author: JONES, Justice.

text:
    Clara M. SHEFFIELD, et al. v. EXXON CORPORATION, et al.
    81-98.
    Supreme Court of Alabama.
    Oct. 1, 1982.
    Rehearing Denied Jan. 14, 1983.

      James E. Hart, Jr., Brewton, for appellants.
    Rae M. Crowe of Armbrecht, Jackson, DeMouy, Crowe, Holmes & Reeves, Mobile, for appellees The Louisiana Land & Exploration Co. and Murphy Oil Corp.
    Ben H. Harris, Jr., and Alan C. Christian of Johnstone, Adams, May, Howard & Hill, Mobile, for appellees Exxon Corp. and Shell Oil Co.
   JONES, Justice.

This is an oil and gas case. Plaintiffs/Appellants are landowners; Defendants/Appellees are oil companies. The case involves the determination of the rights and duties of the respective parties — the Plaintiffs as lessors, the Defendants as lessees— under an oil, gas, and mineral lease. Finding certain genuine issues of material fact, we affirm in part and reverse in part as to the order granting summary judgment for the Defendants.

Because of our holding remanding the cause for trial, a detailed discussion of the numerous factual and legal contentions urged by the parties would be imprudent. A brief, generalized recital of certain areas of factual dispute, relating to the respective claims and defenses asserted, however, is essential to an understanding of our holding.

Lessors do not contest the trial court’s determination that the lease was preserved and maintained to the end of the ten-year primary term. Instead, they assert in their first claim that the lease expired by its own terms because there was no oil or gas production and no drilling or reworking operations taking place on the Lessors’ property at the end of the primary term sufficient to propel the lease into a secondary term. More particularly, Lessors contend that the. voluntary pooling agreement entered into with Lessees terminated; therefore, they say, production, drilling, or reworking operations elsewhere on the spacing unit would not be considered as taking place on the Lessors’ land.

In order to fully understand Lessors’ first claim, it is necessary to examine the relationship between the provisions of the lease and the voluntary pooling agreement.

The lease provides:

“Lessee, at its option, is hereby given the right and power to pool or combine acreage covered by this lease or any portion thereof with other land, lease or leases in the immediate vicinity thereof, when in Lessee’s judgment it is necessary or advisable to do so in order properly to develop and operate said premises in compliance with any lawful spacing rules which may be prescribed for the field in which this lease is situated by any duly authorized authority, or when to do so would, in the judgment of Lessee promote the conservation of the oil and gas in and under and that may be produced from said premises.”

The voluntary pooling agreement entered into between Lessors and Lessees pursuant to the above lease provision provides:

“The pooled unit so created shall remain in force until:
“(b) Terminated, after ninety (90) days from date hereof, by the failure to prosecute operations for drilling or reworking thereon for any period of ninety (90) consecutive days during which no production is had from a unit well and no shut-in well capable of producing as a unit well is located on the unit....” (Emphasis added.)

The lease also states:

“If at the expiration of the primary term, oil, gas or other mineral is not being produced on said land, or on acreage pooled therewith, but Lessee is then engaged in drilling or reworking operations thereon . .. the lease shall remain in force so long as operations are prosecuted with no cessation of more than sixty (60) consecutive days, and if they result in the production of oil, gas or other mineral, so long thereafter as oil, gas or other mineral is produced from said land or acreage pooled therewith.” (Emphasis added.)

It is undisputed that no drilling or reworking operations ever took place on Lessors’ acreage within the spacing unit. Therefore, we must ascertain whether Lessors’ interests were either compulsorily or voluntarily pooled with other interests in the spacing unit before we can resolve the ultimate issue in Lessors’ first claim— whether the lease was propelled into its secondary term.

Lessors contend, alternatively, in their second claim: If the lease did not expire by its own terms at the end of the primary period, they are entitled to damages for breach of the implied lease obligations to reasonably develop the subject premises and to protect against drainage.

Lessees claim that the lease was maintained after expiration of the primary term by continuous drilling and/or reworking operations on the well resulting in production, and/or by tender of shut-in royalty payments prior to the expiration of the primary term. Lessees also assert that Lessors’ failure to comply with an express notice provision in the lease by not giving proper written notice of the alleged breached obligation constitutes a waiver of any right Lessors might have had for cancellation of the lease, or recovery of damages. Lessors contend the notice provision was not breached, however. In addition, Lessees claim the payment and acceptance of delay rentals constitutes a waiver of any claim for either cancellation of the lease or for failure to develop or protect against drainage, and that such claim is nevertheless a collateral attack upon the spacing orders of the Alabama Oil and Gas Board.

Following the completion of the initial formal pleadings, both Lessors and Lessees filed motions for summary judgment, each accompanied by supporting affidavits. The evidentiary support adduced by the respective parties raises multiple factual issues. The following facts, however, are undisputed:

On May 14, 1969, Lessors executed the “Producer’s 88 Unless Lease” in question for a primary term of ten years. The lease covered land in the southeast quarter of Section 30 over the Big Escambia Creek Field in Escambia County, Alabama. The lease provided that annual delay rental payments would maintain the lease until May 14, 1979, if operations for drilling were not commenced on the land or acreage pooled therewith.

In 1972, the Alabama Oil and Gas Board established by order special field rules for the Big Escambia Creek Field. That order required that drilling units consist of governmental sections of approximately 640 acres and that only one well was to be located on each unit. In 1975, the Oil and Gas Board force pooled and integrated all mineral interests of all owners in Section 30, and appointed Exxon as the party in charge of drilling operations. The other lessees obtained working interests in Section 30.

The lease was maintained by payment of annual delay rentals through 1976. In July 1976, Exxon completed a producing well on Section 30, but not on Lessors’ property. Production continued and royalties were paid thereon until December 1977, when the pressure of the well dropped to a- level insufficient to cause the gas and condensate to flow inside the treatment facility which cleanses production from all the wells in the field.

Exxon had been and continued to engage in various preliminary activities related to obtaining compression facilities which would artificially increase the pressure in the Section 30 well, and other wells. Prior to May 14, 1978, delay rentals were paid and accepted. In February 1979, Lessees attempted to start up the well and reinstate production, but the tubing deep inside the well collapsed, blocking the well bore. In response to Exxon’s request, the Oil and Gas Board authorized Exxon to conduct drilling and/or reworking operations at an exceptional location within the Section 30 drilling unit. In March 1979, Lessees tendered a shut-in royalty payment, but Lessors refused the payment and notified Lessees by letter that in their opinion the lease had expired by its own terms. In April 1979, on-site preparations for drilling operations began. The drilling rig was assembled and rigged up by May 12, 1979. Lessors sidetracked the oil well to a new bot-tomhole location, which resulted in production on September 1, 1979. The well has continued to produce with the aid of compression since that time.

ARCP 56 provides that summary judgment is appropriate only when the moving party has demonstrated that there is no genuine issue of material fact and that the movant is entitled to judgment as a matter of law. Bryant v. Morley, 406 So.2d 394 (Ala.1981). The books are replete with cases interpreting and applying the summary judgment rule. See, e.g., Ex parte Bagby Elevator and Electric Co., Inc., 383 So.2d 173, 176 (Ala.1980); Quillen v. Quillen, 388 So.2d 985 (Ala.1980); Perdue v. Mitchell, 373 So.2d 650 (Ala.1979); Vintage Enterprises, Inc. v. Cash, 348 So.2d 476 (Ala.1977).

The application of the rule in the factual context of this case is especially difficult for two reasons. First, the validity of Lessors’ first claim — whether the lease expired at the end of the primary term — depends on what constitutes “drilling or reworking” operations and what constitutes a “capable well,” terms heretofore not construed in Alabama case law. Furthermore, even assuming the invalidity of the voluntary pooling agreement, a question arises as to whether the 1975 forced pooling and integration order would render the issue of the validity of the voluntary agreement immaterial.

Secondly, as to Lessors’ second claim— breach of implied covenants to protect against drainage and to reasonably develop — resolution of an arguable issue of law may moot the significance of any factual disputes. That question of law centers on whether Lessors’ second claim is an impermissible collateral attack on the spacing orders of the Oil and Gas Board, which stated in its 1972 order setting up field spacing rules for the Big Escambia Creek Field that 640 surface acres was the maximum area which one well could efficiently and economically drain.

The trial judge, in granting the Lessee’s motions for summary judgment on both the Lessors’ counts, stated that “these activities constituted drilling or reworking operations within the meaning ... of the lease.” The judge went on to state that “Plaintiff’s claim for drainage constitutes an impermissible collateral attack upon the orders of the Oil and Gas Board.... ”

Applying the definition of drilling and reworking operations subsequently set out, we conclude the trial judge was correct in his determination that the activities which undisputedly took place constituted drilling or reworking operations.

Many oil, gas, and mineral leases now contain cessation of production clauses. These clauses generally provide for termination of the lease in the event that certain time periods expire without the operator or lessees having prosecuted “drilling” or “reworking” operations. Therefore, we intend to express guidelines as to what types of operations constitute drilling or reworking under Alabama law, but with the caveat that each case must be determined by its own particular facts.

To state the obvious, the “act of boring a hole through which oil and/or gas may be produced if encountered in commercial quantities” is an operation which constitutes drilling. 8 Williams and Myers, Oil and Gas Law, Manual of Terms 205 (1981). Problems arise, however, when the activities of the operator are not tangibly connected with the well or unit in question.

In the leading Texas case, Gulf Oil Corp. v. Reid, 161 Tex. 51, 337 S.W.2d 267 (1960), the Texas Supreme Court held that the term “drilling” was intended to include all physical and mechanical aspects of securing oil and/or gas production in paying quantities, including connection of pipelines to the well or the extension of pipeline to some point where the product might be marketed. 337 S.W.2d at 270. Connection of pipeline is not what might be considered such a requisite operation to the actual boring of the hole to produce oil or gas, but in order to complete the task and provide the product to the purchaser, and ultimately to the consumer, such operations are necessary for the well to produce in “paying quantities.”

