text:
    HOME INSURANCE CO. v. HILLVIEW 78 WEST FIRE DISTRICT, et al.
    79-349.
    Supreme Court of Alabama.
    Feb. 27, 1981.
    Stanley A. Cash of Huie, Femambucq, Stewart & Smith, Birmingham, for appellant.
    Courtney H. Mason, Jr. of Norman, Fitzpatrick & Wood, Birmingham, for appellee Hillview 78 West Fire Dist.
    Neal C. Newell of Hare, Wynn, Newell & Newton, Birmingham, for appellee John R. Plemons.
   ALMON, Justice.

John Plemons, a volunteer fireman with Hillview 78 West Fire District, was injured when the firetruck in which he was a passenger ran off the road and wrecked. At the time of the accident the firetruck was being driven by Harold Sheelor, a full-time employee of Hillview. In his suit against Hillview and Sheelor, Plemons alleged that he was not an employee of Hillview. Both defendants denied this allegation and asserted that, because Plemons was an employee at the time of the accident, his claims were barred by the Workmen’s Compensation laws of the State.

During the pendency of Plemons’ suit, Home Insurance Company sought judicial declaration of its duty to defend and pay under an insurance policy issued to Hill-view. Specifically, Home sought a declaration that Plemons was an employee at the time of the accident so that Home could invoke the policy provision which excluded coverage

(c) To bodily injury to any employee of the Insured arising out of and in the course of employment by the Insured,...;
(d) To any obligation for which the Insured or any carrier as his insurer may be held liable under any Workmen’s Compensation, Unemployment Compensation or Disability Benefits law, or under any similar law.

Upon consideration of the pleadings, testimony and evidence submitted, the trial judge found:

Whether Plemons was an employee of the Fire District at the time of the accident is a material issue to his right to claim damages against the Fire District for negligent injuries.... [T]his issue is also an asserted defense by the Fire District in the tort action. Plemons’ status at the time may also be a material issue in his claim against Sheelor because it will be from that status, as found by the jury in the tort action, that Sheelor’s duty to Plemons will have to be determined. It is, therefore, clear that the issue is the same in both actions.
A declaratory judgment as to insurance coverage requiring an adjudication of the same issue as that in a prior pending action is not appropriate. “To permit otherwise would sanction this use of declaratory judgment act as a vehicle to determine the sufficiency of defenses to a pending action.” Sparks Const. Company, Inc. v. General Mut. Ins. Co., 334 So.2d 897, (Ala.)
The court cannot and should not, however, determine at this stage of the proceedings the insurer’s obligation to pay any judgment that may be rendered on behalf of Plemons in his tort action. This adjudication will have to await the outcome of that action and an adjudication there of the “employee” issue.

Consequently, the court denied Home’s requested declaratory relief and decreed that Home was obligated to defend Hillview and to employ separate counsel for Sheelor’s defense.

Home contends declaratory judgment should have been granted and that the court’s reliance upon Sparks, supra, is misplaced. We disagree.

The availability of declaratory judgment as a means of establishing an insuror’s liabilities and duties vis-a-vis an insurance policy during the pendency of a suit against an insured and to which the insuror has not been made a party has long been recognized by the courts of this State. See, e. g., Mathis v. Auto-Owners Ins. Co., 387 So.2d 166 (Ala.1980); Smith v. North River Ins. Co., 360 So.2d 313 (Ala.1978); Ladner & Co. v. Southern Guaranty Ins. Co., 347 So.2d 100 (Ala.1977); Sparks Construction Company, Inc. v. General Mut. Ins. Co., 334 So.2d 897 (Ala.1976); Foreman v. Smith, 272 Ala. 624, 133 So.2d 497 (Ala.1961); Canal Ins. Co. v. Gillespie, 262 Ala. 629, 80 So.2d 654 (1955); Reed v. Fidelity & Casualty Co. of New York, 254 Ala. 473, 48 So.2d 773 (1950); State Farm Mut. Automobile Ins. Co. v. Cardwell, 250 Ala. 682, 36 So.2d 75 (1948); Auto Mut. Indemnity Co. v. Moore, 235 Ala. 426, 179 So. 368 (1938); United States Fidelity & Guaranty Co. v. Hearn, 233 Ala. 31, 170 So. 59 (1936). As a prerequisite to declaratory judgment, the pending suit against the insured must be postured so that it does not afford an adequate judicial determination of the insuror’s rights and liabilities. Thus:

Jurisdiction of a declaratory judgment action will not be entertained if there is pending at the time of the declaratory judgment action another action or proceeding to which the same persons are parties, and in which are involved and may be adjudicated the same identical issues that are involved in the declaratory judgment action.

Mathis v. Auto-Owners Ins. Co., 387 So.2d 166, 167 (Ala.1980) (citing Foreman v. Smith, 272 Ala. 624, 133 So.2d 497 (1961)).

We recognize that Home is not a party to Plemons’ suit against Hillview and Sheelor. That fact alone, however, does not entitle Home to declaratory judgment. The controlling factor in this case — and the factor which distinguishes this case from those relied upon by Home — is that the identical “employee” issue is presented in both the suit for declaratory judgment and the pending action. That fact, coupled with the wide discretion vested in the trial judge in declaratory judgment actions, Stonewall Ins. Co. v. Sessions, 404 F.Supp. 858 (S.D. Ala.1975); Sullivan v. Alabama State Bar, 295 F.Supp. 1216 (M.D.Ala.1969); Sears, Roebuck & Co. v. Buce, 197 F.Supp. 136 (M.D.Ala.1961), compels the conclusion that the trial judge properly denied Home’s requested relief and that his judgment is due to be affirmed.

AFFIRMED.

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


source: Caselaw Access Project

author: ADAMS, Justice.

license: Public Domain

text:
    Jan WALSTON v. BIRDNEST APARTMENTS, INC., Ladner & Company, Inc. and Ladner Investment Company.
    79-496.
    Supreme Court of Alabama.
    Feb. 27, 1981.
    Norman J. Gale, Jr. of Clay, Massey & Street, Mobile, for appellant.
    Alton R. Brown and E. J. Saad of Brown, Hudgens, Richardson, Whitfield & Gillion, Mobile, for appellees.
   ADAMS, Justice.

This is a suit for personal injuries by a residential tenant against her landlord and its agents for the negligent maintenance of an apartment stairway on which she slipped and fell. The trial court directed a verdict for the defendants. Plaintiff appeals, primarily contesting the applicability of an exculpatory clause in her lease. We affirm.

On February 1, 1976, the plaintiff, Jan Walston, leased an upstairs apartment in an apartment complex owned by defendant Birdnest Apartments, Ltd. Although plaintiffs complaint alleged this defendant to be a corporation, evidence was introduced at trial, without objection, to the effect that this defendant was a limited partnership. Thus, the complaint was automatically amended pursuant to Rule 15(b), ARCP.

At the time of plaintiff’s fall, defendant Ladner Investment Company was an agent for Birdnest Apartments, in charge of the management and maintenance of the apartment complex. Ladner Investment Company was a division of defendant Ladner & Company, Inc. Some issues of agency and legal identity are raised on this appeal, but we find it unnecessary to address them in light of the clear applicability of the lease’s exculpatory clause to all the defendants.

Plaintiff’s lease with Birdnest Apartments contained the following exculpatory provision:

It is further understood and agreed that the Lessor shall not be liable for any damage which may occur on account of any defect in said building, or in said premises or from rain, wind or other causes.

Plaintiff concedes that such provisions are valid and enforceable. However, she argues on appeal that there was a scintilla of evidence of active negligence on defendants’ part and the trial court consequently erred in granting a directed verdict to the defendants, citing Armi v. Huckabee, 266 Ala. 91, 94 So.2d 380 (1957). We disagree. In Armi, this Court held that exculpatory clauses do not exonerate landlord defendants who commit active, as opposed to passive, negligence.

Plaintiff’s apartment building contains two upstairs apartments. She lived in one of these. Leading up to the front of this building, there is a main stairway to a central landing. On either side of this central landing, a short stairway leads to another landing outside the door of each upstairs apartment.

On the morning of November 29, 1976, plaintiff left her apartment to go to work. It had rained the night before, and the air was cool. When she stepped down to the top step of the short stairway, she slipped and fell to the central landing, injuring herself. The step on which she slipped was worn down, and water had frozen in the depression, causing it to be slippery.

The stairway was constructed in 1973 out of yellow pine or some other wood. No non-slip surface was applied to the steps at that time. The only direct evidence of an application of a non-slip surface to the apartment stairways was the testimony of Dennis Roundtree, vice president of defendant Ladner & Company, Inc., viz.:

Q. Had — have you ever had any of that non-slip material on the steps out there?
A. On that particular set of steps?
Q. Yes, sir.
A. Can’t answer that. We have tried several different application [sic], very unsuccessful.
[Emphasis added.]

The testimony of plaintiff’s upstairs neighbor and another tenant indicated that some of the apartment steps had “roofing strips” or a “rough material” nailed on them while others had no stripping at all. The stripping had worn off some steps. There was none on the steps were plaintiff fell.

Plaintiff argues that this testimony constitutes a scintilla of evidence of active negligence. We disagree. The case of Baker v. Wheeler, Lacey & Brown, Inc., 272 Ala. 101, 128 So.2d 721 (1961), analyzes the issue of active negligence in a factual context almost identical to the instant case. This Court recently cited and quoted with approval Baker in Matthews v. Mountain Lodge Apartments, Inc., 388 So.2d 935 (Ala. 1980). In Baker, the plaintiff tripped and fell on a sidewalk leading to her apartment. Her lease also contained an exculpatory clause. Repairs to the sidewalk had been made by the defendant landlord prior to the plaintiff’s occupation of the apartment. The repairs left an unevenness in the sidewalk, causing plaintiff’s fall.

Finding such repairs to be merely passive negligence, this Court rejected plaintiff’s argument that the time when the negligence occurred was not determinative.

