author: BEATTY, Justice.

text:
    Ex parte BAGBY ELEVATOR & ELECTRIC COMPANY, INC., a corporation. In re BAGBY ELEVATOR & ELECTRIC COMPANY, INC., a Corporation v. Orlin BUZBEE, d/b/a Buzbee Contracting Company and Balboa Insurance Company.
    79-125.
    Supreme Court of Alabama.
    April 4, 1980.

      Ernest W. Weir, Birmingham, for petitioner.
    Robert B. Huie, Birmingham, for respondents.
   BEATTY, Justice.

This Court granted certiorari to review the action of the Court of Civil Appeals 383 So.2d 170 in affirming the trial court’s grant of summary judgment to the respondents/defendants. We reverse and remand.

The facts of this case revolve around the execution and performance of a construction contract awarded to respondent/defendant Orlin Buzbee, d/b/a Buzbee Contracting Company (hereinafter Buzbee), by the Industrial Water Board of the City of Birmingham. The contract contemplated the construction of various improvements to the Water Board’s Sipsey and Cane Creek Pumping Stations, and was awarded to Buzbee on the basis of certain plans and specifications. The improvements were aimed at enhancing the distribution of drinking water to residents of the City of Birmingham, and for use by industrial consumers. As security for its performance, Buzbee executed a labor and material payment bond to the Water Board, with re-spo'ndent/defendant Balboa Insurance Company (hereinafter Balboa) being named as surety.

Prior to any performance under the contract, Buzbee subcontracted the work to the petitioner/plaintiff Bagby Elevator & Electric Company, Inc. (hereinafter Bagby). Bagby engaged in and completed performance under the contract, with all the work being done in a good and worknianlike manner and in full accord with the specifications of the original agreement. Bagby thereafter filed suit against Buzbee and Balboa for work and labor done, and for the recovery of reasonable attorney’s fees.

The action commenced by Bagby never proceeded to trial. Instead, the action was dealt with summarily, as the trial court responded to the parties’ respective motions for summary judgment. Bagby made its initial motion for summary judgment on May 26, 1978, requesting judgment on the original claim, for interest thereon, and for an award of. reasonable attorney’s fees. The motion was based solely upon the pleadings of the parties and requests for admissions made by Bagby and served upon each of the respondents pursuant to the provisions of Rule 36, ARCP. The request for admissions concerned the question whether the terms of the original contract, or the specifications upon which Buzbee was awarded the contract, required Buzbee to furnish a bond in accordance with the provisions of Code 1975, § 39-1-1. That section provides, in part, that a contractor entering into a contract with any public work must execute a bond guaranteeing the payment of materialmen, subcontractors, laborers, etc., and the payment of attorney’s fees for successful claimants on the bond. It is uncontradicted that these bond requirements do not apply to the present parties as a matter of law. Although the work performed by Bagby might realistically be classified as a public work, industrial development boards like the Industrial Water Board of the City of Birmingham are not subdivisions of the state. George A. Fuller Co. v. Vulcan Materials Co., 293 Ala. 199, 301 So.2d 74 (1974). Even so, the parties were fully entitled to contract in contemplation of the statute, and with full recognition that any bond to be provided must comply with its terms. If the parties did so contract, it would appear that Bagby would be entitled to recover each of the items it claimed; if not, it is very unlikely that Bagby could establish its entitlement to recover attorney’s fees. As a result, an affirmative response to Bagby’s requests for admissions would have been highly beneficial to its cause of action.

The responses to the requests for admissions by the respondents were conflicting. Buzbee, the original contractor, failed to respond to the request, thereby admitting the matter by operation of law. Rule 36(a), ARCP. Balboa, on the other hand, entered a conditional denial. It stated that on the basis of those portions of the contract and specifications in its possession, Buzbee was not required to execute a bond of the type referred to in the request for admission. The trial court was thus faced with divergent responses from one in privity of contract and one involved only as a surety.

After reviewing the pleadings and these responses, the Court partially acceded to Bagby’s May 26th motion, granting Bagby summary judgment on the original claim for work and labor done. It specifically ordered that issues concerning the award of attorney’s fees and the assessment of interest be reserved for trial.

On July 6, 1978, Balboa filed its initial motion for summary judgment, contending that it was entitled to judgment as a matter of law on the attorney’s fees issued. This contention was necessarily based on the argument that the provisions of Code 1975, § 39-1-1, did not apply to the parties since the Water Board was not a subdivision of this state. In response to the motion, Bagby revived its previous efforts and filed a counter-motion for summary judgment on both of the remaining issues. Like Bagby’s original motion, these motions were based solely upon the pleadings and the requests for admissions. The motions of both parties were overruled on July 20, 1978, and the case was set for trial before a jury on March 21, 1979.

Neither party was content' with the July 20th order. As a result, they reasserted their respective motions prior to trial. This time the court responded by conducting a pre-trial hearing. After that hearing, the court granted summary judgment for Bag-by on the issue of interest and for Balboa on the issue of reasonable attorney’s fees. Bagby appealed the grant of summary judgment to the Court of Civil Appeals and contended summary judgment was improper on the issue of attorney’s fees. On appeal, the Court of Civil Appeals affirmed the trial court’s order. We granted this writ of certiorari to review that action.

Summary judgment is a procedural process which is governed exclusively by the provisions of Rule 56 of the Alabama Rules of Civil Procedure. During the almost seven years in which that Rule has been in effect in Alabama, it has been seriously studied by this Court on numerous occasions. It is now well-settled that summary judgment is proper only in those instances wherein there exists no genuine issue of material fact and the moving party is entitled to judgment as a matter of law. Imperial Group, Ltd. v. Lamar Corp., 347 So.2d 988 (Ala.1977); Loveless v. Graddick, 295 Ala. 142, 325 So.2d 137 (1975). Otherwise stated, the moving party must be able to prove that on the basis of relevant information presented to the court (i. e.) pleadings, affidavits, depositions, answers to interrogatories, admissions, etc.) there are lacking any discernible circumstances under which the nonmoving party might be able to recover. Ragland v. Alabama Power Co., 366 So.2d 1097 (Ala.1978); Harbour v. Colonial Fast Freight Lines, 336 So.2d 1100 (Ala.1976). These tests govern our action in passing upon the propriety of the trial court’s ruling. It must be asked whether there are (1) any genuine issues of material fact on the issue of attorney’s fees; or (2) any conceivable circumstances under which Bagby might be able to recover attorney’s fees.

In determining the existence or absence of any genuine issue of material fact, we are limited in our review to the same factors considered by the trial court in initially ruling on the motion. Chiniche v. Smith, 374 So.2d 872 (Ala.1978); Tolbert v. Gulsby, 333 So.2d 129 (Ala.1976). In the present case, this means that we can look only at the pleadings filed by the parties and the confusing responses of the respondents to Bagby’s requests for admissions. The trial court and the Court of Civil Appeals did not believe that these items raised any material issue of fact. We disagree.

In considering the pleadings and admissions it must be recognized that the scintilla evidence rule applies. Pursuant to the scintilla rule, courts are bound to allow factual questions to go to the jury if the evidence or any reasonable inference therefrom contains the merest gleam, glimmer, spark, the least particle or the smallest trace in support of the theory of the complaint. Draughon v. General Finance Credit Corp., 362 So.2d 880 (Ala.1978); Elba Wood Products, Inc. v. Brackin, 356 So.2d 119 (Ala.1978). We find a scintilla of evidence in support of Bagby’s claim in the contradictory responses of the respondents, Buzbee and Balboa, to the requests for admissions. On the one hand there was an admission that § 39-1-1 was contemplated by the parties from one who was a party to the original contract. He surely knows what the terms of the original contract were, and his admission, by virtue of Rule 36(b), ARCP, has the effect of conclusively establishing the issue unless the trial court permits him to withdraw the same. On the other hand, we are confronted with a denial from one who was not a party to the contract. We find it significant that this denial is conditional, based upon the admittedly limited information in the surety’s possession. We feel the conflicting responses do produce at least a scintilla of evidence that the parties contracted for a bond in compliance with Code 1975, § 39-1-1; we perceive in Buzbee’s admission discernible circumstances under which Bagby might support its claim for attorney’s fees; and we perceive a genuine issue of material fact on what type of bond was contemplated by the parties. This being determined, the action of the Court of Civil Appeals in affirming the trial court’s grant of summary judgment on the issue of attorney’s fees is due to be reversed and remanded.

REVERSED AND REMANDED.

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

BLOODWORTH and ALMON, JJ., not sitting.


source: Caselaw Access Project

author: BRADLEY, Judge.

license: Public Domain

text:
    BAGBY ELEVATOR & ELECTRIC COMPANY, INC., a corporation v. Orlin BUZBEE, d/b/a Buzbee Contracting Company, and Balboa Insurance Company.
    Civ. 1863.
    Court of Civil Appeals of Alabama.
    April 30, 1980.
   BRADLEY, Judge.

Upon remand to this court by the Supreme Court of Alabama, 383 So.2d 173, it is considered that this cause should be reversed in accordance with the opinion rendered by the supreme court on April 4, 1980 in the above cause, and remanded to the Circuit Court of Jefferson County for further proceedings.

REVERSED AND REMANDED.

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


author: HOLMES, Judge.

text:
    Ernest FALKNER, III v. BANK OF the SOUTHEAST.
    Civ. 2048.
    Court of Civil Appeals of Alabama.
    Oct. 24, 1979.
    Rehearing Denied Nov. 21, 1979.
    J. N. Holt of Holt & Cooper, Birmingham, for appellant.
    Erie Pettus, Jr. of Rives, Peterson, Pet-tus, Conway, Elliott & Small, Birmingham, for appellee, Bank of Southeast.
    D. Paul Jones, Jr., H. Hampton Boles, Birmingham, for Central Bank of Birmingham, amicus curiae.
    George F. Maynard, Birmingham, for First Nat. Bank of Birmingham, amicus curiae.
    Richard A. Lawrence of Fuller & Lawrence, Montgomery, for Gary Wayne Fuller, amicus curiae.
   HOLMES, Judge.

