author: LABORDE, Judge.

text:
    RAPIDES CONSTRUCTION, INC., Plaintiff-Appellee, v. Pierson A. GASPARD, Defendant-Appellant.
    No. 8587.
    Court of Appeal of Louisiana, Third Circuit.
    Feb. 3, 1982.
    Charles F. Wagner, Pineville, for defendant-appellant.
    Gold, Little, Simon, Weems & Bruser, Larry Feldman, Jr., Alexandria, for plaintiff-appellee.
    Before DOMENGEAUX, DOUCET and LABORDE, JJ.
   LABORDE, Judge.

This is a suit to recover the balance due in a building contract. Plaintiff-Contractor, Rapides Construction, Inc., sued defendant, Pierson A. Gaspard, seeking to recover the balance due upon a contract’s substantial completion and to recover attorney’s fees as provided for in the contract. After hearing extensive testimony presented by both plaintiff and defendant, the trial court rendered judgment in favor of plaintiff in the amount of $9,166.05, representing the balance owed less credits for necessary repairs undertaken by defendant. Legal interest was allowed from April 10, 1980. Plaintiff was also awarded $2,500.00 in attorney’s fees and its lien was recognized. In defendant’s favor, judgment was rendered in the amount of $1,000.00 for his loss of income, with legal interest from date of judicial demand. From the judgment, defendant appeals and plaintiff answers the appeal.

The issues concern the factual findings regarding the construction project’s substantial completion; the amounts allowed as credits of the balance due for costs of necessary repairs; the loss of income award; and the attorney’s fee award.

The trial judge rendered comprehensive written reasons detailing his findings, conclusions, and awards. Close scrutiny of the extensive trial record reveals not only that the trial judge’s conclusions are free of manifest error and that his awards are within the range of his wide discretion, but also that they are fully supported by the evidence adduced. Arceneaux v. Domingue, 365 So.2d 1330 (La.1978); LSA-C.C. art. 1934(3). Hence, we take the liberty of adopting as our own the well-reasoned and considered opinion of the trial court which reads in its entirety as follows:

“This is a suit by plaintiff to recover the balance due upon substantial completion of a building contract.

On April 27, 1979, plaintiff, Rapides Construction, Inc. entered into a building contract, (P-1), with defendant, Pierson Gas-pard, to construct a pre-fabricated, metal frame building for the agreed upon consideration of $25,699.00.

Upon 90 per cent completion of each of four phases of construction, the contract provided for step-payments, consisting of 90 per cent of the total contract price of each phase. The remaining 10 per cent of the contract price was to be withheld as a re-tainage, payable upon final completion and approval of the construction project. All work to be completed under the contract by plaintiff was bonded by American Fidelity Fire Insurance Company as of July 20,1979, (P-2).

By August 28, 1979, the first phase of construction had been 90 per cent completed, with defendant making his first step-payment on August 31, 1979.

On September 27, 1979, plaintiff requested payment for the second and third phases of the construction project. However, defendant refused payment by letter, dated October 4, 1979, (D-l), indicating that the work had not been performed in a workmanlike manner, nor in the manner agreed upon in their contract.

On October 12, 1979, a certified letter of demand was mailed to defendant by plaintiff’s attorney, (P-3).

On October 23, 1979, plaintiff requested Philip Beard, a consulting engineer from Alexandria, Louisiana, to inspect the project, formulate a determination as to its percentage of completion and verify a punch list of items needing correction, submitted by defendant in his above-mentioned letter.

The inspection was carried out and a report was formulated on October 25, 1979, (P^4). According to Beard, the first three phases of the construction project were all at least 90 per cent complete. Included in this report was a list of items enumerated by defendant and additional items noted by Beard as needing completion.

On December 20, 1979, plaintiff filed an affidavit of lien, (P-7), on defendant’s property, a copy of which was sent to defendant by certified mail, (P-5 and P-6), on December 21, 1979.

Subsequently, suit was filed by plaintiff against defendant on December 20, 1979, seeking payment for the last three phases of construction, plus attorney’s fees and cost. On January 10, 1980, defendant answered and filed a reconventional demand against plaintiff, ordering the latter to complete the unfinished construction, correct all defects as outlined in his pleadings and pay damages resulting from the breach.

Subsequently, the parties, through the efforts of their attorney and Phillip Beard, attempted to negotiate their differences. As a result of the negotiations, a written agreement, modifying the original contract, was formulated on February 7, 1980. This agreement was further modified on February 26, 1980, (P-9), and signed by the parties.

The modified agreement contained eighteen proposals outlining work to be completed by plaintiff. The proposals were divided into four phases, each requiring payment by defendant upon plaintiff’s completion. The total new consideration was $17,-620.00.

The agreement reads as follows:

‘Contractor shall notify Arbitrator of stage completion and forward to Arbitrator written request for payment. Arbitrator will make inspection to verify compliance as required by this document and forward request for payment to Owner. Owner shall make progress payments within 10 days after receipt of Authorization by Arbitrator.

21. Time of Completion: Contract shall accomplish Proposals # 1 through # 18 not later than April 7, 1980.’ (P-9, page 6) All other agreements between the parties including the original contract of April 27, 1979, were made a part of this modified agreement by reference and attached thereto.

Upon signing the above agreement, work was recommenced. On March 13, 1980, an invoice (P-10), was sent defendant in care of Beard, authorizing payment for substantial completion of the first phase of construction under the modified agreement. Defendant made this payment of $5,429.63.

On April 1, 1980, Beard sent a letter to plaintiff constituting the third and, what he considered to be, the final attempt to have certain listed items corrected, (D3). The letter went on to read as follows:

‘... You have until 5:00 p. m., April 7, 1980 to perform substantial completion. No further payments will be forthcoming until you satisfy all parties concerned with substantial effort.’

On April 10, 1980, three days beyond the stipulated date for completion of the construction project, Beard mailed a letter to defendant, (P-11), authorizing payment for substantial completion of further work done on the construction project. Accompanying this letter was a certificate of substantial completion as of April 9, 1980, (P-12), signed by Beard. Authorized payment was in the amount of $9,330.07, with 10 per cent of the contract price to be held by defendant as retainage for work yet to be completed. Defendant refused to make payment.

On August 27, 1980, plaintiff filed a supplemental and amending petition, seeking the remainder of the contract price, $12,-224.97, plus attorney’s fees of $5,000.00. Defendant then answered and reconvened for $6,617.80, representing sums he expended to complete the construction. After further negotiations and a pre-trial conference, the matter went to trial February 12, 1981.

This Court now addresses the issues presented at trial.

SUBSTANTIAL COMPLETION OF THE MODIFIED AGREEMENT OF FEBRUARY, 1980

According to Neel v. O’Quinn, 313 So.2d 286 (La.App. 3rd Cir., 1975), the basic law in regard to a contractor’s liability for failure to properly perform a construction contract is found in LSA-C.C. Article 2769, as follows:

‘Art. 2769. Contractor’s liability for noncompliance with contract. If an undertaker fails to do the work he has contracted to do, or if he does not execute it in the manner and at the time he has agreed to do it, he should be liable in damages for the losses that may ensue from the non-compliance with his contract.’

This code article has consistently been construed by the jurisprudence to mean that where a contractor has ‘substantially performed’ a building contract, even though there exists certain defects, he has the right to recover the contract price, reduced by the amount necessary to perfect or complete the work. Martin v. AAA Brick Co., Inc., 386 So.2d 987 (La.App. 3rd Cir., 1980); Airco Refrigeration Service, Inc. v. Fink, [242 La. 73] 134 So.2d 880 (La.1961).

Thus, the essential question for determination in a building contract suit is whether the contract has been substantially performed.

The consulting engineer testified, and this Court finds, there was substantial completion of the contract on April 9, 1980.

AMOUNT DUE PLAINTIFF UPON SUBSTANTIAL COMPLETION

As stated above, plaintiff may recover the amount of the contract price, less the amount necessarily expended by defendant to perfect or complete the work. Additionally, the contractor is liable in damages for the losses that may ensue from his noncompliance with the contract.

Plaintiff claims the remainder of the contract price amounts to $12,224.97, (P-14). Defendant claims the following as amounts necessarily expended to complete the project.

Calk Service Company . $ 640.15
St. Romain Pump Service. 1,254.75
Earl J. Lachney. 58.00
K&B Steel Builders . 4,604.12
American Key & Lock . 29.93
St. Romain Pump Service. 30.85
Total . $6,617.80

According to Beard’s testimony, plaintiff and defendant had agreed that the amount due Calk Service Company for its services was to be equally divided between them. This Court therefore finds that plaintiff may recover $320.08 for those services.

According to the testimony of Jerry Duf-our, operation manager for St. Romain Pump Service, defendant had expended $1,254.75 for their services, which involved the installation and initial placing into operation of the air compressor and twin-post lift equipment. Dufour further testified that seventy per cent of the services constituted the installation of the equipment, while thirty per cent of the services constituted its initial placing into operation. Mr. Beard testified that under the parties’ agreement, plaintiff was to be responsible for the equipment’s installation only. This Court finds that defendant may only recover seventy per cent of the total amount expended, $878.33.

Defendant also seeks to recover $48.00 [sic] paid by him to Earl Lachney for his services, which involved the sanding and repainting of the front-end machine. Defendant testified that the machine needed repainting as a result of being left outside of the building for three weeks. Defendant further testified that he requested plaintiff to move the machine inside the building on three different occasions. This Court finds these services were required as a result of plaintiff’s breach and, therefore, defendant is allowed to recover $58.00.