Work done on the well or unit site in preparation for the actual drilling of the well has been held to be a part of drilling operations “when performed with the bona fide intention to proceed thereafter with diligence toward the completion of a well.” Sterling v. McKendrick, 134 So.2d 655, 657 (La.App.1961). The Sterling court refers to work intimate with the situs of the well when holding what activities of the operator constitute drilling operations. The undisputed activities that occurred in April and May 1979, on the Section 30 unit, coupled with the resultant production the following September, meet this test.

A more recent Oklahoma decision held that “sales contract negotiations and internal corporate authorization to rework do not constitute a ‘resumption of drilling operations’ as that phrase is clearly referable to on-site drilling, and negotiations preparatory to that required activity will not save the lease” in light of a cessation of production clause. Hoyt v. Continental Oil Co., 606 P.2d 560, 564 (Okla.1980).

This Oklahoma definition most closely approaches the guidelines which this Court, by its instant holding, prescribes as the test for determining what operations constitute “drilling” in this State. The key element is whether the operation is associated or connected with the physical site of the well or unit. In the case at bar, such on-site activities took place prior to the expiration of the primary term. Mere negotiations for purchases or subcontracts do not contribute to the physical efforts necessary to make the well capable of production. We emphasize, again, that each case must be taken on its own facts. Consequently, a lease agreement may dictate what operations, if any, are necessary to defeat a cessation of production clause.

In establishing guidelines for what operations constitute “reworking” in Alabama, we follow the same logic as with “drilling.” The crucial test which must be met for an activity to constitute reworking is whether the operation is associated or connected with the physical site of the well or unit. Additionally, the operation must be intimately connected with the resolution of whatever physical difficulty caused the well to cease production.

In Texas Co. v. Leach, 219 La. 613, 53 So.2d 786 (1951), the court held that the operator’s efforts directed towards repairing a derrick on the well site, repairing tubing necessary to drilling, and strengthening and repairing bridges leading to the well site constituted operations for reworking. 53 So.2d 790, 791. If such repair work is actually necessary for the completion of onsite reworking, then it should be considered as part of the reworking operations of the well.

House v. Tidewater Oil Co., 219 So.2d 616 (La.App., 1969), addresses in great detail the issue of what constitutes operations for reworking. The court noted that reworking operations are not limited to activities which “affect the ability of the formation to feed into the well bore.” In defining “reworking,” however, the court limited that term to operations which take place on, or in close proximity to, the well site.

As with the guidelines we have established for operations which constitute “drilling,” we determine “reworking” operations by whether the activity is associated or connected with the physical site of the well or unit. Consequently, operations or activities which are not designed to revitalize a well, or to restore lost production, do not constitute reworking.

In Brown v. Sugar Creek Syndicate, 195 La. 865, 197 So. 583 (1940), the Supreme Court of Louisiana held that “production” meant “production in paying quantities.” Similarly, we hold that a “capable well” in this State is a well capable of producing oil or gas in paying quantities.

For purposes of maintaining a lease after expiration of the primary term, “paying quantities means production in quantities sufficient to yield a return in excess of operating costs, even though drilling and equipment costs may never be repaid and the undertaking considered as a whole may ultimately result in a loss.” 8 Williams and Myers, Oil and Gas Law, Manual of Terms 580 (1981). In analyzing the duties of a lessee under express or implied covenants of a lease, production in paying quantities means “production in quantities sufficient to yield a return in excess of drilling, development and operation costs.” 8 Williams and Myers, Oil and Gas Law, Manual of Terms 580 (1981). See Transport Oil Co. v. Exeter Oil Co., 84 Cal.App.2d 616, 191 P.2d 129 (1940); and Caldwell v. Alton Oil Co., 161 La. 139, 143, 108 So. 314, 315 (1926).

We emphasize that our treatment of the “capable well” issue — a well capable of producing oil or gas in paying quantities — is limited to the context of the instant case and is not necessarily to be given the same treatment in other contexts.

Here, our ruling upholding the trial court’s granting of summary judgment is based upon two separate and distinct, yet interdependent, considerations: 1) whether the drilling or reworking which took place is to be considered as occurring on Lessors’ land; and 2) our determination of the first inquiry, in turn, depends on whether all the interests in Section 30 were validly pooled.

We conclude that the 1975 forced pooling and integration orders render the validity of the voluntary agreement immaterial. This forced pooling order is still effective and achieves the same purpose as the voluntary pooling agreement would if it were effective. Because there was a valid pooling of interests in the Section 30 unit, and because drilling or reworking operations were commenced before the expiration of the primary term, the granting of summary judgment in favor of Lessees on the first count was proper.

Turning to Lessors’ secondary claim (based upon alleged implied covenants of protection and drainage), we conclude the granting of summary judgment was improper in the factual context of this case. We hold that such claim is not an impermissible collateral attack on the orders of the Board.

Alabama Code 1975, § 9-17-12(b), dealing with limitations as to rules, regulations, or orders limiting or prorating pool production, states that “[a] drilling or production unit, as contemplated in this subsection, means the maximum area which may be efficiently and economically drained by one well, and such unit shall constitute a developed unit as long as a well is located thereon which is capable of producing oil or gas in paying quantities....” (Emphasis added.)

Whether the Section 30 well was capable of producing oil or gas in paying quantities is a disputed issue, and should be decided by the trier of fact in light of the considerations previously announced herein.

As concerns the implied covenant of protection, a disputed factual question is raised as to whether the drilling and reworking proceeded with reasonable haste, i.e., whether Exxon met the standard of a reasonably prudent operator under the same or similar facts and circumstances. For a good discussion of the reasonably prudent operator standard in relation to protection against drainage, see Amoco Production Co. v. Alexander, 622 S.W.2d 563 (Tex.1981). See, also, 5 E. Kuntz, A Treatise on the Law of Oil and Gas § 61.3 (1978).

As concerns the implied covenant of protection, we adopt the following statements from Millette v. Phillips Petroleum Co., 209 Miss. 687, 48 So.2d 344 (1950), as the applicable legal principles:

“There is an implied covenant in a lease of oil property that the lessee will do nothing to impair the value of the lease, and must use reasonable care to protect the lessor from damage or loss by the affirmative act of such lessee. This implied obligation has been extended to include, in the absence of express stipulation, a duty to drill offset wells if practicable and profitable. [Cites omitted.]
“The payment and receipt of delay rentals is not a substitute for royalties. It is the consideration for delay in actual development. [Cites omitted.]
“We are of the opinion that the acceptance of annual delay rentals, being knit to the duty to drill, and the right to delay operations, is apart from, and not relevant to, the duty to protect against drainage as such. Authorities which debate the existence of an estoppel against a demand for actual exploration are not found pertinent even as analogies.” Millette, 209 Miss, at 703-705, 48 So.2d at 347-48.

See, also, Williams v. Humble Oil & Refining Co., 432 F.2d 165 (5th Cir.1970).

Judicial review of Board rules, regulations, and orders is specifically provided for by statute. Ala.Code 1975, § 9-17-15, enumerates five areas a reviewing court can consider, one of which is whether a rule, regulation, or order is reasonable. This section also states that any interested person aggrieved by any rule, regulation, or order made or promulgated by the Board shall institute a civil action within 30 days from the date of the order, rule, or regulation.

This does not mean, however, that these Lessors are now precluded from litigating the issue whether Lessees have acted as reasonably prudent operators pursuant to the Millette rule. Indeed, in the case at bar, the spacing order occurred back in 1972. The Section 30 unit was not even drilled until 1976, and the question of drainage is not alleged to have occurred until after December 21,1977. To accord the Oil and Gas Board’s express order the preemption status urged by Lessees would raise serious due process questions. The Millette principles speak clearly to that threat in their recognition of a civil remedy under prescribed circumstances.

We further observe that the lack of a genuine issue as to a material fact under Count 1 seeking cancellation does not of itself preclude all fact issues with respect to Plaintiffs’ claim for damages, the test of the former being controlled by the terms of the lease and the pooling agreement, and the latter by the Millette reasonable operator rule.

Because there are genuine issues of material fact as to Lessors’ alternative claim, we hold the granting of summary judgment as to this claim was improper.

We deem the remaining contentions made by the parties inappropriate for comment, and resolution of them must await a more fully developed factual record in which such issues and contentions arise.

This cause is remanded for a jury resolution of the genuine issues of material fact as to the claim for damages and for application of the legal principles announced herein.

AFFIRMED IN PART; REVERSED IN PART; AND REMANDED.

TORBERT, C.J., and MADDOX, FAULKNER, ALMON, SHORES, and EM-BRY, JJ., concur.

BEATTY and ADAMS, JJ., not sitting.


source: Caselaw Access Project

author: PER CURIAM. MADDOX, Justice EMBRY, Justice BEATTY, Justice

license: Public Domain

text:
    Mayer W. PERLOFF v. DISCIPLINARY BOARD OF the ALABAMA STATE BAR.
    80-916.
    Supreme Court of Alabama.
    Dec. 10, 1982.
    Rehearing Denied Jan. 7, 1983.
    Champ Lyons, Jr. of Coale, Helmsing, Lyons & Sims, Mobile, and James E. Clark of London, Yancey, Clark & Allen, Birmingham, for appellant.
    John A. Yung IV, Asst. Gen. Counsel, Alabama State Bar, Montgomery, for appel-lee.
   PER CURIAM.

This is an appeal from the Alabama State Bar Disciplinary Board’s (Board) decision to disbar the appellant for unethical conduct with Saraland city councilmen during appellant’s tenure as city attorney. We reverse and modify the Board’s decision.

