author: FAULKNER, Justice. TORBERT, Chief Justice

text:
    Bobby WILLIAMS v. CITY OF TUSCUMBIA.
    81-610.
    Supreme Court of Alabama.
    Feb. 11, 1983.
    Dissenting Opinion Feb. 22, 1983.

      Murray W. Beasley, Tuscumbia, for appellant.
    Mary Anne Westbrook and Robert L. Gonce of Gonce, Young, Howard & West-brook, Florence, for appellee.
   FAULKNER, Justice.

This is an appeal from a summary judgment granted by the trial court in favor of Tuscumbia in a negligence suit for failure to immediately respond to a fire in a residential dwelling located in the City of Tus-cumbia.

Williams’s complaint against Tuscumbia alleges:

“On or about November 9, 1980, while the plaintiffs were away out of the State of Alabama, the plaintiff’s house caught on fire. The Tuscumbia Fire Department was immediately notified, but they negligently failed to respond to the call immediately, stating that the driver of the truck had gone home sick and that another driver was not replaced by him, causing the home of the plaintiff at 1214 South Indian Street, Tuscumbia, Alabama, to be completely destroyed along with all the furnishings.”

Tuscumbia filed a motion to dismiss on the ground that the complaint failed to state a claim upon which relief can be granted. This same ground was, subsequently, stated in its motion for summary judgment. The trial judge granted Tus-cumbia’s motion.

Even though the motion was styled a motion for summary judgment, it was in the nature of a motion for judgment on the pleadings. Rule 12(b)(6), ARCP. Tuscum-bia did not present any evidence to support its allegation that there was no genuine issue of a material fact, thereby entitling it to judgment as a matter of law. This Court laid down the rule in Ray v. Midfield Park, Inc., 293 Ala. 609, 308 So.2d 686 (1975), stating:

“When a movant makes a motion for summary judgment, the burden is upon him to show that there is no genuine issue of a material fact left in the case.”

Williams filed suit against Tuscumbia on May 5, 1981. The City was served on May 7. Therefore, presentment of the claim pursuant to § 11-47-23, Code 1975, was negated by filing suit within the six-month period. See Hamilton v. City of Anniston, 268 Ala. 559, 109 So.2d 728 (1959).

The issue for decision is whether the City of Tuscumbia is liable for its firemen not responding immediately to a call from a citizen telling them that his house is on fire.

Tuscumbia contends that there is no legislative duty imposed upon a municipality to maintain a fire department. That is true. Section 11-43-140, Code 1975, provides that:

“Cities and towns may maintain and operate a volunteer or paid fire department and may do all things necessary to secure efficient service....”

The flip side proposes this question. Once a city or town organizes and provides for a fire department, what is the duty owed to the citizens of the city or town? Tuscumbia contends that a duty imposed upon a municipal fire department is owed to the general public — not to an individual. Does this mean that the whole town has to be on fire before the fire department responds to a call? It may be true that a certain fire in the city would have priority over another fire. For example, if a multistory building was on fire and in it a number of people were stranded and about to suffer imminent death from the fire, it could hardly be questioned that the fire inside the multi-story building would have priority over a fire in a dwelling where only property damage would be suffered.

We opine that in this case a duty was imposed on the Tuscumbia Fire Department to respond immediately to the call that the Williams’s house was on fire. There was a special duty created to act in a skillful manner to respond to the call. We recognize the fact that firemen may act with extreme skillfulness and yet be unable to get to a fire to prevent a building from burning to the ground. But, here the complaint alleges that the reason the fire department did not immediately respond was that the driver of the truck had gone home sick and had not been replaced. We opine that the fire department acted unskillfully by not having a back-up driver who could have immediately taken the place of the sick driver, § 11-47-190, Code 1975. In other words, the fire department lacked proficiency. Cf. City of Birmingham v. Thompson, 404 So.2d 589 (Ala.1981).

Finally, Tuscumbia contends that the abrogation of immunity by Jackson v. City of Florence, 294 Ala. 592, 320 So.2d 68 (1975), did not relieve the courts from further examination of the issue of liability. No one can argue with that contention. Before Jackson the liability question was never presented for decision (except in a proprietary action), because the municipality was shielded by the doctrine of immunity. The municipality’s immunity having been abrogated by § 11-47-190 as interpreted by Jackson, the liability question is precisely the question in this case.

We hold that the complaint stated a cause of action. The cause is returned to the trial court to determine whether the failure of the fire department to immediately respond to the call that there was a fire at the Williams residence was the proximate cause of the house being destroyed.

REVERSED AND REMANDED.

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

TORBERT, C.J., and MADDOX, J., dissent.

TORBERT, Chief Justice

(dissenting).

I write to express my view that the same public policy considerations that the Court found applicable in Rich v. City of Mobile, 410 So.2d 385 (Ala.1982), are even more compelling in the present ease. It is my opinion that this is indeed one of those

“narrow areas of governmental activities essential to the well-being of the governed, where the imposition of liability can be reasonably calculated to materially thwart the City’s legitimate efforts to provide such public services.”

410 So.2d at 387. The fact that a municipality is under no obligation to provide a fire department in order to protect the property of its residents tends to increase the probability that the imposition of tort liability would diminish a City’s motivation or ability to support this essential service.

MADDOX, J., concurs.


source: Caselaw Access Project

author: MADDOX, Justice.

license: Public Domain

text:
    Dories STARR, as Administratrix of the Estate of Myrtis Hinote, deceased v. DOCTORS HOSPITAL.
    81-869.
    Supreme Court of Alabama.
    Feb. 11, 1983.

      Taylor D. Wilkins, Jr. of Wilkins, Bankes-ter & Biles, Bay Minette, for appellant.
    Jerry A. McDowell of Hand, Arendall, Bedsole, Greaves & Johnston, Mobile, for appellee.
   MADDOX, Justice.

The issue on appeal is whether the trial court properly dismissed an action because of a party’s failure to file a motion for substitution, within six months after a suggestion of death upon the record, as provided for by ARCP 25(a). We affirm.

The administrator of the Estate of Myrtis Hinote, Herbert W. Hinote, filed the original action from which this appeal arises, against the appellee, Doctors Hospital of Mobile, and other defendants, on December 6, 1979. The parties filed pleadings and engaged in discovery through September, 1981. On September 6, 1981, Herbert Hi-note died.

The record indicates that counsel for Doctors Hospital filed a suggestion of death on September 14, 1981, with the Circuit Court of Mobile County. On that same date, the record further indicates, Doctors Hospital filed a notice of deposition, noticing the depositions of Dories Starr and Gregory Starr, with the Mobile Circuit Court. The parties disagree on this point: Whether the lawyer for the appellant received an envelope allegedly containing the suggestion of death from the attorney representing Doctors Hospital. The envelope also allegedly contained a letter dated September 14,1981, and a copy of the notice of deposition.

On March 23, 1982, six months after the filing of the suggestion of death, Doctors Hospital filed a motion to dismiss the complaint, and stated as grounds for the dismissal the provisions of ARCP 25(a).

“Rule 25

“SUBSTITUTION OF PARTIES”

“(a) Death.