We have thought about this matter a great deal, but cannot agree with appellant. The condition in the walkway existed before the lease was made and before the plaintiff had her apartment. The walkway therefore had defects in it before the relationship of landlord and tenant began. True, it took the fall of the plaintiff to make the negligence actionable (Tennessee Coal, Iron & R. Co. v. Smith, 171 Ala. 251, 55 So. 170), but the failure to correct the defects with the result that the walkway was in an unsafe condition before and while the lease was in force and effect, is the negligence relied on for recovery. This was passive negligence, as brought out in the opinion of this court on the first appeal. The Armi case presents quite a different situation. In that case there was no defective condition which proximately resulted in the plaintiff’s personal injuries, but rather an active course of negligence when the landlord’s employee shoveled hot coals from the furnace into dangerous proximity to a large amount of combustible materials. Accordingly there was no room in that case for operation of the exculpatory provisions. [Emphasis added.]

272 Ala. at 106-07, 128 So.2d 721.

In the instant case, plaintiff has not produced a scintilla of evidence that the alleged application of non-slip stripping to the steps on which plaintiff slipped occurred after she occupied the apartment. This is a necessary element of active negligence as defined in Baker. The testimony of Ladner & Company’s vice president, quoted above, makes no mention of when the applications were made. In fact, he could not even testify that applications were made to the particular steps on which plaintiff slipped.

The steps were constructed in 1973; plaintiff entered possession three years later in 1976. She had only been in the apartment 10 months when the accident occurred. Her upstairs neighbor testified that during that time he had not seen any attempted repairs of the stairway. Both he and the plaintiff testified that neither of them had contacted defendants concerning the condition of the steps. In all likelihood, if any applications were indeed made to the particular steps in question, they were made in the three-year period prior to plaintiff’s occupancy. This could constitute only passive negligence under the Baker analysis.

There is no reasonable basis for concluding that these applications were made after plaintiff occupied the apartment. As we recently observed in Matthews v. Mountain Lodge Apartments, Inc., “[W]e have consistently held that the scintilla doctrine does not vitiate the rule that a conclusion based on speculation or conjecture as to liability is not a proper basis for a verdict.” 388 So.2d at 939.

Finding that plaintiff has failed to produce a scintilla of evidence of active negligence, we hold the defendants were entitled to a directed verdict on the basis of the lease’s exculpatory clause. The trial court’s judgment is thereby due to be affirmed.

AFFIRMED.

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


text:
    Onva W. NIGG v. Thomas A. SMITH, Jr., Guardian, Leila W. Moore and Sadie W. Young.
    79-506.
    Supreme Court of Alabama.
    Feb. 27, 1981.

      Richard H. Clem, Birmingham and St. John & St. John, Cullman, for appellant.
    Thomas A. Smith, Jr., Cullman, for appel-lees.
   ADAMS, Justice.

Onva W. Nigg appeals a denial of her petition to revoke a decree declaring her to be of unsound mind and appointing a guardian for her. Nigg, 81 at the time of her petition, is a widow and lives alone. It is undisputed that her vision and hearing are impaired.

Nigg’s sisters, Leila Moore and Sadie Young, originally petitioned the probate court of Cullman County to declare her non compos mentis and commit her property to the custody of a guardian. A writ to take custody of Nigg for this lunacy inquisition was returned with the county sheriff’s statement: “It not being consistent with the health and safety of the said Onva W. Nigg ... I have not taken her into custody and do not have her present at the place of trial.” A six man jury found her to be of unsound mind, and the probate court subsequently issued a decree to that effect. The court also appointed Thomas A. Smith, the attorney for Nigg’s sisters, as guardian of Nigg’s estate. According to Nigg’s testimony, the only notice to her of this inquisition occurred when Smith appeared at her home to inform her of the decree.

Later obtaining her own legal counsel, Nigg filed a petition for revocation of the non compos mentis decree pursuant to Code 1975, § 26-2-51. The petition named her two sisters and the court appointed guardian as respondents. This proceeding was tried in the same probate court before a six man jury. Evidence was introduced by both sides to the issue of Nigg’s mental state. Nigg was present at this proceeding. The jury returned a verdict upholding the original decree of non compos mentis from which Nigg appeals.

Appellant makes two primary arguments on this appeal:

1. She was not given the required notice of the lunacy inquisition and thus was denied due process of law, voiding the entire proceedings.

2. In any event, the verdict of non compos mentis cannot be sustained on any reasonable hypothesis of fact founded on the evidence and thus must be set aside.

Addressing the first argument, we note there is merit in the contention that appellant was not given the necessary notice of the lunacy inquisition. The requirement of notice in such proceedings was fully discussed in Fowler v. Fowler, 219 Ala. 453, 455, 122 So. 440 (1929), viz.:

The only notice to the alleged lunatic provided for by the statute, and the only way in which the court can acquire jurisdiction of his person, is to issue “a writ directed to the sheriff to take the person alleged to be of unsound mind, and, if consistent with his health or safety, have him present at the place of trial,” and “by the statute it is made the duty of the sheriff to take the body, without condition.” Craft v. Simon, 118 Ala. 625, 24 So. 380; Simon v. Craft, 182 U.S. 427, 21 S.Ct. 836, 45 L.Ed. 1165; Fore v. Fore, 44 Ala. 478.
The wise policy of the statute requiring that the sheriff take the person of the alleged lunatic into his custody is to bring the alleged lunatic notice by restraining him of his liberty, so that if he has any mind at all he will realize that he must defend in order to remove this restraint, and, if not, persons interested in his freedom and his property rights may come to his aid. Anything short of this cannot be approved as due process of law. 6 R.C.L. 446 § 442; Simon v. Craft, 182 U.S. 427, 21 S.Ct. 836, 45 L.Ed. 1165.

However, this issue is not presented for our review. Appellant did not appeal the proceeding which she now seeks to void. This remedy was available under Code 1975, § 12-22-20, and was followed in the very case on which appellant relies, i. e., Fowler v. Fowler. Instead, appellant filed a petition for revocation, seeking to prove she was of sound mind. Such is the thrust of this proceeding, as indicated in Code 1975, § 26-2-51:

At any time after the inquisition, the person ascertained to be of unsound mind, by himself or by next friend, may apply in writing to the court of probate for a revocation of the proceedings against him and of the letters of guardianship, the application to be accompanied by the certificate in writing of two physicians or of two other competent persons stating that, after examination of such person, they believe him to be of sound mind.

This entire revocation proceeding was tried on the assumption of the validity of the original inquisition. Although the petition for revocation briefly notes that the inquisition “was held without her knowledge ...,” at no time during the revocation proceeding did appellant seek a ruling on this issue. Furthermore, when opposing counsel made references to the findings of the lunacy inquisition in his opening and closing arguments, appellant made no objections. Throughout his arguments to the jury, appellant’s attorney stated his purpose to revoke the non compos mentis decree by proving appellant was of sound mind. Other than the brief and ineffectual mention of the notice issue in the revocation petition, we find no other indication in the record that appellant sought to revoke the inquisition decree on the ground of a denial of due process. As this Court noted in Vaughn v. Thomas, 372 So.2d 1309, 1311 (Ala.1979), “A party cannot try his case on one theory and then appeal on a separate theory.”

Closely akin to this rule is the following applicable principle of appellate review stated in Haskew v. Bradford, 370 So.2d 259, 262 (Ala.1979): “A question of law which was not presented to nor passed upon by the trial court cannot be raised on appeal.” Appellant argues that the burden of proof was wrongfully shifted to her, since the lunacy inquisition was void. After an inquisition declaring a person non compos mentis, the burden shifts to that person to prove he is of sound mind in a revocation proceeding. Pope v. Bolin, 224 Ala. 322, 140 So. 382 (1932). Despite the possible merits of this contention, appellant has failed to preserve it for our review. At no point during the trial did she object or obtain a ruling on the proper burden of proof. When opposing counsel argued to the jury that the burden of proof was placed on appellant and even when the trial court instructed to that effect, the record is conspicuously silent as to any objections from appellant. As stated in McWhorter v. Clark, 342 So.2d 903, 905 (Ala.1977), “Regardless of the merits of appellee’s contentions, we shall not review questions not decided by the trial court.”

In her second argument, appellant claims the jury verdict of non compos men-tis should be set aside because it cannot be sustained on any reasonable hypothesis of fact founded on the evidence. Hargrave v. Davis-Hunt Cotton Company, 294 Ala. 697, 321 So.2d 178 (1975). We cannot agree. There is ample evidence to support the verdict; it is apparent from the record that the verdict was not the result of compromise or mistake. Hargrave.

Appellant’s sister, Leila Moore, who lived next door and periodically visited appellant to deliver medicine, testified to the effect that appellant was not mentally and physically able to look after her own affairs. Myrtis Wallace, who lived with appellant and took care of her for five months prior to these proceedings, testified that, although appellant was a smart woman, she was incoherent at times and seemed confused. Appellant points to her own nine lay witnesses who testified to the effect that she was of sound mind. We note that several of these witnesses were relatives who had not seen appellant on a regular basis for several years. In any event, as this Court stated in Roberson v. Roberson, 284 Ala. 5, 6, 221 So.2d 122 (1969):

No rule of law is more firmly established by our decisions than where there is a conflict in the evidence the jury should be left to find the facts without interference by the court and “ * * * if there is any evidence tending to prove a fact, no matter how slight, the court has no right to take such question from the consideration of the jury. It is the province of the jury and not of the court to find from the evidence the truth of a disputed fact.” Tobler v. Pioneer Mining and Manufacturing Company, 166 Ala. 482, 52 So. 86 (1909).

