text:
    STATE of Alabama v. ALGERNON BLAIR INDUSTRIAL CONTRACTORS, INC., a corporation.
    Civ. 1494.
    Court of Civil Appeals of Alabama.
    July 12, 1978.
    Rehearing Denied Aug. 16, 1978.

      William J. Baxley, Atty. Gen., State of Ala., Herbert I. Burson, Jr., Counsel, Dept, of Revenue, and Asst. Atty. Gen., State of Ala., Ron Bowden, Asst. Counsel, Dept, of Revenue, and Asst. Atty. Gen., State of Ala., for the State of Alabama, appellant.
    W. Stanley Gregory, Montgomery, Philip W. Norwood, Birmingham, for appellee.
   BRADLEY, Judge.

The Alabama State Department of Revenue has brought this appeal from a final decree rendered in the Circuit Court of Montgomery County holding invalid a use tax assessment against Algernon Blair Industrial Contractors, Inc.

The taxpayer, Algernon Blair, entered into a contract with the United States Army Corps of Engineers to furnish and install certain items at the Marshall Space Flight Center in Huntsville, Alabama. Pursuant to the contract, Algernon Blair purchased stainless steel piping and structural steel box girders from Guyon Alloys, Inc. and Sheffield Products Company, respectively. Algernon Blair installed these items in an existing concrete test tower so that the tower could be used in a liquid hydrogen external tank test project. The steel piping and steel box girders were a part of structural modifications on the same test stand which had been used in testing the Saturn rocket. The box girders were fabricated in the wholesaler’s welding shop and then erected and bolted to the test tower by the purchaser, Algernon Blair.

The trial court determined that the items in question were attached to the test facility in a temporary manner. And there was evidence that the steel piping and box girders would be used at the facility only for a limited period of time during which the stress-bearing capabilities of a single large liquid hydrogen fuel tank would be tested. There was also evidence that the test facility, of which these items were a part, could be dismantled following the completion of the tests and the items removed and stored for usage by NASA in future projects.

On the basis of this evidence and other testimony, the trial court concluded that the stainless steel pipes and the structural steel box girders attached to the test stand had “not become fixtures or permanent accessions to the real property, but rather [were] installations of tangible personal property expressly subject to removal, reuse and relocation.” Accordingly, the court ruled that the items on which the use tax had been levied were exempt from taxation because the purchase of these items by Algernon Blair was a sale of tangible personal property by a wholesaler (Guyon Alloys and Sheffield Products) to a dealer (Algernon Blair) for resale (to the United States Army Corps of Engineers). Title 40, chapter 23, section 60(4)(a), Code of Alabama 1975. The court premised its ruling on the fact that the items were not sold to the contractor (Algernon Blair) for either resale in the form of real estate or use in the form of real estate, and thereby did not constitute a retail sale which is subject to use tax provisions. The finding of the court that the disputed transaction was not a retail sale was based on evidence which tended to show that the steel pipes and box girders were not permanently affixed to the test stand and could not therefore be deemed for “resale or use in the form of real estate” under the retail sale provisions of the Alabama Code. Title 40, chapter 23, section 60(5), Code of Alabama 1975.

While we find no error in the court’s determination regarding the factual question of whether the items were affixed to the realty on a permanent basis, we believe that the court erred in concluding that the items were not subject to the use tax levied on them by the State Department of Revenue.

The threshold question in this matter involves the relationship between section 60(4)(a) and section 60(5) of the Alabama Sales and Use Tax Law. Title 40, section 23, section 1, et seq., Code of Alabama 1975.

Section 60(4)(a) defines a wholesale sale or sale at wholesale in the following manner:

“A sale of tangible personal property by wholesaler to licensed retail merchants, jobbers, dealers or other wholesalers for resale . . . .”

Section 60(5) in applicable part states that one example of a sale at retail or a retail sale is:

“Sales of building materials to contractors, builders or landowners for resale or use in the form of real estate . . . .”

The applicability of the above quoted retail sales provision is premised on whether the building materials are sufficiently integrated into the realty so that they may be deemed “fixtures.” Department of Revenue v. James A. Head & Company, 54 Ala.App. 136, 306 So.2d 5 (1974). In other words, if the materials are not affixed to the realty to the extent necessary to constitute a “fixture,” the materials are not deemed to be for use in the form of real estate and that portion of section 60(5) dealing with such uses is rendered inapplicable as far as use tax consequences are concerned.

However, merely because the provisions of section 60(5) relating to retail sales in real estate situations are inapplicable to the circumstances of a particular case, the transaction in which the taxpayer was engaged is not automatically transformed into a wholesale sale. Indeed, the first sentence of section 60(5) provides that a retail sale includes “[a]11 sales of tangible personal property except those above defined as wholesale sales.” (Emphasis supplied.) Accordingly, the transaction in question must meet the definitions of a sale at wholesale provided in section 60(4) before the taxpayer can avoid payment of use taxes. Otherwise, the transaction is construed to be a retail sale and subject to the use tax.

The relevant definition of a wholesale sale for the purposes of this case is found in section 60(4)(a). Under this provision a transaction is not a sale at wholesale unless a wholesaler conveys to the persons specified in the section tangible personal property for resale. Furthermore, section 60(4)(a) provides an exclusion clause which, in certain instances, prevents a transaction from constituting a sale at wholesale. Section 60(4)(a) states that a wholesale sale “does not include a sale by wholesalers to users or consumers, not for resale.” (Emphasis supplied.)

Consequently, the critical question in this case becomes whether Algernon Blair is within the confines of the above quoted provision and thereby excluded from claiming that its delivery to and installation of steel pipes and box girders at the test facility under the terms of its contract with the United States Army Corps of Engineers constituted a sale at wholesale. Specifically, the question is whether Algernon Blair purchased the items from the wholesalers for its own consumption or use in installing the items at the test facility, or conversely, whether it purchased the items in order to resell them to NASA for the latter’s use and consumption. We hold that Algernon Blair was a user or consumer of the items it installed at the facility and accordingly that Algernon Blair may be compelled to pay a use tax on the items under the principle pronounced in the first sentence of section 60(5).

Algernon Blair acted as a construction contractor in its transaction with the United States government, Department of Revenue v. James A. Head & Company, 54 Ala.App. at 140, 306 So.2d at 8 (defining the term “contractor”) since it undertook to supply labor and materials for the specific purpose of installing them in the test stand. The labor and materials supplied constituted specific improvements on the stand.

It is axiomatic that the purpose of the use tax is to tax the ultimate consumer of a product. See Department of Revenue v. James A. Head & Company, supra; Hamm v. Boeing Company, 283 Ala. 310, 216 So.2d 288 (1968). And, a construction contractor is a consumer. Chicago Bridge & Iron Co. v. Cocreham, 317 So.2d 605 (La. 1975). The Louisiana Supreme Court in Chicago Bridge & Iron Co. v. Cocreham, in quoting from an earlier case stated:

“ ‘A contractor who buys building material is not one who buys and sells — a trader. He is not a “dealer,” or one who habitually and constantly, as a business, deals in and sells any given commodity. He does not sell lime and cement and nails and lumber.
“ ‘His undertaking is to deliver to his obligee some work or edifice or structure, the construction of which requires the application of skill and labor to these materials so that, when he finishes his task, the materials purchased are no longer to be distinguished, but something different has been wrought from their use and union. The contractor has not resold but has consumed the materials. Sales to contractors are sales to consumers. . . ’ State v. J. Watts Kearny & Sons, 181 La. 554, 559, 160 So. 77, 78 (1935) (Emphasis provided).”

Accordingly, we believe that Algernon Blair, as a consumer, did not resell the items and is therefore subject to the payment of the use tax.

Nor can we accept Algernon Blair’s assertion that its contract to furnish and install stainless steel pipes and structural steel box girders to the Marshall Space Flight Center was a divisible contract. Algernon Blair argues that its contract with the United States Army Corps of Engineers was, in effect, two contracts in one — a contract to sell the items to the government and a contract to supply services for installation of the items in the test stand.

A similar argument was considered and rejected by our supreme court recently in Alabama Precast Products, Inc. v. Boswell, Ala., 357 So.2d 985 (1978). In Alabama Precast Products the taxpayer not only manufactured and sold roofing slabs, it also engaged in the business of performing certain construction contracts. The taxpayer entered into a “furnish and install” contract with another company whereby the former would manufacture the slabs at its plant in Birmingham, Alabama from building materials withdrawn from stock purchased at wholesale, and then take the completed slabs to South Carolina where employees of the taxpayer would install the roofing slabs on a building. The taxpayer contended that the “furnish and install” contract represented separate and divisible contracts, with the first such contract being for the sale of the slabs and the second being for the installation of the slabs. Our supreme court refused to recognize the contract as divisible and held that “Alabama Precast Products was the ultimate consumer of the raw materials and as such was liable for the tax thereon.”

Despite the decision in Alabama Precast Products, Inc. v. Boswell, Algernon Blair attempts to distinguish the holding in that case from the facts involved in the case at hand. First, Algernon Blair maintains- that a different provision of the Alabama Code was interpreted by the court in Alabama Precast Products. Second, Algernon Blair submits that only when the building materials used by a construction contractor in a building or structure become affixed to the realty in a permanent manner, as they were in Alabama Precast Products, is the holding in that case applicable. Consequently, Al-gernon Blair argues that the finding by the court below that the steel pipes and box girders were not permanently affixed to the realty precludes the Department of Revenue’s reliance on the decision rendered in Alabama Precast Products in the present situation. However, we cannot agree with either of these contentions.

While it is true that the court in Alabama Precast Products construed Title 40, chapter 23, section l(a)(10), Code of Alabama 1975, we believe that the holding in that case that a construction contractor who performs installation services has consumed the materials used in the performance of those services is applicable to section 60(4)(a). Therefore, a construction contractor is a user or consumer within the statutory exclusion found in section 60(4)(a), which states that a wholesale sale “does not include a sale by wholesalers to users or consumers, not for resale.”

If the contractor has purchased the materials for his own consumption, it would be illogical to say that he has also resold them. In such instances the contractor has obtained the items to be used in construction and the only thing which he is selling is his services in the performance of that construction.