“(1) If a party dies and the claim is not thereby extinguished, the court may order substitution of the proper parties. The motion for substitution may be made by any party or by the successors or representatives of the deceased party and, together with the notice of hearing, shall be served on the parties as provided in Rule 5 and upon persons not parties in the manner provided in Rule 4 for the service of a summons, and may be served in any county. Unless the motion for substitution is made not later than six months after the death is suggested upon the record by service of a statement of the fact of the death as provided herein for the service of the motion, the action shall be dismissed as to the deceased party.”

On March 29,1982, the plaintiff filed two motions: a motion in opposition to the motion to dismiss and a motion to substitute Dories Starr, the appellant, administratrix of the Estate of Herbert Hinote, as plaintiff in the lawsuit.

The trial court held a hearing on the motions. At the hearing the parties introduced evidence and the attorneys for both sides testified. Another attorney, Warren Lightfoot, also testified. He represented Puritan Bennett, another defendant in the case. Lightfoot testified that he had received copies of the September 14, 1981 letter, the suggestion of death, and the notice of deposition. The copies were introduced as evidence at the hearing.

Lightfoot further testified that he received the documents on September 16, 1981, and that the envelope was postmarked September 14, 1981. Jerry A. McDowell, the attorney representing Doctors Hospital, testified that he sent the letter and the other two documents to the plaintiffs attorney. The record indicates that the letter was addressed: Taylor D. Wilkins, Jr., Esq., Messrs. Wilkins, Bankester & Biles, P.A., Post Office Box 1140, Bay Minette, Alabama 36507.

Wilkins testified that he had never seen the September 14th letter, the suggestion of death, or the notice of deposition. His secretary and two lawyers with his firm also testified that they had never seen the contents of the envelope allegedly mailed on September 14, 1981.

The evidence was quite obviously conflicting. After considering the evidence, the trial judge denied the appellant’s motion to revive and granted Doctors Hospital’s motion to dismiss the complaint. That judgment is the subject of this appeal.

The appellant urges this Court, in accordance with ARCP 6(b), to enlarge the period for filing a motion for substitution pursuant to ARCP 25(a). Dories Starr argues that she failed to make a motion for substitution within the specified six-month period because her attorney, Wilkins, never received a suggestion of death. She asserts that her inaction constitutes “excusable neglect,” ARCP 6(b)(2).

Starr does not claim that the appellee never mailed the suggestion of death but, instead, claims that Wilkins never received the suggestion at his office.

This Court has established the standard of review in cases regarding questions concerning delivery of letters mailed in the postal system of the United States.

“The presumption of the law is that a letter, properly addressed with sufficient postage, and unreturned to the sender whose address is shown on the envelope, was received by addressee. Harrell v. Alabama Farm Bureau Mutual Casualty-Insurance Co. [287 Ala. 259, 251 So.2d 220 (1971)], supra. Tillery’s statement that he did not receive the notice, without more, does not overcome the presumption that he received it. Moreover, this case was tried ore tenus and we cannot say that the trial court was palpably wrong in reaching its findings of fact. It is, of course, our well settled rule that where the trial court heard conflicting evidence ore tenus, the trial court’s decision is presumed to be correct on appeal and will not be disturbed unless plainly wrong or unjust. State v. City Wholesale Grocery Co., 283 Ala. 426, 218 So.2d 140 (1969).”

Currie v. Great Central Insurance Co., 374 So.2d 1330, 1332 (Ala.1979). The trial court heard the case ore tenus. The evidence was conflicting. The appellant has the burden to show that the court’s findings were “plainly wrong or unjust.” We find the appellant has not sustained that burden.

The issue presented in this appeal is distinguishable from the recent decision of Piel v. Dillard, 414 So.2d 87, 90 (Ala.Civ.App.1982). In Piel the court faced the question of whether the documents were mailed to the opposing counsel’s “last known address.”

The trial court found that the motion for substitution was not made within six months after the suggestion of plaintiff’s death; therefore, the trial court ruled correctly in denying the motion of plaintiff to revise and in dismissing the cause of action. That judgment is due to be affirmed.

AFFIRMED.

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

JONES, ALMON and SHORES, JJ., dissent.


author: HOLMES, Judge.

text:
    Mattie BENNETT v. W.C. COLE and W.C. Cole d/b/a Cole’s Big Star.
    Civ. 2679.
    Court of Civil Appeals of Alabama.
    July 15, 1981.
    Rehearing Denied Aug. 12, 1981.
    Robert E. Cooper and Daniel G. McDowell of Fine, McDowell & Cooper, Russell-ville, for appellant.
    Robert L. Gonce, Florence, for appellee.
   HOLMES, Judge.

This is a negligence case.

The plaintiff, Mattie Bennett, fell outside of Cole’s Big Star grocery store. She sued the defendants, Cole’s Big Star, and its owner, W.C. Cole, seeking damages for personal injuries she received as a result of the fall.

The case was tried before a jury, which returned a verdict for Mrs. Bennett, and awarded her damages in the amount of $10,000. The defendants filed a motion for judgment notwithstanding the verdict, which was granted. Mrs. Bennett then filed this appeal.

Viewing the evidence with the attendant presumptions, the following facts are pertinently revealed. Some four years before Mrs. Bennett’s accident, Mr. Cole had some car stops placed in the parking lot outside Cole’s Big Star grocery store.

Two of the stops are located near the store’s exit door. They are parallel to one another and perpendicular to the sidewalk in front of the store, thus forming a walkway used by exiting customers. The car stops in question are each six feet long and are five feet, four inches apart. Their purpose is to prevent cars from blocking the store’s exit way.

Mrs. Bennett testified at trial that she had been trading at Cole’s Big Star for a long time. She said that she had been to the store several times both before and after the concrete stops had been placed in the parking lot.

Mrs. Bennett testified that the stops were in plain view and that she knew they were there. She further testified that the accident occurred in the daytime and that there was nothing to hinder her from seeing the stops.

When Mrs. Bennett left the store on the day of the accident, she was walking between the stops. She looked down and saw the stop to her left. She continued walking and tripped on the inside corner of the stop to her right.

As a result of her fall, Mrs. Bennett sustained a broken arm and was required to wear a cast for six weeks. The injury resulted in a 10% permanent loss of motion in her wrist.

As stated above, the jury returned a verdict for Mrs. Bennett, after which the trial court granted the defendants’ motion for judgment notwithstanding the verdict. Mrs. Bennett appeals and we affirm.

The dispositive issue on appeal is whether the trial court erred in granting the defendants’ motion for judgment notwithstanding the verdict.

The rule in Alabama has been that a motion for judgment notwithstanding the verdict should be denied if there is any conflict in the evidence for the jury to resolve and that the existence of such conflict is to be determined by the scintilla rule. Hanson v. Couch, Ala., 360 So.2d 942 (1978). The Alabama Supreme Court apparently reaffirmed that rule in the recent case of Groom v. Reynolds, Ala., 396 So.2d 690 (1981).

However, shortly before releasing the Groom decision, the court released its opinion in the case of Harville v. Goza, Ala., 393 So.2d 988 (1981). In Harville, the court opined that when a motion for judgment notwithstanding the verdict is granted, the standard of review is not whether there is a scintilla of evidence to support the verdict; rather, the standard is whether there is sufficient evidence to support the verdict.

Although there appears to be some inconsistency between the rule as set out in Groom and as set out in Harville, this seeming inconsistency does not prevent resolution of the instant appeal. As the discussion below will show, we believe that the trial judge acted in such a way as to comply with either standard.