According to defendant’s testimony, $4,604.12 was expended to K&B Steel Builders, a general contracting company owned and operated by Kenneth Long. Mr. Long testified that he first inspected the project in question in April, 1980. Aside from repairing the building’s leaking roof, Long sublet most of the work and paid the subcontractors as follows.

Belwise .$982.40
Cenia Doors. 335.00
D. K. Murphy Electric . 50.00

Testimony adduced at trial indicated that the amounts expended by Long for the services of Belwise and D. K. Murphy Electric are recoverable by defendant under the parties’ agreement. However, the $335.00 amount paid to Cenia Doors includes $200.00 for the installation of chain hoists, which Beard testified were optional items not previously agreed upon by the parties. Therefore, only $135.00 would be recoverable by defendant for the services of Cenia Doors.

Long testified that he repaired the roof himself, spending approximately twenty hours of his time in doing so. He further testified that he charged approximately $20.00 per hour for his time. Therefore, defendant should be allowed to recover the sum of $400.00, which this Court finds is adequate compensation to Long for his services.

Long further testified that he charged ten per cent as overhead and five to six per cent as profit on all work he sublets or carries out himself. This Court finds that fifteen per cent of the amounts paid to the subcontractors and Long is justified as overhead and profit.

Defendant testified that he expended $29.93 for the services of American Key and Lock, which involved changing the locks to the building. This Court denies this expenditure as a recoverable amount, as the changing of these locks did not result from any defect, or constitute any corrective work.

Finally, defendant seeks to recover an additional amount paid to St. Romain Pump Service for the repair of air leaks. This work was not in any way related to the work carried out by St. Romain under the parties’ agreement. Therefore, this Court denies recovery of this expenditure.

The following is a summary of the amounts this Court finds to be deductible from the amount due on the contract price:

a) Calk Service Company.$820.08
b) St. Romain Pump Service . 878.33
c) EarlLachney. 58.00
d) K&B Steel Builders:
1) Belwise. 982.40
2) Cenia Doors. 135.00
3) D. K. Murphy Electric. 50.00
4) Kenneth Long. 400.00
5) Sub-Total (items 1 through 4) $1,567.40
6) 15% Overhead and Profit. 235.11
Total (items 5 and 6) 1,802.51
GRAND TOTAL. $3,058.92
The amount due is therefore $9,166.05

LOSS OF INCOME

As previously mentioned, even though plaintiff is entitled to sue for the remainder of the contract price, they are nevertheless liable in damages for the losses attributable to their noncompliance with the contract. La.C.C.Art. 2769, supra. Their noncompliance of this contract was the failure to execute the contract in a workmanlike manner and at the time agreed upon; April 17, 1980.

Plaintiff argues that defendant is not entitled to any damages for loss of income since damages are allowable only from the placing in default of the breaching party. Moreover, plaintiff contends that defendant is estopped from putting them in default as a result of his noncompliance with the step-payments outlined in the modified agreement of February 26, 1980.

The First Circuit was presented with a similar situation wherein each party to a building contract had breached their obligations. The appellate court held that damages would be allowed even though there was no placing in default of the contractor by the defendant, and even though the defendant had breached the contract as well. The Court found those code articles governing the putting in default, La.C.C.Arts. 1912 and 1913, to be inapplicable in building contract cases, since the controlling code article, La.C.Art. 2769, did not require a putting in default. Barber Brothers Contracting Company, Inc. v. Chet Homes, Inc., 393 So.2d 352 (La.App. 1st Cir., 1980).

According to defendant’s testimony, his business was finally opened in June of 1980, approximately two months beyond the agreed-upon completion date of April 7, 1980. This Court finds that although the project was substantially completed on April 9, 1980, the defendant was nevertheless forced to delay his business endeavors until such time as it took for a new contractor to complete the project and cure the unworkmanlike defects of plaintiff. This Court finds that an award of $1,000.00 constituting loss of income from April 7, 1980, to June, 1980, is appropriate. This takes into consideration the agreed upon thirty-day period in which plaintiff was to finish the project after substantial completion.

ATTORNEY’S FEES

Plaintiff seeks an attorney’s fee of $5,000.00 based upon language outlined in the parties’ original contract, which later became incorporated in the modified agreement of February 26, 1980. The pertinent language of the contract is as follows:

‘It is further agreed that purchaser will pay all costs of collecting, or securing or attempting to collect or secure any indebtedness which may be due hereunder, including a reasonable attorney’s fee, whether the same be collected or secured by suit or otherwise.’

Attorney’s fees are not allowed unless particularly authorized by statute or by contract between the parties. Simmons v. Hernandez, 287 So.2d 637 (La.App. 3rd Cir., 1973).

This Court finds that reasonable attorney’s fees have been authorized by contract between the parties as a result of the incorporation of the original contract of April 27, 1979, within the modified agreement of February 26, 1980.

Defendant argues that plaintiff cannot recover attorney’s fees because it breached the contract. In Snow-White Roofs, Inc. v. Boucher, 182 So.2d 846 (La.App. 4th Cir., 1966), the Fourth Circuit was faced with the similar issue of whether plaintiff contractors could recover attorney’s fees, as provided for under the contract, even though he failed to perform part of the work as agreed. The appellate court held that the contractor had substantially completed the project and then addressed the issue as follows:

‘One of the provisions of the contract in this case is that, in the event it became necessary for plaintiff to place the contract in the hands of an attorney for collection or suit, the defendants agreed to pay a reasonable attorney’s fee and any court costs incurred thereby. As this action is on the contract and as plaintiff was forced to place the matter in the hands of its attorney, institute suit and prosecuted the suit to judgment, it is quite clear that the defendants are liable for the attorney’s fee and the court costs.’ Snow-White Roofs, Inc. v. Boucher, supra at page 849.

This court is of the opinion that where a contract is breached by both parties, such penalty-type provisions should not be given effect. However, this Court awards attorney’s fees due to the contract language and the precedent set forth in the above appellate decision.

This Court fixes attorney’s fees under the facts and circumstances of this case in the amount of $2,500.00.

For the above and foregoing reasons; judgment is rendered in favor of plaintiff in the amount of $9,166.05 with legal interest from April 10, 1980, together with $2,500.00 in attorney’s fees, and for the lien recognized as demanded. (P-6). Judgment is further rendered in favor of defendant in the amount of $1,000.00 for his loss of income with legal interest from date of judicial demand.

Expert witness fee of Richard Beard is fixed in the amount of $150.00 and taxed as cost. The fee for recording the lien was $15.25 and is taxed as cost. Defendant is taxed for all costs in accordance with the contractual agreement.”

As noted above, we fail to discern any clear error or abuse of its “much discretion” on the part of the trial court.

Plaintiff answered the appeal praying for an increase in damages and attorney’s fees. Finding no justification for altering the awards of the trial court, plaintiff’s demands are denied.

For the above reasons, the decision of the trial court is affirmed. All costs of this appeal are assessed to the defendant, Pier-son A. Gaspard.

AFFIRMED.


source: Caselaw Access Project

author: ROY NOBLE LEE, Justice:

license: Public Domain

text:
    Sharon N. PITTMAN v. The HOME INDEMNITY COMPANY & Moss Point Ins. Agency.
    No. 53088.
    Supreme Court of Mississippi.
    Feb. 17, 1982.
    Rehearing Denied April 7, 1982.
    Gordon, Myers & Gordon, William H. Myers, Pascagoula, for appellant.
    Bryant & Stennis, Grier J. Gregory, Gulf-port, McGehee, Brown, Williams & Mestayer, Raymond L. Brown, Linda D. Baggett, Pascagoula, for appellees.
    Before SMITH, P. J., and ROY NOBLE LEE and BOWLING, JJ.
   ROY NOBLE LEE, Justice:

The Circuit Court of Jackson County, Honorable Clinton E. Lockard, presiding, entered judgment against Sharon N. Pittman and in favor of The Home Indemnity Company (Home) and Moss Point Insurance Agency (Moss). Pittman has appealed to this Court, assigning four errors in the trial below.

Appellant, in her declaration, charged three counts: (1) tortious breach of contract, (2) breach of fiduciary duties and (3) fraud in the inducement. Under count (3), the declaration charged, in essence, that Moss was the general agent of Home; that the appellees promised to issue appellant a policy of liability insurance with comprehensive coverage on her automobile; that she paid premiums for such insurance; that appellees negligently failed to insure appellant after taking her money for said purpose; and that appellant was damaged as a result thereof.

The error assigned, which disposes of the case, is whether or not the lower court erred in granting a directed verdict in favor of Home at the conclusion of the appellant’s evidence, and whether or not the lower court erred in granting a directed verdict in favor of Moss at the conclusion of all the evidence.

George Edgar Pittman and Sharon Pittman were married June 1,1971, and in May 1973, Mr. Pittman obtained a family automobile liability insurance policy from Home written by their local agent, Moss. The policy covered a 1971 Dodge automobile, owned by Mr. Pittman, which extended to appellant, since she was a named driver within the same household. On January 6, 1974, while driving Mr. Pittman’s car, appellant collided with another automobile insured by Allstate Insurance Agency. That company and Home contested the fault issue and, upon submission to the arbitration board of the Mississippi Insurance Commission, fault was assessed against appellant and an additional premium for this accident was charged to the account of Mr. Pittman.