We must likewise reject Algernon Blair’s argument that the Alabama Supreme Court’s decision in Alabama Precast Products is limited to situations where the raw materials consumed by the contractor are affixed to the realty in a permanent manner. Such an interpretation of that decision would mean that the trial court need only examine the evidence presented to it to determine if the items purchased by the contractor were for either resale or use in the form of real estate under section 60(5). And if the building materials were not purchased for (1) resale or (2) use in the form of real estate, then the transaction would be a wholesale sale in view of the fact that it did not come within the provisions defining a retail sale.

However, as we have noted in an earlier portion of this opinion, merely because a transaction does not meet the definitional requirements of a retail sale in the real estate situation does not automatically render the transaction a sale at wholesale. Indeed, the transaction in question must constitute a wholesale sale under the provisions of section 60(4) before it can escape use tax provisions. Title 40, chapter 23, section 60(5). Furthermore, if under section 60(4)(a) the purchaser-contractor has obtained the items for his own use or consumption rather than for resale, he is precluded from claiming that the transaction was a sale at wholesale.

In the present case Algernon Blair purchased the items in question for its own use and consumption in a construction project, and it does not matter if the items were affixed to the realty on a permanent or temporary basis since its own use and consumption of the items prevented it from claiming that it had obtained them for resale. See Layne Central Co. v. Curry, 243 Ala. 165, 8 So.2d 839 (1942); Hamm v. Boeing Company, 283 Ala. 310, 216 So.2d 288 (1968); State v. Thiokol Chemical Corp., 46 Ala.App. 558, 246 So.2d 447 (1970).

Moreover, even if we were to decide that Algernon Blair’s contract with the Army Corps of Engineers was divisible and that the former resold the steel pipes and box girders to the latter, the transaction would nevertheless remain a retail sale under the language contained in section 60(5). Section 60(5) states that “sales of building materials to contractors, builders or landowners for resale or use in the form of real estate are retail sales in whatever quantity sold.” According to this provision a transaction involving the sale of building materials by a contractor is a retail sale in either of two instances: (1) if the materials are used in the form of real estate and (2) if the materials are resold by the contractor.

The trial court in this case held that the materials in question were not used in the form of real estate. It also held that the materials were not resold in the form of real estate. The latter ruling was incorrect since it is the resale of building materials by a contractor which constitutes the taxing event. The language “in the form of real estate” pertains only to the use of the building materials; it has no relevance to the resale of the materials by a contractor such as Algernon Blair.

We are of course aware of the high presumptive quality that attaches to the findings of a trial court sitting without a jury. However, that presumption is not enough to sustain a decision by the court in instances where it has misapplied the law to the facts or where its findings are plainly and palpably in error. State Department of Revenue v. Consumers Bagging Co., 48 Ala.App. 95, 262 So.2d 297 (1972); Department of Revenue v. James A. Head & Company, supra. In the instant case we conclude that the trial court committed such error and that the judgment is due to be reversed and remanded.

REVERSED AND REMANDED.

HOLMES, J., concurs.

WRIGHT, P. J., concurs in the result.


source: Caselaw Access Project

author: MADDOX, Justice.

license: Public Domain

text:
    Ex parte ALGERNON BLAIR INDUSTRIAL CONTRACTORS, INC.
    77-755.
    Supreme Court of Alabama.
    Sept. 29, 1978.
   MADDOX, Justice.

WRIT DENIED.

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


author: BRADLEY, Judge.

text:
    NATIONWIDE MUTUAL INSURANCE COMPANY v. Michael E. HERREN.
    Civ. 1401.
    Court of Civil Appeals of Alabama.
    Aug. 2, 1978.
    Rehearing Denied Aug. 23, 1978.

      Olin W. Zeanah and Wayne Randall, for Zeanah, Donald & Hust, Tuscaloosa, for appellant.
    Carl W. Albright, Jr. and J. Sydney Cook, III for Rosen, Wright, Harwood & Albright, Tuscaloosa, for appellee.
   BRADLEY, Judge.

Appellee, Michael E. Herren, filed an action in the Circuit Court of Tuscaloosa County against appellant, Nationwide Mutual Insurance Company, seeking to recover on an insurance policy as a result of an automobile accident.

At the time of the accident, Herren was operating a motor vehicle owned by his father, Floyd Herren, and driven principally by his mother. Herren’s contention in the trial court and here is that the policy of insurance with Nationwide covered the damage done to his father’s car as the result of the accident. The provision in the policy upon which he relies is as follows:

VI. USE OF OTHER LAND MOTOR VEHICLES
Insurance afforded under:
(2) Coverages A, B and F shall apply to a private passenger automobile, except a temporary substitute land motor vehicle, not owned or stolen by the Policyholder or a member of the same household while in the actual possession of the Policyholder first named in the Declarations if an individual, and to his spouse or the relatives of either if a resident of the same household, except to losses:
(a) arising out of the operation of an automobile repair shop, public garage or parking place, sales agency or service station;
(b) occurring while the automobile is furnished for regular use to such Policyholder or a member of the same household.

Nationwide answered by saying that VI(2)(b) provides an exception to the coverage of the policy and that the policyholder was a member of the same household; hence, he was not covered by the policy.

After trial, the jury returned a verdict for Herren in the amount of $1,750. Nationwide thereupon filed a motion for judgment n. o. v., or, in the alternative, a motion for a new trial. The trial court denied this request and Nationwide filed notice of appeal to this court.

The issue is whether or not Herren is entitled to collect on his collision insurance policy for damages to an automobile not listed in that policy but which he was driving at the time of the accident and which was owned by his father. Specifically, we must determine if the evidence presented at trial is sufficient to sustain the conclusion that Herren was not a member of the same household as his parents.

The facts in this case show that in 1975 Herren purchased a policy of insurance from Nationwide on a 1970 Volkswagen and a 1972 Chevrolet van. In May 1976 Herren and his wife separated and he immediately moved out of the apartment they shared and into his parents’ house at Cottondale, Alabama. Several days later, Herren and his wife obtained a divorce. Herren had not lived in his parents’ house since he graduated from high school in 1963.

After moving to his parents’ house, Her-ren changed his mailing address from the apartment where he and his wife had lived to that of his parents. There was testimony that he moved all his clothes and belongings into his parents’ house and there was other testimony that he kept some of his clothes and belongings in his van. In addition, there was testimony that he never unpacked his bags.

About a week after moving to his parents’ house, Herren went to California to look for a job. Unable to locate work there, Herren returned to his parents’ home but immediately began searching for an apartment. He stated that he never intended to stay at his parents’ house permanently. Approximately two months after moving to his parents’ house, Herren moved into his own apartment.

While living in his parents’ house, Herren had his own room but he was not required to pay room and board. He ate some meals there and some meals at other places. Furthermore, he did not always spend the night at his parents’ house; moreover, he did not always inform his parents of his whereabouts, nor was he expected to do so. He was not subject to parental control and did not engage in the routine family activities.

During the period that Herren was staying in his parents’ house, he borrowed the keys to a 1970 Oldsmobile from his mother so that he could use the car to go to a party. The automobile belonged to Herren’s father. On the way home from the party, Herren was involved in a one-car accident. There was evidence that the vehicle incurred damage in the amount of $1,750.

Herren filed a claim for the damages with Nationwide, his insurer. Nationwide denied the claim on the ground that the policy did not cover the damages claimed.

Nationwide says that the trial court erred in refusing its request for a directed verdict and a new trial because there was no evidence that the vehicle being operated by Herren at the time of the accident was covered by its policy. Nationwide contends that Herren was a “member of the household” of his father and mother and thereby came within the exception in the policy which provided that no coverage existed for a private passenger automobile owned by a member of the same household or furnished to the policyholder for his regular use.

Four basic principles of appellate review are applicable to this case. First, a trial court’s action in denying a motion for directed verdict must be viewed by the Court of Civil Appeals in light of the scintilla of evidence rule. St. Paul Fire & Marine Insurance Co. v. Thompson, Ala.Civ.App., 346 So.2d 439, cert. den., Ala., 346 So.2d 442 (1977). And if there is a scintilla of evidence supporting the position of the party against whom the directed verdict motion is made, the trial court cannot grant a directed verdict. O’Donohue v. Citizens Bank, Ala.Civ.App., 350 So.2d 1049 (1977). Second, in determining whether a motion for directed verdict was properly granted or denied, the evidence presented at trial must be viewed in a light most favorable to the party against whom the motion for directed verdict was made. O’Donohue v. Citizens Bank, supra; 2A Alabama Digest, Appeal & Error, 927(7). In view of these principles, we cannot say that the trial court erred in failing to direct a verdict in favor of Nationwide. Indeed, the evidence which Herren presented at trial (and reasonable inferences therefrom) was sufficient to meet “the least particle” or “smallest trace” test necessary to constitute a scintilla of evidence that he was not a member of his father’s household.

The other two principles of appellate review which are relevant to this appeal are: (1) a jury verdict is presumed to be correct and will not be disturbed on appeal unless it is clearly wrong or unjust; 2A Alabama Digest, Appeal & Error, <©=■930(1) and 1003(4); and (2) the trial court’s refusal to grant a new trial strengthens the presumption that the verdict of the jury was correct. 2A Alabama Digest, Appeal & Error, <®=>930(1). In this instance we are not convinced that the trial court erred in refusing to permit a new trial upon Nationwide’s motion made pursuant to Rule 59 ARCP. Nor are we persuaded that the jury’s verdict in this matter was clearly wrong or unjust.

There was uncontradicted evidence that the damaged vehicle was owned by Her-ren’s father. And Herren was not within the exception denying coverage where the automobile was furnished for regular use by the policyholder since there was no evidence that the damaged vehicle was furnished to the policyholder, i. e., Herren, for his regular use.

Notwithstanding the settled state of the evidence as to ownership, there was a sharp conflict in the evidence as to whether Herren was a member of his parents’ household as that term was used in the exception from coverage clause of the insurance policy. There was evidence that he was a member of the household within the meaning of the policy and there was evidence that he was not such a member. The resolution of this conflict was for the jury and they found for Herren, the plaintiff. There is sufficient evidence and inferences therefrom to support this verdict. Consequently, we find that the trial court did not err in denying the request for a directed verdict and the motion for a new trial.

AFFIRMED.

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


author: EMBRY, Justice.

text:
    Ex parte NATIONWIDE MUTUAL INSURANCE CO.
    77-760.
    Supreme Court of Alabama.
    Sept. 22, 1978.
   EMBRY, Justice.

WRIT DENIED.