However, before applying either standard, we must consider the applicable substantive law of negligence.

The parties in the case on appeal concede that Mrs. Bennett was an invitee. Although a landowner generally does owe certain duties to an invitee, he is not an insurer of the invitee’s safety. Terrell v. Warehouse Groceries, Ala., 364 So.2d 675 (1978). The invitee assumes all normal or ordinary risks attendant upon the use of the premises. Quillen v. Quillen, Ala., 388 So.2d 985 (1980); Lamson & Sessions Bolt Co. v. McCarty, 234 Ala. 60, 173 So. 388 (1937). And the general rule is that an invitor is not liable for injuries to the invitee resulting from a danger which was known to the invitee or which should have been observed by the invitee in the exercise of reasonable care. Quillen, supra; Lamson & Sessions Bolt Co., supra.

Mrs. Bennett, through able counsel, argues on appeal that the trial court erred in granting Mr. Cole’s motion for judgment notwithstanding the verdict because the issue regarding her knowledge of the danger was one for the jury. We disagree.

We now turn to a consideration of whether the trial court erred in granting the defendant’s motion for judgment notwithstanding the verdict in this case. As noted above, we believe that the trial court acted in such a way as to comply with the standard of review both as set out in Groom and as set out in Harville.

Under the standard as set out in Groom, the question is whether, as determined by the scintilla rule, there is a conflict in the evidence for the jury to resolve regarding Mrs. Bennett’s knowledge of the danger.

As stated above, the evidence shows that Mrs. Bennett had been to Cole’s Big Star both before and after the car stops had been placed in the parking lot. She testified that the car stops or “logs,” as she called them, were clearly visible. In fact, on the day of her accident, Mrs. Bennett saw the car stops and knew they were there.

Mrs. Bennett’s testimony indicates that she was also aware of the danger presented by the “logs” or car stops. Mrs. Bennett stated that when she left the store she was walking behind a grocery boy. She testified that, after leaving the store, “I looked down and I seen the log, the left log, right at the edge and I started toward the grocery boy.”

Mrs. Bennett was later asked whether she was looking at the car stop when she fell. She replied, “I was looking at the log, because I seen that one on the left and I thought I was far enough over, I would hit it.”

While the testimony quoted above may not be a paragon of clarity, it does indicate that Mrs. Bennett was aware of the danger. In fact, she apparently was attempting, although unsuccessfully, to avoid that danger.

We also note that there is nothing in the record to indicate that Mrs. Bennett was not aware of the danger posed by the car stops.

With the above in mind, we find that there is no conflict in the evidence regarding Mrs. Bennett’s knowledge of the danger presented by the car stops. As a consequence, the trial judge did not err in granting the defendants’ motion for judgment notwithstanding the verdict under the rule as set out in Groom.

Under the rule as set out in Harville, supra, the issue is whether the evidence is sufficient to support the jury verdict.

As stated above, the evidence indicates that Mrs. Bennett was aware of the danger. Since a landowner is not liable for an invitee’s injury resulting from a danger known by the invitee, Quillen, supra, the evidence clearly is insufficient to support the jury verdict in this case. We therefore find that the trial judge did not err in granting the defendants’ motion under the rule as set out in Harville.

We note that Mrs. Bennett also argues on appeal that Mr. Cole owed her a duty to warn her of the danger presented by the car stops. It is true that a landowner or occupant has a duty to warn his invitees about dangers of which the owner knows or ought to know and of which the invitee is ignorant. Terrell v. Warehouse Groceries, supra. However, as stated above, Mrs. Bennett had knowledge of the danger in the ease on appeal. It follows that, in the instant case, Mr. Cole had no duty to warn Mrs. Bennett.

We would further note that, as stated above, the landowner is not an insurer of the invitee’s safety, Terrell, supra, and the invitee assumes all normal or ordinary risks attendant upon the use of the premises. Quillen, supra; Lamson, supra. In the instant case, the trial court could have reasonably concluded that the danger presented by the ear stops was a normal or ordinary risk attendant upon the use of the store premises. Stated differently, there is no evidence indicating that the car stops were materially different from those used in other parking lots; that their use was in any way unusual; or that the danger they presented was in any way different than that presented by standard sidewalk curbing.

The “logs” were placed in front of the entrance and exit ways of the store to prevent customers from parking directly in front of the doors and blocking others’ walkway. The evidence below shows that they were in plain view and were clearly visible. They are about five feet, four inches apart, which provides plenty of room for customers to walk between them.

With the above in mind, we believe that the case on appeal comes within the rules as stated in Quillen, supra, and Lamson, supra, that an invitee assumes all normal or ordinary risks attendant upon the use of the premises and that an invitor is not liable for injuries to an invitee resulting from a danger which was known to the invitee or which should have been observed by the invitee in the exercise of reasonable care.

The action of the trial judge is due to be affirmed.

AFFIRMED.

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


author: ADAMS, Justice.

text:
    Ex parte Mattie BENNETT. (re Mattie BENNETT v. W.C. COLE and W.C. Cole d/b/a Cole’s Big Star).
    80-851.
    Supreme Court of Alabama.
    Sept. 17, 1982.
    Rehearing Denied Feb. 11, 1983.
    Robert E. Cooper of Fine, McDowell & Cooper, Russellville, for petitioner.
    Robert L. Gonce of Gonce & Howard, Florence, for respondent.
   ADAMS, Justice.

We granted the petition for certiorari in this case on the following issues:

1. Is there a conflict in this court’s decision in* Hanson v. Couch, 360 So.2d 942 (Ala.1978), and Groom v. Reynolds, 396 So.2d 690 (Ala.1981), as compared with the decision in Harville v. Goza, 393 So.2d 988 (Ala.1981)? If so, what is the proper standard to be used in deciding a motion for judgment notwithstanding the verdict?

2. Did the trial court and the Court of Civil Appeals err in the allowance of a judgment notwithstanding the verdict in this case?

We find that there is a conflict involved in the decisions of the above-mentioned cases, and we set out the correct standard for deciding a motion for JNOV in the following opinion.

As to the second issue, we find no error in the allowance by the trial court and the Court of Civil Appeals of a JNOV in this case, and affirm.

We discuss these two issues separately for the sake of clarity.

I

Rule 50(e), Alabama Rules of Civil Procedure, states: “The court may direct a verdict, ... or enter judgment notwithstanding the verdict under this rule ... in accordance with the scintilla evidence rule.” Rule 50(e), ARCP. This rule, directing that the scintilla evidence rule shall be the standard in deciding whether to grant either a motion for a directed verdict or a motion for judgment notwithstanding the verdict, has been employed consistently in a number of cases in Alabama since the Rules of Civil Procedure were adopted. In Great Atlantic and Pacific Tea Company, Inc. v. Sealy, 374 So.2d 877 (Ala.1979), this court made it clear that both motions were to be judged by the same standard, stating: “[A] post-trial motion for J.N.O.V. is really just a renewal of a party’s motion for directed verdict, and the J.N.O.V. motion cannot be granted unless the motion for directed verdict should have been granted.” 374 So.2d at 881. See also Wilson v. Draper, 406 So.2d 429 (Ala.Civ.App.1981). In Inglish v. United Services General Life Co., 394 So.2d 960 (Ala.Civ.App.1980), cert. denied Ex parte Inglish, 394 So.2d 967 (Ala.1981), the court said: “[A] motion for a directed verdict or a judgment notwithstanding the verdict may be properly denied where at least a scintilla of evidence presented in a case is in conflict with other evidence in the case with regard to at least one material issue .... ” 394 So.2d at 964. See also White v. Packer, 345 So.2d 312 (Ala.Civ.App.1977); McLarty v. Wright, 56 Ala.App. 346, 321 So.2d 687 (Ala.Civ.App.1975); Gordon v. Old Republic Life Insurance Co., 354 So.2d 13 (Ala.Civ.App.1977), cert. denied Ex parte Gordon, 354 So.2d 15 (Ala.1978).