Appellant relies heavily on the testimony of her expert witness, Dr. Veena Kapoor, a psychiatrist. After six days of physical and mental examination, Kapoor concluded appellant to be of sound mind. Yet, as this Court observed in Smith v. Smith, 254 Ala. 404, 406, 48 So.2d 546 (1950):

The opinions of expert witnesses as to insanity are not conclusive on the jury, but are to be weighed like other evidence, since expert evidence is intended to aid the jury, and its value depends largely upon the intelligence, experience, honesty and impartiality of the witnesses. The jury may reject all expert testimony though it is without conflict. George v. State, 240 Ala. 632, 200 So. 602; Hockenberry v. State, 246 Ala. 369, 20 So.2d 533. The judgments of experts or the inferences of skilled witnesses even when unanimous and uncontroverted are not necessarily conclusive on the jury. Sellers v. Knight, 185 Ala. 96, 64 So. 329; H. Curjel & Co. v. Hallett Mfg. Co., 198 Ala. 609, 73 So. 938 ....

Nevertheless, appellees did introduce expert evidence to contradict Kapoor’s testimony. Dr. Henry S. Beeler, who had been appellant’s physician for several years prior to these proceedings, made the following report introduced into evidence below:

Mrs. Nigg is an elderly lady that I have seen since April 1974. She is essentially blind and has significant hearing loss. The patient has had a history of drug abuse and cannot be relied upon to administer her own medications. Her physical and mental condition has deteriorated slowly over the past five years. In my opinion the patient is not able to manage her own affairs and is not likely to be able to manage them in the future.

Appellant’s argument that at no time did appellees’ witnesses or exhibits mention the magic phrase “unsound mind” is simply without merit. This is a conclusion to be drawn by the jury.

We cannot say that the jury verdict cannot be sustained on any reasonable hypothesis of fact founded on the evidence. In addition, appellant was present at this proceeding, so the jury could observe her before rendering its verdict.

Having examined the record and having found the issues raised on appeal without merit, we hold that the judgment of the trial court is due to be affirmed.

AFFIRMED.

FAULKNER, JONES, ALMON and EM-BRY, JJ., concur.


author: ALMON, Justice.

text:
    Ex parte Eddie MITCHELL. (Re Eddie MITCHELL v. FRANK MORRIS PONTIAC-BUICK-GMC, INC.).
    79-903.
    Supreme Court of Alabama.
    Feb. 27, 1981.
    Carolyn Gaines-Varner of Legal Services Corp. of Alabama, Selma, for petitioner.
    J. Garrison Thompson of Pitts, Pitts & Thompson, Selma, for respondent.
   ALMON, Justice.

Petition for writ of mandamus to the Honorable J. C. Norton, Judge of the Circuit Court of Dallas County, Alabama.

Petitioner, Eddie Mitchell, brought suit against Frank Morris Pontiac-Buick, GMC, Inc., to rescind a contract for fraud in the sale of a used automobile. The defendant filed a motion to dismiss the complaint for failure to state a claim upon which relief could be granted and challenged the sufficiency of Mitchell’s fraud allegations. During the hearing on the motion to dismiss, Defendant moved, pursuant to Code 1975, § 34-3-23, to disqualify Petitioner’s attorney, a staff attorney in the Selma Regional Office of the Legal Services Corporation of Alabama, on the ground that the suit was a “fee generating action” and, according to 42 U.S.C.A. § 2996f(b)(l), not a proper subject for Legal Services representation. Petitioner’s attorney responded by filing both a motion to quash and a brief in support thereof. After reviewing Petitioner’s brief, Judge Norton granted the motion to disqualify because he found that Mitchell’s attorney was “not qualified to act as attorney for Plaintiff in this case for the reason that [he] is providing legal assistance with respect of a ‘fee generating case' in violation of 42 U.S.C.A. § 2996f(b)(l), and the Court expressly finds this case to be a ‘fee generating case.’ ”

Petitioner argues that the Circuit Court lacked jurisdiction to determine whether Legal Services was properly representing him. It is his contention that the question of whether the Legal Services Corporation Act was violated by representation in a fee generating case is not properly made an ancillary issue in the proceedings, but is only to be determined by resorting to the complaint procedures set forth in the Act. In support of his argument, Petitioner cites 42 U.S.C.A. § 2996e(b)(l)(B) (1977), which provides:

No question of whether representation is authorized under this subchapter, or the rules, regulations or guidelines, promulgated pursuant to this subchapter, shall be considered in, or affect the final disposition of, any proceeding in which a person is represented by a recipient or any employee of a recipient. A litigant in such a proceeding may refer any question to the Corporation which shall review and dispose of the questions promptly, and take appropriate action. This subpara-graph shall not preclude judicial review available under applicable law.

Petitioner also refers to 45 C.F.R. § 1618.1, which provides:

In order to insure uniform and consistent interpretation and application of the Act, and to prevent a question of whether the Act has been violated from becoming an ancillary issue in any case undertaken by a recipient, this part [concerning enforcement procedures under the Legal Services Corporation Act] establishes a systematic procedure for enforcing compliance with the Act,

and 45 C.F.R. § 1618.3, which states:

A complaint of a violation of the Act by a recipient or an employee may be made to the recipient, the State Advisory Council, or the Corporation.

Respondent, on the other hand, interprets the last two sentences in 42 U.S.C.A. § 2996e(b)(l)(B) as permitting, but not requiring, a litigant to refer the question of proper representation to the Corporation. Therefore, Defendant argues, the court was not precluded from determining the question in the first instance. We must disagree because of federal law.

The congressional history of these provisions makes clear the intent that judicial review of the question of proper representation is not to be invoked until after the Legal Services Corporation has first passed upon the issue.

The House Report notes:

[S]ince the inception of federally funded legal service, parties to lawsuits in which the opponent is represented by a legal services program have, from time to time, sought to avoid resolution of the issues in the suit by challenging the authority of the legal services program to provide representation in the particular case or to the particular client. Courts that have been asked to rule upon such questions have been uniform in holding that such issues should not be raised in that forum. The courts have said that such issues should be taken up with the agency providing funding. [42 U.S.C. § 2996e(b)(lXB)] is thus declaratory of existing law as it has been announced by the courts. The Committee believes that repetitive litigation of this issue is a needless drain on federal funds provided for the representation of poor people, and the section has been added to discourage further frivolous litigation of the issue.

H.R.Rep.No.95-310, 95th Cong. 1st Sess., reprinted in [1977] U.S. Code Cong. & Ad. News pp. 4503, 4510 (footnote omitted). Similarly, the Joint Committee Conference Report explains:

The House bill and the Senate amendment each prohibits challenges to the authority of legal services programs to provide representation in a particular case or to a particular client during a proceeding.
In addition, the Senate amendment, but not the House bill, requires that such issues shall be referred to the Corporation for review and disposition and clarifies that the party challenging the authority of the local legal services program to represent a client is not precluded from seeking judicial review of the Corporation’s decision.
The conference substitute provides that no question of whether representation is authorized under this title, or the rules, regulations or guidelines promulgated pursuant to this title, shall be considered in, or affect the final disposition of, any proceeding in which a person is represented by a recipient or any employee of a recipient; that a litigant in such a proceeding may refer any such question to the Corporation which shall review and dispose of the question promptly, and take appropriate action; and that judicial review of the Corporation’s action or inaction is not precluded where available under applicable law.

H.R.Rep.No. 95-825, 95th Cong. 1st Sess. reprinted in [1977] U.S. Code Cong. & Ad. News pp. 4530, 4532.

Based upon the foregoing and the decisions of other courts which have passed upon this and similar issues, see, e. g., Harris v. Tower Loan of Mississippi, Inc., 609 F.2d 120 (5th Cir. 1980); Anderson v. Redman, 474 F.Supp. 511 (D.Del.1979); Martens v. Hall, 444 F.Supp. 34 (M.D.Fla.1977); Brame v. Ray Bills Finance Corp., 76 F.R.D. 25 (N.D.N.Y.1977); Courtney v. Butt, 264 Ark. 475, 572 S.W.2d 407 (1978); we hold that the circuit court lacked jurisdiction to initially determine the issue of representation in this case.

Defendant advances one additional argument for denial of mandamus in this case. Although it is conceded in brief that “Petitioner has not adequate remedy available other than to seek relief by way of mandamus,” Defendant contends the writ should not issue because

Petitioner has no clear right to the relief sought, i. e., the right of representation by Legal Services Corporation of Alabama in a fee generating case since that is expressly prohibited by law; nor does the ... Judge have a clear duty to permit such representation in view of the discretion vested in the Court pursuant to Section 34r-3-23, 1975 Code of Alabama.

Again we must disagree. Because of the authorities hereinabove cited we must assume that the Petitioner is entitled to representation by Legal Services. Furthermore, the question of whether the Judge has a duty to permit such representation is answered by reference to Code 1975, § 34-3-23, which provides:

The Court or judge may, on motion of either party and on being shown reasonable grounds therefor, require the attorney for the adverse party, or for one of the several adverse parties, to produce or prove the authority under which he appears and, until he does so, may stay all proceedings by him on behalf of the party for whom he assumes to appear; but the oath of the attorney is presumptive evidence of his authority, [emphasis supplied]

Thus, it is clear that the Judge’s exercise of discretion is limited to those circumstances where “reasonable grounds therefor” are shown. In the present case, because the Judge lacks jurisdiction to determine the issue raised by Defendant, no reasonable grounds have been shown and the Judge cannot require proof of the attorney’s authority. Absent some other ground for disqualifying Petitioner’s attorney, the Judge has a duty to permit Petitioner’s attorney to continue his representation in this matter.

In sum, Petitioner seeks a writ of mandamus: (1) declaring that the Circuit Court had no jurisdiction to disqualify Legal Services on the ground that the suit was a fee generating action; (2) ordering the Circuit Judge to vacate his order disqualifying Petitioner’s attorney; and (3) directing the Circuit Court Judge to dissolve the stay placed upon these proceedings pending Petitioner’s retention of another attorney. In support of his Petition, he has shown that the court did in fact lack the jurisdiction to disqualify his attorney; that he has a right to representation by Legal Services; that the Judge has a duty to permit such representation; and that, unless the requested writ is issued, he has no other adequate remedy for enforcement of that right. The requirements for the issuance of the writ have been met. Martin v. Loeb & Co., Inc., 349 So.2d 9 (Ala.1977).

