text:
    Everett L. ALMON v. SIXTY ST. FRANCIS STREET, INC., a corporation.
    78-60.
    Supreme Court of Alabama.
    March 2, 1979.

      Everett L. Almon, pro se.
    Ben H. Harris, Jr., Mobile, for appellee.
   BEATTY, Justice.

This is an appeal from the grant of summary judgment in favor of the plaintiff in a suit to redeem certain real estate from a tax sale. We affirm.

In 1961 John W. Brezzel, a widower, executed a real estate mortgage on the property in question, a subdivision lot in Mobile. The mortgagee named was Thames, Jackson, Harris Company, Inc. The mortgage instrument contained the usual power to sell at auction upon default, and provided power in the auctioneer to execute a deed in the name of the mortgagor. The mortgage was the subject of several transfers, the final assignment having taken place on September 1, 1976. This assignment was duly recorded.

Meanwhile, the defendant acquired a tax deed to the property on April 23, 1976 following a tax sale for the 1970 taxes which were assessed in the name of John W. Brez-zel.

Thereafter, under the power of sale contained in the mortgage, the plaintiff foreclosed on the property and bn November 17, 1976 obtained an auctioneer’s deed. This deed was duly recorded.

In September, 1976 the plaintiff learned of the tax sale to the defendant and offered to redeem the property from that sale. When the defendant did not allow redemption the plaintiff initiated this action on July 15, 1977 to require redemption. After the defendant had filed his answer, the plaintiff on August 25,1978 moved for summary judgment based upon the pleadings and an affidavit of Gus B. Thames. On September 18, 1978 the trial court entered summary judgment for the plaintiff, and this appeal ensued.

The only question presented is whether or not the trial court properly granted summary judgment.

The defendant maintains that summary judgment was improper because there were unresolved issues of fact on the plaintiff’s entitlement to redeem, and because the trial court based its ruling on inadmissible evidence.

Code of 1975, § 40-10-120 was the authority used by the trial court in gauging the legal rights of the parties. It states in part:

Real estate which hereafter may be sold for taxes and purchased by the state or, if purchased by any other purchaser, may be redeemed at any time within three years from the date of the sale . . . . If the mortgage . is duly recorded at the time of said tax sale, the said party [seeking redemption] shall, in addition to the time herein specified [three years], have the right to redeem said real estate sold, ... at any time within one year from the date of written notice from the purchaser of his purchase of said lands at tax sale served upon such party .

When it considered the plaintiff’s motion for summary judgment the trial court had before it the pleadings and the Thames affidavit. The affidavit was accompanied by the Brezzel mortgage, showing due recordation, and by a copy of the auctioneer’s deed conveying the property to the plaintiff. Thames as president of the plaintiff corporation stated in his affidavit that “No notice was received by the mortgage holder from the Defendant of his purchase of said lands, and no contact from the Defendant was had at all until Plaintiff in said [this] civil action learned of the tax sale, in, to-wit, September, 1976, from sources other than the Defendant, . . ” The contents of this affidavit would have been admissible in evidence. Rule 56(e), ARCP. The defendant offered nothing to counter the plaintiff’s allegations and supporting affidavit.

Under the submission for summary judgment, then, the trial court could have found that the plaintiff was a party in interest within the terms of the statute who was entitled to redeem this real estate from a tax sale to an individual; that the mortgage was a matter of record at the time of the tax sale, and that no notice of his purchase at the tax sale was given to any person authorized by statute to receive it. § 40-10-120, supra. Thus it could have found that the redemption suit was timely brought. Indeed, this Court held in Kilgore v. Gamble, 253 Ala. 334, 44 So.2d 767 (1950):

If such written notice is not given at all, as there provided [referring to the predecessor statute], the right to redeem by a mortgagee or his transferee of record would be cut off only by adverse possession.

Had the defendant desired to take issue with any of the factual matters submitted by the plaintiff’s summary judgment motion, he might have, and properly should have, done so:

When a motion for summary judgment is made and supported ... an adverse party may not rest upon the mere allegations or denials of his pleading, but his response, by affidavits or as otherwise provided in this rule, must set forth specific facts showing that there is a genuine issue for trial. .

Rule 56(e), ARCP; See Donald v. City National Bank of Dothan, 295 Ala. 320, 329 So.2d 92 (1976).

The defendant also contends on appeal that the grant of summary judgment against him was improper because he had no notice of it. The record, however, shows that such notice was mailed to him by opposing counsel in accord with Rule 56(a), (b), (d).

Let the judgment be affirmed.

AFFIRMED.

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


source: Caselaw Access Project

author: HOLMES, Judge. WRIGHT, Presiding Judge,

license: Public Domain

text:
    Charles A. BOSWELL, as Commissioner of Revenue of the State of Alabama v. GENERAL OILS, INC., a corporation, and the Mead Corporation, a corporation.
    Civ. 1599.
    Court of Civil Appeals of Alabama.
    Nov. 22, 1978.
    Rehearing Denied Dec. 20, 1978.
    William J. Baxley, Atty. Gen., Herbert I. Burson, Jr., Counsel, Dept, of Revenue, and Asst. Atty. Gen., Philip C. Davis, Asst. Counsel, Dept, of Revenue, and Asst. Atty. Gen., for appellant.
    E. T. Brown, Jr. and Kirby Sevier, Birmingham, for appellees.
   HOLMES, Judge.

This is a tax case.

The dispositive issue on appeal is whether the trial court was correct in its determination that the instant sale was a wholesale sale and not subject to sales tax. We find the trial court’s determination to be correct and affirm.

The record reveals the following pertinent facts: Between July 1, 1976, and August 31, 1977, General Oils, Inc. (General) sold The Mead Corporation (Mead) 18,273,-793 gallons of No. 6 fuel oil at a total price of $4,826,086.19 for use by Mead in the manufacture of paper products. In connection with these sales, Mead paid General approximately $193,000 in sales taxes which General duly remitted to the Alabama Department of Revenue.

Mead manufacturers two products, i. e., a corrugated paperboard and a concentrated liquor which is a by-product of the paper-making process. During the period covered by the petition, Mead sold approximately 250 tons of the paperboard and also some thirteen and one-half tons of the liquor.

In the process of manufacturing both the above mentioned products, Mead used No. 6 fuel oil which contains sulphur. The use of this fuel is intended to serve a dual purpose; it supplies energy to power the mill machinery and it is the source of sulphur which enters into and becomes an ingredient of both products which Mead manufactures.

A discernible amount of the sulphur derived from the No. 6 fuel oil remains in and is an ingredient of the paperboard, to wit, 0.34 percent. With regard to the concentrated liquor, the record indicates that the typical sulphur content thereof is 4.36%.

As previously indicated, Mead paid Genera] sales taxes on the fuel Mead purchased from General. General, in turn, remitted these funds to the state. In October of 1977, General and Mead filed a petition for refund with the Commissioner of Revenue to recover these taxes. The Commissioner denied the petition except to the extent of approximately $5,000, i. e., that portion of the tax attributable to the sale of sulphur included in the sale of No. 6 fuel oil.

The petitioners did not accept this partial refund, maintaining that Mead’s purchases of fuel oil from General were at wholesale and thus were entirely tax-free.

The trial court, after hearing the evidence ore terms, granted a writ of mandamus requiring a full refund of the sales tax paid by petitioners and the Commissioner appeals.

The state alleges that when Mead purchased its No. 6 fuel oil, it was in effect acquiring two separate and distinct commodities at the same time, i. e., oil and sulphur. The state contends that since the sulphur is the only material which is incorporated into and becomes part of the finished products, Mead is not entitled to a complete sales tax exemption on the purchase of its oil. Mead is, they contend, only entitled a tax exemption with respect to that portion of the oil which represents the sulphur. This is so because, viewing the oil as a separate commodity, no part of the oil winds up in Mead’s finished products.

We do not agree with this contention and affirm the learned trial judge’s conclusion that the Commissioner’s “Two Product Theory” is insupportable as a matter of fact and of law.

Alabama’s sales tax, by its terms, is imposed only upon sales or receipts of those engaged within the state in the business of selling at retail. Code of Ala.1975, § 40-23-2(1). Retail sales are defined in § 40-23-l(a)(10) as all sales of tangible personal property except those defined as wholesale sales. Wholesale sales, which are not subject to the sales tax, are defined in § 40-23-1(a)(9)(b) as follows:

“. . . sale[s] of tangible personal property or products . . . to a manufacturer . . . which enter into and become an ingredient or component part of the tangible personal property or products which such manufacturer . manufactures . . . for sale . . .”
(Emphasis supplied.)

Thus, under the language of the statute, if the commodity purchased by the manufacturer, enters into and becomes an ingredient of the finished product, the sale is tax free.

The law of Alabama, interpreting this section, has recently been modified. See e. g., Robertson & Associates, Inc. v. Boswell, Ala., 361 So.2d 1070 (1978). Prior to Robertson, our decisions uniformly construed the statute to mean that if any portion of the purchased product became an ingredient or component of the manufactured product, this purchase was at wholesale and not at retail. State v. United States Steel Corp., 281 Ala. 553, 206 So.2d 358 (1968); State v. Southern Kraft Corp., 243 Ala. 223, 8 So.2d 886 (1942); Boswell v. Abex Corp., 55 Ala.App. 477, 317 So.2d 314, cert. denied, 294 Ala. 334, 317 So.2d 317 (1975). The Department of Revenue, itself, recognized this statutory construction and promulgated regulation W27-171 which reads pertinently as follows:

“Any material purchased by a manufacturer which he intends to become a part of his product and which does in fact become a part thereof, even to the extent of 2/ioo% or less, is purchased at wholesale, tax-free. . . . ”

The Robertson case modified the test noted in Abex, supra. Robertson, while not rejecting the former test, states that the inquiry “is whether the manufacturer used the material with the intent and purpose of making it an ingredient or component part” of the finished product. (Emphasis supplied.) 361 So.2d at 1073. Thus, reading Abex in conjunction with the holding in Robertson, the test which is now dispositive of the instant case is twofold: If any part of a product purchased by a manufacturer is intended to remain and does remain in the manufacturer’s finished product, the purchase is at wholesale, and therefore is tax free.

