or relating to secular rights; ...
“is practicing law.
“(c) Nothing in this section shall be construed to prohibit any person, firm or corporation from attending to and caring for his or its own business, claims or demands, nor from preparing abstracts of title, certifying, guaranteeing or insuring titles to property, real or personal, or an interest therein, or a lien or encumbrance thereon, but any such person, firm or corporation engaged in preparing abstracts of title, certifying, guaranteeing or insuring titles to real or personal property are prohibited from preparing or drawing or procuring or assisting in the drawing or preparation of deeds, conveyances, mortgages and any paper, document or instrument affecting or relating to secular rights, which acts are hereby defined to be an act of practicing law, unless such person, firm or corporation shall have a proprietary interest in such property; however, any such person, firm or corporation so engaged in preparing abstracts of title, certifying, guaranteeing or insuring titles shall be permitted to prepare or draw or procure or assist in the drawing or preparation of simple affidavits or statements of fact to be used by such person, firm or corporation in support of its title policies, to be retained in its files and not to be recorded.” (Emphasis added.)

This statute quite clearly prohibits title companies such as Coffee County Abstract and Title from “preparing or drawing or procuring or assisting in the drawing or preparation of deeds.” This is exactly what the trial court enjoined Hearn and Coffee County Abstract and Title from doing, with the addition of the phrase “or filling out blanks of deeds.” The addition of these words is not an expansion of the statute, but only a finding that “filling out blanks of deeds” is indistinguishable from “drawing or preparing” deeds. Coffee County Abstract and Title argues that attorneys drafted the forms of the deeds which it uses, and that the task of filling in blanks is essentially clerical and does not constitute the practice of law.

This argument overlooks the fact that decisions must frequently be made regarding the information to go into the blanks, the appropriateness of particular clauses in form deeds, and, most germane to this case, the choice of which deed form to use. The fact that Hearn gave Sundell and Tom-kovich title as joint tenants with right of survivorship when they wanted, and he thought he had given them, title as tenants in common, amply illustrates the rationale for limiting the preparation of legal documents to licensed attorneys.

The other aspect of the injunction, against conducting real estate closings, is sustainable at least against these defendants because of the evidence that Hearn gave his opinion regarding the effect of the manner of taking title. This constitutes advising or counseling as to secular law, an activity prohibited by the statute. The element of consideration is present under these facts because the evidence shows that the fee charged by Coffee County Abstract and Title included a fee over and above the title insurance premium: it charged $7.50 per thousand dollars, although the title insurance premium was only $2.50 per thousand. Some, if not all, of the excess is the title company’s charge for the closing.

Coffee County Abstract and Title cites a number of cases from other jurisdictions as holding that conducting closings and filling in blanks in preprinted forms do not constitute the unauthorized practice of law. None of the cases cited to or found by this Court, however, rely on a statute as specific as § 34-3-6, especially paragraph (c). That paragraph clarifies that the issuance of title insurance and the preparation of affidavits for the title company’s own use do not constitute the practice of law. Paragraph (c) emphatically states, however, that title companies “are prohibited from preparing or drawing or procuring or assisting in the drawing or preparation of deeds” or other documents affecting secular rights. This broad language precludes the interpretation urged by the title company that merely filling in blanks is not the practice of law.

While some of the cases from other jurisdictions do hold that title companies may conduct closings, they note that giving legal advice or exercising judgment as to which among competing forms to use would constitute the practice of law. State Bar v. Guardian Abstract & Title Co., 91 N.M. 434, 575 P.2d 943 (1978); Pope County Bar Ass’n, Inc. v. Suggs, 274 Ark. 250, 624 S.W.2d 828 (1981); The Florida Bar v. McPhee, 195 So.2d 552 (Fla.1967); Bar Ass’n of Tennessee, Inc. v. Union Planters Title Guar. Co., 46 Tenn.App. 100, 326 S.W.2d 767 (1959). See also, Land Title Co. of Alabama v. State ex rel. Porter, 292 Ala. 691, 299 So.2d 289 (1974), in which this Court held that a commitment for title insurance did not constitute a title opinion but did not reach the situation where title companies prepared documents or conducted closings.

The witnesses present at the closing disagreed as to whether Hearn advised the purchasers on the legal effect of the deed. Sundell testified that he thought the subject was discussed at the closing but was not sure. Tomkovich testified he was certain that Hearn told them at the closing that they were taking title so that their respective heirs would receive their interests if they or either of them died. Hearn, Byars, and Foster testified that Hearn gave no such advice at the closing. Sun-dell and Tomkovich stated that Hearn told them both after the closing they had taken title so their shares would descend to their heirs.

Coffee County Abstract and Title and The American Land Title Association (ALTA), in its amicus brief, argue that construing § 34-3-6 to prohibit title companies from conducting closings or filling in blanks would violate constitutional requirements of equal protection and due process. They assert that to deprive title companies of this business without proof of substantial harm to the public deprives them of the right to practice their occupation and improperly discriminates against non-lawyers. The record is replete with testimony by expert witnesses regarding the effect of allowing non-lawyers to perform these functions. Several attorneys testified that in their experience questions requiring legal advice are usually asked at closings. Filling in the blanks of a form necessarily requires deciding which form to use, and the harmful effects of that choice are evident from the facts of this case. The interest of the title companies in conducting this business, to which they refer as being incidental to their business of issuing title insurance, is subordinate to the interest of the state in regulating the practice of law.

Coffee County Abstract and Title and the ALTA argue that § 34-3-6 is vague and ambiguous as the trial court applied it to the title industry and thus violates the industry’s right to due process of law. The contention seems to be that the concept of “conducting a closing” is vague and ambiguous and thus the prohibition of such activity violates the requirements of due process. The prohibition against Hearn and Coffee County Abstract and Title conducting closings is justified by the evidence that these defendants gave legal advice in the course of a closing (the title company doing so through its agent). Because the giving of legal advice for a consideration is clearly prohibited by § 34-3-6, the prohibition against conducting closings because of this improper activity cannot be said to violate due process.

The defendants attempted to introduce evidence of alleged investigations by the United States Department of Justice into activities of the Coffee County Bar Association. They argue that this evidence would have proved that the bar association had an improper motive for instituting this proceeding. We agree with the trial court and the State that this evidence was irrelevant and inadmissible. The trial court observed that “I don’t know one thing about what the Justice Department did and I trust that that will not have any relevance on whether or not this group is practicing law.” A bad motive or intent does not preclude a party from seeking legal redress for an actionable wrong. Sloss-Sheffield Steel & Iron Co. v. Greek, 211 Ala. 95, 99 So. 791 (1924).

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

AFFIRMED.

MADDOX, FAULKNER, JONES, EM-BRY and BEATTY, JJ., concur.

TORBERT, C.J., and SHORES, and ADAMS, JJ., concur specially, with opinion by TORBERT, C.J.

TORBERT, Chief Justice

(concurring specially).

While I agree with the majority in this case, it is my view that this opinion does not hold, as a matter of Alabama law, that a title company is engaged in the unauthorized practice of law when conducting a closing of a real estate transaction.

The specific acts which constitute the unauthorized practice of law are and must be determined on a case-by-case basis. Alabama ex rel. Porter v. Dunn & Bradstreet, Inc., 352 F.Supp. 1226 (N.D.Ala.1972), affirmed, 472 F.2d 1049 (5th Cir.1973). In the instant case, we affirm the finding of the trial court that the defendant did give legal advice during the course of a real estate closing and conclude that the lower court’s prohibition of such future acts was proper.