Appellant bought a Chevrolet Monte Carlo in March 1974, title was listed in her name, and the vehicle was added to Mr. Pittman’s policy on March 8, 1974. The premiums were adjusted accordingly, but some months later, the Pittmans experienced marital difficulties, they separated, and Mr. Pittman moved out of the residence. Appellant continued to reside in the home and opened a separate checking account in her name in the early part of August, 1974. On August 22, 1974, Home sent a bill for the additional premium addressed to George Pittman, Route 2, Box 297, Pascagoula, Mississippi, which was the address of appellant, but it was never paid. On November 7, 1974, appellant and Mr. Pittman were divorced.

The evidence favorable to appellant, and her testimony, were to the effect that in early August of 1974 she contacted Mr. T. L. Delashment, representative of Moss, and told him that she had separated from her husband and she desired individual insurance coverage for her car. Appellant told him that she wanted the new policy to cover her husband if they resumed cohabitation, and Mr. Delashment said he would take care of it. Appellant wrote three checks on her individual checking account to Moss as follows:

1. August 7, 1974 — $50;
2. September 26, 1974 — $50; and
3. October 14, 1974 — $14.25.

A cash receipt was introduced into evidence indicating that on the latter date she also paid $80 in cash with the $14.25 payment. Appellant claims that the above payments were to be credited to her account for the insurance coverage on her car.

Mr. Delashment denied that he spoke with appellant in August 1974, or any other time, and testified he first saw her in January of 1975. On January 9, 1975, Home forwarded a cancellation notice of Mr. Pittman’s policy because the past-due additional premium had not been paid. The notice was addressed to George Pittman and mailed to appellant’s residence. The notice indicated the cancellation would be effective on January 23, 1975. Appellant telephoned Moss and inquired as to the purpose of the notice. Mr. Delashment sent her a letter on January 17, 1975, explaining that the additional premium was incurred as the result of the 1974 accident in which she was involved. Appellant told him that her former husband, George Pittman, would be responsible for that additional premium. The premium was not paid and the policy was cancelled on January 23, 1975.

In April 1975, appellant, while driving her Monte Carlo automobile, collided with the rear of a vehicle driven by another individual. Appellant reported the collision to Moss and was told by Mr. Delashment that Mr. Pittman’s policy had been cancelled January 23, 1975, and that she had no insurance coverage. Upon advice of counsel, appellant mailed a check backdated to February 27,1975, to Moss for the past-due additional premium, which was returned to her. Appellant was sued as a result of the April accident and judgment was entered against her in the amount of $11,826.96, together with interest. Subsequently, appellant brought this action to recover damages from the appellees.

First, we consider the question of whether the court erred in directing a verdict for Moss at the conclusion of all the evidence. In a motion for a directed verdict, and on a request for a peremptory instruction the court considers the evidence in the light most favorable to the plaintiff, disregards any evidence on the part of the defendant in conflict with that favorable to the plaintiff, and, if the evidence and reasonable inferences to be drawn therefrom would support a verdict for plaintiff, the motion for a directed verdict should be overruled and the request for a peremptory instruction should be denied. Paymaster Oil Mill Co. v. Mitchell, 319 So.2d 652 (Miss.1975).

In Simpson v. M-P Enterprises, Inc., 252 So.2d 202 (Miss.1971), the Court said:

It seems to be a well-settled rule that if an agent or broker with a view of being compensated agrees to procure insurance for another and through fault or neglect fails to do so, he will be liable for any damage that results thereby. (252 So.2d at 207)

See also 64 A.L.R.3d 398, Liability of Insurance Broker or Agent to Insured for Failure to Procure Insurance (1975).

We are of the opinion that the testimony of the appellant, together with the exhibits introduced at trial, and other evidence favorable to the appellant, with their reasonable inferences, presented a question for the jury to decide on liability, and that the lower court erred in granting a directed verdict in favor of Moss at the conclusion of all the evidence.

The next question presented is whether or not the lower court erred in granting the motion of Home for a directed verdict at the end of the plaintiff’s evidence. Section 83-17-1, Miss.Code Ann. (1972), defines “agent” as follows:

§ 83-17-1. Agent defined.
Every person who solicits insurance on behalf of any insurance company, or who takes or transmits, other than for himself, an application for insurance or a policy of insurance, or who advertises or otherwise gives notice that he will receive or transmit the same, or who shall receive or deliver a policy of insurance of any such company, or who shall examine or inspect any risk, or receive, collect, or transmit any premium of insurance, or make or forward a diagram of any building, or do or perform any other act or thing in the making or consummation of any contract of insurance for or with any such insurance company, other than for himself, or who shall examine into or adjust or aid in adjusting any loss for or on behalf of any such insurance company, whether any of such acts shall be done at the instance or request or by the employment of the insurance company, or of or by any broker or other person, shall be held to be the agent of the company for which the act is done or the risk is taken as to all the duties and liabilities imposed by law, whatever conditions or stipulations may be contained in the policy or contract. .. .

Moss remitted to Home money collected from appellant as premiums, although it credited the premiums to the account of George E. Pittman, her former husband. In Home Insurance Co. of New York v. Thornhill, 165 Miss. 787, 144 So. 861 (1932), the Court said:

Under the general law of agency, knowledge acquired by an agent when transacting his principal’s business will be imputed to his principal although not communicated to him, in the absence of a limitation on the agent’s authority to the contrary, known to the person with whom the agent deals. (165 Miss, at 796, 144 So. at 863).

We are of the opinion that Delashment (Moss) was the general agent of Home, or at least agency was a question for the jury, and that, as agent, he bound Home, his principal. Therefore, the lower court erred in sustaining Home’s motion for a directed verdict at the conclusion of the appellant’s evidence.

The judgment of the lower court is reversed and the ease is remanded for a new trial against both appellees.

REVERSED AND REMANDED.

SMITH and SUGG, P. JJ., and WALKER, BROOM, BOWLING, HAWKINS and DAN M. LEE, JJ., concur.

PATTERSON, C. J., took no part.

      . The other counts are not supported by the evidence.

      . Moss suggests that this rule applies to a motion for directed verdict at the conclusion of the plaintiff’s evidence but not on motion for a directed verdict at the conclusion of all the evidence and on request for a peremptory instruction. However, the rule is the same, with the additional provision that the court will consider evidence introduced by the defendant which is not in conflict with that of the plaintiff.

      . This Court has often said that in cases involving close questions of law and fact, the trial court should submit those issues to the jury and then consider whether judgment notwithstanding the verdict should be granted, thereby resulting in a final decision here. See Claiborne v. Greer, 354 So.2d 1109 (Miss.1978); Jordan v. First National Bank of Jackson, 402 So.2d 845 (Miss.1981).


author: SUGG, Presiding Justice,

text:
    Butler MOSS v. STATE of Mississippi.
    No. 53310.
    Supreme Court of Mississippi.
    March 17, 1982.

      Jackson M. Brown, Starkville, for appellant.
    Bill Allain, Atty. Gen. by Billy L. Gore, Asst. Atty. Gen., Jackson, for appellee.
    Before SUGG, P.J, and WALKER and HAWKINS, JJ.
   SUGG, Presiding Justice,

for the Court:

Appellant was convicted of possession of a controlled substance with intent to deliver, sentenced by the Circuit Court of Clay County to serve a term of seven years in the Mississippi Department of Corrections, and fined $5,000. The sole assignment of error is that the trial court erred in overruling appellant’s motion to suppress the evidence seized in the dwelling house of Daniel Cox.

The motion to suppress was heard separately before the trial. The state introduced the following witnesses on the motion to suppress: Robert Alexander, Jerry Gardner and Tommie R. Peterson, Agents for the Mississippi Bureau of Narcotics.

Alexander and several agents for the Mississippi Bureau of Narcotics met with Captain Wallace, another agent, on August 21, 1980. Captain Wallace had received information from Alfred Guyton and Robert Walker, following their arrest on the night of August 20 by two highway patrolmen, that they were enroute to Starkville to purchase approximately 20 pounds of marihuana. Guyton and Walker had a sheet of paper containing directions from Arkansas to Starkville, Mississippi, along with two telephone numbers to call upon arrival, with the notation “Kevin” on the sheet. Guyton and Walker agreed to assist in apprehending the persons from whom they were going to purchase marihuana.

Two connecting rooms were rented at a Starkville motel and a number of officers were disbursed throughout the interior of the motel and in the area outside the motel. A transmitter was concealed in Guyton and Walker’s motel room for the purpose of permitting officers to monitor any conversations in the room. At about 3:05 a. m. on the 21st, Walker called Kevin Stewart and was instructed to call back at about 6:00 a. m. Another call was made to Stewart who advised Walker that he would contact him later. Stewart came to the motel later in the morning and identified his supplier as “Heavy” who worked at a service station at the Crossroads. “Heavy” was personally known to Agent Alexander as Butler Moss, the appellant. Alexander also knew that Moss worked at a service station at the Crossroads, also known as Mayhew Junction. Stewart left the motel, returned later in the morning, and stated that he would remain there until he received a phone call from his supplier. About 1:30 p. m. a phone call was received at the room, Stewart answered the phone, and after a short conversation, stated that he had talked to his supplier and they were to proceed to a location in rural Oktibbeha County to exchange the “dope.”