The writ is due to be granted.

Writ granted.

EMBRY and ADAMS, JJ., concur.

TORBERT, C. J., and FAULKNER, J., concur in the result.


author: MADDOX, Justice. TORBERT, Chief Justice

text:
    Roland DAY v. RAY E. FRIEDMAN & COMPANY, a corporation.
    No. 79-94.
    The Supreme Court of Alabama.
    Feb. 6, 1981.
    Rehearing Denied March 6, 1981.

      Carl E. Chamblee, Birmingham, for appellant.
    Carleton P. Ketcham, Jr. of Dominick, Fletcher, Yeilding, Acker, Wood & Lloyd, Birmingham, for appellee.
   On Application for Rehearing

MADDOX, Justice.

The application for rehearing is granted; the original opinion in this cause is withdrawn and the following opinion is substituted therefor.

Defendant below appeals from a summary judgment rendered in favor of the plaintiff on its complaint and from a summary judgment which dismissed defendant’s counterclaim. We affirm in part, reverse in part, and remand.

Plaintiff Ray E. Friedman & Company was, on the dates material to this action, an Illinois corporation, properly licensed by all relevant federal authorities to conduct the business of a commodities broker. In early 1974, Friedman was desirous of opening a branch office in Birmingham. On March 12, 1974, Friedman entered into a written contract with the defendant Day under which Day would act as an account executive for Friedman in a new Birmingham branch office. At the time the contract was executed, Friedman had not qualified to do business in Alabama, but on April 14, 1974, Friedman qualified to do business in Alabama.

The contract between Friedman and Day provided that Day would guarantee to Friedman payment of any amounts as a result of deficiencies in the accounts of customers procured by Day due to losses suffered by customers trading on margin.

On September 30, 1974 Day and Friedman mutually agreed to sever their relationship. At that time, Day owed Friedman a total of $8,745.34. Part of this amount consisted of debts Day incurred as a result of personal losses while trading in commodities, and the balance consisted of the debts of customers for which Day became liable under the guaranty provisions of the contract. It is apparent that under the rules of the commodities exchanges a licensed broker must settle his debts and affairs with his employer before he may transfer his license to another brokerage house. On October 18, 1974, Day executed a six-month non-interest bearing promissory note for the amount of his indebtedness in settlement of his obligations to Friedman.

The amount of indebtedness had been reduced to $5,661.87 at the time suit was filed because Day and some of his customers had made payments which were applied on the indebtedness.

Friedman filed suit for the outstanding amount due. Day answered and alleged, inter alia, that he was not guilty of the matters alleged in the complaint and that the promissory note was void because of a failure of consideration on the theory that the underlying contractual obligation was void because it was entered into in Alabama at the time when Friedman was a foreign corporation which was not licensed to do business in Alabama. The record shows that Day also claimed that the note was executed under duress because it was necessary for him to execute the note in order for him to obtain a release of his license to act as a broker on the commodities exchange. Day counterclaimed and demanded monetary damages for misrepresentation by Friedman in inducing him to enter into the brokerage contract. He also claimed brokerage fees and commissions due, and, further claimed that Friedman tortiously interfered with his contractual relations.

In granting Friedman summary judgment for the amount claimed under the promissory note, the trial judge correctly stated “that a note sued on is prima facie evidence of sufficient consideration for the execution thereof, and the burden of proof is on the defendant to show there was no consideration.” Ladner & Company Real Estate Sales, Inc. v. Smith, 277 Ala. 185, 168 So.2d 217 (1964). Day acknowledged in his deposition that it was his signature which appeared on the note. That being the case, the burden was on him to submit a scintilla of evidence in support of his defense that there was a failure of consideration either because the underlying contract of employment was void or the promissory note was executed under duress, as he claimed. The trial court found there was no material issue of fact on the question of whether Day had recognized, adopted and validated the contract during the period after Friedman qualified to do business in Alabama.

In his order, the trial judge opined:

“[I]t is not disputed that Friedman did qualify to do business in Alabama on April 12, 1974, and that Day continued working for Friedman under the employment agreement until September or October of the same year. Under these circumstances, the contract did become valid after Friedman had qualified to do business.”

The trial judge, citing Montgomery Traction Co. v. Montgomery Light and Water Power Company, 229 F. 672, 675 (5th Cir. 1916), (cert. denied 242 U.S. 628, 37 S.Ct. 14, 61 L.Ed. 536), held:

“Following Friedman’s qualification to do business on April 12,1974, Day continued as an employee of Friedman. When he terminated his employment with Friedman, Day executed a promissory note in the principal amount of $8,745.34, recognizing his obligation to Friedman with respect to his own and his customers’ debit balances. From the undisputed evidence in this case, the Court concludes that after Friedman had qualified to do business in Alabama, Day by his conduct recognized and adopted the employment agreement entered into by him with Friedman. It is then no defense to Friedman’s claim under the note that Friedman had failed to qualify to do business in Alabama at the time the employment agreement was executed. While Day in his supplementary affidavit denies that any part of the balance due under the note represents his own debit account balance, he does not deny that the same represents debit balances of customers procured by him for which he is liable to Friedman under the terms of the employment agreement. There is then ample consideration for the execution of the note.... ”

We agree with the trial court’s treatment of the question of whether the contract was void because Friedman was not qualified to do business in Alabama. Since it was clear from the evidence that Friedman qualified to do business in Alabama on April 12,1974, and that Day continued his employment with the Company after that date, there was no genuine issue of material fact concerning whether the contract was void because Friedman had not qualified to do business in Alabama when the contract was made; however, that was not the only issue raised by the parties bearing upon Friedman’s ultimate ability to recover on the promissory note.

Day’s counsel, in brief, and at oral argument, asserted that summary judgment on the promissory note was improper because there existed a genuine issue of material fact on the question of whether he executed the note under duress. As we have already stated, Day claimed that the note was executed under duress because it was necessary for him to do so in order to obtain a release of his license to act as a broker on the commodities exchange. In fact, the trial court, in summarizing the evidence, recognized that Day claimed in his affidavit, which he filed in opposition to the motion for summary judgment, that he acted under “duress.” Consequently, there was at least a scintilla of evidence on the “duress” question.

The commentary to the Uniform Commercial Code in Alabama, Code 1975, § 7-3-305, c. 6, states:

“Duress is a matter of degree. An instrument signed at the point of a gun is void, even in the hands of a holder in due course. One signed under threat to prosecute the son of the maker for theft may be merely voidable, so that the defense is cut off. Illegality is most frequently a matter of gaming or usury, but may arise in many other forms under a great variety of statutes. The statutes differ greatly in their provisions and the interpretations given them. They are primarily a matter of local concern and local policy. All such matters are therefore left to the local law. If under that law the effect of the duress or the illegality is to make the obligation entirely null and void, the defense may be asserted against a holder in due course. Otherwise it is cut off.”

Since duress is a matter of degree, it is ordinarily a matter for the finder of fact.

As we have indicated, the trial court was correct in finding that the contract was not void on the ground that Friedman had not qualified to do business in Alabama. Nevertheless, the trial court should not have granted Friedman’s motion for summary judgment, because there was at least a scintilla of evidence that Day executed the promissory note under duress. Furthermore, Day, in his deposition, contended that before he signed the contract, an official at Friedman told him not to worry about the guaranty clause, which forms the basis for the claim Friedman makes against Day, and for which Friedman claims Day executed the note. Day testified in his deposition, which is a part of the record on appeal, as follows:

“Q Okay. But you signed it [the contract] and sent it back to Chicago, did you not?
“A Yes. Before signing it, however, we were very much upset over the fact that there were one or two things in there that were not in accordance with what we had talked about in Chicago. Primarily the fact that debit balances would be our responsibility. We were sitting at the dinner table at some restaurant up there, Brown was there, Howard Fisher was there, Ditma, I don’t recall if Schuf was there or not, but Darryl Bland and I, we had a large round table, and Ditma plainly made the statement that after all, you know, the real responsibility of debit balances is ours, not yours. As I remember distinctly coming back on the plane I was elated by that possibility because due to the speculative nature of our business that could be a major problem.
* * * * * *
“A And so when the contract arrived and I saw this, I recall that we picked up the phone and talked to them about it. Said, you know, that is not what we agreed to. After all, by now we had the expenses of the office installation and had already taken the big leap so to speak. And were transacting business. Oh, but don’t bother about that, that is no problem. We are going to make, you know, lots of money. We are going to have a long career together. Forget about that, you know. Well, in view of the fact that we had continued already in business, we said well, you know, we really don’t have any alternative at this juncture. So I signed it and sent it back.
“Q Who was that conversation with?
“A Tom Ditma.”

We now consider whether the trial court correctly granted summary judgment for Friedman on Day’s counterclaim.

Count I of Day’s counterclaim is grounded upon the allegation that Friedman misrepresented to Day that the employment contract was a valid and binding agreement. Because we have already determined that the agreement was not void on the ground that Friedman had not qualified to do business in Alabama, we hold that the court did not err in granting summary judgment on Count I of Day’s counterclaim.

The second and third counts of the counterclaim alleged that Friedman owed Day money for brokerage fees and commissions and that Friedman willfully interfered with existing contractual relations between Day and former customers of Day. The evidence is clear from the parties’ respective affidavits that they are in serious dispute concerning monies allegedly owed by Friedman. In addition, the parties are in serious disagreement as to whether Friedman made certain payments it says it made. These conflicting assertions and accusations clearly raise a scintilla of evidence in support of the second count of Day’s counterclaim.