On appeal Perloff raises three issues: the Rules of Disciplinary Enforcement expanding the statute of limitations from three to six years are not retroactive, thereby barring count one of the complaint; the counsel for the bar made improper comments during the hearing, violating rules of procedure in a disciplinary hearing; and the Alabama Supreme Court has the authority to modify judgments on review of disbarment proceedings and should do so here because of mitigating circumstances.

The appellant was charged with unethical dealings with Saraland city officials on three separate occasions. Perloff’s first cousin, Mayer Mitchell, is a principal of a large real estate development company. Mitchell was an extremely influential citizen of Mobile County and had raised the majority of the funds Perloff had used in various campaigns for public office. In late 1976, or early 1977, Perloff came to understand that Mitchell was attempting to get approval for sewer hookups from the Sara-land city council. The council had refused Mitchell’s requests. One of the councilmen approached Perloff and explained that if Mitchell paid the council, the applications would be approved. Mitchell refused to pay the council, but continued to pressure Per-loff for the permits. Perloff took $2,700 in cash from his own safety deposit box and gave it to the council as a “political contribution.” The permits were shortly thereafter issued. Mitchell later paid pledges to a charity for which Perloff was at least one year in arrears.

Perloff later worked on a municipal bond issue for the city of Saraland and his firm billed the city for a fee of $18,000. The same councilman involved with the sewer permits approached Perloff, who at the time was involved in a campaign for reelection to the Alabama senate, and reminded Perloff that he would need the council’s support. In exchange Perloff would be required to split the $18,000 fee with the city council. Perloff paid over some $13,000 in cash to the city councilman, after receiving a check from the city for $18,000.

Perloff performed legal work involving condemnation of property for the City of Saraland. He billed Saraland $22,400 and was told by a city councilman the council wanted $7,500 of this fee. Perloff paid the councilman $7,500 in cash after receiving the fee from the city.

The F.B.I. conducted an investigation of the government of the City of Saraland under authority of the Hobbs Act, a federal statute enacted to enable the federal government to investigate and prosecute cases of corrupt city government. In 1979, the F.B.I. questioned Perloff regarding an unrelated “kickback” scheme. Perloff answered questions freely, but volunteered no information about his own involvement with the city council. The city councilman who had pressured Perloff was tried and convicted and became a witness for the United States in proceedings against other Saraland city officials. This councilman told the F.B.I. of two of the above “kickback” incidents involving Perloff. Perloff agreed to an interview with the F.B.I. after he had received a letter from the U.S. Attorney’s office stating that Perloff was not a “target” of the investigation. During this interview Perloff told the F.B.I. of all three incidents. Perloff later testified in criminal proceedings against Saraland city officials.

The Mobile County Bar Association Grievance Committee preferred charges before the Disciplinary Board of the Alabama State Bar on October 22, 1980. The charge was broken down into three complaints (each having to do with one of the payments to the city council). Each complaint consisted of seven counts. On motion by defense counsel, four counts in complaint one, three counts in complaint two and three counts in complaint three were dismissed. The Board found Perloff guilty of the remaining charges and disbarment was imposed. Regarding the sewer permit episode, Perloff was found guilty of engaging in illegal conduct involving moral turpitude, engaging in conduct involving dishonesty, etc., and engaging in conduct that adversely reflected on fitness to practice law. In regard to complaints two and three, Perloff was found guilty of engaging in conduct involving moral turpitude, engaging in conduct involving dishonesty, etc., engaging in conduct adversely reflecting on fitness to practice law and dividing legal fees with a non-lawyer.

Perloff argues that complaint one was due to be dismissed as barred by the three year statute of limitations in existence at the time of commission of the offenses involving the sewer permits (1976 or 1977). His argument is to the effect that, absent a specific clause to the contrary, statutes of limitation do not act retroactively. In view of the action we take regarding Perloff’s request for leniency, we pretermit a ruling on this question of the statute of limitations.

The last issue raised by the appellant is that the decision to disbar is too harsh because of appellant’s age (55) and the past personal and professional accomplishments of appellant. Counsel for Perloff, in brief, summarize their argument:

“The purpose of this appeal is to apply to this Court for leniency rather than to obtain a new trial. This Court has inherent authority to temper justice with mercy in the review of disbarment proceedings.”

Perloff has had a long and distinguished career in private practice and in the Alabama legislature and has devoted much time and energy to bar association projects such as the Alabama Rules of Civil Procedure and other measures which improved the administration of justice in Alabama.

We have reviewed the record and the evidence and find they do not warrant disbarment. Counsel for Perloff conclude their argument in brief by asking:

“We ask, in light of the circumstances of the transactions coupled with the respondent’s exemplary past record of service to his country, his state and this bar, that this Court temper justice with mercy and modify the punishment to that of a suspension of a time period which the Court considers sufficient to meet the necessities of this particular case.”

We consider an appropriate punishment in this case to be a suspension from the practice of law for a period of two years from the date Perloff surrendered his license to practice law, to wit: October 5, 1981.

REVERSED; ORDER OF DISCIPLINARY BOARD MODIFIED.

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

MADDOX, JONES and EMBRY, JJ., concur in part; dissent in part.

BEATTY, J., dissents.

MADDOX, Justice

(concurring in part; dissenting in part).

I concur that the Board’s decision to disbar Perloff should be reversed. I would make the suspension period three years, the time period Perloff would have to wait in order to request reinstatement after being disbarred.

JONES, J., concurs.

EMBRY, Justice

(concurring in part; dissenting in part).

I concur that the Board’s decision of disbarment should be reversed, but I would suspend Perloff for only one year from the date he surrendered his license to practice.

BEATTY, Justice

(dissenting):

To the members of the legal profession: Welcome to the ethics of the marketplace (anything but anything goes).


author: TORBERT, Chief Justice. FAULKNER, Justice

text:
    Robert CHANDLER v. CITY OF LANETT.
    81-271.
    Supreme Court of Alabama.
    Dec. 17, 1982.

      Donald M. Phillips, Lanett, for appellant.
    E. Drexel Meadors, West Point, Ga., for appellee.
   TORBERT, Chief Justice.

Robert Chandler, appellant herein, brought this action against the City of Lan-ett and Councilman Knowles seeking damages and reinstatement to a position equivalent to the one he had occupied prior to his dismissal. After hearing the evidence, the trial court entered an order holding: (1) the personnel policies of the City of Lanett satisfy Code 1975, § 11-43-180, which requires the City to provide a civil service merit system for its police department; (2) that the City substantially complied with the provisions of the personnel policies; and (3) that it had not been shown to the reasonable satisfaction of the Court that the City had abused its discretion in discharging Chandler, or that the City’s action was not based on substantial evidence.

At the time his employment was terminated, Chandler was serving as acting police chief. Chandler had previously been employed as an investigator and lieutenant. On October 6, 1980, John Knowles, along with other council members, and the recently elected mayor, Mac Langley, assumed office. At the City Council’s first meeting on October 6, Councilman Knowles made the motion to eliminate the job of investigator in the Police Department. He stated that this action was purely an economic move to reduce the City’s costs and that the men who were serving as investigators would be offered other jobs in the Department. The motion was unanimously carried. Councilman Knowles, who was also Chairman of the Police Committee, made the motion to elect Jimmy Smith to the position of Police Chief. This motion was unanimously carried. The next day, the newly appointed police chief told Chandler that the position of investigator held by Chandler had been abolished by the council. Evidence was presented that Chandler was offered a job with the police department as a patrolman but he refused the position. Chief Smith testified that he told Chandler to report for duty and advised Chandler that if he did not report for duty it would be understood that Chandler was leaving the Lanett Police Department to collect unemployment benefits. On October 10, Chandler received a hand-delivered letter by Chief Smith informing him he was suspended because he had failed to report for work as a patrolman. The letter also stated that Chief Smith would meet with Chandler at three o’clock p.m. on October 11. Chandler did not appear at this meeting. On October 18, the mayor sent Chandler a letter advising him that he had been dismissed, and further advising him that he had a right to a public hearing.

Subsequently, Chandler, with his attorneys, attended a hearing before the mayor and five members of the council. After the hearing, the council voted unanimously to uphold his discharge.

The first issue we address is whether the City of Lanett has complied with the legislative act requiring every municipality to provide a civil service merit system for law enforcement officers. We affirm the trial court’s judgment that the City has complied with the legislation.

In 1976, the Legislature passed Act No. 372, Acts of Alabama, 1976, Vol. 1, 471-473, codified at Code 1975, § 11-43-180 through -190. Section 11-43-182 provides:

“Every municipality shall establish, separately or jointly, a civil service merit system governing the appointment, removal, tenure and official conduct of municipal law enforcement officers.”

The City of Lanett adopted a personnel policy manual for the purpose of providing a systematic and uniform approach for the interpretation and administration of policies relating to city personnel. The manual provides rules for personnel procedure in the areas mandated by § 11-43-182. Specifically, section “O” of the manual covers the removal and discharge of city employees including policemen.

The applicable statutes clearly allow municipalities to have the option of establishing their own civil service merit system or accepting the system of the state. Lanett elected to establish its own procedures as set out in its personnel policy manual. Section “O” of the manual, dealing with procedures in the event of a discharge, covers areas such as counselling, warnings, written reports, layoffs, discharge, classification of offenses, appeals under the City’s “Complaints Policy and Procedure” contained in Section “F,” and rehiring.

It is important to note that the article does not apply to any municipality having a population of less than 5,000 people. While Lanett is covered by the statute because it has a population of approximately 7,000, it is obvious that the legislature recognized that it is not practicable or feasible that small cities and towns be required to establish and operate a civil service system that is as elaborate as the merit system of the State.