Defendant appeals from the dismissal of his counterclaim.

The dispositive issue is whether § 5-19-3, Code of Ala.1975 (Mini-Code), interest rates apply to what defendant terms “noncon-sumer” loans. The Circuit Court of Jefferson County determined as a matter of law that Mini-Code interest rates do apply to “nonconsumer” loans and dismissed the defendant’s counterclaim. We affirm.

Plaintiff sued defendant for the balance due, after default, on two notes executed for the purchase of an automobile. Defendant' denied liability and filed a counterclaim on a third note. The counterclaim was designated as a class action. Defendant alleged that the interest charged on this note was usurious because the automobile was purchased in a credit sale for business use and not for consumer use. Put another way, defendant argues that § 8-8-1, Code of Ala.1975, is the controlling statute where a loan for business purposes is involved and that therefore the higher interest rate allowed under § 5-19-3 is usurious in such a transaction. Defendant claimed recovery for such non-allowable interest.

Section 5-19-3, in pertinent part, states:

(a) The maximum finance charge for any loan or forbearance and for any credit sale, except under open-end credit-plans, may equal but may not exceed the greater of the following: (Emphasis supplied.)

Defendant, through able counsel, urges this court to hold § 5-19-3 does not apply in this instance. This, we are not prepared to do.

The plain language of § 5-19-3 indicates that it applies to any loan and any credit sale made by a creditor as defined in the Mini-Code. It does not matter whether the debt is for business purposes or personal use. Therefore, defendant’s contention is without merit. It is well settled that where statutory language is plain and unambiguous, the statute should be given the meaning therein plainly expressed. See, Mobile County Republican Executive Committee v. Mandeville, Ala., 363 So.2d 754 (1978).

Some sections of the Mini-Code are expressly limited to what can be termed consumer or non-business transactions. On the other hand, a number of its sections, in addition to § 5-19-3, are not so limited. Had the legislature intended for § 5-19-3 to be limited to consumer transactions, it would have so stated.

Analogously, this court recently decided that the Mini-Code applies to state-chartered credit unions. McCartha v. Iron and Steel Credit Union, Ala.Civ.App., 373 So.2d 328 (1979). Our conclusion was based upon § 5-19-1(3) which states the provisions of the Mini-Code shall apply to any creditor. As the same broad language is used in § 5-19-3 it would be obviously inconsistent for us to construe it to cover only consumer loans.

In McCartha, supra, we were also faced with an inherent conflict between two statutes regulating interest rates. We there held that § 5-19-3 impliedly repealed those provisions of the Credit Union Act controlling the maximum legal interest state-chartered credit unions could charge. See, § 5-17-18, Code of Ala.1975.

In deciding McCartha, we turned to Fletcher v. Tuscaloosa Federal Savings & Loan Ass’n., 294 Ala. 173, 314 So.2d 51 (1975), where the Supreme Court of Alabama held that § 5-19-3 repealed by implication the repugnant provisions of § 8-8-1 as regards real estate mortgage loans. There, as here, we find the logic of Justice Almon compelling. He stated:

[T]he legislature intended the “finance charge” provision of the Mini-Code to be the sole indicia of what constitutes the maximum legal amount allowable for the use of money loaned thereunder . 294 Ala. at 178, 314 So.2d at 55.

Clearly, the loan transaction in the instant case comes within the purview of § 5-19-3. If this type of transaction was once controlled by § 8-8-1, that is no longer true.

Certain constitutional questions raised by one of the amicus curiae are not properly before this court and will not be considered.

This case is due to be affirmed,

AFFIRMED.

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


author: TORBERT, Chief Justice.

text:
    Ex parte Ernest FALKNER, III. In re Ernest FALKNER, III v. BANK OF the SOUTHEAST.
    79-192.
    Supreme Court of Alabama.
    May 9, 1980.
   TORBERT, Chief Justice.

WRIT QUASHED AS IMPROVID.ENTLY GRANTED-NO OPINION.

All the Justices concur, except BLOOD-WORTH, J., not sitting.


author: PER CURIAM.

text:
    Ex parte BOARD OF ZONING ADJUSTMENT OF HUEYTOWN, Alabama. (Re Robert Warren, et al. v. Board of Zoning Adjustment of Hueytown, Alabama).
    Civ. 1925.
    Court of Civil Appeals of Alabama.
    Dec. 5, 1979.
    Rehearing Denied Jan. 9, 1980.

      S. Allen Baker, Jr. of Balch, Bingham, Baker, Hawthorne, Williams & Ward, Birmingham, for petitioner.
    E. L. Brobston of Brobston & Brobston and Lipscomb & Lipscomb, Bessemer, for respondent.
   PER CURIAM.

The petitioner, Board of Zoning Adjustment of Hueytown, Alabama, hereinafter referred to as the “Board,” petitions this court for a writ of certiorari or in the alternative for a writ of mandamus to be issued to. Judge Walter Bridges of the Tenth Judicial Circuit, Bessemer Division, directing him to correct his pre-trial order so that it will reflect the issue before the Board of Zoning Adjustment of the City of Hueytown to be an application by the Alabama Power Company for “permission to remodel and enlarge the substation located on Lots 3, 4, 5 and 6 in Block 101,” rather than a request for a use variance.

On January 13, 1976 the Alabama Power Company applied to the Board of Zoning Adjustment of Hueytown for a “Variance to terms of Zoning Ordinance” to allow it to construct a “Distribution Substation” on “Lots 3, 4, 5 & 6 in Block 101, Bessemer North Highlands Subdivision.”

Petitioner says that this variance is requested under the authority vested in the Board by Sec. 781, Title 37, Code of Ala. and says further that the variance hereby requested from the terms of the Zoning Ordinance will not be contrary to the public interest because, owing to special conditions, a literal enforcement of the provisions of the Ordinance will result in unnecessary hardship and if granted the spirit of the Zoning Ordinance shall be observed and substantial justice done.

At its first hearing after the application was filed, /. e. March 4, 1976, the Board said, in pertinent part:

The last case to come before the Board was that of the Alabama Power Co. requesting a variance to enlarge their substation located at lots 3, 4, 5 & 6 in Block 101 Bessemer North Highlands .
Mr. E. K. Wilson, Divisional Manager for Alabama Power addressed the Board and stated just what the exact plans for the enlargement of this substation were. .
Mr. Robert Warren . . . addressed the Board and Stated that he was in opposition to this substation being enlarged

At the Board’s second meeting, i. e. March 25, 1976, it said, in part:

The Board of Zoning Adjustment of the City of Hueytown met in special session at the site of the proposed .addition to the Alabama Power Co. substation [located at] Lots 3, 4, 5, 6 in Block 101 Bessemer North Highlands .

At the Board’s third meeting, /. e. April 1, 1976, it said, in pertinent part:

Mr. Densmore reviewed the agenda and called the Board’s attention to the only case on the agenda, that of Alabama Power Co. requesting a variance to enlarge the substation located on Brooklane Dr., Lots 3, 4, 5 & 6 Block 101, Bessemer North Highlands . .
. Mr. E. K. Wilson, Divisional Manager of Operations for Alabama Power Co. . stated that due to growth in the area, it was necessary that this substation be enlarged to meet the demand.
Mr. Raymond Walker . . . stated his opposition to this substation being enlarged .
. Mr. Densmore stated that the requested variance was not granted due to lack of a motion.

At the Board’s May 6,1976 meeting, it said, in pertinent part:

Mr. Roberts reviewed the agenda and called the Board’s attention to the only case on the agenda, that of Alabama Power Company. .
. Mr. Roberts asked the Secretary to read portions from the Zoning Ordinance. These portions being: Section 2:72 Public Utility, Section 2:89 Use, Non-Conforming, Section 2:90 Variance, Section 3:05 Boundaries of Zones, Section 3:28-8 Electromagnetic Interference, Section 4:01-2 Uses Permitted on Appeal.
BE IT RESOLVED BY THE CITY BOARD OF ZONING ADJUSTMENT, HUEYTOWN, ALABAMA, AS FOLLOWS:
1. That the application of Alabama Power Company requesting permission to remodel and enlarge the sub-station located on lots 3, 4, 5 & 6 in Block 101, Bessemer North Highlands Subdivision be and the same hereby is granted by the Board of Zoning Adjustment.

Subsequent to the Board’s decision, the landowners who opposed the Power Company’s application appealed to the Circuit Court of Jefferson County, Bessemer Division, seeking a jury trial. The appeal was heard and the jury found for the landowners. There was an appeal to this court.

The contention of the Power Company on appeal was that it was seeking a building permit to enlarge and remodel its existing distribution substation in Bessemer North Highlands, whereas the contention of the landowners was that the Power Company was seeking a use variance to permit it to undertake certain construction at its North Highlands substation. We concluded, as did the parties, that the trial court had treated the Power Company’s application to the Board as a request for a use variance rather than a request for a building permit, and, therefore, the trial court did not err in refusing to admit into evidence the transcript of the proceedings before the Board relating to the Power Company’s request for permission to undertake construction at its North Highlands substation.

The supreme court, on certiorari, reversed the decision of this court, holding that the trial court had committed reversible error in refusing to admit into evidence the transcript of the proceedings before the Board relating to the Power Company’s application.