Likewise, we hold that Friedman failed to show that there were lacking any conceivable circumstances under which Day might prevail on the third count of his counterclaim. The evidence shows that several customers interacted with Day on an individual basis prior to his employment with Ray E. Friedman & Company. After becoming an employee of Friedman, Day continued these ongoing business relationships. We, therefore, hold that there existed at least a gleam or glimmer of evidence indicating that during Day’s employment with Friedman various persons interacted with Day as an individual, and not as an employee of Friedman. Whether these individuals continued to be Day’s customers or became Friedman’s customers was a question for the jury to decide.

On the basis of the above reasoning, we hold that the judgment of the trial court is due to be affirmed in part, reversed in part, and remanded.

APPLICATION FOR REHEARING GRANTED; AFFIRMED IN PART; REVERSED IN PART; AND REMANDED.

FAULKNER, JONES, SHORES and BEATTY, JJ., concur.

TORBERT, C. J., and ALMON and EMBRY, JJ., dissent.

ADAMS, J., not sitting.

TORBERT, Chief Justice

(dissenting).

I dissent in part from the substituted opinion.

I agree with Justice Maddox’s statement in his substituted majority opinion that the trial court was correct in granting a summary judgment as to Day’s assertion that the underlying employment contract was void because Friedman & Co. was not qualified to do business in Alabama when it was entered into. We part company, however, as to the issues of whether there was duress involved in the execution of the promissory note, whether there was a parol agreement not to enforce the guaranty clause, whether Friedman owed Day money for brokerage fees and commissions, and whether Friedman willfully interfered with existing contractual relations between Day and former customers of Day. As to the foregoing issues, I would uphold the trial court’s grant of summary judgment.

In order for a summary judgment to be properly granted, there must be no genuine issue of material fact in dispute, and the application of the law to the undisputed facts must be correct. Wheeler v. First Alabama Bank of Birmingham, 364 So.2d 1190 (Ala.1978). Careful study of each of the issues named heretofore reveals that there is no dispute between the parties as to any material fact. Therefore, if the trial judge applied the law correctly, his grant of summary judgment should be upheld.

Appellant claims initially that the promissory note is unenforceable because it was executed under duress. The facts relevant to the alleged duress are not in dispute. The employment contract in effect between Day and Friedman & Co. incorporated the rules of the Commodities Exchange. Those rules required that before a brokerage firm could release the license of a broker leaving its employ, any outstanding accounts between the two parties must be settled. Pursuant to this rule, the contract also contained a guaranty agreement, whereby Day agreed to be responsible for the debts incurred by his customers in their accounts. When Day resigned from Friedman & Co., Friedman sought to enforce the rule and the contract provision, and required Day to execute a non-interest-bearing promissory note to cover the debts incurred by Day’s customers and by Day personally. Day argues that these acts constitute duress sufficient to void the contract. Williston, in his treatise on contracts, states that in order to constitute duress, “[t]he alleged pressure must be wrongful.” 12 S. Williston, A Treatise on the Law of Contracts § 1606 (3d ed. 1970). Furthermore,

[A] threat to bring a civil action or to resort to remedies available under a contract is not such duress as will justify rescission of a transaction induced thereby. This is true even though it is subsequently determined that there is no legal right to enforce the claim, provided the threat is made in good faith, i. e., in the reasonable belief that a possible cause of action exists.

Id. (footnotes omitted). See, United States v. Burgreen, 591 F.2d 291 (5th Cir. 1979); Lehman, Durr & Co. v. Shackleford, 50 Ala. 437 (1874). There was not a scintilla of evidence presented by Day that Friedman & Co. had no legal right to enforce the contract or the Commodities Exchange rules, much less that they had not even a “reasonable belief that a possible cause of action exist[ed].” S. Williston, supra.

Secondly, Day contends that there was a parol agreement not to enforce the guaranty clause. Assuming, arguendo, that Alabama law would permit the introduction of such an agreement, see, Hibbett Sporting Goods Inc. v. Biembaum, 391 So.2d 1027 (Ala.1980), I do not agree that the conversation alluded to by Day constitutes such an agreement. Day testified in his deposition that in a conversation with Tom Ditma, an officer of Friedman & Co., Ditma said in reference to the guaranty clause, “Oh, but don’t bother about that, that is no problem. We are going to make, you know, lots of money. We are going to have a long career together. Forget about that, you know.” After this conversation Day signed the contract and returned it to Friedman & Co. Even taking Day’s testimony regarding his conversation with Ditma as true, there is no showing of a parol agreement not to enforce the guaranty clause. Ditma told Day not to worry because they were “going to have a long career together,” not that Friedman & Co. would not enforce its contractual rights if the situation arose. I fail to see how he could have relied on these statements to his detriment.

Day asserts further that he was owed money for brokerage fees and commissions by Friedman & Co. Day presented no evidence in support of this allegation. In a hearing on a motion for summary judgment, failure of a party opposing the motion to offer any affidavits or other testimony to contradict evidence presented by the moving party leaves the court no alternative but to consider such evidence uncon-troverted. Mims v. Louisville Title Ins. Co., 358 So.2d 1028 (Ala.1978); Donald v. City National Bank of Dothan, 295 Ala. 320, 329 So.2d 92 (1976). Furthermore, Day testified in his deposition that he had been given credit for brokerage fees and commissions paid to Friedman & Co. by Day’s customers, and that he was not aware of any other payments for which he had not been given credit. I fail to see a dispute over a material fact as to this issue.

Day contends finally that Friedman & Co. has unlawfully interfered with existing contractual relationships between Day and customers who “interacted with Day as an individual” and not as an employee of Friedman. Unfortunately, this issue fails to state a claim for which relief may be granted, and was properly dismissed by the trial judge in the hearing for a motion for summary judgment. Alabama law recognizes only two types of tortious interference with contractual relations. One is where an employee is enticed to leave his employment, and the other is where a party has been "procured against his will or contrary to his purpose, by coercion or fraud, to break his contract with another.” Erswell v. Ford, 208 Ala. 101, 103, 94 So. 67, 69 (1922). Also see, Homa-Goff Interiors, Inc. v. Cowden, 350 So.2d 1035 (Ala.1977). Neither occurrence is involved here; therefore, the trial court was correct in granting summary judgment as to this issue.

Although summary judgments are often difficult to uphold in view of the scintilla rule, I believe that the trial court properly applied that rule to the present case. I would affirm the summary judgment, and I therefore dissent in part from the substituted opinion.

ALMON and EMBRY, JJ., concur.

      . GUARANTEE OF ACCOUNT

      ACCOUNT EXECUTIVE guarantees the accounts of any and all customers procured by him through the Branch Office for FRIEDMAN, and agrees to reimburse FRIEDMAN for any losses sustained by it as a result of debit accounts or otherwise of customers procured by him through the Branch Office. ACCOUNT EXECUTIVE agrees to give FRIEDMAN a first lien against any funds due ACCOUNT EXECUTIVE by FRIEDMAN in the event that any customer’s account falls into debit as a result of losses or otherwise....


author: BRADLEY, Judge.

text:
    Byron N. WALDROP v. Sherry C. WALDROP.
    Civ. 2093.
    Court of Civil Appeals of Alabama.
    March 5, 1980.
    Rehearing Denied April 9, 1980.

      T. J. Carnes, of Carnes & Carnes, Albert-ville, for appellant.
    Stephen R. Arnold, Birmingham, for ap-pellee.
   BRADLEY, Judge.

The trial court refused to set aside a divorce decree on the ground of fraud upon the court. The husband appeals and we affirm.

In an uncontested divorce action the circuit court of Jefferson County divorced the parties on July 11, 1972. In an agreement incorporated into the divorce decree, the husband acknowledged his obligations and responsibilities to “the child born of this marriage” and agreed to pay the wife $25 per month as child support.

On December 15,1975 the husband filed a motion defending against the wife’s petition to increase the amount of child support. The husband contended that he was not the father of the child referred to in the 1972 divorce decree. Subsequently, on January 15,1976, the parties filed a joint petition to modify the decree to increase the husband’s child support to $125 per month.

The husband again raised the issue of paternity in a motion filed on August 24, 1979 in response to a petition to further increase child support. The trial court granted the wife’s motion for a protective order to prevent the husband from raising the paternity issue.

Finally, on August 31, 1979, the husband raised the issue of paternity and asserted that a fraud was perpetrated upon the court in the original divorce decree because the wife, at the time she brought the original divorce action, knew that the husband was not the father of the child in question. The trial court, on September 7, 1979, granted the wife an increase in child support.

The husband contends on appeal that the trial court erred in refusing to permit him to go forward with his attack on the original divorce decree based upon fraud in its procurement.

At the outset, we note that the procedure for obtaining any relief from a judgment shall be made by motion or by an independent action. Rule 60, ARCP. That is, a judgment may be attacked only by a 60(b) motion or an independent action under 60(b).

The husband contends that he has brought an independent action and that such a remedy can now be maintained, seven years after the divorce decree was rendered.

However, an independent action under Rule 60(b) must be brought within three years after entry of a judgment or one year after discovery of any fraud by the aggrieved party. See also § 6-2-3, Code of Alabama 1975. As indicated above, the husband first raised the issue of paternity on December 15, 1975 as a defense to avoid an increase in child support. Thus, the husband, at that time, if not before, knew the facts to support his claim of fraud. Clearly, an independent action under Rule 60(b) is not timely in this instance since more than three years has elapsed from the judgment and more than one year from “discovering” the facts constituting a claim of fraud. Thus, the trial court did not err.

The wife has requested an attorney’s fee on appeal. We are not aware of any authority, nor is any cited, pursuant to which we may grant such a fee. Therefore, the request is denied.

This case is due to be affirmed.

AFFIRMED.

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


author: PER CURIAM.

text:
    Ex parte Byron N. WALDROP (In re: Byron N. WALDROP v. Sherry C. WALDROP).
    79-530.
    Supreme Court of Alabama.
    Jan. 9, 1981.
    Rehearing Denied March 6, 1981.
    T. J. Carnes of Carnes & Carnes, Albert-ville, for appellant.
    Stephen R. Arnold of Durward & Arnold, Birmingham, for appellee.
   PER CURIAM.