Stewart, along with Walker and Guyton, left the motel in a vehicle and were followed by five Mississippi Bureau of Narcotics officers and the Sheriff of Oktibbeha County. Before Walker and Guyton left the motel they were equipped with a body bug so their conversation with others could be monitored by the officers. They were instructed to inquire about the availability of cocaine after they saw the marihuana that they were going to purchase. This was a code to alert the officers that the purchase of the marihuana was about to take place. Captain Wallace took up a position where he could observe the service station at the Crossroads and informed the other agents by radio that appellant had entered the automobile of Walker and Guyton.

The automobile with Moss and Stewart as passengers, then proceeded north on Highway 45 which led from Oktibbeha County into Clay County. The officers followed the automobile through West Point into a rural area of Clay County to the home of Daniel Cox. The officers did not know at that time that Daniel Cox owned the house. The officers remained approximately 300 yards from the house, which was within range of the transmitter. About one and one-half minutes after Walker, Guyton, Stewart and appellant entered the Cox home they heard Walker and Guyton inquire if any cocaine was available. The inquiry was repeated two or three times. This inquiry alerted the officers that Walker and Guyton had seen marihuana and a sale was about to take place.

The officers then surrounded the house, Agent Peterson knocked and announced, “Police.” Upon hearing scuffling sounds inside, Peterson entered the residence. Officers McVey, Wallace and Alexander along with two Mississippi State Highway Patrolmen, entered the kitchen and saw four or five bags containing a green vegetable matter, which appeared to be marihuana, on the kitchen table. Appellant, Cox, Stewart, Walker and Guyton were in the kitchen. The officers informed them that they were under arrest, handcuffed the five, secured the residence, and sent Agent McVey to get a search warrant for the residence.

The officers explained that they handcuffed their two informants, Walker and Guyton, along with the others to conceal the fact that they were working with the officers. After handcuffing the five individuals in the kitchen, the officers searched the other rooms in the house to see if any other persons were in the house. They did not open any drawers, but looked in places that people might be able to hide. In the northwest corner bedroom they saw a footlocker at the foot of the bed. In plain view on the footlocker there was a plastic bag containing a quantity of a green substance which appeared to be marihuana.

After McVey had been dispatched to get a search warrant, Cox, the owner of the house, asked Agent Peterson why they were all “just standing around,” and Cox was informed that the officers were awaiting the return of Agent McVey with a search warrant before they proceeded to search the residence. Cox then stated that the officers did not need a search warrant and they could search as much as they wanted to. Cox executed a consent to search at that time. After receiving permission from Cox to search the house, the officers found seven or eight pounds of marihuana inside the footlocker previously referred to.

Alexander explained that they went into the house upon hearing the code message for three reasons. The first reason was that they were concerned about the safety of the informants who were to purchase a total of 20 pounds of marihuana and the informants lacked approximately $5,000 having enough money to purchase the 20 pounds of marihuana. The second reason was that the officers were concerned about the possible destruction of evidence, and the third reason was that they had no knowledge of where the sale was to take place so they were unable to obtain a search warrant before entering the house and securing it. It was also developed that Captain Wallace was not able to testify because he was recovering from a heart attack and was in a hospital for a cardiac catherization.

The only witness who testified for the defendant on the motion to suppress was Kevin Stewart who testified that the officer was in the house when he called “police.” He heard the word cocaine mentioned by one of the informants.

The question presented by appellant’s assignment of error is, did the seizure of the marihuana observed in plain view in the wake of a warrantless and nonconsensual entry of the dwelling house of Daniel Cox violate appellant’s Fourth Amendment rights?

Appellant relies on Payton v. New York, 445 U.S. 573, 100 S.Ct. 1371, 63 L.Ed.2d 639 (1980) in support of his argument that the marihuana observed in plain view by the arresting officers and seized by them should have been suppressed because the entry into the private residence of Daniel Cox was warrantless and nonconsensual. In Payton, and the consolidated case of Rid-dick v. New York, the United States Supreme Court specifically held:

[T]hat the Fourth Amendment to the United States Constitution, made applicable to the States by the Fourteenth Amendment, Mapp v. Ohio, 367 U.S. 643, 81 S.Ct. 1684, 6 L.Ed.2d 1081, 16 Ohio Ops 2d 384, 86 Ohio L Abs 513, 84 ALR2d 933; Wolf v. Colorado, 338 U.S. 25, 69 S.Ct. 1359, 93 L.Ed. 1782, prohibits the police from making a warrantless and noncon-sensual entry into a suspect’s home in order to make a routine felony arrest. (445 U.S. at 576, 100 S.Ct. at 1374, 63 L.Ed.2d at 644)

The facts in Payton and Riddick were stated in the opinion as follows:

On January 14,1970, after two days of intensive investigation, New York detectives had assembled evidence sufficient to establish probable cause to believe that Theodore Payton had murdered the manager of a gas station two days earlier. At about 7:30 a. m. on January 15, six officers went to Payton’s apartment in the Bronx, intending to arrest him. They had not obtained a warrant. Although light and music emanated from the apartment, there was no response to their knock on the metal door. They summoned emergency assistance and, about 30 minutes later, used crowbars to break open the door and enter the apartment. No one was there. In plain view, however, was a .30-caliber shell casing that was seized and later admitted into evidence at Payton’s murder trial.
In due course Payton surrendered to the police, was indicted for murder, and moved to suppress the evidence taken from his apartment. The trial judge held that the warrantless and forcible entry was authorized by the New York Code of Criminal Procedure, and that the evidence in plain view was properly seized. He found that exigent circumstances justified the officers’ failure to announce their purpose before entering the apartment as required by the statute. He had no occasion, however, to decide whether those circumstances also would have justified the failure to obtain a warrant, because he concluded that the warrant-less entry was adequately supported by the statute without regard to the circumstances. The Appellate Division, First Department, summarily affirmed.
On March 14, 1974, Obie Riddick was arrested for the commission of two armed robberies that had occurred in 1971. He had been identified by the victims in June 1973, and in January 1974 the police had learned his address. They did not obtain a warrant for his arrest. At about noon on March 14, a detective, accompanied by three other officers, knocked on the door of the Queens house where Riddick was living. When his young son opened the door, they could see Riddick sitting in bed covered by a sheet. They entered the house and placed him under arrest. Before permitting him to dress, they opened a chest of drawers two feet from the bed in search of weapons and found narcotics and related paraphernalia. Riddick was subsequently indicted on narcotics charges. At a suppression hearing, the trial judge held that the warrantless entry into his home was authorized by the revised New York statute, and that the search of the immediate area was reasonable under Chimel v. California, 395 U.S. 752, 89 S.Ct. 2034, 23 L.Ed.2d 685. The Appellate Division, Second Department, affirmed the denial of the suppression motion. (445 U.S. at 576, 577, 578, 579, 100 S.Ct. at 1375, 1376. 63 L.Ed.2d 645, 646)

In reversing both convictions the Supreme Court held that warrantless, noncon-sensual entry into a home for the purpose of making a routine felony arrest is a violation of the Fourth Amendment in the absence of exigent circumstances justifying such entry. The Court stated:

But the critical point is that any differences in the intrusiveness of entries to search and entries to arrest are merely ones of degree rather than kind. The two intrusions share this fundamental characteristic: the breach of the entrance to an individual’s home. The Fourth Amendment protects the individual’s privacy in a variety of settings. In none is the zone of privacy more clearly defined than when bounded by the unambiguous physical dimensions of an individual’s home — a zone that finds its roots in clear and specific constitutional terms: “The right of the people to be secure in their .. . houses ... shall not be violated.” That language unequivocally establishes the proposition that “[a]t the very core [of the Fourth Amendment] stands the right of a man to retreat into his own home and there be free from unreasonable governmental intrusion.” Silverman v. United States, 365 U.S. 505, 511, 81 S.Ct. 679, 683, 5 L.Ed.2d 734, 97 A.L.R.2d 1277. In terms that apply equally to seizures of property and to seizures of persons, the Fourth Amendment has drawn a firm line at the entrance to the house. Absent exigent circumstances, that threshold may not reasonably be crossed without a warrant. (445 U.S. at 589, 590, 100 S.Ct. at 1381, 1382, 63 L.Ed.2d at 652, 653)

The Court noted that a majority of the states permit warrantless entry into the home to arrest in the absence of exigent circumstances. In summarizing the position of the states, the Court stated:

At this time, 24 States permit such war-rantless entries; 15 States clearly prohibit them, though 3 States do so on federal constitutional grounds alone; and 11 States have apparently taken no position on the question. (445 U.S. at 598, 599, 100 S.Ct. at 1386, 63 L.Ed.2d 658)

Mississippi is one of the 24 states permitting such warrantless entry under the authority of Mississippi Code Annotated, section 99-3-11 (1972).

It is clear to us, however, that the facts in this case do not fall within the prohibited pale of Payton for three reasons: First, the warrantless entry into the Cox residence was made under exigent circumstances. Second, a felony was being committed in the presence of the officers. Third, the house belonged to Daniel Cox and not appellant. Consequently, we are of the opinion that appellant, a visitor in Cox’s home at the time of the entry, did not have standing to complain.

