author: PRICE, Judge. PER CURIAM.

text:
    Mary Sue Brewton WOODALL, Plaintiff-Appellee, v. Patrick Roney WOODALL, Defendant-Appellant.
    No. 14489.
    Court of Appeal of Louisiana, Second Circuit.
    March 23, 1981.
    Rehearing Denied May 1, 1981.
    En Banc. On Rehearing May 4, 1981.

      Richie & Richie by C. Vernon Richie, Shreveport, for defendant-appellant.
    James L. Fortson, Shreveport, for plaintiff-appellee.
    Before PRICE, MARVIN and JASPER E. JONES, JJ.
   PRICE, Judge.

Patrick Roney Woodall has appealed a judgment of August 21, 1980, reducing the amount of child support payable to his former wife, Mary Sue Brewton Woodall, and the judgment of September 8, 1980, accruing past due amounts of unpaid installments and finding defendant in contempt of court for nonpayment. His appeal raises three issues:

(1) Whether the trial court abused its discretion in reducing his child support payments by only $200 per month;
(2) Whether the trial court abused its discretion in trying him for contempt of court in his absence; and
(3) Whether the trial court abused its discretion in finding him in contempt of court for willfully violating the trial court’s judgment.

On the first issue, the record discloses that on April 11, 1979, by consent and agreement of the parties, judgment was rendered accruing $3,800 in past due alimony and child support and ordering Woodall to pay his wife $800 per month as child support. The judgment also ordered him to pay medical and dental bills for the two minor children; to maintain hospitalization and medical insurance on the children; and additionally, to pay a $150 per month mortgage note and insurance on an automobile for one of the children.

On March 24, 1980, Woodall filed a rule seeking a reduction in the child support award. He alleged he was then unemployed and was in the process of filing bankruptcy proceedings and was unable to continue to pay the amount fixed in the consent judgment of April 11, 1979. After hearing evidence on the rule, the trial judge ordered a reduction from $800 to $600 in the sum payable directly from Woodall to his wife. The court ordered a continuation of the other obligations imposed on Woodall in the previous judgment, i. e., payment of a car note of $150; liability insurance on the automobile; medical and dental costs for the children; and maintenance of hospitalization and medical insurance for the children.

The record shows the total obligation of Woodall under the April 11,1979, judgment was approximately $1,100 ($800 plus costs of ancillary obligations required by the terms of the judgment). At the time the consent judgment was negotiated and rendered, he was engaged in real estate activities with a partner. Their principal occupation was the promotional development of apartment projects. In 1978, the year prior to the consent judgment, Woodall had an income of $28,000 from this source. The business of the partnership apparently ceased in the spring of 1979. Woodall filed bankruptcy proceedings in March 1980. He contends he has had no meaningful source of income since 1979, and that although he has sought employment commensurate with his education as an accountant and his experience in real estate promotion, he has been unsuccessful in finding suitable employment. At the time of trial of the rule he had obtained employment as a night auditor at the Sheraton Hotel in Bossier City at a pay scale of $4.25 an hour which gave him a net monthly income of approximately $600 per month.

Although the trial court ordered a reduction of $200 per month in the award, the total amount which Woodall must continue to pay is approximately $900 per month ($600 plus ancillary provisions of $300). This is obviously in excess of the net amount of his earnings at the time of trial. The trial court based its refusal to grant a more extensive reduction on a finding that Woodall has a “voluntary change of circumstance” and that his failure to seek employment paying higher compensation was “unreasonable” and “unjustified.”

The court found that because Woodall had an accounting degree and a real estate brokers license that he was capable of obtaining more suitable employment from which his earnings would be sufficient to pay substantially all of the amount awarded in the prior judgment. The court was of the opinion Woodall had not been in good faith in seeking employment and his actions deprived his children of “continued reasonable financial support.”

The trial court relied principally on the decisions in Mosley v. Mosley, 348 So.2d 225 (La.App. 3d Cir. 1977), writ refused 350 So.2d 1213 (1977), and Sykes v. Sykes, 308 So.2d 816 (La.App. 4th Cir. 1975). Mosley was concerned with a situation where a husband voluntarily quit employment earning $20,000 to attend law school. Sykes declared that “in order for a husband to excuse himself from the obligation to provide minimal financial assistance to a wife and children he must show that he is absolutely unemployable, not merely that he is unemployed at the time.”

We do not find either of these cases necessarily controlling the instant situation. Here, the evidence shows Woodall did not voluntarily quit his occupation in the real estate development field. Economic conditions have stymied further development of apartment projects. This is a factor which is of such common knowledge that the court can accept Woodall’s testimony to this effect without further corroborating evidence. Further, the evidence does not show Woodall has refused to work, although it may be he has not pursued employment opportunities to the ideal degree as discussed by the trial judge.

The evidence does show he made a minimum of 14 applications to employers or through employment services between November 1979 and February 1980. He apparently was soliciting employment commensurate with his prior work experience and educational background. Whether or not he could have found immediate employment as a basic accountant solely on the qualification of a degree earned some ten years earlier is highly speculative since he had not followed this profession and had no work experience to offer.

We agree with the trial judge’s observation that Woodall should motivate himself to climb back to the earning status which he formerly occupied, and that his present employment as a night motel auditor is not commensurate with his educational background. However, in view of the overall evidence, we cannot say that his present financial plight is entirely “voluntary” or that he has made no effort to become employed.

We therefore are of the opinion that the trial court abused its discretion in not adjusting the child support award to an amount more commensurate with Woodall’s present ability to pay. The record before us does not contain the prior proceedings showing the needs for the two minor children. However, this is unnecessary for present purposes as the only issue before us is the determination of the maximum amount which Woodall can pay under his changed circumstances.

In view of Woodall’s present limited earnings and lack of any assets providing financial ability to pay the sum for which he is presently obligated for support, the award should be reduced to $400 per month. We recognize that even this amount when added to the remaining provisions of the judgment relating to ear payment, insurance, and medical would appear to exceed his present earnings and not allow him a sufficient sum for his own maintenance. However, we are taking into consideration his testimony that he was, at the time of trial, seeking additional employment for his off-duty daytime hours to supplement his income from night employment as a motel auditor.

On the second issue, appellant contends that the trial court erred in trying him for contempt of court on August 21, 1980, in his absence. The record shows Woodall’s attorney was served with the contempt rule ordering him to appear on this date, and that Woodall was notified of the hearing, and that his absence at the hearing was voluntary and intentional. Nevertheless, appellant contends that because an action for contempt of court is quasi criminal in nature, a defendant in a contempt proceeding should be afforded all the rights of a defendant in a criminal proceeding. Appellant’s argument has no merit under the facts of the instant case. The record shows proper notice and service. The attorney representing Woodall objected to proceeding without his client’s being present but admitted he was fully aware of the proceeding, and that his absence was apparently intentional. A recess was called to allow counsel time to persuade defendant to attend the hearing. Although Woodall was contacted and given sufficient time to appear, he failed to do so. Under these circumstances due process requirements were met.

In the remaining issue, appellant contends there was no evidence presented to show that his violating the trial court’s judgment was willful, which is essential to a finding of contempt. This argument is also without merit. The testimony presented showed Woodall was in arrears in paying the judgment ordered by the court. It was therefore his burden to show any legal excuse for nonpayment. Although Woodall was afforded the opportunity to appear and carry this burden, he voluntarily chose not to avail himself of this opportunity. We find no abuse of discretion in the trial court’s finding Woodall in constructive contempt.

For the foregoing reasons the judgment of April 11,1979, ordering a reduction from $800 to $600 in the amount of child support payable by Patrick Roney Woodall to Mary Sue Brewton Woodall, is amended to reduce the amount payable to the sum of $400, payable $200 on the first and fifteenth of each month, beginning March 24, 1980.

The judgment is otherwise affirmed insofar as it continued all other provisions of the judgment rendered on April 11, 1979.

It is further ordered that the judgment rendered on August 21, 1980, and signed September 8, 1980, accruing past due installments of child support and holding appellant, Patrick Roney Woodall, in contempt for his failure to pay child support as directed by the court is affirmed. Costs of this appeal are assessed to appellant.

En Banc: PRICE, HALL, MARVIN, JASPER E. JONES, and FRED W. JONES, Jr., JJ.

ON APPLICATION FOR REHEARING

PER CURIAM.

The application for rehearing calls our attention to several alleged errors in the dates of the judgments below and here. Accordingly, and in order to clarify our judgment, we amend the first paragraph of our judgment to read:

. For the foregoing reasons the judgment of August 21, 1980, ordering a reduction from $800 to $600 in the amount of child support payable to Patrick Roney Woodall to Mary Sue Brewton Woodall, is amended to reduce the amount payable to the sum of $400, payable $200 on the first and fifteenth of each month hereafter.

The judgment of the lower court which we amend is not the earlier judgment of April 11,1979, but the judgment appealed which is dated August 21, 1980.

The reduction in support made by this court will not become effective until such time as this opinion becomes a final judgment. Frederic v. Frederic, 302 So.2d 903 (La.1974); Bruner v. Bruner, 373 So.2d 971 (La.App. 2d Cir. 1979); Macip v. Wallace, 381 So.2d 869 (La.App. 3d Cir. 1980).

As herein restated and corrected, the opinion of this court is not in error and the application for rehearing is therefore denied.

      . There has been no question raised regarding this court’s authority to review a contempt judgment on direct appeal rather than by application for supervisory writ—for a discussion of this issue see City of Monroe v. Evans, 385 So.2d 912 (La.App. 2d Cir. 1980). Following the rationale of Evans we can properly review this issue as it is ancillary to the other judgment before us for review.