In its opinion the supreme court said:

It appears, and the Court of Civil Appeals found, that in the circuit court the parties and the court proceeded under the theory that Alabama Power was seeking a variance to the zoning restrictions and not making application for a building permit. The distinction is in the test to be applied in the determining whether either a variance or permit is granted. Under the applicable zoning ordinances, it is incumbent upon the party seeking a variance to show that its denial would cause “undue hardship,” while in applying for a building permit, the applicant need only show that the building is “reasonably necessary for the public convenience or welfare.” The burden upon the applicant is undeniably higher when seeking a variance.
The Court of Civil Appeals is correct in holding that the trial de novo should proceed on the same issues raised in the proceeding before the Board of Zoning Adjustment, and it is correct in holding that “. . . one of the reasons for the requirement that a transcript of the proceedings before said board be certified to the court is fo inform the court of the issues involved.”
The critical question, therefore, is: “what issues were actually presented to the Board of Zoning Adjustment?” .
The nature of the proceeding before the board is critical because under the old Title 37, Section 783, Code of Ala.1940, (Recomp.1958) [§ 11-52-81 Code of Ala. 1975], an appeal to the circuit court contemplated a trial de novo, where the judge or jury, if one is demanded, sat as a Zoning Board and “. . . the scope of inquiry is the same as that before the board of zoning adjustment from which the adverse decision was appealed.” .
It is undisputed that what the Power Company wanted to do was to enlarge and remodel its. substation and that the Board of Zoning Adjustment granted it permission to do so. It is also undisputed that a substation was a permitted use in a R-2 zone.
We do not make a finding relative to what issue was actually presented in the proceedings before the Board of Zoning Adjustment, but we would point out that it would appear to be unnecessary to require a zoning variance if a use did not violate a permitted use.
The Board of Zoning Adjustment strongly insists that the proceeding before it was for a special use, not a variance. .
We do not hold that the issue before the Board of Zoning Adjustment was as contended by it. We do hold that a circuit court is without power to change the issue on appeal de novo.
Under Rule 16, ARCP, the parties should be able to stipulate what issues were presented to the Board. If they cannot resolve that question, then the trial court should make a finding, based on the certified copy of the proceedings before the Board, what the real issue was. [Emphasis and brackets theirs.]

On remand the trial court entered a pretrial order stating:

2. It is ruled by the court from the minutes of the Board of Zoning Adjustment of the City of Hueytown, Alabama, on March 4,1976, March 25, 1976, April 1, 1976, and May 6, 1976, and that the issue which was before the Board at that time, which is the issue in this case now is as follows:
Should the Alabama Power Company be granted a variance to enlarge their substation located at Lots 3, 4, 5 and 6 in Block 101, Bessemer North Highlands, Section 32, Township 18 South Range 4 West?

On June 6, 1979 the Board filed a petition for writ of certiorari or in the alternative for a writ of mandamus requesting that Judge Bridges be required to show cause why he should not frame the issue in the pre-trial order as stated in the resolution of the Board of Zoning Adjustment of Huey-town.

On June 15, 1979 Judge Bridges filed an answer to the petition and order to show cause. In his answer he stated that he acted under instructions from the Alabama Supreme Court. Judge Bridges further stated that:

[A]fter a hearing at which the parties could not agree, the court then took the copy of the proceedings before the board, including a copy of the Alabama Power Company’s application, the minutes of the meetings of the Zoning Board of Adjustment of Hueytown'and those sections of the Zoning Ordinance as set forth as having been read at the meeting of May 6, 1976, and the court then made its determination after considering the whole record in compliance with the order of the Alabama Supreme Court.

The issue before this court is whether Judge Bridges erred in his effort to comply with the supreme court’s mandate.

Although the supreme court said that the trial court should find the true issue if the parties were unable to agree thereupon, it also said that:

It is undisputed that what the Power Company wanted to do was to enlarge and remodel its substation and that the Board of Zoning Adjustment granted it permission to do so. It is also undisputed that a substation was a permitted use in a R-2 zone. [Emphasis theirs.]

The supreme court further said that “it would appear to be unnecessary to require a zoning variance if a use did not violate a permitted use” (emphasis theirs). All of this leads us'to conclude that the supreme court has determined that the Power Company was requesting permission to enlarge and remodel its existing electrical substation in Bessemer North Highlands.

Likewise, this court, with the supreme court’s opinion in mind and after a careful examination of the transcript of proceedings before the Board and the Power Company’s application, is of the opinion that the Power Company was seeking a permit to enlarge and remodel its existing substation and was not asking for a variance, notwithstanding the appearance of that word in the transcript of the proceed-, ings.

When one looks at the proceedings before the Board, it becomes readily apparent that the Board understood and considered the Power Company’s request to be for work on an existing facility. For example, the Board’s minutes reflect that the Power Company had requested a “variance to enlarge their substation located at lots 3, 4, 5 & 6 in Block 101 Bessemer North Highlands;” that the Board met at the site of the “proposed addition to the Alabama Power Company substation;” that the agenda of the Board called for a consideration of the Power Company’s request for “a variance to enlarge the substation” to meet electricity demands in the area; and that the Board resolved that the Power Company’s application “requesting permission to remodel and enlarge the sub-station located on lots 3, 4, 5 & 6 in Block 101” was approved.

The Board’s grant of authority to the Power Company for the enlargement of its existing substation shows that the Board considered the Power Company’s application to be for a permitted use rather than a variance.

This court is convinced — apparently so was the supreme court — that the issue before the Board was the grant of a permitted use father than a variance, and, again as stated by the supreme court, “a circuit court is without power to change the issue on appeal de novo” (emphasis theirs).

Thus, in view of the opinion of the supreme court, we conclude that the true issue before the trial court for resolution is whether the Power Company should be granted “permission to remodel and enlarge the substation located on Lots 3, 4, 5 & 6 in Block 101 Bessemer North Highlands.” Accordingly, Judge Walter Bridges of the Tenth Judicial Circuit, Bessemer Division, is hereby directed to correct his pre-trial order so that the issue before the court will be whether to permit the Alabama Power Company to enlarge and remodel its substation located on lots 3, 4, 5 and 6 in Block 101, Bessemer North Highlands subdivision.

WRIT GRANTED.

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


text:
    Ex Parte Robert WARREN et al. Ex Parte BOARD OF ZONING ADJUSTMENT OF HUEYTOWN, Alabama
    79-311
    Supreme Court of Alabama.
    March 7, 1980.
    E. L. Brobston, Powell Lipscomb, Bessemer, for petitioner.
    S. Allen Baker, Jr., Birmingham, Lee E. Bains, Thomas R. McEniry, Bessemer, for respondent.
   PER CURIAM.

WRIT DENIED.

BLOODWORTH, MADDOX, FAULKNER, ALMON, SHORES, EMBRY, and BEATTY, JJ., concur.

TORBERT, C. J., dissents.

JONES, J., not sitting.


author: WRIGHT, Presiding Judge.

text:
    Clarence Alton PARTRIDGE v. Ronald SAWYER.
    Civ. 2056.
    Court of Civil Appeals of Alabama.
    Feb. 20, 1980.
    Rehearing Denied March 26, 1980.

      William H. Saliba, Mobile, for appellant.
    Billy C. Bedsole, Mobile, for appellee.
   WRIGHT, Presiding Judge.

Plaintiff recovered verdict and judgment for $8,000 in an action for malicious prosecution. Defendant appeals charging error in denial of his motions for directed verdict, judgment notwithstanding the verdict and for new trial.

Plaintiff for several months was a supervising employee of a partnership called Happy Home Foamers. Defendant was one of the partners. Plaintiff, with the consent of one or both partners, stored various items on his property. Viewed most favorably to the plaintiff, there was evidence that a large number of bags of cellulose were stored in the home of plaintiff. Due to lack of business, plaintiff terminated his employment. Defendant thereafter came with other employees to the home of plaintiff and demanded the cellulose. Plaintiff refused to allow him to take it, stating that he would keep it until he was paid wages and commissions owed him by the partnership. After argument, discussion of settlement and consultation with police officers who were called, defendant left without the cellulose and other items.. Defendant in the following few days sought aid for recovering his property by talking with police officers,' district attorney and a municipal judge. A warrant was obtained for plaintiff’s arrest from the District Court of Mobile County. The municipal judge became and continues as defendant’s counsel. The warrant charged embezzlement of the items allegedly in possession of plaintiff. Plaintiff was arrested, jailed and subsequently made bond. At the later call of the case for trial, an agreement was made that the items would be given to defendant and a nolle pros was entered. Plaintiff subsequently brought this action.

Defendant’s contentions on appeal are that the evidence conclusively established the defenses of probable cause and advice of counsel.

One of the elements of an action for malicious prosecution which a plaintiff must establish by the evidence is that of absence of probable cause. Birwood Paper Co. v. Damsky, 285 Ala. 127, 229 So.2d 514 (1969). Probable cause is defined in Birwood as, “[S]uch a state of facts in the mind of the prosecutor as would lead a man of ordinary caution and prudence to believe or entertain an honest and strong suspicion that the person arrested is guilty." The issue then is whether the evidence showed the facts to be so undisputed as to present only a question of law as to whether defendant had or had not probable cause for swearing out a warrant for embezzlement. If the material facts from which the inference of probable cause are to be drawn are in dispute, the issue must go to the jury. S. S. Kresge v. Ruby, 348 So.2d 484 (Ala.1977); Key v. Dozier, 252 Ala. 631, 42 So.2d 254 (1949).

The material facts of the dispute between plaintiff and defendant were in conflict. It therefore became a jury question as to whether defendant, from the facts known to him, had or had not probable cause to believe plaintiff guilty of the offense of embezzlement. Hanson v. Couch, 360 So.2d 942 (Ala.1978).

Advice of Counsel

Defendant contends that he was entitled to a directed verdict because it was shown that he secured the warrant against plaintiff upon the advice of counsel.

It is the law of this state that advice of counsel, honestly sought and acted on in good faith, supplies an indispensable element of probable cause and is a complete defense to an action for malicious prosecution. Broussard v. Brown, 353 So.2d 804 (Ala.Civ.App.1978); Birwood Paper Co. v. Damsky, supra. However, to prevail on thaj; defense, it must be shown factually that the attorney’s advice was given after a full and fair statement of all the facts and circumstances known to the prosecutor. Broussard v. Brown, supra; Birwood Paper Co., supra. It is undisputed that defendant consulted with a district attorney and with a municipal judge, among others, before securing the warrant. However, the testimony of defendant as to the information he gave counsel is very limited and, in part, is in conflict with the testimony of plaintiff. The evidence does not. conclusively show that defendant gave a full and fair statement of all the facts and circumstances known to him. If the material facts are in dispute and defendant’s testimony is that he related only his version of the facts to counsel, it must be a jury question as to whether advice of counsel came after a full and fair disclosure of facts known to him. The issue of a “full and fair statement” to counsel is usually one for the jury. Hanson v. Couch, supra; Abingdon Mills v. Grogan, 175 Ala. 247, 57 So. 42 (1911).