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


text:
    Howard HELTON v. Mary HELTON.
    Civ. 1496.
    Court of Civil Appeals of Alabama.
    Sept. 13, 1978.

      J. Thomas Conwell, Jr., Huntsville, for' appellant.
    Thomas G. Keith, of Legal Services for North-Central Ala., Huntsville, for appellee.
   BRADLEY, Judge.

This appeal involves a divorce decree rendered by the Circuit Court of Madison County divesting appellant-Howard Helton of title to the parties’ jointly owned residence and awarding the residence to appel-lee-Mary Helton. Appellant has brought this appeal on the ground that the action of the circuit court regarding the division of the property was plainly and palpably erroneous.

The parties to this divorce were married in 1951. For a number of years after their marriage they ran a small service station. Both the husband (Howard Helton) and the wife (Mary Helton) worked long hours to achieve success in this endeavor. Eventually, however, the husband’s mental health would not permit them to continue to operate the service station. Indeed, physicians who treated the husband at the Huntsville Mental Health Center stated that he suffered from chronic mental depression, an overly dependent personality and limited natural intelligence.

Since the parties ceased to operate their small business, their only income has been the $223 monthly payment the husband receives from Social Security for his mental disability. The husband also receives a check each month in the amount of $20 from the Alabama Department of Pensions and Security. The wife has no source of income independent of that received by her former husband. Moreover, she has no skills or training which would enable her to obtain a position by which she could earn an income.

In addition to the above described facts, the wife’s health is poor. Her mobility is limited due to a cyst located on her leg and she is overweight. She also suffers from kidney and bladder problems which require a doctor’s care.

Prior to their divorce the parties resided in a home valued between $6,000 to $7,000. They obtained this house as a result of a will devising the property to them “share and share alike.” The woman who devised the house to the couple had been an invalid for several years before her death and the wife had cared for her on a parttime basis as a personal nurse. It was this residence which the trial court awarded to the wife under the terms of the divorce decree. The husband claims that this property was improperly awarded to his ex-wife.

The wife filed her complaint seeking a divorce on August 2, 1977. Her complaint included a request that a guardian ad litem be appointed to represent her husband. Thereafter, a guardian ad litem was appointed by the trial court. The attorney who acted as guardian ad litem then filed an answer to the wife’s complaint alleging that the husband was not mentally incompetent; that he had never been adjudicated as mentally incompetent by an Alabama court; and that he did not wish a divorce. Next, the husband’s counsel wrote the psychiatrist who treated the husband inquiring if he (the husband) was mentally competent to undergo a divorce procedure. The psychiatrist responded in a letter stating that the husband would be able to take part in a divorce proceeding despite his mental problems. A hearing was subsequently held at which both parties testified in their own behalf and at which the husband was represented by the lawyer who had been appointed as guardian ad litem. At the close of the evidentiary phase of the hearing the trial court divorced the parties on the ground of incompatibility and awarded the couple’s residence to the wife. There was no other property of substantial value to divide except the family automobile, which the husband received.

The first issue for our consideration concerns the husband’s contention that the trial court made no express legal adjudication as to his mental status. However, we fail to see the relevancy of an express finding of mental incompetency in this case. Rule 17(c) of the Alabama Rules of Civil Procedure requires that the appropriate court shall appoint a guardian ad litem to represent an incompetent person in actions involving the latter. But in divorce cases there is no requirement that a party be officially adjudged a mental incompetent unless mental incompetency is the ground upon which relief is sought. Code of Alabama 1975, § 30-2-1(8) and § 22-52-1 et seq. Nor is an official adjudication of incompetency necessary to invoke the precepts found in Rule 17(c). In cases such as the one before us it is sufficient that the trial court is apprised of the possibility that a party is an incompetent by the pleadings or otherwise. Such notice enables the court to appoint a guardian ad litem to protect the alleged incompetent’s interests. In this instance the trial court was apprised prior to the divorce hearing that the husband might be mentally incompetent and in need of legal representation. Accordingly, the trial court followed the mandate of Rule 17(c) and appointed an attorney to serve as the husband’s counsel. Since the divorce was not sought on the grounds of insanity the court was under no compulsion to officially adjudge the husband mentally incompetent prior to rendering a judgment divorcing the parties for incompatibility. Cf. Box v. Box, 253 Ala. 297, 45 So.2d 157 (1950). Consequently, we perceive no error in the court’s failure to officially adjudge the husband a mental incompetent.

Under Rule 17(c) the court may also take any additional steps it deems proper in an effort to protect the incompetent person. Such steps are, however, within the court’s discretion and we will not reverse the court unless there is an abuse of such discretion. In the present case the trial court refused the guardian ad litem’s request that his client be subjected to a mental examination. Such a decision was within the court’s discretion and we cannot say that the refusal to permit a mental examination constituted an abuse of discretion. See Rule 17(c) and Rule 35, ARCP; see also Schlagenhauf v. Holder, 379 U.S. 104, 119, 85 S.Ct. 234, 243, 13 L.Ed.2d 152 (1964). Moreover, the court heard a substantial amount of testimony from the wife and one of the couple’s daughters to the effect that the husband acted strangely. Included in this testimony were statements that the husband would fall on the floor and pretend that he was dead; that he would pretend to go on hunger strikes while surreptitiously purloining food from the kitchen pantry; and that he sometimes became enraged and struck his daughter and her small children. A letter from the psychiatrist at the Madison County Department of Health further indicated that the husband suffered from chronic depression and an overly dependent personality. In addition, the trial court heard the testimony of the husband and observed his demeanor. Based on the aforementioned evidence we believe that the trial court could have properly concluded — without an additional mental examination — that the husband was mentally incompetent and that the appointment of a guardian ad li-tem was necessary to protect his interests.

The second issue submitted for our review on appeal involves the husband’s claim that he could not be at “fault” in causing the divorce since he was mentally incompetent. However, we would note that the parties were granted a divorce on the ground of incompatibility. And in at least two decisions we have held that where a divorce is based on “incompatibility of temperament,” traditional concepts of fault and misconduct must recede into the background since the primary inquiry in such instances is whether there are conflicts and difficulties between the parties so deep and irreconcilable that it is impossible for the parties to continue a normal marital relationship. Cooper v. Cooper, 57 Ala.App. 674, 331 So.2d 689 (1976); Phillips v. Phillips, 49 Ala.App. 514, 274 So.2d 71 (1973).

In this instance the husband’s mental breakdown destroyed his marriage. Although we cannot say what caused his mental collapse, the divorce must nevertheless be granted since the wife testified that the husband’s mental condition made it impossible for the parties to continue to live together as man and wife. Kegley v. Kegley, Ala.Civ.App., 355 So.2d 1121 (1977), cert. den. Ala., 355 So.2d 1123 (1978).

The final issue for our determination on this appeal is the husband’s assertion that the award of the parties’ jointly owned home, and only significant asset, to his former wife is arbitrary and unconscionable.

We have stated that in situations where the parties’ home is their only significant asset, the award of the home to the wife under the terms of a divorce decree does not require reversal. Cobb v. Cobb, Ala.Civ.App., 352 So.2d 1384 (1977). This view is premised on the proposition that an equal division of property in cases of this nature is not required; instead, the division may be graduated according to the circumstances of the parties. Cobb v. Cobb; Eubanks v. Eubanks, 52 Ala.App. 224, 291 So.2d 159 (1974). And among the factors relevant to the parties’ circumstances are: the parties’ future prospects; the parties’ standard of living during their marriage and their potential for maintaining or exceeding that standard after their divorce; their ages, sex and health; the length of their marriage; the source (or sources) of their common property; and in appropriate instances, the conduct of the parties with reference to the cause of the divorce. Mitchell v. Mitchell, Ala.Civ.App., 351 So.2d 602 (1977).

In the present case the parties were married twenty-six years. During the latter years of the marriage they lived in a state of poverty. The husband has an extremely small monthly income in the form of disability benefits. His ability to obtain employment is virtually precluded by his mental condition. However, the wife has no income whatsoever and her age, lack of job skills and health problems constitute an almost insurmountable obstacle to her ability to earn an income in the future. Unless the wife is allowed to remain in the home, she will have no place to live. The husband, on the other hand, has family living in the Huntsville area with whom he has close personal relations. Hopefully his family can provide him with a place to live. Finally, the home in which the husband and wife resided was devised to them largely on the basis of the wife’s care of the woman who left the property to the parties in her will. Under these circumstances, we find no plain or palpable abuse in the trial court’s decision to award the parties’ residence to the wife. Accordingly, the judgment of the trial court is affirmed.

AFFIRMED.

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


author: WRIGHT, Presiding Judge.

text:
    Peggy Lynn Goble THOMAS v. Roger Dale THOMAS.
    Civ. 1503.
    Court of Civil Appeals of Alabama.
    Sept. 13, 1978.

      Roderick Beddow, Jr., Birmingham, for appellant.
    Harold P. Knight, Birmingham, for ap-pellee.
   WRIGHT, Presiding Judge.

The wife appeals from the property division of a judgment of divorce.

The marriage began and ended in five months. Shortly after the marriage, husband purchased a home, taking title jointly with the wife with right of survivorship. The purchase was made with $13,800 from his savings, $2,000 borrowed from his mother and the assumption of a mortgage for $7,960. The husband made the mortgage payments during the marriage.

By agreement of the parties, the home was sold while the action for divorce was pending. The sum of $16,018.62 was received for the equity and placed in escrow to await the judgment.

The court granted a divorce on the ground of incompatibility; ordered the husband to pay all the debts of the marriage and a $500 fee for the wife’s attorney and to pay $500 to the wife as her interest in the proceeds from the sale of the house. The wife contends the latter award is an abuse of the discretion of the court.

It has been said by our courts many times that a trial court is not required to make an equal division of marital property even if held by joint title, but may divide it according to the equities of the case. Cobb v. Cobb, 352 So.2d 1384 (Ala.Civ.App.1977); 8 Ala.Digest Divorce <®=252. We have further said that the court may look to the source and manner of acquisition of the property in determining the equities between the parties. Horsley v. Horsley, 50 Ala.App. 445, 280 So.2d 150 (1973). In viewing these elements in this case, we cannot hold that there is indicated a palpable abuse of discretion by the trial court. We therefore affirm its judgment.

AFFIRMED.