      . Sentencing was deferred by the trial court and a bench warrant issued to insure appellant’s appearance before the court for this purpose at a future date.


source: Caselaw Access Project

author: PRICE, Judge.

license: Public Domain

text:
    John L. HARPER, Plaintiff-Appellee, v. KAST METALS CORPORATION et al., Defendants-Appellants.
    No. 14508.
    Court of Appeal of Louisiana, Second Circuit.
    March 23, 1981.
    En Banc. Rehearing Denied May 1, 1981.
    Writ Denied June 22,1981.
    Blanchard, Walker, O’Quin & Roberts by Jerald L. Perlman, Shreveport, for defendants-appellants.
    Timothy R. Fisher, Shreveport, for plaintiff-appellee.
    Before PRICE, HALL and JASPER E. JONES, JJ.
   PRICE, Judge.

Plaintiff, John L. Harper, instituted suit for workmen’s compensation benefits against his former employer, Kast Metals Corporation, and its insurer, Fidelity and Casualty Company of New York, seeking total and permanent disability payments, penalties, and attorney fees. Plaintiff alleged that he was unable to perform his work without enduring substantial pain in both wrists as a result of an accident he suffered during the course and scope of his employment, or alternatively, from an occupational disease he contracted while in Kast Metals’ employ. The trial court found plaintiff had suffered a work-related accident which was causally related to the resulting disability to his wrists. The court awarded plaintiff $117.93 per week for a period of 450 weeks under the partial disability provisions of La.R.S. 23:1221, but denied his claims for penalties and attorney fees. Prom the judgment finding plaintiff partially disabled as a result of a work-related accident, defendants appeal. We affirm.

The evidence shows plaintiff to be an illiterate manual laborer with a sixth grade education. He began work with Kast Metals in 1975, primarily employed as a chipper and a magnaflex operator. Both of these jobs entailed heavy physical work, including continuous lifting of heavy cast metal products. While working in both capacities, plaintiff periodically experienced some soreness in both his wrists. However, on or around August 14, 1978, he allegedly twisted his left wrist while working as a chipper on a pneumatic grinder. Plaintiffs supervisor filled in first aid authorization slips dated August 15 and 16, 1978, wherein he indicated plaintiff had sustained a plant injury to both wrists. Plaintiff reported to the company First Aid Station on August 15 and received treatment for his wrists and was told to return the following day before reporting to work. Plaintiff’s employee health record indicated he did not return to the First Aid Station nor did he ever return to work. Within a few days from the time of the alleged accident, plaintiff sought medical treatment and eventually underwent surgery on his left wrist.

On September 8, 1978, plaintiff filed a claim for disability benefits under defendant’s health and disability insurance policy with Prudential Insurance Company. Prudential paid disability benefits to plaintiff until plaintiff made a claim for workmen’s compensation benefits in December of 1978. Plaintiff was subsequently denied workmen’s compensation benefits and this suit was filed shortly thereafter.

Medical testimony in the form of depositions was given by two orthopedists, Dr. Ray E. King and Dr. Thomas A. Norris. While Dr. King was the physician primarily involved in Mr. Harper’s treatment, Dr. Norris performed a thorough evaluation of the plaintiff at the request of the defendants. For the most part, testimony given by these two orthopedic specialists concerning plaintiff’s injury was consistent. Dr. King first examined plaintiff on September 26, 1978, at which time he noted plaintiff’s complaints of pain in both wrists and observed signs of swelling, especially in plaintiff’s left wrist. Dr. King diagnosed plaintiff’s condition to be traumatic arthritis caused by a series of trauma to plaintiff’s wrists. Dr. Norris testified that he found plaintiff suffered from degenerative arthritis. Nevertheless, both doctors acknowledged that plaintiff’s arthritic condition was probably caused by, or at least greatly aggravated by, the heavy manual labor plaintiff performed while working at Kast Metals.

The trial court found that the weight of the evidence presented showed that plaintiff had suffered an accident at Kast Metals in mid August 1978. The court found plaintiff’s testimony concerning the accident was corroborated by the testimony given by plaintiff’s wife and substantiated by the following facts: plaintiff’s-supervisor indicated on both first aid slips that plaintiff’s injury was plant related; the Prudential claim form indicated the first day plaintiff was unable to work was August 16, 1978; plaintiff’s employee health record showed his last day of work to be August 15, 1978; and plaintiff sought medical treatment for his wrists for the first time in September 1976.

On appeal defendants specify as error:

(1) That the trial court found plaintiff had suffered a work-related accident;
(2) That the trial court classified plaintiff’s arthritic condition as a compen-sable accident within the meaning of the Louisiana Workmen’s Compensation Act; and
(3) That the trial court in finding plaintiff had suffered an accident in the course of his employment, found that the accident was a cause of plaintiff’s disability.

Defendants’ primary argument on appeal is that plaintiff failed to establish that he had suffered a work-related accident as required under the Louisiana Workmen’s Compensation Act. More specifically, defendants complain that plaintiff’s version of an accident is weakened because plaintiff did not indicate to his supervisor, the first aid officer, nor Dr. King that his injury was caused by an on-the-job accident. Furthermore, defendants contend plaintiff’s case is unsupportable because on his application for disability benefits he indicated his injury did not arise out of his employment. Defendants argue that plaintiff’s condition is solely attributable to a gradual deterioration caused by the interaction between the heavy lifting on the job and plaintiff’s preexisting degenerate arthritis.

Findings of the trial judge on factual issues in a workmen’s compensation case are entitled to great weight and are not to be disturbed except on a showing of manifest error. Newell v. United States Fidelity & Guaranty Co., 368 So.2d 1158 (La.App. 3d Cir. 1979) and cases cited therein; Guidry v. Ford, Bacon and Davis Construction Corporation, 376 So.2d 352 (La.App. 3d Cir. 1979); Farrar v. Guy Atkinson Co., 325 So.2d 893 (La.App. 2d Cir. 1976); Rivers v. Macco, 391 So.2d 873 (La.App. 4th Cir. 1980).

In the instant case, this court cannot conclude that the trial court was clearly wrong in its determination that plaintiff suffered an on-the-job injury to his wrists which was causally related to his disability. Under the prevailing trend of the jurisprudence it is not necessary that plaintiff prove his disability results from a sudden unexpected traumatic event. It is sufficient to show merely that the disability was caused by a work activity which can be gradual and progressive in nature. See Gales v. Great Atlantic & Pacific Tea Co., 342 So.2d 241 (La.App. 4th Cir. 1977), writ denied 343 So.2d 1077 (La.1977).

The trial court reviewed the pertinent jurisprudence and other authorities on this question in a thorough and well-reasoned written opinion which we incorporate herein and adopt as our own view in this opinion as follows:

“Louisiana courts have broadly interpreted the term ‘accident’ as defined in R.S. 23:1021(1) to the point that the statutory requirements for an accidental injury are present ‘. .. when the performance of the usual and customary duties of a workman cause or contribute to a physical breakdown.’ Ferguson v. HDD, Inc., 270 So.2d 867 at 869 (La.1972). See Malone and Johnson, Workers’ Compensation 2d Ed. Sections 211-217 (1980), Louisiana Civil Law Treatise.”

“Moreover, the fact that a condition may be referred to as an illness or disease does not preclude its classification as an accident. Parks Insurance Co. of North America, 340 So.2d 276 (La.1976). An accident which aggravates or accelerates a pre-existing condition is compensable even where disability is not caused by a single or specific incident. Chism v. Kaiser Aluminum and Chemical Corporation, 332 So.2d 784 (La.1976). The courts have expanded the interpretation of the term accident to encompass the instant situation.”

“ ‘The net result of years of interpretive jurisprudence seems to be that if the “result” of an event or series of events is “accidental” (and certainly almost any injury or change in the physical structure of the body would classify as “accidental”), the requirements of this section of the Act are satisfied — without regard to whether the “cause” was accidental.’ ” Malone-Johnson, 2d Ed. 214, p. 435.

“A case illustrating an event that was determined to be an accident is Gales v. Great Atlantic and Pacific Tea Co., 342 So.2d 241 (La.App. 4th Cir. 1977), wherein the claimant suffered a gradual development of rheumatoid arthritis after being exposed to great differences in temperature in his work over an extended period of time. The court believes this case is factually close on point to the present one, and defendant’s attempt to distinguish the case is not convincing.”

“The current view in the jurisprudence concerning the instant situation may be summarized as follows:

“ ‘... compensation may be allowed * * * even for a normal or usual occurrence which produces no immediate indication of the full extent of the injury if the court is otherwise satisfied that there is a causal relation between the job and the disability.’ ” Malone-Johnson, 2d Ed. 216, p. 445.

“In the present ease, the court is satisfied that a preponderance of the evidence shows that a causal relationship has been established between the job and the disability. Both physicians who examined plaintiff agreed that his job most probably caused plaintiff’s arthritis. The court further considers the evidence and testimony that an injury occurred on or about August 15, 1978 that disabled plaintiff, in light of the above jurisprudential interpretation of the Compensation Act.”

“Further cases dealing with similar factual situations support the court’s decision.”

“Lum v. Employer’s Mut. Lia. Co. of Wis., 216 So.2d 889 (La.App. 2d Cir. 1968), cert. denied 219 So.2d 175 (1969), presented issues similar to the present one. There the claimant was afflicted with a pre-existing condition of arthritis. Her assembly-line job required constant motion of the wrist. She suffered arthritic pain for several months on the job, until her wrist finally ‘popped’ one day while in the course of her employment.”

“As in the present case, the defendant in Lum attempted to make much of the fact that the claimant there did not give the treating physician a history of an accident on the claimant’s first visit to the physician. The Second Circuit dismissed this argument, since the overall record established the necessary facts.”

“The Second Circuit in Lum reiterated the general rule that an employee disabled by an accident is protected and is to be compensated even though the disease or weakened condition might have produced disability in any event. The court further stated:

‘Thus, an employee’s disability is com-pensable when precipitated by an industrial accident, even though a pre-existing, dormant physical condition or predisposition has contributed thereto.’ 216 So.2d 889 at 892.

