author: ANSTEAD, Judge.

text:
    The CHRISTIAN BROADCASTING NETWORK, INC., Appellant, v. TURNER COMMUNICATIONS CORPORATION, a corporation, and Sun World Broadcasters, Inc., a Florida Corporation, Appellees.
    No. 78-2003.
    District Court of Appeal of Florida, Fourth District.
    March 14, 1979.
    Rehearing Denied April 10, 1979.

      Jeffrey R. Jontz and Patrick 0. Killian, of Young, Turnbull & Linscott, P. A., Orlando, for appellant.
    Eli H. Subin, of Subin, Shams, Rosen-bluth .& Moran, P. A., Orlando, for Edward F. Starr, Jr., Receiver of Sun World.
   ANSTEAD, Judge.

This is an appeal from an order denying appellant’s claim in a receivership proceeding. We reverse.

This is the second time this matter has been before us. On June 20, 1974, the appellee, Sun World Broadcasters, Inc. entered into an equipment lease with Continental Credit Corporation for the lease of broadcasting equipment, with title being retained by Continental. The lease, in turn, was assigned to RCA and finally to appellant, The Christian Broadcasting Network, Inc. Only the first monthly installment was paid on the lease. Thereafter RCA filed suit in the federal district court for breach of the lease and by order of October 3, 1975, a summary judgment was entered finding that Sun World had breached the lease. The order granted RCA the right to retake possession of the leased equipment, with the court retaining jurisdiction to determine RCA’s right to damages, attorneys fees, and costs upon subsequent motion by RCA.

On November 18, 1976, the circuit court, acting upon a petition for involuntary dissolution, appointed a receiver for Sun World and directed that any claims in the receivership be filed within four months. On March 17, 1977, RCA filed its claim in the receivership for damages from breach of the equipment lease and referred in said claim to the pending federal suit. On the same date, March 17, 1977, RCA sold the equipment to Christian and simultaneously assigned its claim for breach of the lease to Christian. The receiver filed numerous objections to the claim, many on equitable grounds, and also sought to have the claim stricken. The trial court, upon motion by the receiver, entered an order summarily striking RCA’s claim, by then assigned to Christian, concluding that the claim was an unprovable, contingent claim because the federal district court had not yet entered a judgment on RCA’s right to damages. On October 25, 1977, this court reversed the order striking the claim and remanded the cause for an evidentiary hearing. On November 22, 1977, the federal district court entered a final judgment for Christian, approving the sale of March 17 and awarding damages of $1,154,104.72. The receiver was a party to the district court action and, with the exception of the allegations that the RCA claim was “contingent”, asserted all of the same defenses to the claim he had previously raised in the receivership. The federal court considered and rejected these defenses.

On September 8, 1978, the claim came on for hearing before the circuit court and the parties stipulated into evidence the findings of fact, conclusions of law, and judgment of the federal district court. The trial court entered an order again striking Christian’s claim as a contingent, unprovable claim.

The general rule as to the allowance of claims in a receivership is set out in 75 C.J.S. Receivers § 265 (1952):

The general rule is that, in order for a claim against the fund or property in the hands of the receiver to be a provable claim, it must be either one which is actionable at the date of the receiver’s appointment, or a direct obligation at the date of such appointment, whether then due or to become due, or an unmatured obligation at the date of such appointment which has matured since that date or which will mature prior to an order of distribution or prior to the expiration of the period for the presentation of claims. It has been held that a claim is provable if its worth or amount can be determined by recognized methods of computation at a time consistent with expeditious settlement of the estate. Conversely, claims which are unascertainable and nonactionable, or indirect unmatured obligations, at such date cannot be proved. However, it has been said that the foregoing doctrine is one merely of convenience and that it does not apply where the estate is more than ample to discharge all claims.
* * * * * *
Contingent claims. A claim purely contingent, liability on which has not accrued and may never accrue, cannot he advanced for a share in the distribution; but a contingent claim which is definitely ascertainable and which will ripen into maturity during the administration so as not to interfere with an early distribution is provable. (Footnotes omitted).

Certainly RCA’s claim against Sun World was actionable at the time the receiver was appointed, on November 18, 1976. The basis of RCA’s claim, Sun World’s breach of lease, was determined in favor of RCA by summary judgment on October 3, 1976. The issue is whether the amount of RCA’s claim could be determined by a recognized method of computation at a time consistent with expeditious settlement of the estate. The receiver claims this question must be answered in the negative since the claim was not reduced to judgment in the federal district court until November 22,1977, some eight months after the claim period ended. In the November 22 judgment the federal district court concluded:

Under the decision in Bid well v. Carstens, [316 So.2d 264] supra, and the provisions of the lease agreement, the plaintiff is entitled to recover from the defendant the following:
(1)$1,195,776.00 as the present value as of 17 March 1977 of the lease payments in default, including fifteen percent simple interest;
(2) $47,830.64 as interest at six percent per annum on (1) above from 17 March 1977 to 17 November 1977;
(3) $1,098,145.00 as the present value as of 17 November 1977 of a thirty-four month stream of future rent payments;
(4) $15,136.08 as the RCA cost of removal and repossession (excluding legal costs and attorneys’ fees), and
(5) $30,000.00 as reasonable attorneys’ fees for services in this cause;
less the following adjustments:
(1) $900,000.00 as the sale price of equipment to CBN;
(2) $77,539.00 as security deposit paid by Sun World to CCC;
(3) $40,000.00 as amounts paid to RCA pursuant to Martin leases, and
(4) $215,244.00 as the value of RCA’s beneficial use of the property from 30 September 1976 to 17 March 1977, based upon the lease agreement plus fifteen percent simple interest.
The plaintiff is, therefore, entitled to recover a net judgment of $1,154,104.72, plus such costs as may hereafter be taxed in accordance with law against the defendant Sun World.

These damages were computed under a lease provision which authorized the lessor, upon default, to retake possession of the equipment and to lease or sell the same and recover from the lessee the unpaid balance of the rent. It is obvious that the court utilized the date of RCA’s sale of the equipment to Christian, March 17, 1977, as the key date for computing the net damages due. This date was of course within the claim period and was the same date the RCA claim was filed. It is apparent then, that not only could all of appellant’s gross damages have been computed on March 17, but in fact appellant’s net damages could have been computed on March 17, since all of the amounts listed under “adjustments” in the federal court’s judgment could be determined as of March 17. In other words both the gross and net amount of appellant’s claim were provable on March 17, 1977, which we believe was clearly “a time consistent with expeditious settlement of the estate.”

Under appellees’ construction of the rule for allowing claims the appellant would have had to reduce its claim to judgment before it could have been allowed. In other words instead of the claim being “provable” it must have been already “proved” and reduced to judgment. We cannot accept that construction. The claim was based on a breach of the lease. That breach made the claim actionable. The claim would have been actionable regardless of the pendency of a lawsuit for the breach. If appellees’ construction is accepted the lessor would in effect be placed in a worse position by having filed a lawsuit and secured a summary judgment than if he had merely stood by and not acted until the receiver was appointed.

Apparently because his equitable defenses to the claim had been tried in the federal court the receiver presented no evidence on these defenses to the trial court. Nevertheless, the appellees have also urged, in essence, that it would be unfair to other creditors and to Sun World’s stockholders to allow the appellant’s claim at this late date since the entire plan of liquidation of the corporation has been carried out without consideration of the claim. In this regard we note the trial court’s comments at the close of the September 8 hearing:

From the very beginning the whole star (sic) of this matter was to get the matter into Receivership and get it concluded as fast as possible for the protection of the stockholders and the creditors and because of the machines which was a, I was persuaded at least, was a vanishing thing if things didn’t happen very quickly. That was one reason why only four months were given on the time for everyone establishing their claims.
Certainly, CBN was aware of what was going on and negotiating with the Receiver they filed their Claim on the last day, which was I guess within the limits of the law.
But, the Court is going to find that it was a contingent claim and I am not going to allow the Claim in. That will be the judgment of the Court.

Seemingly, the trial court felt the appellant was guilty of such conduct as to estop it from now collecting on its claim since, among other reasons, a sale of the corporation’s assets had already been scheduled before the claim was filed. However, we note that the district court, which did receive evidence on this issue, concluded to the contrary:

At all times subsequent to 15 February 1977 the defendant Sun World and the defendant’s receiver were on notice that RCA intended to make a private sale of the property failing a sale by the receiver. On 17 March 1977, the receiver became aware of the fact that the RCA assets had been sold to CBN and upon acquiring such knowledge deferred his proposed sale of the receivership assets for a period of one week. There is no evidence that the sale of the RCA equipment to CBN had any detrimental effect on the price later bid for the assets subject to the receiver’s control and sale. Under all the foregoing circumstances, the private sale effected by RCA to CBN was performed in a commercially reasonable manner and resulted in a fair and reasonable price for the assets.
* * * * j|< *
The court concludes as a matter of law that the evidence does not support the defense of estoppel which has been pled and argued by the defendant Sun World. The evidence reveals that at no time did RCA unconditionally agree to waive its right to enforce the debt which arose under the lease agreement or to forego its right to make a private sale of the leased chattels. The statements by Mr. Bohlen to Mr. Nobles and Mr. Maguire do not estop RCA because there is no evidence that Sun World changed its position to its detriment in reliance on such statements. Furthermore any change of position to the detriment of Sun World as a result of such statements would not have been reasonable reliance on the statements of Mr. Bohlen as a waiver either of RCA’s right to sell the equipment or to enforce the debt. The facts,
therefore, do not support the claim of promissory estoppel. Likewise, the facts presented to the court do not support a waiver by RCA of its right to enforce the debt, waiver under Florida law being an intentional relinquishment of a known right.