Hanson v. Couch, 360 So.2d 942 (Ala.1978), is in accord with this line of cases. In Hanson, it is stated:

When reviewing the propriety of a trial court’s order granting a motion for judgment notwithstanding the verdict, the evidence must be viewed in the light most favorable to the party who secured the jury verdict. Spurlin v. General Motors Corp., 528 F.2d 612 (5th Cir.1976); White v. Packer, 345 So.2d 312 (Ala.Civ.App.1977). See Justice Maddox’s dissent in Bethune v. City of Mountain Brook, 336 So.2d 148, at p. 151 (Ala.1976). Such motion should be denied if there is any conflict in the evidence for the jury to resolve and the existence of such conflict is to be determined by the scintilla rule. White v. Packer, supra; McLarty v. Wright, 56 Ala.App. 346, 321 So.2d 687 (1975).

Hanson, 360 So.2d at 944.

Our decision in Groom v. Reynolds, 396 So.2d 690 (Ala.1981), was likewise in accord with the previously cited cases on this point. In Groom, “[fjinding that conflicting evidence was presented on the determinative issue of which boundary was intended by the parties,” we reversed the lower court’s order granting a motion for judgment notwithstanding the verdict, and cited the above-quoted passage from Hanson. (Groom, 396 So.2d at 691).

In spite of the general reliance on Rule 50(e), ARCP, there has been a certain amount of confusion over the “actual” standard that the court was using for granting a JNOV. This confusion seems to have been brought on by a discussion in some cases of the “sufficiency of the evidence to support a jury verdict.” (See, e.g., Great Atlantic and Pacific Tea Company, Inc. v. Sealy, 374 So.2d 877 [Ala.1979].) Some have concluded from this, that, in order to defeat a motion for JNOY, there must be more than a scintilla of evidence. However, in studying the cases on this point, including Great Atlantic and Pacific Tea Company, we must conclude that it is the law in Alabama that the same standard applies to both a motion for a directed verdict and a motion for JNOV, and that a scintilla of evidence is sufficient to defeat either motion. The language in Harville v. Goza, 393 So.2d 988 (Ala.1981), stating that “we have two standards of review, one for motions for directed verdict, the other for motions for JNOY,” (Harville, 393 So.2d at 989), does not correctly state the law in Alabama and should not be followed.

II

The facts of the present case are as follows. Plaintiff Mattie Bennett (Mrs. Bennett) brought.suit against defendants W.C. Cole and W.C. Cole d/b/a Cole’s Big Star (Cole) for injuries she received when she tripped over one of two concrete “car stops” at the exit of Cole’s grocery store. The stops are parallel to one another and perpendicular to the sidewalk. They form the boundaries of a walkway for exiting customers and serve to prevent cars from blocking the store’s exit way. The stops are six feet long, and they are placed five feet, four inches apart. The stops had been there for four years prior to the accident, and Mrs. Bennett had shopped there several times, both before and after the stops had been installed. Mrs. Bennett testified that she knew the stops were there, that the accident occurred in daylight without anything obscuring her view of the stops, and that she saw the stops as she was leaving the store. Mrs. Bennett broke her arm when she fell, and incurred a ten percent permanent loss of motion in her wrist. The jury returned a verdict for her and awarded damages of $10,000.00. Cole filed a motion for a judgment notwithstanding the ver-diet, or, in the alternative, a motion for new trial. The trial court granted the judgment notwithstanding the verdict, and the Court of Civil Appeals affirmed the trial court’s decision. Mrs. Bennett then filed her petition for certiorari.

The facts set out above are essentially those recited in the opinion of the Court of Civil Appeals. Counsel for Mrs. Bennett has attempted to put before us certain other facts not contained in that opinion; namely; (1) that Cole had painted the car stops at the entrance to his store bright yellow, while leaving those at the exit their natural concrete color, and (2) that Cole was aware that another customer had tripped over an exit stop a week or two before Mrs. Bennett’s accident. However, in reviewing a court of appeals, we are limited to the facts stated in that court’s opinion unless the petitioner utilizes Rule 39(k), Alabama Rules of Appellate Procedure. Stone v. Echols, 351 So.2d 902 (Ala.1977); Union Camp Corporation v. Blackmon, 289 Ala. 635, 270 So.2d 108 (1972). No attempt was made by petitioner’s counsel in this case to invoke Rule 39(k), ARAP. Therefore, we have considered only those facts included in the opinion of the Court of Civil Appeals.

Having determined in our consideration of the first issue that the scintilla rule is the proper standard in deciding whether to grant a motion notwithstanding the verdict, we turn to its application in the case before us.

To apply the test outlined in Hanson, supra, we must view the evidence in the light most favorable to the party who secured the jury verdict. “Such motion should be denied if there is any conflict in the evidence for the jury to resolve....” Hanson, 360 So.2d at 944.

Viewing the evidence in the light most favorable to Mrs. Bennett, we fail to find a scintilla of conflict or factual dispute in the evidence regarding whether the car stops over which she tripped were an open and obvious danger of which she was or should have been aware. Mrs. Bennett’s own testimony as described by the court of Civil Appeals indicates that she was aware of the stops prior to the accident, and that she was attempting to avoid them when she tripped over one while looking at the other. Counsel for Mrs. Bennett argues that the question of open and obvious danger is always one for the jury, but that is not the case, absent conflicting evidence with regard to a material issue. See Inglish v. United Services General Life Co., supra; Progressive Casualty Insurance Co. v. Blythe, 350 So.2d 1062 (Ala.Civ.App.1977). In this case, where there were no material facts in dispute, the question before the trial court became one of law, and the granting of a motion for judgment notwithstanding the verdict by that court is due to be affirmed.

AFFIRMED.

TORBERT, C.J., and MADDOX, JONES, ALMON and BEATTY, JJ., concur.

EMBRY, J., concurs in the result.

FAULKNER, J., dissents.

SHORES, J., not sitting.

      . Casey v. Jones, 410 So.2d 5 (Ala.1981), a case decided by this court after Harville, is in accord with this opinion, and should be followed.

      . Again we emphasize that this is the same test applicable to a motion for a directed verdict; i.e., whether, under the scintilla rule, the evidence when viewed in the light most favorable to the non-moving party, will support the non-moving party’s case or defense.


author: BRADLEY, Judge. HOLMES, Judge BRADLEY, Judge.

text:
    Ex parte CITY OF BESSEMER. (Re Norman L. RHEA v. CITY OF BESSEMER).
    Civ. 3168.
    Court of Civil Appeals of Alabama.
    April 28, 1982.
    Rehearing Denied June 2, 1982.
    J.H. McEniry, III, Bessemer, for petitioner.