The court concluded:

‘We are of the opinion that plaintiff sustained an “accident”, as the word is defined in the Workman’s Compensation statute (LSA-R.S. 23:1021, subd. (7)[1]), which worsened and aggravated a pre-ex-isting arthritic condition resulting in her total disability.’ 216 So.2d 889 at 893.”

“The Third Circuit Court of Appeal followed these principles in Roberson v. Liberty Mutual Ins. Co., 316 So.2d 22 (La.App. 3d Cir. 1975). The claimant there suffered a severe ‘jerk’ to his lower back. There was a divergence of medical opinion as to the cause of the problem, but the Court stated:

‘. . . an employee’s disability is fully compensable when precipitated by an industrial accident, even though caused, also, by a contributing, pre-existing, dormant physical condition, or pre-disposition.’ 316 So.2d 22 at 25.

The court concluded:

‘After reviewing all of the evidence, we cannot say that plaintiff’s disability is due solely to the pre-existing arthritic condition. At the very least, the evidence indicates that the January 1974, accident aggravated the arthritic condition to an extent that the plaintiff subsequently became disabled.’ 316 So.2d 22 at 26.”

“Finally, the case of Warnke v. Owens-Illinois, Inc., 326 So.2d 881 (La.App. 4th Cir. 1976), is easily distinguishable from the instant one. In Warnke the claimant was unable to substantiate a work-related accident that aggravated her pre-existing degenerative arthritis. Her claim was totally uncorroborated by any proof of a single accident or even series of accidents, and the court properly denied compensation.”

“In the present case, the court feels there is sufficient evidence of a work related accident that occurred on or about August 15, 1978, to bring plaintiff within the coverage afforded by the Compensation Act. This determination is based on the preponderance of evidence and testimony adduced at trial, and is considered in light of similar factual cases and judicial interpretations of an ‘accident’ as that term is used in the Act. See Malone-Johnson, 2d Ed. 232, pp. 487-493.”

For the foregoing reasons, the judgment awarding plaintiff workmen’s compensation benefits is affirmed. Costs of this appeal are taxed to defendants-appellants.


text:
    STATE of Louisiana In the Interest of Frank DELCUZE et al. v. OFFICE OF HUMAN DEVELOPMENT OF the DEPARTMENT OF HEALTH AND HUMAN RESOURCES for the State of Louisiana.
    No. 12412.
    Court of Appeal of Louisiana, Fourth Circuit.
    April 21, 1981.

      • Thomas W. Tucker and Robert D. Hoffman, Jr., New Orleans, for relator.
    Steven Scheckman, New Orleans Legal Assistance Corp., New Orleans, for respondent.
    Before REDMANN, BOUTALL and BARRY, JJ.
   A petition was filed in the Juvenile Court pursuant to LSA-C.J.P. Art. 13(14) alleging that respondents’ six children were in need of care, and neglected/dependent under LSA-R.S. 13:1569(16). The mother, respondent, filed a motion for discovery of material contained in the files of the Office of Human Development (OHD) pursuant to LSA-C.J.P. Art. 60 and LSA-R.S. 46:56(F)(1). The OHD opposed the requested discovery and the juvenile judge held that the mother was entitled to her requested discovery based upon the constitutional doctrine of “fundamental fairness” via LSA-C.J.P. Art. 60 and LSA-R.S. 46:56.

Two issues are presented here:

1) Whether the OHD is a “probation officer” entitling a parent to discovery under LSA-C.J.P. Art. 60.
2) Whether the failure of LSA-R.S. 46:56(F)(1) to allow counsel for a parent access to the case files of OHD denies that parent due process and equal protection under the United States and Louisiana Constitutions.

DISCOVERY UNDER LSA-C.J.P. ARTICLE 60

Article 60 of the Code of Juvenile Procedure allows discovery “upon written motion of counsel for the parents” in cases where children are alleged to be in “need of care”. Discovery is directed to the district attorney and the probation officer.

It’s respondent’s contention that the “probation officer” in the statute and the Louisiana Office of Human Development are synonymous and therefore discovery should be permitted against the OHD.

We feel respondent’s position is erroneous in view of LSA-R.S. 46:1906 which provides that probationary functions are to be performed by the Division of Youth Services. Further, LSA-R.S. 46:1256 creates a Juvenile Probation Service under the jurisdiction of the Department of Health and Human Resources.

We are mindful of the necessity for confidentiality in sensitive cases of this nature. Experience shows that much of the data gathered comes from sources close to the family, such as clergy and neighbors, and oftentimes, from one of the parents. The need for secrecy of the source is obvious and if revealed could cause more harm than good.

We therefore conclude that the juvenile judge erred in determining that the Office of Human Development is a “probation officer” under LSA-C.J.P. Art. 60 and LSA-R.S. 14:403.

DISCOVERY UNDER LSA-R.S. 46:56(F)(1)

LSA-R.S. 46:56 provides the cloak of “confidentiality” under which the OHD functions. However, Subsection (F)(1) allows for “case records of children in abuse and neglect and foster care cases to be reviewed by attorneys who are appointed by a court of juvenile jurisdiction to represent the sole interest of the children”. There is no provision therein which permits counsel for the parent(s) to review the files of the OHD. Respondent contends that this is a disparity which denies a parent due process and equal protection in neglected child proceedings.

Equal protection of the law is mandated by the Fourteenth Amendment to the United States Constitution and requires uniform treatment of all persons standing in the same relation to the 'governmental action questioned or challenged. We agree with relators’ argument that to violate due process there must be an absence of appropriate governmental interest to be furthered by the differentiation. A legislative classification, such as here, must be sustained unless it is “patently arbitrary and bears no rational relationship to a legitimate governmental interest”. Frontiero v. Richardson, 411 U.S. 677, 93 S.Ct. 1764, 36 L.Ed.2d 583 (1973). The equal protection clause is offended only if the statutory classification rests on grounds wholly irrelevant to achievement of the state’s valid objective. Holt v. City of Tuscaloosa, 439 U.S. 60, 99 S.Ct. 383, 58 L.Ed.2d 292 (1978).

Certainly Louisiana has a legitimate interest in the protection of its children. Providing differential treatment between the juvenile (who is a party to this litigation) and a parent does not violate equal protection because the legitimate state interest concerns the welfare of the juvenile. The very nature of a juvenile requires that they be given a greater degree of protection by law than the parent.

The juvenile judge, in his well-articulated reasons, cited three U.S. Supreme Court cases. Application of Gault, 387 U.S. 1, 87 S.Ct. 1428, 18 L.Ed.2d 527; In the Matter of Winship, 397 U.S. 358, 90 S.Ct. 1068, 25 L.Ed.2d 368; McKeiver v. Pennsylvania, 403 U.S. 528, 91 S.Ct. 1976, 29 L.Ed.2d 647. However, each of these cases are concerned with juvenile delinquency and are quasi-criminal and do not deal with neglect or alleged abuse. Nevertheless, this trilogy of cases was the juvenile court’s foundation to formulate the doctrine of “fundamental fairness”. However, “fundamental fairness” is not all-encompassing and does not require abandonment of appropriate statutes which fairly govern the administration of justice in our juvenile court system. Finally, “fundamental fairness” evolved in an effort to protect the juvenile, and open file discovery in favor of a parent does not mean that this doctrine will be enhanced.

Accordingly, we grant mandamus and order that the trial court vacate its judgment dated January 19, 1981 ordering discovery of information in the possession of the Office of Human Development in favor of respondent.

MANDAMUS GRANTED.


author: SUGG, Justice,

text:
    COOK CONSTRUCTION COMPANY, INC. and the Western Casualty & Surety Co. v. Robert SMITH.
    No. 52518.
    Supreme Court of Mississippi.
    April 29, 1981.
    Joseph L. McCoy, McCoy, Wilkins, Noblin & Anderson, Jackson, for appellants.
    B. Stevens Hazard, Daniel, Coker, Horton, Bell & Dukes, Jackson, for appellee.
    Before PATTERSON, C. J., and SUGG and WALKER, JJ.
   SUGG, Justice,

for the Court:

This case involves the question of whether Robert Smith’s injury occurred within the course and scope of his employment with Cook Construction Company, Inc. The administrative judge and the Workmen’s Compensation Commission allowed compensation which was affirmed on appeal to the Circuit Court of the First Judicial District of Hinds County. The carrier and employer have appealed.

Roger Rader owned two trucks which were used in hauling asphalt for Cook for approximately four years. Smith had been driving one of Rader’s trucks for about a year and a half before he was injured. Rader was paid by Cook weekly on a per ton basis with mileage also considered as a factor to determine the rate per ton he was paid. Smith in turn was paid by Rader thirty percent of the amount earned by the truck he operated. The agreement between Rader and Cook was an oral agreement terminable at will by either party. Delivering asphalt from Cook’s plant to its customers was an important part of Cook’s business operation. Cook had contracts with different customers which required delivery of asphalt to different locations at the time Smith was injured. Smith’s working hours were determined by Cook and he was given instructions by Cook where to deliver asphalt as well as other instructions pertaining to the details of performing his services as a truck driver.

On the day before Smith was injured, he had been hauling asphalt for Cook when the two right rear tires of the truck he was driving were damaged beyond repair. He was able to return the truck to Cook’s Pocahontas plant. Rader instructed Smith to obtain tires and rims to replace the damaged tires. Smith was injured while checking the air pressure in the tires after installing them on the truck which he operated, and was paid by Rader for installing the new tires on the truck he operated.

The above facts are sufficient to establish an employment relationship between Smith and Cook. Wade v. Traxler Gravel Co., 232 Miss. 592, 100 So.2d 103 (1958); Stubbs v. Green Bros. Gravel Co., 206 So.2d 323 (Miss.1968).