It appears to us that the four month period provided for in the original receivership order was for the primary purpose of allowing creditors of the corporation to put the receiver on notice as to claims against the corporation. And, until that time ended, the receiver could not safely estimate-the potential liabilities of the corporation. It makes little sense to provide for a definite period in which claims may be filed and still charge a claimant with being “too late” with his claim when he files it within the time allowed. Receiverships are supposed to be conducted primarily for the benefit of the creditors and secondarily for the benefit of the stockholders. Schemer v. Adamco, Inc., 81 So.2d 205 (Fla.1955). In a somewhat similar situation the Second District Court recently commented on this issue in the case of First Wisconsin National Bank of Milwaukee v. First National City Bank, 353 So.2d 960 (Fla. 2d DCA 1978):

Appellant attempted in good faith to file its claim for consideration by the receiver and the court. The door should not have been shut to appellant merely because of impatience or desire to terminate the proceedings. The contention that the period of receivership would be extended by presentation of appellant’s claim is on balance clearly outweighed by principles of fairness and reasonableness. (Id. at 961)

We also note that the four months allowed for filing claims herein is the minimum time permitted by Section 607.284, Florida Statutes (Supp.1976), for filing claims.

All of this is not to say that there may well be an instance when time is so critical that a claimant’s inability to promptly establish his claim, after it has been timely filed, might require that a trial judge properly deny the claim. But there was no evidence of such a circumstance presented here. Moreover, the federal district court has come to a contrary conclusion that “there is no evidence that Sun World changed its position to its detriment” because of any actions by RCA.

Since the amount of the claim was capable of being determined on March 17, 1977, we believe it was error for the trial court to strike the claim. Accordingly, the order of the trial court is reversed with directions for further proceedings consistent herewith.

DAUKSCH and LETTS, JJ., concur.

      . The Christian Broadcasting Network, Inc. v. Sun World Broadcasters, Inc., 353 So.2d 560 (Fla. 4th DCA 1977).


source: Caselaw Access Project

author: PER CURIAM.

license: Public Domain

text:
    Richard WANDER, Appellant, v. The STATE of Florida, Appellee.
    No. 78-1348.
    District Court of Appeal of Florida, Third District.
    March 20, 1979.
    Rehearing Denied April 18, 1979.
    Black & Denaro and Roy E. Black, Frank A. Rubino, Miami, for appellant.
    Jim Smith, Atty. Gen. and Steven R. Jacob, Asst. Atty. Gen., for appellee.
    Before SCHWARTZ, J., and CHARLES CARROLL (Ret.) and EZELL, BOYCE F., JR. (Ret.), Associate Judges.
   PER CURIAM.

Affirmed. State v. Youngblood, 217 So.2d 98 (Fla.1968); Belton v. State, 217 So.2d 97 (Fla.1968); Roth v. State, 368 So.2d 1310 (Fla. 3d DCA 1979); Belsky v. State, 231 So.2d 256 (Fla. 3d DCA 1970); Davis v. State, 209 So.2d 701 (Fla. 3d DCA 1968).


author: LETTS, Judge. DAUKSCH, Judge,

text:
    In re ESTATE of Frederic C. COLLIN, Deceased.
    No. 77-1642.
    District Court of Appeal of Florida, Fourth District.
    March 21, 1979.
    Rehearing Denied April 18, 1979.
    James F. Cooney, Jr. of Coe & Broberg, Palm Beach, George S. Okell, Jr., West Palm Beach, Paty, Downey, Lewis, Eaton, Fick & Martin, Palm Beach, for appellants.
    James Pressly, Jr. of Gunster, Yoakley, Criser, Stewart & Hersey, Palm Beach, for appellees.
   LETTS, Judge.

This appeal arises from a lower court ruling that the Florida apportionment statute was not applicable to a residuary estate devised and bequeathed to a combination of charitable and non-charitable beneficiaries; such a result arrived at, notwithstanding the fact that the will contained no explicit language shifting the exclusive tax burden away from those liable for the tax. We affirm.

We have no Florida Law on the particu-larsubject and there is a division of authority in other states (see 69 A.L.R3d 113 § 3b). For this reason, recognizing the far reaching consequences of our holding and deeming the issue to be of great public interest, we hereby certify the following question to the Supreme Court:

IF THE INTENT OF A TESTATOR TO SHIFT THE EXCLUSIVE TAX BURDEN AWAY FROM THOSE LIABLE FOR THE TAX IS MANIFEST FROM THE DIRECTIVE LANGUAGE CONTAINED IN HIS LAST WILL AND TESTAMENT, DOES HIS FAILURE TO EXPLICITLY SO DIRECT, REQUIRE THAT CHAPTER 733.817(1)(b) BE APPLICABLE TO A RESIDUARY ESTATE, SO THAT CHARITABLE BENEFICIARIES DO NOT SHARE IN THE TAX BURDEN?

The charities argue that the answer to the above question is in the affirmative citing, principally, In Re Heit's Estate, 26 Misc.2d 774, 206 N.Y.S.2d 59 (Sur.Ct., N.Y. Cty.1960). We agree that Heit, despite an added twist of pre-residual beneficiaries, would require that the answer to the question be in the affirmative. In Heft there were two initial clauses which provided:

"First: I direct that my debts and funeral expenses and the expenses of administering my estate, including the inheritance taxes thereon, be paid as soon after my death as may be convenient."
"Second: I direct that all legacy, inheritance, transfer or other similar taxes or duties shall be charged against my residuary estate."

Thereafter paragraph twelfth provided:

"Twelfth: I give, devise and bequeath ALL the rest, residue and remainder of my estate, real personal or mixed, of whatsoever kind and wheresoever situated, of which I may die seized or possessed or to or in which I may have any power of appointment, in manner following, absolutely and forever:
*********
i. To the Hebrew Home and Hospital for Chronic Sick, Twenty-Five Per Cent (25%), in memory of my beloved father and mother, Morris and Rebecca Heit, for the establishment of a bedroom, and it is my wish that an appropriate plaque be placed at the entrance to said room.
*******
j. To my Executors Twenty-Nine Per Cent (29%) to be disposed of in their absolute and uncontrolled discretion to various charitable institutions to be selected by them . . .

The Heit court went on to state that statutory apportionment should apply unless directions in the will to the contrary are explicit, clear and unambiguous." They then held that a testator's direction that taxes be paid from a residuary estate "` . . . cannot be read as a mandate that the portion of the tax attributable to the residuary assets is not to be apportioned in an equitable manner among the recipients of such residuary gifts.'" (Heit, 26 Misc.2d 774, 206 N.Y.S.2d at p. 61, quoting Matter of Coulter's Estate, 11 Misc.2d 851, 173 N.Y.S.2d 425).

We do not agree and choose instead to adopt the language of the courts of Kentucky which reason that where the taxes are grouped with debts, expenses and costs of administration and are coupled with a clause directing that the residue be divided into equal portions, then such direction indicates that the testator intended after-tax equality. University of Louisville v. Liberty National Bank and Trust Company, 499 S.W.2d 288, 289 (Ct.App.Ky.1973).

In the preceding paragraph we have emphasized the word “indicates” and in so doing recognize that the Kentucky Law is not based on a statute such as Florida possesses. This latter requires not merely an indication of the testator’s intent but also a direction from him.

We also acknowledge that the facts of the University of Louisville case reveal that the residuary language provided for division “into two (2) equal portions” whereas in Heit the bequests were of varying percentages. Nonetheless we perceive no substantial difference between two beneficiaries receiving 50 per cent each and the same two beneficiaries receiving two equal portions. The same rationale holds true even if the percentages are uneven. For example, a statement that beneficiary A is to receive 25 per cent and beneficiary B 75 per cent, inescapably leads us to believe that the testator intended beneficiary A to receive one quarter and B to receive three quarters, without legislative distortion. It would appear to defy common sense to suppose (if beneficiary A is a charitable organization and the total estate tax is $500,000 with a residuary estate of $1,000,000) that the testator intended by the use of these percentage figures to have the charity receive $250,000 and the other beneficiary the EXACT SAME SUM despite the direction that the one beneficiary receive only 25 per cent while the other succeed to 75 per cent. The result in such event is 50 per cent each, a distribution which would make a nonsense out of the chosen language.

To reasoning such as the above, the appellant makes three telling responses.

First, that regardless of what the testator intended the statute commands an explicit direction and there was none. Second, that notwithstanding that the polestar of all will interpretation is the testator’s intent [In re Johnson’s Estate, 347 So.2d 785 (Fla. 1st DCA 1977) aff’d 359 So.2d 425 (Fla.1978)] the decedent is presumed to know the law. In re Shubert’s Will, 10 N.Y.2d 461, 225 N.Y.S.2d 13, 180 N.E.2d 410 (Ct.App.1962). Third, the question is asked: Why should the charitable beneficiary’s share be reduced to help pay a tax that it is not responsible for?

Answering these three points we believe,

1. That while there is no explicit direction, the intent is clear and unambiguous and the language employed otherwise directs distribution without apportionment.
2. The presumption that the decedent knows the law should not be without its limitations in complex will drafting. In the case at bar, the draftsman himself gave no thought to it and certainly did not explain it to his lay client. More to the point, in the light of the clear and unambiguous direction, there is no presumption that is offended here.
3. Since the testator can legally and en-forceably direct distribution without apportionment even though the charity contributes nothing to the tax burden and if he did so here, the point is without merit.