The record reveals, as we noted above, that Mead intended the fuel oil it purchased to serve a dual function. The oil was to supply energy, and it was also to be a chemical contributor of sulphur to the finished products. To that end, Mead manufactured its products, each of which contained a discernible amount of sulphur in the quantities noted above. Clearly, under the facts established at trial and the law applicable to those facts, General’s sales of fuel oil to Mead were tax-free wholesale sales.

The case is due to be affirmed.

AFFIRMED.

BRADLEY, J., concurs.

WRIGHT, P. J., dissents.

WRIGHT, Presiding Judge,

dissenting.

I must respectfully dissent from the decision of the majority. The premise of the trial court and of the majority decision here is that because an element, (sulphur) contained in the oil purchased by Mead Corporation ultimately found its way into the manufactured products (paper and cooking liquor), the purchase of the oil was at wholesale and not subject to sales tax. That premise arises from the decisions of our appellate courts interpreting § 40-23-1(a)(9)(b), Code of Alabama (1975) and its predecessor Title 51, § 786(2)(i), Code of Alabama (1940) (Recomp.1958). Robertson & Associates (Ala.) Inc. v. Boswell, Ala., 361 So.2d 1070 (1978); State v. United States Steel Corp., 281 Ala. 553, 206 So.2d 358 (1968); State v. Southern Kraft Corp., 243 Ala. 223, 8 So.2d 886 (1942); Boswell v. Abex Corp., 55 Ala.App. 477, 317 So.2d 314 (1975). In the last three of those cases the determinative fact was that a material had been purchased, introduced directly in the manufacturing process and became a part or ingredient of the manufactured product. In the first case, the material purchased was not introduced directly into the process but was determined to have been used in a preliminary or preparatory manner. Though traces of the material were found in the end product, the supreme court held such material was not intended to be an ingredient or part of the manufactured product and was not a wholesale sale.

The majority says the inquiry as to taxa-bility of a purchase by “Robertson” is “whether the manufacturer used the material with the intent and purpose of making it an ingredient or component part” of the finished product. I agree that is an accurate paraphrase of Robertson.

However, the facts of this case differ from Robertson and the other cases. It is undisputed that the primary purpose of the purchase of the oil was as a fuel and a source of energy for the Kraft plant. The oil was not intended to be introduced nor was it capable of being introduced as an ingredient into the manufacturing process. Its sulphur was not available for use in the process. It was necessary that the oil be oxidized and burned before its sulphur could be released. Even then the sulphur could not be used because it was combined with another element, oxygen, into the compound sulphur dioxide. That compound was not useable in the manufacturing process because it was in gaseous or vapor form and in the process of escaping into the atmosphere. To be available for use it must first be captured in specially built chambers and then brought in contact with another chemical compound, sodium carbonate. The resulting chemical reaction produced sodium sulfite, the cooking liquor which is used with steam to extract the pulp from the wood. Therefore, the sul-phur as ultimately used in the manufacturing process is in entirely different form from that in which it was originally purchased in the oil. It has gone through an extraction and compounding process of its own. Thus it is not the same material purchased as oil. In all of the cases heretofore decided, the material purchased was introduced in its original form into the processing “pot.”

I consider the material purchased to be oil. That oil was consumed as fuel and did not enter into the “pot.” The material which ultimately entered the process was a new material, sodium sulfite or hydrogen sulfite, compounded by Kraft with special equipment after addition of new elements and new materials. If the majority is correct, a material containing minute quantities of various elements or compounds, may be purchased, any element removed, combined with other materials or elements, and introduced into the manufacturing process. If any part of the original element is found in the manufactured product, the entire material is a wholesale purchase. I do not believe such a result is required from the statute, construing it most strictly against the State. I would reverse the judgment below.


text:
    Ex parte Charles A. BOSWELL, as Commissioner, etc.
    78-187.
    Supreme Court of Alabama.
    March 9, 1979.
    TORBERT, C. J., and BLOODWORTH, FAULKNER, ALMON, SHORES and EM-BRY, JJ., concur.
    MADDOX and JONES, JJ., dissent.


author: BRADLEY, Judge.

text:
    Hilda FULLER v. Richard S. FULLER.
    Civ. 1610.
    Court of Civil Appeals of Alabama.
    Jan. 24, 1979.
    Rehearing Denied Feb. 28, 1979.

      Neil L. Hanley, Mobile, for appellant.
    James D. Sullivan, Mobile, for appellee.
   BRADLEY, Judge.

Former wife appeals from an order of the Circuit Court of Mobile County which decreed that no arrearages of alimony and child support payments were owed by the ex-husband and that the ex-husband shall pay to the ex-wife as alimony the sum of $90 per month. We affirm.

The parties to this appeal were divorced in January 1966 after eighteen years of marriage. Although the original divorce decree was not made a part of the record in this appeal, the parties stipulated that the decree provided that “the Respondent [Richard Fuller] will pay to the Complainant [Hilda Fuller] two hundred dollars per month as alimony and support.”

On January 31, 1978 Mrs. Fuller filed a “motion” in the circuit court seeking inter alia to have Mr. Fuller adjudged in contempt of court for his failure to pay the full monthly amounts required by the divorce decree. The parties stipulated at the hearing that the arrearage of these payments, if in fact such arrearage was owed, totaled about $8,000. The husband’s answer denied that he was in arrears and also contained a “cross-motion” asking the court to eliminate the alimony and support payments required by the divorce decree on the grounds that the parties’ two minor children had reached the age of majority and were no longer dependents.

The trial court held a hearing at which the following facts were revealed. The parties’ two children, who were minors at the time of the divorce decree, are now adults. The son, Rick, reached the age of majority in June 1970 and is now approximately twenty-nine years old. The daughter, Gail, reached the age of majority in June 1972 and is now about twenty-seven years old. Both children are now attending college at the expense of Mrs. Fuller’s aunt.

At the time of the hearing Mrs. Fuller, then fifty-eight years old, was working at an attorney’s office as a secretary and office manager, making approximately $1,000 per month. She testified that she also had been operating a business called the “Soap Shop” for over a year. Despite the fact that this business suffered a loss of $3,600 during the previous year, Mrs. Fuller stated that she had notified her employer of her intention to leave her job as secretary in order to operate the Soap Shop. She further testified that the attendant pressures of her job at the law office contributed to her recent medical problems; that her aunt and her mother would provide her temporary financial support as she made the adjustment from her secretarial job to operating the shop; and that she hoped her business would “break even” during 1978 and show a profit the following year.

Mr. Fuller, now in his late fifties, testified that he had ceased to be a civil service employee the month before the hearing, when health problems forced him into early retirement. His gross annual salary had increased from $13,000 at the time of the divorce in 1966 to about $25,000 in 1977. After the divorce he had moved to California, had remarried in 1968, and is now supporting his present wife and her children. His retirement income and YA disability pension will give him an estimated annual income of $14,000. He and his present wife have about $10,000 equity in a home, own two motor vehicles, and have about $4,500 in bank accounts. In the last ten years they have taken several trips outside the continental United States and at least one cross-country motor trip in this country.

The record indicates that from the time of the divorce in 1966 through October 1969 Mr. Fuller paid the full $200 per month alimony and child support as required by the divorce decree. However, during the next fifty months, i. e. from November 1969 through December 1973, Mr. Fuller made monthly payments which varied in amount from $140 to $180. Specifically, he paid $140 per month for nineteen and one-half of these months, $180 per month for twenty-nine and one-half of these months, and $160 for one of these months. Thereafter, from January 1974 through the time of the hearing he paid $80 per month.

Mrs. Fuller testified that she acquiesced to the payments because she needed the money and was afraid that if she “caused any trouble he would stop them altogether.” In January 1978 she received a letter from Mr. Fuller wherein he advised her that the payments would stop in May of that year. At that point she decided to institute the contempt proceedings.

Mr. Fuller contended in his testimony that Mrs. Fuller agreed to these reduced payments, insofar as she never objected when he notified her that the amount of the payments was going to be lowered. He also indicated that certain factors influenced his decision as to what amount he would send each month; namely, whether either of the children was in school, whether either of the children had reached twenty-one years of age, and whether Mrs. Fuller requested a little more money than she had received the previous month. He testified that in 1974 he finally reduced the payments to $80 per month because both children were out of school, over twenty-one, and working; and that he is now unable to continue making payments to his ex-wife.

In addition to making the above mentioned payments, the record indicates that Mr. Fuller also maintains hospitalization and burial insurance policies on Mrs. Fuller and the two children. Mrs. Fuller is the beneficiary of a life insurance policy maintained by Mr. Fuller, and the son, Rick, is the contingent beneficiary. On one occasion Mr. Fuller sent Rick $500 to pay for a car repair. The record also indicates that for a time Rick lived with Mr. Fuller in Sacramento, California while attending school there, but it is unclear whether this occurred prior to Rick’s reaching the age of majority.

Following this hearing the trial court issued an order dated June 14, 1978 finding no arrearage owed by Mr. Fuller and ordering him to make future alimony payments to Mrs. Fuller in the amount of $90 per month.

The wife contends on appeal that the trial court erred in ruling there was no arrearage and abused its discretion in reducing the amount of alimony. She argues that the trial court retrospectively modified the divorce decree in contravention of the rule set forth in Whitt v. Whitt, 276 Ala. 685, 166 So.2d 413 (1964). She cites Whitt for the proposition that while changed circumstances may be grounds for modification of a divorce decree requiring the husband to pay alimony, such a modification has only a prospective effect and cannot relieve the husband of paying alimony installments which matured prior to the petition for modification. She also cites numerous Alabama cases holding that accrued installments of alimony become final judgments as of the date due and may be collected as other judgments.

On the other hand, the husband’s position is that the trial court properly found no arrearage. He points out that the original divorce decree required the husband to pay a monthly lump sum as alimony and child support, and that the two children born of the marriage had reached the age of majority in 1970 and 1972 respectively. The ultimate issue to be decided, he argues, is not whether the past-due installments are to be considered non-modifiable final judgments, but rather, whether such “judgments” may be considered partially paid and satisfied by way of credits applied against the arrear-age. The husband contends that in the instant case, as in Nabors v. Nabors, Ala. Civ.App., 354 So.2d 277 (1978), the trial court allowed as credits against the claimed arrearage that portion of the monthly payment which represented child support accruing subsequent to the respective dates on which the children were emancipated.