A detailed discussion of the issue as to closing real estate transactions appears in Bar Ass’n of Tennessee, Inc. v. Union Planters Title Guaranty Co., 46 Tenn.App. 100, 326 S.W.2d 767 (1959). That court quoted the lower court’s description of the act of closing:

“C. Closing.
“(1) Upon the preparation of all necessary instruments, the parties are generally called together to execute them.
“(2) At this time, they are presented with a settlement sheet which reflects the financial status of the parties, that is, the amount of money required by the buyer to complete the purchase, the sum which the seller will receive, and other pertinent information.
“(3) The attorney, or closer, either individually or through the title company, proceeds to disburse the funds as reflected by the settlement sheet.”

326 S.W.2d at 772.

The Tennessee court upheld the lower court’s handling of the closing issue, stating:

“Step C. Closing. The execution of the deeds by the parties may be performed before any notary public, and does not involve the practice of law. The preparation of the settlement sheets, in the Court’s opinion, is entirely a clerical procedure which does not require the services of a lawyer and, therefore, cannot be considered as the unlawful practice of law, and the Court so holds.
“Disbursements of funds, of course, may be done by any lawyer, layman, or corporation, so empowered, such as defendant. There is proof to the effect that many lenders of funds for the building and purchase of homes in this area are located away from here. It is a most natural requirement of these lenders that a financially sound institution handle disbursement of funds furnished.
“The chief objection which complainants raise to defendant engaging in Step C is that the parties to the transaction at this point seek legal advice as to the effect of their action. This is not necessarily so, the Court being of the opinion that the proper time to so advise the parties is upon the preparation of the instruments, covered in Step B. The Court, therefore, holds that nothing in Step C constitutes the unlawful practice of law.”

326 S.W.2d at 773.

I agree with the Tennessee court’s handling of this issue. If the parties to the transaction raise a legal question at the closing, the title company should stop the proceeding and instruct them to consult their attorneys. As long as the closing involves only those steps outlined above, a title company should be permitted to conduct closings, and such conduct is not the unauthorized practice of law.

SHORES and ADAMS, JJ., concur.

ON APPLICATION FOR REHEARING

ALMON, Justice.

Coffee County Abstract and Title Company, in its application for rehearing, states that “the Court has, through its affirmance in toto of the Circuit Court, confused, and not clarified, the question of whether Coffee County Abstract and Title Company can in fact conduct real estate closings.” Upon further reflection, we agree that the portion of the trial court’s order enjoining Coffee County Abstract and Title Company from conducting closings should be modified to read as follows:

“b. Conducting real estate closings in Alabama at which officers or employees of Coffee County Abstract and Title Company give legal advice or express opinions as to the effect of legal documents, whether or not the closing is incidental to issuance of title insurance.”

This alteration is consistent with the reasoning of the original opinion. With this modification, the judgment of the trial court is affirmed.

APPLICATION GRANTED; OPINION EXTENDED; AFFIRMED AS MODIFIED.

All the Justices concur.


author: PER CURIAM. TORBERT, Chief Justice FAULKNER, Justice

text:
    ARKEL LAND COMPANY v. Barney CAGLE and Sally Cagle.
    81-575.
    Supreme Court of Alabama.
    Sept. 23, 1983.
    Rehearing Denied Feb. 3, 1984.

      Jack Livingston and Gerald R. Paulk of Livingston, Porter & Paulk, Scottsboro, and John H. Morrow and Walter J. Sears of Bradley, Arant, Rose & White, Birmingham, for appellant.
    William J. Baxley and Joel E. Dillard of Baxley, Beck & Dillard, Birmingham, for appellees.
   ON APPLICATION FOR REHEARING

PER CURIAM.

After further consideration of this case by the entire Court, the original opinion is withdrawn and the following is entered as the opinion of the Court.

This case involves disputed factual issues in a fraud action. The trial court granted judgment on a jury verdict for the plaintiffs and overruled defendant’s motion for new trial or, in the alternative, for judgment notwithstanding the verdict. The appellant, Arkel Land Company, argues that the verdict was not supported by the evidence and the action was barred by the statute of limitations.

This appeal turns on questions of alleged fraudulent misrepresentations inducing plaintiffs to execute a coal mining lease, the time of discovery of the fraud, and an assertion of estoppel to raise the statute of limitations because of assurances by an agent of defendant Arkel that plaintiff need not hire a lawyer. A full discussion of the facts is necessary for a decision in this case.

In 1969 or earlier, Wyatt Stuart, representing Arkel’s predecessor corporation, Farco, approached Barney Cagle on his farm and asked if he wanted to lease his coal lands to Farco. Cagle replied that he did not. Stuart asked again on various other occasions, and Cagle continued to refuse. In 1969, Farco sold its stock and holdings to Arkel and Arkel’s holding company, Arch Mineral Corporation. Soon thereafter, Arkel raised the royalties Farco had been offering, from five cents per ton where the lessor did not own mineral rights and ten cents where the lessor did own mineral rights, to ten cents and twenty cents.

Stuart continued to ask Cagle if he wanted to lease to Arkel at the new rate. Cagle refused for a time but later agreed to lease in December 1970. Cagle owned 315 acres of land, most of which he farmed. Jackson County Highway 92 ran through his property, leaving about 65 acres on the east side of the road and the remainder on the west. Cagle told Stuart he did not want to lease the property east of the road because he wanted his son to have it.

Stuart and Cagle went to Joe Dawson, a local attorney, for Dawson to draft the lease. Stuart testified that Dawson represented Arkel in Jackson County and drafted Arkel’s leases in the area. Dawson had also represented Cagle on a number of occasions and knew that Cagle was in tight financial circumstances at the time. Cagle testified that he did not know at the time that Dawson was representing Arkel.

Cagle and his wife Sally went to Dawson’s office with Stuart on December 19, 1970. Dawson presented a short form lease to be executed for recording and a long form lease to which the short form referred as containing the terms of the lease. The property descriptions in both leases included all 315 acres. Mr. and Mrs. Cagle objected, saying that they did not want to lease the property east of the road. Dawson, according to the Cagles, replied that he could not take the property out of the short form lease but he would leave it out of the long form lease. The Cagles agreed to sign on this condition.

Dawson changed the last page of the long form lease to include the following paragraph:

“Lessee covenants and agrees with Lessor that Lessee will not mine any coal from any part of the South half of the Southwest quarter of Section 18, Township 2 South, Range 10 East which is East of the public highway, which is known as County Highway No. 92, and which runs in a North and South direction across the Southwest quarter of the Southwest quarter of said section 18, without the written consent of the Lessor.”

The Cagles signed both this and the short form lease. Dawson sent copies to Arkel and had the short form lease recorded.

In 1978, Cagle attempted to lease the coal under the property east of the road to Invesco, a mining company. Invesco searched title, found the short form lease, and informed Cagle the coal was leased to Arkel. Cagle complained to Dawson, who set up a meeting with Jack Allen, a representative of Robertson & Associates. In 1977, Arkel had assigned its rights under the lease to the Tennessee Valley Authority, and Robertson & Associates was mining for TVA. Allen refused to release Cagle from the lease, stating that the Cagles might consent to allow TVA to mine the property by the time TVA was ready to mine it. Cagle testified that late in 1978 he asked Dawson if he should get another lawyer, but Dawson said there was no need, he would take care of it. Cagle testified that Dawson repeatedly assured him for a year or more that he would straighten out the problem. In February of 1980, Cagle did go to another lawyer, his present counsel, who filed this suit in August 1980.

The Cagles sued Arkel and Stuart for compensatory and punitive damages arising out of alleged fraudulent misrepresentations inducing the Cagles to execute the leases to Arkel. They included but later dropped a second count for cancellation of the lease. A motion to dismiss the complaint was filed for the reason, among others, that Arkel had been dissolved in 1977. The Cagles conducted discovery and filed an amended complaint seeking to add certain parties. Of these, all were stricken except Arch Mineral Corporation, which owned all of Arkel's stock upon the dissolution of Arkel. The court ordered a separate trial for Arch; the claims against Ark-el and Stuart proceeded to trial.