Appellants do not argue that Smith was not an employee of Cook, but contend the facts established a dual employment status of Smith because Smith was compensated for his tire maintenance work in a different manner from his compensation as a truck driver and because Smith’s employment as a truck driver was not dependent upon his repairing the tires on the truck which he operated. Smith testified that he was not required to repair the tires but he repaired the tires because he needed the extra money and that he would have been retained as a truck driver without repairing the tires.

The critical point is whether the statutory language “arising out of” and “in the course of” would include Smith’s work in repairing the tires as a basis for compensation.

In Big “2” Engine Rebuilders v. Freeman, 379 So.2d 888, 890 (Miss.1980), this Court stated:

The statutory language “arising out of” and “in the course of” creates a requisite for compensability. Broadly, “arising out of” calls for some causal connection between the employment and the injury. However, the employment need not be the sole cause of injury; it is sufficient if it rationally contributes’ to it. Prince v. Nicholson, 229 Miss. 718, 91 So.2d 734 (1957). Reasonable relation of employment and injury may involve minimal causation, less than needed for liability in the field of Torts. See, e. g., Charles N. Clark Assoc. v. Dept. of Robinson, 357 So.2d 924 (Miss.1978).
The decisions also display the breadth of the phrase “in the course of.” This phrase satisfied whenever the injury resulted from activity which is (1) in its overall contours actuated at least in part by a duty to serve the employer, or (2) reasonably incidental to the employment. Incidental activities have been held to include such personal pursuits as cleaning teeth, smoking and procuring tobacco, and going to the telephone. (379 So.2d at 890).

In Dunn, Mississippi Workmen’s Compensation Commission, § 170 (2d ed. 1967), the author states:

Generally, as at common law, an employee is said to be in the course of employment when the incident occurs at a place where he reasonably may be in the performance of his duties at a time when his is fulfilling those duties or is engaged in something incidental thereto in furtherance of the employer’s business. In other words, the activity, out of which the injury results, must be one related to the employment in the sense that it carries out the employer’s purposes or advances his interests directly or indirectly. (Emphasis added).

We are of the opinion that Smith’s activity in repairing the tires on the truck were reasonably incidental to his employment and hold that his injuries occurred within the course and scope of his employment with Cook. Of course, if Smith had been injured while installing tires on a personal vehicle of Rader’s, not used to haul asphalt, Smith’s employment in such capacity would not have been covered by the Workmen’s Compensation Law.

AFFIRMED.

PATTERSON, C. J., SMITH and ROBERTSON, P. JJ., and WALKER, BROOM, LEE, BOWLING and HAWKINS, JJ., concur.


author: ROBERTSON, Presiding Justice,

text:
    CONTINENTAL OIL COMPANY, known as Conoco, Inc. v. Warren L. BLAIR, James R. Blair, and Joe T. Blair.
    No. 52285.
    Supreme Court of Mississippi.
    April 29, 1981.
    Leslie H. Southwick, John M. Grower, Brunini, Grantham, Grower & Hewes, Jackson, for appellant.
    Martha W. Gerald, Walker L. Watters, William F. Blair, Gerald, Brand, Watters, Cox & Hemleben, Jackson, for appellees.
    Before ROBERTSON, P. J., and BROOM and BOWLING, JJ.
   ROBERTSON, Presiding Justice,

for the Court:

Continental Oil Company (Conoco) appeals from a decree of the Chancery Court of Clarke County ordering it to pay Warren L. Blair, James R. Blair, and Joe T. Blair $92,759.07 for damages sustained by them because of drainage of oil from a 38-acre drilling unit (Tract 31-11) in the Davis Field in Clarke County, in which they own three royalty acres. The chancellor found that the drainage was to wells on an adjoining 40 acre drilling unit (Tract 31-10), both drilling units being parts of the same original lease to Conoco.

On May 15,1962, S. B. Kirkland executed an oil, gas and mineral lease to Marion Buchanan covering 437 acres in Section 31, Township 3 North, Range 16 East, in Clarke County. Three days later, on May 18,1962, Buchanan assigned this lease to Conoco.

The State Oil and Gas Board approved 40-acre drilling units for the Kirkland lease. The drilling units which are of primary concern in the case at bar are: Drilling unit 31-11, which covers 38 acres in the NE Vi of the SW Vi of Section 31, and 40-acre drilling unit 31-10 (the NW Vi of the SE Vi of Section 31).

After the discovery well was brought in on Unit 31-10, but before any wells were drilled on Unit 31-11, on August 21, 1969, James Blair, Joe Blair and Warren Blair purchased 3 royalty acres in 38-acre drilling unit 31-11 from S. B. Kirkland’s heirs. Subsequently Conoco drilled and dually-completed 4 oil wells on Unit 31-11 and 4 dually-completed wells on Unit 31-10. Each dually-completed well draws from 2 separate pools of oil, so these four wells on Unit 31-11 would be the equivalent of 8 separate wells, and on Unit 31-10 there would be the equivalent of 10 separate wells since the discovery well was also on Unit 31-10.

The Davis Field in Clarke County in-r eludes at least 23 separate oil pools or reservoirs. In their amended bill of complaint, the Blairs aver that 20 of these 23 separate pools underlie 38-acre drilling unit 31-11 in which they own 3 royalty acres, and that 9 of these pools are being drained by wells drilled by Conoco on. adjacent property (largely 40-acre drilling Unit 31-10), both units being parts of the same Kirkland lease. The Blairs charged that Conoco had “failed and refused to act as a reasonably prudent oil and gas operator in failing to protect Complainants’ land from said drainage.”

Conoco answered:

“Defendant would show that the Kirkland Lease which covers the subject lands has been operated by the Defendant as a prudent operator and that the Complainants have not suffered any compensable net loss by drainage.”

In his opinion in favor of complainants, the chancellor concluded:

“The defendant, Continental Oil Company, failed to act, or did not act, as a reasonably prudent operator during its operation of the Davis Field up until July 1, 1978.
“The defendant’s continued refusal and/or continued inaction to properly protect the individual units of the Davis Field, among which is the interests of the complainants, constitutes bad faith and abuse toward the complainants who have been severely damaged as a result thereof.”

Conoco has assigned as error:

1. The lower court erred in finding that there exists an obligation to prevent “drainage” from one part of a lease to another well on the same lease.
2. The lower court erred in permitting a change in royalty ownership after the lease was entered to enlarge the obligations and diminish the rights of the lessee, in complete disregard of basic contract principles.
3. The lower court failed to consider the effect of express lease terms governing both parties, and thereby erred in permitting the conveyance of a royalty interest subsequent to the lease to increase the burdens upon the lessee.
4. The lower court erred in finding that Conoco had not conducted its development in good faith as a prudent operator.
5. The lower court erred in finding that any drainage had occurred to wells drilled off of the Kirkland lease.
6. The lower court erred in establishing the measure of drainage as $12.17 per barrel of oil for each barrel allegedly drained.

There is a fundamental difference between the obligation of the lessee to protect the lessor from “external” drainage, that is, drainage to wells on adjoining lands under a different lease from “internal” drainage, which is drainage from one well to another within the same lease.

The rule is well stated in 2 Williams & Meyers, Oil and Gas Law, § 409.3 (1980):

“[Ujnless negated by express provisions, leases contain an implied covenant to protect the leasehold from external drainage, that is, from drainage to non-leasehold lands.” 2 Williams & Meyers at pp. 287-88.

The authors go on to say:

“To be distinguished from external drainage ... is internal drainage. This is drainage from one part of [the leased property] to another, all within the boundaries of the leasehold. The original lease contains no implied covenant against internal drainage.” (Emphasis added). 2 Williams & Meyers at p. 289.

This Court referred to the covenant as one “to protect leased premises against drainage by [the operator’s] oil well on adjoining land.” Monsanto Chemical Company v. Sykes, 245 Miss. 207, 212, 147 So.2d 290, 291 (1962). (Emphasis added).

What then are the duties of the lessee in this situation? This Court has adopted the majority position that the obligations of a lessee are governed by the “prudent operator rule”:

“In the oil business, and in determining the rights of people, there must be some guide by which to go. The guide developed through the decades is the prudent operator rule. It is essential as a standard, just as the conduct of a reasonably prudent man is essential in negligence cases.” Monsanto Chemical Company v. Andreae, 245 Miss. 11, 19, 147 So.2d 116, 119 (1962). (Emphasis added).

Under the prudent operator rule, any claim that S. B. Kirkland or his successors could bring against the lessee, Conoco, would have to be expressed in terms of whether Conoco had violated an express or implied obligation owed to the lessor, judged under the prudent operator standard. Five implied obligations have been read into oil and gas leases, where express provisions have been omitted. See, e. g., 2 Summers, Oil & Gas § 395 at 535-6 (1959). These implied covenants, taken together with the express terms of the lease, form the obligations owed by Conoco to its lessor. The case at bar is based solely upon a supposed obligation by Conoco to compensate an owner of royalty interest in one part of the original lease from drainage by wells drilled on other parts of the same lease. Such an obligation did not expressly exist under the original lease. Therefore, the Blairs are arguing that when the heirs of Conoco’s lessor conveyed a 3/38 royalty interest in one drilling unit out of eleven drilling units in the original lease (and that conveyance being 7 years after the original lease was entered into, and also after the discovery well had been brought in on an adjoining drilling unit of the same lease), it created a new implied obligation upon its lessee. Such a position is untenable not only under general contract law concepts, but also under the specific terms of the lease that governs the rights of the parties.