I

In Payton the Court did not consider whether exigent circumstances justified a warrantless entry into the home of Payton. The Court stated:

Before addressing the narrow question presented by these appeals, we put to one side other related problems that are not presented today. Although it is arguable that the warrantless entry to effect Pay-ton’s arrest might have been justified by exigent circumstances, none of the New York courts relied on any such justification. The Court of Appeals majority treated both Payton's and Riddick’s cases as involving routine arrests in which there was ample time to obtain a warrant, and we will do the same. Accordingly, we have no occasion to consider the sort of emergency or dangerous situation, described in our eases as “exigent circumstances,” that would justify a warrantless entry into a home for the purpose of either arrest or search. (445 U.S. at 582, 583, 100 S.Ct. at 1378, 63 L.Ed.2d at 648, 649)

It was uncontradicted that none of the officers engaged in following the vehicle in which appellant was riding knew where appellant and the other occupants of the automobile were going. Shortly after arriving at a point near the Cox residence, the officers heard the code message. After hearing the code message, the officers then knew that marihuana was present and a sale was about to take place. Officer Peterson, after knocking and announcing his presence and identity, heard a scuffling noise inside the house. A reasonable officer could only conclude that those inside the house, who were then engaged in a criminal activity, had been made aware of his presence and was justified in the belief that the evidence might be destroyed. The proof showed that there were several commodes inside the house and the marihuana could have been flushed down a commode, thus necessitating immediate entry of the house to prevent the destruction of the evidence. In our opinion the evidence shows that exigent circumstances existed which justified a warrantless entry into Cox’s home.

II

Under section 99-3-7 Mississippi Code Annotated (1972) an officer is authorized to arrest a person without a warrant committing a felony in his presence.

An officer or private person may arrest any person without warrant, for an indictable offense committed, or a breach of the peace threatened or attempted in his presence; or when a person has committed a felony, though not in his presence; or when a felony has been committed, and he has reasonable ground to suspect and believe the person proposed to be arrested to have committed it; or on a charge, made upon reasonable cause, of the commission of a felony by the party proposed to be arrested. And in all cases of arrests without warrant, the person making such arrest must inform the accused of the object and cause of the arrest, except when he is in the actual commission of the offense, or is arrested on pursuit.

An offense is being committed in the presence of an officer when he acquires knowledge thereof through one of his senses. Where through the sense of sight, or smell, or hearing, an officer receives knowledge that an offense is being committed in his presence, he may arrest the offender without a warrant. Reed v. State, 199 So.2d 803 (Miss.1967). The officers had been monitoring the conversation taking place inside the house and were aware that marihuana was inside the house and that a sale was in progress. Clearly a felony was being committed in the presence of officers who were monitoring the conversation and Peterson had a right to enter the premises after knocking and announcing his identity.

Police officers may intercept a crime in progress and arrest the persons involved in the commission of the crime without obtaining a warrant for the arrest of the participants in the crime.

Ill

The undisputed testimony shows that the house entered by the officers did not belong to appellant but belonged to Daniel Cox. This fact is significant because the Payton court, before addressing the narrow question there presented, identified preliminarily several related problems that were not at issue. One of the problems was stated as follows:

Nor do these cases raise any question concerning the authority of the police, without either a search or arrest warrant, to enter a third party’s home to arrest a suspect. The police broke into Payton’s apartment intending to arrest Payton, and they arrested Riddick in his own dwelling. (445 U.S. at 583, 100 S.Ct. at 1378, 63 L.Ed.2d at 649)

Appellant was a visitor in the Cox home at the time the officers entered the home and relies on the automatic standing rule announced in Jones v. United States, 362 U.S. 257, 80 S.Ct. 725, 4 L.Ed.2d 697 (1960) which has been followed in a number of cases decided by this Court. The automatic standing rule announced in Jones was overruled in United States v. Salvucci, 448 U.S. 83, 100 S.Ct. 2547, 65 L.Ed.2d 619 (1980). In Salvucci, the Court held:

We are convinced that the automatic standing rule of Jones has outlived its usefulness in this Court’s Fourth Amendment jurisprudence. The doctrine now serves only to afford a windfall to defendants whose Fourth Amendment rights have not been violated. We are unwilling to tolerate the exclusion of probative evidence under such circumstances since we adhere to the view of Alderman [Alderman v. U. S., 394 U.S. 165, 89 S.Ct. 961, 22 L.Ed.2d 176] that the values of the Fourth Amendment are preserved by a rule which limits the availability of the exclusionary rule to defendants who have been subjected to a violation of their Fourth Amendment rights. (448 U.S. at 95, 100 S.Ct. at 2554, 65 L.Ed.2d at 630)

The relevant inquiry in the light of Salvucci and subsequent decisions is whether the police infringed upon some legitimate expectation of privacy the defendant had. Rawlings v. Kentucky, 448 U.S. 98, 100 S.Ct. 2556, 65 L.Ed.2d 633 (1980). See also: Rakas v. Illinois, 439 U.S. 128, 99 S.Ct. 421, 58 L.Ed.2d 387 (1978).

Appellant did not testify at either the suppression hearing or at the trial. He did not produce any evidence to show that he had a legitimate expectation of privacy while he was in the home of Daniel Cox; therefore, he had no standing to complain about the warrantless entry into Cox’s home and the seizure of contraband therein.

We recognize that Salvucci, Rawlings and Rakas all were cases dealing with Fourth Amendment rights under searches and seizures; however, we are of the opinion that the rationale of these cases applies to the arrest of an accused in the home of another, when the accused claims his arrest violates his reasonable expectation of privacy guaranteed by the Fourth Amendment.

The residence of Cox was not appellant’s castle, and although he was legitimately on the premises presumably with the permission of the owner, he had no legitimate expectation of privacy and was not entitled to challenge the fruits of the subsequent seizure since none of his rights were violated.

We therefore affirm.

AFFIRMED.

PATTERSON, C.J., SMITH, P.J., and WALKER, BROOM, ROY NOBLE, LEE, BOWLING, HAWKINS and DAN M. LEE, JJ., concur.


author: ADAMS, Justice.

text:
    Linda L. O’GRADY, Johnny O’Grady, First Federal Savings and Loan Association of Bessemer, a corp., George F. Seier and Page Seier v. S. M. BIRD, Jr., Ind. and d/b/a Bird Building Material Co. and The Roomakers Corp., a corp. and S. M. BIRD, Jr., Ind. and d/b/a Bird Building Material Company v. Linda L. O’GRADY, et al.
    79-379, 79-397, 79-399, 79-400 and 79-401.
    Supreme Court of Alabama.
    Sept. 18, 1981.
    As Corrected on Denial of Rehearing Dec. 23, 1981.

      G. W. Nicholson and J. Dan Taylor of Smyer, White, Taylor, Evans & Sanders and W. H. Collier, Jr., Birmingham, for appellants and cross-appellees.
    Wade H. Morton, Jr., Columbiana, for appellees and cross-appellants.
   ADAMS, Justice.

This case concerns the Alabama mechanics’ and materialmen’s lien law. From a judgment below largely in favor of plaintiff-lienholder Bird, defendants appeal and Bird cross-appeals. We affirm as to most of appellants’ contentions and reverse and remand as to Bird’s cross-appeal.

FACTS

In December 1977, Johnny O’Grady (Johnny) and his wife Linda O’Grady (Linda) contracted to buy 26.660 acres of land in Shelby County from George and Page Seier (Seiers). When the sale closed on January 10,1978, the deed passed title to Linda only; a 3.458 acre parcel was exempted from the purchase money mortgage executed that day by Johnny and Linda. A down payment of $20,000.00 served as consideration for this exemption; the mortgage amount was $50,000.00. Prior to the closing, Johnny, who was in the construction business, had begun building a house for himself and his family on the portion of the land which was exempted from the mortgage to the Seiers in order to facilitate financing for their house.

S. M. Bird (Bird) does business as a building supplier; Johnny had a credit account with Bird, and Johnny obtained materials for his house on credit. Johnny also renovated a block house which stood on the 3.458 acres and built a barn on the property, but outside the reserved acreage. Bird supplied materials for all three buildings, but the invoices did not distinguish which materials were for which building.

Prior to contracting to buy the Seiers’ land, Johnny and Linda had contracted to sell their home, with expectation of realizing $30,000.00 as their equity. When this contract was not carried out, Johnny was unable to pay Bird for the materials purchased for his new home, an account which ultimately amounted to $29,819.91. On April 20, 1978, Bird filed a verified statement of lien, which substantially followed the form of Code 1975, § 35-11-213, for this amount plus interest and attorney’s fees against the three buildings above and “one acre of land surrounding [each building] and contiguous thereto.” Johnny’s credit agreement with Bird provided for 18% interest and attorney’s fees in the event of default.

On August 17, 1978, Bird filed a complaint in circuit court against Johnny and Linda, the Seiers, First Federal Savings and Loan Association of Bessemer (First Federal) and the Roomakers Corporation (Roo-makers). First Federal held a mortgage which Johnny and Linda had executed on the 3.458 acres to secure construction financing, and Roomakers had filed a verified statement of lien on August 8, 1978, in the amount of $1,877.36 plus interest against the newly constructed house and one acre surrounding it. Roomakers’ lien was for carpeting supplied by it to Johnny and Linda.

THE CASE BELOW AND ISSUES PRESENTED ON APPEAL

Bird’s complaint sought a judgment that his lien be established for the $29,819.91 claimed therein, that his lien had priority over all other interests in the land, and that it be foreclosed to satisfy the indebtedness. The Seiers filed a motion to dismiss which alleged various grounds including, among others, allegations that Bird claimed three liens in one statement of lien and that the land was insufficiently described in his statement. Roomakers filed a general denial and a counterclaim and cross-claim on its lien. First Federal had a default judgment against it, but this was set aside, and it filed an answer which challenged the validity of the lien. Johnny and Linda filed a motion to dismiss which paralleled that of the Seiers.