After a jury verdict and judgment for the Cagles for the sum of $250,000.00 against Arkel, Arkel filed a motion for a j.n.o.v. or a new trial, alleging, inter alia, insufficiency of the evidence, the statute of limitations, and the verdict being a product of prejudice. The trial court denied this motion and entered a Rule 54(b), A.R.Civ.P., order of finality, the claim against Arch Mineral Corporation being still pending. Arkel brought this appeal.

In deciding this appeal, we must be mindful of the standard for reviewing a decision of a trial court not to grant a motion for a new trial on the grounds of insufficiency of the evidence:

“[T]he decision of the trial court, refusing to grant a new trial on the ground of the insufficiency of the evidence, or that the verdict is contrary to the evidence, will not be reversed, unless, after allowing all reasonable presumptions of its correctness, the preponderance of the evidence against the verdict is so decided as to clearly convince the court that it is wrong and unjust."

Cobb v. Malone, 92 Ala. 630, 635, 9 So. 738 (1891); Hubbard Bros. Constr. Co. v. C.F. Halstead Contractor, Inc., 294 Ala. 688, 321 So.2d 169 (1975).

Arkel argues that the Cagles signed the long form lease with full awareness of the above-quoted provision that the land east of the road would not be mined without the written permission of the Cagles. Thus, Arkel contends, the evidence does not support a finding of fraudulent misrepresentation that the land east of the road was not included in the lease.

The Cagles counter that they relied on Dawson, not knowing at the time that he was acting as agent for Arkel, when he told them that the land east of the road would not be included in the long form lease. They point out that Mr. Cagle has only a fifth-grade education and his wife is accustomed to leaving business matters to him. They cite Southern Building & Loan Ass’n v. Dinsmore, 225 Ala. 550, 144 So. 21 (1932), as supporting their argument that the writing does not bar their fraud action where they allege that an agent of the defendant misrepresented its contents or its effect. In that case,

“plaintiff did not read the certificate and there is no evidence he had any actual knowledge of its contents, and his proof tends to show that he was lulled into a feeling of security and into any neglect to read the same by the misrepresentations of the agent. Under these circumstances the law imputes to him no knowledge of its contents .... The jury could infer that the agent knew the plaintiff was a farmer with little or no experience in the matter of corporate stock .... ”

Id., 225 Ala. at 552-53, 144 So. 21 (citations omitted).

In this case, although Mr. and Mrs. Ca-gle both knew of the added clause, it is not clear that either read it and understood it. Mrs. Cagle’s testimony included the following:

“Q. Well, did he also include in that a provision that that property east of the road could not be mined without yours and your husband’s written consent?
“A. Well, I didn’t give it no thought; I just thought that he had it fixed okay.
“Q. That was what you all talked about, and that was actually what Mr. Dawson put in the lease; wasn’t it?
“A. About it would not be mined?
“Q. Yes, ma’am.
“A. He put that in there; I remember noticing it right at the top; and I thought, ‘Well,”—
“Q. That’s right above your signature?
“A. Yes, sir; but I thought that he had it fixed right.” (Emphasis added.)

It is not clear that Mrs. Cagle read the whole paragraph to learn that it said Arkel agreed not to mine the land without written consent.

The Cagles’ son Bronlee and Mr. Cagle’s farming partner, Homer Reece, testified that they heard Stuart tell Mr. Cagle at the farm that the land east of the road would not be included in the lease. Both of the Cagles testified that Mr. Cagle insisted at the closing that the land east of the road not be included in the lease. Mr. Cagle admitted he knew the description in the short form lease included all the property, but maintained that Dawson said he could not take the land east of the road out of the short form but would leave it out of the long form.

Clearly, whether the land was left out of the lease entirely or included with a proviso that it could only be mined with their written consent made a material-difference to the Cagles. In the latter event, the lease created a cloud on the title to the land east of the road which worked to the injury of the Cagles in numerous ways, including the inability to lease the land to Invesco. No reason exists in fact or in law for the short form lease to include the property and the long form to leave it out or provide that it can only be mined with permission, and Arkel has not attempted to advance such a reason.

If one believes the Cagles’ testimony, as the jury was entitled to do, it is clear that they thought Arkel would have no lease on the land east of the road and they did not understand the legal significance of including the land in the lease with a proviso that it would not be mined without written consent. Cagle was asked:

“Q. All right; and you did have a discussion about the twenty acres of land — or the lands that lay on the east side of the road, with Mr. Dawson, didn’t you?
“A. Yes, sir.
“Q. And what, if anything, did he tell you?
“A. He told me that they would leave it out, and I kept calling his hand to it; and he said, ‘I’m going’ — He said he was writing the short form; and he said, T can’t leave it out on this short form, but I’m going to come back with a long form and leave it out.”

This lack of understanding of the actual effect of the Arkel leases is also evident from the fact that Mr. Cagle attempted to lease the land to Invesco in 1978.

The fact that Dawson, acting as agent for Arkel, lulled the Cagles into believing that the lease reflected their wish not to lease the land east of the road, brings the case within the rule of Southern Building & Loan Ass’n v. Dinsmore, supra. The Cagles also quote Parker v. Ward, 224 Ala. 80, 82, 139 So. 215 (1932): “When the statement of a fact is assumed to be within the knowledge of the person making it, the other has the right to rely on its truth, and in the absence of anything to arouse suspicion is not bound to make inquiry or examine for himself.” Certainly the Cagles could rely on the truth of Dawson’s statement that he was taking the land out of the long form lease, and they were not bound to inquire further because they thought Dawson represented them and did not know he worked for Arkel.

Arkel argues that Dawson was not its agent. The record indicates, however, tht Dawson worked out the terms of leases for Arkel. He testified: “Well, we had — These leases, if you will look at them, they are all practically the same form; and the only thing that we would do would be to change that part of the form that had to be changed in order for it to fit that particular one.” He went to Arkansas for the closing of the sale of Farco to Arkel, and he testified that he was the only attorney for Arkel in Jackson County. Arkel, not Ca-gle, paid him for drafting the Cagles’ lease.

Dawson was evasive about whether he was on retainer to Arkel:

“Q. But you say that you were not on a retainer for them?
“A. I never was on a retainer.
O’ Are you sure of that?
<J Yes, sir.
o* Do you recall on your deposition ... that you were asked the question, ‘How were you initially retained or paid by Arkel?’
<! I think so.
O* Do you recall that you answered, ‘We were paid a retainer, and we were paid so much an hour for the time that we devoted to them’?
"A. I expect that’s what I answered, because we were paid a retainer for a short time.
Gf> You were paid a retainer for a short time?
<J For a very short time.
O» And—
<tj Then we were paid on an hourly basis.”

Dawson negotiated leases with other landowners in the area. All of the leases introduced into evidence contained terms more favorable to the lessors, chiefly in larger initial payments than the Cagles received and shorter terms with renewal provisions. These other lessors had not acted under the impression that Dawson was representing them, but rather had negotiated on their own behalf or had independent representation.

Clearly, then, this evidence was sufficient to support a factual finding that Dawson was representing Arkel as his client. “Omissions and commissions of an attorney are to be regarded as the act of the client whom he represents.” Nelson v. Darling Shop of Birmingham, Inc., 275 Ala. 598, 604, 157 So.2d 23 (1963); Lawrence v. Gayle, 294 Ala. 91, 312 So.2d 385 (1975).