Addressing ourselves to the will at bar, we find an instrument drawn by an attorney who himself testified that he gave no thought of the tax consequences to charitable, vis a vis non-charitable, beneficiaries. We certainly believe him, for the will he prepared is a textbook example of why the Florida Bar is pushing for specialization. It reads in its entirety:

I,FREDERIC C. COLLIN, now a resident of Florida, being of sound and disposing mind and memory, do, for the purpose of disposing of my property upon my death, hereby make and ordain this as my Last Will and Testament.
I.
I do hereby revoke, cancel and annul any and all wills, codicils, or other testamentary dispositions heretofore made by me.
II.
I do hereby direct that all my just debts, estate taxes, and expenses of my last illness and funeral expenses be paid out of my estate.
III.
I do hereby name my friend, PAUL POTTER, of West Palm Beach, Florida, as Executor of my estate in Florida Probate proceedings. I do hereby name my friend and attorney, HAROLD M. SHAPERO, of Detroit, Michigan, as Executor in ancillary proceedings, in Michigan, and in the event he is unwilling, unable, or incapacitated to so act, I do name WALTER SHAPERO, of Detroit, Michigan, as such Executor.
IV.
I do hereby give and bequeath to my nephew, GEORGE HERIS, the sum of FIVE THOUSAND ($5,000.00) DOLLARS. I do hereby give and bequeath my clothing, jewelry, saddles, athletic equipment, automobiles, furniture, and similar personal belongings to my brother, JAMES COLLIN, if he be alive at the time of my death, and if he be not alive, then to my brother, PERICLES CALLI-MANOPULOS.
y.
All the rest, residue and remainder of my property of every nature and description I do hereby give to the following persons in the following percentages, to-wit:
A. To my sister, BABY PAPDOPULOS, of Athens, Greece— 10%
B. To each of the two children of BABY PAPDOPULOS — 5% each, totalling— 10%
C. To JAMES COLLIN, my brother, of Fort Worth, Texas— 15%
D. To MABIETTE COLLIN, my sister, of New York City, New York— 2'A%
E. To ELDRED LIND, my friend, of Detroit, Michigan— 10%
F. To the following children of my brother, PERICLES CALLIMANOPULOS:
(1) KATHERINE 2%%
(2) MARY 2Wo
(3) GREGORY 2Wo
(4) DOMNA 2Vi%
G. To BETHESDA CHURCH OF PALM BEACH (Episcopalian) 5%
H. To the U. S. POLO ASSOCIATION (having headquarters at-Park Avenue, New York City, New York)— 2lk%
I. To GULF STREAM POLO CLUB (now located on Lake Worth Road, Palm Beach County, Florida)— 5%
J. To PERICLES CALLIMANOPULOS and his wife, ANNA— 10%
K. To ST. CATHERINE GREEK ORTHODOX CHURCH of West Palm Beach, Florida— 5%
L. To FIRST NATIONAL BANK OF PALM BEACH, FLORIDA, as Trustee— 15%
(or remaining percentage)
The FIRST NATIONAL BANK OF PALM BEACH, as Trustee, shall use funds received to promote polo and tennis as a sport, especially for young players. In connection, with polo, I request that they consult with my friend, GEORGE OLIVER, of Delray, Florida, and with respect to tennis, that they consult with my friend, MRS. NANCY ORTHWEIN. I request the U. S. POLO ASSOCIATION to use the proceeds to promote polo among young players, and provide an annual trophy cup in my name.
VI.
If any legatee or devisee under this Will be not alive at the time of my death, then the share of such deceased legatee or devisee shall not lapse but shall go to the next of kin of such legatee or devisee.
VII.
If any legatee, devisee, or beneficiary under this Will, or their guardian, contests this Will, such person and the ward of such guardian shall receive no share of my estate under this Will, and the share of any person making any such contest shall go to increase pro rata the shares of all other legatees and devisees and beneficiaries under this Will, proportionately. IN WITNESS WHEREOF, I have hereunto set my hand and seal at Detroit, Michigan, this 29th day of June, 1965, to one (1) executed copy only, said Will consisting of three (3) pages.

First we note the direction in paragraph II to pay the estate taxes and approve of the further reasoning in the University of Louisville case (supra, 499 S.W.2d p. 289) as follows:

1. The taxes are grouped with the debts, funeral expenses and costs of administration in the direction in Clause No. 1 as to payment, and since the latter items clearly are payable “off the top” the indication is of the intent that the former be paid in the same way.
* * * * * *
4. Clause No. 1 would be pure surplus-age or “boilerplate” if not construed as evidencing the intent that the taxes be paid “off the top.”

We also note this reasoning has been adopted in Florida although the case referred to involved neither a probate asset nor a charitable bequest. See In re Barret, 137 So.2d 587, 592 (Fla. 1st DCA 1962). The non-charitable beneficiaries also urge upon us the case of In re Moritz’ Will, 48 Misc.2d 323, 264 N.Y.S.2d 734 (Sup.Ct., Nassau Cty. 1965) which likewise approved the grouping procedure as satisfying the requirement of “otherwise directing.” However, this case is weak authority in that a later provision in the Moritz will, directed distribution “after the payment of taxes.”

The above “grouping” argument would not be enough direction in and of itself, but resort to the residuary clause additionally reveals a detailed disposition of the residue by percentages. It is impossible to envisage that the testator knew or had the faintest intention that the 10 per cent “given” to PERICLES and ANNA CALLIMANOPU-LOS would not be equal to the 10 per cent left to the two churches when even his lawyer had no such thought. On the contrary we hold that the setting forth of these percentages coupled with the direction in paragraph II constituted, in sum, an unambiguous direction that all should share equally in the residue, despite the lack of an explicit statement to the executor that the residuary estate be distributed without apportionment. We agree with a recent Maryland case interpreting a will with similar “grouping” of expenses, taxes and debts and an apportionment statute with “otherwise provided” language. Therein the court stated:

“The principal rule in determining the effect of a tax clause in a will is to glean the testamentary intent. . . . Intention is the thread by which we weave our way through the Minotaur’s maze.” Hall v. Johnson, 38 Md.App. 589, 382 A.2d 332 (1978).

We are conscious that our holding may cause comment that judges likewise be required to specialize and we are fully aware that our interpretation of the statute, as it applies to this particular will, may be thought to be somewhat of a retrogression back to the Legislature’s much criticized 1957 codification of the old common law concept. We also are cognizant of the fact that this result increases the overall tax to be paid. Finally, we are aware of the possibility for paradox in recognizing, on the one hand, that the draftsman was ignorant of the tax consequences, while holding on the other that the testator “otherwise directed.” Nonetheless the chosen language, according to his testimony, was intended by the draftsman to result in after tax equality. Moreover, the use of percentages, coupled with the earlier grouping provision, would appear clearly to direct that very same result. We do not believe that the statute mandates the use of certain magic words known only to the Probate Section of the Florida Bar. A clear and otherwise unambiguous direction is all that is required and we believe the instrument now before us so directs.

We specifically limit this decision to the circumstances of this particular case and do not pass on any future litigation relative to non-probate assets or to other fact situations even though they may appear to frustrate the testator’s obvious and unambiguous direction. Such limitation is deemed appropriate until the Supreme Court has responded to the question we have here propounded.

AFFIRMED.

MOORE, J., concurs.

DAUKSCH, J., dissents with opinion.

DAUKSCH, Judge,

dissenting:

I respectfully dissent.

In his will the decedent, Mr. Collin, left five thousand dollars and various personal effects to his nephew and brother. The remainder, or residue, of his property he left to various beneficiaries. Some of these beneficiaries are charities and under the federal estate tax code bequests to charities are exempt from sharing in the tax because they are not included in the “taxable estate.” 26 U.S.C. § 2055. More precisely, testamentary gifts to qualified charities are not included in the gross estate for tax purposes.

Section 733.817(l)(b), Florida Statutes (1977) provides that unless the testator directs otherwise charity beneficiaries do not have to suffer the reduction in their share of the estate by the payment of estate taxes; that is, they get their percentage off the top before the tax payment is apportioned among the remaining non-charity residuary beneficiaries. This is so because testamentary gifts to charities are not “interests included in the measure of the tax” as mentioned in Section 733.817(lXb), Florida Statutes (1977).

The question comes down to whether Mr. Collin in his will adequately “otherwise directed” as required in Section 733.817(l)(b), Florida Statutes (1977) in order to take this estate from under operation of that statute and require that the charity beneficiaries share in the payment of the estate taxes by having their shares figured after the estate taxes are paid instead of before those taxes are paid.

The boilerplate testamentary direction “I do hereby direct that all my just debts, estate taxes, and expenses of my last illness and funeral expenses be paid out of my estate” which appears in Article II of Mr. Collin’s will is not sufficient, in my opinion, to satisfy the Section 733.817(l)(b), Florida Statutes (1977) requirement “except as otherwise directed by the will.” Of course, there is no necessity for this clause in a will because what the testator is directing is exactly what the law requires; all just debts proved after proper claim and taxes are first paid, by law. Section 733.701, Florida Statutes (1977) et seq. But still, I venture to say almost every will has this provision. As is noted in the majority opinion the attorney who drafted the will testified no thought was given to Section 733.-817(l)(b), Florida Statutes (1977) thus further showing an inadequate “direction otherwise” required under the statute. The admissibility of the draftsman’s testimony was not challenged here and was admitted in evidence, but it should be viewed by all as at least self-serving. In my opinion the greater weight should be given to the plain wording of the will itself and special attention should be given to the fact that the will did not make any direct or indirect reference to a distinction between charitable and non-charitable bequests. Just like the majority here, I should like to see the charity beneficiaries share in the tax burden but I cannot get around the fact that the will fails to comply with the statute. If the testator or his attorney when drafting the will had provided something like “all residuary beneficiaries shall receive their proportionate shares without the preference for the charity beneficiaries provided in Section 733.817(l)(b), Florida. Statutes (1977)” then I would find a specific “direction otherwise” as is contemplated in that statute. But, again, the simple, boilerplate, inadequate phraseology in Article II of Mr. Collin’s will is just that, inadequate.

If the non-charity residuary beneficiaries can establish the real intent of the decedent was thwarted by negligent draftsmanship or the like then a remedy may be available. McAbee v. Edwards, 340 So.2d 1167 (Fla. 4th DCA 1976).

I would reverse the trial court and remand to have the charity residuary beneficiaries paid their percentage shares before the deduction of estate tax amounts and require the non-charity residuary beneficiaries, unfortunately, to assume the entire tax burden.

      . We concede, of course, that the charities also argue that, even although there is no explicit direction, there is `ikewise no manifest intent apparent from the language of this particular will. We disagree as a continued reading of this opinion will demonstrate.

      . We must assume then the ten asterisks involving (a) through (h) involve non-charitable beneficiaries.

      . This example is given without reference to mutually dependent indeterminates.

      . But see contra examples defying common sense. 35 Fla.Bar Journal 164, Alan Lindsay, Florida’s Estate Tax Laws — The Need for Compromise (March 1961).

      .The testimony of the draftsman was admitted without objection. However, reference to it here is but added “piquance” and no testimony is necessary to clear up ambiguity for we hold no such ambiguity existed.

      . The charities point to the parenthesized words in Article V of the will “or remaining percentage” and suggest they obviate after tax treatment based on stated percentages. However, we interpret them as but an anti-lapse safety valve (Article VI obviously does not encompass the charitable bequests.)