The husband also contends the trial court did not “reduce the alimony,” but rather merely stated which part of the original lump-sum award was in fact alimony. He points out that this court upheld a similar action by the trial court in McGugin v. McGugin, Ala.Civ.App., 357 So.2d 347 (1978).

The two cases cited by the husband, Na-bors, supra and McGugin, supra, involved lump-sum awards of alimony and child support similar to that in the instant case. In these cases this court noted that a father owes no further support obligation to a child who reaches the age of majority, Na-bors, supra, or to a child who marries and becomes self-supporting, McGugin, supra. See also 15A Ala.Dig. Parent and Child &wkey;3.1(4). In Nabors and McGugin we also recognized the authority of the trial court to allocate proportionate amounts of a lump-sum award as alimony and child support in an appropriate proceeding subsequent to the original divorce decree.

The divorce decree in Nabors ordered the husband to pay $25 per week as alimony and child support. In giving credit to the husband against arrearages claimed by the wife, the trial court made a proportional allocation of the $25 per week lump-sum award, finding the wife was entitled to one-third of the award as alimony with the other two-thirds for support of the minor children. The credit given to the husband was based on the fact that the minor children had lived with and were supported by the husband for a part of the period of time during which the arrearages were alleged to have accrued.

Similarly, in McGugin, supra, the 1970 divorce decree required the husband to pay $40 per week as alimony and child support. In 1977 the wife sought to have the husband adjudged in arrears on these payments. After a hearing the trial court determined that the original award should be allocated as follows: $20 per week as child support and $20 per week as alimony. The court then reduced the amount of the claimed arrearage by permitting the husband to receive credit for the sum designated as child support for the period during which the child was no longer dependent upon the husband for support. The credit given to the husband was based on the fact •that the child had married and that thereafter the wife was not entitled to any child support payments.

The case at bar differs from Nabors and McGugin in one respect. The court order from which Mrs. Fuller appeals contains no express allocation of the original monthly lump-sum award, i. e. it does not specify what portion of the award represents alimony and what portion represents child support for the two children, nor does it specify what portion represents the monthly support for one child. Relevant portions of that order read as follows:

[T]he Court having considered all testimony adduced at the time of the hearing and the evidence submitted, the Court now finds that the two minor children were emancipated in June of 1970 and June of 1972, and therefore, it is ORDERED, ADJUDGED and DECREED by the Court that the records in the Office of the Accounts Clerk of this Court shall be adjusted to reflect no arrearage in this cause.
It is further ORDERED, ADJUDGED and DECREED by the Court that all child support payments be, and hereby are, now suspended in that the minor children were emancipated in June of 1970 and June of 1972, and further, that the Defendant shall pay to the Plaintiff as alimony the sum of $90.00 per month,
. . [Emphasis supplied.]

Thus the precise question posed by this appeal is whether the trial court, having failed to make an express allocation of the original lump-sum award, erred in allowing the husband as credit against the claimed arrearage that amount of the child support payments accruing subsequent to the children’s respective emancipation dates.

The Alabama Supreme Court said in White v. White, Ala., 350 So.2d 326 (1977):

It is a well-known rule of review that where the trial court makes a decision based upon evidence taken ore tenus, its decree is favored with a presumption of correctness and its finding will not be disturbed on appeal unless plainly erroneous or manifestly unjust.
This court has stated that where there is no direct finding by the trial court on a matter but the decree rendered necessitated such a finding, the reviewing court will presume such a finding if it is supported by the evidence and justifies the decree rendered. [Citations omitted.]

In this case the trial court’s conclusion that there was no arrearage necessitated a finding as to the allocation of the lump-sum award in order to determine the amount of credit due the husband based on the earlier emancipation of the children. It is unclear from the record exactly what allocation was made by the trial court. Consequently, the monthly and/or total amount of credit allowed to the husband is also uncertain. It is clear, however, that the credit given was sufficient to eliminate the entire amount (roughly $8,000) of the claimed arrearage.

The trial court ordered that the husband make future alimony payments in the amount of $90 per month. Assuming that the trial court’s implicit but unstated finding was that the $200 per month payments were allocated as $90 per month alimony and $110 per month child support ($55 per child per month), the credit given the husband based on this allocation would justify the trial court’s conclusion that no arrear-age is owed. A finding of such an implicit allocation is supported by the evidence in the record of this case, and under the authority of White, supra, and the cases cited therein, this court will presume such allocations were made by the trial court in resolving the issue of arrearage.

A trial court may, in a final divorce decree, specify what part of a monetary award to the wife is alimony and what part is for child support, and although a failure to do so is not improper or error, see Boyd v. Boyd, 268 Ala. 409, 108 So.2d 176 (1959), the granting of such lump-sum awards is not recommended. Nabors, supra. Similarly, this opinion should not be construed as recommending the granting of credits to the husband against arrearages of alimony and child support in the absence of an express allocation of the original lump-sum award of alimony and child support.

We think the record supports the trial court’s decision to set the amount of future alimony payments at $90 per month and we would further point out that the law in this state is that awards of periodic alimony which have not accrued are never truly final, but are subject to the power of the court to modify on account of changed circumstances. See, e. g., Jernigan v. Jernigan, Ala.Civ.App., 335 So.2d 178 (1976).

The modification of a decree providing for alimony and child support upon proof of changed circumstances is a matter within the discretion of the trial court which is disturbed on appeal only upon a showing of palpable abuse. Clutts v. Clutts, 54 Ala.App. 43, 304 So.2d 599 (1974). Under the facts of this case we cannot say the trial court abused its discretion. This case is affirmed.

AFFIRMED.

WRIGHT, P. J., and HOLMES, J., concur.


text:
    Janice Templeton PORTER v. Michael E. TEMPLETON.
    Civ. 1660.
    Court of Civil Appeals of Alabama.
    Feb. 28, 1979.
    G. Daniel Evans of Morton & Evans, Birmingham, for appellant.
    Hubert H. Wright, Gadsden, for appellee.
   BRADLEY, Judge.

The wife appeals from a final order confirming custody of the minor female child in the husband and the trial court’s denial of a motion for reconsideration.

Husband and wife were formally divorced on August 23, 1977. Custody of the minor female child was placed in the husband. The wife filed a petition for modification of the custody provision of the original divorce decree on June 9, 1978. She alleged a substantial change in circumstances in that she had remarried and acquired substantial means for providing full care and financial support for the child since the date of the divorce. She claimed that since the divorce the husband had been unemployed for a substantial period of time and had to rely upon the financial support of his parents for both himself and his child. The wife further alleged that she had been denied meaningful access to the child and that the husband had evidenced such lack of interest, financial stability, and supervision of the minor child that he was no longer a fit and proper person for custody. After hearing oral testimony, the trial court issued a final order on June 18, 1978 confirming custody of the minor child in the husband and modifying the divorce decree in regard to visitation by the wife. The modification reads:

2. That the Petitioner, Janice Temple-ton Porter shall have visitation rights with the minor child, Vicki Lynn Temple-ton, from the 1st day of August, 1978, until the 31st day of August, 1978, and for ten (10) weeks during the summer of 1979, and each summer thereafter, beginning on the 16th day of June and ending on the 31st day of August, with the Defendant providing transportation of the minor child to the mother’s residence in Michigan, and with the Plaintiff providing the transportation from Michigan back to the Defendant’s home after each of the aforesaid visitation periods.

Oral testimony reveals that the wife remarried after the divorce and was expecting a child in September of 1978. She is presently living in Michigan in a trailer on a ten acre lot. Her new husband has held a job for about five years as a lubrication engineer and takes home about $250 a week. The new husband testified that he wanted the minor female child and that he could support the child financially without any support payments from the father.

The husband’s testimony revealed that he was planning to attend TVA school for nine months, during which time he would receive no compensation. He further testified TVA would hire him permanently at the end of nine months. The husband had been unemployed since May 25, 1978, and at the time of the hearing testified he was not able to buy his daughter the necessary food, clothing, etc. His parents take care of the child’s necessities. The husband and child have resided with his parents since the divorce. They now live in a fourteen foot by seventy foot three bedroom trailer with the husband’s parents and brother. The child has no bedroom of her own, but sleeps wherever she wishes to sleep. The husband’s mother testified that she performs all of the motherly tasks for the child.

The mother testified that she had attempted to see the child once in March 1978. Testimony indicated she visited several days. It appears that the husband consented for the child to visit in Michigan in June but that for some reason the visit never materialized.

The primary issue is whether the trial court was palpably wrong in denying the wife’s petition for modification and ordering custody of the four year female child to remain in the husband.

A trial court which has heard oral evidence in a custody modification proceeding will not be reversed on appeal except for plain and palpable error and abuse of discretion. Smith v. Smith, Ala.Civ.App., 334 So.2d 915 (1976). The reviewing court will not substitute its judgment for the trial court if there is any reasonable inference presented from the evidence that the trial court’s decree was correct. Smith, supra.

In this case the burden was on the wife to convince the trial court that circumstances upon which the original decree was based had changed to such a degree that modification of the award of custody was required. Stewart v. Grace, Ala.Civ.App., 360 So.2d 1032 (1978); Warnick v. Couey, Ala.Civ.App., 359 So.2d 801 (1978).

The wife urges that the trial court abused its discretion and that its order was palpably wrong due to the evidence which supported modification. We recognize that remarriage and establishment of a satisfactory home and a showing of an ability and willingness to take care of a child are persuasive elements in support of a petition to modify a custody decree. See 27B C.J.S. Divorce § 317(2) (1959). However, remarriage is but one factor to be considered by the trial court along with others in the exercise of its discretion. Stuckey v. Stuckey, 50 Ala.App. 682, 282 So.2d 283 (1973). Remarriage, in and of itself, is not such a material change of circumstance as to justify modification of a decree awarding custody. Pezent v. Nelson, 52 Ala.App. 9, 288 So.2d 792 (1974). Nor is the improved financial condition of one party a controlling circumstance in a change of custody proceeding. See Ponder v. Ponder, 50 Ala.App. 27, 276 So.2d 613 (1973). The paramount consideration in every child custody case is the best interests of the child. See 8 Ala. Dig. Divorce 298(1). There was no evidence to show the child was uncared for or that custodial arrangements detrimentally affected the child, and, in fact, the wife testified that the child appeared to be fairly happy.