There being a factual dispute bearing on both the lack of probable cause and the defense of advice of counsel, we find that the trial court did not err in refusing to grant defendant’s motions for directed verdict and for judgment notwithstanding the verdict. When rendered, jury verdicts are presumed to be correct and this presumption is strengthened by the trial court’s refusal to grant a motion for new trial. Shores v. Terry, 285 Ala. 417, 232 So.2d 657 (1970). On appeal, this court will not reverse such a refusal unless the preponderance of evidence against the verdict is so decided as to clearly convince the court it is wrong. Britton v. Doehring, 286 Ala. 498, 242 So.2d 666 (1970). We cannot find the preponderance of the evidence so clearly against this verdict as to justify reversal.

Defendant contends the trial court erred in taking his defense of truth from the jury. It does not appear from the record that defendant made any objection to the court’s charge to the jury or that he otherwise raised this point before the trial court. This court will not reverse on the basis of an issue not raised and ruled on below. McGugin v. McGugin, 357 So.2d 347 (Ala.Civ.App.1978); Rule 51, ARCP.

Defendant urges improper remarks by plaintiff’s counsel in closing argument as his final ground for reversal. The challenged remark is as follows:

Mr. Bedsole: He’s filed other civil lawsuits. Mr. Saliba told you that. He knows how to file ’em. That’s what he could have done here. But what did he choose to do? He chose to go down and make up a bunch of stories to the Judge and to the District Attorney.

The defendant contends that this argument is without basis in the evidence. In the matter of an attorney’s argument to the jury, much must be left to the enlightened judgment of the trial court, with presumptions in favor of its rulings. Dendy v. Eagle Motor Lines, Inc., 292 Ala. 99, 289 So.2d 603 (1974). The trial court is in a position to judge the prejudicial quality of the comment and its effect upon the jury. We find no error in its ruling.

The judgment below is affirmed.

AFFIRMED.

BRADLEY and HOLMES, JJ., concur.


author: ALMON, Justice.

text:
    Ex parte Clarence Alton PARTRIDGE. In re Clarence Alton PARTRIDGE v. Ronald SAWYER.
    79-504.
    Supreme Court of Alabama.
    May 23, 1980.
   ALMON, Justice.

WRIT DENIED — NO OPINION.

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


text:
    Mary H. DENNIS v. Hardie Allen DENNIS.
    Civ. 2095.
    Court of Civil Appeals of Alabama.
    March 5, 1980.

      Charles Tom Payne, Montgomery, for appellant.
    William B. Reneau and Robert B. Reneau of Reneau, Enslen & Reneau, Wetumpka, for appellee.
   BRADLEY, Judge.

This is a divorce case.

The wife appeals, contending the trial court abused its discretion in awarding alimony and in the property division. We affirm.

The parties were married on November 9, 1964. The husband filed for divorce on July 17, .1979. The trial court granted the divorce on September 11, 1979 on grounds of incompatibility. The trial court’s decree ordered the husband to convey his interest in a lake cabin owned by the parties to the wife. In addition, the order awarded the wife all personal property located on the lake cabin property including two boats. The parties were awarded equal shares in all jointly owned personal property situated in the home which the parties occupied pri- or to the divorce proceeding. The husband. was also ordered to pay the wife the sum of $2,000 alimony in gross.

As we have repeatedly noted, when a trial court renders a decree after a hearing ore tenus, such decree is presumed correct if supported by the evidence. Stewart v. Stewart, Ala.Civ.App., 341 So.2d 490 (1977).

The primary issue for our determination is whether the trial court abused its discretion in the award of alimony and the property division.

The award of alimony and the division of property are matters within the discretion of the trial court and unless the record indicates a plain and palpable abuse of that discretion, the trial court’s judgment is not subject to revision or reversal on appeal. Goodwin v. Goodwin, Ala.Civ.App., 364 So.2d 678 (1978).

With regard to the determination of alimony in a divorce case, the trial court may properly consider the earning ability of the parties, their future prospects, their ages, their station in life, the duration of their marriage, and the conduct of the parties relative to the cause of the divorce. Chancellor v. Chancellor, 52 Ala.App. 10, 288 So.2d 794 (1974).

Applying the above criteria to the facts in the present case, we see a wife who is operating a successful and growing business and who earned approximately $35,000 in the previous year. The husband is presently earning $1,000.00 per month. The parties were married sixteen years and presently have no children requiring support. We think the above facts clearly indicate that the trial court did not abuse its discretion in the amount of alimony in gross awarded to the wife.

The wife contends also that the trial court abused its discretion in the property division. Specifically, the wife argues that the trial court should have included in the marital property a house constructed by the parties. The evidence indicated that the parties built a home on land owned by the husband’s father. The home was constructed with the permission of the husband’s father; however, he subsequently refused to convey the land to the parties. The evidence further reveals that the wife aided the husband in the construction of the house, and contributed substantially to its cost.

The trial court did not include among the property to be divided between the parties the house in which they lived during a portion of their marriage. The court gave no explanation for this omission and we can only surmise that it did so because the property was not owned by the parties. When a house is erected on the property of another, the prima facie intendment is that the house becomes a part of the realty; however, this is by no means conclusive and the intent of the parties usually controls and the builder may expressly reserve certain rights relating to the house. Milford v. Tennessee River Pulp & Paper Co., Ala., 355 So.2d 687 (1978); North British & Mercantile Insurance Co. v. Sciandra, 256 Ala. 409, 54 So.2d 764 (1951); Sullivan v. Lawler, 222 Ala. 628, 133 So. 911 (1931); Middleton v. Alabama Power Co., 196 Ala. 1, 71 So. 461 (1916).

In the case at bar both parties to this lawsuit realized that they did not own the realty upon' which they constructed the house. Furthermore, the record is devoid of any evidence that the parties had any kind of agreement to remove the house from the land. Thus the trial court’s failure to include the marital house in the properties to be awarded to the parties cannot be considered error on its part requiring reversal.

For the foregoing reasons the trial court’s decree is due to be affirmed.

AFFIRMED.

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


text:
    Russell MYLES and R & T Construction Company v. MARINE ENGINEERING, INC.
    Civ. 2165.
    Court of Civil Appeals of Alabama.
    March 26, 1980.
    Rehearing Denied April 30, 1980.

      Mayer W. Perloff, Mobile, for appellants.
    Stephen J. Flynn of Diamond, Lattof, Gardner, Pate & Peters, Mobile, for appel-lee.
   BRADLEY, Judge.

This is an appeal by the defendants, Russell Myles and R & T Construction Company, from the granting of a summary judgment in favor of the plaintiff.

The plaintiff, Marine Engineering, Inc., filed a complaint against the defendants for work and labor done in the amount of $1,826.38. The complaint alleged that the plaintiff repaired a boat called the Lucky Louie at the request of the defendant. ' After hearing the evidence, the district court found for the plaintiff against the defendants. The defendant appealed the decision to the circuit court.

Thereafter the plaintiff moved for summary judgment in the circuit court. In support of this motion, the plaintiff filed several affidavits with the trial court. The first was an affidavit by the vice president of Marine Engineering which itemized and verified the evidence of a debt of $1,826.38 owed by the defendants to the plaintiff for work and labor done. Along with the affidavit, the plaintiff attached two invoices purportedly sent to the defendants for work performed. The plaintiff also submitted an affidavit by its billing clerk attesting that the invoices and service reports offered by the plaintiff were true and correct copies of records kept in the regular course of business. The final affidavit offered by the plaintiff was by its service manager. The plaintiff’s service manager stated that on two separate occasions the defendant Russell Myles telephoned him at Marine Engineering and requested that repairs be made on a boat called the Lucky Louie. The plaintiff’s service manager stated that the defendant Myles requested that the bill for the repairs be sent to him. According to the plaintiff’s service manager, the repairs were made on the boat each time, and as requested, the bills were sent to Russell Myles.

In opposition to the plaintiff’s motion for summary judgment, the defendant Russell Myle.s filed the following affidavit:

I did not have any dealings nor agree to pay any monies to the Plaintiff, Marine Engineering, Inc. for my personal benefit. My company, R & T Construction, Inc., leased a vessel from West Delta Construction and Development Co., Inc. and that company instructed R & T Construction Co. to have any work done on the vessel’s engines done by Marine Engineering, Inc. as that company had installed the engines for West Delta Construction and Development Co., Inc. and had warranted the engines to that company.

The only issue for our determination is whether the trial court erred in granting the summary judgment against the defendants.

In determining whether a summary judgment is proper, the ultimate question is whether there remains a genuine issue of material fact, and if there is one, summary judgment is inappropriate. First National Bank v. Culberson, Ala., 342 So.2d 347 (1977). The party moving for summary judgment has the burden of showing the' absence of a genuine issue as to any material fact. Loveless v. Graddick, 295 Ala. 142, 325 So.2d 137 (1975). Since the burden of proof is on the movant, the evidence received by the court is construed in favor of the party opposing the motion, and that party is given the benefit of all favorable inferences that can be drawn from such evidence. See Wright & Miller, Federal Practice and Procedure, § 2727 (1973) and cases there cited. However, Rule 56(e) of ARCP also provides that:

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

The burden was cast upon the defendants by the motion for summary judgment and its accompanying affidavits to present, by counter affidavits of their own, specific facts controverting those of the plaintiff. Glover v. Merchants Adjustment Service, 57 Ala.App. 62, 326 So.2d 129 (1976). Although inartfully drafted, we conclude that the affidavit of the defendant Russell Myles does meet the burden cast upon the party opposing the motion for summary judgment, especially when one considers the inferences that can be rightfully drawn from the facts set out in defendant Myles’ affidavit.