A principal is liable for the fraud of its agent, committed in the course of his employment, where others rely on the fraudulent misrepresentations to their detriment. District 20, UMWA v. Sams, 287 Ala. 312, 251 So.2d 613 (1971), cert. denied, 404 U.S. 1017, 92 S.Ct. 677, 30 L.Ed.2d 664; Hagood v. Knight, 257 Ala. 64, 57 So.2d 616 (1952).

The fraud is imputable to Arkel not only-through Dawson, but also through Stuart, who was present and knew of the provision. Stuart, a former probate judge, would also have known the legal significance of requiring permission to mine the land rather than leaving it out altogether. The Cagles testified that Stuart repeatedly insisted at the closing that Arkel wanted a lease on the land east of the road. Stuart’s testimony also supports the finding that Dawson acted as Arkel’s agent. The Ca-gles’ attorney asked him if he and Dawson worked together for Arkel:

“A. We worked together as much as we could; I’d talk to property owners and get the description of their property and take it to Mr. Dawson.
“Q. Okay; and as a matter of fact, every lease ... was prepared by Joe Dawson representing Arkel or Arch or whichever one was the owner; he did all of those, didn’t he?
“A. I believe that there were several that he didn’t do, sir; but that was because the property owners requested somebody else to do it.
“Q. Okay; but what percent of them did Mr. Dawson do?
“A. Ninety-nine percent of them.”

The agency question also arises in connection with the statute of limitations issue: Cagle knew in 1978 that the Arkel lease did include the land east of the road, but he did not bring suit for more than a year. Dawson, however, told him not to worry about it, that he would take care of it. Cagle testified:

“He told me that he would get it straightened out, that it shouldn’t have been in there; it shouldn’t have been worded like it was; and he felt like that it was his fault; and I asked him did he think that I ought to hire a lawyer; and he said, ‘No’; he said that, ‘There’s no need in going out here spending your money for a lawyer’; he said, ‘I’ll get it straightened out for you.’ ”

Cagle testified that Dawson put him off in that manner until February of 1980, when he went to his present counsel. The Cagles argue that Arkel is estopped to raise the statute of limitations for this period because Dawson persuaded them not to bring suit. We agree with this position, and we hold that the jury was entitled to find that Dawson was continuing to act as agent for Arkel. He testified that he was representing Arkel in a case even at the time of trial. Moreover, Cagle knew in 1978 that Dawson had represented Arkel at the closing in 1970 and Dawson’s assurances implied that he still had authority to speak for Arkel.

The judge instructed the jury on this estoppel argument:

“Ladies and gentlemen, if one, by his own action, induces another not to file suit or not to take any action, then he is estopped to plead the statute of limitations. So if the plaintiffs were induced by Arkel or its agents to take no actions, then Arkel would be estopped to plead the statute of limitations so long as this inducement continued.... [Wjhether or not the rules of estoppel would apply is a question of fact for you to determine, along with many other questions of fact that exist in this case.”

This is a correct statement of the law. Mason v. County of Mobile, 410 So.2d 19 (Ala.1982); Seybold v. Magnolia Land Co., 376 So.2d 1083 (Ala.1979); City of Montgomery v. Weldon, 280 Ala. 463, 195 So.2d 110 (1967).

The judge instructed the jury that it could return a verdict only against Arkel on the issue involving the land east of the road because estoppel does not apply to Stuart. The Cagles also claimed that Stuart told them the price Arkel was offering was the highest price being paid in Alabama and the highest price they would see in their lifetime. They alleged that they only discovered this alleged misrepresentation in 1980 when they went to their present attorney who told them higher prices were paid in other parts of the state in 1970. The trial court instructed the jury to return a verdict against both Stuart and Arkel only if it found in favor of the Cagles on this issue. Because the jury returned no verdict against Stuart, the parties concede that the jury found in favor of the defendants on the “highest price” issue and do not raise it in this appeal.

Arkel argues that the verdict was a result of prejudice raised in the jury by references the Cagles and their attorneys made to the wealth of Arkel and to mining by TVA on the land east of the road. The first of these matters arose when the court allowed the Cagles’ counsel to ask the prospective jurors,. over objection, whether they had any connection to the Hunt brothers, who are Texas oil millionaires, or to Ashland Oil Company. The Cagles had attempted to add Ashland and the Hunts as defendants, based on a deposition taken from Stuart. The court granted a motion to strike Ashland and the Hunts as parties, because Arch was the sole stockholder of Arkel at the time of dissolution. Nevertheless, it was not improper for the Cagles’ counsel to ask the prospective jurors if they were associated with Ashland or the Hunts in light of the possibility that those parties had a connection with Arch. The trial court did not abuse its discretion in allowing this question. Shelby County v. Baker, 269 Ala. 111, 110 So.2d 896 (1959); Louisville & N.R. Co. v. Davis, 236 Ala. 191, 181 So. 695 (1938).

The second area of alleged prejudice, the mining of the land by TVA, relates directly to the damages suffered by the Cagles: If Arkel had not included the land east of the road in the lease, its assignment to TVA would not have affected that land. We find no error in the overruling of objections to this testimony.

We conclude that there is substantial evidence from which the jury could infer that Dawson was in fact representing Arkel as its agent and that he intentionally misled the Cagles as to the legal effect of the two leases. Cagle relied on the misrepresentation of Dawson, thinking that Dawson, who had previously represented him, was his attorney and was looking out for his interest. After Cagle learned of the legal problem arising from the two inconsistent leases, Dawson reassured him that he would cure the problem and told him he did not need to involve new counsel.

Thus the essential elements of a fraud action are present: an intentional misrepresentation by an agent or agents of Arkel, intended to induce the Cagles to sign the lease, and reliance by the Cagles upon that misrepresentation to their detriment. Additionally, as to the statute of limitations question) Dawson lulled Cagle, who had only a fifth-grade education, into taking no further action. The verdict was supported by the evidence, and the trial court did not err in denying Arkel’s motion for new trial or j.n.o.v.

The judgment of the trial court is due to be, and is hereby, affirmed.

REHEARING GRANTED; ORIGINAL OPINION WITHDRAWN; AFFIRMED.

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

TORBERT, C.J., dissents with opinion.

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

TORBERT, Chief Justice

(dissenting).

I am of the opinion that this action was clearly barred by the statute of limitations applicable to actions for fraud and deceit. The Code sections involved, Code 1975, §§ 6-5-100 through -104, are governed by the one-year statute of limitations set forth in Code 1975, § 6-2-3. The one year begins to run on the date upon which the aggrieved party discovers the facts constituting fraud. The testimony of the plaintiffs indicates that they were aware in 1970, when the lease was executed, that the land east of the road was included in the short form lease. Further, the long form lease also included a description of property “which is East of the public highway, which is known as county Highway No. 92.” Thus, if there was fraud as to the inclusion of the acreage east of the road, the plaintiffs were on notice from the date of execution, December 19, 1970. Even if they did not know about it in 1970, they clearly knew of its inclusion in 1978 when they began to try to get out of the lease.

I am not persuaded by the arguments that Arkel is estopped to raise the statute of limitations defense because of the assurances by its alleged agent Joe Dawson that he would take care of the problem. Arkel was dissolved as a corporation in 1977; therefore, Mr. Dawson could not have been its agent after that time. Further, Mr. Cagle met with representatives of the as-signee of the Cagle lease, T.V.A., in 1978, and they refused his request to release the land east of the road to Mr. Cagle. Mr. Cagle could not have reasonably relied on Dawson’s assurances to correct things when the new lessee refused to do so. Reliance is an essential element of estop-pel. Traders and Farmers Bank of Haleyville v. Central Bank of Alabama, 294 Ala. 622, 320 So.2d 638 (1975). Thus, this action, brought in August of 1980, was brought more than one year from the date the alleged fraud was discovered and is barred by the statute of limitations.