The decision of the Court of Civil Appeals, 395 So.2d 60, is affirmed. However, we cannot agree with statements in the opinion which seem to suggest that under no circumstances may a judgment be set aside after the expiration of three years. As we recently held in Harrison v. Harrison, [MS. October 3, 1980] (Ala.1980), a judgment procured by fraud on the court itself may be set aside by any court, trial or appellate, on its own motion, even after three years. See, likewise, Hartigan v. Hartigan, 272 Ala. 67, 128 So.2d 725 (1961), and Crisco v. Crisco, 294 Ala. 168, 313 So.2d 529 (1975).

Rule 60(b), ARCP, was intended to simplify and amalgamate the various procedural devices which existed prior to the adoption of the rule, both at law and in equity, to question the validity of judgments. As the comments to the rule state:

Rule 60(b) retains the substance of all the devices [heretofore available], but destroys the artificial boundaries between them.

No ground for attacking judgments has been eliminated by this rule, and it specifically retains the right to bring an independent action for that purpose. As Wright and Miller put it in Federal Practice and Procedure: Civil § 2867 (1973):

Though the rule puts an end to the niceties of the writs, it retains their substance. Relief is now available, either by motion or in an independent action, in any situation in which it could have been had by one of the ancient remedies.

It follows, therefore, that the three-year period mentioned in the rule was not intended to nor did it eliminate the equitable doctrine of laches as it has heretofore obtained in this area.

AFFIRMED.

All the Justices concur except FAULKNER, J., who would have denied the writ initially.


text:
    W. E. CARTER v. Richard A. FORESTER, as Commissioner of the Department of Conservation of the State of Alabama.
    Civ. 2098.
    Court of Civil Appeals of Alabama.
    March 26, 1980.
    Rehearing Denied April 30, 1980.
    Robert M. Hill, Jr., Florence, for appellant.
    Charles A. Graddick, Atty. Gen., Robert A. Macrory, Asst. Atty. Gen., for appellee.
   BRADLEY, Judge.

The appellant, W. E. Carter, is appealing from a denial of reimbursement by the lower court for the taking of 243 raccoons by the Department of Conservation. We affirm.

Mr. Carter raises raccoons for stocking and propagation under a license issued to him by the State of Florida.

On May 21, 1977 Mr. Carter transported 243 live raccoons under interstate health certificates issued by the Florida Department of Agriculture. The raccoons were being transported to a consignee in Lauder-dale County, Alabama.

On this same date, Mr. Carter was arrested by two Alabama Department of Conservation law enforcement officers while in the process of finalizing the sale to the consignee. He was charged with possession of coons during closed season without a permit and with selling or offering for sale live raccoons.

Mr. Carter could not return the raccoons to Florida and was apparently told by the officers that each raccoon constituted a separate offense. However, they further told him that if he would release the raccoons in various locations in Lauderdale County, only one case would be made against him. Mr. Carter released the raccoons in the presence of the officers and at their direction. The case against Carter was nol pressed by the circuit court on the basis no criminal act had been committed by him.

Carter brought suit under an amended complaint for inverse condemnation charging that the Department of Conservation owed him $4,527.00 as just compensation. He also sued in his original complaint under art. I, § 23 of the Alabama Constitution which forbids the taking of private property for public use unless just compensation is made.

On May 25, 1979 the court, without a jury, heard the case, which was submitted on agreed stipulation of facts.

On September 21, 1979 the court denied Mr. Carter any relief, stating that inverse condemnation did not apply in this case, and further that Mr. Carter’s suit was barred under § 14 of the state constitution which forbids a suit against the State of Alabama. An appeal was then timely made to this court.

The issue presented to this court is whether the appellant’s suit is a suit against the State.

The general rule in Alabama is stated in § 14 of the 1901 constitution:

That the State of Alabama shall never be made a defendant in any court of law or equity.

Section 14 also prohibits a suit against state officers and agents in their official capacity and individually when a result favorable to the plaintiff would directly affect a contract or property right of the State. Wallace v. Malone, 279 Ala. 93, 182 So.2d 360 (1964); State Docks Commission v. Barnes, 225 Ala. 403, 143 So. 581 (1932).

In determining whether an action against a state officer or agent is in fact a suit against the State, the court considers the nature of the suit or the relief demanded. Boaz Nursing Home, Inc. v. Recovery Inns of America, Inc., 289 Ala. 144, 266 So.2d 588 (1972); State v. Norman Tobacco Co., 273 Ala. 420, 142 So.2d 873 (1962).

The immunity from suit conferred upon the State by § 14 is not absolute. In Aland v. Graham, 287 Ala. 226, 250 So.2d 677 (1971), the court listed four general categories of cases which do not come within the prohibition of § 14:

Without professing to cover every situation that has arisen, there are four general categories of actions that we have held do not come within the prohibition of Sec. 14. (1) Actions brought to compel State officials to perform their legal duties. (2) Actions brought to enjoin State officials from enforcing an unconstitutional law. (3) Actions to compel State officials to perform ministerial acts. (4) Actions brought under the Declaratory Judgments Act, Tit. 7, § 156 et seq., Code 1940, seeking construction of a statute and how it should be applied in a given situation. [Citations omitted.]

This list was never intended to be a comprehensive final list of those actions not barred by § 14. Gill v. Sewell, Ala., 356 So.2d 1196 (1978). And it has been held that a suit may be maintained against state officials in their official capacity for acts allegedly committed fraudulently, in bad faith, beyond their authority, or under a mistaken interpretation of the law. Unzicker v. State, Ala., 346 So.2d 931 (1977).

The appellant’s complaint alleges a taking of private property without compensation on the part of Richard A. Forester in his official capacity as Commissioner of the Department of Conservation. As previously noted, § 14 of the Alabama Constitution bars a suit against a state officer in his official capacity. Therefore a suit against Richard A. Forester in his official capacity is barred by § 14. Furthermore, the appellant has failed to bring his suit within the categories recognized in Aland and Unzicker.

The appellant does not allege in his complaint that Richard A. Forester exceeded the authority given him by statute. The appellant’s allegations are based on actions of certain officers in the Department of Conservation. We think that if Richard A. Forester acted at all, it was as the State pursuant to his statutory authority. Therefore the appellant’s claim is barred by § 14 of the constitution.

AFFIRMED.

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


author: SHORES, Justice. MADDOX, Justice JONES, Justice

text:
    Ex parte W. E. CARTER. (Re: W. E. CARTER v. Richard A. FORESTER, as Commissioner of the Department of Conservation of the State of Alabama).
    79-604.
    Supreme Court of Alabama.
    Dec. 19, 1980.
    Dissenting Opinion Jan. 9, 1981.

      Robert M. Hill, Jr., Florence, for petitioner.
    Charles A. Graddick, Atty. Gen. and Robert A. Macrory, Asst. Atty. Gen., for respondent.
   SHORES, Justice.

W. E. Carter brought this action against the Commissioner of the Department of Conservation, seeking compensation for 243 raccoons, his private property, which he alleged were taken for public use by the defendant, which he contends entitles him to compensation under the doctrine of inverse condemnation.

The facts were stipulated as follows:

1. Plaintiff, prior to and during the time this cause of action arose, was duly licensed by the State of Florida to raise raccoons for stocking and propagation purposes.
2. On or about May 21,1977, Plaintiff had in his possession 243 live raccoons, which were being transported under Interstate Health Certificates issued by the State of Florida to a consignee in Lauder-dale County, Alabama. Said Interstate Health Certificates were issued by the Florida Department of Agriculture, Division of Animal Husbandry, and were executed by an accredited veterinarian who certified that said raccoons were healthy.
3. On or about May 21,1977, Plaintiff was arrested by two Alabama Department of Conservation law enforcement officers and charged with “possession of coons during closed season without a permit” and with “selling or offering for sale live raccoons.”
4. At the time of the arrest, Plaintiff was consummating the sale of said raccoons to the consignee in Lauderdale County.
5. Plaintiff advised the arresting officers he could not return the raccoons to Florida.
6. Plaintiff was advised that each raccoon could be considered a separate offense but that only one case would be made if Plaintiff released said raccoons in Lauderdale County, Alabama.
7. Plaintiff, in the presence of said officer, released all 243 raccoons in various locations of Lauderdale County at the suggestion of the arresting officers.
8. Plaintiff avers that the release of said raccoons in Lauderdale County, Alabama, constituted a benefit for the State of Alabama, Department of Conservation and Natural Resources and the general public, which Defendant does not deny.
9. The fair market value of said raccoons was $15.00 each.
10. The arresting officers neither requested nor received any instructions from Commissioner John W. Hodnett nor from Commissioner Richard A. Forester concerning the disposition of said 243 raccoons.

The trial court held that the doctrine of inverse condemnation was inapplicable to these facts and further, that the action was in reality a suit against the State and, thus, was barred by § 14 of Article I of the Alabama Constitution. The Court of Civil Appeals affirmed the trial court’s judgment, and we granted Carter’s petition for writ of certiorari. We affirm the decision of the Court of Civil Appeals and hold that this suit does not lie under an inverse condemnation theory and is barred by Article I, § 14, of the Constitution.

It has been said that an action claiming inverse condemnation is very limited and that all elements must be present. Inverse condemnation is defined as the taking of private property for public use without formal condemnation proceedings and without just compensation being paid by a governmental agency or entity which has the right or power of condemnation. Feder and Wieland, Inverse Condemnation — A Viable Alternative, 51 Denver L.R. 529, 530 (1974). These elements are not all present in this case as the last element is missing. Although the animals were indisputably Carter’s private property and the action of the officers was an uncompensated taking without condemnation proceedings, which interfered with Carter’s property rights in the raccoons and inured to the public benefit, the Department of Conservation does not have the right or power to condemn animals.