      Peter W. Shields, Tuscaloosa, and David P. Whiteside, Jr. and Patricia Clotfelter, Birmingham, for respondent.
   BRADLEY, Judge.

This is a personnel case from Jefferson County which arose from a Bessemer city employee’s attempt to withdraw his resignation. The case is before this court by writ of certiorari.

Mr. Norman L. Rhea, respondent, was employed by the City of Bessemer as Superintendent of the Public Improvements Department. On the morning of February 4, 1980, Rhea contacted William Hyche, Commissioner of Public Improvements and Rhea’s supervisor. Rhea indicated to Hyche that he wished to resign his position and take his retirement, and asked Hyche if he would accept his resignation. After some discussion Hyche said he would accept Rhea’s resignation. Hyche then requested Rhea to confirm this conversation in writing. The next day, February 5, 1980, Hyche received a letter from Rhea confirming the conversation of the previous day regarding Rhea’s retirement, which was to be effective April 1, 1980.

In the weeks following his decision to retire, Rhea reviewed his financial situation and determined that it would not be financially feasible for him to retire at this time. Consequently, on March 4,1980, Rhea delivered a letter to Hyche stating his desire to withdraw his resignation. According to Rhea, the next day he received a letter from Hyche which stated essentially that Rhea had previously submitted his resignation, it had been accepted, and Rhea could not now withdraw it.

Rhea appealed the city’s failure to accept his withdrawal to the Jefferson County Personnel Board. On May 22, 1980 a hearing was held before the Board. After hearing the evidence the Board determined that Rhea had voluntarily resigned his position and that his resignation had been accepted on February 4, 1980 and, furthermore, that the resignation and acceptance were confirmed in writing in the February 5 letter. Therefore, Rhea ceased to be a permanent employee of the city on April 1, 1980 and the city was justified in replacing him after that date.

Pursuant to section 22 of the Personnel Board’s Enabling Act , Rhea appealed the decision of the Board to the circuit court. A three-judge panel reviewed the record of the proceedings before the Board and concluded that Rhea’s resignation had not been accepted prior to its withdrawal. Based upon the foregoing, the three-judge panel reversed the Board and ordered that Rhea be reinstated.

The holding of the three-judge panel is before this court by writ of certiorari on the petition of the City of Bessemer and the Jefferson County Personnel Board.

In Alabama a prospective resignation may be withdrawn at any time prior to its acceptance or its effective date. State ex rel. Almon v. Fowler, 160 Ala. 186, 48 So. 985 (1908); City of Dothan v. Lucas, 47 Ala.App. 336, 254 So.2d 341 (1971). Rhea’s resignation was not to be effective until April 1, 1980, so it was prospective in nature. City of Dothan v. Lucas, supra. The resignation was clearly withdrawn prior to the date it was to become effective. Thus, the issue before this court and the issue that was before the three-judge panel is whether Rhea had withdrawn his resignation prior to its acceptance.

As stated earlier, the three-judge panel concluded that Rhea’s resignation had not been properly accepted. In summary, the panel apparently reasoned as follows: rule 7.32 of the Jefferson County Personnel Board’s Rules and Regulations requires a permanent employee to submit to the appointing authority a notice in writing of his intention to resign or retire if the employee wishes to resign or retire in good standing. Rhea’s statements of February 4 concerning his decision to resign and retire obviously did not comply with the requirement in rule 7.32 that the notice be in writing. Rhea’s decision to resign and retire was not binding upon him until he complied with rule 7.32 in the February 5 letter. Since there was no evidence of an acceptance of Rhea’s resignation after he complied with rule 7.32 and prior to March 4, the date of his letter of withdrawal, the three-judge panel concluded that Rhea was legally entitled to withdraw his resignation.

After reviewing the record, however, we find that the three-judge panel was incorrect in its conclusion. The Enabling Act limits the three-judge panel’s scope of review to a review of questions of law and a determination of whether the decision of the Board is supported by substantial and legal evidence. See Templin v. City Commission of Birmingham, 279 Ala. 473, 187 So.2d 230 (1966); Ex parte Smith, 394 So.2d 45 (Ala.Civ.App.1981). The Board is to determine the weight and credibility of the evidence. Templin, supra. Based upon the record in this case we must conclude that the decision of the Board is supported by substantial and legal evidence and that it is not contrary to the applicable law.

The evidence regarding the conversation between Rhea and Hyche on February 4 is undisputed. The gist of that conversation, according to the testimony of both Rhea and Hyche, was that Rhea said he wanted to resign and retire and Hyche said he would accept Rhea’s resignation. At the suggestion of Hyche, Rhea wrote him a letter specifically confirming the oral resignation and acceptance of the previous day. The foregoing is sufficient, in the opinion of this court, to support the Board’s conclusion that Rhea resigned on February 4 and his resignation was accepted by Hyche on February 4.

The three-judge panel’s decision was based primarily upon its determination that Rhea’s resignation had to be in writing to be effective. Clearly rule 7.32 does require an employee’s resignation to be in writing— if he wishes to resign “in good standing.” Resignation in good standing would allow Rhea, if he wishes, to be considered for reemployment at a later date. See McPherson v. Mims, 385 So.2d 44 (Ala.1980); City of Dothan, supra. In light of the evidence in this case, it is not inconceivable to conclude that Rhea was not concerned with resigning in good standing. A person who is qualified to retire and has made the decision to retire is more than likely not concerned with the possibility of re-employment at his previous position. It is apparent that, at least on February 4, Rhea was not concerned with re-employment with the city, for Hyche testified that Rhea stated that he “just didn’t want to work for the city.” We also note that whether a person resigns in good standing apparently has no effect upon his ability to draw retirement benefits.

Just as there is no absolute requirement that a resignation be in writing, there is also no requirement that the acceptance be in writing. Axiomatically the acceptance must come after the offer of resignation. This procedure occurred orally on February 4 and that is all that is required under the law as it now stands.

In closing, we emphasize that we are not endorsing the procedure that was followed in this case. Clearly the better practice would be to submit both the resignation and the acceptance of same in written form. However, we are bound by the law in its present form and the law presently does not specifically require in all cases written resignations or acceptances.

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

REVERSED AND REMANDED WITH DIRECTIONS.

WRIGHT, P.J., concurs.

HOLMES, J., dissents.

HOLMES, Judge

(dissenting).

I respectfully dissent.

At the outset I note the majority seems to place some emphasis on the fact that “it is not inconceivable to conclude that Rhea was not concerned with resigning in good standing.” My review of the record, the briefs, and statements during oral argument lead me to the conclusion that all parties knew and understood that Rhea was attempting to resign or retire in good standing. Certainly, there is nothing to indicate the contrary.

In any event, under the facts of this case, we are not required to make that determination for it is undisputed that Rhea submitted his resignation in writing in the February 5 letter as requested by Hyche. Thus, regardless of his motivation for doing so, Rhea complied with the request of Hyche to put his resignation in writing and complied with rule 7.32 and in fact resigned on February 5.

After the February 5 letter of resignation, which to me under the facts of this case is the operative resignation, there was no evidence of an effective acceptance of the resignation prior to its withdrawal. Since the operative resignation was withdrawn prior to its acceptance or its effective date, as a matter of law, Rhea was entitled to be reinstated and the three-judge panel correctly so held.