FAULKNER, Justice

(dissenting).

I dissent.

Defendant Arkel Land Company (Arkel) appeals from the judgment of the Circuit Court of Jackson County for the plaintiffs, Barney and Sally Cagle, for $250,000.00, and the court’s denial of Arkel’s post-judgment motions. The suit involved a written coal mining lease between the Cagles and Arkel. The lease was dated December 19, 1970, and was executed in two counterparts, one called a short form lease, which was recorded, and the other a long form lease, which was not to be recorded.

The Cagles filed suit against Arkel and Wyatt Stuart, individually and as an agent of Arkel, on August 7, 1980. Count I alleged there was a false representation knowingly made to the plaintiffs as to the royalty rate, which was the “industry standard for the State of Alabama for similar strip mining coal leases,” and that the price per ton included in the December 19, 1970, written lease was misrepresented. Plaintiffs ultimately did not prevail on this aspect of Count I. Count I also alleged that the defendants represented that under no circumstances would the written lease contain property owned by the plaintiffs in the southwest quarter of Section 18 which lies east of Jackson County Highway 92. Plaintiffs alleged that these lands were included in the written lease dated December 19, 1970, without their knowledge and consent.

Count II of the complaint alleged that the written lease had been assigned to the United States of America for the use and benefit of the Tennessee Valley Authority (TVA) and prayed for cancellation of the lease. Defendants moved to dismiss this count for lack of a necessary party (TVA), and the count was dismissed by plaintiffs on January 29, 1980.

An appearance by counsel revealed that Arkel was dissolved in the year 1977, and the jurisdiction of the court, as well as process, was challenged. Thereafter, interrogatories were propounded by the plaintiffs to Arkel, seeking to discover the shareholders of Arkel on the date of its dissolution. Answers to interrogatories disclosed that Arch Mineral Corporation was the owner of the stock of Arkel at the time of Arkel’s dissolution in 1977. Thereafter, on April 6, 1981, the plaintiffs amended the complaint by naming Nelson B. Hunt, William Herbert Hunt, Ashland Oil, Inc., and Arch Mineral Corporation as defendants. The court struck Ashland Oil Company, Nelson B. Hunt, and William Herbert Hunt as parties defendant, but Arch Mineral Corporation, the sole stockholder in Arkel at the time of its dissolution, was continued as a party defendant. Proceedings against Arch Mineral Corporation were severed for a separate trial. A pre-trial order was entered on October 18, 1981, stating that the plaintiffs’ claim against Arkel and Stuart was based upon fraud and deceit. The defendants pleaded the general issue and the statute of limitations of one year. Plaintiffs contended the action was filed within one year from the date they discovered the fraud or within one year from the date they could have discovered the fraud by the exercise of due diligence.

After the close of the plaintiffs’ (Gagles) evidence, the plaintiffs filed a written plea of estoppel to the defense of the statute of limitations, alleging:

“The defendant(s) is (are) estopped from asserting the defense of the statute of limitations due to the fact that the attorney for the defendants, Hon. Joe Dawson, was also serving as the attorney for the plaintiffs and in such position, advised the plaintiffs that they had nothing to worry about concerning the land or property east of County Road # 92 being included in said lease in that he, the said Joe Dawson as attorney for plaintiffs, had taken care of that matter for the plaintiffs and that the property east of County Hwy. 92 was not included in the lease.”

At the close of the plaintiffs’ evidence, the defendants moved for a directed verdict, which was denied. At the close of all the evidence, the defendants again moved for a directed verdict; the court granted the motion only as to Stuart and only as to that aspect of the case concerning the land east of Highway 92. The court instructed the jury with reference to the two issues submitted for its consideration. The first issue was against Stuart and Arkel and related to the representations of the price per ton for coal included in the lease. The second issue was against Arkel alone and related to the land east of Highway 92 being included in the lease. The jury was instructed that any verdict referable to the royalty price would be against both Arkel and Stuart and that any verdict referable to the land east of the road must be against Arkel alone. Verdict forms consistent with these instructions were submitted to the jury. Thereafter, the jury returned a verdict in favor of the plaintiffs and against Arkel alone for $250,000.00. Thus, the jury based its verdict only on the alleged fraud with respect to the land east of the road. Judgment was entered accordingly by the court on December 16, 1981. Motion for judgment notwithstanding the verdict and alternatively for new trial was filed January 14, 1982, amended February 26, 1982, and heard on February 26, 1982.

The court overruled that motion March 2, 1982. To avoid any uncertainty with respect to the plaintiffs’ claim against Arch Mineral Corporation, the judgment in favor of the plaintiffs and against Arkel was made final pursuant to Rule 54(b), A.R. Civ.P., by order entered March 30, 1982. Notice of appeal was filed April 1, 1982.

The Cagles’ case is predicated upon their contention that the land east of the road was not to have been included in the lease but was included by fraud. To prove fraud, one must produce clear and convincing proof. Lamb v. Opelika Production Credit Assoc., 367 So.2d 957 (Ala.1979). I contend that the Cagles did not meet their burden.

The lease was prepared by an attorney and was executed in his office. He prepared the lease at the request of Arkel, but he had been an attorney for the Cagles for thirty-five years. The lease was executed in two counterparts, one called a short form lease, which was recorded, and the other a long form lease, which was not to be recorded. The Cagles admitted receiving copies of the two parts a few days after the execution.

Evidence was introduced at trial that Mr. Cagle admittedly signed a short form lease for recording purposes which included the land east of the road. The following is Mr. Cagle’s account of the conversation with the attorney about including lands east of the road:

“Q. Who was present at the time that these leases were prepared?
“A. Me, and my wife, and [the attorney], and Dwight [Wyatt?] Stuart.
“Q. All right; and you did have a discussion about the twenty acres of land — or the lands that lay on the east side of the road, with [the attorney], didn’t you?
“A. Yes, sir.
“Q. And what, if anything, did he tell you?
“A. He told me that they would leave it out, and I kept calling his hand to it; and he said, ‘I’m going’ — He said he was writing the short form; and he said, ‘I can’t leave it out on this short form, but I’m going to come back with a long form and leave it out.’
“Q. All right; so he told you that he was going to put it in the short form but that he was going to leave it out of the long form?
“Q. All right; you understood that the 315 acres was to be in the short form, is that right?
“A. Yes; he said that he was putting it in the short form; and I asked him why was he putting it all in there; he said that he had to, but he would come back and take it out in the long form.
“Q. Okay; so you knew that the 315 acres was in the short form when you and Mrs. Cagle signed it?
“A. Yes, sir.” (Emphasis added.)

Cagle testified that the attorney said he would take the wording concerning the land on the east side of the road out of the long form lease. However, when the Ca-gles signed the long form lease the following language was immediately above, and on the same page as, their signatures:

“Lessee covenants and agrees with Lessor that Lessee will not mine any coal from any part of the South half of the Southwest quarter of Section 18, Township 2 South, Range 10 East which is East of the public highway, which is known as County Highway No. 92, and which runs in a North and South direction across the Southwest quarter of the Southwest quarter of said Section 18, without the written consent of the Lessor.”

Mrs. Cagle also testified that she noticed the “written consent” provision at the time of execution.

It is my opinion that Mr. Cagle’s testimony stating that the attorney was to leave the east land out of the long form lease does not amount to a showing of misrepresentation or concealment by the attorney of the terms of the lease. This court held in Blake v. Coates, 292 Ala. 351, 294 So.2d 433 (1974), that a party signing a guaranty note cannot defeat his liability as guarantor with the oral statement, “They told me I would not be personally liable.” Similarly, I believe that Mr. Cagle, who knew that all of the lands were included in the short form lease, should not be allowed to alter or amend the lease by oral testimony to the effect “They told me they would change it.”