BRADLEY and HOLMES, JJ., concur.


text:
    Isaac ALDRIDGE v. Eva Mary ALDRIDGE.
    Civ. 1514.
    Court of Civil Appeals of Alabama.
    Sept. 13, 1978.

      Bryce U. Graham, Tuscumbia, for appellant.
    Robert I. Rogers, Jr., Russellville, for ap-pellee.
   WRIGHT, Presiding Judge.

The husband was found to be in contempt for failure to make child support payments and was ordered to pay the amount of $2,800 to the wife for all arrearage. The husband appeals from the trial court’s denial of his motion for new trial.

The wife argues that the husband has erred in his choice of method of review to this court. It is well established that the proper remedy for review of contempt proceedings is habeas corpus if the party is in jail, or by certiorari if the party is not, and appeal is not proper. Killingsworth v. Killingsworth, 284 Ala. 524, 226 So.2d 308 (1969); and Stout v. Stout, 336 So.2d 1123 (Ala.Civ.App.1976).

However, as in Reeder v. Reeder, 356 So.2d 202 (Ala.Civ.App.1978), we will treat the matter as a review by certiorari and proceed accordingly. We consider the jurisdiction of the court sufficiently invoked. Armstrong v. Green, 260 Ala. 39, 68 So.2d 834 (1953).

The wife testified that she obtained a divorce from her husband in the Circuit Court of Franklin County in 1956 after a twenty-one year marriage. They had nine children at that time, five of whom were minors. She further testified that the husband was ordered to pay her $85 per month as support for the five minor children, and that she received payments up until December of 1957, but none thereafter. No other witness testified.

The trial judge heard the evidence. He determined there was an arrearage of support due of $2,800. He found the husband in contempt for failure to make such payments, and directed that he purge himself by paying the arrearage.

The husband contends there was a lack of evidence to establish that an arrearage existed and that he was in contempt of court. Specifically, the husband cites the wife’s failure to introduce into evidence the final divorce decree of the parties or any records of the register to show whether or not child support payments had been made.

The scope of review in contempt cases on certiorari is limited to questions of law. Ex parte Abercrombie, 277 Ala. 479, 172 So.2d 43 (1965). Questions of fact, if there is any evidence to support the lower court’s decree, will not be disturbed. Hardy v. Hardy, 46 Ala.App. 249, 240 So.2d 598 (1970).

It is a well established rule of appellate review that where a trial court makes a decree after hearing witnesses ore tenus, every presumption will be indulged in favor of the trial court and its findings will not be disturbed unless palpably wrong. Cowden v. Hughes, 353 So.2d 505 (Ala.1977); Casey v. Beck, 350 So.2d 429 (Ala.1977); 2A Ala. Digest, Appeal and Error 931(1).

There was uncontradicted evidence in the form of the wife’s testimony upon which the trial court could have based its findings. There was no objection at trial to any part of the wife’s testimony. Therefore, we find no error in the proceedings below, and accordingly affirm the trial court.

AFFIRMED.

BRADLEY and HOLMES, JJ., concur.


text:
    STATE DEPARTMENT OF INDUSTRIAL RELATIONS v. Evelyn PAGE.
    Civ. 1551.
    Court of Civil Appeals of Alabama.
    Sept. 13, 1978.

      Frank D. Marsh, Asst. Gen. Counsel, State of Ala. Dept, of Industrial Relations, Legal Division, Montgomery, for appellant.
    George L. Stevens, Jr., of Rutledge, Williams, Williams & Norton, Anniston, for appellee.
   BRADLEY, Judge.

This is an unemployment compensation case.

The plaintiff-claimant, Evelyn Page, had been employed by the Northeast Alabama Regional Medical Center as a food server for a number of years. She was discharged for allegedly falsifying a sick leave slip. After her termination she filed a claim for unemployment compensation benefits. This claim was denied and, after exhausting the administrative appeal process, claimant filed notice of appeal to the Circuit Court of Calhoun County.

After a hearing the circuit court found for claimant and awarded her unemployment compensation benefits. The Department of Industrial Relations appeals from that judgment.

The Department argues here that the hearing before the circuit court is de novo and that the claimant has the burden of proving not only that he or she is eligible for benefits pursuant to § 25 — 4-77, Code of Alabama 1975 (formerly Title 26, section 213-C, Code of Alabama 1940) but also that he or she is not disqualified to receive benefits pursuant to § 25-4-78, Code of Alabama 1975 (formerly Title 26, section 214, Code of Alabama 1940, as Recompiled 1958).

In the case at bar the trial court found that “. . . plaintiff made application for Unemployment Compensation benefits as prescribed by law, and continued to sign up for benefits, thereby demonstrating her availability for employment during the pendency of her appeals.” The Department contends that the record is devoid of any evidence supporting this finding by the circuit court. In the absence of evidence supporting this finding, argues the Department, claimant has failed to prove that she was eligible for benefits; hence she has failed to carry the burden placed upon her by the law and her claim must fail. We agree.

In the case of State Department of Industrial Relations v. Thomas, 55 Ala.App. 712, 318 So.2d 739 (1975), the contention was, as here, that claimant had failed to prove that she was eligible for benefits under Title 26, section 213, Code of Alabama 1940, as found by the trial court, and therefore was not entitled to unemployment compensation benefits. We said that to be eligible for benefits under section 213, one must be able and available for work. We further held that in order for a claimant to recover unemployment benefits, proof must be made that he or she is eligible for benefits under section 213, Code of Alabama 1940, and that he or she is not disqualified to receive benefits under section 214, Code of Alabama 1940.

In the Thomas case there was no evidence that the claimant was eligible for benefits as required by section 213 and we reversed. Likewise, in the case at bar, there is no evidence to support the trial court’s finding that the claimant was eligible for benefits under section 213; consequently we must reverse. We would further note that the record fails to show that claimant was relieved of this burden by stipulation or otherwise.

The Department has moved this court to strike that portion of claimant’s brief which refers to certain portions of the record on appeal.

The portion of the record in controversy consists of those materials certified and filed in the circuit court on June 8, 1977 by the Department and as required by § 25-4-95, Code of Alabama 1975.

Section 25-4-95 provides in pertinent part as follows:

The director shall cause to be certified and filed in the said court all documents and papers introduced in evidence before the board of appeals or appeals tribunal, together with the findings of fact and the decision of the board of appeals or the appeals tribunal, as the case may be.

The Department argues that these materials were not introduced into evidence on the hearing of the merits of this controversy and therefore were not, and could not have been, considered by the trial court in reaching its decision in this case. Consequently, no good purpose is served by including these materials in the appeal record filed with this court.

Also, the Department says that claimant did not comply with Rule 10(b)(1) of the ARAP by counter-designating the portion of the record in controversy as a portion of the appeal record and therefore she cannot refer to and rely on it in her brief filed here.

We are unable to agree that the trial judge erroneously included in the record on appeal the material certified by the Department to the trial court. Section 25-4-95, Code of Alabama 1975, further provides:

No circuit court shall permit an appeal from a decision allowing or disallowing a claim for benefits unless the decision sought to be reviewed is that of an appeals tribunal or of the board of appeals and unless the person filing such appeal has exhausted his administrative remedies as provided by this chapter. Trial in the circuit court shall be de novo.

This statute requires the material in question to be certified to the trial court in order to establish that the administrative process has been completed. The completion of the administrative process, along with the notice of appeal, gives to the circuit court jurisdiction to try the case. It has also been determined that material similar to that required by § 25-4-95 could be used by the trial court to assist in establishing the issues to be decided by the trial court. See Fulmer v. Board of Zoning Adjustment of Hueytown, 286 Ala. 667, 244 So.2d 797 (1971) (concurring opinion of Chief Justice Heflin).* For these purposes, the material was properly included in the record. However, if the material was included for the purpose of supporting the trial court’s decision based on the de novo hearing, the trial court is in error.

We said in Department of Industrial Relations v. Jaco, Ala.Civ.App., 337 So.2d 374 (1976) that a trial de novo means “another trial,” and that there is no need, because of this type review, for any other statement in the notice of appeal to the circuit court than that the department’s order is incorrect on the facts or the law. A trial de novo calls for a retrial of all the issues as if no hearing had previously taken place. Alabama State Board of Pharmacy v. Peterson, 47 Ala.App. 201, 252 So.2d 319 (1971).

Claimant’s appeal to the circuit court for a trial de novo vacated the decision made by the Department’s board of appeals. In this type of review the circuit court does not affirm or reverse the board’s decision, but rather, renders a new, distinct, and independent judgment as may be required by the merits shown on the trial. See Tarver v. Household Finance Corp., 47 Ala.App. 273, 253 So.2d 333 (1971); Louisville & Nashville R. Co. v. Lancaster, 121 Ala. 471, 25 So. 733 (1898); and Abraham v. Alford, 64 Ala. 281 (1879) (discussing appeals from judgments of justices of peace courts for trial de novo in circuit courts).

In the case at bar the only witness to testify in the circuit court was the claimant and the record does not show that the proceeding in the Department culminating in the appeal to the circuit court was introduced into evidence at the hearing before the trial court. Consequently, we can only conclude that the departmental proceeding did not thereby enter into nor form a part of the circuit court’s decision.

The controversial portion of the record on appeal, not having been introduced into evidence and not forming a part of the decision of the trial court, will not be considered by this court in deciding the appeal. Hence, the Department’s motion to strike a portion of appellee’s brief is denied.

MOTION TO STRIKE DENIED.

REVERSED AND REMANDED.

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


text:
    O. D. CARDEN and Rachel Carden v. W. E. PENNEY.
    Civ. 1580.
    Court of Civil Appeals of Alabama.
    Sept. 13, 1978.

      Jack Livingston, Scottsboro, for appellants.
    James S. McGinty, Scottsboro, for appel-lee.
   BRADLEY, Judge.

This appeal is the result of a judgment rendered by the Circuit Court of Jackson County awarding appellee, W. E. Penney, damages in the amount of $3,300. This judgment was based on the court’s determination that Penney had made substantial improvements on land owned by appellants, O. D. and Rachel Carden.

This case originally arose because of a dispute between the parties over a twenty acre tract of land. After a trial on the matter the court below concluded that the Cardens were the rightful owners of the property in question. Our supreme court affirmed the trial court’s decision regarding the ownership of the land, but remanded the case to the trial court for a determination on whether Penney was entitled to an award of compensation for improvements which he had purportedly made on the twenty acre tract. Penney v. Carden, Ala., 356 So.2d 1188 (1978).