We think it reasonable to construe defendants’ counter affidavit as a denial of any dealings with the plaintiff, which would include, we think, a denial by inference that Myles had engaged the plaintiff to do any work on the vessel in question for which he could be held liable. Furthermore, we think a reasonable inference could be drawn from Myles’ affidavit that R & T Construction Company would not be liable for the work done on the Lucky Louie because such work came within the purview of warranty work previously done on the vessel.

Based on the above listed circumstances, we believe that a material issue of fact exists for resolution, and the trial court erred in granting summary judgment to plaintiff.

REVERSED AND REMANDED.

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


text:
    Martha D. FULGHUM v. TERMPLAN, INC.
    Civ. 2119.
    Court of Civil Appeals of Alabama.
    April 16, 1980.

      Ruth Stone, for Legal Services of North-Central Alabama, Huntsville, for appellant.
    No brief for appellee.
   WRIGHT, Presiding Judge.

In November 1978 Termplan, Inc. filed a detinue action in Madison County District Court against Martha D. Fulghum for recovery of consumer goods given as security for a loan from Termplan. Fulghum filed an amended answer and counterclaim. The counterclaim, as amended, was based on an alleged violation by Termplan of the Federal Truth-in-Lending Act and Federal Reserve Regulation Z.

The district court found in favor of Term-plan on its detinue claim and against Fulg-hum on her counterclaim.

Fulghum appealed the district court’s judgment to Madison County Circuit Court. The circuit court rendered a judgment in favor of Termplan on its claim and against Fulghum on her counterclaim. Fulghum appeals from denial of the counterclaim. We reverse.

The issue presented is whether Termplan adequately complied with the disclosure requirements of the Federal Truth-in-Lending Act in' connection with its transaction with Fulghum.

For purposes of the Truth-in-Lending Act this transaction was a “closed-end, non-sale credit transaction.” Section 1639 of the Truth-in-Lending Act, 15 U.S.C. §§ 1601 et seq., sets out the information a lender in such a transaction must disclose to each borrower. Section 1639(a)(8) requires a “description of any security interest held or to be retained or acquired by the creditor in connection with the extension of credit, and a clear identification of the property to which the security interest relates.” Acting pursuant to its authority under § 1604 of the Act the Federal Reserve Board has adopted regulations concerning compliance with § 1639(a)(8). See generally, 12 C.F.R. §§ 226.1 et seq. (1976) (“Regulation Z”).

Section 226.8(b)(5) of Regulation Z deals with the specific requirements of § 1639(a)(8). Under this regulation, a lender must disclose:. “(1) the type of security interest held, retained, or acquired; (2) the property of the borrower which serves or will serve as the collateral; and (3) whether any future obligations which the borrower may incur to the lender will be secured by any such property.” Anthony v. Community Loan and Investment Corporation, 559 F.2d 1363 (5th Cir. 1977).

Fulghum contends that Termplan violated § 1639(a)(8) in that its disclosure statement fails to adequately describe the type of security interest held, retained, or acquired in connection with its extension of credit to her.

The disclosure. form used by Termplan states:

This' loan is secured by a ■ Security Agreement of even date covering: (1) the following described property, (2) the proceeds thereof, (3) all property of the same type or character in which Borrower acquires rights . . • , (4) all equipment, accessories and parts added or attached thereto, (5) all insurance proceeds from the loss or damage of the collateral, and (6) all refunds of unearned insurance' premiums (R.21)

Following this statement is a list of the property covered by the security agreement. There is no additional description or identification of the security interest.

We find the reference to a “Security Agreement of even date” to be insufficient to meet the requirements of § 1639(a)(8).

The federal courts have generally approved descriptions which simply - identify the type of security interest. In Pennino v. Morris Kirschman and Co., 526 F.2d 367 (5th Cir. 1976), the court held that the description “a security interest in the merchandise purchased ... in accordance with existing state laws” was insufficient, but suggested that identifying the. security interest as a “vendor’s lien” would be sufficient. In Anthony v. Community Loan and Investment Corporation, 559 F.2d 1363 (5th Cir. 1977), the court held that reference to a security interest in personal property and to rights and remedies , under the Uniform Commercial Code was sufficient because the reference to the U.C.C. fully defined the legal rights of the parties. In Elzea v. National Bank of Georgia, 570 F.2d 1248 (5th Cir. 1978), the court approved a disclosure statement which identi-. fiéd the security interest as “an assignment of homestead exemption.”

The disclosure statement here falls short of the descriptions approved in these and' other cases. The disclosure that the loan is secured by a security agreement of even date provides no information about the type or extent of the security. interest or the legal rights of the parties. While the referenced security agreement might have provided this information, a disclosure state-, ment merely referring to another document is inadequate. Ljepava v. M.L.S.C. Properties, Inc., 511 F.2d 935 (9th Cir. 1975).

Section 1640(a) provides that any creditor who violates the disclosure provisions of § 1639 of the Truth-in-Lending Act is liable to the borrower for twice the amount of the finance charge in connection with the transaction. Thus, Termplan is liable to Fulghum for twice the $285.58 finance charge or $571.16.

In addition, § 1640(a) provides for the award of costs and a reasonable attorney’s fee as determined by the court. The trial court on remand should award an attorney’s fee based on counsel’s work in the original proceeding and on appeal. Ljepava v. M.L.S.C. Properties, Inc., supra.

It is the judgment of this court that Termplan has violated the disclosure requirements of § 1639(a)(8) of the Truth-in-Lending Act and that the trial court erred in rendering a judgment for Termplan on Fulghum’s counterclaim. The judgment on her counterclaim is reversed and the trial court is directed to enter judgment in favor of Martha Fulghum in the amount of $571.16, plus costs and a reasonable attorney’s fee as determined by the trial court.

REVERSED AND REMANDED WITH DIRECTION.

BRADLEY and HOLMES, JJ., concur.


text:
    Jane W. MARR v. Joseph M. MARR.
    Civ. 2052.
    Court of Civil Appeals of Alabama.
    April 30, 1980.

      Dan R. Wise, Hattiesburg, Miss., and James L. Hunt, Tuscumbia, for appellant.
    John E. Higginbotham, Florence, for ap-pellee.
   BRADLEY, Judge.

This is an appeal from a judgment rendered after remand of the case from this court in Marr v. Marr, Ala.Civ.App., 371 So.2d 423 (1979).

In the first appeal of this case, we held that the trial court erred to reversal by holding an in camera examination of a witness without giving sufficient notice to the parties of its intent to conduct such a proceeding.

On remand the trial court again awarded the husband primary custody of the child. The court also granted the wife a thirty percent equity in the home of the parties and awarded her alimony in the amount of $250.00 per month for forty-eight months or until her death or remarriage.

As noted in the prior appeal, the law of this state provides that the trial court has wide discretion in matters of child custody and this court can reverse only for plain abuse. Sheffield v. Sheffield, Ala.Civ.App., 350 So.2d 1056 (1977).

In our previous review of this case, we held that in light of the wife’s well established history of emotional difficulties, the trial court did not abuse its discretion in the award of custody. On remand the husband produced evidence further detailing the wife’s psychiatric problems. The wife offered evidence also that the husband engaged in an adulterous relationship. The husband does not deny this accusation, but points out that he has since married his paramour. The husband also offered evidence that his wife frequently entertained another man into the early morning hours on occasions when the parties’ child was present. In light of the foregoing, we cannot say that the trial court plainly abused its discretion in awarding primary custody of the child to the husband.

The second issue raised by this appeal is whether the trial court abused its discretion in the award of alimony and attorney fees, and the property division.

The awarding of alimony, attorney fees, and division of property are all matters within the discretion of the trial court. Novak v. Novak, Ala.Civ.App., 339 So.2d 77 (1976). The manner in which the court exercises its discretion in these matters must be viewed in light of the evidence in each case in order to determine any abuse. Pettis v. Pettis, Ala.Civ.App., 334 So.2d 913 (1976). The evidence in the present case disclosed that the husband was earning approximately $28,000 per year, and that the wife, though just recently employed, was earning $9,000 per year. The wife was awarded thirty percent of the net proceeds from the sale of the house owned by the parties — the court decreed that the house and lot be sold at private or public sale. The house was appraised at $56,500, but was subject to an outstanding mortgage in the amount of approximately $30,000. Although the husband was awarded seventy percent of the net proceeds resulting from the sale of the house, he was required by the trial court to pay more than $6,000 in debts out of his share of the sale proceeds. The trial court also noted in its decree that the husband has already paid several thousand dollars in debts owed by the parties.

Where a court hears a matter ore tenus, its judgment will be affirmed unless it is shown that the judgment is plainly and palpably in error. Worley v. Jinks, Ala.Civ.App., 361 So.2d 1082, writ quashed, Ala., 361 So.2d 1089 (1978). After carefully considering the evidence before the trial court, which was the evidence taken at the first hearing less the in camera testimony plus the evidence adduced at the second hearing, we conclude that the trial court’s award of alimony, property and attorney’s fee is sufficiently supported by the evidence, and that its decree is not plainly and palpably erroneous.

The final issue argued by the wife is that the trial judge committed reversible error in failing to recuse himself from the case at bar.

Canon 3C(1) of the Alabama Canons of Judicial Ethics provides in pertinent part:

A judge should disqualify himself in a proceeding in which his disqualification is required by law or his impartiality might reasonably be questioned, including but not limited to instances where:
(a) He has a personal bias or prejudice concerning a party .

Recusal is required where facts are shown which make it reasonable for members of the public, or for party or counsel opposed, to question the impartiality of the judge, Wallace v. Wallace, Ala.Civ.App., 352 So.2d 1376 (1977). However, recusal is not required by mere accusation of bias unsupported by substantial fact. Taylor v. Taylor, Ala.Civ.App., 359 So.2d 395 (1978).

In the case at bar the only fact offered by the wife in support of her motion for recusal is a. comment made by the trial judge in a memorandum sent to counsel for both parties prior to the rehearing on remand. In the memorandum the trial judge stated, “It appears that the custody order will remain the same in any event.” The wife contends that this statement indicates that the trial judge was predisposed to award custody of the child to the husband. We disagree. When the motion for recusal was denied, the trial judge explained that a custody order is never final and that his statements in the memorandum did not mean that custody of the parties’ child could not change. He stated that his comments merely reflected the language of the appellate court, wherein it was stated that there was sufficient evidence in the first trial to sustain the custody decree. He further stated that the parties could present evidence bearing on the issues that was not heard in the previous hearing. He then said that he had no bias or prejudice for or against either party.