As to the Cagles’ contention that the attorney erred in the preparation of the lease, I find that under the facts of this case there is no evidence to make Arkel responsible for that error. It is difficult for me to understand how the majority could hold that Mr. Dawson could be said to be Arkel’s agent in 1978, when in fact, Arkel had been dissolved in 1977. Thus, the dissolution terminated the attorney-client relationship between Arkel and Dawson, and no representation made by Dawson to Cagle could be binding on Arkel.

Having written the original opinion, I have not read or heard anything to change my position.

MADDOX and ADAMS, JJ., concur.

      . The court denied Arkel's motion to dismiss, and Arkel has taken no appeal from that ruling. We note that the Code section applicable at the time this suit was filed, § 10-2-212, provided a five-year limitation for suits against corporations after dissolution. Cf. Code 1975, § 10-2A-203, added by Acts 1980, Act No. 80-633, which allows suit for only two years after dissolution, effective January 1, 1981.


author: ADAMS, Justice.

text:
    Margaret Morris CAMMORATA v. Martha D. WOODRUFF, Horace Holland and Jerry W. Woodruff.
    82-30.
    Supreme Court of Alabama.
    Sept. 30, 1983.
    Rehearing Denied Jan. 27, 1984.

      Jake B. Mathews, Jr. of Merrill, Merrill, Mathews & Allen, Anniston, for appellant.
    Jerry B. Oglesby and Thomas E. Dick of Lybrand, Sides, Oglesby, Held & Dick, An-niston, for appellees Martha D. Woodruff and Jerry Woodruff.
    Herbert D. Jones, Jr. of Burnham, Kline-felter, Halsey & Love, Anniston, for appel-lee Horace Holland.
   ADAMS, Justice.

This is an appeal from a judgment based on a jury verdict in favor of the defendants in an action for ejectment. The plaintiff, Margaret Morris Cammorata, alleged that defendants Martha D. Woodruff and Jerry Woodruff (the Woodruffs), entered into possession of the contested property pursuant to a lease-sale agreement, that the Woodruffs failed to purchase the property within the time limit specified in the agreement, and that they refused to quit possession upon notification of Cammorata’s intent to possess. The Woodruffs answered, denying the material allegations, and asserted a counterclaim for specific performance, or damages in the event that specific performance was not granted. Defendants also requested a jury trial. Cammorata denied the material allegations of the counterclaim, and filed a third-party complaint against Horace Holland (Holland), the real estate agent who had handled the sale under the lease-sale agreement. Cammorata claimed that if she was found liable for relief under the counterclaim, it would be because of the acts or omissions of Holland. Later, the third-party complaint was amended to seek recovery from Holland on theories of negligence, fraud, conversion, and breach of contract.

After presentation of Cammorata’s evidence at trial, the trial court granted Holland’s motion for a directed verdict, stating that the statute of limitations had run. Following presentation of the Woodruffs’ evidence, the court granted Cammorata’s motion for directed verdict as to the defendants’ counterclaim, but denied the motion as it pertained to the plaintiff’s action in ejectment. That matter went to the jury, which entered a verdict finding “in favor of the defendants for the real property sued for and described in the complaint.” After denial of Cammorata’s motions for j.n.o.v. and new trial, she appealed. The Woodruffs did not appeal the directed verdict for the plaintiff on their counterclaim.

The following issues are set out in the appeal by the plaintiff:

1. Was there an oral modification of the lease-sale agreement under the facts of this case, precluding the plaintiff from being entitled to ejectment of the defendant?
2. Did the agent, Holland, have authority to alter orally the terms of the original written agreement under the facts of this case?
3. Was there evidence of a novation in this case?
4. Had the applicable statutes of limitations expired as to Holland at the time the complaint against him was filed?

We answer no to the first three questions, and pretermit discussion of the fourth. The judgment of the trial court is reversed.

The following additional facts are necessary to an understanding of this case:

Cammorata and her mother, Mrs. Crouch, jointly owned, with rights of sur-vivorship, a house located in Anniston, Alabama. Mrs. Crouch originally lived in the house, but moved out in 1968. A few months after Mrs. Crouch moved, Cammo-rata called Holland, Mrs. Crouch’s brother, who was a realtor in Anniston, and asked him to sell the house. Holland agreed, and turned the matter over to one of his employees. Holland did not get personally involved in the transaction. The Wood-ruffs, hearing that the house was available, contacted Holland Realty. As a result they signed a lease-sale agreement on September 11. This document was forwarded to Cammorata and Mrs. Crouch in Louisiana, where they executed. it. The pertinent terms of the lease-sale agreement are herein set out in full:

1. The Lessors do hereby rent and lease unto the Lessees that certain parcel of property described as follows:
Lot 11, as shown on Map of W.P. Acker’s Subdivision as recorded in the Probate Office of Calhoun County, Alabama, at Plat Book “E”, Page 60, situated in Calhoun County, Alabama,
for and during a term of sixty months at a monthly rental of One Hundred Dollars ($100.00) per month, the first rental payment being due November 1, 1968, and continuing for fifty-nine consecutive months on the 1st day of each month thereafter, if not sooner terminated by the terms and conditions hereof.
2. In consideration whereof, and the other obligations imposes [sic] upon the Lessors hereunder the Lessees heréin hereby covenant and agree to carry out the obligations hereinafter imposed upon them including the payment of said rental payments of One Hundred Dollars ($100.00) per month, such amounts to be paid as stated above.
On or before five years from date hereof the Lessees agree to purchase and the Lessors agree to sell said property at and for a total purchase price of Sixteen Thousand Dollars ($16,000.00) of which One Thousand Five Hundred Dollars ($1,500.00) has been paid simultaneously with the execution of this agreement. In addition the Lessees will be given credit toward said purchase price of said rental payments of One Hundred Dollars ($100.00) per month, less interest at seven per cent on a declining balance beginning with a balance as of this date of Fourteen Thousand Five Hundred Dollars ($14,500.00). It is understood that the Lessees are not to be given credit for the full amount of the One Hundred Dollar ($100.00) payments, but for those amounts less said interest at seven per cent on the declining balance beginning with Fourteen Thousand Five Hundred Dollars ($14,500.00). The Lessees will be responsible for their own financing, at their own expense, and shall have thirty days to tender the balance due at the end of said five year period. Lessors will co-operate in closing of necessary loans.
3. Should the Lessees fail to pay the above mentioned installments as they become due or should the Lessees violate any other term or condition of this lease sales agreement, including the obligation to purchase, the Lessors shall have the right, at their option, to take possession of said property after the giving of thirty days written notice, and this contract shall be treated as a simple lease and the Lessors may treat all monies theretofore paid as rent for past occupancy and as liquidated damages which amounts are hereby agreed to be reasonable.
4. The Lessees further agree that upon the failure for ten days after the due date to pay any one of said installments or to pay the taxes and assessments or insurance premiums which Lessees agree to pay, on said property as they shall mature the Lessors may, at their option, declare this contract to be one of rental and may apply all monies which have theretofore been paid as liquidated damages for past occupancy. The Lessors agree to keep said property insured under a Fire and Extended Coverage policy for at least Fifteen Thousand Dollars ($15,000.00) during the term of this agreement and to name Lessors as insureds thereunder, and to pay the premiums thereon. Lessees agree to pay all premiums on said policy as they become due and to furnish Lessors with copies of the current policies, renewals, and premium receipts. The Lessees agree to pay all property taxes and special assessments.
5. As a part of the consideration for this transaction, the Lessees hereby waive all rights to notice, presentment or property exemptions under the Laws and Constitution of the State of Alabama and the United States.
6. Further v it is understood and agreed that the Lessees will commit no waste or permit others no waste to be committed on said property and that they will take good care of the property and keep it in substantially the same conditions that it is now in.
7. It is understood and agreed that upon the expiration of this lease and after the fulfillment of the terms of this lease the Lessors, their successors or assigns shall immediately execute to the Lessees a good warranty deed with full covenants of warranty, deeding said property to the Lessees with warranties as of this date.
8. The Lessees may, at any time during the term of this lease provided they are not in default of any of the conditions of this lease, by the giving of ten days notice, pay to the Lessors the full amount of the principal as called for in this agreement and shall at that time be entitled to delivery of a deed as specified in the paragraph immediately above and it is understood by the parties hereto that interest shall be chargeable only to the date of such prepayment.
9. All payments are to be made to Holland Realty Company, P.O. Box 2023, Anniston, Alabama.