In its opinion, the supreme court directed that the trial court make its determination on whether Penney was “entitled” to a judgment “under the particular facts already proved.” The supreme court also declared that the trial court could consider whether the failure of Penney to ask for compensation by pleading and prayer substantially prejudiced the Cardens in violation of the implied mandate of Rule 54(c), ARCP.

Pursuant to the supreme court’s instructions the trial court made the following determination:

1. That the Defendant, W. E. Penney, did clearing, sowing and fencing on the twenty (20) acres in dispute that enhanced its value at the rate of $165.00 per acre.
2. That at the time of making these improvements the Defendant reasonably believed himself to be the owner of the property in question.
3. That these improvements have inured to the benefit of the Plaintiffs to the extent of $3300.00.

The trial court continued by noting that:

The Court has read the transcript of the evidence in this case and is fully aware that, from this record, it is not crystal clear as to the amount of land cleared by Mr. Penney. However, the Court is reasonably convinced from the testimony as it was taken before the Court that the entire land in controversy, consisting of twenty (20) acres, was improved and enhanced in value. This can readily be inferred from the cross-examination of Mr. Carden (TR pages 206 and 207). Also, during the cross-examination of the Defendant’s witness, Mr. Newsom, he pointed out an area on a map, which was an exhibit, that was cleared. The Court’s recollection of this is that he did point out and refer to the land in controversy.
Judgments is hereby entered in favor of the Defendant, W. E. Penney, against the Plaintiffs, O. D. Carden and Rachel Carden, for the sum of $3300.00.

However, the court also indicated in one passage of its order awarding Penney compensation that the issue of improvements on the land was merely “touched upon” during the trial and “was not fully litigated by either side.”

We agree with the trial court that the question of improvements was not fully litigated below and therefore conclude that the interjection of the value of improvements during the proceeding without notice to the Cardens via the pleadings (or pre-trial conference on the matter) resulted in substantial prejudice to them. Specifically, we hold that the Cardens were improperly denied an opportunity to challenge the contentions of Penney regarding the issue of compensation.

Preliminary to our discussion of relevant legal principles we feel it is important to discuss an apparent misconstruction by the trial court of the directions contained in the supreme court’s opinion. The supreme court instructed the trial court to reach a conclusion on whether Penney was “entitled” to a judgment on the basis of Rule 54(c) which provides that every final judgment shall grant the necessary relief to the party in whose favor the judgment is rendered regardless of whether the party has demanded such relief in his pleadings. In reaching its decision the trial court was limited to a consideration of the facts already proved. The trial court obviously was of the opinion that it could not take additional evidence with respect to the question of improvements and compensation therefor. Thus, the court appears to have examined the testimony presented at trial solely for the purpose of determining if there was a sufficient amount of evidence on the claim for compensation to justify a judgment in Penney’s favor. However, we believe that the supreme court intended that the threshold question of whether the Cardens were substantially prejudiced by the evidence presented on the claim for compensation was to be answered prior to any decision regarding the sufficiency of evidence as to the amount of compensation to be awarded. And in determining whether the Cardens were substantially prejudiced by the evidence, the trial court was restricted to the facts proved at the original trial. It is those facts which have compelled our conclusion that the Cardens were in fact substantially prejudiced by the evidence regarding Penney’s claim for compensation and that, consequently, he was not entitled to a judgment on his claim.

Under the provisions of Rule 54(c) of the Alabama Rules of Civil Procedure it is the duty of the court to grant relief to which a party is entitled irrespective of the request for relief contained in the pleadings. Penney v. Carden, supra. See 6 Moore’s Federal Practice § 54.62 (1976). However, Rule 54(c) does not sanction the granting of relief not requested in the pleadings where it appears that a party’s failure to ask for particular relief has substantially prejudiced the opposing party. Albermarle Paper Co. v. Moody, 422 U.S. 405, 95 S.Ct. 2362, 45 L.Ed.2d 280 (1975); Rental Development Corporation of Ameri ca v. Lavery, 304 F.2d 839 (9th Cir. 1962); Penney v. Carden, supra. Moreover, if the relief granted pursuant to Rule 54(c) is not justified by the proof or is justified by proof which the opposing party has not had an opportunity to challenge, the relief granted should not be sustained on appeal. See 10 Wright & Miller Federal Practice and Procedure § 2662 (1973). Accordingly, logic dictates that in those situations where an opposing party has no notice, by pleadings or otherwise, regarding the claim upon which relief is granted by means of Rule 54(c) and is thereby denied an opportunity to have challenged or defended against such a claim, the opposing party has suffered substantial prejudice and the judgment granting relief must be reversed. See United States v. Hardy, 368 F.2d 191 (10th Cir. 1966). Indeed, such a rule is fundamental to the essentials of due process and fair play. Sylvan Beach, Inc. v. Koch, 140 F.2d 852 (8th Cir. 1944).

In the present case the record demonstrates that the Cardens were denied an opportunity to challenge Penney’s contentions concerning the issue of compensation for the improvements which the latter had made on the land. On direct examination of Mr. Penney an objection was made to any response pertaining to the improvements on the land and the trial court, without ruling, expressed its belief that some notice of issues, defenses, etc. was still required under the Alabama Rules of Civil Procedure. The question was then withdrawn by Penney’s counsel. However, on cross-examination Mr. Carden was asked by the attorney who represented Mr. Penney what value he (Carden) would place on the improvements made by Penney with respect to the twenty acre tract of land. Carden’s attorney objected on the grounds that the value of the improvements was not at issue. Following a discussion of this matter, the trial court overruled the objection which had been made on behalf of Carden and permitted Carden to state his opinion as to the dollar value which each acre had been improved. Carden responded by stating that his own efforts to perform work similar to that done on the land by Penney resulted in a cost of approximately $165 an acre. On this basis Carden estimated that Penney had improved the land in an amount of about $165 an acre in excess of what it would ordinarily have been worth. On remand from the supreme court the trial court used Carden’s testimony to determine the amount of compensation which Penney was awarded.

In Sylvan Beach, Inc. v. Koch the federal appeals court for the eighth circuit aptly stated the philosophy and scope of Rule 54(c) when it observed:

A court may not, without the consent of all persons affected, enter a judgment which goes beyond the claim asserted in the pleadings. . . . Unless all parties in interest are in court and have voluntarily litigated some issue not within the pleadings, the court can consider only the issues made by the pleadings, and the judgment may not extend beyond such issues nor beyond the scope of the relief demanded. .
The foregoing rules are all fundamental and state nothing more than the essentials of due process and of fair play. They assure to every person his day in court before judgment is pronounced against him.

As the evidence described above indicates, the Cardens did not voluntarily litigate Penney’s claim for compensation. Nor was a demand for such compensation made a part of Penney’s pleadings in the case. Furthermore, the judgment of the trial court to award Penney compensation extended beyond the scope of the relief initially demanded by Penney, which was to have himself declared the rightful owner of the twenty acre tract. In view of these circumstances Penney was not “entitled” to a judgment on his claim for compensation. The Cardens were substantially prejudiced because they did not receive sufficient notice that such an issue would be litigated thus enabling them to challenge the amount and validity of Penney’s claim. The trial court’s failure to find that the Cardens had been substantially prejudiced constituted clear and palpable error. Accordingly, we reverse and remand with instructions that the trial court hold a hearing at which the parties may present evidence regarding Penney’s claim for compensation.

REVERSED AND REMANDED.

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


text:
    John Otis LOCKHART, alias v. STATE.
    5 Div. 387.
    Court of Criminal Appeals of Alabama.
    July 26, 1977.
    Rehearing Denied Aug. 16, 1977.
    Gary W. Weston, Birmingham, for appellant.
    William J. Baxley, Atty. Gen., and Jane LeCroy Robbins, Asst. Atty. Gen., for the State.
   BOWEN W. SIMMONS, Retired Circuit Judge.

Appellant-defendant represented here by employed counsel, but not at nisi prius, was indicted for intentionally selling, furnishing or giving away marijuana, a controlled substance, to Alex Smith, contrary to the provisions of the Alabama Controlled Substance Act. He was convicted by a jury. The court fixed punishment at ten years imprisonment.

Alex Smith was an undercover deputy sheriff in Lee County.

I

Appellant asserts that the trial court erred to his prejudice in overruling his objection to a question propounded by the State to its witness, Alex Smith, on re-direct examination, as follows:

“Q And how did you know this Lockhart (referring to defendant)?
A I had seen him in court, in this courtroom before, on a drug charge.”

It appears (R.18) that counsel for defendant asked the witness on cross-examination about the people he had investigated in Lee County. His answer was “around sixty.” Then counsel asked the witness, “So out of that sixty, you arrested forty-five different people?” “A. ‘Yes, sir.’ ” Later, counsel for defendant asked the witness: “So you don’t know from personal experience whether these people had dealt with marijuana before or not, did you?” “A. ‘Yes, sir. Some I did.’ ”

Thus it appears that defendant opened the subject of Smith’s investigations of people in Lee County and their connection with marijuana. The question to the witness as to how he knew defendant was relevant to the cross-examination and the answer was responsive thereto. It is to be noted, however, if the words “on a drug charge” were irrelevant and immaterial, defendant did not move to exclude them or make a motion for a mistrial. There was no ruling of the court to review.

We do not think the court committed error in overruling defendant’s objection to the question.

Appellant next complains that the State failed to present a quantum “of satisfactory evidence sufficient to support the conviction.”

It appears that Alex Smith testified as to the sale and purchase; that Ralph Allred, who admittedly went with Smith to make the purchase, testified as a witness for defendant that the sale and purchase was not made. The defendant testified that Smith had never been to his house that he remembered, that he did not sell him any marijuana and that he had never seen him before. He said that he had a birthday party on the particular date of the alleged sale, and that he was pretty sure they smoked some marijuana at the time. He flatly denied making a sale to Smith or giving him any marijuana.

The conflict of evidence was for resolution of the jury.

There was no motion for a new trial.

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: BOOKOUT, Judge.

text:
    Clifton LANCASTER, Jr. v. STATE.
    2 Div. 221.
    Court of Criminal Appeals of Alabama.
    June 20, 1978.
    As Corrected On Denial of Rehearing July 25, 1978.