Under the reasoning of the majority the following question would appear to be appropriate: What would have been Rhea’s status if after the conversation of February 4 Rhea had done nothing, i.e., had not written the suggested letter?

Put another way, I find the three-judge panel’s apparent reasoning as set out in the majority opinion to be correct.

Needless to say, I would affirm the action of the three-judge panel.

On Rehearing

BRADLEY, Judge.

On rehearing Rhea argues that the case of McPherson v. Mims, 385 So.2d 44 (Ala.1980) requires that the circuit court judgment be affirmed. In McPherson a police officer filed a written letter of resignation to be effective prospectively. In accepting the resignation the city stated that it would be effective prospectively.

The supreme court stated that the case was governed by City of Dothan v. Lucas, 47 Ala.App. 336, 254 So.2d 341 (1971) and State ex rel. Almon v. Fowler, 160 Ala. 186, 48 So. 985 (1909). The court found that the police officer could withdraw his resignation even after it had been accepted by the city. This was based on the fact that the city recognized that the resignation would not be effective until a prospective date. The court found that the resignation was not accepted unconditionally.

Clearly under Lucas, supra, and Almon, supra, as relied on in McPherson, supra, a prospective resignation cannot be withdrawn once it is accepted unconditionally. In the present case it is undisputed that Rhea’s resignation was to be effective prospectively. However, it was accepted unconditionally at the time it was tendered. We conclude, therefore, that Rhea’s resignation could not be withdrawn.

Opinion extended.

APPLICATION FOR REHEARING OVERRULED.

WRIGHT, P.J., concurs.

HOLMES, J., dissents.

      . Act No. 248, Acts of Alabama 1945, as amended by Act No. 562, Acts of Alabama 1947; Act No. 670, Acts of Alabama 1953; Act No. 1600, Acts of Alabama 1971 and Act No. 679, Acts of Alabama 1977.


author: JONES, Justice.

text:
    Ex parte Norman L. RHEA. Re Ex parte CITY OF BESSEMER. (Re Norman L. RHEA v. CITY OF BESSEMER).
    81-770.
    Supreme Court of Alabama.
    Nov. 5, 1982.
    Rehearing Denied Jan. 14, 1983.

      Peter W. Shields, Tuscaloosa, for petitioner.
    J.H. McEniry, III, Bessemer, David P. Whiteside, Jr. and Patricia Clotfelter of Johnston, Barton, Proctor, Swedlaw & Naff, Birmingham, for respondent The Personnel Bd. of Jefferson County.
   JONES, Justice.

We granted the petition for writ of cer-tiorari to review the Court of Civil Appeals’ decision, 426 So.2d 835, in a personnel case from Jefferson County. We reverse.

In 1957, Norman L. Rhea became superintendent of the Public Improvements Department for the City of Bessemer. He continued in this employment without incident until February of 1980. On February 4,1980, Rhea met with William Hyche, City Commissioner of Bessemer in charge of public improvements. At this meeting, Rhea told Hyche that he, Rhea, wished to tender his prospective resignation, if Hyche would accept it. Hyche requested that Rhea submit his tender of resignation in writing.

The following day Rhea mailed Hyche a letter confirming their conversation of the previous day and tendering his resignation, effective April 1, 1980. There was no further oral or written communication between the parties until March 4, 1980, at which point Rhea forwarded to Hyche correspondence indicating that he sought to withdraw his earlier tender of resignation.

On March 5, one day later, Rhea received two letters from Hyche, one dated February 28, 1980, and the other dated March 4, 1980. In substance, the February 28 letter confirmed Hyche’s acceptance of Rhea’s “resignation” effective April 1, while the March 4 correspondence expressed Hyche’s intention not to accept Rhea’s attempt to withdraw his “resignation.”

Rhea appealed the City’s refusal to accept his withdrawal to the Jefferson County Personnel Board. On May 22, 1980, after an evidentiary hearing, the Board ruled: 1) that Rhea had voluntarily resigned his position; 2) that his resignation had been accepted on February 4, 1980; 3) that Rhea’s resignation and acceptance had been confirmed in writing in the letter of February 5; 4) that Rhea ceased to be a permanent employee of the City of Bessemer on April 1, 1980; and 5) the City was justified in replacing him after that date.

Pursuant to Section 22 of the Personnel Board’s Enabling Act, Rhea appealed the decision of the Board to the circuit court. A three-judge panel reviewed the record of the proceedings before the Board and concluded that Rhea’s resignation had not been accepted prior to its withdrawal. Accordingly, the panel reversed the board and ordered Rhea’s reinstatement.

The Court of Civil Appeals granted certiorari to review the decision of the three-judge panel. The appellate court’s decision correctly reviews the applicable case law and the issue on appeal:

“In Alabama a prospective resignation may be withdrawn at any time prior to its acceptance or its effective date. State, ex rel. Almon v. Fowler, 160 Ala. 198 [186], 48 So. 985, (1908); City of Dothan v. Lucas, 47 Ala.App. 336, 254 So.2d 341 (1971). Rhea’s resignation was not to be effective until April 1, 1980, so it was prospective in nature. City of Dothan v. Lucas, supra, The resignation was clearly withdrawn prior to the date it was to become effective. Thus, the issue ... and the issue that was before the three-judge panel is whether Rhea had withdrawn his resignation prior to its acceptance.”

As stated in the majority opinion*of the Court of Civil Appeals, Rule 7.32 requires an employee’s resignation to be in writing— if he wishes to resign “in good standing.” Thus, reasoned the majority, “it is not inconceivable to conclude that Rhea was not concerned with resigning in good standing.” Accordingly, concluded the Court of Civil Appeals, Rhea submitted, and Hyche validly accepted, his resignation as of February 4, 1980, despite the fact that neither the offer, nor the acceptance, was reduced to writing.

We are unable to accept as correct or relevant the proposition that Rhea was unconcerned that his resignation be “in good standing.” Resignation “in good standing” would allow Rhea, if he so desired, to be considered for re-employment at a later date. While the Court of Civil Appeals was of the opinion that “[a] person who is qualified to retire and has made the decision to retire is more than likely not concerned with the possibility of re-employment at his previous position,” such subjective speculation concerning Rhea’s concern with re-employment rights adds nothing to the solution of the issue presented: whether Rhea withdrew his resignation prior to its acceptance.

Had the City accepted Rhea’s verbal tender of resignation on February 4, 1980, his “not in good standing” resignation would have become effective April 1, 1980. Instead, the City requested Rhea to tender his resignation in writing—the “in good standing” procedure. Once Rhea acceded to the City’s request and tendered his resignation in writing to the Commissioner, the procedure prescribed by the Rule obtained as though the February 4 conversation between Rhea and Hyche had never occurred. As here postured, we believe this case is controlled by McPherson v. Mims, 385 So.2d 44 (Ala.1980).

We accept the reasoning of Judge Holmes in his dissent, that Rhea’s February 5 correspondence to Hyche operated as the effective tender of resignation (prospectively as of April 1) and that because there was no acceptance thereof prior to Rhea’s March 4 letter withdrawing the same, as a matter of law, Rhea was entitled to be reinstated.

REVERSED AND REMANDED.