The orders of the trial court denying the request for modification of child custody and for reconsideration are without error and must be affirmed.

AFFIRMED.

WRIGHT, P. J., and HOLMES, J., concur.


author: WRIGHT, Presiding Judge.

text:
    The HOUSING AUTHORITY OF the TOWN OF UNIONTOWN, Alabama v. Frank J. MIZELL, Jr.
    Civ. 1661.
    Court of Civil Appeals of Alabama.
    Feb. 28, 1979.
    J. L. Chestnut, Jr. of Chestnut, Sanders & Sanders, Selma, for appellant.
    Archie T. Reeves, Jr., Selma, for appellee.
    Frank J. Mizell, Jr., pro se.
   WRIGHT, Presiding Judge.

Defendant, Union town Housing Authority, appeals from a judgment granting plaintiff’s motion to dismiss a petition for intervention filed by the United States Department of Housing and Urban Development (HUD).

This matter began with the filing of suit by plaintiff Mizell on September 5, 1975, against the defendant Authority to recover an attorney fee. Mizell had allegedly represented the Authority in a suit in federal district court. After various motions of defendants were denied, it failed to further plead, and default judgment was entered against it on June 23, 1976. The default was set aside on July 29, 1976. Defendant filed responsive pleadings on August 6, 1976, including the defense that the agreement made by defendant’s executive director with plaintiff was void because it contravened HUD regulations and authority. On January 12, 1977, defendant Authority consented to judgment in favor of plaintiff in the amount of $6,698.09. That judgment was entered by the court on January 18, 1977.

After other collection attempts, plaintiff secured a writ of garnishment on judgment on June 21, 1977 against defendant’s bank accounts. The garnishees answered. On July 29, 1977, defendant moved to quash the garnishment stating, among other grounds, that the control and disbursements of its funds were subject to the authority of HUD and HUD had not authorized plaintiff’s employment or consented to payment of the judgment. Plaintiff filed motion to strike the defendant’s motion to quash.

Subsequently, the executive director of defendant filed motions for declaratory judgment and to add HUD as an indispensable party. Plaintiff moved to strike. Neither motion was ever set for hearing or ruled on. Nothing further occurred until hearing was had on the matters pertaining to the garnishment on April 5, 1978. Parties and counsel were present at the hearing. The court entered an order thereon dated May 19, 1978. That order directed garnishee Central Bank of Uniontown to immediately pay to the circuit clerk, from the funds of the defendant, the sum of the judgment, interest and cost totaling $7,361.44. The order further directed the clerk to notify HUD that the money had been received and that HUD was given ten days to show cause why the funds should not be paid over to plaintiff. The order was filed in the clerk’s office on May 22, 1978. Notice of the order was sent to HUD’s office in Birmingham on June 7, 1978, advising it to show cause within ten days from that date. HUD filed a motion to intervene on June 23, 1978.

The motion to intervene was stated to be for the purpose of joining in the defense against the writ of garnishment. It averred grounds for intervention under Rule 24(a)(2), ARCP, in that disposition of the action may as a practical matter impair or impede the ability of HUD to protect its interest in the property involved. It alleged HUD’s interest in the funds of the defendant arose under 42 U.S.C., Sections 1401, et seq., and that the funds of the defendant were exempt from garnishment under § 24-1-40, Code of Alabama (1975).

Plaintiff moved to dismiss the motion to intervene on various grounds including untimeliness, waiver, lack of standing under Rule 24 and res adjudicata. On August 14, 1978, the court filed its order dismissing the motion to intervene on the grounds “enumerated” in plaintiff’s motion to dismiss. On September 25, 1978, defendant filed notice of appeal from the judgment dismissing the motion to intervene filed by HUD. HUD did not appeal.

Plaintiff has moved to dismiss the appeal on several grounds. By order of December 28, 1978, this court denied the motion to dismiss as to six grounds of which the primary one was that of untimeliness of notice. We withheld decision on the remaining grounds until final submission on the merits and the arrival of the record. Upon further consideration of the motion to dismiss the appeal, we conclude that defendant has no standing to bring this appeal and the same should be dismissed.

We previously herein went to extended length to document that defendant Authority agreed to judgment after having raised by its answer the alleged interest of HUD in the prosecution of and possible outcome of the suit. It made no effort to have HUD declared an indispensable or necessary party, nor did HUD seek to intervene. After suffering judgment, defendant sought no post judgment remedy or appeal. When efforts toward collection of the judgment were begun and continued for months, HUD did not appear and seek to intervene. Though defendant in its motion to quash garnishment raised the exact issues of its obligations to and control by HUD as were almost a year later presented by HUD in its motion to intervene, there is no record of presentation of evidence to support such issues at the hearing on the writ of garnishment on April 5, 1978. Neither did defendant exercise its right to appeal from the judgment of May 19, 1978, granting garnishment and condemnation of funds from its bank account.

HUD finally sought to protect an alleged interest in defendant’s funds by exercising a personal right of intervention under Rule 24(a)(2). This was an action only HUD could exercise, premised under the rule entirely upon timely application claiming an interest relating to the property involved in the action and further claiming that it was so situated that disposition of the action may as a practical matter impair or impede its ability to protect that interest. Rule 24(a)(2). HUD received an adverse ruling from the court as to its claim of personal right to enter the action to protect its own interest. HUD did not complain of error and injury from the ruling. If that ruling was erroneous, that error was solely related to HUD, not to defendant. It is axiomatic that error only as to one not appealing cannot be made an issue on appeal by another. Galin v. Bieker, 260 Ala. 265, 70 So.2d 254 (1954); Hosey v. Southport Petroleum Co. of Delaware, 244 Ala. 45, 12 So.2d 93 (1943). Ala.Dig., Appeal & Error 878-880. We conclude that the denial to HUD of the right to intervene, even if error (which we do not decide), was not error as to defendant and can give defendant no basis for appeal. The motion of plaintiff to dismiss the appeal is granted.

APPEAL DISMISSED.

BRADLEY and HOLMES, JJ., concur.


author: HOLMES, Judge.

text:
    DALE COUNTY DEPARTMENT OF PENSIONS AND SECURITY v. Harry J. ROBLES and Sung Robles.
    Civ. 1681.
    Court of Civil Appeals of Alabama.
    Feb. 28, 1979.

      William J. Baxley, Atty. Gen., Montgomery, Charles A. Graddick, Atty. Gen., Mary Lee Stapp, and Jamie L. Pettigrew, Asst.
    Attys. Gen., and Bryant F. Williams, Jr., Sp. Asst. Atty. Gen., for appellant.
    Donald C. McCabe, Daleville, for appel-lees.
   HOLMES, Judge.

This is a child custody case.

The Department of Pensions and Security (hereinafter Department) petitioned the district court for temporary custody of a minor child. The district court awarded temporary custody to the Department. Thereafter, the natural parents petitioned the circuit court for a writ of habeas corpus and for a determination of custody of the child. Ultimately, after hearings ore tenus, the trial court awarded custody to the father. However, the custody awarded to the father was a restricted one. The Department appeals and we affirm.

The dispositive issue on appeal is whether the trial court abused its discretion in its award of custody. As indicated earlier, we find it did not and affirm.

We deem it necessary to set out in some detail the pertinent facts surrounding this appeal.

This proceeding began with an ex parte hearing on June 9, 1977, in the District Court of Dale County at which time the court granted the Department temporary custody of the minor child pending a hearing. Upon the hearing on June 10, the district judge awarded temporary custody of the child to the Department. After the parents petitioned the circuit court for a writ of habeas corpus, another hearing was held on November 22, 1977, and again temporary custody was awarded the Department. The parents timely moved the circuit court for a rehearing, and after granting the motion, the court on May 18, 1978, held a second ore tenus hearing which resulted in an order granting custody of the minor child to the father.

The record of the proceedings viewed with the attendant presumption reveals the following: Harry and Sung Robles were the parents of two infant female children. There was testimony that on June 1, 1977, Rita, their three month old child died under circumstances which were suggestive of the possibility of child abuse and further opinion testimony that the child had been abused. The physical condition of the infant, as indicated by an autopsy, showed that the child had two fracthres of the skull, and fourteen broken ribs. The evidence indicates that these injuries occurred some months prior to the infant’s death (possibly at birth); that they were not the cause of death; and that of the three physicians who examined the deceased child, none could identify the cause of death.

The physicians who examined the deceased child found no evidence that external force was applied to the child’s body, i. e., there were no bruises or discolorations customarily present when external force causes the breaking of bones. There was evidence that since Mrs. Robles is a Korean National, she customarily carried the child on her back as she went about her household duties at which time the child’s body was tightly wrapped in a stable position on her back. There is additional testimony that the deceased child’s fifteen month old sister had, on past occasions, hit the infant with objects and had pulled her off furniture onto the floor on more than one occasion.

Shortly after the death of the child, the FBI and Army Criminal Investigation Division investigated the circumstances surrounding the death of the child because Mr. Robles is a noncommissioned officer in the United States Army. Additionally, a federal grand jury investigated the circumstances surrounding the death of Rita. No charges were preferred against either parent.

At the hearings, the parents introduced testimony from a number of witnesses which indicates that the children were well cared for, healthy and happy. These witnesses, particularly Chaplain Thomason, stated that they had not observed any evidence of physical abuse of the children. In addition, the next door neighbors of the parents testified that they had not observed evidence of physical abuse and had not heard the children cry or scream as if they were being physically harmed. It was their opinion that Mrs. Robles was a good mother.