There was no personal contact between the parties at any stage of the transaction, all communication being through Holland’s employee.

The Woodruffs made the down payment, took possession of the house, and began making the payments to Holland Realty, the first payment being due November 1, 1968. Holland Realty receipted the payment as rent, deducted a- $5.00 collection fee, and sent Cammorata $95.00.

In September 1973, about two months prior to the expiration of the lease-sale agreement, the Woodruffs came into Holland’s office and asked him whether they should make arrangements to pay off the balance of the loan. They had not been to a bank, and were not prepared to pay at that time. Mrs. Woodruff testified that Holland told them to continue making their payments as they had, that his sister did not need the money, and that if it was not satisfactory with his sister, the Woodruffs would be notified. Holland testified that he did not get the file out and look at the agreement. He testified that he did not realize that Cammorata was co-owner of the house, nor was he aware how soon the Woodruffs were required to pay off the obligation. He stated that he told the Woodruffs to “wait until the time comes and we will get together with Elva and see what to do.” He also told them that he would visit his sister from time to time and that, if and when she wanted the money, they would get it for her. Holland never contacted Cammorata or Mrs. Crouch about this conversation.

The Woodruffs never tendered the balance of the purchase price within the time specified. They continued to make the $100.00 payments as before, and, over the next few years, made some improvements on the house. Cammorata testified that, since the Woodruffs had not paid the balance of the purchase price by the due date, she treated the subsequent payments as rent.

Holland retired in 1974, selling his business to the Morris Agency, which collected the Woodruffs’ payments thereafter.

In June, 1980, Mrs. Woodruff, through her attorney, contacted Cammorata about getting a deed to the house. At that time Mrs. Woodruff was ready, willing and able to pay the balance. Cammorata told the attorney that Mrs. Woodruff was renting the house. On July 30, 1980, Cammorata’s attorney informed Mrs. Woodruff that on September 1 the rent would increase to $325.00 per month. Mrs. Woodruff continued to pay $100.00 per month, and on October 29, 1980, Cammorata and Mrs. Crouch filed this suit for ejectment.

Because of the interrelating nature of the first three issues, we discuss them together.

The parties on appeal agree that the lease-sale agreement around which this case revolves is subject to Alabama’s statute of frauds, which states in pertinent part:

In the following cases, every agreement is void unless such agreement or some note or memorandum thereof expressing the consideration is in writing and subscribed by the party to be charged therewith or some other person by him thereunto lawfully authorized in writing:
(5) Every contract for the sale of lands, tenements or hereditaments, or of any interest therein, except leases for a term not longer than one year, unless the purchase money, or a portion thereof is paid and the purchaser is put in possession of the land by the seller;

Code 1975, § 8-9-2. The general rule is that a contract required by the statute of frauds to be in writing cannot be modified by subsequent oral agreement. Weatherwax v. Heflin, 244 Ala. 210, 12 So.2d 554 (1943). While the authorities are divided as to whether a written contract falling within the statute of frauds may be orally modified as to time of performance, it is generally agreed that if the oral modification is not just an extension of time, but goes to the substance of the contract, the modification is invalid. See, e.g., 37 C.J.S. Frauds, Statute of § 232b (1943). In the case before us, it is clear that the five-year limitation placed on the lease-purchase agreement was a material element of the contract, and could not be changed orally to alter the written agreement.

The Woodruffs, at trial, submitted that the alleged modification amounted to a novation, creating a new contract. Such a new contract, if found in this case, would also be subject to the statute of frauds. However, we find no novation. A novation is the substitution of one contract for another, the effect of which is to release him who is bound by the original contract of which novation is asserted. Bledsoe v. Cargill, Inc., 376 So.2d 735 (Ala.Civ.App.1979). To effect a novation the parties must agree that the new agreement has that effect. Moquin v. Cochran, 380 So.2d 819 (Ala.1980). The new agreement must meet all the requisites as to validity of a contract. 66 C.J.S. Novation § 36 (1950). The Woodruffs, who have the burden of proving a novation, have failed to show the elements of a new agreement. There is no showing that the obligations under the former agreement were discharged, that there was mutual assent to a new agreement, consideration, or definite terms to which the parties could be bound under the new agreement. Even assuming, for the moment, that Cammora-ta could be bound by the actions of Holland, and that notice to him could be imputed to her, it is clear from the testimony that Holland did not consider that he was either modifying a written agreement or entering into a novation on behalf of Cam-morata on her mother.

Of course, neither a modification nor a novation made under the facts of this case, even if found to escape the requirements of the statute of frauds, can bind Cammorata unless it is found that Holland had authority to act as her agent at the time of the 1973 conversation between Holland and the Woodruffs. Again, the statute of frauds comes into play, requiring an agent acting for his principal in a matter within the statute of frauds to be “lawfully authorized in writing.” A contract made by an agent without authority in writing from his principal is void. Thompson v. New South Coal Company, 135 Ala. 630, 34 So. 31 (1903). Although the trial court charged the jury on implied and apparent authority of an agent, we find that such theories are not applicable to a situation which falls within the statute of frauds.

It has been held by this court that an oral contract for the sale of land, entered into by an agent without written authority, is removed from the statute of frauds when it is clearly ratified by the principal. Penney v. Lyle, 205 Ala. 476, 88 So. 580 (1921). In Penney, the court held that evidence that the agent sold the land to the buyer, accepted payment in full, and put the buyer in possession, plus evidence that the principal knew for several years that the buyer was in possession of the land under the contract of sale with his agent, would show ratification.

Although the judge charged the jury on ratification in the case before us, evidence on that issue is insufficient. The law of ratification requires that the principal have knowledge of the facts attending the unauthorized act of the agent. Van Heuvel v. Roberts, 221 Ala. 83, 127 So. 506 (1930); Gillespie, Shields Co. v. I. Berman & Son, 212 Ala. 72, 101 So. 681 (1924); Exchange Security Bank v. King, 53 Ala. App. 429, 301 So.2d 193 (1974). It was undisputed at trial that neither Cammorata nor Mrs. Crouch was told of the conversation between Holland and the Woodruffs. The Woodruffs were put into possession of the house under the written lease-purchase agreement, and there was no communication with Cammorata until 1980 to alert her that the Woodruffs considered that they had a new agreement. Thus, there is no evidence that an oral modification, if made by Holland, was ratified by Cammorata or Mrs. Crouch.

The Woodruffs do not claim that the alleged oral modification of the agreement would not normally fall under the statute of frauds. In their brief, however, they argue that the doctrine of estoppel prevents Cammorata from asserting the statute in this case, whether Holland had authority to act for her or not. See 73 Am. Jur.2d, Statute of Frauds, § 567 (1974); McGowin v. Cobb, 249 Ala. 561, 32 So.2d 36 (1947). We point out that estoppel is an affirmative defense in Alabama, and must be raised on pleading. A.R.Civ.P., Rule 8(c); Kimbrell v. City of Bessemer, 380 So.2d 838 (Ala.1980); Hendricks v. Blake, 291 Ala. 575, 285 So.2d 82 (1973). In the case before us, the defendants did not plead estoppel in their answer, and the trial judge did not charge the jury on it. This court will decline to consider estoppel which is raised for the first time on appeal. See Dobbins v. Getz Exterminators of Alabama, Inc., 382 So.2d 1135 (Ala.Civ. App.1980).