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

MADDOX and EMBRY, JJ., not sitting.

      . Rule 7.32 of the Jefferson County personnel board’s rules and regulations requires a permanent employee to submit to the appointing authority a notice in writing of his intention to resign or retire, if the employee wishes to resign or retire in “good standing.”

      . 1945 Ala.Acts 248, as amended by 1947 Ala. Acts 562; 1953 Ala.Acts 670; 1971 Ala.Acts 1600; 1977 Ala.Acts 679.


author: BRADLEY, Judge.

text:
    Ex parte CITY OF BESSEMER. (Re Norman L. RHEA v. CITY OF BESSEMER).
    Civ. 3168.
    Court of Civil Appeals of Alabama.
    Feb. 9, 1983.
   BRADLEY, Judge.

Upon remand to this court by the Supreme Court of Alabama, 426 So.2d 838, it is considered that the decision of the Circuit Court of Jefferson County should be affirmed in accordance with the opinion rendered by the supreme court on November 5, 1982.

AFFIRMED ON REMAND.

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


text:
    Rufus LOVEJOY and Swift Speer v. Gregory D. FRANKLIN.
    Civ. 3374.
    Court of Civil Appeals of Alabama.
    Jan. 12, 1983.

      Talmadge H. Fambrough, Pell City, for appellants.
    William Ken Rogers, Jr., Sylacauga, for appellee.
   EDWARD N. SCRUGGS, Retired Circuit Judge.

This is a breach of contract case.

While three counts were contained in the amended complaint, it is clear that the trial court rendered its judgment for the plaintiff, Mr. Franklin, for $4,515 only upon count three. There, it was alleged that the parties had entered into an agreement whereby the defendants purchased the plaintiff’s 51% interest in a business and that the defendants breached the terms of the contract by failing and refusing to pay the agreed purchase price therefor. The evidence disclosed that the three parties had previously conducted their establishment as a partnership, but that it is now being operated solely by the two defendants, who have duly appealed.

The trial court properly overruled the defendants’ motion to dismiss count three of the complaint, which obviously states a traditional justiciable legal claim for the plaintiff as against the defendants for breach of contract. Briggs v. Woodfin, 395 So.2d 1024 (Ala.Civ.App.1981); Rules 8(a)(1) and 12(b)(6), A.R.Civ.P. Since that count was the sole pleading foundation for the final judgment, the ruling of the circuit court upon the motion to dismiss the other two counts of the complaint is now totally immaterial. Rule 45, A.R.A.P.; Rule 61, A.R.Civ.P.

The defendants contend that the trial court improperly permitted the contract to be introduced into evidence since the plaintiff failed to comply with civil rule 44(i) which provides as follows:

“The execution of any instrument of writing attested by witnesses may be proved by the testimony of the maker thereof, without producing or accounting for the absence of attesting witnesses. In all other cases the subscribing witness must be produced, if possible, to prove execution of private documents, unless the document is an ancient writing which proves itself, or is self-proving or properly acknowledged, or is an official bond required by law to be approved or tested by a particular functionary, or is only incidentally or collaterally material to the case. Whenever the subscribing witnesses are dead, insane, incompetent, or are without the state, or their residence is unknown, or, being produced, they do not recollect the transaction, then proof of the actual signing by, or of the handwriting of, the alleged maker or subscribing witness, shall be received as primary evidence of the fact of execution; and if such evidence be not attainable, the court may admit evidence of the handwriting of the subscribing witness, or other secondary evidence, to establish such fact or execution.”

The plaintiff did not provide the testimony of the available subscribing witness to the contract. The defendants each testified that they did not sign the agreement. Hence, the evidence did not comply with rule 44(i). That rule is adopted from sections 12-21-60 through 12-21-62 of the Code of Alabama (1975). It was held in Gillespie v. Bartlett & Byers, 211 Ala. 560, 100 So. 858 (1924), that a specific objection must be made especially raising a noncompliance with that evidentiary rale. The case further stated, in substance, that a general objection is insufficient to prevent the introduction into evidence of such an instrument even though there be nonconformity with that particular law of evidence. Here, the only objection which was made by the defendants when the contract was offered into evidence was “[a]nd reserve our exception — our objection to it." No objection was specifically stated which raised any issue that the testimony of the subscribing witness was not presented by the plaintiff. The trial court did not err in overruling that general objection to the introduction of the contract. Gamble, McEl-roy’s Alabama Evidence § 426.01(7) through (10), pp. 797-802 (3d ed. 1977).

After the plaintiff had rested, the trial court did not abuse its discretion in ordering that the case be reopened for the introduction of additional testimony. Chambers v. Burgess, 50 Ala.App. 591, 281 So.2d 643 (1972); Ala.Code § 6-8-103 (1975). Neither did the trial court err in this nonjury case by asking numerous material questions of various witnesses without objection or exception thereto having been made or taken on the defendant’s behalf. Chambers v. Burgess, supra; Baggett v. Baggett, 47 Ala.App. 539, 258 So.2d 735 (1972).

The last argument of the defendants is that the trial court should not have rendered judgment for a breach of the sales contract because no assets were transferred to the defendants as a consequence thereof. In legal substance, they complain of either a lack of consideration or of a failure of consideration, either of which is an affirmative defense. Rule 8(c), A.R.Civ.P.; Ala. Code § 12-21-112 (1975). The only answer which was filed by the defendants was a general denial. Having failed to affirmatively plead those consideration matters, such defenses were waived by the defendants unless they were otherwise properly presented. Robinson v. Morse, 352 So.2d 1355 (Ala.1977). Since evidence relating to those unpleaded defenses was introduced at the trial without objection, we treat them as having been correctly raised. Rule 15(b), A.R.Civ.P. Nevertheless, there was evidence that at least one tangible asset was owned by the business and that it was expected by all concerned that the commercial undertaking would be profitable, which is also indicative that the partnership had some good will. A question of fact was thus presented for decision by the trial court. That determination was rendered and entered only after a contested ore tenus trial before the circuit court. The final judgment is presumed to be correct and is not disturbable on appeal since it was not palpably wrong and was supported by credible evidence. Davis v. Miller, 352 So.2d 1357 (Ala.1977).

Having found no error as to any issue raised on appeal, we affirm.

The foregoing opinion was prepared by Retired Circuit Judge EDWARD N. SCRUGGS while serving on active duty status as a judge of this court under the provisions of § 12-18-10(e) of the Code of Alabama of 1975 and this opinion is hereby adopted as that of the court.

AFFIRMED.

All the Judges concur.


author: WRIGHT, Presiding Judge.

text:
    William Larry THOMAS v. Ethel Jeanette THOMAS.
    Civ. 3368.
    Court of Civil Appeals of Alabama.
    Jan. 26, 1983.

      Desmond B. Toler, Mobile, for appellant.
    Claude D. Boone of McDermott, Deas & Boone, Mobile, for appellee.
   WRIGHT, Presiding Judge.

This is an appeal from a final order of the circuit court awarding judgment for Ethel Jeanette Thomas, wife, against William Larry Thomas, husband.

This case has been before this court on another occasion relating to the incarceration of the husband for contempt for failure to meet the mortgage payments as ordered in the divorce judgment. Thomas v. Thomas, 406 So.2d 939 (Ala.Civ.App.), cert. denied, 406 So.2d 943 (Ala.1981). This court reversed the order of contempt and incarceration therefor, holding that the husband had shown financial inability to comply with the orders of the court and to purge himself of contempt.