At the final hearing, the plaintiffs, by way of deposition, introduced the testimony of a Dr. Lopez, a highly qualified psychiatrist. Dr. Lopez testified that he extensively examined the Robles and that the usual social maladjustments normally present in parents who abuse children were conspicuously absent in this instance. Furthermore, it was his opinion that neither parent had harmed the deceased child. Finally, Dr. Lopez stated that because Mrs. Robles is a small female, that fact coupled with the fact that the deceased child at birth weighed eight pounds could account for the existence of the fractures.

Most significantly, our examination of the record indicates that there is no testimony, expert or otherwise, which shows that the surviving daughter was abused or neglected. In fact, from all that appears, the condition of this child has, since her separation from her parents, physically deteriorated.

With the above before the learned trial judge the following order regarding custody was entered:

1. that the care, custody and control of Jenny Lee Robles is hereby awarded to Harry J. Robles under the care and supervision of the Department of Pensions and Security of the State of Alabama on the following conditions:
a. that Mr. and Mrs. Robles submit themselves to a psychiatrist and psychological examination and obtain treatment of any mental or emotional problems they may have.
b. that the Robles attend any child abuse clinics if advised to do so by the Department of Pensions and Security.
c. that the Robles meet and abide by the directives of the Department of Pensions and Security and permit the Department to visit, inspect and supervise their home situation.
d. that the Robles advise the Department of Pensions and Security of their whereabouts at all times.
e. that the Robles enroll in any courses or seminars which may be available dealing with the responsibilities of parents and child care if so directed to do so by the Department of Pensions and Security.
f. that the Robles refrain from removing the child from the State of Alabama without the permission of the Court.

On appeal, the Department contends that the trial court’s order is plainly and palpably erroneous and contrary to the great weight of the evidence. Specifically, it is argued that because there is evidence that the deceased infant was possibly abused prior to her death, the parents are unfit. Therefore, it is argued that the well being of the surviving child is endangered if the parents are given custody. For the reasons set forth below, we cannot say in this instance that the learned trial judge erred, particularly in view of the nature of the restrictive custody order.

The legal principles which are dis-positive of the instant dispute are aptly set forth by our Judge Bradley in Ely v. Casteel, Ala.Civ.App., 341 So.2d 730, 734 (1977), where it is said:

Where the dispute over custody of a child is between the child’s natural parent and a party who is not the child’s natural parent, the natural parent has a prima facie right to the child’s custody. However, the right is not absolute but is subject to the equally well settled rule that the best interests and welfare of the child are controlling in child custody cases. Borsdorf v. Mills, 49 Ala.App. 658, 275 So.2d 338 (1973).
Ordinarily there is no conflict between these two principles, since it is presumed to be in the child’s best interests to place custody in the parent. Kennedy v. State Department of Pensions and Security, 277 Ala. 5, 166 So.2d 736 (1964); Smith v. Jones, 275 Ala. 148, 153 So.2d 226 (1963). However, when the parent’s fitness for custody is challenged, the principle of the best interests of the child outweighs parental rights. White v. Appleton, 53 Ala. App. 702, 304 So.2d 206 (1974); Borsdorf v. Mills, supra. To remove custody from the natural parent in such a case, there must be clear and convincing evidence that it would be against the best interests of the child to remain with the natural parent. Caine v. Caine, 51 Ala.App. 607, 288 So.2d 147 (1973); Borsdorf v. Mills, supra.

In view of the facts set forth above, we cannot say there is “clear and convincing evidence that it would be against the best interests of the child to remain with the natural parent.” This is particularly so given the nature of the learned judge’s well drafted restrictive decree. Where, as here, the case is heard ore tenus and there is legal evidence to support the decree, this court will not substitute its judgment for that of the trial court. Ely, supra.

We would be remiss in failing to note that this is a most unusual case involving numerous perplexing facts. There appears to be no solid conclusion that can be reached regarding the death of the child. Under such circumstances, the trial court entered a reasonable and, hopefully, adequate solution.

The Department, as we perceive its argument, additionally contends that the trial court erred in reversing its original custody order after an ore tenus rehearing because there was no new evidence presented by the parents at the rehearing which sustains the trial court’s award of custody to the parent. We do not agree.

Initially, we observe that the question of child custody is never res judica-ta. Quintanilla v. George, Ala.Civ.App., 340 So.2d 804, cert. denied, Ex parte Quintanilla, 340 So.2d 808 (Ala.1976). Notwithstanding this principle, under ARCP 59, a new trial may be granted a party on all or part of the issues in an action tried without a jury. Upon such a motion, the court can take additional testimony, amend its findings of fact or conclusions of law or make new findings and conclusions, and direct entry of a new judgment. ARCP 59(a). In the instant case, the parents timely moved for a rehearing and, contrary to the Department’s contention, presented ample evidence as indicated above which supports the trial court’s final decree.

The Department’s final contention is that the trial court committed reversible error in considering an offer of judgment which was stricken by the court. The Department argues that the court further considered the document when the parents attempted to testify to its contents, although such testimony was foreclosed by proper objection.

We find no merit in this contention because to require reversal, the party claiming error has the burden of showing error on the record and resulting injury. Kroger Co. v. Puckett, Ala.Civ.App., 351 So.2d 582 (1977). In this instance, the force of the Department’s argument loses much if not all of its impact because the court below struck the offer of judgment from the proceedings and furthermore, properly sustained objections to oral testimony which alluded to its contents. The trial court’s conscious effort to abide by the rules of evidence cannot, as the Department contends, amount to error. For this court to say that the trial court in fact considered the offer of judgment would be more conjecture and speculation on the part of this court.

For the reasons noted above, the decree of the court below is affirmed.

AFFIRMED.

WRIGHT, P. J., and BRADLEY, J., concur.


text:
    Anthony Pierre PEAVY v. STATE.
    8 Div. 160.
    Court of Criminal Appeals of Alabama.
    Feb. 20, 1979.
    Warren E. Mason, Jr., Huntsville, for appellant.
    Charles A. Graddick, Atty. Gen., and Jean Williams Brown, Asst. Atty. Gen., for the State, appellee.
   BOWEN W. SIMMONS, Retired Circuit Judge.

The indictment as originally returned contained three counts; (1) Burglary in the second degree; (2) Grand Larceny; and (3) Possessing and Receiving Stolen Property. The third count was stricken by the State. The trial jury returned a verdict of guilt on Count 2. The trial judge imposed a penitentiary sentence of six years.

The burglarized premises was a storehouse or shop, owned and in possession of R. W. Sheet Metal, a corporation, located in the City of Huntsville, Madison County, Alabama. The time of the burglary was in the late evening of Saturday, November 26, 1977 or the early morning hours of Sunday, November 27, 1977, at which time Mr. Rufus Warren, a principal stockholder (with his wife) and operator of the business, received a telephone call about the breakin. He called his uncle, James Warren, whereupon the two went to the location and discovered the place of entry. Rufus thereupon called the police who reported, but failed to find the burglar. They left after a futile look around. The two Warrens decided to stay and see if the offender might come back.

While secluded in an office with the lights out, at about 5:50 a. m., Sunday, they observed a person alight from an automobile' and hurriedly cross the road in the direction of the building wherein they were waiting. Soon, they heard a noise which they investigated to find an intruder inside.

The uncle intercepted him inside the building and was able to observe him for about thirty seconds before he escaped from the building by taking a ceramic jar and breaking a window through which the subject escaped.

The police appeared again and investigated. They found some fingerprints on the jar. The prints were lifted and preserved for future comparison. Only Mr. James Warren, the uncle, was able to get a good look at the man. The owner, Mr. Rufus Warren, heard the sound of his voice but did not observe him. Mr. James Warren heard him say “Rufus.”

A detective went to the house of defendant to make an investigation. There, he found defendant who went to the detective room of the police station with the officer but not under arrest, so the officer testified. There, defendant was observed about 11:00 a. m. on Monday, November 28, 1977, by both Warrens.

Mr. Rufus Warren testified that he did not recognize defendant from his features, but in his judgment his voice was the one which he had heard in the building. It seems that defendant had worked for Mr. Rufus Warren in the building for about two weeks just before the burglary. His services were terminated because they were unsatisfactory.

It appears that Mr. James Warren, the uncle, did not at first recognize defendant, who was sitting down with his face turned and wearing glasses. He then saw only the side of his face. Mr. Warren, out of the presence of defendant, asked the detective to get him to stand up and remove his glasses. When this was done, Mr. Warren immediately recognized him. He also identified him in court at the trial. Mr. Warren testified that he wanted to be positive of the identification and did not want to reach a hasty decision while defendant was in a sitting position with glasses oh. When asked why he did not shoot him with a pistol in his possession when the subject escaped through the broken window, the witness said he did not want to kill him. It is to be noted that a motion to suppress the identifying evidence was heard and evidence, supra, adduced outside the presence of the jury. The motion was overruled.

The only issue here asserted by defendant is the adverse ruling to suppress the out-of-court identification of defendant as well as the in-court identification. The contention is that such identification was suggestive, tainted and inadmissible.

Mr. James Warren testified before the jury on cross-examination that defendant, on the night that he was accosted in the burglary, had on brown pants and a greenish-type shirt and a green “toboggan” on his head but not over his face. He did not have on glasses. He further testified that the lighting was good in the hallway when he first saw defendant and that the office lights “stay on all night.” The hallway lights were fluorescent type and were turned on; all the lights in the' hallway were turned on. He further said he was face to face with defendant in the hallway for ten to fifteen seconds and they were about ten feet apart.

It thus appears from the evidence that, while he was in the burglarized building, that the witness got a good view of defendant’s face and his body while he was standing and was able positively to identify him in the detention room when he stood up and removed his glasses.

We think the witness’ hesitancy to identify the defendant when the latter was sitting down with his face to the side and with glasses on showed a desire on the part of the witness to avoid a misidentification; that he wanted to be sure. He was positive after subject stood and removed his glasses.