We consider the evidence offered by the wife to be insufficient to support the contention thát the partiality of the trial judge might be reasonably questioned. The only evidence offered by the wife was the trial judge’s statement as to the custody decree. We believe this statement was adequately explained by the trial' judge prior to the rehearing. Therefore we hold the trial judge did not act improperly in refusing to recuse himself.

Motion for award of attorney’s fee on appeal is denied.

The judgment of the trial court is affirmed.

AFFIRMED.

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


text:
    Evelyn Sue BLACKWELL v. George T. BLACKWELL, Jr.
    Civ. 2103.
    Court of Civil Appeals of Alabama.
    April 30, 1980.

      J. Gary Pate, of Najjar & Najjar, Birmingham, for appellant.
    John L. Capell, III and Richard C. Bentley, of Capell, Howard, Knabe & Cobbs, P. A., Montgomery, for appellee.
   HOLMES, Judge.

The Circuit Court of Blount County granted the husband’s petition to terminate the wife’s periodic alimony. The wife, through able counsel, appeals and we affirm.

The trial judge apparently terminated the periodic alimony pursuant to § 30-2-55, Code of Ala.1975 (1979 Cum.Supp.). This section, is pertinent part, is as follows:

Any decree of divorce providing for periodic payments of alimony shall be modified by the court to provide for the termination of such alimony upon petition of a party to the decree and proof that the spouse receiving such alimony has remarried or that such spouse is living openly or cohabiting with a member of the opposite sex. .

From our reading of the record and briefs of the parties we determine the dispositive issue to be whether the evidence supports a conclusion that the wife was “living openly or cohabiting with a member of the opposite sex.” Able and distinguished counsel for the wife, in an excellent brief, contends that certain language in the trial court’s decree indicates that the trial court terminated the alimony for other than the aforementioned statutory reason. As stated above, we do not agree. The instant appeal was clearly tried on the theory that the wife was “living openly, etc. . . This was the issue to be determined by the trial court. We consider language in the decree touching on other areas to simply be surplusage.

This court has on three occasions within the last twelve months addressed the dis-positive issue here presented. We do not deem it necessary nor prudent to restate what we have previously written. We refer interested parties to Ivey v. Ivey, Ala.Civ.App., 378 So.2d 1151 (1979); Parish v. Parish, Ala.Civ.App., 374 So.2d 348, cert. denied, Ala., 374 So.2d 351 (1979); Atkinson v. Atkinson, Ala.Civ.App., 372 So.2d 1106 (1979).

Suffice it to say that whether or not a former spouse is living openly or cohabiting with a member of the opposite sex for purposes of this legislative enactment is a factual determination. Whether the petitioner under this statute has met the burden of proof is ultimately a question of fact. See, Ivey, supra; Parish, supra; Atkinson, supra. This court can only reverse the trial court’s determination in this instance, that the husband met his burden of proof, if after consideration of all the evidence and the reasonable inferences drawn therefrom we conclude that such determination is plainly and palpably wrong. See, Ivey, supra; Parish, supra; Atkinson, supra.

Viewing the record with the attendant presumption accorded the trial court’s decree, we find the following:

The parties were divorced in 1975. The wife was awarded the home and $1,200 per month periodic alimony. After the divorce, the wife sold the home for approximately $90,000.

The wife first met one Gilbert Quintell in the City of Birmingham, Alabama, in the spring of 1978. Shortly thereafter, the wife purchased a home in Destín, Florida. In February, 1979, the wife sold the Destín, Florida, house to Quintell. The purchase of the Florida house was originally accomplished by lending Quintell some $40,000.

After the sale of the Destín property, the wife rented another house in Destín which Quintell owned. However, after the renting of the Quintell property and the sale of the wife’s Destín property, there was evidence that the wife continued to receive her mail, bank statements, and bills at the property sold by her to Quintell. Additionally, when the wife registered her automobile with the Florida authorities, she continued to list the property she sold to Quintell as her residence. Furthermore, there was evidence that certain of the wife’s clothing and furniture remained at the Destín property after its sale to Quintell.

From January, 1979 (approximately one month prior to the sale), until June of 1979, the husband retained several private investigators to observe Quintell’s house.

During this period of time, the investigators testified they observed the wife and Quintell doing yard work and engaged in recreational activities at the house Quintell purchased from the wife. These investigators further testified that both the wife and Quintell remained in this house overnight; furthermore, that vehicles belonging to the wife and Quintell were parked at this house on numerous occasions, these occasions being during the daylight hours and at night.

In addition to the above, the .wife admitted sleeping in the same house with Quin-tell both in Birmingham and Florida.

When asked numerous questions about specific sexual activities with Quintell, the wife and Mr. Quintell invoked the fifth amendment to the United States Constitution. The wife later in the trial denied having sexual relations with Quintell.

As indicated earlier, the above is pertinent in this court’s review of the trial court’s action. We should not be understood as indicating that the wife failed to offer testimony explaining or justifying the above. However, in view of the evidence as shown above, we cannot say the trial court was plainly and palpably wrong in concluding that the husband had met his burden of proof that the wife was “living openly or cohabiting with a member of the opposite sex.” To do so would in effect be substituting our judgment for .that of the trial court. This the law does not permit.

The case is due to be affirmed.

AFFIRMED.

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


text:
    SOUTHERN STATES COAL, INC., a Corp. v. BRYANT GENERAL TIRE COMPANY, INC.
    Civ. 2141.
    Court of Civil Appeals of Alabama.
    April 30, 1980.

      Carol J. Millican, of Tommy E. Hill, P. A., Birmingham, for appellant.
    Robert B. Rubin and Susan B. Mitchell, of Sirote, Permutt, Friend, Friedman, Held & Apolinsky, P. A., Birmingham, for appellee.
   WRIGHT, Presiding Judge.

This is an appeal from the granting of a motion for summary judgment.

Plaintiff Bryant General Tire Company, Inc. (Bryant) filed suit against defendant Southern States Coal, Inc. (Southern States) on June 25, 1979, claiming $8,490.85 due by breach of agreement and attorney’s fee of $1,698.17. Southern States filed a motion to dismiss. The motion was denied and Southern States filed an answer denying the allegations of the complaint.

On September 18, 1979, Bryant filed a motion for summary judgment with a supporting affidavit and supporting exhibits. Southern States made no response to the affidavit and exhibits. At the hearing on the motion, Bryant withdrew its request for attorney’s fee. The trial court granted the motion for summary judgment on October 3, 1979. Southern States’ motion to reconsider and set aside the judgment was overruled and Southern States appeals.

Summary judgment is appropriate only if the materials before the trial court show that there is no genuine issue as to any material fact and the moving party is entitled to judgment as a matter of law. Rule 56, ARCP; Guillotte v. Pope & Quint, Inc., 349 So.2d 62 (Ala.Civ.App.1977). For purposes of ruling on a motion for summary judgment, uncontradicted facts alleged in the pleadings, affidavits and exhibits are taken as true. Hudson-Thompson, Inc. v. Leslie C. King Company, Inc., 361 So.2d 541 (Ala.1978).

In support of its motion for' summary judgment, Bryant offered the affidavit of its credit manager, Mike Whitten. The affidavit, in essence, states that Southern States agreed to purchase certain goods on credit from Bryant; that they had defaulted on that agreement; and that an outstanding balance in the amount of $8,490.85 remained due.

Along with this affidavit Bryant offered copies of its accounting records showing an outstanding balance of $8,490.85 and invoices for goods sold to Southern States.

Southern States offered nothing in opposition to this evidence. Therefore, for purposes of ruling on the motion for summary judgment, the facts alleged in the affidavit and exhibits are taken as true. Hudson-Thompson, Inc. v. Leslie C. King Company, Inc., supra.

The facts alleged by Bryant established that Southern States owed a debt of $8,490.85 to Bryant. If facts exist which would negate that liability or if the facts alleged are untrue, the burden of presenting evidence to that effect is on Southern States. Morris v. Morris, 366 So.2d 676 (Ala.1978).

The materials before the trial court showed no genuine issue as to a material fact and the trial court’s order granting summary judgment is affirmed.

AFFIRMED.

BRADLEY and HOLMES, JJ., concur.


author: LEIGH M. CLARK, Retired Circuit Judge.

text:
    Frank McGEE v. STATE.
    6 Div. 931.
    Court of Criminal Appeals of Alabama.
    June 26, 1979.
    Rehearing Denied July 17, 1979.

      Michael C. Cornwell, Asst. Public Defender, Tuscaloosa, for appellant.
    Charles A. Graddick, Atty. Gen., and Mary Jane LeCroy, Asst. Atty. Gen., for the State.
   LEIGH M. CLARK, Retired Circuit Judge.

Appellant was convicted of robbery and sentenced to imprisonment for ten years.

Chris C. Gray, the alleged victim, testified that on May 20, 1978, about 5:00 or 6:00 P.M., he, James Moore and Joe Deck-son were at the home of Mrs. Ollie Graham when defendant approached the four of them and asked Gray to take him somewhere in return for a dollar. Mr. Gray agreed to do so, but thereafter Mr. Gray talked with Mrs. Graham about the matter, and Mrs. Graham told Mr. Gray that he shouldn’t take defendant in an automobile because defendant was drunk. According to Mr. Gray, defendant had gone to the automobile to wait for Mr. Gray; after talking with Mrs. Graham, Mr. Gray went to defendant and told him he could not take him in the automobile; Mr. Gray then returned to Mrs. Graham’s house. Defendant followed him there and told Mr. Gray to return defendant’s dollar to him; Gray replied that defendant had not given him a dollar. An argument ensued as to whether defendant had given Mr. Gray a dollar. Defendant pointed a pistol at Mr. Gray and told him to give him the dollar, which Mr. Gray did. Upon receipt of the dollar, defendant left the premises.