When the trial court denied these motions, Johnny and Linda filed an “Answer” alleging that the complaint failed to state a claim. The Seiers filed an answer alleging that their mortgage had priority, that Bird’s lien did not extend to the land covered by the Seiers’ mortgage, and that Bird had not properly filed his lien or his suit. Bird amended his complaint three times, the first two for clarification and the third to respond to all the allegations of insufficiency of the liens. This third amendment alleged that up to that time Bird had no way of knowing either the allocation of the materials to the particular buildings or the exact description of one acre surrounding each building (his complaint included a correct description of both the larger tract and the exempted 3.458 acres).

The trial court ordered a survey of the property, including one acre surrounding each building. Defendants contest this order as beyond the scope of the court’s authority, but cite no cases to that effect and we find no merit in this contention; such an order is within the equitable power of the court. The case was heard without a jury during three days in May, 1979. Bird presented as a witness Curtis Michael Benson, who had served as Johnny’s foreman on the job; Benson itemized the materials in Bird’s invoices to each building.

There was much dispute over whether the lien could be enforced against Johnny’s contract obligations because title to the land was taken in Linda’s name. The court found, however, that the conveyance to Linda was a fraudulent attempt to defeat Johnny’s creditors, that a constructive trust was created for Johnny’s benefit, and that the trust should be terminated, vesting full title in Johnny.

The court further held valid Bird’s and Roomakers’ liens in that they contained a legal description of the smallest tract of land which Bird and Roomakers could reasonably have provided. The court further found that the additional one acre per building was described as specifically as practicable and that the court could fix the exact location of each one acre from the evidence. It held that the liens were good against each of the buildings and the land on which they were situated, but not against the additional one acre surrounding the buildings. The court felt constrained to hold that the additional one acre could not be subjected to lien because of our decisions in Bice v. R. L. Bains Builders, Inc., 269 Ala. 662, 115 So.2d 468 (1959), and Fowler v. Mackentepe, 283 Ala. 458, 172 So. 266 (1937).

The court held that the Seiers’ mortgage had priority over Bird’s lien on the land on which the barn stood, but not “exceeding the portion of the unpaid balance of the purchase money mortgage attributable to this .062 acres.of land, being the sum of $133.60, and [that] they have no interest whatever in the barn . . . .” Further, the Court held that Bird’s and Roomakers’ liens had priority over First Federal’s mortgage. The court ordered that if the debts allocated to each building, plus interest and attorney’s fees as provided by Johnny’s credit agreement with Bird were not satisfied, the lien should be foreclosed.

Linda, the Seiers, and First Federal appeal the awards of the liens against them, and Bird cross-appeals the denial of a lien on the additional acre surrounding the buildings.

ANALYSIS

We will discuss the issues raised by the parties in the following order:

A. Lien Statement Challenges.

1. Sufficiency of affidavit in verified statement of lien. •

2. Propriety of filing one statement of lien for the three buildings without allocating the materials.

3. Adequacy of description of the one additional acre granted by statute.

B. Pre-trial Matters.

4. Power of the trial court to order a survey.

5. Statute of limitations argument against Roomakers.

C. Judgment.

6. Correctness of trial court’s order that title be vested in Johnny based on fraudulent conveyance and constructive trust.

7. Priorities.

8. Award of contract-rate interest and attorney’s fees.

1. Sufficiency of Affidavit.

Linda argues on appeal that Bird's notarized affidavit on his lien statement does not meet the personal knowledge requirements of Code 1975, § 35-11-213, in that it includes the phrase “the same are true to the best of his knowledge and belief.” She relies upon Globe Iron Roofing & Corrugating Co. v. Thatcher, 87 Ala. 458, 6 So. 366 (1889). This case is clearly inappo-site both because Bird followed the form provided in § 35-11-213 (which was first included in the 1923 Code) and because a fuller quotation of Bird’s oath would include, “That he is the claimant herein and has personal knowledge of the facts set forth . ... ” The affidavit in Globe did not contain such language. We find no error here. Cf. Harper v. J. & C. Trucking & Excavating Co., Inc., 374 So.2d 886 (Ala.Civ. App.1978), cert. quashed, 374 So.2d 893 (Ala.1979).

2. Propriety of filing one statement without allocating the materials to each building.

Linda and First Federal claim on appeal, as they did at trial, that Alabama law requires Bird to have segregated the materials he supplied according to the buildings improved thereby before he filed his lien statement. Appellants rely chiefly on College Court Realty Co. v. J. C. Letcher Lumber Co., 201 Ala. 362, 78 So. 218 (1917), and on Richardson Lumber Co. v. Howell, 219 Ala. 328, 122 So. 343 (1929). In each of these cases the defendant property owner’s challenge to the materialman’s lien was that the contract had not specified which items supplied were placed in each building. This court held in both cases that the lien was not defeated by this lack of specificity in the contract. “It is sufficient if [the amount that is to go into each house or lot] is ascertained before the lien or claim therefor is filed in the probate court,” College Court, supra, 201 Ala. at 363, 78 So. 218.

This court allowed plaintiffs in these eases to proceed with actions on their liens. Although the cases might be read as indicating that a lien claimant must separate charges among buildings before filing his statement of lien, we believe that they can also be read to hold that an initial claim for the amount due on a contract in an aggregate amount is not objectionable where the amount allocated to each improvement is determined in time to prevent prejudice to the defendant. In Richardson, supra, this court noted that “The defendants had the right, when sued, to demand a list of the items composing the sum sought to be collected, and were thereby protected from surprise when the proof was offered as to the respective houses, lots, and materials furnished for the improvements thereon.” 219 Ala. at 330, 122 So. 343. This lack of surprise is even more the case where, as here, the property owner has had the materials supplied directly to himself as builder.

First Federal argues that neither of the mortgagees could have looked at the verified statement of lien or the complaint and determined how much money would have been required to secure the release of the property on which they held a mortgage. We do not see this as a substantial objection, because the mortgagees could have had discovery upon either plaintiff materi-alman or their co-defendant mortgagor. Finally, “[t]he decree of the court would necessarily conform to the rulings here that only material that went into a particular house was charged as a lien thereon .. .,” Richardson, supra, 219 Ala. at 330, 122 So. 343.

We hold, therefore, that the trial court committed no reversible error when it found, in accordance with evidence adduced at trial, the value of the materials supplied to each building. The lien statement itself is good because it so closely follows the Code form when it says “This lien is claimed, separately, severally and jointly, as to both the above specified 3 acres or less of land and the above specified buildings and improvements situated upon the above described 20 acres, more or less, of land.” [Emphasis added.] Cf. Code 1975, § 35-11— 213

3. Adequacy of description of the one additional acre granted by statute.

The verified statement of lien which Bird filed on April 20, 1978, claimed a lien against

(1) the newly constructed dwelling house of Linda L. O’Grady and husband, Johnny W. O’Grady ... which contains approximately 2,500 square feet, and the 1 acre of land surrounding and contiguous thereto, and (2) [a parallel clause claiming the barn and the one acre surrounding and contiguous to it], and (3) [a parallel clause claiming the renovated block house and the one acre surrounding and contiguous to it], all of which is a part of the following described real estate situated in Shelby County, Alabama and containing 20 acres, more or less, to-wit: [describing both the larger parcel and the 3.458 acres “encompasse[d] as a part of it” by correct legal description].

When Bird sought to have the lien declared and foreclosed, the defendants objected that the description of the property was insufficient.

The trial court’s decree awarded the lien against the three buildings and the land on which they were situated, but not against the additional surrounding acreage. In so holding, the court relied on Bice v. R. L. Bains Builders, Inc., 269 Ala. 663, 115 So.2d 468 (1959), and Fowler v. Mackentepe, 233 Ala. 458, 172 So. 266 (1937). We note to the same effect Tanner v. Foley Building & Manufacturing Co., 254 Ala. 476, 48 So. 785 (1950). This Court held in these three cases that the materialman’s liens in question were enforceable as to the buildings and the land upon which they were situated, but not as to the surrounding one acre.

In response to the defendants’ challenges that his description was not sufficient, Bird amended his complaint to the effect that he “did not know or have any reasonable means of knowing the legal description for one acre of land surrounding each one of the three aforesaid buildings.” The court below found, after hearing the case without a jury, that

As described, this additional one acre is specific and definite enough for anyone reading the lien statement to know approximately where it is located and to separate it from the balance of the tract. Also this one acre is described in terms that are as specific and definite as the Plaintiff was reasonably capable of furnishing until after the Court Appointed Surveyor completed his survey on April 21, 1979. From the evidence adduced at the trial of this cause, the Court could equitably fix the exact location of this additional one acre in land area ....

Nevertheless, the court felt constrained by the decisions of this Court mentioned above to deny the additional one acre.

We acknowledge that language in the cases above supports the result that the trial court felt was dictated. We also acknowledge the clearly implied conclusion that this result is inequitable. This case highlights the severity of the burden placed upon materialmen by the specificity required by a constrictive reading of Fowler, supra, and the cases following it. In order to acquire the surrounding and contiguous acre granted by §§ 35 — 11—210 and —217, materialmen would have to survey land owned by someone against whom no legal action was yet pending. Without this acre, comparatively, the materialman’s lien on property outside of a city or town is much less valuable, and the description requirements on such materialmen are more onerous than they are on those supplying materials for buildings on city lots.