A jury verdict is presumed to be correct. A trial court’s denial of a motion for new trial strengthens the presumption of correctness of the verdict; and if supported by evidence, it will not be reversed unless plainly and palpably wrong. Osborne v. Cobb, 410 So.2d 396 (Ala.1982). In light of the foregoing discussion of the law and the facts of the case before us, we are left with the conclusion that the evidence presented at trial does not support the verdict of the jury. Therefore, we reverse the judgment of the trial court, and remand this case to the trial court for proceedings consistent with this opinion. Because of this decision, discussion of the fourth issue raised by the appellant is pre-termitted.

REVERSED AND REMANDED.

TORBERT, FAULKNER, ALMON and BEATTY, JJ., concur.

      . The suit was originally filed by Cammorata and her mother, Mrs. Elva Crouch, who were co-owners of the contested property. Mrs. Crouch died during the pendency of the suit, and Cammorata became sole owner of the property by survivorship deed.

      . Mrs. Woodruff and her husband, Joe Wood-ruff, were parties to the transaction giving rise to this suit. Mr. Woodruff died in 1974, and his son, Jerry Woodruff, named defendant in this suit, was his sole heir.


author: ALMON, Justice.

text:
    Mildred J. JONES, d/b/a Southland Realty Company v. J.W. CASEY.
    82-595.
    Supreme Court of Alabama.
    Nov. 10, 1983.
    Rehearing Denied Feb. 3, 1984.

      Frank M. Wilson of Beasley & Wilson, Montgomery, for appellant.
    James W. Garrett, Jr. of Rushston, Stakely, Johnston & Garrett, Montgomery, for appellee.
   ALMON, Justice.

This is an appeal from an order declaring that the amendment to Code 1975, § 8-8-10, which raised the interest rate on judgments from six percent (6%) per annum to twelve percent (12%) per annum, did not apply retroactively to a judgment pending at the time of the amendment’s effective date.

Mildred J. Jones originally brought suit against J.W. Casey in Montgomery Circuit Court, claiming breach of an oral real estate listing contract. On November 5, 1980, a judgment was entered against Casey in the amount of $84,403.77. This Court affirmed the judgment on appeal and on February 19, 1982, overruled Casey’s motion for rehearing. Casey v. Jones, 410 So.2d 5 (Ala.1981).

During the pendency of the appeal the Alabama Legislature passed Act No. 81-1115, Third Special Session, 1981, which amended Code 1975, § 8-8-10, as follows:

“ ‘Judgments for the payment of money, other than costs, bear interest from the day of entry, at a rate of twelve (12) percent per annum, the provisions of Section 8-8-1 of the Code of Alabama 1975 [which affixed a 6% interest rate on such judgments] notwithstanding ....’”

Act of Nov. 13, 1981, No. 81-1115, 1981 Ala.Acts 379 (codified at Code 1975, § 8-8-10 (Cum.Supp.1982).

The amendment became effective on November 13, 1981, and neither the amendato-ry language nor the legislative history contained any provisions for retroactive application of the statute.

On May 24, 1982, Jones filed a declaratory judgment action against Casey in Montgomery Circuit Court to determine whether this amendment applied retroactively to judgments which were pending and unsatisfied at the time of its passage and effective date. After the case was transferred to the judge who heard the original action, Jones filed a motion for summary judgment, attaching an affidavit in support thereof. Casey then filed a motion to dismiss or an alternative motion for judgment on the pleadings. On July 16, 1982, both parties stipulated that the court need only decide whether the judgment rendered against Casey should bear interest at the rate of 6% or 12% per annum. On November 9, 1982, the circuit court entered its order, which held that Act No. 81-1115,-Third Special Session, 1981, did not apply to judgments pending at the time of its effective date and that the judgment against Casey bore interest at 6% rather than 12% per annum. Jones then filed a notice of appeal to this Court.

Whether the amendment to Code 1975, § 8-8-10, which raises the interest rate on judgments from 6% to 12% per annum, applies retroactively to judgments pending and unsatisfied at the amendment’s effective date presents a case of first impression for this Court. A survey of the retroactivity of similar amendments in other jurisdictions only complicates the resolution of this issue. See Annot., 4 A.L.R.2d 932, 949 (1949).

Approximately one half of the states deny retroactive application of the amendment based upon either of two grounds: 1) the pending judgment is characterized as contractual in nature and thus subject to the constitutional prohibition against the passage of acts impairing a contractual obligation, see, e.g., Texas & P.R. Co. v. Anderson, 149 U.S. 237, 13 S.Ct. 843, 37 L.Ed. 717 (1893); or 2) the statutory amendment is deemed a “retrospective” statute, affecting substantial vested rights, and thus subject to the constitutional prohibitions against the impairment of contractual obligations and the creation of a crime or punishment ex post facto, see, e.g., Sunray DX Oil Co. v. Great Lakes Carbon Corp., 476 P.2d 329 (Okl.1970). Conversely, the remaining states allow retroactive application of the amendment from its effective date based upon either of two grounds: 1) the allowance of interest on judgments is characterized as merely a matter of statutory grace, and hence subject to legislative amendment, see, e.g., Idaho Gold Dredging Corp. v. Boise Payette Lumber Co., 54 Idaho 765, 37 P.2d 407 (1934); or 2) the statutory amendment is deemed a “remedial statute,” relating solely to remedies or matters of procedure and hence not subject to the proscription against retroactivity, see, e.g., Ridge v. Ridge, 572 S.W.2d 859 (Ky.1978).

In Alabama, retrospective application of a statute is generally not favored, absent an express statutory provision or clear legislative intent that the enactment apply retroactively as well as prospectively. See Kittrell v. Benjamin, 396 So.2d 93, 94 (Ala.1981) (citing City of Brewton v. White’s Auto Store, Inc., 362 So.2d 226 (Ala.1978). Remedial statutes, however, are not within the domain of retrospective laws, and do operate retroactively, absent clear language to the contrary. Street v. City of Anniston, 381 So.2d 26 (Ala.1980).

Because the amendment raising the interest rate on judgments from 6% to 12% per annum contained no express provision or clear legislative intent that the statute operate retroactively, we can allow retroactive application only if the statute is deemed to be “remedial” in nature.

Alabama law defines remedial statutes as those “which impair no contract or vested right, and do not disturb past transactions, but preserve and enforce the right and heal defects in existing laws prescribing remedies.” Dickson v. Alabama Mach. and Supply Co., 18 Ala.App. 164, 165, 89 So. 843, 844, cert. denied, 206 Ala. 698, 89 So. 922 (1921). Although this Court has never expressly characterized the statute which controls the interest rate on judgments as either substantive or remedial, the fact that a similar amendment did not apply retroactively to change the effect of a contract for a different rate, De Moville v. Merchants & Farmers Bank, 237 Ala. 347, 186 So. 704 (1939), militates in favor of the view that a change in the interest rate itself impairs a substantial right and thus cannot be characterized as remedial.

We therefore follow those jurisdictions which hold that, except where the legislature provides otherwise, a statute changing the legal rate of interest on judgments does not apply retroactively to a judgment pending at the time of its effective date. The judgment in the amount of $84,403.77 entered against Casey on November 5, 1980, thus bears interest at the rate of six percent (6%) per annum.

The judgment of the circuit court is affirmed. j

AFFIRMED.

All the Justices concur.