Mr. Gray was corroborated by the testimony of other witnesses. Upon conclusion of the State’s evidence, the defendant rested.

There is no contention that the evidence was not sufficient to support the conviction. We should note, however, that there was considerable evidence that defendant was intoxicated, that the undisputed evidence shows that he did not attempt to obtain more than one dollar from Mr. Gray, and that the evidence as a whole did not conclusively show that defendant did not honestly believe that the dollar obtained from Mr. Gray was a dollar that Mr. Gray had received from defendant in consideration of Mr. Gray’s promise to transport him in an automobile. In other words, the evidence does not conclusively show that defendant had the requisite felonious intent to justify a conviction of robbery, but the issue was one for the jury to decide.

A major insistence of appellant is that the trial court erred in not charging the jury on lesser included offenses of “assault and assault and battery.” The' insistence is brought to this Court via Rule 10(f) of Alabama Rules of Appellate Procedure, whereby appellant petitioned the trial court to correct the record on appeal so as to show that “Mr. Morris Brooks and Mr. David Miller representing the State approached the bench and orally requested that the Court further instruct the jury by including charges that the offense of robbery includes the lesser included offenses of assault and- assault and battery” and that the court “refused to give the lesser included offense charge requested by the State’s attorneys.” The trial court ordered that the record be corrected as follows:

“. [B]y adding to the record at the point following Defense Counsel’s exceptions to the Court’s initial jury instructions, the following language: MR. MILLER: ‘Your Honor we request that the Court instruct the jury that assault and assault and battery are lesser included offenses in the offense of robbery.’ THE COURT: ‘Well, I will deny that request.’ ”

We agree with appellant’s contention that in a trial on an indictment for robbery, if the evidence, according to any reasonable theory, presents a controversy whether the particular conduct constitutes robbery on the one hand, or some lesser included offense(s) on the other, defendant is entitled to have the court charge on the lesser included offense, as well as on any lesser included offenses if more than one lesser included offense. Kelly v. State, 235 Ala. 5, 176 So. 807; Carter v. State, Ala.Cr.App., 340 So.2d 94, (1976). Numerous other cases support such principle. The record, as corrected, shows that the request for the particular charge was made orally. To place the trial court in error for its denial of the oral request would contravene the uniformly accepted rule that requests for instructions in addition to those given in the court’s oral charge must be in writing, the principle being stated as late as Harris v. State, Ala.Cr.App., 358 So.2d 482, cert. denied, State ex rel. Attorney General, Ala., 358 So.2d 487 (1978) and Hurst v. State, Ala.Cr.App., 356 So.2d 1224 (1978).

Appellant seems to attempt to support his argument on the point by stipulation between opposing trial counsel that the charge was requested by both of such counsel. Out of fairness to all concerned, it should be stated that in the trial court’s order on the petition to correct the record it was stated that neither the court nor the court reporter recalled the requested charge. It should be further observed, we think, that if the trial court had given the charge as requested, such action would not have been in compliance with the principles of law applicable to the facts in this case.

We agree with appellant that there was a reasonable basis for a finding by the jury that defendant was not guilty of robbery, but that he was guilty of an assault. However, there is no reasonable basis supported by the evidence for a finding that defendant was guilty of an assault and battery. There is no evidence of any “touching of another,” which must be shown to establish a battery. Jacobi v. State, 133 Ala. 1, 32 So. 158 (1902). This is not true as to an assault. Tarver v. State, 43 Ala. 354 (1869).

Appellant complains that:

“Though the court properly instructed the jury on the essential elements of robbery, in both the initial instructions and the additional instructions to the jury the Court made several erroneous, misleading, and confusing comments on the element of intent. On at least four occasions the Court defined the element of felonious or larcenous intent in a circuitous manner by defining intent in terms of robbery of which it is but one element. On these occasions the Court stated:
“ ‘That is, you must find that the defendant intended to commit robbery on this occasion . . . ’
“ ‘did the defendant intend to rob C. C. Gray and did he intend to commit an act of robbery.’
“ ‘. .as did he intend to rob the man that says he was robbed.’ “ ‘Was that the intent, to rob.’ ”

We can understand appellant’s concern as to the possibility that the court’s oral charge did not fully cover all of the principles of law to which he would have been entitled, if he had requested them in writing, but we do not find in the quoted portions of the court’s oral charge instructions that could be held to be erroneous. Appellant expressly acknowledges that in the court’s oral charge, it was stated that “the parting of the property must have been with a larcenous intent,” but takes the position that the legal requisite of a felonious intent, a larcenous intent, was weakened by the court’s reference to the necessity for an “intent to rob.”

“In the absence of a statute to the contrary, there can be no robbery without a criminal, felonious, larcenous, or, under an express statute, a fraudulent, intent. The animus furandi, or intent to steal, is essential to the crime. In other words, there must be a criminal intent of a character including the specific intent to rob; the taking must be with the intent to deprive the owner of his property permanently. The element of force or intimidation is not a substitute for the intent to steal.” 77 C.J.S. Robbery § 22a.

We consider also appellant’s concern as to whether he obtained on the trial the full benefit of a principle of law that one is not necessarily guilty of robbery if in taking personal property from the person of another, by force express or implied, he is doing so under a bona fide claim of right,

“As a general rule it is not robbery to take property under a bona fide claim of right or title thereto. Cases held within this rule and, therefore, not robbery, include the forcible taking, under a bona fide claim, of specific property or property taken as security, of gambling gains or losses, and of money taken from the alleged thief in reimbursement for money honestly believed to have been stolen. In order to come within the rule, however, the taker must in good faith believe that he is the owner of the property or entitled to its possession.” 77 C.J.S. Robbery § 22c.

As there was no evidence presented on behalf of defendant and as the record does not contain the arguments of counsel, we cannot tell whether the trial court should have charged the jury as to the theory of innocence by reason of any contention that defendant’s conduct was in the honest belief that he was only taking from Mr. Gray that which rightfully belonged to defendant. Whether so or not, we cannot place the trial court in error, in the absence of an appropriate request in writing by defendant setting forth applicable principles of law on the subject.

There are additional reasons why we cannot reverse the trial court for its instructions on the matter of the requisite intent. A large part of the court’s instructions in that respect, including the two last statements quoted above, occurred, according to the record, after the jury “retired to the jury room to deliberate their verdict.” Meadows v. State, 182 Ala. 51, 62 So. 737 (1913) and many subsequent cases.

Portions of the court’s oral instructions, other than those mentioned above, are targets of appellant’s insistence that there was error in the'court’s oral instructions. We deem it sufficient to state that we have given them consideration and find as to each of them, if it was erroneous, either that it was not stated in substance in any exception thereto or that the exception was -not taken before the jury retired to commence or resume its deliberations, or that the exception was not taken to what the court had instructed the jury, but to what the court had not instructed the jury. The last alternative is applicable to the following:

“We except to Your Honor’s charge concerning flight and saying flight could be considered as evidence of guilt but you fail to state the absence of flight could be considered to be evidence of innocence.”

While all concerned were in the process of determining what documents should be sent to the jury room with the jury, the following occurred:

“MR. CHANDLER: All right, sir, we further object to the indictment going out with the jury showing a list of the witnesses and the bond.
“THE COURT: I think we ought to test that out. This is a good time. I will overrule.
“MR. CHANDLER: Except. We except to each and every ruling.”

We believe that at times a defendant could be unjustly harmed by what appears on the back of an indictment and that at times it would be much.better that only a copy of the face of the indictment be sent to the jury room, if there is no objection by either party. If there is such an objection, the trial court can pass on it on its merits. Uniformly the back of an indictment has on it the names of the witnesses and the amount of bail fixed by the court. The names of the witnesses on the back of the indictment in this case included five witnesses who testified and two police officers who did not. The amount of bail fixed was ten thousand dollars. We recognize the practice to be that often the indictment in its entirety goes to the jury room and sometimes only a copy of the face of the indictment is submitted to the jury. There is no inflexible rule on’ the subject, and it is not for us to formulate one. We see no reasonable basis for holding that there was any substantial harm to the defendant by reason of the action of the court to which the objection was made. The overruling of defendant’s objection was not erroneous.

In one of the grounds of defendant’s motion for a new trial, it is alleged:

“The defendant is precluded from a meaningful appeal of said verdict due to the court reporter’s inability to prepare a complete record of trial in the said case.”

Appellant ties this ground to a portion of the transcript of the evidence containing the testimony, on direct examination and cross-examination, of the witness C. C. Gray. In about twelve of the purported answers of the witness to questions asked him, we find parenthetical statements by the court reporter to the effect that the answer or part of the answer is inaudible or unintelligible. At times the word “illegible” is used, which we deem to be inadvertent and self-correcting as intending “unintelligible,” as to which there is no contention to the contrary. During the first part of the testimony of the witness on direct examination, the following is shown.

“Q Where did you first see Prank McGee on that day?
“(Court Reporter’s Note: This witness had a very serious speech impediment. This fact was called to the attention of the attorneys for the State and defendant by the Court Reporter on numerous occasions during the witness’ testimony. Those portions of the witness’ testimony will be shown by the Court Reporter as unintelligible or illegible indicating the Court Reporter was unable to understand that portion of the testimony because of the said speech impediment.)

During the remainder of the testimony of the witness on direct examination, the following is shown:

“A She said don’t fool with him.
“Q Excuse me, what was that she said don’t fool with him?
“A She said, don’t fool with him because he is drunk and I told him I can’t go, I can’t go (a portion of the witness’ answer at this point was illegible.) and he came back around there.
“Q What did he say while he was pointing that gun at you?
“A He told me to give him the damn dollar.
“Q Said give you the damn dollar, give you the damn dollar?
“A (The first part of the witness’ answer inaudible.) I went in my back pocket and give him a dollar.
“Q You gave him a dollar?
“A Year, I had to give him one. (Last portion of answer inaudible.)