Bird’s lien statement claims the one acre “surrounding and contiguous” to the buildings. In Fowler, the lien claimed a building “and one acre in addition to the land upon which the building or improvement is situated,” 233 Ala. at 459, 172 So. 266. The materialmen in Tanner and Bice (for aught that appears) failed to specify that they were claiming the acre surrounding and contiguous to the improvement. Bird has given as definite a description as he could have without trespassing on Johnny and Linda’s land. To hold that he has no right to the acre claimed would be to preclude the statutory grant from having any effect.

The court-appointed surveyor fixed one additional acre for each of the three buildings. We note from an inspection of the exhibit showing this survey that the acre allotted to the new house extends beyond the parcel mortgaged to First Federal; this acre should be confined to the 3.458 acre parcel, because the lien on this building affects only the land reserved from the Seiers’ mortgage. On remand, this acre should be redrawn within the 3.458 acre parcel.

In summary, we hold that Bird’s statement described the additional acre surrounding and contiguous to each building as well as was practicable at the time. On remand, therefore, the court should allot one acre to each of the residential buildings. As discussed under the “Priorities” heading below, Bird’s lien does not attach to the land mortgaged to the Seiers; therefore, no lien attaches to the acre surrounding the barn.

4. Power of the court to order a survey.

Linda contends on appeal that the court had no authority to order a survey. On the contrary, two separate chapters of the Code grant such authority.

In Taylor v. Shaw, 256 Ala. 467, 55 So.2d 502 (1951), this Court reversed a decision of the trial court sustaining a demurrer to a mortgagee/materialman’s complaint. In that case, there was some question as to whether the building by which the complainant’s note was secured had been built beyond the mortgagor’s property line. This Court, in remanding the case, said: “Certainly the complainant can request the survey, [Code 1975, § 11-7—11], and the court can direct the survey. [Code 1975, §§ 11-7-4 and -5].” Taylor, supra, 256 Ala. at 472. In contesting Bird’s request for a survey before trial, Linda and Johnny argued that §§ 11-7-4 and 11-7-11, gave Bird the right and the duty to survey their land before filing his lien statement. Although § 11-7-11 does give the surveyor the right to enter upon and survey lands “at the request of any person interested therein,” we find no record of this section being used except in conjunction with a court proceeding as contemplated in Taylor and in § 11-7-5. Therefore, because of the practical considerations involved in getting a surveyor to go on someone else’s land, without a court order, and the shortness of time required to file a materialman’s lien under our statute, we do not interpret § 11—7—5 to require a materialman to obtain the services of a surveyor before filing his lien statement.

As further authority for the court’s appointment of a surveyor, we note Chapter 3 of Title 35 (Code 1975, §§ 35-3-1 through -3 and §§ 35-3—20 through —25). Bird and the court below, in fact, complied with this chapter: Bird filed a motion which accords with § 35-3-21; the court held a hearing before granting the motion (cf. McCullar v. Conner, 287 Ala. 455, 252 So.2d 422 (1971)); and the order directed the surveyor to comply with “the procedure stated in § 35-3-24.”

Upon entering judgment in favor of Bird, the court below taxed the costs of the survey against Johnny, apparently on the basis of its finding that the survey “was necessitated by the fact that Johnny . .. did not have a survey of the land involved in this action showing the location of the three buildings in relation to the boundary lines .. .. ” We would not go so far as to require a property owner to survey his own land for another’s benefit; furthermore, Bird is receiving the benefit of the court ordered survey in that it completes the description required in his lien statement. Therefore, we direct the court on remand to tax the survey costs against Bird.

5. The statute of limitations argument against Roomakers.

The work and materials furnished by Roomakers were provided on February 9, 1978, and the amount owing therefor became due on March 10, 1978. Roomakers filed its lien statement on August 8, 1978, and filed its answer, crossclaim, and counter-claim on September 25,1978. The counterclaim averred that the amount was “past due and unpaid since July 31, 1978;” the lien statement sought interest from July 31, 1978, but it also stated that “payment therefor was due in full on to-wit: March 10, 1978.”

No parties filed responses to Roo-makers’ cross-claim, but First Federal filed a motion to alter or amend judgment which raised the statute of limitations. Both First Federal and Linda argue on appeal that their failure to raise this issue as an affirmative defense is excused because the expiration of the period did not appear on the face of the complaint. This alleged excuse does not circumvent waiver, however, for the simple reason that Roomakers’ verified statement of lien was attached as an exhibit to the cross-claim. Because the statement did show the due date on its face, reasonable diligence would have led the parties to raise the statute of limitations defense. Therefore, the trial court properly overruled the post-judgment motions raising this issue.

6. Correctness of trial court’s order that title be vested in Johnny based on fraudulent conveyance and constructive trust.

The trial court found that at the time Bird began furnishing materials to this construction project, Johnny was the vendee in an executory contract to purchase the land from the Seiers; that Johnny had paid part of the purchase price; and that he had been put in possession by the Seiers. The court found that this contract vested Johnny with equitable title, constituted him the owner within the purview of the mate-rialmen’s lien law, and entitled him to receive conveyance of legal title; but contrary thereto the Seiers purportedly conveyed their title to Linda. The Court said:

The purported conveyance of the title in and to this real estate to Linda L. O’Grady was part of a fraudulent scheme by Linda L. O’Grady and Johnny W. O’Grady, Jr. for the purpose of defrauding the Plaintiff and other creditors simi-larily [sic] situated, including the Counter-claimant. All of the $20,000.00 cash consideration for this deed was paid with money belonging to Johnny W. O’Grady, Jr., in which Linda L. O’Grady had no ownership interest, and he arranged for the financing to construct the improvements upon the land covered by this deed and these mortgage loans were made on the basis of his credit and earnings and he was required to join as a mortgagor in each mortgage with his wife Linda L. O’Grady. A constructive trust arose in favor of Johnny W. O’Grady, Jr. and from the date of the aforesaid deed to Linda L. O’Grady, she held legal title for the use and benefit of Johnny W. O’Grady, Jr., as the one equitably entitled thereto. This constructive trust should be declared and enforced and it should now be terminated, thereby constituting Johnny W. O’Grady, Jr. as the sole owner of the real estate involved in this action, subject to the liens in favor of the other parties to this action....

Linda and First Federal argue on appeal that this finding of fraud is erroneous, primarily for lack of evidence of intent to defraud. They assert that at the time of the conveyance, neither materialman’s account was overdue. We note, however, that a constructive trust “will be imposed when a property interest has either been acquired by fraud or where, in the absence of fraud, it would be inequitable to allow the property interest to be retained by the person who holds it.” Coupounas v. Morad, 380 So.2d 800, 803 (Ala.1980) (citations omitted). Furthermore, evidence adduced at trial that Johnny had an interest in the property under the contract gave Linda “the initial responsibility of proving the bona fide character of the underlying transaction,” Gurley v. Blue Rents, Inc., 383 So.2d 531, 535 (Ala.1980). This she has not done, at trial or on appeal. We hold, on the basis of the foregoing authorities, and the facts found below, that the trial court did not err in vesting title in Johnny O’Grady.

7. Priorities.

a. Between Bird and the Seiers

The trial court awarded priority to the Seiers’ purchase money mortgage over Bird’s lien on the barn and the land on which it is situated, but only to the extent of “the portion of the purchase money mortgage attributable to this .062 acres of land, being the sum of $133.60....” The court then ordered the barn and the land underneath it sold, with the first $133.60 going to satisfy the Seiers’ mortgage on this portion of the plot. This result is contrary to the provisions of Code 1975, § 35-11-211. This section provides that a person holding a materialman’s lien subject to a prior mortgage on the land may have the building sold, “and the purchaser may, within a reasonable time thereafter, remove the same.” The court properly gave the Seiers priority, because the evidence indicated at most that the barn was begun late on the day the deed and mortgage were executed. This was not sufficient to give the Seiers notice such that they waived their priority or the agreement to build only on the exempted 3.458 acres. See City Realty & Mortgage Co. v. Tallapoosa Lumber Co., 231 Ala. 238, 164 So. 55 (1935). This case, in addition to discussing priority, indicates that the land might be sold and the proceeds apportioned among the liens and mortgages; however, such a result is not proper under the separability and removal provisions of § 35-11-211. Therefore, the land under the barn (much less an additional acre) cannot be sold because of the Sei-ers’ prior mortgage.

b. Between Bird and First Federal

On February 9, 1978, Johnny and Linda mortgaged the 3.458 acre plot to First Federal to secure permanent financing of a construction mortgage. The construction had begun some time before, so the trial court properly gave Bird’s lien priority.

First Federal argues that it was dealing only with Linda on the mortgage and that, because Linda was sole record titleholder who signed an affidavit that no material-men’s liens were unpaid, First Federal was a bona fide purchaser without notice of Johnny’s debts or any fraud. This argument is vitiated, however, by the fact that First Federal’s vice president, C. Lanett Davis, testified that Johnny initially contacted him about the loan and continued in communication with him. Furthermore, Johnny signed the loan application as borrower and Linda as co-borrower, and Johnny and Linda both signed the mortgage to First Federal. Under these facts we refrain from disturbing the trial court’s award of priority.

c. As to Roomakers’ Lien

The trial court decreed that Roomakers’ lien “is superior to and has priority over the . . . mortgage lien in favor of First Federal ... and all other liens and encumbrances affecting the real estate subject to this lien except the lien of S. M. Bird, Jr.” This order is not to be taken as giving Bird’s lien priority over Roomakers’, because Code 1975, § 35-11-228, declares that these liens shall stand on an equal footing. The priority over First Federal.is correct, because Roomakers’ lien attached when it supplied materials and labor on February 9, 1978; First Federal’s mortgage from Johnny and Linda was recorded on February 10, 1978.