      . See Wells v. Menu, 15S Fla. 228, 28 So.2d 881, 884 (1947) wherein our Supreme Court said: “We approve the better rule which provides that when a testator devises 10% of his estate, or any fractional part thereof, to a named beneficiary it has reference to 10% of the net or distributable part of the estate.”

      .Note however, this case involved a contest between pre-residual and residual legatees, not charitable versus non-charitable beneficiaries.


text:
    John S. DAGGETT, Appellant, v. Leon DELBROUCK, Appellee.
    No. 78-87.
    District Court of Appeal of Florida, Fourth District.
    March 28, 1979.
    John S. Daggett, Fort Lauderdale, in pro. per.
    John D. Kruse, Fort Lauderdale, for ap-pellee.
   PER CURIAM.

Affirmed on the authority of Spolter Electrical Supplies, Inc. v. Kalb, 275 So.2d 594 (Fla. 4th DCA 1973).

AFFIRMED.

DAUKSCH and BERANEK, JJ., and DAKAN, STEPHEN LEE, Associate Judge, concur.


text:
    Jeri Lee GORDON, Appellant, v. Edwin F. GORDON, Appellee.
    No. 78-745.
    District Court of Appeal of Florida, Fourth District.
    March 28, 1979.

      Stuart, Walker & Jenne, Fort Lauder-dale, and Larry Klein, West Palm Beach, for appellant.
    Bruno L. DiGiulian, of DiGiulian, Spella-cy & Bernstein, Fort Lauderdale, for appel-lee.
   ANSTEAD, Judge.

This is an appeal by the wife from an order suspending her alimony payments because of her refusal to allow her former husband visitation privileges with the parties’ minor child.

The final judgment of dissolution provided for primary custody of the four year old child to be with the wife and for the husband to have the child in his custody every fifth week. The wife was also awarded alimony and child support. Before the final judgment was entered the wife moved to North Carolina, where her parents resided, and subsequently refused to allow the husband the visitation rights accorded to him. When all other legal efforts to enforce visitation failed, the husband sought, and was granted, a modification of the final judgment suspending alimony. In a detailed order the trial judge outlined the basis for his action:

In the Final Judgment, this Court determined that the Wife should continue to receive periodic alimony of $1,500.00 per month for a period of ten years from and after the date of the entry of the original Final Judgment in this cause dated March 20, 1975, which original Final Judgment, on appeal, was reversed by the Fourth District Court of Appeals (See Gordon v. Gordon, 335 So.2d 321 (4th D.C.A. 1976), the mandate from which appeal resulted in the final hearings in August of 1977. In making that determination, the Court adopted the concept that the mother having stated that she desired to be a “full time mother” to the then three (3) year ten (10) month old son of the parties, and the Husband having the financial ability to permit her to do so, that she could be permitted to be such a full time mother to the child; however an essential element of being such a full time mother was, in the Court’s opinion, to foster and promote the relationship between the child and his natural father, EDWIN F. GORDON, the Petitioner herein, which the Court determined to be in the best interests of the child. It was the very essence of the Final Judgment that the fostering of the relationship between the father and his son should be effected by the regular periodic visitation between the two and the Court so ordered in the Final Judgment, making permanent the visitation provisions previously set forth in its Temporary Order on Visitation dated August 25, 1977. Such visitation as had occurred between the father and his son, had demonstrated to the Court the father’s genuine interest in his son and the fact that such a father-son relationship could and should be developed, in the best interests of the child, despite some continued misgivings on the part of the Mother expressed by her or through her counsel in pre-August, 1977 hearings on the Husband’s motions to enforce his visitation privileges.
******
After the Temporary Visitation Order of August 25, 1977, and up through the date of this Order, one visitation was permitted by the Wife between the father and his son on or about September 14, 1977. Thereafter, no such visitations have been permitted and the Husband has filed a Motion to Enforce Temporary Visitation Order (October 10,1977); a Motion for an Order of Contempt (October 12, 1977); and a Motion for Final Order of Visitation (October 14, 1977). He also filed, on November 4, 1977, his Motion to be Relieved of Child Support Payments based upon refusal of the Wife to permit Court Ordered Visitation which Motion was granted by Order of this Court on December 5,1977. On the Husband’s Motions to Enforce Temporary Visitation Order and Motion for Order of Contempt, it became necessary for this Court, on October 14, 1977, to enter an Order adjudicating the Wife in contempt and ordering her arrest. In that Order, the Court determined that the Wife was in wilfull contempt of the prior Temporary Order of this Court entered on August 25, 1977, for failure to have produced and delivered to the home of the Petitioner/Husband, EDWIN F. GORDON, the minor child of the parties at or about noon, October 14, 1977. Although said Order provides for the arrest of the Wife, so that she could be brought before the Court to answer for her actions, the Court notes for the record that the Order of Arrest has never been successfully executed by any sheriff of the State of Florida.
Based upon all of the above and foregoing facts and circumstances which have occurred subsequent to the date of the factual determinations upon which the Final Judgment was entered, thereby resulting in establishing a change in the essential circumstances upon which the Final Judgment was entered, the Court herewith grant the Petition for Modification of the Husband and the Final Judgment dated December 22, 1977, is amended and modified to suspend any alimony payments due from the Husband to the Wife thereunder at any time subsequent to January 31, 1977, until further Order of this Court. The Court further notes, for the record, that upon the Wife fully complying with the provisions of Paragraph 2 of the Final Judgment dated December 22, 1977, regarding visitation, and the appearance of the Wife before the Court and her satisfactorily manifesting to the Court her intentions to continue to comply with said Final Judgment, then the Court will consider the entry of an Order further modifying the aforesaid Final Judgment to reinstate future alimony payments.

On appeal the wife relies on the case of Vance v. Vance, 274 So.2d 5 (Fla. 4th DCA 1973) for the proposition that alimony cannot be eliminated as a punishment for the denial of child visitation privileges. In Vance an order terminating alimony was entered in contempt proceedings brought against the wife, rather than modification proceedings as are involved herein. In holding that the trial court erred in punishing the wife by terminating alimony this court observed:

Our opinion here is to be interpreted as being without prejudice to the rights of the parties to institute and maintain the usual contempt proceedings or to seek specific modification of the judgment as provided by Section 61.14, F.S.1971, F.S.A. as they are advised. See Cortina v. Cortina, Fla.App.1958, 108 So.2d 63; Annot. 85 A.L.R.2d 118 (1964).

In Cortina the Second District Court of Appeal affirmed a modification order which relieved the husband of any financial obligations to the wife or to the minor child under terms similar to those provided by the trial judge herein. The Cortina court cited the cases of Craig v. Craig, 157 Fla. 710, 26 So.2d 881 (1946) and Putnam v. Putnam, 136 Fla. 220, 186 So. 517 (1939) in support of its decision. In Craig the Florida Supreme Court held that a husband’s showing that his former wife wilfully refused to allow him child visitation would constitute a sufficient legal defense to the wife’s claim for past due alimony. The court reasoned that under such circumstances the petitioning wife would be “without clean hands” in seeking relief from a court of equity. The Putnam case involved only child support but the closing remarks of Justice Terrell seem especially appropriate here:

It is shown that appellee is a fit and proper person to have the custody of his child, that he is given such custody only two months during vacation, and that he has for years met every requirement of the Court with reference to her support and maintenance. His decree, was fair and just and, so far as the record discloses, was easy to comply with. Failure to do so must be based on something more than an arbitrary refusal; otherwise all decrees will be objects to flout rather then (sic) to obey. (Id. 186 So. at 519)

In the ease at hand the trial court had previously exercised every means at its disposal to secure compliance by the wife with the final judgment. With the wife in North Carolina actual enforcement was virtually impossible. Given the extreme circumstances facing the court we do not believe it erred in concluding that there had been a substantial and material change in circumstances justifying the suspension of alimony. We will not repeat the reasons because we feel they are sufficiently stated in the court’s order, quoted, supra. Further, since these were modification proceedings we do not believe our holding to be in conflict with Vance, supra. We note with some import that in Cortina support was cancelled initially in contempt proceedings, and that such order was reversed; but subsequent modification proceedings resulted in the entry of a similar order which was affirmed on appeal. The end result is that alimony may not be terminated in contempt proceedings as punishment to the wife for refusing visitation. However, whether the wife’s conduct constitutes sufficient grounds to modify a judgment and suspend alimony will depend on the individual case. We expect such cases will be rare, but we believe the circumstances herein justified the court’s decision. The alternative is that, as Justice Terrell noted: “otherwise, all decrees will be objects to flout rather than to obey.”

We also note that we are not faced with a situation where the wife disagrees with the terms of the visitation and challenges those terms in the trial court or on appeal. Rather, the wife chose not to participate in the proceedings at all, except by appearance of counsel, thereby depriving the court of any proposed visitation alternatives that the wife might deem appropriate.

Accordingly, for the reasons set out above the order of the trial court is affirmed.

CROSS and BERANEK, JJ., concur.


author: MASON, Associate Judge.

text:
    Edgar Z. WELLS, Appellant, v. L. A. DUNGEY, Appellee.
    No. LL-266.
    District Court of Appeal of Florida, First District.
    April 6, 1979.

      Thomas D. Wright, Law Offices of William L. Ross, Jr., New Smyrna Beach, for appellant.
    Charles A. Hall, New Smyrna Beach, for appellee.
   MASON, Associate Judge.

Wells seeks review of a final judgment denying his claim for damages predicated upon Dungey’s breach of a lease agreement. We reverse.

Wells leased commercial property to Dun-gey by a lease agreement executed July 10, 1975. The lease was for a term of five years beginning August 15, 1975, with rent payments in the amount of $1,000 per month due and payable on the 15th of each month. The lease also provided that an additional $1,000 was to be paid “as security deposit” which also could “be used as partial down payment if lessee buys property or if not last month’s rent.” Around September of 1976, Dungey abandoned the property. Wells received payment from Dungey pursuant to the lease for the period up to September 15, 1976. Although Wells retook possession of the property after Dungey’s abandonment, he was unable to negotiate a new lease on the property until September 1, 1977. Wells brought suit against Dungey seeking damages incurred as a result of Dungey’s breach of the lease agreement. The trial court found that the $1,000 security deposit set forth in the lease agreement was intended as liquidated damages to be retained by the lessor, Wells, in the event of abandonment of the lease by the lessee, Dungey. Since Wells had retained the $1,000 as liquidated damages, the court found that Wells was entitled to no further relief.