We are impressed that the identification procedure, while defendant was detained in the detention room, met the guidelines established in Neil v. Biggers, 409 U.S. 188, 93 S.Ct. 375, 34 L.Ed.2d 401, as they appear in Wilson v. State, 57 Ala.App. 125, 326 So.2d 316(2) cert. den. 295 Ala. 429, 326 So.2d 319, also in Childers v. State, Ala. App., 339 So.2d 597. As was done in Wilson, supra, we quote from Neil, supra, as follows:

“Some general guidelines emerge from these cases as to the relationship between suggestiveness and misidentification. It is, first of all, apparent that the primary evil to be avoided is ‘a very substantial likelihood of irreparable misidentifieation.’ Simmons v. United States, 390 U.S. 377, at 384, 88 S.Ct. 967, at 971, 19 L.Ed.2d 1247. While the phrase was coined as a standard for determining whether an in-court identification would be admissible in the wake of a suggestive out-of-court identification, with the deletion of ‘irreparable’ it serves equally well as a standard for the admissibility of testimony concerning the out-of-court identification itself. It is the likelihood of misidentification which violates a defendant’s right to due process, and it is this which was the basis of the exclusion of evidence in Foster. [Foster v. California, 394 U.S. 440, 89 S.Ct. 1127, 22 L.Ed.2d 402] * * * ’ (Bracketed matter added.)
* sf. * * * #
“We turn, then, to the central question, whether under the ‘totality of the circumstances’ the identification was reliable even though the confrontation procedure was suggestive. As indicated by our cases, the factors to be considered in evaluating the likelihood of misidentification include the opportunity of the witness to view the criminal at the time of the crime, the witness’ degree of attention, the accuracy of the witness’ prior description of the criminal, the level of certainty demonstrated by the witness at the confrontation, and the length of time between the crime and the confrontation. * * *’ 409 U.S. at 198-200, 93 S.Ct. at 381, 34 L.Ed.2d 401 at 410-411.”
We are unwilling to hold that the “show-up”, as above noted, was suggestive and that the identification was tainted. The physical posture of defendant sitting with his face sideways and glasses justified a postponement of identification until the subject assumed a standing posture without glasses and a direct facial confrontation. Besides the witness also recognized his voice.

We failed to note, supra, that an expert witness for the State testified that the lifted fingerprints were the same as those of defendant.

We also note that defendant, when he took the stand, testified that on Friday, November 25, 1977, he was in the shop and put his hand and fingers on the ceramic jar that was thrown through the window. Mr. Rufus Warren testified that the ceramic jar was not brought to the building by his wife until Saturday, November 26, 1977. Defendant denied his guilt and asserted an alibi that he was somewhere else.

We find no error in the record to reverse. The judgment is affirmed.

The foregoing opinion was prepared by the Honorable Bowen W. Simmons, a retired Circuit Judge, serving as a Judge of this Court, under the provisions of § 6.10, of the new Judicial Article (Constitutional Amendment No. 328); his opinion is hereby adopted as that of the Court.

AFFIRMED.

All the Judges concur.


author: PER CURIAM.

text:
    THE FLORIDA BAR, Complainant, v. Richard H. COBOURN, Appellant.
    No. 55562.
    Supreme Court of Florida.
    Feb. 15, 1979.
    G. Lynn Kilpatrick, Tallahassee, Asst. Staff Counsel, and Nicholas R. Friedman, Fort Lauderdale, of The Florida Bar, for complainant.
    No appearance for respondent.
   PER CURIAM.

This matter is before us on recommendation of the referee to approve the unconditional guilty plea of Richard H. Cobourn and for entry of a final order of discipline. Cobourn has pleaded guilty to felony charges in the Seventeenth Judicial Circuit. The present proceeding was commenced by complaint of The Florida Bar against Cob-ourn. The charges in the complaint were substantially identical to the felony charges.

The referee has made the following recommendations in his report to this Court:

1.The unconditional guilty plea entered into by The Florida Bar as made by the respondent and executed by him (in evidence as Exhibit 1) is hereby accepted by the undersigned referee and recommended for approval.
2. In accordance with said unconditional guilty plea by the respondent Richard H. Cobourn, it is recommended that said respondent Richard H. Cobourn be disbarred from the practice of law in the State of Florida from the date of the final order of the Supreme Court of Florida.
3. That further, as a condition for any reapplication to The Florida Bar, it is recommended that the respondent first make full restitution to the Client Security Fund of The Florida Bar or its successor or assigns for all claims against the respondent made to said Fund and paid out by it as a consequence thereof.
4. That further, as a condition for any reapplication to The Florida Bar, it is recommended that respondent be required to obtain satisfactions, releases, make full and proper restitution and/or obtain arms length agreements for restitution and/or satisfactions of any and all other legal debts and judgments against him arising out of any matters whatsoever.
5. That the costs in this matter in the amount of $301.10 be assessed against and paid by the respondent Richard H. Cobourn.

We approve the recommendations of the referee, approve the unconditional guilty plea, and hereby disbar Cobourn from the practice of law in the State of Florida.

Costs in the amount of $301.10 are hereby taxed against Cobourn.

It is so ordered.

ADKINS, Acting C. J., and BOYD, OVERTON, SUNDBERG and ALDERMAN, JJ., concur.


author: PER CURIAM. ALDERMAN, Justice,

text:
    THE FLORIDA BAR, Complainant, v. Theodore H. VAN DEVENTER, Jr., Respondent.
    No. 55735.
    Supreme Court of Florida.
    Feb. 15, 1979.
    David G. McGunegle, Bar Counsel and Branch Staff Counsel, and John A. Boggs, Asst. Staff Counsel, Tallahassee, of The Florida Bar, for complainant.
    No appearance for respondent.
   PER CURIAM.

This matter is before the Court on Motion for Approval of Conditional Guilty Plea for Consent Judgment and Entry of Final Order of Discipline.

On December 18, 1978, The Florida Bar filed its motion alleging:

a. On July 27, 1972, Respondent, Theodore H. Van Deventer, Jr., was issued letters of guardianship of the person and estate of Alma Falconer, an incompetent. Respondent had been the incompetent’s personal attorney for several years. He also became attorney for the guardianship. The guardianship estate was worth approximately $117,000 in checking accounts, certificates of deposit, savings accounts, and some stock and other personal items, including monthly railroad retirement benefits.
b. As guardian the Respondent had fiduciary responsibilities to care for the person of his ward and to preserve and protect the assets of her estate and account for them. Among other things during his handling of the guardianship, Respondent did not file the 1972 annual accounting until mid-August, 1973; failed to file the 1973 and 1974 annual account-ings until May 6, 1975, and only after he was ordered by the court to do so; failed to pay the nursing home where his ward resided for a period of several months; signed and filed with the court without checking sworn accountings for his ward’s estate for the years 1973, 1974, and 1975, which had been prepared by his secretary, Mary Edna Yawn, and which were false; failed to insure that the monthly retirement checks belonging to the ward’s estate were deposited in the appropriate guardianship account, although they represented a substantial portion of the ongoing income so that some $5,991 which had been received was not deposited into the appropriate account; and allowed a medical insurance policy to lapse.
c. Respondent had turned the handling of the Falconer guardianship as well as his financial records and accounts in his law practice, including his firm’s trust account, over to this same secretary. He exercised no independent control over her and depended totally upon her to keep all bank records in proper order. Respondent failed to check the work product of this secretary or the accounts during this period of time. As a result, Respondent’s secretary succeeded in misappropriating to her own personal use several thousands of dollars belonging to the Falconer guardianship estate over a three-year period.
d. On or about July 28,1976, the court auditor in the Ninth Judicial Circuit filed an amended report showing an apparent $13,405.84 deficiency in the Falconer account for the period of July 1, 1973, through April 30, 1976. On January 3, 1977, the Respondent was ordered by Orange County Circuit Judge, Roger A. Barker, to pay into the estate of Alma Falconer, then deceased, the sum of $12,-557.11 found missing from the Falconer estate due to his secretary’s misappropriations after various setoffs from earned fees and expenses which was done. Judge Barker also concluded that the Respondent had been guilty of gross negligence as guardian of the estate and attorney for the guardian; that he had filed false accounts under oath with the court for the years 1973, 1974, and 1975, and; that he had failed to timely file the accounts for the years 1972, 1973, 1974, and 1975.
e. Respondent failed to maintain complete records of funds, securities and properties of the Falconer estate coming into his possession, failed to render appropriate accountings regarding the estate, and allowed Falconer funds to be used for other than the benefit of the estate.
f. Respondent’s foregoing actions violated Rule 11.02(4) of Article XI of the Integration Rule of The Florida Bar and Disciplinary Rules 1-102(A)(6), 3-104(A), 3-104(C), 3 — 104(D), 6 — 101(A)(3), 7-101(A)(3), 9 — 102(A), and 9-102(B)(3) of the Code of Professional Responsibility of The Florida Bar.
[g]. Subsequent to a finding of probable cause, The Florida Bar filed its Complaint in this cause on September 12, 1978. . . . The Complaint mistakenly omitted identifying him as a junior.
[h]. By letter dated September 29, 1978, Respondent’s counsel forwarded Respondent’s executed Conditional Guilty Plea for Consent Judgment in this cause.
[i]. At their November, 1978, meeting, the Board of Governors approved acceptance of Respondent’s Conditional Plea and recommends it to this court as final disposition of the case.

The Motion for Approval of Conditional Guilty Plea is granted, and respondent, Theodore H. Van Deventer, Jr., is hereby disciplined by public reprimand to be published in the Southern Reporter based upon the facts set forth above. The publication of this opinion shall serve as the public reprimand to respondent.

Costs in the amount of $677.90 are hereby taxed against the respondent.

It is so ordered.

BOYD, Acting C. J., and OVERTON, SUNDBERG and HATCHETT, JJ., concur.

ALDERMAN, J., dissents with an opinion.

ALDERMAN, Justice,

dissenting.