Appellant also contends that the City of Lanett denied him procedural due process and equal protection of the law in the hearing held on October 28, 1980. Appellant claims that the hearing was deficient in two respects: (1) Mayor Langley, who had earlier taken documented action against appellant prior to the appellant’s hearing, voted and participated in the hearing before the City Council and (2) Councilman Knowles admitted that he had a fixed opinion before hearing any of the evidence. The trial court did not specifically address appellant’s claim that the City of Lanett denied him due process of law and equal protection in the hearing before the City Council.

Mayor Langley’s letter addressed to Chandler and dated October 18,1980, states in part:

“The personnel policy of the City of Lan-ett states that intolerable offenses shall include, but are not restricted to, the items listed. It is my opinion that your refusal to report for work on October 8, 1980 and on October 9, 1980 without asking for or receiving permission to be absent is an intolerable offense requiring that you be discharged.
“You were suspended for failure to report to work and you have been offered the opportunity to meet with your department head, Police Chief James A. Smith, to discuss the matter. You did not appear or make any response to the offer. Chief Smith has therefore, reported the matter to me and recommended that you be discharged.
“I believe that the requirements of the personnel policy have now been complied with, and it remains for me to comply with state law. I do hereby remove you from office as a police officer of the City of Lanett, Alabama for neglect of duty and for conduct detrimental to good order and discipline.
“I shall report my act of removing you from office to the Lanett City Council at its next regular meeting on Monday, October 20, 1980.
“State Law provides that you may have a public hearing before the entire City Council before the council votes on whether or not to sustain my act of removing you. If you do not desire a public hearing, you may waive [the] same and the council may vote without a hearing.”

It is clear from the record in this case that Councilman Knowles admitted he had a fixed opinion that Chief Smith had been correct in discharging Chandler before he heard any evidence. Councilman Knowles also testified that he participated and voted in the hearing before the City Council on October 28, 1980.

The United States Supreme Court in Withrow v. Larkin, 421 U.S. 35, 46-47, 95 S.Ct. 1456, 1463-1464, 43 L.Ed.2d 712 (1975), stated, “concededly a fair trial in a fair tribunal is a basic requirement of due process. In re Murchison, 349 U.S. 133, 136, 75 S.Ct. 623, 625, 99 L.Ed. 942 (1955). This applies to administrative agencies which adjudicate as well as to courts.” The Court continued, “[N]ot only is a biased decision-maker constitutionally unacceptable but ‘our system of law has always endeavored to prevent even the probability of unfairness.’ ” Withrow v. Larkin, 421 U.S. at 47, 95 S.Ct. at 1464, quoting In re Murchison, 349 U.S. at 136, 75 S.Ct. at 625.

The City Council, although it consisted of municipal officers, was the body designated to serve as judge or arbitrator in this dispute, and thus was serving in an adjudicatory capacity when it heard the proceeding and determined to uphold the decision of Mayor Langley to terminate Chandler’s employment. In proceedings of this nature, the City Council must comply with the requirements of procedural due process by providing a fair trial before an impartial tribunal. See Ex Parte Greenberg, 395 So.2d 1000 (Ala.1981).

With regard to appellant’s first claim, we note that the fact that Mayor Langley may have had prior and independent knowledge of the dispute would not, standing alone, be sufficient to support a finding that Chandler was deprived of the opportunity for an impartial hearing. See Robison v. Wichita Falls and North Texas Community Action Corp., 507 F.2d 245 (5th Cir.1975); McKay v. McAlexander, 268 F.2d 35 (9th Cir.1959). The Court of Civil Appeals in Board of Dental Examiners v. King, 364 So.2d 311 (Ala.Civ.App.1977), rev’d on other grounds, 364 So.2d 318, on remand, 364 So.2d 319 (Ala.Civ.App.1978), stated:

“[T]he mere fact that a professional regulatory board (which has received legislative authority to investigate and adjudicate charges against members of its profession) has had prior contact with the particular individual or considered other, separate charges against him, is not sufficient, in the absence of some showing to the contrary, to demonstrate that the board members are biased.... [A] party seeking to demonstrate prejudice or antipathy on the part of one or more board members must show ... that the risk of bias is intolerably high or such that there is a substantial temptation on the part of the members sitting in their quasi-judicial capacity to pre-judge the case with regard to any issue to be presented ... . ”

364 So.2d at 317.

The case before us, however, is not one in which a member of an adjudicatory body has merely had prior contacts with the particular individual or considered previous charges against him. Mayor Langley’s letter to Chandler indicates that not only had Mayor Langley decided that Chandler was guilty of the offense in question, but he had also categorized the offense as an “intolerable offense” under the City’s personnel policy, the punishment for which was dismissal.

We believe that, under the circumstances of this case, the risk of prejudgment is intolerably high, and it raises a sufficient possibility that Mayor Langley would, consciously or unconsciously, be so committed to his prior position that he would be likely to avoid the appearance of having changed positions.

Councilman Knowles testified that he asked Chandler to resign shortly before Knowles assumed office. Conflicting evidence was presented as to whether Knowles participated in the decision to discharge Chandler after Chandler’s failure to report for duty. The record clearly indicates, however, that Councilman Knowles had reached a decision to vote to uphold the discharge of Chandler before any evidence was presented. As we have previously indicated, a showing of knowledge of a prior proceeding or facts in dispute is not, without more, sufficient to indicate bias on the part of a member of an adjudicatory body. We find that in this case the evidence went beyond mere knowledge and established the prejudgment or bias on the part of Councilman Knowles. See Ex Parte Greenberg, 395 So.2d 1000 (Ala.1981). See also, Texaco, Inc. v. FTC, 336 F.2d 754 (5th Cir.1964), vacated on other grounds, 381 U.S. 739, 85 S.Ct. 1798, 14 L.Ed.2d 714 (1965).

We conclude that the participation of Mayor Langley and Councilman Knowles in the hearing before the City Council amounted in the circumstances to a denial of due process. In light of our determination of this issue, we do not reach the other issues raised by appellant. We remand the case to the trial court with directions to enter an order consistent with this opinion.

AFFIRMED IN PART; REVERSED IN PART; AND REMANDED.

MADDOX, JONES, ALMON, SHORES, BEATTY and ADAMS, JJ., concur.

FAULKNER and EMBRY, JJ., dissent.

FAULKNER, Justice

(dissenting).

The principal issue is whether the City has complied with the legislative act requiring the City to provide a civil service merit system for law enforcement officers.

In 1976, the legislature passed Act No. 372, Acts of Alabama, 1976, Vol. 1, pp. 471-473, codified at § 11-43-180 through -190, Code 1975. Section 11 — 43-180 provides: “[Tjhis article is enacted to assure that every municipality in this state shall be provided an acceptable civil service merit system governing the appointment, removal, tenure and official conduct of its law enforcement officers.”

Section 11-43-182 provides:

“Every municipality shall establish, separately or jointly, a civil service merit system governing the appointment, removal, tenure and official conduct of municipal law enforcement officers.”

Section 11-43-183 provides:

“Any municipality failing to establish such a civil service merit system for said law enforcement officers within one year after August 23, 1976 shall, subject to approval of the state personnel board, enter into an agreement with the state director of personnel to furnish the services and facilities of the state personnel department to such municipality in the administration of its law enforcement officers on merit principals [sic]. Any such municipality of the state is hereby authorized to enter into such an agreement.”

Neither did the City of Lanett have a civil service merit system for law enforcement officers, nor had it entered into any agreement with the State of Alabama personnel board as required by § 11-43-183. But, the trial judge held that the City’s personnel policy manual satisfied the statute requiring the City to have a civil service merit system for its police department.

The statute does not permit a substitute for a civil service merit system, and, therefore, the trial court erred when it held that the City’s personnel policy manual met the requirements of a civil service merit system for law enforcement officers.

The trial court did not rule on the due process issue, and I therefore do not discuss it.

I would reverse and remand and order the City of Lanett to reinstate Robert Chandler into a position in its police department equivalent to the position held by him when he was discharged, with all pay and allowances from the date of dismissal to the date of reinstatement.


author: BRADLEY, Judge.

text:
    Fannie Louise MOORE v. Henry Hoyt MOORE.
    Civ. 3173.
    Court of Civil Appeals of Alabama.
    June 2, 1982.
    Rehearing Denied July 7, 1982.
    Certiorari Denied Jan. 28, 1983 Alabama Supreme Court 81-906.

      William Henry Agee of Agee & Ghee, Anniston, and John E. Rochester of Thompson & Rochester, Ashland, for appellant.
    George C. Simpson, Lineville, for appel-lee.
   BRADLEY, Judge.

This appeal is the result of an order by the Clay County Circuit Court denying appellant’s motion under A.R.C.P. 60(b). Appellant, Fannie Louise Moore, filed a motion seeking to have set aside a 1977 judgment of divorce arising out of appellee’s, Henry Hoyt Moore’s, motion for a default judgment under A.R.C.P. 55. On appeal appellant argues that the judgment of divorce rendered by the trial court should be set aside as void because (1) there was improper service of process, and (2) the default judgment rendered in the case was not in technical compliance with the eviden-tiary requirements of A.R.C.P. 43(a).

The facts indicate that the parties were married in 1941 and have been separated since 1965. On May 18, 1977 appellee filed a petition for divorce in the Clay County Circuit Court, alleging an irretrievable breakdown of the marriage. The summons was filed in the clerk’s office on June 3, 1977, along with a written request for service by certified mail as provided by A.R. C.P. 4.1(c). The certified letter was mistakenly addressed to “Frances Louise Moore,” although appellant’s true name is Fannie Louise Moore.