The May 15, 1962, lease from S. B. Kirkland of 437 acres in Clarke County, which incidentally has been continuously held by Conoco since 1962, contained these express provisions. Paragraph 9 provides:

“The estate of either party hereto may be assigned in whole or in part and the covenant hereof shall extend to the heirs, executors, administrators, successors, and assigns of the parties. . . . No change in or division of the ownership of the right to receive royalty, delay rentals, or other payments accruing to Lessor hereunder shall operate to increase or enlarge the obligations or to diminish the rights of Lessee hereunder with respect to the location or number of wells or any other obligation whether express or implied, nor shall Lessee be required to separately measure or store or to separately account for royalties or other payments on account of production from any particular portion of the land herein leased. ...” (Emphasis added).

Paragraph 5 provides:

“As to that part of the leased premises which may be so included in a unitized area, the aforesaid royalties and payments on the allocated production shall be in lieu of any other royalties and payments which would otherwise become due Lessor under the terms hereof on account of any production from that part of the leased premises which may be so included in a unitized area. Lessee shall not be obligated to drill any offset well upon the leased premises to offset wells drilled upon any unitized area which includes any part of the leased premises.” (Emphasis added).

On August 21, 1969, when James Blair, Joe Blair and Warren Blair purchased their three royalty acres in 38-acre drilling tract 31-11, they bought with constructive and conscious knowledge of the terms, provisions and covenants of the 1962 Kirkland lease. In Millette v. Phillips Petroleum Co., 209 Miss. 687, 48 So.2d 344 (1950), (a suit by the original lessor against the original lessee), this Court said, among other things:

“The subject of offset wells is expressly provided for in the lease and there are evidences in the lease itself that its contents were examined and substantial corrections made in the printed form. The parties were competent to contract with regard thereto, and there is no room for an interpretation of its unambiguous provisions, much less of its nullification by supposed contrary implications. The producing well closest to appellant’s lands is 570 feet. The limitation of such duty on the part of the lessee to such wells as are within 150 feet precludes resort to an implied covenant in respect of a development by the drilling of an offset well on the lands of appellant.” 209 Miss. at page 701, 48 So.2d at page 346. (Emphasis added).

R. Malone, Problems Created by Express Lease Clauses Affecting Implied Covenants, 2 Rocky Mt.L.Inst. 137-138 (1956), summarizes cases in the area of implied covenants in this way:

“[Ijnasmuch as implied covenants are based upon a presumed intention of the parties, any provision of the lease which expresses an agreement of the parties upon the subject matter of an implied covenant may generally be considered as negativing the existence of, or the necessity for, such a covenant.. .. The great majority of the cases conclude that any expression by the parties upon the subject will negative the presumed intention which is the basis of all implied covenants.”

Paragraphs 5 and 9 of the original Kirkland lease contain what has come to be known in the oil and gas law area as “entirety provisions”. 2 Williams & Meyers, Oil and Gas Law, § 521.3 (1980), at page 678.15, has this to say about entirety provisions or clauses:

“Such clauses are inserted in leases primarily for the benefit of the lessee to make it clear to lessors or subsequent transferees of the lessor or lessors that inside property lines created by later divisions of the fee ownership or by royalty conveyances shall not affect the lessee’s duties of development and operation.” (Emphasis added).

In Krone v. Lacy, 168 Neb. 792, 97 N.W.2d 528 (1959), the Supreme Court of Nebraska said:

“The entireties clause is a valid burden imposed upon the interest in the property retained by the lessors. . . . The lessors, by executing the lease, placed a restriction upon their power to alienate any part of their estate in the land covered by the lease except in accordance with the provisions of the lease itself . . .. ”

97 N.W.2d at 534.

Texas has also recognized the validity of an entireties clause. See Cockrell v. Texas Gulf Sulphur Company, 157 Tex. 10, 299 S.W.2d 672 (1956).

Basic contract law also prohibits one party from unilaterally increasing the burdens of the other under the contract. This point is so clear that the authors in 2 Williams & Meyers, Oil and Gas Law, § 521.3 at 678.15-678.16 (1980), stated it parenthetically in this way:

“(It is clear, however, that even absent such [an entireties] clause, the duties of the lessee may not be increased by virtue of subsequent transfers by the lessor or lessors).”

•In Felmont Oil Corp. v. Pan American Petroleum Corp., 334 S.W.2d 449 (Tex.Civ.App.1960), the Texas Court concluded:

“On the date that the two basic leases were executed and delivered, the lessee . . . owed to the lessor . . . only the obligations contained in the two leases, either expressly or by implication. . . . Since the lessor may not, himself, arbitrarily separate or subdivide the express or implied obligations imposed on the lessee by the terms of the lease, it follows that such lessor would not be permitted to accomplish this indirectly, by the sale of the minerals to numerous parties in segregated tracts and parcels, and thus subdivide what was theretofore a single unified obligation affecting the lease as a whole, into countless separate obligations, each of which would be subject to further fractionization or division in the event of further sales by the purchasers thereof.” 334 S.W.2d at 453.

The Court of Appeals of Kentucky, in Martin v. Graf, 289 Ky. 272, 158 S.W.2d 637 (1942), reached the same conclusion when it held that:

“[A lessor] cannot by subdivision of lands under a lease into separate tracts place an additional burden on the lessee to develop the separate tracts as units or as separate leases.”

158 S.W.2d at 639, 289 Ky. at 276.

The Blairs’ witnesses admitted, under cross-examination, that the wells drilled by Conoco were geologically well located and would efficiently drain all of the recoverable oil from the pools under the 437 acres of the Kirkland lease. They also admitted that the only reason the contention could be made that more offset wells should be drilled is because the Blairs, 7 years after the original lease, had acquired separate royalty interests (%8ths in one drilling unit of eleven in the 437-acre tract originally leased by S. B. Kirkland). Kirkland, if he had been alive, under his lease contract of May 15, 1962, with assignee Conoco, could not have contended that more offset wells should be drilled because such a contention would have been directly contra to the clear provisions of his lease contract with Conoco (Paragraphs 5 and 9).

As was said by the Texas Court of Civil Appeals in Felmont Oil Corporation, supra, the lessor cannot do indirectly what he has agreed not to do directly.

If Conoco had drilled no wells on the Blair tract (Unit 31-11) and had extensively drilled wells on adjoining property, under Phillips Petroleum Company v. Millette, 221 Miss. 1, 72 So.2d 176 (1954), there would be some merit to the argument that Conoco had violated an implied duty not to perform any acts that impaired the value of the lease.

In Millette, the lessor had received no production, no wells had been drilled on his land, and the lessee had refused to give up the lease or permit others to drill. Phillips had acted unfairly and inequitably, and the prudent operator standard is inextricably tied in with the principles of equity. It requires good faith dealing between the lessor and lessee. Since bad faith was proved in Millette, Phillips Petroleum did not pass the test of being a prudent operator.

To the same effect is Shell Oil Company v. James, 257 So.2d 488 (Miss.1971). Mrs. Fannye M. James, acting as guardian for two minors, executed an oil, gas and mineral lease covering 200 acres of land in Smith County. A V2 interest was assigned by lessee, Pure Oil Company, to Shell Oil Company and by agreement Shell Oil Company became the operator. The lands were legally described as the SW Vi of the SW Vi of Section 5, the E V2 of the SW Vi of Section 5, and the N V2 of the NW V4 of Section 8, T-l-N, R-9-E. The 40-acre SW Vi of the SW Vi was combined with the NW Vi of the SW Vi (which had been leased by Mrs. E. M. Lane in a separate lease to Shell), to make a drilling unit of 80 acres. The E V2 of the SW Vi was an 80-acre drilling unit composed entirely of James lands. Lane No. 4 well was drilled on the 40 acres (NW Vi of SW Vi), leased from Mrs. E. M. Lane. It was a good well and V2 of the royalty went to Mrs. Lane and V2 to the Jameses. The Jameses brought suit against Shell (contending that Lane No. 4 was draining oil from the 80-acre drilling unit [E V2 SW Vi]), to require Shell to drill an offset well on the E V2 of the SW Vi (the 80-acre drilling unit composed entirely of James lands).

It was agreed by all witnesses that a fault line extended east and west along the quarter-section line between the N V2 and the S V2 of the SW Vi.

In James, the first proposition to determine was whether there was drainage from the NE V4 of the SW Vi to the Lane well in the NW Vi of the SW Vi. This Court said:

“If this issue is answered in the affirmative, we must determine whether or not the appellants acted as reasonable and prudent operators, under the circumstances, in refusing to drill. If the appellants did not so act, they are liable for the amount of the drainage, unless it can be said that there was sufficient counter-drainage to compensate the appellees for their loss.”

257 So.2d at 491. (Emphasis added).

In reasoning out the answer to this question, we said that the Oil and Gas Board is authorized:

“(13) To prevent, so far as is practicable, reasonably avoidable drainage from each developed unit which is not equalized by counter-drainage. Sec. 6132-10, Miss. Code 1942 Ann. (Supp.1971).”

257 So.2d at 493. (Emphasis added).

In concluding our opinion in James, this Court said:

“We cannot say from the evidence in this case that the Chancellor was in error in holding that there was a ‘substantial’ amount of oil in paying quantities under the property of lessors in the NE Vi of the SW Vi, Section 5, T-l-N, R-9-E, so that the lessees should have either drilled on this forty or they should have released it from their lease.”

257 So.2d at 496. (Emphasis added).

The situation in the case at bar is clearly distinguishable from James. Conoco has drilled the equivalent of 8 oil wells on 38-acre drilling unit 31-11. All of the witnesses (those for the Blairs and those for Conoco) agreed that the wells on Unit Sill were geologically well located and would efficiently produce all of the recoverable oil from those pools on Unit 31-11. The evidence, both oral and documentary, proved that Conoco had met the test of being a prudent operator, who in all good faith had dealt fairly and equitably with all royalty owners large and small under the Kirkland lease.