In my opinion the gross abuses of fiduciary responsibility committed by the respondent Theodore H. Van Deventer, Jr., require more than a public reprimand. Perhaps there are mitigating circumstances known to The Florida Bar but not alleged in its motion for approval of respondent’s conditional guilty plea that would, in this ease, justify only a public reprimand. But, based upon the Bar’s allegations, it appears to me that respondent should receive more than just a reprimand — he should be removed from the practice of law. I would not accept the conditional plea.


author: LETTS, Judge. LETTS, Judge.

text:
    WASH AND DRY, INC., a Florida Corporation, d/b/a All Miami Appliances, Appellant, v. BAY COLONY CLUB CONDOMINIUM, INC., a Florida Corporation, d/b/a Bay Colony Club, Appellee.
    No. 77-2312.
    District Court of Appeal of Florida, Fourth District.
    Jan. 17, 1979.
    On Rehearing March 21, 1979.
    Richard W. Driscoll and S. Charles Adams, Hialeah, Lawrence Rogovin of Cohen, Angel & Rogovin, North Miami, for appellant.
    Kay Latona of Becker, Poliakoff & Sachs, P. A., Fort Lauderdale, for appellee.
   LETTS, Judge.

A washing machine company here appeals from a summary judgment denying its complaint for specific performance and injunctive relief against a condominium association. We affirm.

The developer originally entered into some twenty (20) different contracts to supply various buildings with laundry machines, service and repair. Thereafter when the condominium association took over control in accordance with the declaration, it cancelled some of the contracts pursuant to Florida Statute, 711.13(4) (1973) and as to the remaining contracts, signed later, pursuant to the succeeding statute which replaced § 711.13(4) namely Florida Statute 711.66(5) (1975).

The trial judge held that both of these statutes applied, while the washing machine company argues that neither of them do.

The first of these statutes, § 711.13(4) (1973) provides in part:

Any initial or original contracts first entered into by the condominium association or its fiduciaries or appointees for maintenance, management, or operation of condominium property shall be subject to cancellation at any time subsequent to the time any individual unit owners assume control of their association . . .
(emphasis supplied)

The second statute § 711.66(5) (1975) reflects a change of language from the above provision and states:

Any grant or reservation made by a declaration or cooperative document, lease, or other document, and any contract made by an association prior to assumption of control of the association by unit owners other than the developer, that provides for operation of a condominium or cooperative or for maintenance, management, or operation of condominium or cooperative property or of property serving the unit owners of a condominium or cooperative shall be fair and reasonable and may be cancelled by unit owners other than the developer under the following circumstances . . . . (emphasis supplied)

We are of the view that both of these statutes cover the installation and operation of washing machines in the laundry rooms of condominium buildings.

Taking them in reverse order, it seems to us to be clear beyond doubt that the language of the amended statute [§ 711.66(5)] covers washing machines because of the words “or of property serving the unit owners . . . .” The washing machine company argues that this language refers only to real property which is a part of the common elements. We cannot agree and must conclude that both personal and real property was intended to be covered. A washing machine is certainly a form of personal property serving the unit owners and we are convinced that the language adopted by this latter statute was designed for this very purpose.

As to § 711.13(4) (1973) the pertinent language there is not as clear when it simply states: “contracts . . . for maintenance, management, or operation of condominium property . . . .” Predictably the washing machine company makes the same argument that this refers to real property only, an argument which we again reject. More significantly however, they also argue that because of the amendment to the latter statute, [§ 711.66(5)] which adds the language: “of property serving the unit owners . . . . ” this leads to the conclusion that property serving the unit owners was excluded by the previous statute. Again we do not agree. It is true that the language of the amendment makes it much clearer, but we still think the original language is sufficient. Washing machines located and operating in a condominium laundry room constructed for the purpose, appear to us to be property for the maintenance, management or operation of the condominium and we do not believe that such language was only intended to cover “sweetheart” management contracts.

The washing machine company also argues that because the condominium association continued to pay on these contracts for many months after they took over the management of the corporation, that this act of continuing payment plus a direction that the checks be made out to a different payee, amounted to a ratification of the contracts which precludes the cancelation of same, even if the statutes do apply. This might indeed be the result under certain circumstances, but we can detect nothing in this particular record that would preclude the trial judge from entering a summary judgment.

AFFIRMED.

ANSTEAD, J., and JOHNSON, THOMAS H., Associate Judge, concur.

ON REHEARING GRANTED

LETTS, Judge.

By petition for rehearing the appellant has called to our attention the fact that the last paragraph of the opinion filed January 17, 1979 contains a factual misstatement and should be amended to read as follows:

“The washing machine company also argues that because the condominium association continued to receive payments on these contracts for many months after they took over the management of the corporation, that this act of receiving payment plus a direction that the checks be made out to a different payee, amounted to a ratification of the contracts which precludes the cancellation of same, even if the statutes do apply. This might indeed be the result under certain circumstances, but we can detect nothing in this particular record that would preclude the trial judge from entering a summary judgment.”

In all other respects the opinion as filed is herewith reaffirmed.

ANSTEAD, J. and JOHNSON, THOMAS H., Associate Judge, concur.

      . His judgment does not expressly so state, but the holding is evident from the motion for summary judgment.

      . “The term ‘property’ is sufficiently comprehensive to include every species of estate, both real and personal, and everything that one person can own and transfer to another.” 25 Fla.Jur. Property § 3 (citing cases.)


author: OTT, Judge.

text:
    Douglas Vance DAUDT, Appellant, v. STATE of Florida, Appellee.
    No. 78-793.
    District Court of Appeal of Florida, Second District.
    Jan. 31, 1979.
    Rehearing Denied March 1, 1979.
    Jack 0. Johnson, Public Defender, W. C. McLain, Asst. Public Defender, and David A. Davis, Legal Intern, Bartow, for appellant.
    Robert L. Shevin, Atty. Gen., Tallahassee, and Robert J. Landry, Asst. Atty. Gen., Tampa, for appellee.
   OTT, Judge.

Appellant was charged with and convicted of two offenses: sale and possession of more than five grams of marijuana. We affirm the conviction on the charge of sale, but reverse on the charge of possession.

The facts established at trial were as follows.

Pinellas County Detective Dean La Chance, acting in an undercover capacity, met with Harry Wallace about a future large marijuana transaction. Undercover Agent La Chance represented to Wallace that he was in the market for a hundred pounds and would pay approximately $28,-000 for such an amount. A week later at the Wallace residence Wallace informed the agent that his source for the marijuana would arrive at seven o’clock p. m.

Appellant joined La Chance and Wallace at 6:57 and the three men discussed the transaction. Wallace assured the appellant that he had seen La Chance’s money in the trunk of the car and the money was right. La Chance then showed appellant $29,000 in the trunk of the vehicle.

The three men re-entered the Wallace residence where appellant made three phone calls to someone identified only as “Mike”. Appellant explained over the phone that La Chance was interested in one hundred pounds of marijuana and that the money was right. Appellant, Wallace and La Chance then discussed details of the transaction. Appellant said that if the deal did go down, if his source could raise that much marijuana, it would go smooth and fast.

At one point appellant said his source was nervous because they didn’t know La Chance. After the last phone call appellant explained that the source would meet La Chance at a row of storage garages on 13th Avenue South in Gulfport and the deal would be for approximately forty-two pounds. The remaining amount could be obtained later, after mutual trust was established. Appellant computed the price on a piece of paper which was received in evidence.

Appellant told La Chance to follow him. Appellant drove off in his truck and was followed by La Chance and Detective Pasto, another undercover officer, to the row of storage garages. Fifteen minutes later another car pulled up; appellant talked to the driver, Michael Rovenick, and confirmed that the money was right. They then entered the garage.

Rovenick had seen a vehicle across the street — which it later developed was one of the police backup units — and he wanted appellant to act as a lookout. Consequently, appellant did not touch or handle any of the marijuana. Rovenick produced a postal scale from the trunk of his car, calibrated the scale, then brought two white cartons from his car. Rovenick removed a brown bale from each white box, placed them on the scale and allowed La Chance to inspect the quality of the marijuana. The two bales weighed forty-two pounds. Rovenick calculated the purchase price at $12,800. La Chance and Pasto put the two boxes in the trunk of their car and La Chance grabbed a handful of money and put it on the table in the garage. Both Rovenick and appellant started counting it. The two men were then placed under arrest.

After his arrest, appellant was interrogated and admitted that he was in this business for the money. He said he only dealt in marijuana, not other hard stuff. Appellant said he was to be paid for this transaction. He stated that he thought Rovenick had procured the marijuana from some place in Michigan.

Possession may be either actual or constructive. Actual possession exists where the accused has knowing physical possession of a controlled substance. Hively v. State, 336 So.2d 127 (Fla.4th DCA 1976). Constructive possession exists where it is shown that the accused knows of its presence and has the ability to maintain control over it or reduce it to his possession although not shown to have it in his physical possession. Dixon v. State, 343 So.2d 1345 (Fla.2d DCA 1977).

There is no evidence whatsoever that appellant ever had actual possession or control of the marijuana. Nor was constructive possession established. Although appellant knew of the presence of the marijuana there is no evidence that it belonged to or was under the control of the appellant. At best, the evidence establishes that appellant brought the parties to the transaction together and expected to be paid for such service. There is no evidence that appellant could have personally carried through with the sale or could have forced Rovenick to consummate the sale. See Gibson v. State, 315 So.2d 523 (Fla.2d DCA 1975); Britton v. State, 336 So.2d 663 (Fla.1st DCA 1976).

The state contends that appellant is guilty of possessing the marijuana by virtue of having aided and abetted Rovenick. See § 777.011, Fla.Stat. (1977). We disagree. Appellant aided and abetted Rovenick in selling the marijuana, but not in possessing it. Rovenick already possessed the marijuana; there is no showing that appellant was of any help to Rovenick in either acquiring it or retaining possession of it. On the contrary, appellant aided Rovenick in divesting himself of it.

Accordingly, the judgment for possession of marijuana cannot stand and must be vacated. The judgment for sale of marijuana is affirmed. Because only a single sentence was entered on both convictions, the cause is remanded for resentencing on the sale count only. Appellant is entitled to be present at the resentencing.

BOARDMAN, Acting C. J., and SCHEB, J., concur.