The deposition of a Lineville postal worker revealed that on June 23, 1977 the letter containing the summons and complaint was delivered to appellant. Appellant signed the return receipt and took the envelope from the postal clerk. A short time later appellant returned to the window and stated that her name was not “Frances Louise Moore,” and that she had opened the envelope by mistake. Appellant returned the opened envelope to the postal clerk, and the letter was thereafter marked “Refused” and returned to the clerk’s office. The postal worker also stated that appellant had told her that “Henry Hoyt Moore had the date of marriage wrong.” No other service was attempted.

On June 30, 1977 appellee’s deposition was taken before the register of the court. The postal worker’s deposition was taken thereafter on August 17. On August 23, 1977 appellee filed an application for default judgment, and a default was duly entered by the clerk. A final decree divorcing the parties from the bonds of matrimony was rendered by the circuit court on August 24, 1977, and a copy of the final decree was then mailed to appellant. The letter was returned to the clerk’s office marked “Refused."

Appellee thereafter filed a motion to correct appellant’s name on the decree. The correction was approved on December 22, 1977.

On May 29,1981, some three and one-half years after the entry of the default judgment, appellant filed a motion to vacate the decree on the grounds that service was never obtained and that the judgment was not in technical compliance with the rules governing default judgments, and was therefore void. The circuit court denied the motion, and appellant brings this appeal.

It is well settled that on review of the denial of a 60(b) motion, the reviewing court is limited to deciding the correctness of the order from which the appeal is taken. Raine v. First Western Bank, 362 So.2d 846 (Ala.1978). In reviewing that order, however, the court may pass on an attack against the underlying judgment. Id. In this case appellant’s motion to set aside the default judgment essentially sets out the ground that the judgment is void under A.R.C.P. 60(b)(4). We must determine if the underlying judgment is indeed void in order to review the correctness of the trial court’s denial of relief from the judgment.

Appellant first contends that the judgment of divorce is void because no service of process was ever effected. She initially contends that no service was effected because service by certified mail was improper, since no written request for service in that manner was filed with the clerk’s office. We find appellant’s contention to be in error. Contained in the record on appeal is a copy of a written request for service by certified mail, filed with the clerk’s office. Clearly, the procedural requirements of the rule were met.

Appellant also contends that no service was effected because she returned the certified letter containing the summons and complaint to the post office, marked “Refused.” Again, we cannot agree. Rule 4.1(c)(3) provides that “[s]erviee by certified mail shall be deemed complete ... from the date of delivery as evidenced by the return receipt.” The evidence is undisputed that appellant signed the return receipt and took delivery of the certified letter. According to the rule, service of process was effected at that time.

We do not feel that the error in the name designated on the summons and complaint is sufficient to invalidate the service obtained on appellant. There is no doubt in this case that the true party was served. The error is, at most, a misdescription of appellant’s first name. The name “Frances Louise Moore” designated on the summons and complaint is relatively close to appellant’s true name, “Fannie Louise Moore.” Such a misdescription is, we believe, immaterial, and does not invalidate service obtained through otherwise proper means. See Cleveland v. Pollard, 37 Ala. 556 (1861).

We would further note that appellant appears to have had actual notice of the divorce action filed against her. The purpose of service is to notify or inform the defendant of the action filed against him. Goodall v. Ponderosa Estates, Inc., 337 So.2d 726 (Ala.1976). When the certified letter was returned to the postal worker, it had been opened; appellant’s statement to the postal clerk concerning the dates of the marriage contained in the complaint indicates that appellant had read the summons and complaint and was apprised of the action being lodged against her. We are of the opinion that appellant was sufficiently informed of the nature of the action filed so as to render any alleged defect in service insignificant.

Appellant next contends that the default judgment is void because the proceeding at which the final decree was rendered did not comply with the evidentiary requirements of A.R.C.P. 43(a). Specifically, she contends that the only evidence presented to the trial court consisted of a deposition of appellee taken by the register before appellant was found to be in default, and, since she was given no notice of the taking of that deposition, the evidence is insufficient to establish a claim or right to relief under A.R.C.P. 55(e).

We find appellant’s contention to be without merit. Nowhere in the record does it affirmatively appear that the only evidence relied upon by the trial court was appellee’s deposition. The trial court’s final decree states that the court “considered the testimony” before rendering its judgment. Since no transcript of the proceeding was kept, we must assume that the trial court’s statement in its decree that testimony was taken before the court is correct. It is well recognized that testimony taken in open court meets the evidentiary requirements of A.R.C.P. 43(a).

We would also note that in the absence of any record showing what occurred or what was presented to the trial court, the reviewing court must assume that the evidence before the trial court supported its judgment. Rhea v. Rhea, 360 So.2d 1029 (Ala.Civ.App.1978). We therefore find that the action of the trial judge in entering a default judgment against appellant was supported by competent evidence.

For the foregoing reasons, we find that the 1977 default judgment entered against appellant is not void for lack of service or for failure to comply with the evidentiary requirements of A.R.C.P. 43(a). The order of the circuit court denying appellant’s motion to set aside the previous judgment was proper, and is therefore affirmed.

AFFIRMED.

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


author: HOLMES, Judge.

text:
    COASTAL REALTY AND MORTGAGE, INC., and Richard H. Hinton v. FIRST ALABAMA BANK, N.A.
    Civ. 3205.
    Court of Civil Appeals of Alabama.
    July 14, 1982.
    Rehearing Denied Aug. 11, 1982.
    George A. Tonsmeire, Jr., Mobile, for appellants.
    Mary Elizabeth McFadden Rouse of McFadden, Riley & Parker, Mobile, for ap-pellee.
   HOLMES, Judge.

Coastal Realty and Mortgage, Inc., appellant, defaulted in the repayment of a loan extended to it by First Alabama Bank, ap-pellee. The Circuit Court of Mobile County ordered the appellant to pay $3,164.22 to appellee as reasonable attorneys’ fees for the collection of the loan. Coastal appeals from the trial court’s order and this court is required to affirm.

Coastal executed a promissory note in the amount of $8,500 to the bank on February 25, 1981. Coastal was to repay the note by May 26, 1981. The note specified that Coastal would “pay all costs of collecting or. securing or attempting to collect or secure this note, including the reasonable attorney’s fees of the Bank where an attorney is consulted.”

Coastal admits, in brief, that it failed to pay the note on the date it matured. After the note became due, Coastal claims that it contacted the bank about paying the principal and interest due on the note. The bank, however, had already referred the Coastal file to the bank’s attorneys so that the collection process could begin.

Coastal apparently contacted the bank’s attorneys and was informed that the principal and interest equaled approximately $9,400. Furthermore, the bank’s attorneys advised Coastal that attorneys’ fees amounting to $3,162.59 were due pursuant to the terms of the note.

On September 17, 1981, Coastal filed a petition for declaratory judgment requesting the trial court to determine the rights and duties of the parties under the note. Specifically, Coastal asked the trial court to determine what would constitute a “reasonable attorney’s fee” under the circumstances of the instant action. Coastal averred that the $3,162.59 requested by the bank’s attorneys as their legal fees was not reasonable.

Along with its petition for declaratory relief, Coastal paid into the court $9,492.67, which approximately equaled the principal and interest then due to the bank on the note.

On the same day Coastal filed its petition, the bank’s attorneys filed a complaint against Coastal for the principal, interest, and attorneys’ fees due on the note. The record does not reveal which lawsuit was filed first nor is it relevant which lawsuit was filed first.

The trial court ordered that the bank’s suit on the note and Coastal’s action for declaratory relief be consolidated. The trial court further ordered that the sums previously paid into court by Coastal, $9,492.67, be disbursed to the bank. The trial court said that it would determine at a later date what would be reasonable attorneys’ fees payable pursuant to the note.

Coastal then propounded certain interrogatories to the bank’s attorneys. These interrogatories were apparently never answered.

On November 25, 1981, the trial court entered an order concerning the matter of attorneys’ fees. The trial court began the order by stating that “[t]his cause having come on for hearing on the 24th day of November, 1981 at a pre-trial conference, after oral argument of counsel for the parties hereto, it is ORDERED, ADJUDGED and DECREED as follows: ... ”. The court next set out the pertinent facts of Coastal’s default and then determined that $3,164.22, or one-third of the principal and interest due on the note, constituted reasonable attorneys’ fees. Coastal was ordered to pay that amount to the bank.

Coastal moved for a new trial, alleging that the trial court’s findings were not based upon any evidence and were contrary to the law. Coastal also claimed that it had been deprived of its right to a hearing of evidence upon the question of the reasonableness of the attorneys’ fees.

The motion for new trial was denied and Coastal appeals.

Coastal contends on appeal that there must be a presentation of evidence as to the reasonableness of attorneys’ fees. It is Coastal’s contention that, under the circumstances of the instant case, the trial court cannot award attorneys’ fees without an evidentiary hearing.

Coastal indicates, in brief, that the trial court made a determination of the reasonableness of attorneys’ fees even though no answers to interrogatories had been filed, no stipulations of fact were made by the parties, and no evidence was taken. According to Coastal, the trial court merely entered an order after a pretrial conference without allowing Coastal to present evidence concerning the amount of the attorneys’ fees for which it should be liable.

The bank does not specifically refute Coastal’s claims that there had been no evidentiary hearing. The bank does indicate, in brief, that attorneys for the bank along with expert witnesses for the bank were present in open court and that extensive arguments were presented by both parties.

Error on the part of the trial court will not be presumed on appeal. Pausic v. Pausic, 265 Ala. 44, 89 So.2d 522 (1956). In the instant action, the burden was on Coastal to affirmatively demonstrate from the record that an error was committed by the trial court. Roberts v. Roberts, 354 So.2d 21 (Ala.Civ.App.1978).

The record before us in this case does not support Coastal’s claim that the trial court erred by failing to hold a hearing to determine the reasonableness of the attorneys’ fees. Moreover, the trial court, in the above referenced order, specifically stated that the attorneys for the bank and Coastal appeared before the trial court at a hearing. The record reveals no objection by Coastal to the trial court’s action of treating the November 24 conference as a hearing. There is nothing in the record to indicate that Coastal did not have an opportunity to make arguments of counsel, present evidence, or arrange for the reporting of the proceedings.