Difficulty in understanding . the witness continued into the cross-examination of him, of which the following are illustrative:

“Q What were these other three people you named, what were they doing when you saw Mr. McGee.
“A We was laughing and talking. (Remainder of answer illegible.)
“THE COURT: You are going to have to. go a little slower, I’m afraid, we just can’t understand.
“A I had been to the store. I had been to Quik Chek
“Q Did you ever see him or meet with him anywhere else other than when he came through Mrs. Graham’s yard when you saw him?
“A I see him coming through there. Some times he comes through there.' (Here followed a portion of his answer illegible.) I had seen him come through there lots of times.
“A He came back around there and he said, hey, give me my damn dollar and I said, what dollar and he said, what dollar, my dollar to carry me to Fifth Court. He said, give me my damn dollar and I said, you didn’t give me a dollar and he said, I did too, and I said, no, you ain’t. (Here followed a portion of the the answer illegible.) and so Mother Graham said give that man a dollar (Here followed a portion of the answer illegible.)
“Q Mr. Gray, when you refused to take Mr. McGee, he told you to give him his dollar?
“A Yeah.”

No effort is made by anyone to show that what was inaudible or unintelligible to the court reporter was not also inaudible or unintelligible to the jury. No effort is made to show that such answers were intelligible or audible to anyone. If they were, no effort is made to show what the answers omitted from the transcript were. It appears that no effort was made to present to the trial court, and no effort has been made to present to this Court, the language, or the substance of the language, of the witness that was inaudible or unintelligible to the court reporter. Taking into consideration all of the record as to the answers of the witness, it is difficult to come to a conclusion, and impossible for us to come to a reasonably certain conclusion, that anything was omitted from the transcript of the evidence that would materially affect the issues raised on the motion for a new trial or the issues raised on this appeal. The trial court was not in error in overruling defendant’s motion for a new trial.

We find no error in the record, and the judgment of the trial court should be affirmed.

The foregoing opinion was prepared by Retired Circuit Judge LEIGH M. CLARK, serving as a judge of this Court under the provisions of § 6.10 of the New Judicial Article (Constitutional Amendment No. 328). His opinion is hereby adopted as that of the Court. The judgment below is hereby

AFFIRMED.

All the Judges concur.


text:
    Ex parte Frank McGEE. In re Frank McGEE v. STATE of Alabama.
    78-747.
    Supreme Court of Alabama.
    March 7, 1980.

      Michael C. Cornwell, Asst. Public Defender, Tuscaloosa, for petitioner.
    Charles A. Graddick, Atty. Gen., J. Thomas Leverette, Asst. Atty. Gen., for respondent.
   TORBERT, Chief Justice.

The facts of the case as found in the opinion of the Court of Criminal Appeals are as follows: On May 20, 1978, the petitioner approached Mr. Chris Gray and asked Mr. Gray to give him a ride somewhere for a dollar. Mr. Gray agreed but later changed his mind on the advice of a neighbor, Mrs. Graham, who told Mr. Gray not to take the petitioner anywhere in his car because petitioner was a drunk. When Mr. Gray told petitioner that he could not give him a ride, petitioner demanded the return of his dollar. Mr. Gray denied that the petitioner had given him a dollar, whereupon petitioner pointed a gun at Mr. Gray and renewed his demand. Mr. Gray opened his wallet, which contained about $30, and gave petitioner a dollar. Upon receipt of the dollar, petitioner left the premises. The petitioner was convicted on the charge of robbery in the Circuit Court of Tuscaloosa County on October 25, 1978. The Court of Criminal Appeals affirmed the judgment on June 26, 1979, and the application for rehearing was denied on July 17, 1979.

Judge Clark, writing for the Court of Criminal Appeals, upheld the trial court’s refusal to instruct the jury that an “indictment for robbery also includes the lesser charge of an assault.” Judge Clark agreed with the appellant that the evidence supported a charge on the lesser included offense of assault, but he held that the trial court’s refusal to give the assault instruction was not error because the request for the additional instruction on assault had been made orally, rather than in writing.

The record, as corrected, shows that the request for the particular charge was made orally. To place the trial court in error for its denial of the oral request would contravene the uniformly accepted rule that requests for instructions in addition to those given in the court’s oral charge must be in writing.

McGee v. State [MS. p. 3, June 26, 1979] 383 So.2d 200, p. 202 (Ala.Crim.App.1979).

Both parties agree that the refused instruction on the lesser included offense of assault was requested in writing. We may look at the record for a complete understanding of the questions treated when there is no dispute thereon. Hunter v. State, 295 Ala. 180, 325 So.2d 921 (1975); Life Insurance Company of Georgia v. Miller, 292 Ala. 525, 296 So.2d 900 (1974). The defendant’s requested charge number one appearing on page 93 of the record reads as follows: “I charge you, members of the jury, that an indictment for robbery also includes the lesser charge of an assault.”

The petitioner presented evidence that he believed the dollar he forcibly took from Mr. Gray belonged to him. That evidence entitled him to an instruction on the lesser included offense of assault, because if the jury believed that the petitioner lacked the specific felonious or larcenous intent to steal, he could not be found guilty of robbery but only of the lesser included offense of assault. The defendant has the right to request instructions based upon any material hypothesis which the evidence in his favor tends to establish. Johnson v. State, 257 Ala. 644, 60 So.2d 818 (1952). In determining whether an instruction was supported by the evidence the question is not whether the Supreme Court or Court of Criminal Appeals believes the evidence, but simply whether such evidence was presented. Hunter v. State, supra; Giles v. State, 366 So.2d 351 (Ala.Cr.App.1978). We hold that the trial court erred in refusing the defendant’s requested instruction on the lesser included offense of assault and therefore reverse and remand.

Our resolution of the first issue presented by the appellant renders it unnecessary for us to address the other issues raised by this petition.

REVERSED AND REMANDED.

MADDOX, FAULKNER, JONES, AL-MON, SHORES, EMBRY and BEATTY, JJ., concur.

BLOODWORTH, J., not sitting.


text:
    Frank McGEE v. STATE.
    6 Div. 931.
    April 22, 1980.
   LEIGH M. CLARK, Retired Circuit Judge.

On authority of the opinion of the Supreme Court of Alabama, 383 So.2d 205, the judgment of the trial court herein is reversed and the cause remanded.

REVERSED AND REMANDED.

All the judges concur.


author: TYSON, Judge.

text:
    Jackie McLEOD v. STATE.
    3 Div. 175.
    Court of Criminal Appeals of Alabama.
    March 18, 1980.
    Rehearing Denied April 22, 1980.

      E. Hamilton Wilson, Jr. of Wilson & Chapman, Montgomery, for appellant.
    Charles A. Graddick, Atty. Gen., J. T. Simonetti, Jr., Asst. Atty. Gen., Montgomery, for appellee.
   TYSON, Judge.

Jackie McLeod was indicted and tried for escape from work release. The jury found him “guilty as charged,” assessed him a fine of $1.00 and requested leniency. The trial court, however, set sentence at six months in the county jail.

The State’s evidence established that appellant was assigned to the Montgomery Work Release Center and was employed by the Montgomery Sanitation Department pursuant to a work release program. On January 10, 1979, appellant telephoned the supervisor of the Montgomery Sanitation Department and said that he was ill. A security check with the work release center revealed that appellant had boarded the bus at the center that morning, but he did not report to work, nor did he return to the center that evening.

Appellant testified in his own behalf that he repeatedly requested an eight hour pass to see his wife and three small children but that these requests were denied. Appellant testified that contrary to the State’s evidence he did go to work on January 10, 1979, and that he did return to the center that evening.

I

Appellant first argues on appeal that the verdict of the jury is void because it was contingent on his receiving leniency in sentencing.

At the close of deliberations the jury returned the following verdict: “We, the jury, find the defendant guilty as charged . We, the jury, request leniency for the defendant.”

In Cook v. United States, 379 F.2d 966 (5th Cir. 1967), the jury’s verdict of guilty contained a recommendation for- leniency. A poll of the jury indicated that one or more of the juror’s vote of guilty may have been contingent on the defendant receiving lenient treatment in sentencing. The trial court refused defendant’s request to inquire of the jury whether their votes would be for conviction if they were advised that they could not recommend leniency or that this recommendation was not a subject for their consideration.

The Circuit Court of Appeals for the Fifth Circuit held that the trial court’s refusal to clarify the jury’s verdict voided that verdict.

We view Crutcher v. State, 55 Ala.App. 469, 316 So.2d 716 (1975), to be controlling in this case, however. As Judge Bookout stated in Crutcher:

“In the instant case not only did counsel for the appellant fail to request to poll the jury, but nowhere in the record can it be shown or inferred that the jury might possibly have held otherwise if any,juror had known the recommendation of leniency would have had no effect. The proper method would have been for the defense attorney to ask to have the jury polled at which time he could have asked if each would have voted the same if the judge had instructed them that they could not recommend leniency. See: People v. Syph, 74 Misc.2d 466, 344 N.Y.S.2d 47 (1973).” 55 Ala.App. at 473, 316 So.2d at 720.

Therefore, the jury’s request for leniency under the facts of the present case is mere surplusage and does not nullify the guilty verdict.

II

Appellant also contends that the trial court erred to reversal in not allowing defense counsel to question a prison official about the amount of “good time” appellant lost as a result of his escape.

We have long held that the relevancy or lack of relevancy of a particular piece of evidence in a criminal proceeding rests largely in the sound discretion of the trial court. Hill v. State, Ala.Cr.App., 366 So.2d 296, cert. denied, Ala., 366 So.2d 318 (1978), and authorities therein cited. To be admissible the proffered evidence must tend to prove or disprove the. main inquiry of the case. Hill v. State, supra; C. Gamble, McElroy’s Alabama Evidence, § 21.01 (3d Ed. 1977).

In the present case, the amount of “good time” appellant may have lost as a result of the escape could not possibly shed light on the question of whether he in fact escaped as charged in the indictment. Thus, the trial court did not abuse its discretion in not allowing testimony on this matter.

This record is free of error, and this cause is hereby

AFFIRMED.

All the Judges concur.