      . This was a general sentence which is no longer proper and may not be imposed by the trial court. Dorfman v. State, 351 So.2d 954 (Fla. 1977); Darden v. State, 306 So.2d 581 (Fla. 2d DCA 1975); Darden v. State, 330 So.2d 750 (Fla. 2d DCA 1976); see Fundak v. State, 362 So.2d 295 (Fla. 2d DCA 1978).


author: RYDER, Judge.

text:
    STATE of Florida, Appellant, v. Tracey BOYD and John D. Boyd, Appellees.
    No. 78-174.
    District Court of Appeal of Florida, Second District.
    Jan. 31, 1979.
    Rehearing Denied March 1, 1979.
    Robert L. Shevin, Atty. Gen., Tallahassee, and Robert J. Landry, Asst. Atty. Gen., Tampa, for appellant.

      Thomas G. Murray, of Moran & Gold, P. A., Miami, for appellees.
   RYDER, Judge.

The State appeals an order discharging appellees under the speedy trial rule. Having reviewed the briefs and the record, we find that its argument has merit.

As always in speedy trial cases, time is important and both parties have presented many dates for our consideration. Fortunately, only four of them are necessary to our decision. On January 31, 1977, law enforcement officials arrested both appel-lees on charges stemming from the importation of marijuana. Four days later, the State filed an information charging appel-lee John Boyd with bringing a controlled substance into Florida, possession of cannabis over five grams, and possession of cannabis with intent to deliver. The State filed a similar information against Tracey Boyd charging him with the same crimes with which it charged his brother and with conspiracy to bring a controlled substance into Florida.

Sometime later, after both sides had conducted extensive discovery, the State moved to consolidate the cases of appellees and those of two other defendants. In response, appellees moved for a continuance and the court held hearings on both motions. In the continuance hearing on October 27, 1977, the following exchange took place:

THE COURT: All right. You have already waived speedy trial according to your motion.
MR. MORAN [defense counsel]: Yes, sir, we have.
THE COURT: On behalf of both of the Boyds?
MR. MORAN: Oh, yes. There’s never been an issue in that regard?

The court granted the continuance motion and stated in its written order that counsel for appellees had waived the speedy trial periods.

On October 31, 1977, the court heard the motion to consolidate but reserved its ruling. As a result of this, on November 10, 1977, the State filed a new information and in that one instrument charged appellees and two other men with the three offenses which were common to the separate infor-mations earlier filed against appellees.

Finally, on January 4, 1978, appellees presented a motion for discharge from prosecution under the November 10, 1977 information. The court granted the motion and the present appeal followed.

In order to reach a decision in this case, we need only set forth two principles of law. The first is that counsel for a defendant may effectively waive the defendant’s rights under the speedy trial rule, Fla.R.Crim.P. 3.191. State ex rel. Gutierrez v. Baker, 276 So.2d 470 (Fla.1973). The second principle is that where the State files a second information against a defendant which charges the same crime as did the first information and is also based upon the same criminal conduct as the first, any waiver of speedy trial which the defendant made under the first information applies to the second information as well. See Homer v. State, 358 So.2d 1176 (Fla. 3d DCA 1978); State v. Luck, 336 So.2d 464 (Fla. 4th DCA 1976).

Applying these principles to the facts of this case, it becomes clear that the trial court should have denied the motion for discharge. By his statement made at the October 27, 1977 hearing, appellees’ counsel clearly waived the application of the speedy trial rule to the State’s case. Moreover, that waiver applied to the information filed on November 10, 1977 since it charged appellees with the same criminal conduct as did the original two informa-tions.

Accordingly, we REVERSE the order of discharge and REMAND this case for further proceedings.

GRIMES, C. J., and HOBSON, J., concur.


text:
    The CITY OF MIAMI, Appellant, v. FRATERNAL ORDER OF POLICE, Appellee.
    No. 78-946.
    District Court of Appeal, of Florida, Third District.
    Feb. 6, 1979.
    Rehearing Denied March 19, 1979.
    George F. Knox, Jr., City Atty., and Nestor Cruz, Asst. City Atty., for appellant.
    Weinsoff & Weinsoff and Irving Wein-soff, Miami, for appellee.
    Before PEARSON, BARKDULL and HUBBART, JJ.
   PER CURIAM.

The City’s suit to vacate an arbitration award was properly dismissed upon a showing that the City had agreed to the submission of the issue that it now contends was beyond the scope of the arbitration. Cf. Safer v. City of Jacksonville, 237 So.2d 8, 14-15 (Fla. 1st DCA 1970).

Affirmed.


text:
    Robert James STANMIER, Appellant, v. The CITY OF MIRAMAR, a Municipal Corporation, and George Van Etveldt, an Individual, Individually, jointly and severally, Appellees.
    No. 77-2654.
    District Court of Appeal of Florida, Fourth District.
    Feb. 7, 1979.
    Rehearing Denied March 22, 1979.
    Charles T. Whitelock, of Law Offices of Feinstein & Whitelock, Fort Lauderdale, for appellant.
    Edward Paul Kreiling, Miramar, for ap-pellee, City.
   PER CURIAM.

AFFIRMED. See Purdy v. Cole, 317 So.2d 820 (Fla. 3d DCA 1975).

ANSTEAD and BERANEK, JJ., and SIEGENDORF, ARDEN M., Associate Judge, concur.


author: BERANEK, Judge.

text:
    CAM CORPORATION OF BROWARD formerly known as Cam Corporation of Florida, Petitioner, v. Melvin T. GOLDBERGER, Individually, etc., Respondents.
    No. 78-1802.
    District Court of Appeal of Florida, Fourth District.
    Feb. 7, 1979.
    Rehearing Denied March 23, 1979.

      Michael J. McNerney of Brinkley & McNerney, Fort Lauderdale, for petitioner.
    Michael T. Greif of Baskin & Sears, Fort Lauderdale, for respondents.
   BERANEK, Judge.

Petitioner brought suit against respondent seeking specific performance of a contract for the sale of real estate. Petitioner then filed a notice of lis pendens against the real estate and respondent moved to dissolve the lis pendens or require a bond. The trial court ordered a bond posted and petitioner here seeks review of that order by certiorari. The action for specific performance was based upon a written contract and not upon a duly recorded instrument or mechanic’s lien. Under these circumstances Section 48.23 Florida Statutes allows the court to deal with a notice of lis pendens as it may deal with injunctions.

Rule 1.610(c) Fla.R.Civ.P. governing injunctions requires posting of a bond before a temporary injunction is issued except that the court may issue an injunction without bond if after hearing it appears the party is unable to post bond. A hearing was held in this matter at which a witness for petitioner testified bond could not be posted. Petitioner would have us hold the trial court erred in requiring bond under such circumstances. This we decline to do. As stated in Metropolitan Dade County v. Parkway Towers Condominium Association, 281 So.2d 68 (Fla. 3d DCA 1973), the fixing of the amount of an injunction bond is a discretionary matter. Clearly the requirement of a bond in an injunction proceeding is within the sound discretion of the trial court. This same rationale extends to the case presented here involving a lis pendens based on a contract. Petitioner has failed to demonstrate any abuse of discretion herein and there has been no departure from the essential requirements of law.

Certiorari is hereby DENIED.

DOWNEY, C. J., and LETTS, J., concur.


author: ERVIN, Judge.

text:
    Jack EVANS and William Marshall Long, Appellants, v. STATE of Florida, Appellee.
    Nos. KK-147, KK-155.
    District Court of Appeal of Florida, First District.
    Feb. 9, 1979.
    Rehearing Denied March 22, 1979.
    John L. Sutton, Jr., Plantation, for appellants in No. KK-147.
    George E. Goldstein and Brian T. Hayes, Monticello, for appellants in both cases.
    Robert L. Shevin, Atty. Gen., and Richard W. Prospect, Asst. Atty. Gen., for appellee.
   ERVIN, Judge.

Appellants entered pleas of nolo conten-dere to possession or conspiracy to possess more than 100 pounds of cannabis, while expressly reserving their right to appeal the denial of their motion to suppress. They argue that even though the searching officers may have had probable cause to conduct a warrantless search of their vehicle, conducted immediately after the automobile was stopped and appellants were arrested, since there existed ample opportunity for the officers to have obtained a search warrant before the seizure, the marijuana was illegally obtained. They argue also that the prior taint of the vehicle’s warrantless search affected the later search by warrant of their house in which additional marijuana was seized.

Appellants rely primarily upon United States v. Chadwick, 433 U.S. 1, 97 S.Ct. 2476, 53 L.Ed.2d 538 (1977), in which the United States Supreme Court held that despite the existence of probable cause to believe marijuana was contained in defendant’s footlocker, which had been shipped by train from San Diego to Boston, the war-rantless search of the footlocker, conducted at a federal building an hour and a half after it had been taken by government agents from the open trunk of a parked automobile at the train station, was illegal because, in the absence of any exigent circumstances supporting the need for an immediate search, the persons had a reasonable expectation of privacy to contents within their personal luggage.

We conclude that the facts in Chadwick are sufficiently distinguishable from those involved here. In Chadwick, the vehicle searched had not been in movement; as a result the Supreme Court took special pains to note that the footlocker’s brief contact with the vehicle made inapplicable principles controlling warrantless searches carried out after moving vehicles had been stopped. The Court specifically distinguished the case from Chambers v. Maroney, 399 U.S. 42, 90 S.Ct. 1975, 26 L.Ed.2d 419 (1970), which had sustained a warrant-less search of an automobile at the station house after officers had probable cause to, and did, arrest the vehicle’s occupants. More importantly, the focal point of Chadwick was that defendants, by placing their personal effects within a footlocker, had manifested an expectation that their contents would be free from public examination. The Court analogized the situation to the similar expectation of privacy of one who locks the doors of his home against possible intruders.

The marijuana involved here was loaded not into appellants’ luggage, but rather was placed in garbage bags — a method, one officer testified, which was consistent with the practice, common among dealers in narcotics, of packaging large quantities of marijuana. We conclude that appellants’ actions failed to show a similar manifestation of privacy as were those shown in Chadwick since here one could reasonably infer from the facts, i. e., the large amount of marijuana seized and the way it was packaged, that the marijuana was intended not for appellants’ personal use but rather for resale. Compare Mahoney v. State, 300 So.2d 743 (Fla. 1st DCA 1974).

There being no error in the court’s denial of the motion to suppress both the evidence taken from the vehicle and the house, the convictions are

AFFIRMED.

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