We find that the trial court erred in his determination that the $1,000 security deposit was intended to be liquidated damages to be retained by the lessor in the event of abandonment of the lease by the lessee. Cf. Miami Beach Vacations, Inc. v. Wofford, 262 So.2d 683 (Fla.3d DCA 1972). The lease provided for what purposes the security deposit was to be used and the evidence does not reveal that it was intended to be utilized as liquidated damages. The security deposit retained by Wells may, of course, be used to offset the damages he incurred from Dungey’s abandonment of the lease until Wells was able to relet the property. The final judgment is reversed and the cause is remanded to the trial court to enter a judgment in favor of Wells for damages as determined by the court.

MILLS, Acting C. J., and ERVIN, J., concur.


author: FAULKNER, Justice.

text:
    Hugh Lawrence JORDAN et al. v. Mary Virginia Jordan WALDEN.
    77-556.
    Supreme Court of Alabama.
    Feb. 23, 1979.
    Rehearing Denied March 23, 1979.
    A1 Shumaker, Gadsden, for appellants.
    Irby A. Keener, Jr., Centre, Jack Livingston, Scottsboro, for appellee.
   FAULKNER, Justice.

Defendants appeal from judgments in two consolidated cases involving their handling of partnership and corporate assets. We affirm.

Plaintiffs originally brought two separate suits, one to dissolve a partnership known as Jeff D. Jordan & Co. and the other to establish management and control of Jordan Funeral and Insurance Co., Inc. The businesses are both family owned enterprises and the parties are all related. Each action alleged that the defendants were converting partnership and corporate assets to their own use. After extensive hearings and upon recommendation of a master previously appointed by the court, the partnership was ordered dissolved as of December 31, 1975, and its assets were sold by the following March.

On February 25, 1977, an order was entered in the corporation case dismissing all issues except: (1) an accounting between the stockholders, (2) an accounting by the corporation, and (3) an adjustment of equities between the parties by way of judgment or other appropriate relief. The trial court further ordered that unless an accounting was instituted within twelve months these remaining issues would be dismissed. Interrogatories were propounded to the defendants eight months later, on October 17, 1977, and answers were finally filed on February 15, 1978, following a motion to compel. On January 23, 1978, the court entered a pre-trial order which established the primary period for which the accounting was sought as well as other aspects of the accounting. Requests for admissions were served on one of the defendants On February 23, 1978. Following a hearing in March judgment was entered against the defendants.

On appeal defendants assert that no accounting was instituted within twelve months as required by the order of February 25, 1977, and that judgment against defendants in the corporation case was therefore improper. We disagree. It is clear from the recitation of the facts above that an accounting was instituted by February 25, 1978. Interrogatories and requests for admissions were served prior to that date. In fact, a pre-trial order pertaining to the accounting was entered in late January. It is difficult to imagine what could show more clearly than does this pre-trial order that an accounting had been instituted within the twelve month period.

Defendants also assert that there was no full, complete, and proper accounting of the partnership business. Again, we must disagree. A master was appointed to conduct the accounting of the partnership business. An audit was undertaken by a firm of certified public accountants and they filed a report upon which the master obviously relied. The parties were given an opportunity to examine the auditors and submit any relevant evidence. The master filed an “articulate and comprehensive” report recommending dissolution of the partnership. A hearing was held on defendants’ objections to the report following which the court entered judgment; consequently, under the ore tenus rule, we affirm. Hair v. Beall, 274 Ala. 699, 151 So.2d 613 (1963).

AFFIRMED.

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


text:
    Hugh Lawrence JORDAN et al. v. Martha Jo JORDAN et al.
    77-582.
    Supreme Court of Alabama.
    March 23, 1979.
    Al Shumaker of Burns, Shumaker & Davis, Gadsden, for appellants.
    Irby A. Keener, Jr., Centre, for appellees, Martha Jo Jordan, Mary Virginia Jordan Walden, Wendell Herman Jordan and Jeff Thomas Jordan.
    George White, Gadsden, for appellee, Emory Glover Johnson.
   ON REHEARING.

FAULKNER, Justice.

The appellees, on rehearing, state in briefs that this court did not consider the issue of whether one of them, Emory Glover Johnson, the owner of an undivided Via interest in a life estate,- could, under his counterclaim, obtain a sale for division. The reason we did not consider this issue is because it appears from the decree ordering sale for division that it was based upon the petition of the remaindermen rather than on the counterclaim filed by the owner of an undivided V12 life interest. The appel-lees, on rehearing, show that the decree was based on the counterclaim. We now affirm the decree of the trial court.

On April 19, 1926, Jeff D. Jordan executed the following codicil to his last will dated May 15, 1923:

“A CODICIL.
“This is a codicil to my last will and testament bearing date the 15th day of May 1923.
“Since making my original will to which this is a codicil I have acquired Lots 2, 3, 4, 5, 6, and 7 in Block B of the town of Centre, Ala., and it being my desire to dispose of this property separately to the disposition made in my said original will, and without in any way affecting the provisions of my said former will but retaining and preserving all the provisions thereof, and being desirous of making special disposition of said lots together with all the improvements that may exist thereon at my death I make the following disposition thereof. My wife Josie P. Jordan should she survive me, shall have the use, income and profits from said lots and all improvements thereon until her death, subject to this use, I give and bequeath said lots and all improvements thereon to my children H. W. Jordan, H. L. Jordan, W. P. Jordan and Alma Johnson, to have and to hold the use and benefit for and during their natural lives, and after the death of each of my four children above named, I give and bequeath in fee the said lots to the children or descendants of my said four children absolutely.
“The true intent and purpose of this codicil is to give the life estate in said lots and the improvements thereon to my said four children, H. W., H. L., and W. P. Jordan and Alma Johnson with the fee limited over to their children, and in default of any children surviving either of them, the fee shall go to their next of kin at the death of the last of them.
“This codicil shall in no way affect the terms and provisions of my will of May 15th 1923 as aforesaid, but said will and this codicil shall together constitute my last will and testament. In witness whereof, I have hereunto set my hand, this April 19th 1926.
“Jeff D. Jordan.”

After the death of Josie P. Jordan, the widow, H. W. Jordan, son of the testator, died intestate in 1953, survived by four children. Another son of the testator, W. P. Jordan, deeded his interest in the property to his brother, H. L. Jordan, who, in turn, deeded an interest in the property to three other persons. Alma Johnson, the remaining child, conveyed an interest to two persons.

The children of H. W. Jordan filed a petition for sale for division alleging that they were joint tenants with the other owners of the property. Emory Glover Johnson alleging that he owned an undivided life interest counterclaimed, petitioning for a sale by virtue of interest.

While the children of H. W. Jordan as owners of a remainder interest could not maintain an action for sale for division, Emory Glover Johnson, as the owner of an undivided Vi2 life interest in the property, could. Etheredge v. Etheredge, 219 Ala. 660, 123 So. 48 (1929); Duncan v. Johnson, 338 So.2d 1243 (Ala.1976); Hicks v. Hicks, 348 So.2d 1368 (Ala.1977).

We hold that a sale for division pursuant to the counterclaim by Johnson can be maintained. The decree ordering the sale is affirmed.

THE APPLICATION FOR REHEARING IS GRANTED AND THE ORIGINAL OPINION IS WITHDRAWN. AFFIRMED.

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


text:
    EMPLOYEES’ RETIREMENT SYSTEM OF ALABAMA, a corp., et al. v. Morris E. ODEN and Lewis D. Wooley.
    77-535.
    Supreme Court of Alabama.
    March 23, 1979.

      John N. Pappanastos, Special Asst. Atty. Gen., Montgomery, for appellants.
    Douglas P. Corretti, Samuel Maples, Birmingham, William I. Hill, II, Montgomery, for appellees, Morris E. Oden and Lewis D. Wooley.
   PER CURIAM.

This appeal involves the interpretation of section 12-17-4 of the Alabama Code as amended by section 3(b)(2) of Act No. 695, Reg.Sess. (1977). This statute, which is part of the Judicial Article Implementation Act (the Implementation Act), § 12-17-1 to —4, Ala.Code 1975, basically provides for state assumption of retirement and other employment benefits of circuit court and district court support personnel.

An action was filed in the Montgomery County Circuit Court by appellees, Morris E. Oden and Lewis D. Wooley, former Jefferson County court employees, who had become state employees by virtue of the Implementation Act. The complaint charged that section 12-17 — 4(b)(2) is unconstitutional as a violation of due process and equal protection. This statute provides benefits for those employees of circuit and district courts not previously covered by retirement plans. After a hearing on the merits, the trial court concluded that the statute was violative of the due process clause of the fourteenth amendment to the United States Constitution since it failed to provide clearly ascertainable and defined standards for determining the contribution necessary by the state and the employee. The court further concluded that the statute violated the equal protection clause of the fourteenth amendment in that it required employees in appellees’ class to contribute amounts greater than that required in the past for certain other classes of employees to gain retirement credit under the Employees’ Retirement System (ERS). The court then enjoined ERS from “exercising any of the rights, powers and duties” granted it under section 12-17-4(b)(2).

There is substantial agreement between the parties as to the material facts of the case. Appellees, Oden and Wooley, became employees of the state on October 1, 1977, by virtue of the Implementation Act. Prior to that date, they had been employees of Jefferson County, Alabama, assigned to the circuit court. Mr. Oden had been employed since 1948, and Mr. Wooley since 1959. Under the Implementation Act, appellees, not being members of a local retirement system, automatically became members of ERS. § 12-17 — 4(a), Ala.Code 1975.

Under section 12-17-4(b)(2), ERS was required to grant prior service credit to appel-lees to a maximum of five years. The statute authorized the comptroller to pay ERS “the cost of granting such prior service credit in such amounts as determined to be necessary . . . for both employer and employee contributions into the employees’ retirement fund on account of such eligible employee under the same rules and regulations applicable to other members of the employees’ retirement system.” In addition to the five-year prior service credit paid for by the state, the statute provided that an eligible employee may purchase additional service credit, not to exceed actual years served by direct payment to ERS “in such amounts as determined to be necessary by the employees’ retirement system for the prior service credit desired.” Such amounts had to be paid before January 1, 1978.