      Randolph P. Reaves, Montgomery, for appellant.
    William J. Baxley, Atty. Gen., and David W. Clark, Asst. Atty. Gen., for the State.
   BOOKOUT, Judge.

Rape; sentence: ten years imprisonment.

After the appellant’s indictment for rape, he and his court appointed counsel filed numerous motions in the circuit court among which was a motion to quash the petit jury venire, a motion for a speedy trial, a motion to quash the indictment, a motion to produce, and several motions to proceed in forma pauperis.

Counsel for appellant argues that overruling of the motion to quash the indictment amounts to reversible error. His contention on appeal is that evidence taken on the motion shows that there was a disproportionate number of blacks and young people on the jury venire. He further contends that the jury roll contained only a small number of the persons qualified to serve as jurors in the county.

Prior to trial on the merits, however, the . appellant entered a plea of guilty and upon recommendation of the prosecution, he was sentenced to ten years imprisonment, the minimum sentence allowable under Alabama law for the offense charged.

Appellant attempts to appeal from the trial court’s ruling on the pretrial motions entered prior to acceptance of his plea of guilty. The record discloses that the trial judge apprised the appellant of all his constitutional rights pursuant to Boykin v. Alabama, 395 U.S. 238, 89 S.Ct. 1709, 23 L.Ed.2d 274 (1969). The record affirmatively shows that the guilty plea was intelligently and voluntarily entered by the appellant.

A guilty plea, intelligently and voluntarily entered by an accused, waives all nonjurisdictional defects. No contention is made here that the trial court lacked jurisdiction over the person or over the offense in the instant case.

A guilty plea has been held to waive constitutional issues such as: the failure to advise an accused of his constitutional rights, Mack v. State, 51 Ala.App. 611, 288 So.2d 150 (1974); coerced confessions, Williams v. State, 283 Ala. 668, 220 So.2d 609 (1969); Knowles v. State, 280 Ala. 406, 194 So.2d 562, cert. denied, 386 U.S. 1011, 87 S.Ct. 1358, 18 L.Ed.2d 442 (1967); illegal arrest, search, or seizure, Vann v. State, 44 Ala.App. 523, 214 So.2d 925 (1968); Williamson v. Alabama, 5 Cir., 441 F.2d 549, cert. denied, 404 U.S. 844, 92 S.Ct. 144, 30 L.Ed.2d 80 (1971); Schwarzauer v. United States, D.C., 298 F.Supp. 1012 (1969); conflict of interest of a defendant’s court appointed counsel, Martin v. United States, 5 Cir., 256 F.2d 345, cert. denied, 358 U.S. 921, 79 S.Ct. 294, 3 L.Ed.2d 240 (1958).

We find that the appellant’s guilty plea was entered intelligently, understandingly, and voluntarily. All nonjurisdictional defects and issues presented prior to acceptance of that plea were thereby waived.

AFFIRMED.

All the Judges concur.


author: SHORES, Justice.

text:
    Ex parte Clifton LANCASTER, Jr.
    77-703.
    Supreme Court of Alabama.
    Sept. 29, 1978.
   SHORES, Justice.

WRIT DENIED.

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


author: HATCHETT, Justice.

text:
    Harold RATNER et ux., Petitioners, v. MIAMI BEACH FIRST NATIONAL BANK et al., Respondents.
    No. 51131.
    Supreme Court of Florida.
    May 18, 1978.
    Rehearing Denied Oct. 4, 1978.
    J. Leonard Fleet of Fleet & Packar, Hollywood, for petitioners.
    Sidney B. Shapiro, Coral Gables, for respondents.
   HATCHETT, Justice.

This case is before us on petition for writ of certiorari, seeking review of the order of the Third District Court of Appeal dismissing petitioners’ appeal in that court on the grounds that petitioners’ assignments of error were insufficient as a matter of law to support any appeal, because the assignments failed to identify any specific judicial acts alleged as error. The district court’s decision conflicts with the principles set forth in Hurt v. Naples, 299 So.2d 17 (Fla. 1974); National Car Rental System, Inc. v. Holland, 269 So.2d 407 (Fla. 4th DCA 1972); Cohen v. Cohen, 217 So.2d 908 (Fla. 3d DCA 1969); and Nicholson v. Nicholson, 201 So.2d 907 (Fla. 4th DCA 1967). Therefore, we have jurisdiction to review this case pursuant to Article V, Section 3(b)(3). We reverse the district court’s order dismissing this appeal and remand the case for a full review on the merits.

Respondents instituted an action in the trial court seeking to quiet title on certain properties. Petitioners filed a counterclaim to foreclose a mortgage on the same property. The trial court entered a final judgment quieting title, denying foreclosure, and awarding damages against another party not involved in the present appeal. Petitioners filed a timely notice of appeal which expressly sought review of the order entered by the trial court denying petitioners’ motion for a new trial, or in the alternative, a motion for rehearing. Petitioners subsequently filed assignments of error specifying that the judgment of the trial court was contrary to the law and also to the facts. Respondents moved to dismiss the appeal or, in the alternative, to strike petitioners’ brief on the grounds that the assignments of error filed by petitioners were insufficient as a matter of law to support any appeal. The district court entered an order granting this motion, and dismissing petitioners’ appeal in that court.

The district court apparently based its dismissal upon the decisions in Gregg v. State Road Department, 140 So.2d 328 (Fla. 1st DCA 1962), and Coleman v. Allen, 320 So.2d 864 (Fla. 1st DCA 1975), cert. den. 336 So.2d 105 (Fla.1976). The decision in Gregg held that assignments of error must not be too general, and that an assignment which states merely that the lower court “rendered a judgment contrary to the law and evidence” is insufficient to support any points on appeal. The decision in Gregg was apparently based upon the predecessor rule to Fla.App. Rule 3.5(c), 1962 Revision. However, the newer Rule 3.5(c) liberalized the requirements for assignments of error no longer requiring that an appellant include grounds for error in the assignments. See, Nicholson v. Nicholson, supra.

In the present case, the notice of appeal and assignments of error were timely filed, and challenged the validity of the trial court’s final’judgment. The opposing parties and the appellate court were given sufficient notice of the order under review, and respondents’ motion for dismissal alleges no facts showing prejudice to respondents from any deficiency in the assignments of error.

Recently, in Milar Galleries, Inc. v. Miller, 349 So.2d 170 (Fla.1977), this court held that an appeal should not be dismissed if an examination of the notice of appeal and other appellate documents such as assignments of error, briefs, and other pertinent papers, show the parties have not been misled or prejudiced by any technical deficiencies. Our recently adopted Appellate Rules have continued the liberalizing trend, eliminating entirely the requirement for filing assignments of error. Fla.App. Rule 9.040(e). The opposing party and the court are to be given notice of the name of the court to which the appeal is taken, the date of rendition of the order to be reviewed, and the nature of that order. Fla.App. Rule 9.110(d). The new rules require substantial compliance with the form of notice approved by the Supreme Court, set forth in Fla.App. Rule 9.900. However, defects in the notice of appeal are not to be considered jurisdictional defects, or grounds for dismissal, unless the complaining party was substantially prejudiced. The new rules require that alleged errors committed by the lower court be specified as issues in the briefs. Fla.App. Rule 9.210.

Accordingly, the present case is remanded to the district court with instructions to vacate the order dismissing petitioners’ appeal.

It is so ordered.

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

ENGLAND, J., dissents.

      The new Appellate Rules do not govern the appeal in this case since it was commenced prior to March 1, 1978, Fla.App. Rule 9.010.


author: ADKINS, Justice.

text:
    VILLAGE OF EL PORTAL, Appellant, v. CITY OF MIAMI SHORES, Florida, Appellee.
    No. 51233.
    Supreme Court of Florida.
    May 31, 1978.
    Rehearing Denied Sept. 11, 1978.
    Joseph A. Wanick, Miami Beach, for appellant.
    Alan R. Dakan of High, Stack, Davis & Lazenby, Miami, for appellee.
   ADKINS, Justice.

We have for review on direct appeal a final judgment of a trial court which passed on the constitutional validity of the Uniform Contribution Among Tortfeasors Act, Section 768.31, Florida Statutes (1975). We have jurisdiction. Article V, Section 3(b)(1), Florida Constitution.

The parties to this action, The Village of El Portal and the City of Miami Shores, are adjoining municipalities. During the early morning hours of December 23,1973, Miami Shores police officers discovered evidence of a forced entry into a building located in Miami Shores. Pursuant to an informal mutual aid agreement, the Miami Shores police radioed for assistance from the Dade County sheriff’s office and the Village police. Both responded immediately.

Since the police activity was transpiring in Miami Shores, the ranking Miami Shores police officer was in command of the other officers who had arrived on the scene of the burglary. Suspecting that the burglars were armed and still inside the building, the ranking Miami Shores officer ordered a Village police officer to return to his headquarters and obtain some tear gas bombs. Upon his return, the Village police officer was ordered to throw a tear gas bomb into the building.

The tear gas bomb used, however, was one designed for outdoor use only. The bomb burst into flames, resulting in substantial fire damage to the building and a gun shop and ceramics store housed therein. Subsequently, the owners of the gun shop, the ceramics store, and the building brought suit against Miami Shores, the Village, and Federal Laboratories, Inc., the manufacturer of the tear gas bomb. The suits were consolidated for trial, and the jury returned a verdict against all defendants in the amount of $126,500.

Thereafter, Miami Shores and Federal Laboratories, Inc., each paid their one-third share of the judgment. The Village, however, refused to pay any more than $25,000, which was the limit of public liability insurance carried by the Village. Miami Shores then paid an additional $17,403, which represented the difference between the $25,000 paid by the Village and its full one-third share.

Since Miami Shores paid more than its pro rata share, it filed a petition for an order of contribution against the Village pursuant to the Uniform Contribution Among Tortfeasors Act, Section 768.31, Florida Statutes (1975). The Village moved to dismiss the petition on the ground, inter alia, that Section 768.31 was unconstitutional in its application to municipal corporations. The circuit court denied the motion and entered final judgment in favor of Miami Shores. From that final judgment the Village brings this appeal.

The Village’s first contention is simply that the Act does not apply to municipal corporations. Its argument revolves around the following language of Section 768.31:

(2) RIGHT TO CONTRIBUTION.—
(a) Except as otherwise provided in this act, when two or more persons become jointly or severally liable in tort for the same injury to person or property, or for the same wrongful death, there is a right of contribution among them [Emphasis supplied.]