Finally, the Blairs have benefited, rather than suffered, from the way in which the entire Kirkland lease was drilled and the oil produced therefrom. Although the percentage of acre feet of oil in tract 31-11 is only 20.20% of the Davis Field total, the percentage of production from tract 31-11 under the Kirkland lease was 36.13% up to May 1, 1979, and current production is 40.40% of the Kirkland lease.

The evidence was that Conoco had drilled far more wells and had conducted far more development in the Davis Field than had been done in any other field in the state of Mississippi. Both the Blairs’ expert witness and Conoco’s witness, independent geologist Wilbur Knight, testified that Conoco’s drilling had resulted in an exceptional amount of development. Moreover, every witness acknowledged that the wells drilled by Con-oco would efficiently produce all the recoverable oil under the Kirkland lease.

We conclude that the evidence, both oral and documentary, adduced at the trial and contained in the record, clearly proves that Conoco has in all good faith prudently developed the entire Kirkland lease and that this prudent and efficient development of the lease has inured to the benefit of the Blairs, and that, even though they own only a very small fractional share of the royalty (three royalty acres in a 38-acre drilling unit), they have received their fair and equitable share of the royalty.

Because they have been treated fairly and equitably, the decree of the lower court in their favor must be reversed and judgment rendered here for appellant Conoco.

REVERSED AND RENDERED.

PATTERSON, C. J., SMITH, P. J„ and SUGG, WALKER, BROOM, LEE, BOWLING and HAWKINS, JJ., concur.


author: SENTELL, Clerk.

text:
    OPINION OF THE CLERK.
    No. 35.
    Supreme Court of Alabama.
    April 14, 1981.
   RULE 7, ALABAMA RULES OF JUDICIAL ADMINISTRATION — FEES FOR MISCELLANEOUS FILINGS— WHEN CASE IS TRANSFERRED FROM SMALL CLAIMS DOCKET TO CIVIL DIVISION OF DISTRICT COURT

SENTELL, Clerk.

Mr. Walter E. Graham, Clerk of the District Court of Montgomery County, has submitted to me, as Clerk of the Supreme Court, pursuant to § 12-2-19(d), Code, 1975, the following question:

Should an additional filing fee be charged when a case is transferred from Small Claims to District Civil within the same office when the defendant files a counterclaim in an amount in excess of $500?

My answer to the question is in the affirmative.

In my opinion, the transfer of a case from small claims to district civil within the same office is a filing that requires the payment of an additional fee under the terms of Rule 7, Alabama Rules of Judicial Administration, which is as follows:

“FEES FOR MISCELLANEOUS FILINGS
Any filing for which there is no express cost under the consolidated fee structure shall be treated as an original filing for cost purposes.”

This rule should be read in connection with § 12-12-31(a) and § 12-19-71, Code of 1975.

Section 12-12-31(a), Code 1975, is as follows:

Small claims actions; ....
(a) The district court shall exercise exclusive jurisdiction over all civil actions in which the matter in controversy, exclusive of interest and costs, does not exceed $500.00. These actions shall be placed on a small claims docket by each district court and shall be processed according to uniform rules of simplified civil procedure as may be promulgated by the supreme court.

The part of § 12-19-71, Code 1975, pertinent to the question, is as follows:

The docket fees which shall be collected in civil cases shall be:
(1) Ten dollars for cases filed on the small claims docket of the district court;
(2) Twenty-five dollars for cases otherwise filed in the district court; ....

the word “filing” in Rule 7 refers to “cases filed” in § 12-19-71, Code 1975. See Opinion of Clerk, No. 11, March 10, 1978, Ala., 356 So.2d 636.

One of the definitions of the verb “file” is: “to place (as a paper or instrument) on file among the legal or official records of an office by formally receiving, endorsing or entering.” Webster’s Third New International Dictionary.

This appears to be an apt definition of “file” when cases are “filed on the small claims docket of the district court” or when cases are “otherwise filed in the district court.”

It is my opinion that a case is “otherwise” filed in the district court when it is placed on a docket other than the small claims docket of the district court.

The term “consolidated fee structure” in Rule 7 means the list of fees prescribed in Title 12, Chapter 19, Code of Alabama 1975. Opinion of Clerk, No. 16, 362 So.2d 1259 (Ala.). There is no express cost under the consolidated fee structure for a filing which is effectuated in the district court by the transfer of a case from the small claims docket.

The words “as an original filing for cost purposes” in Rule 7, when used in connection with a case transferred from the small claims docket of the district court, refer to the words “(2) Twenty-five dollars for cases otherwise filed in the district court” in § 12-19-71, Code 1975.

A fee of $10.00 was collected when the case was placed on the small claims docket of the district court. An additional sum of $15.00 should be paid by the defendant, who filed a counterclaim in excess of $500.00, for the filing of this case on a civil docket of the district court other than the small claims docket.


text:
    OPINION OF THE JUSTICES.
    No. 277.
    Supreme Court of Alabama.
    May 5, 1981.
   To the Honorable Speaker and Members of The House of Representatives

State Capitol

Montgomery, Alabama

Dear Sirs and Mesdames:

The Honorable John W. Pemberton, Clerk, Alabama House of Representatives, has sent the following House Resolution 300 to the Justices of the Alabama Supreme Court:

1. Does Section 1 of H.B. 1035 which states:
“Any contest for prizes or money as rewards, which is for promotional or advertising purposes, sponsored or conducted by any grocery store, food retailer or soft drink bottler in this state, and which does not require or mandate the participant to give a consideration therefor, in cost or purchase, shall be legal. No such contest shall be construed to be a lottery,” fall within the constitutional prohibitions of Article IV, Section 65 of the Constitution of 1901?

Your inquiry, therefore, is whether such a contest would constitute a lottery or gift enterprise under § 65. That section states in part that “[t]he legislature shall have no power to authorize lotteries or gift enterprises for any purposes.. .. ”

The earliest definition of a lottery, affirmed by this Court, was “a game by which a person paying money becomes entitled to money, or to other thing of value, on certain contingencies determinable ... by chance, or without the action of man’s choice or will.” Chavannah v. State, 49 Ala. 396, 397 (1873). Thus, there are three elements to a lottery: “(1) A prize, (2) awarded by chance, (3) for a consideration.” Grimes v. State, 235 Ala. 192, 193, 178 So. 73 (1938); Opinion of the Justices, 287 Ala. 334, 251 So.2d 751 (1971). A gift enterprise in the nature of a lottery is a lottery in aid of legitimate business offering ostensible gifts which are, in fact, prizes awarded by chance for a consideration or price. Grimes v. State, supra, 235 Ala. at 193, 178 So. 73.

[W]hile the courts have shown a general disposition to bring within the term “lottery” every species of gaming, involving a disposition of prizes by lot or chance, and which comes within the mischief to be remedied — regarding always the substance and not the semblance of things, so as to prevent evasions of the law — we find no decision in which the element of a valuable consideration parted with, directly or indirectly, by the purchaser of a chance, does not enter into the transaction.

Yellow-Stone Kit v. The State, 88 Ala. 196, 200, 7 So. 338 (1890).

There is no question that a contest contemplated by House Bill 1035 potentially involves the first two elements of a lottery. Such a contest would offer prizes or money as rewards and, as it is not mandated to require skill or effort on the part of the participant, could possibly award the prize by chance. But to constitute a lottery, the element of consideration must also be present.

As the Bill specifically states that the contest shall “not require ... the participant to give a consideration ... in cost or purchase,” no direct benefit or consideration is possible. Nor do the potential indirect benefits of such a contest to the business enterprise constitute consideration. Such factors as “the [participation] of a large number of prospective customers; the service performed by the [participants] in advertising the program among relatives and friends; the time, trouble and expense to the [participant] in going to the store” do not afford “the element of consideration necessary to constitute ... a lottery.” Clark v. State, 38 Ala.App. 78, 81, 80 So.2d 308, 310 (1954), cert. denied, 262 Ala. 462, 80 So.2d 312 (1954). Nor does the fact that the business enterprise may be “expected to gain some benefit by way of increased sales” constitute such consideration. Clark v. State, supra, 38 Ala.App. at 82, 80 So.2d 308.

The contests proposed in House Bill 1035 do not constitute lotteries and, thus, their authorization does not offend § 65 of the Constitution.

Your inquiry is answered in the negative.

Respectfully submitted,

C. C. TORBERT, Jr., Chief Justice

HUGH MADDOX

JAMES H. FAULKNER

RENEAU P. ALMON

JANIE L. SHORES

T. ERIC EMBRY

SAM A. BEATTY

OSCAR W. ADAMS, Jr., Associate Justices.


author: BRADLEY, Judge.

text:
    Will R. WEAVER v. TOWN OF CHEROKEE, Alabama, a Municipal Corporation.
    Civ. 2453.
    Court of Civil Appeals of Alabama.
    April 8, 1981.

      John D. Clement, Jr., Tuscumbia, for appellant.
    Gene M. Hamby, Jr., of Pitts & Hamby, Sheffield, for appellee.
   BRADLEY, Judge.

On July 19,1971 appellee, Town of Cherokee, enacted into law local improvement ordinance no. 175-B for the construction of a sanitary sewer system within the town’s corporate limits. The ordinance was so phrased as to comply with §§ ll-48-5(a), (b) and 11-48-6 of the 1975 Code of Alabama. Section five of the ordinance provided that:

The cost of constructing and installing the said sanitary sewers and appurtenant improvements shall be assessed in fair proportion against the frontage of the property drained, served or benefitted thereby; provided, that no assessment shall exceed the cost of the said improvements or the increased value of such property by reason of the special benefits derived from such improvements.