Appellant, ERS, determined that the “contribution” requirements of section 12— 17-4(b)(2) referred to and incorporated the percentage rates of state and employee contributions determined by the most recent ERS actuarial valuation. The Thirty-First Annual Valuation, performed in accordance with sections 36-27-23(m)-(p) and section 36-27-24, required that, normally, the State of Alabama contribute to ERS 9.63% of payroll, while employee members contribute 5% of their gross salary. The result of the sum of these percentage rates (14.63%) multiplied by the gross salary of member employees is the amount required annually to fund the retirement system.

This formula was used to determine the state’s contribution for the “free” five-year prior service credit provided by the statute. More importantly, this formula (14.63% X salary X years credit desired) was used to determine the amount required of appellees to purchase additional prior service credit. This meant that Oden would have to pay $41,820.53, and Wooley would have to pay $34,394.18 in order to receive their additional credit. The statute required that this entire amount of additional contribution be paid within ninety days of October 1, 1977.

The trial court’s determination that section 12-17 — 4(b)(2) violates the equal protection clause of the fourteenth amendment is premised on section 36-27 — 41(a), which provides:

(a) Any employee who was in service on October 1, 1974, whose membership in the employees’ retirement system of Alabama was contingent upon his own election and who elected not to become a member, may apply for and be admitted to membership with all prior service credit, as otherwise provided for in article 1 of this chapter, at any time prior to October 1, 1976; provided, that said employee pays to the secretary-treasurer of the employees’ retirement system of Alabama on or before October 1, 1976, a sum equal to the total contributions which he would have made as a member during his service as an employee from October 1,1945, or the date of entry of his employing unit, to the date of his application for membership, plus compound interest of eight percent on such contributions.

The trial court held that, although the retirement benefits available to appellees under section 12-17 — 4(b)(2) were substantially the same as the benefits available to employees eligible under section 36-27-41, the statutory scheme, as interpreted by ERS, resulted in harsh and unequal treatment of appellees, since they were required to pay excessively larger sums of money for their prior service credit.

Only minimum rationality must be shown between a state’s objective and the classification where there is no “fundamental right” or “suspect class” involved. See McDonald v. Board of Election, 394 U.S. 802, 809, 89 S.Ct. 1404, 22 L.Ed.2d 739 (1969). In respect to economic regulation, as here, the Supreme Court has said:

The constitutional safeguard is offended only if the classification rests on grounds wholly irrelevant to the achievement of the State’s objective. State legislatures are presumed to have acted within their constitutional power despite the fact that, in practice, their laws result in some inequality. A statutory discrimination will not be set aside if any state of facts reasonably may be conceived to justify it.

McGowan v. Maryland, 366 U.S. 420, 425—26, 81 S.Ct. 1101, 1105, 6 L.Ed.2d 393 (1961).

In the instant case, there seems to be a valid distinction in the classes of employees involved. Employees under section 12-17—4 are former employees of the various counties in the state, while employees under section 36-27 — 41 are persons who were in the service of the state on October 1, 1974. Moreover, although prior service credit could be purchased less expensively under section 36-27 — 41 (the amount which would have been paid as a member during his service of as an employee from October 1, 1945 compounded at eight percent interest), no provision was made for a “free” five-year service credit as allowed section 12-17 — 4(b)(2) employees. Regardless of what may be thought of the wisdom or desirability of this plan, it is within the province of the legislature to impose reasonable conditions upon the receipt of benefits under a statutory privilege, and the fourteenth amendment does not require that all classes be treated in an identical manner. See Williamson v. Lee Optical, 348 U.S. 483, 75 S.Ct. 461, 99 L.Ed. 563 (1955). Therefore, the difference in treatment of the two classes of employees is not a violation of equal protection.

The trial court further determined that section 12-17-4(b)(2) is a void delegation of legislative power in violation of the due process clause of the fourteenth amendment, since the statute does not contain clearly ascertainable and defined standards, and in respect to appellees, was applied in an arbitrary and discriminatory manner.

The legislative intent as manifested in section 12-17 — 4(b)(2) is to establish a plan whereby eligible employees are given a five-year retirement credit paid for entirely by the state. The plan also enables such employees, at their option and at their own expense, to obtain credit for past service in addition to the five years. The legislature did not specify a formula for computation of the cost of obtaining both the five-year credit and any additional prior service credit. However, the legislature did provide in the second sentence to section 12-17 — 4(b)(2) that the cost of providing the five-year service credit is the sum of state and employee contributions as determined under the same rules and regulations applicable to other members of ERS. ERS has interpreted the legislative intent manifested in section 12-17—4(b)(2) as requiring that the amount necessary to provide the benefits under the statute be computed pursuant to standards previously established in section 36-27-24(d) which section provides that the percentage rates used to compute state and employee contributions are to be based upon annual valuations of ERS conducted by a consulting actuary. Interpretations of an act by the administrative agency charged with its enforcement, though not conclusive, are to be given great weight by a reviewing court. Buchanan v. State, 274 Ala. 592, 150 So.2d 200 (1962).

Furthermore, it is not constitutionally objectionable for the legislature to delegate to a board, commission, or administrative agency the duty of determining an amount necessary for a certain purpose. Norton v. Lusk, 248 Ala. 110, 26 So.2d 849 (1946); Opinion of the Justices, 234 Ala. 555, 176 So. 367 (1937). The specific amount may be determined by the agency in the exercise of its expertise and discretion pursuant to standards fixed by the legislature. Norton v. Lusk, supra. And although the legislature may not delegate its power to make law, it may vest a considerable measure of discretionary authority in the agency charged with administering the enactment. Id. Cf. Marcet v. Board of Plumbers Examination & Registration, 249 Ala. 48, 29 So.2d 333 (1947). Respecting the degree of specificity in establishing standards to guide the administrative body in exercising such discretion, the United States Supreme Court has said:

[T]he only concern of courts is to ascertain whether the will of Congress has been obeyed. This depends not upon the breadth of the definition of the facts or conditions which the administrative officer is to find but upon the determination whether the definition sufficiently marks the field within which the Administrator is to act so that it may be known whether he has kept within it in compliance with the legislative will.
Only if we could say that there is an absence of standards for the guidance of the Administrator’s action, so that it would be impossible in a proper proceeding to ascertain whether the will of Congress has been obeyed, would be justified in overriding its choice of means for effecting its declared purpose

Yakus v. United States, 321 U.S. 414, 425-26, 64 S.Ct. 660, 88 L.Ed. 834, 849 (1944).

The legislature, and permissibly so, left the details of computing the specific amount required to provide the benefits under the statute to the agency with expertise in the area. The very nature of the benefits provided make it difficult to establish a fixed and simple formula by which to compute the amounts necessary to fund the system. The cost of providing benefits to an employee is not known until the employee dies. Therefore, the total cost to ERS, and accordingly, the contribution required of the state and the employee, is not known and must be estimated. Skilled and experienced actuaries are required to evaluate the assets and liabilities of ERS and to compute the proper level of funding required to preserve the system. The fact that employee and state contributions cannot be reduced to a certainty is due to the nature of the benefits provided and not to lack of specificity on behalf of the legislature in enacting the statute. Although the legislature provided for obtaining prior service credit, the benefits involved are the same as those presently afforded members of ERS. Accordingly, the cost to appellees of receiving prior service credit should be based upon contribution rates prevailing at the time the credit is given. Since the employees are presently paying for benefits to be received in the future, past contribution rates are immaterial. Although the cost to the individual appellees is substantial, ERS is duty bound to take action guaranteed to insure the integrity and solvency of the state employees’ pension fund.

The legislature has expressed its will in a sufficient manner to guide ERS, particularly in light of previous standards established in section 36-27-24(d), and to judge whether the actions of ERS have conformed with that will. With the dilemma facing our legislature in effectively dealing with the realities of our modern life and the problems posed by our complex society, this is all that is required.

The last sentence of section 12-17-4(b)(2) providing for additional prior service credit is phrased somewhat differently than the second sentence. Although perhaps inart-fully drafted, we cannot say that it fails for indefiniteness. Even though it only directs ERS to determine the cost to the employee of obtaining prior service credit according to what amount it determines to be necessary, section 12-17-4(b)(2) read as a whole contemplates that such amounts are to be computed in the same manner as is the contribution required for the five-year service credit. A strained and disjointed construction of the statute would result from any other interpretation. The legislature intended to give all county court personnel assimilated into the state system a five-year service credit paid for by the state. Furthermore, if an eligible employee desired additional credit, he could purchase at his expense the credit desired within actual years of service. Essentially, the legislature has provided the same benefit, retirement credit for prior service, but with the cost of such benefit paid for by different parties, the state or the employee, depending on whether the benefit provided is the five-year service credit or additional prior service credit. It seems unlikely that the contribution rate for obtaining prior service credit over and above the five years would be at a rate different than the rate for the five-year service credit. The benefits are the same.

Moreover, we cannot say that the determination of appellees’ contribution was arbitrary and capricious. ERS relied upon the services of a consulting actuary, Mr. Donald M. Overholser, in computing such costs. Appellees argue that Mr. Over-holser’s computation of the cost to them was arbitrary because he did not conduct an actuarial study as to employees in the class as appellees in respect to factors such as age, sex, length of service, and health, and arrived at his conclusion as the result of a half-hour telephone conversation with Dr. Walsh, Deputy Secretary of ERS. However, Mr. Overholser testified that he spent a substantial amount of his time dealing with the actuarial problems of ERS and was familiar with the costs and assets of the agency. Moreover, he testified that the percentage rates used to compute appellees’ cost did take into consideration factors such as age, health, life expectancy, etc.

Section 12 — 17-4(b)(2) when read as a whole contemplates that the cost of obtaining the five-year service credit and additional prior service credit is to be computed in the same manner and at the same rate. Since the standards previously established by the legislature to guide the computation of the funding necessary to provide employee retirement credit are equally applicable to the computation of determining the funding necessary for the five-year service credit and additional prior service credit, the statute is not standardless and the computation of such amounts is not left solely to the arbitrary and capricious determination of ERS.