This court must review the record on appeal in the light most favorable to the appellee. Sims v. Struthers, 267 Ala. 80, 100 So.2d 23 (1957); Ryals v. Laney, 338 So.2d 413 (Ala.Civ.App.1976). We note that one interpretation of the record does support Coastal’s claim that the trial court rendered an order without an evidentiary hearing. The reading of the record most favorable to the bank, however, is that the trial court did indeed have a hearing, after which it entered an order setting the amount of attorneys’ fees. On the bare record before us on appeal, this court must adopt the latter reading of the record and give effect to the trial court’s statement that a hearing was held on the issue of attorneys’ fees.

Finally, the amount of attorneys’ fees is a matter within the sound discretion of the trial court. Hampton v. Gulf Federal Savings & Loan Association, 287 Ala. 172, 249 So.2d 829 (1971); Ingalls v. Hare, 266 Ala. 221, 96 So.2d 266 (1957). There is nothing in the record to indicate that the trial court abused its discretion in awarding attorneys’ fees of $3,164.22, or one-third of the amount of the principal and interest due on the promissory note.

This case is due to be affirmed.

AFFIRMED.

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


text:
    Ormond R. GRIMES, Jr. v. Edith W. GRIMES.
    Civ. 3193.
    Court of Civil Appeals of Alabama.
    Aug. 25, 1982.
    Rehearing Denied Sept. 29, 1982.
    Certiorari Denied Jan. 28, 1983 Alabama Supreme Court 82-15.

      Robert H. King, Gadsden, for appellant.
    Rowan S. Bone, Gadsden, for appellee.
   BRADLEY, Judge.

This is a divorce case.

Ormond Grimes, Jr. and Edith Grimes were married on November 4, 1972 in Atlanta, Georgia. The parties have one child, Justin, who is now four years old. In April 1981 the husband filed for divorce on the ground of irretrievable breakdown of the marriage. The wife counter-claimed for divorce on the same ground and also on the ground of adultery.

The evidence adduced at trial showed that the husband is an orthodontist in Gadsden, Alabama. His income is approximately $80,000 a year. The wife does not work but was an elementary school teacher prior to the marriage.

Three parcels of real estate were owned either jointly or by the husband. Three other parcels were held by Goliard, Inc. of which the husband was a stockholder. A court-appointed appraiser appraised the six parcels of property at a total value of $195,-000. The parties’ marital home was valued at $65,000, making the value of the other property $130,000. Several of the parcels were encumbered by mortgages. The wife owns no separate real estate.

The husband also has a Keough retirement plan and owns stock with a $7,000 approximate value. The only other items involved are the parties’ household furnishings, jewelry, and personal items.

The husband admitted at trial that he had engaged in at least three adulterous relationships. The wife knew of these relationships but did not file for divorce. It appears that the husband filed for divorce because he wanted to marry another woman.

The trial court entered its final decree of divorce on November 6, 1981. The wife was granted custody of the parties’ child with the husband being given substantial visitation rights. The husband was ordered to pay the wife $300 a month as child support. Further, he was ordered to make the child beneficiary of life insurance in the face amount of $125,000. The wife was given possession of the marital home until such time as she should remarry or the child attains majority age. At that time the home is to be sold and the proceeds divided. The wife was awarded $157,000 as alimony in gross to be payable at the rate of $1,750 a month for twenty-four months, $1,500 a month for thirty-six months, and $1,000 a month for sixty-one months. The husband was ordered to pay the wife’s attorney $9,500 as attorney’s fees.

The husband was awarded title to all of the other real property and stocks. He also assumed all debts, including the mortgage on the marital home. After a motion for new trial was denied, the husband appealed to this court.

The husband raises four issues in this appeal. The first issue is whether the trial court abused its discretion in the award of alimony in gross and child support. The second issue is whether the trial court has imposed cruel and unusual punishment on the husband by requiring him to make his son beneficiary of $125,000 worth of life insurance. The third issue is whether the trial court erred in its award of attorney’s fees to the wife's attorney. The final issue raised is whether the trial court erred in the admission of opinion testimony by lay witnesses as to the amount of alimony needed by the wife and whether this testimony was based on inadmissible hearsay evidence. We find no error and affirm the judgment.

As to the husband’s first issue concerning the amount of alimony in gross, we state the general rule that such awards are within the sound discretion of the trial court and will not be reversed on appeal absent a showing of an abuse of that discretion. Dennis v. Dennis, 383 So.2d 187 (Ala.Civ.App.1980). In determining the size of an award of alimony in gross, the trial court may consider the following factors: parties’ future prospects, parties’ standard of living, their ages and health, length of the marriage, sources of their property, and, in appropriate situations, the conduct of the parties with reference to the cause of the divorce. Anders v. Anders, 367 So.2d 481 (Ala.Civ.App.1979).

The husband earns $80,000 a year, and the testimony indicates that he works only three days a week. He owns a substantial amount of real property even though it is heavily encumbered. The parties belonged to the country club, took nice vacations, and lived in a very good style.

The wife has a degree in education although she would need further course work to gain certification in Alabama. The testimony indicated also that she would have to obtain a master’s degree to have any chance of obtaining a teaching job at the present time. The wife stated that she does not want to work because she feels that she should be home with her child.

The husband admitted to engaging in adulterous affairs although he states that these were caused by the wife’s refusal to engage in sexual relations with him. There is no evidence of any marital misconduct on the part of the wife.

The trial court considered all of these matters and awarded the wife $157,000 as alimony in gross. The husband argues that this award is unwarranted due to his present income and the fact that the wife is unwilling to work. We, however, can find no error.

The husband has an extremely high earning capacity. Although most of his property is indebted, the appraisals show that the property has appreciated in value. The wife also has the ability to make a living. She, however, will have to go back to school to be able to obtain a teaching job.

Based on all these facts, including the husband’s misconduct, the trial court concluded that the husband did have the financial ability to make the payments to the wife as ordered. We believe the evidence supports such conclusion.

In his second issue on appeal the husband argues that the court has imposed cruel and unusual punishment on him by requiring him to make his son beneficiary of $125,000 worth of life insurance. He states this is so because he is now afraid that the wife will cause him to be killed so that the child can collect the insurance proceeds. We find that the trial court committed no error in ordering the appellant to maintain life insurance with the child as beneficiary. The trial court’s order was made with the child’s long-range security in mind. Such an order protecting the child is within the court’s power. Hardy v. Hardy, 46 Ala.App. 253, 240 So.2d 601 (1970).

The husband contends also that the trial court erred by awarding the wife’s attorney $9,500. The wife presented evidence that a reasonable attorney’s fee for the case would be $15,000. The husband presented testimony that the attorney’s fee should be only $5,000.

The award of attorney’s fees in a divorce case is within the sound discretion of the trial court. Marr v. Marr, 383 So.2d 194 (Ala.Civ.App.1980). The trial court awarded an amount of attorney’s fees which is certainly reasonable in light of the testimony presented by the wife’s witness. Based on the record in this case, we can find no error.

Finally, the husband argues that the trial court erred by admitting opinion testimony by a witness for the wife as to the amount of alimony and child support needed for the wife to maintain her accustomed standard of living. The major thrust of the husband’s argument is that this testimony was not based on the witness’s opinion and knowledge but was based on what the wife told her. He argues that such testimony is inadmissible hearsay evidence.

Our review of the record reveals that the witness for the wife stated that her testimony was based on her own personal knowledge and observations, and not on anything which she had been told by the wife. Therefore this testimony was not inadmissible hearsay evidence.

Opinion testimony of nonexpert witnesses is limited to such opinions or inferences that a trial court finds may be based on the perception of the witness. Leo v. Leo, 280 Ala. 9, 189 So.2d 558 (1966). In the present case the trial court could have found that the testimony of the wife’s witness was based on her perception and knowledge of the parties and the cost of living in the style to which the parties were accustomed. We would note also that the trial court permitted the husband to present opinion testimony as to the needs of the wife. We find no basis for the husband’s argument that this was mere hearsay.

The judgment is affirmed.

The wife has requested attorney’s fee on appeal. We grant her request and award $750 as attorney’s fees.

AFFIRMED.

HOLMES, J., concurs.

WRIGHT, P.J., recuses himself.


author: BRADLEY, Judge. HOLMES, Judge

text:
    Ewell D. SEAY v. ALABAMA POWER COMPANY.
    Civ. 3186.
    Court of Civil Appeals of Alabama.
    Sept. 8, 1982.
    Rehearing Denied Oct. 20, 1982.
    Certiorari Denied Jan. 28, 1983 Alabama Supreme Court 82-95.

      Joel M. Nomberg of Nomberg, McCabe & Fulford, Daleville, for appellant.
    G.M. Harrison for Merrill & Harrison, Dothan, and Balch, Bingham, Baker, Hawthorne, Williams & Ward, Birmingham, for appellee.
   BRADLEY, Judge.

This is a workmen’s compensation case.

Ewell D. Seay, the appellant, was employed by the Alabama Power Company from April 1980 until September 24, 1980. He worked as a security guard at the Farley Nuclear Plant.

The main duty of the security force is surveillance, and this is carried out by on-foot inspection, motor patrol, and television surveillance. The security guards on the day shift normally arrive for work at 5:30 a.m. After a thirty minute briefing, each guard goes to a post at the plant facility. The guard stays at that post for two hours and then moves to another post. The guard is not to move to the next post until he is relieved by another guard. This rotation procedure is followed every two hours for the entire twelve hour shift.