The entire ordinance was published once a week for two consecutive weeks in the Florence (Alabama) Times Tri-Cities Daily, a newspaper of general circulation in Cherokee, and a copy of the ordinance was sent by registered mail to each of those property owners last assessed for municipal taxes by appellee. On August 16, 1971 appellee’s town council heard, considered, and disallowed all objections to the proposed construction of the system and the character of the materials to be used in constructing same raised by all property owners in the town whose property would be affected to any degree by such construction activity. That same day, the council ratified ordinance no. 175-B and directed that a notice requesting bids from contractors for the construction of the system be published once a week for two consecutive weeks in the Times Tri-Cities Daily. No further action was taken in connection with the project, however, until the spring of 1974.

A new notice requesting bids from contractors for construction of the aforementioned project was published in the Times Tri-Cities Daily on March 8 and March 15, 1974. On March 25, 1974 Matthews & Fritts, Inc. of Florence, Alabama, submitted a bid on the project of $777,740.50. This was the only bid on the project received by appellee. Appellee’s town council awarded a contract to Matthews & Fritts for construction of appellee’s sewer system in the amount of $690,198.75 on April 1,1974. On October 1,1974 the council adopted an ordinance whereby appellee agreed to sell to the Farmers Home Administration (hereinafter referred to as the FHA) $500,000 in negotiable public improvement notes. Payment of the principal and interest on such notes would be secured in part by assessments which would be made against all properties benefited by the construction of the sewer system. All proceeds from the sale of these notes to the FHA would be applied to the cost of constructing the system. A notice of delivery of an assessment roll was published in the Colbert County Reporter on June 29, 1977. The town’s engineer apparently prepared a list containing the name of each property owner whose parcel or parcels of realty were improved by the installation of a portion of the system upon his property or properties, a description of each parcel, and the fractional cost of the improvement to be assessed against each parcel. This list was then entered into an assessment book for local improvements which was, in turn, delivered to appellee’s town council. On July 21, 1977 appellee’s town council convened for the purpose of hearing any objections of any property owner to any assessment levied on any of his property improved by the installation of any portion of the system thereon. No written or oral notice of objection to any assessment was filed with the council at this time. However, the council elected to defer any “final ruling” on the validity of any assessment until its next regular meeting on August 2,1977. All property owners desiring to contest any sewer assessments on their lands were permitted to file written protests with the town clerk at any time before or during the August 2 meeting.

Appellant presently owns two tracts of land within the corporate limits of the town of Cherokee. Tract one abuts U. S. highway 72 while tract two abuts Mount Hester Road. Appellee assessed appellant $7,984.77 on tract one and $5,118.44 on tract two for the cost of installing a portion of its sewer system on each of the tracts. Mr. Weaver objected to the amount of these assessments in a written protest which he filed with the town council at its August 2 meeting. The council overruled this protest but did not thereafter at any time adopt an order or resolution determining the amount to be assessed against each landowner for the cost of installing a portion of appellee’s sewer system on his property. Pursuant to § 11-48-36 of the 1975 Code of Alabama, Mr. Weaver appealed from the council’s decision overruling his written objection to the amount of his assessments to the Circuit Court of Colbert County for a trial by jury. Before any witness testified in this cause, however, appellant alleged that the § 11-48-39 transcript of appellee’s assessment proceedings which it had previously filed with the circuit court failed to demonstrate, inter alia, that appellee had complied with §§ 11-48-20 to -22. and 11-48-29 of the 1975 Code of Alabama in assessing appellant’s properties for the cost of constructing part of its sewer system thereon. The circuit court found this allegation to be without merit.

At the close of appellee’s case in chief, appellant moved for a directed verdict in his favor on the grounds that appellee’s town council failed to comply with §§ 11— 48-9, 11-48-14, and 11-48-16 of the 1975 Code of Alabama in assessing tracts one and two for the cost of installing a portion of its sewer system on both tracts. The circuit court denied this motion and submitted the case to the jury, which found the proper assessment against tract one to be $4,000 and that against tract two to be $5,118.44: Within thirty days of the rendition of these verdicts, appellant filed a written motion for judgment notwithstanding the verdict or, in the alternative, for a new trial alleging as grounds therefor, inter alia, that:

11) The Appellee’s transcript, minute book and the testimony taken in this cause fail to show that the Appellee complied with the provisions of Section 11-48-20, Code of Alabama 1975, in that said proceedings fail to show that after the completion of the improvements there was caused to be prepared a roll or list showing the names of the property owners and opposite each name a description of each lot or parcel of land proposed to be assessed for such improvements belonging to such owner or owners and the amount proposed to be assessed against each lot or parcel of land.
12) The Appellee’s transcript, minute book and the testimony taken in this cause fail to show that the Appellee complied with the provisions of Section 11— 48-21, Code of Alabama 1975, and “assessment book for local improvements”, was prepared in accordance with such code section.
13) The Appellee’s transcript, minute book and the testimony taken in this cause fail to show that the Appellee complied with the provisions of Section 11-48-21, Code of Alabama 1975, in and [sic] that the “assessment book for local improvements” was, if completed, delivered to the City Clerk and that notice of such delivery was given as provided for in said code section.
17) The Appellee’s transcript, minute book and the testimony taken in this cause fail to show that the Appellee complied with the provisions of Section 11-48-29, Code of Alabama 1975, and to show that a meeting was held by the Appellee wherein an [ordinance] or resolution to fix the amount of the assessment against each lot or tract of land described and included in said assessment [roll] was held and that such action was taken.

From the denial of this motion by the circuit court, appellant has prosecuted this appeal contending, in part, that the trial court erred to reversal in refusing to enter a judgment n. o. v. in his favor or to award him a new trial since appellee’s town council minutes book, a transcript consisting of selected portions of this book, and other testimony failed to show that appellee had complied with §§ 11-48-20 to -22 and 11-48-29 of the Code in assessing appellant’s lands for the cost of installing a portion of its sewer system on these lands. We cannot agree that appellee failed to comply with §§ 11 — 48-20 to -22 of the Code in assessing appellant’s properties for the cost of installing portions of its sewer system thereon; but we do agree that appellee did not comply with § 11-48-29 in making the assessment. Hence, we reverse the judgment of the circuit court.

Section 11-48-20 of our Code provides as follows:

When any improvement made under the provisions of this article is completed, the mayor or other chief executive officer shall cause to be prepared a roll or list showing the names of the property owners and opposite each name a description of each lot or parcel of land proposed to be assessed for such improvement belonging to such owner or owners and the amount proposed to be assessed against each lot or parcel of land.

This list or roll, once completed, must be subsequently entered in a bound book in which each payment of an assessment on each piece of property assessed for an improvement must be entered. Code of Alabama 1975, § 11 — 48—21. After the list has been entered in this book, the book itself must be delivered to the city or town clerk “who shall thereupon give notice by publication one time in some newspaper published in said municipality or of general circulation therein that said assessment roll or list has been delivered to him and is open for inspection in the office of the person authorized to make collection of said assessments.” Code of Alabama 1975, § 11-48-22. If there is no evidence that a list or roll complying with the provisions of §§ 11-48-20 and 11-48-21 has been prepared and entered in a bound book and that this book has been delivered to the city or town clerk, who has in turn given the notice prescribed in § 11 — 48-22 at least one time in a newspaper published in the city or town or in a newspaper of general circulation therein, any assessment levied by the city or town against any property owner for a public improvement of the kind contemplated by § 11 — 48-5 of the Code is null and void, Nashville, Chattanooga & St. Louis Ry. v. Town of Boaz, 226 Ala. 441, 147 So. 195 (1933); however, if the minutes reflect that the notice required by § 11-48-22 was published in a newspaper, the presumption is that the roll of assessment had been delivered to the clerk and was open for inspection. Day v. City of Montgomery, 207 Ala. 644, 93 So. 609 (1922). Of course this presumption is rebuttable by evidence that the property owner had attempted to inspect the roll and had been denied access to it or that the roll was not open for inspection between the time of its alleged publication and the date of the hearing to which the notice required by § 11 — 48-22 refers. Id. Similarly, if there is no evidence that the city or town council has adopted an order or resolution fixing “the amount of [each] assessment against each lot or tract of land described and included in said assessment roll,” § 11 — 48—29, Code of Alabama 1975, any assessment levied by the council against the owner of a tract of land on the assessment roll for a public improvement of the kind specified in § 11-48-5 is also null and void. Streater v. Town of Town Creek, 234 Ala. 132, 173 So. 853 (1937); see Ander son v. City of Vestavia Hills, 272 Ala. 128, 130 So.2d 341 (1961).

As noted previously in this opinion, some evidence was produced upon the trial of this cause tending to show that the town’s engineer prepared a list containing the name of each landowner whose land was improved by the installation of a portion of appellee’s sewer system on his property, a description of each piece of land, and the fractional cost of the improvement to be assessed against each piece of property and that this list was entered into an assessment book for local improvements, which was subsequently turned over to appellee’s town council. Furthermore, Mr. Weaver never attempted to personally inspect this book and was never denied the opportunity to examine it or discovered that it was not available for public inspection between the time of its purported publication and the date of appellee’s hearing referred to in the § 11-48-22 notice. Thus, we cannot say that appellee failed to comply with §§ 11-48-20 to -22 of the Code in assessing appellant’s properties for the cost of constructing parts of its sewer system thereon. However, no evidence was adduced at trial tending to show that the Cherokee town council ever adopted an order or resolution determining the amount to be finally assessed against each landowner for the cost of installing a portion of the sewer system on his property. It follows that appellee’s sewer assessments against appellant’s tracts of land are null and void.