Accordingly, we conclude that section 12-17-4(b)(2) is constitutional and the amount of appellees’ contribution was determined within the authority constitutionally vested in ERS by the legislature. Therefore, the judgment of the circuit court is reversed; and an order upholding ERS’s determination of the amounts required of appellees to obtain their prior service credit is herein rendered by this court.

REVERSED AND RENDERED.

TORBERT, C. J., and BLOODWORTH, MADDOX, FAULKNER, JONES, ALMON, SHORES, EMBRY and BEATTY, JJ., concur.

      . Section 12-17 — 4(b)(2) reads as follows:
      . . . BENEFITS FOR ELIGIBLE EMPLOYEES COVERED BY UNFUNDED LOCAL RETIREMENT PROGRAMS OR EMPLOYEES NOT PREVIOUSLY COVERED BY RETIREMENT PLANS. —Eligible employees who have participated in unfunded local retirement programs or who have not participated in retirement programs with units of local government shall be granted prior service credit by the employees’ retirement system of Alabama, based on length of previous court employment, to a maximum of five years. The secretary-treasurer of the employees’ retirement system of Alabama shall authorize and direct the comptroller to pay the cost of granting such prior service credit in such amounts as determined to be necessary, and the comptroller shall pay such amounts as necessary for both employer and employee contributions into the employees’ retirement fund on account of such eligible employee under the same rules and regulations applicable to other members of the employees’ retirement system. In addition to the five-year prior service credit described above, any eligible employee may purchase prior service credit, not to exceed actual years served, by direct payment to the employees’ retirement system, within 90 days after October 1, 1977, in such amount as determined to be necessary by the employees’ retirement system for the prior service credit desired.
      § 12 — 17—4(b)(2), Ala.Code 1975.


text:
    Phillip HALES et al. v. Truman HICKS et al.
    77-719.
    Supreme Court of Alabama.
    March 23, 1979.

      Stuart M. Rosenblum, Henagar, for appellants.
    David A. Rains, Fort Payne, for appellee, J. E. Hammonds.
    Joseph C. Kellett, Fort Payne, for appel-lees, Herman Hales and Truman Hicks,
    Robert Hanson, Albertville, for appellees, Ronald J. Williams and H. K. Scott.
   FAULKNER, Justice.

Plaintiffs sought summary judgment based on a settlement agreement previously reached between the parties, and a settlement decree subsequently ratified, and adopted by the circuit court. The agreement provided that the defendants would make payments to plaintiffs in monthly installments. Upon default the circuit court granted summary judgment for the plaintiffs and awarded them money judgments totalling $2V2 Million. We affirm.

The parties to this appeal have all been involved in a limited partnership and corporation to exploit various coal interests in North Alabama. Hales was general partner, and president, and chairman of the board of the corporation. Prior to August, 1977, the parties were engaged in complex and hotly contested litigation. Over a period of time, the plaintiffs had filed six separate suits against Hales. The instant case was filed on May 25, 1977, seeking, among other things, the appointment of a receiver. At the time of trial the parties, after extensive negotiations, entered into an agreement which resulted in a settlement decree ratified by the trial court on August 12, 1977. As part of the decree, Hales was to make payments of $90,600 a month to plaintiffs over 36 months with a balloon payment at. the end. All pending cases between the parties were consolidated with the court retaining jurisdiction of the consolidated action and the parties until the agreement was fully complied with.

Hales missed the March and April, 1978, payments and on May 3, 1978, the plaintiffs moved for summary judgment based on the settlement agreement and settlement decree. Hales opposed the motion at that time and at later hearings and attempted to argue the merits of the six consolidated cases, asserting that there were numerous unresolved genuine issues of material fact and law on the record. On June 8, the court granted plaintiffs’ amended motion for summary judgment. In his order he calculated the specific amounts due each of the plaintiffs for a total judgment of $2,453,911.71.

On appeal Hales asserts that summary judgment was improper as it left unresolved a variety of factual questions raised by the six consolidated cases.

The trial judge, in his order granting plaintiffs’ amended motion, stated:

“Under the Agreement and Decree, these Defendants agreed to pay the Plaintiffs the amounts set out in Paragraph 2(a) of the Settlement Decree in minimum monthly payments as set out in Exhibit “B” to the Settlement Decree, and all other issues, claims and demands of every kind and nature between these parties were resolved and extinguished.
“The Attorney for the Defendants strenuously argues that the Defendants have a meritorious claim against Plaintiffs and that the granting of the Summary Judgment would deprive Defendants of certain legal remedies and rights of action that Defendants have against each of the Plaintiffs. The Court notes, however, that the Defendants’ claims and demands against the Plaintiffs were matters which, by the terms of the Agreement, were extinguished, settled and laid to rest.”

The settlement agreement as ratified by the court provided:

“It is mutually agreed between the plaintiffs and the promisors [defendants], their heirs, assigns and successors, all issues presented in this action and all other claims or demands of any kind or nature by these parties are resolved and extinguished by this settlement agreement which from and after this date reflect all liabilities or covenants, claims or demands by the parties hereto.”

The agreement further provided that in the event of default and failure to cure “the plaintiffs may declare the entire balance due hereunder and file with the court appropriate motions to be heard on 10 days’ notice to promissors [defendants] to enforce the provisions of this agreement, and for such other relief as the court may grant in the pending or consolidated cases.”

The various provisions of this settlement agreement were outlined, and discussed in open court by counsel in the presence of the parties. On several occasions, Hales himself, interjected remarks for clarification. It was agreed that the transcript of this discussion would be used as an aid in interpreting the settlement agreement. During this discussion, one of the attorneys for Hales made the following statement in Hales’ presence:

“The consummation of the written settlement agreement which we anticipate to follow and these representations as made in open court are, as far as our clients are concerned, considered to be binding and enforceable. A provision in the settlement agreement that they shall be binding and enforceable upon the heirs and assigns of the various parties, and whatever written agreement the parties come to shall be approved by the court for ratification.”

Hales made no effort to contradict or correct this analysis by his own attorney. Similar statements regarding the effect of the agreement can be found throughout the transcript of the proceedings. At another point in the discussion, counsel for one of the plaintiffs made it clear that upon default not cured the plaintiffs would apply for summary judgment based upon the agreement. Again, neither Hales nor his attorney indicated that such an occurrence would reopen matters already agreed to by the parties.

From the above quoted provisions of the agreement and statements made in open court it is apparent that the settlement agreement, and settlement decree resolved all disputed matters between the parties prior to August 11-12, 1977. Upon a showing of default and failure to cure, plaintiffs were entitled to summary judgment to enforce the agreement.

AFFIRMED.

TORBERT, C. J., and JONES, ALMON and EMBRY, JJ., concur.


author: BLOODWORTH, Justice.

text:
    Sue Ann RUSHTON v. Harry SHUGART, etc., et al. Sue Ann RUSHTON, etc. v. Harry SHUGART, etc., et al.
    77-790, 77-791.
    Supreme Court of Alabama.
    March 23, 1979.

      Warren S. Reese, Jr., Montgomery, for appellant.
    Robert S. Lamar, Jr., Montgomery, for appellee, Harry Shugart.
    Philip S. Gidiere, Jr., of Carpenter & Gi-diere, Montgomery, for appellee, Alabama Gas Corp.
   BLOODWORTH, Justice.

Rushton, the tenant, appeals from separate summary judgments in favor of Shu-gart, the landlord, and Alabama Gas Corporation. We affirm summary judgment for landlord and reverse summary judgment for Alabama Gas Corporation (Alagasco).

Landlord Shugart owned an apartment complex called Ann Gardens Apartments in Montgomery. He leased an apartment to the tenant for two years, starting February 1, 1977. The written lease contained exculpatory clauses providing that the landlord would not be obligated to repair and would not be liable for damages from failure to repair or from a defect or any other cause.

Tenant’s amended complaint claimed that she and her daughter were injured by inhaling carbon monoxide gas produced by a defective bathroom heater. She alleged negligence and wantonness on the part of the landlord in allowing the operation and use of a defective and unsafe heater which he knew, or should have known, to be unsafe, and negligence and wantonness against Alagasco for turning on the gas without the customary examination or adjustment of the appliance.

The trial court issued a pre-trial order, with a copy of the lease appended thereto as an exhibit, which applied to the tenant and the landlord only. Landlord moved for summary judgment based upon the pre-trial order with exhibit and his deposition, attached as an exhibit to the motion. Alagas-co moved for summary judgment based upon the pleadings and depositions on file. Tenant introduced nothing in opposition to the motions for summary judgment, and both motions were granted.

On appeal, the tenant contends that summary judgments were inappropriate because the landlord and Alabama Gas Corporation failed to carry their burden of establishing that there were no genuine issues of material fact and that they were entitled to judgment as a matter of law. After an examination of the record, we conclude that the landlord was entitled to summary judgment, but Alabama Gas Corporation was not.

Since there was no covenant to repair, the landlord would be liable only for latent defects of which he knew when the lease was made and which he concealed from the tenant. Osborn v. Brown, 361 So.2d 82 (Ala.1978). Moreover, a landlord has no duty to inspect for latent defects. Id

The deposition submitted by the landlord in support of his motion for summary judgment shows that he did not know of any defects in the heater. He made no repairs to the heater, and did not inspect it or use it. Tenant made no complaint regarding the heater before the alleged injuries occurred. Because the tenant offered nothing to contradict this evidence, we must consider it uncontroverted. Donald v. City National Bank, 295 Ala. 320, 329 So.2d 92 (1976).

When a motion for summary judgment is made and supported, and the opposing party does not respond, summary judgment, if appropriate, may be entered against him. Rule 56(e), ARCP. The landlord established that there was no genuine issue of material fact and that he was entitled to judgment as a matter of law. There being no response from the tenant, summary judgment was due to be granted for the landlord.

In contrast, Alabama Gas Corporation did not carry its initial burden. Its motion for summary, judgment was based upon the pleadings and depositions on file. The only deposition of record is the landlord’s, and there is nothing in it applicable to Alagasco. The pre-trial order concerns only the tenant and the landlord. We are left with the complaint and answer. There is nothing presented to show an absence of genuine issues of material fact regarding the claim against Alagasco.

