
    C. H. CHICHESTER, Jr. v. The FIRST NATIONAL BANK OF BIRMINGHAM et al.
    77-398.
    Supreme Court of Alabama.
    May 26, 1978.
    Rehearing Denied June 30, 1978.
    John H. Lavette and L. Don Campbell, Jr., Birmingham, for appellant.
    W. Gerald Stone, of Stone, Patton & Kierce, Bessemer, for appellees, The First National Bank of Birmingham and Elizabeth S. Hudson, as Co-Trustees of the Estate of Dan R. Hudson, deceased.
    Frank M. Bainbridge and William O’Neal Whitt, Jr., of Bainbridge & Mims, Birmingham, for appellee, Julian I. Boriss.
   PER CURIAM.

This cause came on to be heard orally before the Court on appellees’ motion to dismiss the appeal under Rules 2 and 38 A.R.A.P., and after hearing the parties and carefully considering their contentions, the Court is of the opinion that the motion should be granted for the reasons that hereinafter appear.

The Court of Civil Appeals in the first appeal in this case, The First Nat. Bank of Birmingham et al. v. Chichester, 352 So.2d 1371 (Ala.Civ.App.1977) held:

“It is the opinion of the court that the legal evidence presented was insufficient to support a verdict upon any of the theories presented by plaintiff and the motion for directed verdict should have been granted. Dillon v. Nix, 55 Ala.App. 611, 318 So.2d 308 (1975).” [Emphasis ours.]

Whereupon, the cause was reversed and remanded. Petition for writ of certiorari to the Court of Civil Appeals was sought in this Court and the writ denied on December 22, 1977. See 352 So.2d 1376 (Ala.1977). After remand, appellees filed a motion in the trial court for summary judgment based upon the prior pleadings, the legal evidence and exhibits in the prior trial, and the opinion of the Court of Civil Appeals. The appellant filed no countervailing affidavits. The appellees’ motion for summary judgment was granted by the trial court based upon the pleadings, exhibits, and “legal evidence” in the first trial. Appellant then appealed to this Court from the order granting summary judgment. Since the Court of Civil Appeals held, on the first appeal, that the motion for directed verdict should have been granted, and no new evidence at all was submitted by affidavit of the appellant in the trial court, after re-mandment, the trial court was correct in granting summary judgment. Therefore, if there is any room for operation of Rules 2 and 38, A.R.A.P., this case would clearly seem to fall within the rules. The motion to dismiss is due to be granted. No damages are awarded. Only “single costs” are to be taxed.

MOTION TO DISMISS APPEAL GRANTED.

TORBERT, C. J., and BLOODWORTH, FAULKNER, ALMON and EMBRY, JJ., concur.  