Although the Department has the express power to acquire real property by condemnation for state parks and parkways under § 9-2-3 of the Alabama Code of 1975, nowhere is it expressly authorized to acquire privately-owned animals or other personal property by condemnation. A grant of the power of eminent domain, which is one of the attributes of sovereignty most fraught with the possibility of abuse and injustice, can never pass by implication. When the power is granted, the extent of its exercise is limited to the express terms or clear implication of the statute in which the grant is contained. City of Birmingham v. Brown, 241 Ala. 203, 207, 2 So.2d 305 (1941). The legislature has given the Department express power to seize commercial fishing gear used in violation of the provisions of § 9-11-140, et seq., of the Alabama Code of 1975, to hold it for a reasonable time to be claimed by the owner and, in the event that it is not claimed, to confiscate it as the property of the Department, § 9-11-151. Clearly, the legislature has delegated to the Department the police power to seize this particular type of private property and has provided procedural steps for its safe enforcement. This underscores its deliberate non-delegation of the power to condemn privately-owned animals. Although we have said in Denson v. Alabama Polytechnic Institute, 220 Ala. 433, 126 So. 133 (1930), that the right of eminent domain is the offspring of political necessity and is inseparable from sovereignty, and that a state agency has the power to condemn property without express statutory mandate, in that case, unlike the present one, we were able to find a “legislative recognition of this power ... in [the agency] and ... provision for its proper enforcement,” 220 Ala. at 435, 126 So. 133. There is no such legislative recognition here and we can only conclude that the legislature did not intend to delegate to the Department such a power. We cannot confer the power by implication. We, therefore, affirm the holding that inverse condemnation did not apply to this case.

The remaining and dispositive issue is whether Carter is prohibited by Article I, § 14, of the Constitution of 1901, from suing the Commissioner of the Department of Conservation for compensation. That section states “that the State of Alabama shall never be made a defendant in any court of law or equity.” In determining whether an action against a state officer is barred by § 14, the Court considers the nature of the suit or the relief demanded, not the character of the office of the person against whom the suit is brought. Wallace v. Board of Education of Montgomery County, 280 Ala. 635, 197 So.2d 428 (1967). This Court has held that § 14 prohibits suit against State officers and agents in their official capacity or individually when a result favorable to the plaintiff would directly affect a contract or property right of the State. Southall v. Stricos Corp., 275 Ala. 156, 153 So.2d 234 (1963).

There are four general categories of actions which in Aland v. Graham, 287 Ala. 226, 250 So.2d 677 (1971), we stated do not come within the prohibition of § 14: (1) actions brought to compel State officials to perform their legal duties; (2) actions brought to enjoin State officials from enforcing an unconstitutional law; (3) actions to compel State officials to perform ministerial acts; and (4) actions brought under the Declaratory Judgments Act, Tit. 7, § 156, et seq., seeking construction of a statute and its application in a given situation. 287 Ala. at 229-230, 250 So.2d 677. Other actions which are not prohibited by § 14 are: (5) valid inverse condemnation actions brought against State officials in their representative capacity; and (6) actions for injunction or damages brought against State officials in their representative capacity and individually where it was alleged that they had acted fraudulently, in bad faith, beyond their authority or in a mistaken interpretation of law. Wallace v. Board of Education of Montgomery County, supra, 280 Ala. at 639, 197 So.2d 428; Unzicker v. State, 346 So.2d 931, 933 (Ala. 1977); Engelhardt v. Jenkins, 273 Ala. 352, 141 So.2d 193 (1962).

The plaintiff’s inverse condemnation action which would not have been barred by § 14 will not lie for the reasons stated earlier. The plaintiff did not base an action on the theory that Richard Forester had exceeded his authority nor did he elect to sue the two individual officers. We agree with the Court of Civil Appeals’ finding that if Forester had acted at all, it was as the State pursuant to his statutory authority. The acts complained of were committed by two Department law enforcement officers without any instructions from Forester. They acted either beyond the scope of their authority or under a mistaken application of law. Although the officers might be individually liable for their actions, as a matter of basic agency law, neither the Department nor the Commissioner is liable if the individual officers were acting in violation or excess of their authority. Although a suit against the officers individually is not barred by § 14, Forester is not liable for their actions when they are beyond the scope of their authority either intentionally or by mistaken application of the law, and suit against him is barred by § 14.

We, therefore, affirm the holding of the Court of Civil Appeals.

AFFIRMED.

TORBERT, C. J., and FAULKNER, EM-BRY, BEATTY and ADAMS, JJ., concur.

MADDOX and JONES, JJ., dissent.

ALMON, J., not sitting.

MADDOX, Justice

(dissenting).

Article I, Section 23, Constitution of Alabama, 1901, provides, in part:

... Private property shall not be taken for, or applied to public use, unless just compensation be first made therefor....

The ’coons here involved were the private property of Mr. Carter. They were taken from him and released and were “applied to public use” in the only manner in which wild animals can be applied to public use. If the Constitution of Alabama provides that a citizen’s property cannot be taken for public use “unless just compensation be first made therefor ...,” how can Section 14 of that same Constitution, which prohibits suits against the State, apply to an action brought to obtain the “just compensation” guaranteed under Section 23?

Section 14 has no application here. In the first place, Section 14 of the Constitution no longer provides the same degree of governmental immunity from suit as it once did, and is now most generally applied to prevent suits against the government for torts committed by its agents which cause personal injury or property damage. Section 14 was never intended to prevent suits against the State of Alabama if the State of Alabama took a person’s property and did not compensate him for it.

It could be said that the acts of the conservation officers here were tortious and therefore outside the scope of their authority, but the State has benefitted by their tortious acts. The State has the ’coons. At least, they are in the public domain. If the Department of Conservation still had in its possession the ’coons here involved, is there any question but that Carter could obtain the return of his property? I think not; therefore, I believe the Department of Conservation, which is a part of the State of Alabama, has taken Carter’s property for public use and has not paid him “just compensation” therefor. Consequently, I must respectfully dissent.

JONES, Justice

(dissenting):

I respectfully dissent.

I was first inclined to register my dissent without any expression of my reasons for so voting; but the strength of my conviction that this case has been wrongly decided also compels me to set forth the why of my vote.

Let’s look at what has happened to “Mr. Carter and his ’coons.” (Our sense of amusement is soon transcended by the utter seriousness of his predicament.) He left Florida on a perfectly legitimate business trip in order to fulfill a contractual obligation to deliver 243 raccoons to a north Alabama hunting club. Before his mission could be completed, he had been falsely arrested, illegally prosecuted, erroneously found guilty, and unlawfully deprived of his personal property — 243 raccoons. Mr. Carter, innocent of any wrongdoing whatsoever, returned to his home State of Florida a convicted criminal, who had suffered extreme personal indignation and humiliation, monetary loss by way of expense of his trip and attorney’s fee, as well as lost time, plus the loss of his raccoons.

It matters not whether the employees of the Department of Conservation acted negligently, in good faith, in ignorance or out of stupidity, in arresting Mr. Carter and taking his raccoons. They nonetheless acted for the Department and not on their personal behalf. Their agency capacity could hardly be questioned. Whether the Department directed, or had knowledge of, its employees’ initial activities in stopping Mr. Carter, arresting him, and confiscating his property is likewise unimportant. The Department of Conservation, at the very least, acquiesced in Mr. Carter’s prosecution and procured his conviction (which, incidentally, shields the guilty parties from any malicious prosecution suit. Brown v. Parnell, 386 So.2d 1137 (Ala.1980).) Moreover, the State of Alabama is now 243 raccoons (and their offspring) richer because of the Department’s activities in this matter. Surely, the doctrine of ratification estops the State from denying agency. (In fairness to the State, I should add that it does not rely upon this defense.)

By the decisions of the circuit court, the Court of Civil Appeals, and now this Court, Mr. Carter, with all his injuries and damages, is left remediless. It is only fair to say that each of these courts, in its holding, has acted with a sense of apology: “It’s just too bad that you can’t recover. We’re truly sorry. We do not agree that it is right, only that it is the law.” It should also be said that abstract justice is not the aim of the law. I agree that the law cannot be shaped and unshaped for individualized application on a case by case basis. But I see no necessity to violate the universally accepted notions of constitutional and common law jurisprudence to effect a just result in this case.

Indeed, I would begin with the constitutional mandate that “... private property shall not be taken ... unless just compensation be first made therefor.... ” § 23, Constitution of Alabama, 1901. This guarantee, explicit in our organic law, is not subsumed and rendered ineffective by § 14 of our Constitution, which forbids suits against the State. While I believe that resort to the State Constitution is adequate to resolve any conflict between §§ 14 and 23, certainly, the absolutism of § 14 could not withstand a challenge under the due process requirements of the Federal Constitution where the State takes private property without just compensation. See my dissenting opinion in Unzicker v. State, 346 So.2d 931 (Ala.1977).

Finally, I view the majority opinion’s rejection of Plaintiffs inverse condemnation theory as rationally unsound. The majority reasons that, because the Department of Conservation has not been legislatively vested with the power of condemnation, one of the requisite elements of the inverse condemnation remedy is missing. The rationale for requiring this as one of the elements of inverse condemnation is that this theory is one of necessity, permitting recovery for public taking of private property where no other remedy exists. If the taking is by an entity not possessed with the power of eminent domain, the law already affords adequate remedies (e. g., trespass, conversion, etc.). I do not disagree with the rule; rather, I have no difficulty in finding its requisite elements present in the instant case.

The State of Alabama has the inherent power of eminent domain, limited only by the constitutional mandate of just compensation and whatever limitations and restrictions may be imposed upon that power through the exercise of legislative prerogatives. That same sovereign entity — the State of Alabama — through the employees of one of its agencies, the Department of Conservation, wrongfully took Mr. Carter’s personal property and converted the same to public use.

The fallacy of the rationale that Plaintiff’s claim fails because the legislature has never authorized the Department of Conservation to exercise the right of condemnation can be illustrated in this supposition: Suppose there were no legislative implementation of the State’s inherent power of eminent domain authorizing the State Highway Department to take private property for public roads. Surely, this legislative inaction would not abort the operative effect of the remedy of inverse condemnation (thus leaving the property owner reme-diless) if the highway department in fact takes private property for public use. To be sure, there is something radically wrong with the conclusion that, because the Department of Conservation took Mr. Carter’s property without legal authority, its taking, in effect, was lawful.