On September 24, 1980 the appellant went through the normal shift rotation procedure. After staying on a post from 10:00 to 12:00 a.m., he was to move to a building area referred to as the “nineteen line.” The guard that was to relieve appellant at 12:00 noon was fifteen minutes late; therefore appellant was late getting to the “nineteen line.”

The “nineteen line” building has approximately five flights of stairs. The guard working this post goes up each flight and checks all the doors to see if each is locked. Appellant’s inspection was to be completed by 1:00 p.m. Since appellant was late arriving at this post, he hurried through in order to meet the deadline. While making his inspection he began to feel hot and nauseated. He also experienced chest pains. Mr. Seay completed his tour of the building in forty-two minutes — three minutes before the deadline.

Appellant informed his supervisor of his condition. At first he believed the pain was caused by indigestion, but as the pain worsened and moved from his chest into his left arm, he became concerned that he was having a heart attack. As soon as someone was found to relieve him, appellant was allowed to leave the plant. He drove to the Coffee County Hospital emergency room and from there was admitted into the coronary care unit of the hospital. Appellant remained in the hospital for thirteen days.

After his release from the Coffee County Hospital, appellant commenced receiving treatment from a cardiology specialist in Dothan. The doctor released him to do light work in December 1980, and on February 3, 1981 he was released to return to his former employment. Appellant had no pri- or medical history of heart trouble, but he had experienced a good deal of what he believed to be indigestion three or four months prior to September 24, 1980.

Upon being denied workmen’s compensation benefits by Alabama Power, appellant filed an action against his employer seeking such benefits. After a hearing, the circuit court decided that appellant had not been exposed to a risk materially in excess of that to which people not so employed are exposed, nor did any exertion appellant might have experienced on the job cause or contribute to his heart attack. Appellant appeals from this decision.

The issue on appeal is whether there is any evidence in the record to support the trial court’s finding of no causal relationship between the heart attack and any on-the-job physical exertion.

Review in workmen’s compensation cases is limited to questions of law and to whether there is any legal evidence in the record to support the trial court’s findings of fact. If there is legal evidence to support the trial court’s findings, its judgment must be affirmed. Eddie Wallace’s Garage v. Arreaga, 406 So.2d 405 (Ala.Civ.App.1981); Agan v. Union Foundry Co., 404 So.2d 71 (Ala.Civ.App.1981); Falls v. Warrior Drilling & Engineering Co., 399 So.2d 854 (Ala.Civ.App.1981). Where there is conflicting testimony and there is evidence to support the trial court’s finding, those findings are conclusive. Blackmon v. R.L. Zeigler Co., 390 So.2d 628 (Ala.Civ.App.1980).

Appellant’s initial contention is that the trial court erred in its application of the law to the facts in this case. The law dealing with workmen’s compensation benefits for heart attack victims is found in City of Tuscaloosa v. Howard, 55 Ala.App. 701, 318 So.2d 729 (Ala.Civ.App.1975) and Newman Brothers, Inc. v. McDowell, 354 So.2d 1138 (Ala.Civ.App.1977).

In Newman Brothers, we said that job causation for the heart attack is divided into two parts: legal causation and medical causation. The test for legal causation is as follows:

“[I]f in the performance of the duties of the job, an employee is exposed to a danger or risk materially in excess of that to which people not so employed are exposed, and an injury occurs, such injury may be legally determined to have arisen from the job and be termed an accident.”

The trial court’s judgment clearly shows that correct principles of law were applied.

After legal causation is established, medical causation must be shown. The test is whether the conditions, dangers, or risk on the job caused or contributed to the injury.

Again in the Newman Brothers case this court said:

“Simply stated, that premise is: If in the performance of his job he has to exert or strain himself or is exposed to conditions of risk or hazard and he would not have strained or exerted himself or been exposed to such conditions had he not been performing his job and the exertion or strain or the exposure to the conditions was, in fact, a contributing cause to his injury or death, the test whether the job caused the injury or death is satisfied.”

At the hearing, appellant testified that on September 24, 1980 he had exerted and strained himself by completing the tour of the “nineteen line” building in forty-two minutes. Also he contends that due to his replacement at the prior post being late in arriving, he had to rush to complete the “nineteen line” and this rushing led to his heart attack.

Appellee introduced evidence that forty-two minutes was not a hurried pace for the completion of this task. Moreover, it was shown that appellant had completed the tour in forty-two minutes or less on other occasions. Thus, conflicting evidence as to whether the appellant had exerted himself was presented to the trial court for its resolution. Also, there was evidence that the risk of the job, walking and climbing stairs, was not such a risk or danger materially in excess of that to which people not employed as security guards are exposed. Furthermore, Dr. Sawyer, the appellant’s cardiology specialist, testified that appellant’s heart attack could have occurred while he was sitting still, that it was not the result of an occupational disease. Based on this evidence the trial court held that appellant’s heart attack was not caused by performing his job.

We conclude, therefore, that the trial court correctly applied the applicable law and that its judgment is supported by legal evidence. Its judgment is affirmed.

AFFIRMED.

WRIGHT, P.J., concurs.

HOLMES, J., concurs in the result and specially.

HOLMES, Judge

(concurs only in the result and specially).

The majority opinion, without question, correctly states the standard of review in workmen’s compensation cases. Under this limited review there is evidence to support the trial court’s ultimate conclusion. However, I feel constrained to comment that my review of the record reveals ample evidence to support a contrary result.


text:
    Theresa Wells DEAN v. John William DEAN.
    Civ. 3071-X.
    Court of Civil Appeals of Alabama.
    Sept. 15, 1982.
    Rehearing Denied Oct. 20, 1982.
    Certiorari Denied Jan. 28, 1983 Alabama Supreme Court 82-94.

      Ronald W. Wise and Ira De Ment, Montgomery, for appellant.
    W. Clark Campbell, Jr. of Azar, Campbell & Azar, Montgomery, for appellee.
   BRADLEY, Judge.

This is an appeal from a modification decree in a divorce case.

The parties were divorced on August 28, 1978. The divorce decree incorporated therein an agreement for the payment of alimony, child support and educational expenses, and the disposition of certain property.

On July 27,1981 the former husband filed a petition seeking elimination of the alimony payments or a reduction in the alimony payment by the amount of the mortgage payments he was required to make pursuant to the settlement agreement. The former husband had been required by the divorce decree to make the mortgage payments on the marital dwelling, title to which had been ordered placed in the former wife. On September 8, 1981 the former wife answered plaintiff’s petition and also filed a modification petition seeking an increase in alimony payments. Defendant alleged that she had sold the marital home and had bought a townhouse. The transaction resulted in an increase in what she had to pay out for the townhouse over what she received in the way of income. She also asked for more alimony because of a change in her physical and emotional health.

The trial court denied both the ex-husband’s petition and the ex-wife’s cross-petition.

The defendant appeals and contends that the court erred in denying her petition for modification. The plaintiff cross-appeals and says that the court erred in denying his request for a modification; that the trial court erred in admitting and considering two depositions made by the former husband and his present wife which had been made a part of the record in the original divorce action; and that the court erred in awarding the wife an attorney’s fee after denying her petition for modification. We will consider the defendant’s appeal first.

A periodic alimony award can be modified on proof of changed circumstances. Shirley v. Shirley, 397 So.2d 156 (Ala.Civ.App.1981). The party seeking a modification of such decree has the burden of proving changed circumstances. Matthews v. Matthews, 404 So.2d 692 (Ala.Civ.App.1981). A decree in a modification case is accorded a strong presumption of correctness and will not be overturned except where shown to be plainly and palpably erroneous. Lassitter v. Lassitter, 371 So.2d 918 (Ala.Civ.App.1979).

The evidence shows that prior to and subsequent to the divorce, the defendant has suffered from emotional problems and has been in the care of a physician for this condition. Despite these problems the defendant has held several jobs. Her last job was terminated not because of her personal problems but because her employer lacked the funds to continue her employment. The psychologist who had been treating her testified that she would be able to hold certain type jobs, particularly if she stopped taking the medication prescribed by a physician she was seeing. The psychologist was of the opinion that part of defendant’s problem was the medication she was taking. He also suggested that defendant needed to undergo counseling and to get a job.

Defendant also introduced evidence to the effect that she sold the marital home to which she had been given title and purchased a townhouse. The purchase of the townhouse amounted to a net increase in her expenses of about $60 per month. However, it must be noted that defendant was given title to the marital home and the plaintiff was required to make the mortgage payments. Had defendant not sold the marital home and purchased the townhouse, she would not have incurred this additional expense.

Based on the evidence received by the trial court, we cannot find that it plainly and palpably erred in denying defendant’s request for modification of the alimony award.

In his cross-appeal, plaintiff argues first that the trial court erred when it refused to modify the alimony award by reducing the amount he was required to pay to his former wife. In the alternative, he argues that he should be relieved of the requirement that he continue to make the mortgage payments since defendant has sold the house.

As we have just stated above, the burden is on plaintiff to convince the court that there has been a sufficient change in circumstances to warrant a change in the alimony award. The trial court was not convinced that circumstances had changed so as to require a reduction in the alimony payments. We agree.

The evidence shows that plaintiff’s income is about the same as it was when the divorce was granted; hence, no significant change as to ability to pay. Moreover, defendant’s needs for periodic alimony had not decreased; if anything they had increased slightly. Therefore, the trial court properly refused to reduce the periodic alimony payments.

Plaintiff next says that if the alimony payments are not to be reduced he should not be required to continue making the mortgage payments.

The divorce decree incorporated an agreement of the parties whereby it was stipulated that title to the marital home was to be reposed in the defendant and the plaintiff was to make the mortgage payments. This may be considered by the trial court as a property settlement. McEntire v. McEntire, 345 So.2d 316 (Ala.Civ.App.1977). When the disposition of property is considered by the trial court to be a property settlement, such a decision cannot be modified after the lapse of thirty days. DuBoise v. DuBoise, 275 Ala. 220, 153 So.2d 778 (1963). In the case at bar the trial court denied the request for modification of the property disposition in the divorce decree without stating the basis for such decision. Inasmuch as the property settlement in the divorce decree could be considered a property settlement by the trial court, the denial of the modification petition was not error.