Essentially, the Village argues that, by using the word “persons,” the Legislature never intended the Act to apply to municipal corporations. We disagree.

The term “persons” when used in a legislative enactment may mean and include municipal corporations. Such a meaning, however, is subject to legislative intent “as it is expressed or as it may be gathered from the purpose of the act, the administrative construction of it, other legislative acts bearing upon the subject, and all the circumstances surrounding and attendant upon it.” City of St. Petersburg v. Carter, 39 So.2d 804, 805 (Fla.1949). On numerous occasions, this Court has considered municipal corporations to be within the contemplation of the Legislature when it referred to “corporations” or to “persons” in a particular statute. See Hargrove v. Town of Cocoa Beach, 96 So.2d 130 (Fla. 1957); Parker v. City of Jacksonville, 82 So.2d 131 (Fla.1955); City of Lakeland v. Amos, 106 Fla. 873, 143 So. 744 (1932); City of Sebring v. Avant, 95 Fla. 960, 117 So. 383 (1928). All of these cases illustrate that the question is solely one of legislative intent and must be resolved by taking into account the totality of the circumstances surrounding the enactment of the particular statute involved.

After reviewing the Act under consideration here, we are persuaded that the term “persons” includes municipalities. The legislative purpose behind the enactment of Section 768.31 was to provide for a right to contribution among all joint tort-feasors in order to eliminate the unfairness of the common law rule. From a reading of the entire Act, we must conclude that the Legislature was concerned not with the status of the defendants in a tort action, but rather with their relationship as joint tortfeasors. Prior to the enactment of Section 768.31, this Court had consistently recognized that a municipal corporation could be a tortfeasor. See, e. g., Hargrove v. Town of Cocoa Beach, supra. We must assume that the Legislature was aware of this possibility and, thus, we find it to be significant that the Legislature chose not to specifically exclude municipalities from the operation of the Act.

Another indication of the legislative intent to include municipalities within the scope of Section 768.31 can be found by examining the Waiver of Sovereign Immunity Act, Section 768.28, Florida Statutes (1977). That statute waives sovereign immunity from tort claims for all governmental entities, including municipalities, and provides that these governmental entities shall be liable for torts “in the same manner and to the same extent as a private individual under like circumstances.” Section 768.28(5), Florida Statutes (1977).

The Waiver of Sovereign Immunity Act was passed during the 1974 legislative session. Chapter 74-235, Laws of Florida. The Uniform Contribution Among Tort-feasors Act was enacted one year later. Chapter 75 — 108, Laws of Florida. Since Section 768.28 equates municipal corporations with all other private individuals for purposes of tort liability and since that statute was passed during the legislative session immediately prior to the enactment of Section 768.31, we are persuaded that the Legislature intended to include municipal corporations when it used the term “persons” in the later enactment. For the reasons expressed, we hold that municipal corporations are subject to the Uniform Contribution Among Tortfeasors Act.

We now turn to the Village’s constitutional assault on Section 768.31. Although the Village raises six separate arguments, we find that only one requires extensive discussion. The Village contends that Section 768.31, as applied to the facts of this case, affects vested rights retroactively in violation of the Due Process Clauses of the Florida and United States Constitutions. In order to understand this argument, a brief recitation of the time sequence in this case is necessary.

The events which gave rise to the tort action in this case occurred on December 23, 1973, and the litigation against Miami Shores, the Village, and Federal Laboratories, Inc., was commenced on August 29, 1974. Section 768.31 became law on June 13, 1975, and was in effect prior to final judgment being entered against the three defendants. Section 768.31(7) provides:

(7) PENDING CAUSES OF ACTION.— This act shall apply to all causes of action pending on June 12, 1975, wherein the rights of contribution among joint tort-feasors is involved and to cases thereafter filed.

Thus, if this provision is constitutionally valid, the Act would apply to the present case and the Village would be liable for contribution. The Village asserts that the Act is unconstitutional because it affects substantial rights by abrogating the common law rule of no contribution and by creating a new cause of action in relation to events which occurred prior to the passage of the statute. We disagree.

A retroactive provision of a legislative act is not necessarily invalid. In McCord v. Smith, 43 So.2d 704 (Fla.1950), this Court stated that retrospective statutes are only constitutionally defective:

. in- those cases wherein vested rights are adversely affected or destroyed or when a new obligation or duty is created or imposed, or an additional disability is established, in connection with transactions or considerations previously had or expiated.

Id. at 709.

Thus, the issue in this case is whether Section 768.31 affects vested rights or establishes a new obligation or duty. We hold that it does not.

Initially, we note that there are numerous decisions on this issue in other states which have adopted the Uniform Contribution Among Tortfeasors Act. The authorities are divided on this issue and neither line of cases establishes what could be termed a majority rule. One line of authority holds that the act affects substantial rights by abrogating the common law rule of no contribution, and, therefore, the act cannot be applied retroactively. See, e. g., Massey v. Sullivan County, 225 Tenn. 132, 464 S.W.2d 548 (1971); Commercial Casualty Insurance Co. v. Leonard, 210 Ark. 575, 196 S.W.2d 919 (1946); Distefano v. Lamborn, 7 Terry 195, 81 A.2d 675 (Del.1951). The other line of cases hold that the act is, in essence, a remedial measure which affects only the remedies available in a cause of action which already exists and, thus, the retroactive application of the act does not violate the due process clause. See, e. g., Augustus v. Bean, 56 Cal.2d 270, 14 Cal.Rptr. 641, 363 P.2d 873 (1961); Smith v. Fenner, 399 Pa. 633, 161 A.2d 150 (1960); Pennsylvania Greyhound Lines, Inc. v. Rosenthal, 14 N.J. 372, 102 A.2d 587 (1954); First National Bank v. Steel, 136 Mich. 588, 99 N.W. 786 (1904). We find this latter line of authority to be the better reasoned position.

In Augustus v. Bean, supra, the Supreme Court of California held that the Uniform Contribution Among Tortfeasors Act could constitutionally be applied to require contribution in a situation where the accident giving rise to the tort liability predated the passage of the act. In reaching that decision, the court reasoned:

As of the time of the accident a person did not have a vested right at common law to avoid paying for the consequences of his negligence merely because there were other tortfeasors involved. After the entry of a judgment against the joint tortfeasors, each of them was liable in full until the judgment was satisfied, and, if the plaintiff chose to collect from one to the exclusion of another, this was a matter of chance rather than the result of a right which became fixed as of the time of the accident. Contribution statutes, if applied where an accident antedates their enactment, do not retroactively increase the liability existing at the time of the injury but merely provide a method by which the liability of each of the tortfeasors may be limited to his pro rata share of the judgment. 14 Cal.Rptr. at 642-43, 393 P.2d at 874-5.

We find the reasoning of the Supreme Court of California to be persuasive.

Remedial or procedural statutes do not fall within the constitutional prohibition against retroactive legislation and they may be held immediately applicable to pending cases. See, e. g., Turner v. United States, 410 F.2d 837 (5th Cir. 1969); City of Lakeland v. Catinella, 129 So.2d 133 (Fla. 1961); Grammer v. Roman, 174 So.2d 443 (Fla.2d DCA 1965). The Uniform Contribution Among Tortfeasors Act does not affect any vested rights of tortfeasors or create any new obligations in respect to their tort liability. Since the common tort liability was enforceable against all or any of the joint offenders at the election of the injured party, Section 768.31, by altering the common law rule of no contribution, does not increase the liability of any of the participants in the offense. The statute merely lessens the ultimate liability of each tort-feasor by providing for an equitable distribution of the common burden. Under the Act, the burden can no longer be thrust wholly on one tortfeasor when there are others who are equally or mutually liable. The statute simply changes the form of the remedy without impairing substantial rights. We hold that the Uniform Contribution Among Tortfeasors Act does not violate any constitutional provisions in its application to pending cases.

We have considered the other points raised by the Village and find them to be without merit.

The judgment of the circuit court is affirmed.

It is so ordered.

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


text:
    PINELLAS COUNTY, a political subdivision of the State of Florida, Petitioner, v. Jeanne Khoyi NELSON, Supervisor of Elections, Respondent.
    No. 51445.
    Supreme Court of Florida.
    Aug. 31, 1978.
    W. Gray Dunlap, County Atty., and Gerald A. Figurski, Asst. County Atty., Clear-water, for petitioner.
    Edmund S. Whitson, Jr., of Whitson & Whitson, Clearwater, for respondent.
   HATCHETT, Justice.

Is a board of county commissioners required to approve all budget requests deemed necessary by a supervisor of elections to fund authorized functions of her office, unless the board determines such appropriations to be unnecessary or unreasonable? Since the decision of the district court on this issue affects the duties of constitutional officers, we have jurisdiction to review the case pursuant to Article Y, Section 3(b)(3), Florida Constitution (1968). We hold that a board of county commissioners has wide discretion in the formulation of a county budget, subject to challenge on the ground that the board acted arbitrarily or capriciously in deleting a reasonable or necessary expenditure.

This case involves a dispute between the Supervisor of Elections of Pinellas County and the Board of County Commissioners of that county over certain items requested in the Supervisor’s proposed budget for the fiscal year 1975-1976. The Supervisor of Elections contends that the requested funds are necessary to maintain a system of automation in the processing of voting registration data by the use of computers and data processing equipment. The Board of County Commissioners unanimously deleted from the Supervisor’s requested budget items totalling $77,500 in order to force the Supervisor to utilize the county’s central data processing department, already in existence, rather than allow the Supervisor to set up her own independent and separate data processing center.

The Supervisor filed a complaint for declaratory judgment in the circuit court, charging the Board with attempting to usurp her constitutional powers, and with attempting to interfere with the administration of her office. The circuit court entered an order granting summary judgment in favor of the Board, holding that the action of the Board in deleting the proposed budget requests of the Supervisor was authorized by Chapter 129, Florida' Statutes (1975), and rejecting the argument of the Supervisor that her decisions are not subject to review by the Board because of her position as a constitutional officer. The trial court stated that the Board is vested, under Chapter 129, with the exclusive power' and duty to appropriate and budget county funds, limited only by the requirements of that chapter.