Furthermore, under the majority opinion’s rationale, the State could save millions of dollars by simply relegating all of its condemnation activities to the Department of Conservation. Having no legislative authority to exercise the power to condemn, the Department of Conservation could then take all the property needed by the State for public roads, without any litigation and without any payment. Admittedly, such a practice would be short lived, its cessation coming at the end of some farmer’s double-barrel shotgun. This fact, in my mind, lends credibility to, rather than distracts from, the central point of the cited example.

Political tyranny (i. e., the unbridled power of constituted authority) is the greatest threat to individual liberty. Constitutional government is society’s organic expression of restraints upon the exercise of this otherwise unbridled power. As Lord Acton said in 1887: “Power tends to corrupt; absolute power corrupts absolutely.” Earlier, Daniel Webster lauded constitutional restraints on authority thusly: “Good intentions will always be pleaded for every assumption of authority — it is hardly too strong to say that the Constitution was made to guard the people against the dangers of good intentions.” And, in 1912, Woodrow Wilson cautioned: “Liberty has never come from the government. Liberty has always come from the subjects of it. The history of liberty is a history of the limitation of governmental power, not the increase of it. When we resist therefore the concentration of power, we are resisting the processes of death, because concentration of power is what always precedes the destruction of human liberties.”

Here, there is no lack of appropriate constitutional restraints. It is unfortunate that our functional jurisprudence has failed to breathe reality into the guarantees of our organic law. I can only say to Mr. Carter, “I shall continue to dissent ’til your ’coons come home.”

      . Mr. Carter was convicted of the criminal charge in the district court. On appeal, as shown in the opinion of the Court of Civil Appeals: “The case against Carter was nol pressed by the circuit court on the basis no criminal act had been committed by him.”


author: WRIGHT, Presiding Judge.

text:
    James E. McLENDON, Jr. v. STATE DEPARTMENT OF REVENUE.
    Civ. 2317.
    Court of Civil Appeals of Alabama.
    Sept. 17, 1980.
    Rehearing Denied Oct. 22, 1980.
    Leo E. Costello of Costello & Stott, Birmingham, for appellant.
    Charles A. Graddick, Atty. Gen. and Herbert I. Burson, Jr., B. Frank Loeb and J. Wade Hope, Counsel, Dept, of Revenue and Asst. Attys. Gen., for appellee.
   WRIGHT, Presiding Judge.

Taxpayer appeals from an order by the Circuit Court of Jefferson County dismissing his appeal to that court of a final assessment for sales taxes. We affirm.

In October 1979, the Alabama Department of Revenue made an assessment against taxpayer for sales taxes due of $15,-087.58 including penalty and interest thereon. Taxpayer appeared at the hearing provided by law and protested the assessment. From this hearing it was determined the amount due should be corrected. On January 9, 1980, the assessment was made final in the amount of $14,955.51. On February 4, 1980, taxpayer filed notice of appeal in the circuit court pursuant to § 40-2-22, Code of Alabama (1975). Section 40-2-22 provides taxpayers a procedure for appeal from a final assessment of sales tax. The statute provides:

If any taxpayer against whom an assessment is made by the department of revenue ... is dissatisfied with the final assessment as fixed by the said department of revenue, he may appeal from said final assessment ... to the circuit court of the county in which the taxpayer resides. The taxpayer shall pay the assessment so made before the same shall become delinquent; and, if such taxes are not paid before the same becomes delinquent, the court shall upon motion ex mero motu dismiss such appeal, unless at the time of taking the appeal the taxpayer has executed a supersedeas bond ... in double the amount of the taxes payable to the state of Alabama ....

Taxpayer failed to pay the assessment before it became delinquent. He mailed notice of appeal to the Secretary of the Alabama Department of Revenue along with an attached affidavit that he had been “unable to find anybody to make a superse-deas bond which would be acceptable to the Circuit Court Clerk.” A supersedeas bond marked “Rejected” by the circuit clerk was also attached.

On February 13,1980, the State moved to dismiss the appeal on the grounds that the assessment had not been paid and no super-sedeas bond had been executed as required by the statute. The motion was granted at a hearing on March 13, 1980. On April 10 taxpayer appealed to the Alabama Supreme Court. The case was properly transferred to this court.

There is only one issue facing us in this case. That issue is whether § 40-2-22 is unconstitutional in that it requires the payment of assessment or the execution of supersedeas bond before an effective appeal may be had.

Title 51, § 140, Code of Alabama (1940) (Recomp.1958) (Supp.1973) is the predecessor to § 40-2-22. The appellate courts of this state have, in numerous cases and against varying attacks, continuously upheld the validity of the statute.

Ex parte State ex rel. Attorney General, 252 Ala. 149, 39 So.2d 669 (1949) is the cornerstone case upon which the constitutionality of the statute rests. In that case the Alabama Supreme Court was presented with facts almost identical to those presently under scrutiny. The taxpayer had filed an appeal with the circuit court of his county of residence and the Secretary of the Department of Revenue. He attached a document entitled “Affidavit as to inability to pay taxes and supersedeas bond.” The State filed a motion to dismiss which was overruled by the circuit judge. The State then sought a writ of mandamus compelling the judge to dismiss the appeal.

It was insisted in that case, as it is here, that the requirement of payment of the assessment or posting of the bond as a prerequisite to review was in violation of Ala.Const. art. 1, §§ 10 and 13 and the due process and equal protection clauses of the fourteenth amendment to the U.S. Constitution. The Alabama Supreme Court held that the forerunner to § 40-2-22 did not violate these constitutional provisions.

The court upheld Title 51, § 140 again, this time affirming the trial court’s granting of the State’s motion to dismiss, against a similar attack in Howell v. State, 282 Ala. 464, 213 So.2d 199 (1968).

The right of appeal in tax proceedings is purely statutory and any concessions to the taxpayer in the nature of an appeal are concessions of favor. There is no inherent right to an appeal in these cases. State v. Golden, 283 Ala. 706, 220 So.2d 893 (1969).

The extent of as well as the procedure used to perfect an appeal under § 40-2-22 is a matter of legislative discretion, and it is within legislative competency to require the payment of taxes or the execution of a bond as a condition precedent to an action questioning the amount of taxes due. State v. Golden, supra; Ex parte State ex rel. Attorney General, supra.

Section 40-2-22 is neutral on it face and in its application. The court affirms the constitutionality of the statute and the dismissal by the circuit court based on the cases cited above.

AFFIRMED.

BRADLEY and HOLMES, JJ., concur.


author: EMBRY, Justice.

text:
    Ex Parte James E. McLENDON, Jr. (Re James E. McLENDON, Jr. v. STATE DEPARTMENT OF REVENUE).
    No. 80-72.
    Supreme Court of Alabama.
    Jan. 30, 1981.
   EMBRY, Justice.

Writ Denied. No Opinion.

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


author: HOLMES, Judge.

text:
    John ELSEVIER v. Laurie ELSEVIER.
    Civ. 2279.
    Court of Civil Appeals of Alabama.
    Oct. 29, 1980.
    Rehearing Denied Nov. 26, 1980.
    Thomas J. Stein, Mobile, for appellant.

      Edward B. McDermott and Constance S. Auné of McDermott, Deas & Boone, Mobile, for appellee.
   HOLMES, Judge.

The husband filed a petition in the Circuit Court of Mobile County requesting a termination of the wife’s periodic alimony. After an ore tenus hearing, the trial court refused to terminate the wife’s alimony.

The husband appeals and we affirm.

The husband’s petition was filed pursuant to § 30-2-55, Code of Ala.1975 (1979 Cum. Supp.). This section in 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....

The dispositive issue on appeal is whether the evidence supports the trial court’s conclusion the wife was not “living openly or cohabiting with a member of the opposite sex” within the meaning of the statute. Put another way, did the trial court abuse its discretion in finding the wife did not fall within the purview of the above quoted code section.

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

The husband in 1977 was ordered to pay the wife $550 per month periodic alimony. Thereafter, a former husband of the wife moved into the home of the wife. The wife is sixty-one years of age; the former husband is seventy years of age.

The wife had a tenant residing in the house at the time the former husband moved into the house. There was testimony that the former husband had been recently released from a Veterans Administration hospital, is in ill health, and he had no place to reside after this release from the hospital. Additionally, the record reveals the former husband is a rent paying tenant in the home of his ex wife; that he has a separate bedroom from that of the wife and, further, that he has no romantic interest in his ex wife.

This court has on four occasions within the past sixteen months addressed the question presented by the dispositive issue.

We do not deem it necessary or prudent to restate what we have previously written. We refer interested parties to Blackwell v. Blackwell, Ala.Civ.App., 383 So.2d 196 (1980); Ivey v. Ivey, Ala.Civ.App., 378 So.2d 1151 (1979); Parish v. Parish, Ala.Civ.App., 374 So.2d 348, cert. denied, Ala.Civ.App., 374 So.2d 351 (1979); Atkinson v. Atkinson, Ala.Civ.App., 372 So.2d 1106 (1979).

Suffice it to say the above stated facts clearly support the learned trial judge’s conclusion that the wife’s conduct did not fall within the ambit of the statute in question. In fact, it is difficult to see how any other conclusion could have been arrived at by the trial court.

The case is due to be affirmed.

AFFIRMED.

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


author: TORBERT, Chief Justice.

text:
    Ex Parte John ELSEVIER. (Re: John ELSEVIER v. Laurie ELSEVIER).
    80-172.
    Supreme Court of Alabama.
    March 24, 1981.
   TORBERT, Chief Justice.

WRIT DENIED — NO OPINION.

MADDOX, JONES, SHORES and BEAT-TY, JJ., concur.