8. Award of Contract-rate Interest and Attorney’s Fees

The court awarded Bird 18% interest and approximately $10,000.00 attorney’s fees, both based on Johnny’s credit agreement with Bird. First Federal and Linda challenge these awards on appeal, contending that the lien extends only to the cost of the goods plus the legal rate of interest. They rely in part on Security Transactions, Inc. v. Nelson Excavating and Paving Co., Inc., 55 Ala.App. 223, 314 So.2d 297 (1975), cert. denied, 294 Ala. 768, 314 So.2d 304 (1975). That case is readily distinguishable: the Court of Civil Appeals pointed out that there was no evidence of an agreement in the contract (which was oral) to pay attorney’s fees. Since Johnny did sign an agreement to pay Bird 18% interest and attorney’s fees for collection efforts, we affirm the trial court’s award of these elements as part of the amount due on the materials supplied pursuant to the contract.

CONCLUSION

We affirm the trial court on all issues except that, for the reasons noted above, we reverse as to (1) the denial of the lien on the acre surrounding the new house and the acre surrounding the concrete block house, (2) the award of survey costs against Johnny, and (3) the award of a lien against the land mortgaged to the Seiers.

AFFIRMED IN PART, REVERSED IN PART, AND REMANDED WITH DIRECTIONS.

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

APPLICATION FOR REHEARING DENIED; OPINION CORRECTED.

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

      . Johnny is not a party to the appeal. The outcome of his petition in bankruptcy awaits our decision on the title to the property in question.


author: BEATTY, Justice.

text:
    Roderick H. RAGLAND, et al. v. Ora Ragland WALKER, et al.
    80-394.
    Supreme Court of Alabama.
    Jan. 22, 1982.
    Rehearing Denied March 19, 1982.
    Henry Sanders of Chestnut, Sanders, Sanders & Turner, Selma, for appellants.
    William H. Johnston, Jr. of Johnston, Johnston & Moore, Huntsville, for appel-lees.
   BEATTY, Justice.

An earlier appeal of this matter resulted in a reversal and remand on the ground that the trial court’s order, that the property in question could not be equitably divided, was unsupported by evidence. Upon remand the trial court conducted an eviden-tiary hearing ore ten us following which an order was entered decreeing a public sale on the ground that the property could not be equitably divided. The defendants challenge that order, and also contend that the trial court erred in not considering their plan for equitable division whereby some of the defendants wished to join their respective interests as a moiety and thus have it set aside to them without a sale.

In our earlier opinion, Ragland v. Walker, Ala., 387 So.2d 184 (1980) we pointed out at 186 that

the evidence before the trial court was confined to the identity of the heirs, the amount of their interests, the fair market value of the property, and the amount of attorneys’ fees.

At the second hearing none of these matters was made an issue by the parties; the second hearing was treated by the trial court and the parties as a continuation of the first, and the trial court proceeded to take evidence on the question of whether or not the land could be equitably divided. One of the witnesses testifying for the plaintiffs was Henry V. Walker, husband of Ora Ragland Walker, a daughter of Sallie Ragland, the deceased. Ora Ragland Walker owned an undivided one-eighth interest in the smaller of the two tracts of land, comprising about 34.5 acres, and she and her husband together owned a one-fourth interest in the larger tract consisting of approximately 80 acres. Walker testified to his familiarity with these separate and noncontiguous tracts, one landlocked and the other with road frontage on its north side. He described the 80-acre tract as having a creek, which occasionally flooded, running through its eastern end, containing some high land and some low land, some open farm land and some wooded, some hilly, with a cemetery and gravel road on part of it. He acknowledged that some of the heirs, five in number, each owned a '/320th interest in each of the two tracts, and testified that in his opinion the lands could not be equitably divided down to 320ths. He also acknowledged that there were three dower interests to be recognized. Another witness, Jamie Ragland, the widow of Ed Ragland, testified that she lived on the 80-acre tract, worked on it, and was familiar with the land, the creek and the cemetery. She acknowledged that she wanted to have the land sold and obtain her share of the money. She “guessed” the land could be divided but didn’t know how it could be done.

The defendants’ witness, James Ragland, testified to his responsibility for the rental of the land and its upkeep. His opinion was that the land could be equally divided by grouping the heirs into those who wished to sell and those who did not, and dividing the lands in that manner. He conceded that he had not employed a surveyor and had no legal descriptions showing such a proposed division. In describing three separate plans for such a division, Ragland acknowledged that no separate values for creek and farm lands were established, but that the total value of the whole property was aggregated for the purpose of drawing lines, even though in some cases the crop land was worth more than the creek land. The equality in treatment for those having any interest in the lands would be based upon the appraised value of divisible segments of the property, not the amount which a sale of the entire property would bring. He elaborated with a further explanation of his alternative plans:

They purport to represent a division of the property as I discussed earlier. The two plans here include only the 80 acres because of the 33 acre plot being off to itself and Exhibit 2 shows if you propose we leave it to the ones that want to sell, if they want the 33 acres, they could come back into the 80 acres and take the rest of their property off the eastern end or the western end or if they go by exhibit number 1 here, they could take their property using either one of the three proposals, but correction on Exhibit 1 here, they could take their 41% of what we think is the amount of people that want to sell, their value came out to be about 41% of the value of the property, they could take that amount out of the 80 acre tract on the eastern bounds or the western boundary.

He then disclosed that his plan placed together all the people who wanted their money and required them to take land instead of money.

Our review of the record convinces us that the trial court had before it sufficient evidence from which it could have found that a fair and equitable partition in kind could not have been made. Meador v. Meador, 255 Ala. 688, 53 So.2d 546 (1951), and those findings and the decree based thereon are entitled to a presumption of correctness which may be overturned only if plainly or palpably erroneous. Elliott v. Burch, 293 Ala. 244, 301 So.2d 557 (1974). That evidence disclosed that this real property, as described before, consisted of several types with differing physical characteristics, representing different uses and values, and was owned by some twenty-six different heirs with ownership interests varying from one-eighth to as little as one-three hundred twentieth. The difficulty in dividing these particular tracts among the interests represented is apparent. Accord, Carden v. Vanderslice, Ala., 336 So.2d 1082 (1976).

The theory upon which the defendants based their moiety plan arose from the decision in Fendley v. Lambert, 286 Ala. 179, 238 So.2d 346 (1970), discussed in Hicks v. Hicks, Ala., 348 So.2d 1368 (1977). Under Fendley this Court found a “special equitable reason” for allowing partition of lands in kind rather than sale when certain tenants in common offered other tenants in common, all owning like interests, the option of selecting lands representing the others’ interests. It is apparent from reading Fendley that the record in that case disclosed a preference on the part of the proposed selectees for the lands which the offers would have allowed the former to select. This was an essential part of the “special equitable reason” which was found to exist in that case. The mere offer of one or more of several cotenants to have their interests treated as a moiety so as to justify partition in kind has not been considered as such a “special equitable reason,” however. In Hicks, supra, the other tenants in common offered the petitioner for sale her own selection of her life estate out of 1,441 acres of land in an attempt to prevent sale. A plurality of this Court refused to hold that such an offer was a “special equitable reason” which would prevent a sale and division. One of the concurring opinions in Hicks pointed out that allocation of the lands in proportionate shares in kind against the common interest holder’s petition for sale must not affect the saleable value of the residue. This principle was also part of the “special equitable reason” found in Fendley, supra.

This Court in Hicks, supra, was divided on the presence or absence of facts which would have established the “special equitable reason ” allowing partition rather than sale and division of the proceeds. It is clear that no such facts have been advanced in this case, however. The defendants have offered several plans from which the Court would decree that those who wish to sell must sell “out of the 80 acre tract or the 34 acre tract plus some at the eastern bound or western bound of the 80 acre tract.” The record is bare of any evidence that such a procedure would have left the saleable value of the residue unaffected, even if the various interests could have been equitably determined and allocated through the use of percentages divided into the aggregate appraised value of $206,000.00. To the contrary, under the evidence the trial court could have reasonably concluded that the saleable value of the residue would be adversely affected, given the nature of the land, the diversity of the interests, and the consequent difficulty and expense of allocating the specific interests. Under these circumstances we cannot find plain or palpable error in the decree below. That decree, therefore, must be, and is, affirmed.

AFFIRMED.

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


text:
    Michael S. CAMPBELL v. TRI-CITIES NEWSPAPERS, INC.
    80-553.
    Supreme Court of Alabama.
    Jan. 22, 1982.
    Rehearing Denied March 19, 1982.
    Rodney B. Slusher, Florence, for appellant.
    J. Michael Tanner of Almon, McAlister, Ashe, Baccus & Smith, Sheffield, for appel-lee.
   BEATTY, Justice.

Affirmed on the authority of Birmingham Post Co. v. Sturgeon, 227 Ala. 162, 149 So. 74 (1933). See, also, Verrett v. Houma Newspapers, Inc., 305 So.2d 547 (La.App.1974).

AFFIRMED.

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