Plaintiff’s next contention is that the trial court erred by admitting into evidence two depositions, one by plaintiff and the other by the woman he later married, which had been presented to the court and made a part of the record in the original divorce proceeding.

Although plaintiff argues that the consideration of these two depositions by the trial court in arriving at its decision to deny defendant’s modification petition amounted to reversible error, he cites no authority in his brief for this proposition as required by rule 28(a)(5), Alabama Rules of Appellate Procedure. We, therefore, will not consider this issue. First Shelby National Bank v. Mitchell, 406 So.2d 959 (Ala.Civ.App.1981); Blair v. York Engineering Co., 380 So.2d 878 (Ala.Civ.App.1980).

Finally, plaintiff argues that the trial court erred in awarding the defendant an attorney’s fee even though the court refused her relief. Again, plaintiff has failed to cite this court to any authority for his proposition, and this issue will not be considered. First Shelby National Bank v. Mitchell, supra.

For the reasons set out above, the refusal of the trial court to modify the divorce decree as requested by both the plaintiff and defendant is upheld and its judgment is affirmed.

Both the appellant and cross-appellant have requested the award of an attorney’s fee by this court. Both requests are denied.

AFFIRMED.

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


text:
    GOODYEAR TIRE & RUBBER COMPANY v. Robert CORFMAN. GOODYEAR TIRE & RUBBER COMPANY v. Joy Elizabeth MANN. GOODYEAR TIRE & RUBBER COMPANY v. James Polk WHORTON, Jr.
    Civ. 3241, Civ. 3247 and Civ. 3247A.
    Court of Civil Appeals of Alabama.
    Oct. 27, 1982.
    Rehearing Denied Nov. 24, 1982.
    Certiorari Denied Jan. 28, 1983 Alabama Supreme Court 82-253.
    James D. Pruett of Pruett & McWhorter, Gadsden, for appellant.
    Clarence F. Rhea and Donald R. Rhea of Rhea, Boyd & Rhea, and Dave Carnes, Gadsden, for appellee.
   HOLMES, Judge.

This is a workmen’s compensation case.

Three appeals have been consolidated here because the issues are the same in each case.

The dispositive issues on appeal are (1) whether the trial court erred in finding a certain percent of loss of ability to earn when it was shown that the employees’ post-injury earnings were as much or more than their average weekly earnings before the injury, and (2) whether the employer should have been allowed a “credit” for post-injury earnings.

The facts are not in dispute. All three employees were injured on the job. Two suffered severe back injuries that left them permanently partially disabled and the third developed a serious allergy in the course of his employment.

After each had recovered sufficiently, they all went back to work for their previous employer at the same or higher wages.

The trial court found specifically that employee-Mann had suffered a 50% loss of ability to earn, and that employee-Corfman had suffered a 70% loss, and that employee-Whorton had suffered a 15% disability.

Employer’s only dispute is with the computation of the award.

Before considering the employer’s specific contentions, we note that in workmen’s compensation cases the trial court’s finding is conclusive if there is any evidence in the report that will support it. Legg v. Americold Compressor Co., 336 So.2d 1121 (Ala.Civ.App.1976); Purser Steel, Inc. v. McEwen, 47 Ala.App. 263, 253 So.2d 56 (1971). This court can consider neither the weight nor the propriety of the trial court’s finding of fact. Our inquiry is limited to a determination of whether there is any evidence to support the trial court’s finding. Kroger Co. v. Millsap, 280 Ala. 531, 196 So.2d 380 (1967); Tidwell Industries, Inc. v. Kennedy, 410 So.2d 109 (Ala.Civ.App.1982); Legg v. Americold Compressor Co., supra.

I

The employer’s first contention, through able counsel, is that the trial court erred in applying the formula used to compute awards of non-scheduled permanent, partial injuries found in Ala.Code § 25-5-57(a)(3)(g) (1975). The award is determined by 66%% of the difference between the average weekly earnings of the employee at the time of the injury and the average weekly earnings he is able to earn in his partially disabled condition.

It is employer’s contention that post-injury earnings should determine the employee’s ability to earn in his partially disabled condition. Under this theory, if the employee’s post-injury earnings equal or exceed his average weekly earnings at the time of the injury there is no loss of capacity to earn and, therefore, no need to compensate the injured employee since awards under § 25-5-57(a)(3)(g) are based on loss of earning capacity. Simply stated, the employer contends that what an employee actually earns is what he is able to earn in his partially disabled condition.

This theory is not the law in Alabama. An apparently identical argument was advanced by the same employer involved in the instant appeal in Goodyear Tire & Rubber Co. v. Downey, 266 Ala. 344, 96 So.2d 278 (1957). In rejecting that argument the supreme court stated:

“It is insisted by the company that since the evidence shows that plaintiff, after his injury, received the same salary which he received prior thereto, that this excludes the idea that his ability to earn has been decreased as a result of his disability. While this might presumptively indicate that his ability to earn has not been impaired, the mere fact that his employer pays him the same earnings in his disabled condition as it did before he was injured is not the sole determining factor. The statute does not prescribe comparative wages received before and after the injury as the test of the employee’s ability to earn. Instead, the test is the difference between the average weekly earnings at the time of the injury and the average weekly earnings the employee ‘is able to earn in his partially disabled condition’. It seems to us that this clearly excludes any notion of limiting the determination of a loss in ability to earn to the one question of wages actually earned after the injury as compared with those earned before. There are other factors which may be considered.”

266 Ala. at 347, 96 So.2d at 280-81.

This issue has also been settled in Bell v. Driskill, 282 Ala. 640, 213 So.2d 806 (1968); Alabama By-Products Co. v. Landgraff, 248 Ala. 253, 27 So.2d 215 (1946); Nashville Bridge Co. v. Honeycutt, 246 Ala. 319, 20 So.2d 591 (1945); Agricola Furnace Co. v. Smith, 239 Ala. 488, 195 So. 743 (1940); Abex Corp. v. Coleman, 386 So.2d 1160 (Ala.Civ.App.1980); Ohio Ferro-Alloys Corp. v. Whaley, 366 So.2d 287 (Ala.Civ.App.1979); Florence Enameling Co., Inc. v. Jones, 361 So.2d 564 (Ala.Civ.App.1978); Federal Mogul Corp. v. Moses, 341 So.2d 162 (Ala.Civ.App.1976); Brooks v. Crimson Homes, Inc., 51 Ala.App. 252, 284 So.2d 279 (1973); B.F. Goodrich Co. v. Martin, 47 Ala.App. 244, 253 So.2d 37 (1971).

A review of the record reveals that there was evidence for the trial court to consider concerning “other factors” bearing on the ability of the employees to earn in their disabled condition. This court has held that there are many factors which would indicate that post-injury earnings are an unreliable basis for estimating earning capacity. Such things including, but not limited to, increases in general wage levels, employee’s greater maturity, additional training, longer hours worked, the temporary and unpredictable character of post-injury earnings, all have an impact on post-injury wages. Abex Corp. v. Coleman, supra; Florence Enameling Co. v. Jones, supra.

In one of the cases involved in this appeal, the employee had been trained and employed at essentially the same job for almost twenty years. This job required frequent heavy lifting and physical exertion. After his injury and extensive surgery in an effort to correct the problem, the employee went back to work at the same job. There was evidence presented at trial that tended to show that the employee is in constant pain while at work and that his-ability to bend and stretch has been severely limited. There was also testimony to the effect that the employee’s physical ability to continuously perform at his particular job was in doubt. All of the above, plus the fact that the employee worked some overtime and that wages have generally gone up since his injury in 1977, provide evidence to uphold the trial court’s decision.

In one of the other cases, the temporary and unpredictable character of the employee’s post-injury earnings is evident from the fact that her job was as a temporary replacement for another employee who was sick. Obviously, this could have some impact upon her post-injury earnings.

The third case involved an allergy that was unpredictable in that neither recovery nor control of the affliction would be determined as a certainty. This would have a definite bearing on the reliability of the employee’s post-injury earnings. This allergy limited the employee to certain jobs in certain areas. The fact that the employee continues to work in an environment where he could be subject to another attack indicates the temporary and unpredictable nature of his post-injury earnings.

Based on the above, we find that the trial court did not err in determining the ability to earn in disabled condition or in applying it to determine the amount of the award.

II

Next, the employer contends (or interwoven with his first contention) that Goodyear should be allowed a credit for post-injury earnings by the employees in weeks accrued to the date of the orders and for the unaccrued weeks. We disagree.

There is no statutory authority that provides for a credit for post-injury earnings where the employee is partially disabled. A. Larson, Workmen's Compensation Law, Vol. 2, § 57.40, finds that most jurisdictions allow credit in only limited circumstances, and that several states do not allow credits under any circumstances.

Those jurisdictions that do allow a credit base their decision on the premise that the employer and the employee intend that the payment of wages would be in lieu of compensation. Whether such an intention exists is usually inferred from the circumstances surrounding the payment. If the employee actually earns his wages, that is a dollar’s worth of work for a dollar’s pay, then the payment of wages to the injured employee is not in lieu of compensation.

In the instant cases there is no evidence that post-injury wages were intended to be in lieu of compensation and there is no evidence that the employees did not earn their wages. In fact, there is evidence that the employees did earn their wages by giving their employer its money’s worth in labor.

For the above reasons, we find that the trial court did not err in refusing to allow the employer to credit post-injury earnings against the compensation award. Therefore, this case is due to be and is affirmed.

AFFIRMED.

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