On appeal, the district court noted that the trial court had limited its inquiry to the issue of whether the Board’s action was authorized by Chapter 129, and failed to make any determination as to the necessity and reasonableness of the Supervisor’s budget request. The district court noted that, under the pertinent Florida statutes, the Supervisor has the authority to employ and adopt a system of automation in the processing of registration data. The Board of County Commissioners has the duty under these same statutes to pay for any expenses incurred by the Supervisor in implementing a permanent registration sys-tern unless the Board determines the Supervisor’s use of the automation system to be arbitrary or capricious, and therefore unreasonable and unnecessary. Since the trial court made no factual determination on whether the Supervisor’s request was arbitrary or capricious, the case was remanded for further proceedings on that issue, under the authority of Orange County v. Allie, 238 So.2d 662 (Fla. 4th DCA 1970).

Both parties argue in this court that further trial court proceedings are necessary. The only unresolved dispute centers around the question of whether the burden of proving arbitrariness and capriciousness is upon the Supervisor or on the Board of County Commissioners. The opinion of the district court implies that this burden of proof should fall upon the Board of County Commissioners:

The board had the duty under Florida Statute 98.131(2) to pay for any expenses incurred by the plaintiff in putting in a permanent registration system unless the board found that the plaintiff’s use of the automation system was arbitrary or capricious and therefore unreasonable and not necessary. Nelson v. Pinellas, 343 So.2d 65 (Fla. 2nd DCA 1978).

In Sparkman v. County Budget Commission, 103 Fla. 242, 137 So. 809 (1931) this court rejected a constitutional attack on a statute which allowed a county budget commission to fix the amount of expenditure deemed necessary to conduct various county offices. In that case, the court recognized that these decisions by a budget commission are subject to judicial review of the reasonableness of such determinations. This court, in Green v. Taylor, 70 So.2d 502 (Fla. 1954), resolved a dispute similar to the one here, involving the exercise of discretion by a county budget commission which had denied an appropriation request by a judge of a small claims court. There, this court stated:

After the commission has acted on the request and has approved or disapproved the same in whole or in part, for reasons at least prima facie sufficient, in the exercise of its sound discretion, a review may then be had, if necessary, on the issue of whether the commission has acted arbitrarily and unreasonably, or whether it has in truth abused its discretion in limiting appropriations. Green v. Taylor, supra, 70 So.2d at 504.

No administrative procedure for review of the Board of County Commissioners’ denial of the Supervisor’s budget request has been provided by general law. Therefore, the Supervisor was correct in seeking judicial review in the circuit court. We agree with the district court that the trial court improperly limited its scope of review only to the questions of whether the Board’s action, in deleting the budget request, was authorized by Chapter 129. The trial court should have held a full factual inquiry as to the reasonableness of the budget request. We disagree, however, with the language of the district court’s opinion which implies that the Board of County Commissioners has the burden of proving the request to be arbitrary and capricious before it can validly delete an item from the Supervisor’s requested budget. Chapter 129 expressly imposes upon the Board of County Commissioners the duty and responsibility to oversee the budgets of all departments, agencies, and offices coming under its control for budget purposes. The Board of County Commissioners has the additional duty of raising tax monies, setting millage rates within permissible limits, and allocating those tax monies among the various county agencies. The Board of County Commissioners has wide discretion in approving, modifying, or rejecting budget requests. A county officer, such as the Supervisor of Elections, may seek judicial or administrative review of the Board’s action, and should be entitled to prove that the denial of a budget request by the Board was arbitrary and capricious, or would unreasonably impair the ability of the county officer to fulfill constitutional or statutory obligations.

Therefore, we affirm the district court’s decision to the extent that it reverses the order granting summary judgment and remands this case to the trial court for a full factual inquiry. We expunge, however, that language in the district court’s opinion which implies that the Board of County Commissioners must prove the Supervisor’s request was unreasonable and unnecessary in order to delete an item from the requested budget.-

It is so ordered.

ENGLAND, C. J., and OVERTON, SUNDBERG and ALDERMAN, JJ., concur.

      . Respondent has raised the argument in this court that use of the Board’s central data processing center would violate her statutory duty, under Sec. 98.161(3), Fla.Stat. (1975) to exclusive custody and control over registration data. This issue was not addressed by either the trial or appellate court, and we do not consider it here.

      . In addition, the trial court denied the Supervisor’s request to have her office funds paid to her in twelve monthly installments, but held that the funds budgeted to the Supervisor’s office shall be disbursed in the sole discretion of the Supervisor, if the disbursement is in accordance with the budget as approved.

      . See generally, Chapter 98, Fla.Stat. (1975). Section 98.391, Fla.Stat. (1975) states:
      Registration; automation in processing. — For the purpose of providing a supplemental and alternative procedure for the registration of electors and for conducting elections at the precinct level, in those counties of the state where voting machines are used in the conduct of elections, the supervisor of elections and the officials lawfully charged with conducting elections may employ and adopt a system of automation in the processing of registration data, and make use of computers and data processing equipment and records adaptable for efficiency in conducting elections in such counties. The forms to be used in the system herein provided for shall be submitted to the department of state for approval.

      .Appellant, in that case, argued the investiture of supervisory power over budgets in the budget commission constituted an unlawful delegation of legislative authority.

      . Other constitutional officers have been granted, by statute, administrative review procedures. In Alachua County v. Powers, 351 So.2d 32 (Fla. 1978), this court noted the appeal mechanism for the county clerk to the Department of Administration provided a method for the clerk to show the board acted unreasonably in reducing the clerk’s budget. See also, Sec. 30.49, Fla.Stat. (1975) which provides an administrative budget review mechanism to the county sheriff.


author: DOWNEY, Chief Judge.

text:
    INDICO CORPORATION, Mayer Morganroth & Martin Kopitz, jointly and severally, Appellants, v. GREENMAN ADVERTISING ASSOCIATES, INC., Appellee.
    No. 77-212.
    District Court of Appeal of Florida, Fourth District.
    May 9, 1978.
    Mayer Morganroth, Southfield, Mich., for appellants.
    T. Don Tenbrook and James Carry Jacobson of Rosen & Jacobson, Hollywood, for appellee.
   DOWNEY, Chief Judge.

Appellant raises several issues which, if supported by the record, indicate that a substantial miscarriage of justice occurred in the trial of this case. However, appellee denies all of the appellant’s contentions and the record is inadequate to reach the merits of the case because there is no transcript of the trial proceedings and no effort was made to reconstruct them.

Briefly, appellee sued Indico Corporation, a Michigan corporation, Mayer Morganroth and Martin Kopitz, residents of Michigan, seeking approximately $100,000 for breach of contract. The individual defendants were sued as guarantors. On the eve of trial Florida counsel withdrew; the trial was not continued; and Morganroth, a Michigan lawyer, attempted to try the case on behalf of the defendants.

Appellants claim the trial court refused to grant them a continuance although Florida counsel, before withdrawing, suggested to the trial court one should be granted. Appellants contend Morganroth had insufficient time to prepare the case for trial. They next complain that even though the trial commenced at 11:00 a. m., and the appellee rested at 1:00 p. m., the trial judge forced appellants, under pain of contempt, to complete their case by 2:00 p. m. Lastly, appellants maintain that they were required to proceed to trial without a court reporter, thus precluding them from obtaining a transcript of the proceedings.

The foregoing are serious contentions, which, if supported by an adequate record, would probably require reversal and remand for a new trial. However, appellee states that none of the judicial acts assigned as error took place. Thus, it is imperative that the record be reconstructed if the merits of the case are to be reached.

Accordingly, we relinquish jurisdiction of this cause to the trial court for a period of 30 days so that the trial court and counsel can reconstruct the record. After the record is filed in this court appellant shall have 10 days to file a supplemental brief and appellee shall have 10 days after receipt of appellant’s supplemental brief to file its supplemental brief if they be so advised.

CROSS and LETTS, JJ., concur.

      . See The Travelers Insurance Company v. Agricultural Delivery Service, 262 So.2d 210 (Fla. 2nd DCA 1972), for suggested guidelines only. This does not indicate a concurrence with the totality of the decision.


author: MELVIN, Judge.

text:
    “M” ENTERPRISES, INC., Appellant, v. George I. BAUMGARTNER and Doris W. Baumgartner, his wife, and Baumgartner Construction Company, Inc., a Florida Corporation, Appellees.
    No. II-489.
    District Court of Appeal of Florida, First District.
    May 25, 1978.

      John S. Winnie of Winnie & Winnie, Gainesville, for appellant.
    George F. Tubb of Jenkins & Tubb, Gainesville, for appellees.
   MELVIN, Judge.

Appellant, by interlocutory appeal, seeks to overturn the order rendered by the trial court December 2, 1977, relating to the modification of security deposits made pursuant to the provisions of Section 713.24, Florida Statutes.

On December 9, 1977, appellant filed an instrument identified as a Motion for Rehearing addressed to said Order of Modification. On January 10, 1978, the court entered its order denying the appellant’s motion. The appellant, on February 8, 1978, filed its notice of interlocutory appeal from the order modifying security deposits. The appeal now considered was filed out of season.

In Wagner v. Bieley, Wagner & Associates, Inc., 263 So.2d 1 (1972), the Florida Supreme Court held:

“Motions for rehearing in trial courts are governed by Rule 1.530(a) and (b), R.C.P., which provides in part:
“ ‘(a) Jury and Non-Jury Actions. A new trial may be granted to all or any of the parties and on all or a part of the issues. On a motion for a rehearing of matters heard without a jury, including summary judgments, the court may open the judgment if one has been entered, take additional testimony and enter a new judgment.
“ ‘(b) Time for Motion. A motion for a new trial or for rehearing shall be served not later than 10 days after the rendition of verdict in a jury action or the entry of judgment in a non-jury action. . . . ’
“With regard to the meaning and effect of this rule, we agree with the District Court of Appeal, First District, in Home News Publishing Company [v. U—M Publishing, Inc., 246 So.2d 117 (1971)] that:
“ ‘. . . A literal interpretation of the rule would seem to indicate that a motion for rehearing may be directed only to final judgments rendered by a court, since that is the only judicial action specified in the rule authorizing the filing of such a motion. If the rule-making authority had intended to authorize the filing of a motion for rehearing directed to an interlocutory order, it could easily have so provided. Unless the filing of a motion for rehearing to an interlocutory order is authorized by a rule of court promulgated by the rule-making authority, then its filing is improper and would not toll the rendition date of the order or the running of the time for seeking appellate review of the order complained about.’ ”

The interlocutory appeal herein filed is DISMISSED.

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