Reliance upon the rule that the party opposing summary judgment may not rest upon his pleadings is misplaced in this instance. There is no need to respond when the movant fails to show that he is entitled to judgment under established principles. Ray v. Midfield Park, Inc., 293 Ala. 609, 308 So.2d 686 (1975). Tenant should have prevailed despite her failure to present evidence in opposition, because there was no evidence introduced by Alagasco that required contradiction. The tenant alleged in her complaint that Alagasco turned on the gas without the customary inspection, etc. Denial by Alagasco made this an issue of fact.

Tenant further contends that her motion to produce under Rules 34 and 37, ARCP, was not honored by Alagasco. The record reveals that a request was made and an order entered pursuant to Rule 37, compelling production.- Alagasco did produce some documents but asserted that others were protected from discovery by Rule 26(b)(3), ARCP. A second motion to compel production was denied. We are unable to ascertain from the state of the record whether or not the documents in question were protected from discovery, and therefore we cannot say' that there was an abuse of discretion by the trial court in denying the second motion.

The summary judgments for the landlord are affirmed, and the summary judgments for Alagasco are reversed and the causes remanded.

AFFIRMED IN PART, REVERSED IN PART, AND REMANDED.

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


author: EMBRY, Justice.

text:
    ASPHALT ENGINEERS, INC., a Corp., et al. v. The STATE of Alabama BOARD OF REGISTRATION FOR PROFESSIONAL ENGINEERS AND LAND SURVEYORS ex rel. William'J. BAXLEY, Attorney General of the State of Alabama.
    78-8.
    Supreme Court of Alabama.
    March 23, 1979.
    Tabor R. Novak, Jr. of Ball, Ball, Duke & Matthews, Montgomery, for appellants.
    Randolph P. Reaves, Sp. Asst. Atty. Gen., Montgomery, for appellee.
   EMBRY, Justice.

This appeal is from a judgment permanently enjoining appellants, Asphalt Engineers, Inc., Charles L. Brassell, Wendell H. Smitherman, and their agents and employees from making use of the term “engineers” in their business name. The action was brought by the State of Alabama Board of Registration for Professional Engineers and Land Surveyors (Board), pursuant to § 34-ll-35(d), Code 1975, to enjoin the violation by appellants of § 34-11 — 2, Code 1975, which makes it unlawful for any person to

“* * * use in connection with his name or otherwise assume, use or advertise any title or description tending to convey the impression that he is a professional engineer or a land surveyor unless such person has been duly registered or is exempt from registration * * *

The trial court properly heard the evidence ore tenus and correctly held the use of the word “engineers” in appellants’ business name violated § 34r-ll-2, Code 1975. We affirm on the authority of McWhorter v. State Bd. of Registration, etc., 359 So.2d 769 (Ala.1978).

AFFIRMED.

BLOODWORTH, FAULKNER, JONES and ALMON, JJ., concur.


author: ALMON, Justice.

text:
    David BENAUER, a minor who sues by his next friend and mother, Shirley A. Benauer v. MEDICAL CENTER HOSPITAL, INC., a corporation, et al.
    78-19.
    Supreme Court of Alabama.
    March 23, 1979.
    Carl Wade Robinson, Bessemer, William W. Smith, Birmingham, for appellant.
    M. P. Ames of Reeves & Stewart, Selma, for appellee, Selma Medical Center Hospital, Inc.
    J. Garrison Thompson of Pitts, Pitts & Thompson, Selma, for appellee, Dr. S. 0. Moseley, Jr.
    Harry W. Gamble, Jr. of Gamble & Gamble, Selma, for appellee, Dr. S. 0. Moseley, Jr.
   ALMON, Justice.

The plaintiff appeals from an order of the Dallas County Circuit Court granting two defendants’ motions for summary judgment.

The minor plaintiff, through his mother as next friend filed this action in Mobile County Circuit Court against the Medical Center Hospital, Inc., (Selma Medical Center Hospital, Inc.), Hospital Corporation of America, Inc., and Dr. S. 0. Moseley. The complaint alleges that the defendants were guilty of medical malpractice. The Circuit Court of Mobile County granted the motions of all three defendants to transfer this case to the Circuit Court of Dallas County.

Subsequent to this transfer, two of the defendants, Selma Medical Center Hospital, Inc. and Dr. S. 0. Moseley filed motions for summary judgment, citing the statute of limitations as grounds therefor. The Circuit Court of Dallas County granted these motions for summary judgment. The record does not indicate that there has been any action taken as to the third defendant, Hospital Corporation of America. The record does not contain an express determination under Rule 54(b) ARCP that there is no just reason for delay or an express direction for the entry of judgment; thus there is no final judgment which will support an appeal. Martin v. Hinson, 364 So.2d 674 (Ala.1978).

Accordingly, this appeal is due to be and hereby is dismissed.

APPEAL DISMISSED.

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


text:
    Patsy HAMILTON v. SOUTH CENTRAL BELL TELEPHONE COMPANY et al.
    78-46.
    Supreme Court of Alabama.
    March 23, 1979.
    J. Wm. Thomason, Birmingham, for appellant.
    Anita Leslie Miller, Birmingham, for ap-pellees.
   BLOODWORTH, Justice.

Hamilton appeals from an order granting South Central Bell’s motion to dismiss for failure to state a claim for relief. 12(b)(6) ARCP. We reverse.

The original complaint sought damages from South Central Bell and a single fictitious party who had placed harassing phone calls to Hamilton’s residence. The basis for the claim against South Central Bell was that the telephone company fraudulently represented to Hamilton that if she would allow the company to place surveillance equipment on her telephone line, the company would work with her to ascertain the identity of the caller and would reveal to her all information discovered. She claimed damages for mental anguish resulting from South Central Bell’s failure to reveal the discovered information. The phone company’s Rule 12(b)(6) motion to dismiss was granted.

Within the ten days allowed by Rule 78, ARCP, Hamilton amended her complaint to add two new counts, viz:

“COUNT B”
“1. That prior to the first day of December, 1977, plaintiff has been a subscriber of telephone services, for value, furnished to her at her place of residence in Jefferson County, Alabama, by defendant South Central Bell Telephone Company-
“2. That on or about the 15th day of May, 1978, for and in consideration of the continuation of subscription service and the payment of the charges therefor, the defendant contracted orally with plaintiff to place surveillance equipment on plaintiff’s telephone in order to ascertain the identity of an individual who was placing harassing telephone calls to plaintiff’s residence; the defendant South Central Bell Telephone Company, in consideration heretofore cited, agreeing to disclose to plaintiff the information received from the surveillance equipment.
“3. That the defendant South Central Bell Telephone Company breached its agreement with plaintiff to disclose the information receivéd from said surveillance equipment and, as a proximate consequence of said breach of said agreement, the plaintiff has been prevented from taking civil action to prevent the continuation of said harassing telephone calls.
“4. That as a proximate consequence of said breach of contract plaintiff has been caused to suffer mental anguish.
“WHEREFORE, plaintiff demands judgment against defendant South Central Bell Telephone Company in the sum of Ten Thousand Dollars ($10,000.00), and costs.
“COUNT C
“1. That since the time prior to the 1st day of December, 1977, plaintiff has been a subscriber of telephone services, for value, furnished to her at her place of residence in Jefferson County, Alabama, by the defendant South Central Bell Telephone Company.
“2. That beginning, on or about the 1st day of December, 1977, the Defendant A invaded plaintiff’s privacy by placing a number of harassing and intimidating telephone calls to plaintiff’s place of residence.
“3. That on or about the 15th day of May, 1978, the plaintiff requested assistance of the defendant South Central Bell Telephone Company in ascertaining the identity of the individual placing the telephone calls alleged in paragraph 2 of this Complaint and, on said occasion the defendant South Central Bell Telephone Company, in consideration of the continuation of service to plaintiff’s residence, agreed with plaintiff that, if plaintiff would agree to the placement of surveillance equipment on her telephone line, the defendant South Central Bell Telephone Company would work with plaintiff in ascertaining the identity of defendant A, or would work with plaintiff in ascertaining the number from which defendant A was placing the harassing telephone calls, and would furnish plaintiff with the information received as a result of the surveillance.
“4. That the plaintiff agreed to have the surveillance equipment placed on her telephone and furnished the defendant South Central Bell Telephone Company with certain information concerning calls received by her.
“5. Plaintiff alleges that the defendant South Central Bell Telephone Company, at the time it made representations to her, knew that it would not furnish plaintiff with the information received as a result of the surveillance and, thereby invaded plaintiff’s privacy by fraudulently acquiring her consent for the placement of surveillance equipment on her telephone.
“6. That as a proximate consequence of the actions of the defendant as aforesaid the plaintiff was caused to suffer mental anguish.
“WHEREFORE, plaintiff demands judgment against the defendant in the sum of Ten Thousand Dollars ($10,-000.00), and costs.”

Again, South Central Bell filed a 12(b)(6) motion which was granted. Hamilton appeals only 'from the order granting the second motion to dismiss.

The sole issue on appeal is whether it is beyond doubt that Hamilton could prove no facts in support of Count B or Count C that would entitle her to relief.

This is the accepted standard for granting a motion to dismiss under Rule 12(b)(6). Trabits v. First National Bank of Mobile, 295 Ala. 85, 323 So.2d 353 (1975).

We conclude that both Count B and Count C state valid claims for relief and that the motion to dismiss should not have been granted.

South Central Bell argues that Count B is bad because no agreement was made to reveal the name of the caller, no one at South Central Bell was authorized to make such a contract, and no consideration was given. These matters are defensive matters requiring proof and are not grounds which will mandate dismissal before a plaintiff has a chance to counter them.

The company contends that Count C is bad because Hamilton requested the investigation and consented to the placement of the surveillance equipment on her line. Hamilton does state in her complaint that she consented to the investigation. However, she alleges that this was a qualified consent induced by false representations on the part of the phone company that they would reveal to her the information gathered through the surveillance. This is an issue upon which Hamilton should be permitted to offer facts to prove, at least at the summary judgment stage. It may be determined that there are no genuine questions of material fact and that South Central Bell is entitled to judgment as a matter of law. Summary judgment would then be appropriate. As it now stands, however, dismissal is premature because it is not beyond doubt that Hamilton could prove no set of facts entitling her to relief.

REVERSED AND REMANDED.

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