Appellee earnestly contends that this defect in its proceedings to assess appellant’s properties for the cost of constructing sanitary sewers thereon is merely a technical defect which was cured by its pretrial request to the court, pursuant to § 11-48-42 of the Code, that the court should enter a judgment against appellant for the amount properly chargeable against his properties in the event that appellee adduced sufficient evidence to convince it that the town had incurred expenses in installing a portion of the sewer system on appellant’s properties but had improperly assessed the cost of constructing same against appellant. We cannot agree. Technical defects or irregularities which may be remedied by a circuit court under this section of the Code are as follows: (1) objections in the form of written protests filed by owners of property sought to be assessed for the cost of constructing a public improvement thereon under § 11-48-26, Nashville, Chattanooga & St. Louis Ry. v. Town of Boaz, supra; (2) irregularities in the notice provisions of §§ 11 — 48-6, -7, id.; (3) mistakes or errors in the names of property owners listed on the city’s or town’s assessment rolls under § 11 — 48-21, Hood v. City of Bessemer, 213 Ala. 225, 104 So. 325 (1925); (4) corrections in the assessment rolls made by the city or town council or an official thereof in the amounts to be charged against certain parcels of property for the cost of constructing a public improvement thereon, Hamrick v. Town of Albertville, 219 Ala. 465, 122 So. 448 (1929); Jones v. City of Huntsville, 47 Ala.App. 595, 259 So.2d 277 (1971). Conversely, jurisdictional defects in the statutory procedures which must be followed by a city or town council in assessing the owners of private property for the costs of constructing a portion of a public improvement thereon pursuant to §§ 11 — 48-5 to -29 cannot be corrected by the circuit court in accordance with § 11-48-42. Jurisdictional defects include: (1) the failure of a city or town council to adopt an improvement ordinance which substantially complies with the provisions of § 11-48-5, Nashville, Chattanooga & St. Louis Ry. v. Town of Boaz, supra; (2) the absence of any evidence that the town or city council or its officials have complied with.all of the provisions of §§ 11-48-20, -21, id.; Jasper Land Co. v. City of Jasper, 220 Ala. 639, 127 So. 210 (1930); and have substantially complied with the provisions of § 11 — 48-22, Jasper Land Co. v. City of Jasper, supra; (3) the failure of the town or city council to pass an ordinance or resolution pursuant to § 11 — 48-29 fixing the amount to be assessed against each piece of property included in the assessment roll, Streater v. Town of Town Creek, supra. The first and second jurisdictional defects, however, may be cured by recitals in the final assessment ordinance or resolution of § 11-48-29 that the city or town council enacted a § 11 — 48-5 initial improvement ordinance and that the mayor or someone under his direction prepared an assessment roll containing the námes of the property owners whose properties would be assessed for the cost of constructing the public improvement, a description of their properties, and the amounts to be charged against same, and delivered the roll to the city or town clerk, who thereafter published the notice referred to in § 11-48-22. Grayson v. Schwab, 235 Ala. 398, 179 So. 377 (1938). After applying these settled legal principles to the facts of this case, we cannot say that the defect in appellee’s sewer assessment procedures previously detailed in this opinion was simply technical in nature. Hence, the circuit court could not properly enter a judgment, in accordance with the jury’s verdict, in favor of appellee according to § 11 — 48—42. We note in passing, however, that upon remand of this cause to the circuit court appellee may introduce additional evidence, if it has any, tending to show that this jurisdictional defect in its assessment proceedings does not, in fact, exist. See generally Chenault v. City of Russellville, 233 Ala. 60, 169 So. 706 (1936).

The circuit court did not err in refusing to grant appellant a judgment notwithstanding the verdict on the ground that appellee had failed to comply with § 11-48-29 in assessing appellant’s properties for the cost of installing portions of its sewer system upon his properties for the simple reason that appellant did not move for a directed verdict in his favor at the close of appellee’s evidence upon this same ground. See Housing Authority of City of Prichard v. Malloy, Ala., 341 So.2d 708 (1977); ARCP 50(b); see generally Sulmeyer v. Coca Cola Co., 515 F.2d 835 (5th Cir. 1975), cert. denied, 424 U.S. 934, 96 S.Ct. 1148, 47 L.Ed.2d 341 (1976). Nevertheless, for the error previously noted, we believe that the circuit court erred in declining to grant appellant a new trial upon said ground. See generally Hill v. Cherry, Ala., 379 So.2d 590 (1980).

The judgment of the circuit court is reversed and the cause remanded for further proceedings consistent with this opinion.

REVERSED AND REMANDED.

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


text:
    LEEDS TELEPHONE COMPANY, INC. v. Harvey E. GILLON.
    Civ. 2498.
    Court of Civil Appeals of Alabama.
    April 8, 1981.

      James R. Shaw of Huie, Fernambucq, Stewart & Smith, Birmingham, for appellant.
    Stephen D. Heninger of Hare, Wynn, Ne-well & Newton, Birmingham, for appellee.
   BRADLEY, Judge.

This case arose over a dispute as to whether a contract existed between Leeds Telephone Company and Harvey Gillon to publish an ad in the Leeds Telephone Yellow Pages and the failure of Leeds Telephone to publish said ad.

The facts are as follows. Harvey Gillon was engaged in the plumbing business in Leeds, Alabama and also in Moody, Alabama. Gillon had taken out an ad in the Yellow Pages of the Leeds Telephone Directory in previous years. In 1978 Gillon’s ad was left out of the Yellow Pages of the Leeds Telephone Directory although his business was listed in the white pages.

Three months after the directories were distributed, Leeds Telephone distributed a flyer which was to be inserted in all its directories. This flyer contained ads that were left out of the directory. Included in the flyer was Gillon’s ad.

In 1978 Gillon moved his business address from Moody, Alabama to his home in Leeds, Alabama. He listed his phone in his home as both a business and residential phone. He had the phone in Moody disconnected. This phone number in Moody was subsequently reassigned to a competitor of Gil-lon’s. Furthermore, the telephone service to Gillon’s home and business in Leeds was terminated for a period of two days.

Gillon filed suit in district court on March 25, 1980 alleging that Leeds Telephone breached its contract with Gillon to advertise Gillon’s business in its directory and breached its contract to not transfer a business listing to another business. Furthermore Gillon alleged Leeds Telephone negligently gave Gillon’s former phone number to a competitor, negligently printed its 1978 and 1979 directories, and intentionally interfered with Gillon’s business by disconnecting his phone service on March 12, 1980 for a two day period.

After a trial on the merits the trial court, sitting without a jury, entered judgment for Gillon in the amount of $2,000.00, which was to be reduced by a counterclaim for unpaid services during the contested period of $615.05. The judgment for Gillon was based on a finding of $1,500.00 of lost profits due to the three month period Gillon had no ad in the directory and $500.00 for termination of telephone services for a two day period.

Immediately after the judgment, Leeds Telephone filed a motion to revise judgment, motion for j. n. o. v., and in the alternative motion for a new trial. These motions were denied. Leeds Telephone then filed its notice of appeal accompanied by designation of the clerk’s record, security for costs, and certified questions to the Court of Civil Appeals of Alabama.

The dispositive issue, and the only issue argued in brief, is whether the trial court erred in finding that a contract existed between Gillon and Leeds Telephone for publishing an ad in the 1978 Yellow Pages section of the Leeds Telephone Directory. We find that no such contract existed and reverse as to the $1,500.00 damages assessed by the trial court for breach of contract.

At the outset we recognize that this case was tried by the district court sitting without a jury. Such findings of fact have the weight of a jury verdict and will not be disturbed on appeal unless plainly and palpably wrong. Gann & Lewis Roofing Co. v. Sokol, Ala.Civ.App., 359 So.2d 815 (1978). Such a clear and palpable abuse of discretion occurred here.

There is no evidence in the record which supports the trial court in its conclusion that a contract existed between Gillon and Leeds Telephone. The trial court in its findings stated:

The Court does not find the Statute of Limitations one year applicable in this case. The Plaintiff called the company and said, “I want an ad.” They said, “We will send someone to you.” That is a contract. The one year Statute of Limitations does not apply on that.

The evidence showed that Gillon telephoned Leeds Telephone Company to inquire about the Yellow Pages ad. Gillon testified that he knew the relationship Leeds Telephone had with its directory publisher, the A. L. Sewell Corporation, and that the A. L. Sewell Corporation handled all advertising in the Yellow Pages. The testimony showed that Sewell listed all ads, collected all ads, and proofread all ads for the Yellow Pages. In fact Leeds Telephone had no involvement whatsoever in the compilation of the Yellow Pages. Gillon testified he knew this. Gillon stated:

Q. You are not saying that they told you that you told them the exact number you wanted included in your Yellow Pages ad and how many inches by how many inches or anything during that conversation?
A. They can’t. From what I understand, only the Yellow Pages man can take that.
Q. And the Yellow Pages man is from a company called A. L. Sewell Corporation, isn’t he?
A. Correct.
Q. He is not from the Leeds Telephone Company?
A. He is not from Leeds Telephone Company.

Knowing all this when he called Leeds Telephone, Gillon was told by the girl who answered the phone that the Sewell man would not be in town for two or three weeks but that he would see Gillon about his ad. Gillon testified:

The girl that answered the phone responded in saying that for me not to worry about it because he [A. L. Sewell man] was not due for another two or three weeks at this particular time, and that he would pick up the cards.

This is clearly no contract. It has long been the law in Alabama that the mutual assent of the parties is an essential element to the formation of a contract. Board of Commissioners of Alabama State Bar v. Jones, 291 Ala. 371, 281 So.2d 267 (1973). There being no such meeting of the minds, no contract was formed. Furthermore, Gil-lon knew at the time he called Leeds Telephone that they had no authority to discuss any Yellow Pages ad.

The trial court assessed $500.00 as damages for Leeds Telephone discontinuing service to Gillon for two days; however, this issue was never argued on appeal by Leeds Telephone and we have therefore not considered it.

We reverse that part of the judgment awarding Gillon $1,500.00 in damages for breach of contract.

REVERSED AND REMANDED.

HOLMES, J., concurs.

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