The matter presently before us is another judgment entered by the court after oral hearing. There was first filed by the wife a motion for Rule Nisi, alleging again a failure to pay the mortgage payments ordered by the court. It was further alleged that because of such failure there had been a notice of foreclosure and threatened eviction of the wife and child from the home. This motion was filed within a short time of the final judgment by this court on appeal.

The husband responsively filed motion for modification of the previous child support and mortgage payment order averring inability to pay though stating therein that he was employed, earning $1,400 per month. Husband also filed a motion for Rule Nisi alleging that the wife refused to allow visitation rights granted him. He filed another motion for injunctive relief, claiming a continuation of harassment by the wife after his appeal to this court.

After oral hearing the court entered judgment awarding judgment against the husband and in favor of the wife in the amount of $7,000, payable $100 per month beginning June 1, 1982. Judgment also awarded $550 and $1100 for debts which were due or had been paid by the wife. There was also judgment for a $300 attorney fee for wife. The judgment stated that the $7,000 amount represented defendant’s equity in the home at the time it was foreclosed because of the failure of the husband to meet the mortgage payments as ordered.

The husband states two issues for our review. The first is that the court abused its discretion in entering judgment against him for $7,000 and ordering said judgment paid at the rate of $100 per month. We must hold that the trial court not only abused its discretion in rendering its judgment, but that its judgment for damages because of the failure of the husband to comply with its order is without authority. The court could have determined the total sum of the payments ordered paid for one year and rendered judgment therefor. It could have required that sum be paid at the rate of $100 per month. However, to render damages for the failure to pay as ordered was improper and must be reversed. We know of no authority of the court in a divorce case to render money judgments, except in the division of property and in awarding alimony, attorney fees and child support under authority of statute. §§ 30-2-51, -52.

Let this court hasten to say that it has no sympathy nor patience with a party who contumaciously fails to do as ordered by a court, particularly when it is an order to pay child support or alimony. There was presented evidence in the most recent hearing that would have supported the finding of contempt had it been presented in the first case brought to us. We pointed out that there was not then evidence presented to prove that the husband had the means to comply with the order of the court. For that lack of evidence, we set aside the finding of contempt. It has now been shown at the last hearing that the husband is regularly working and earning at least $1400 per month. He has been paying, as required, $40 per week as child support, but he has paid nothing on the accumulated alimony. We reiterate the term “alimony” because we determined in the original appeal that the required mortgage payments for a period of one year, or until the wife was able to return to work, was in fact alimony. Thomas v. Thomas, 406 So.2d at 942. Therefore, we find no abuse of discretion in the order requiring accumulated alimony to be paid at the rate of $100 per month. However, we determine the finding of $7,000 due and judgment entered therefor as improper and direct it to be set aside. We further direct the determination of the number and amount of mortgage payments due from the date of the divorce decree for a period of twelve months or until the wife returned to work, as ordered in the decree. Judgment should be entered accordingly. Should the court then decide to require monthly payments of that sum, it may do so within its discretion.

The second issue presented is error in the failure of the court to render judgment on the husband’s motion for credit for child- support during the period when he fled the state to avoid service of or arrest under a Rule Nisi and failure to enjoin the wife from moving for future Rules Nisi.

The court finds no merit in the issues nor the argument in support thereof.

The decree is affirmed in all parts other than as set out above.

AFFIRMED IN PART; REVERSED IN PART WITH DIRECTION.

BRADLEY and HOLMES, JJ., concur.


author: PER CURIAM.

text:
    CITY OF JASPER CIVIL SERVICE BOARD v. Richard A. SCHULTZ.
    Civ. 3418.
    Court of Civil Appeals of Alabama.
    Feb. 2, 1983.

      Charles R. Stephens, Jasper, for appellant.
    No Brief of Appellee.
   PER CURIAM.

This is a case involving the taxing of “court” costs.

The appellee was discharged from his duties as a policeman for the City of Jasper in 1978. The appellee then appealed that decision to the city’s civil service board. After a hearing the board upheld the discharge. The appellee appealed to the circuit court.

In April, 1981, the trial court affirmed the decision of the civil service board and taxed the costs of the proceedings to the city.

Thereafter, on April 28, 1981, the trial court amended its order and taxed the costs to appellee. The clerk of the circuit court issued an execution for the cost of the record and transcript, a total of apparently the sum of $438.60.

On September 2, 1981, the trial court upon appellee’s motion entered a new order setting aside the April 28 order and reinstating the April 22 order taxing costs against the city. Additionally, the money collected pursuant to a levy made in connection with the April 28 order was to be refunded to the appellee.

The city appealed to this court from the trial court’s September 2 order. This court in City of Jasper Civil Service Board v. Schultz, 412 So.2d 818 (Ala.Civ.App.1982), ruled that the trial court was without jurisdiction to enter the September 2 order.

In so ruling, we based our decision on the determination that appellee’s oral motion of September 2 was not timely. We pointed out in City of Jasper v. Schultz, supra, that our supreme court has held that the proper motion requesting the trial court to reconsider the taxing of costs is a rule 59(e), A.R.Civ.P., motion.

A motion made pursuant to rule 59(e) must be filed and served within thirty days of the final judgment. City of Jasper v. Schultz, supra. That was' not done and therefore the trial court was without jurisdiction to enter an order as it did.

Consequently, this court reversed and remanded the case to the trial court with the instructions to enter an order not inconsistent with the opinion.

Upon reviewing the case on remand, the learned trial judge altered the costs by deleting part of the total sum. In its order the trial court declared that the cost of transcribing the testimony and providing a transcript, which had been part of the costs originally, was the responsibility of the city. This action is to this court not in accordance with our opinion in City of Jasper v. Schultz, supra, nor the law of the State of Alabama as stated in City of Jasper v. Schultz.

The trial court’s latest action is without authority just as and for the same reasons as was its action in retaxing costs against the city on September 2, 1981.

Nothing has occurred that would confer upon the trial court the authority to alter the order on remand. The trial court has no other alternative than to enter judgment as it originally did on April 28, 1981.

The trial court in its latest order relies upon Act 113, § 16, Acts of Alabama, 1965 Special Session. Suffice it to say that § 16 of Act 113 does not, under the instant facts, support the trial court’s action.

This case is due to be reversed and remanded for entry of judgment not inconsistent with this opinion.

REVERSED AND REMANDED.

All the Judges concur.


text:
    Tommy Lee MARSH v. Patricia Ann MARSH.
    Civ. 3492.
    Court of Civil Appeals of Alabama.
    Feb. 2, 1983.
    Thomas B. Prickett, II, Oneonta, for appellant.
    B.J. McPherson, Oneonta, for appellee.
   HOLMES, Judge.

This is a domestic relations case.

The former husband, through able counsel, appeals from an order of the Circuit Court of Blount County which found, in part, that the ex-husband was not entitled to a credit against child support arrearage. We affirm.

A review of the record reveals the following pertinent facts:

The parties to this appeal were divorced in May, 1981. Under the terms of the divorce decree the wife was awarded custody of the two minor children. The husband was ordered to pay $60 per week in child support.

In June, 1982, the wife filed a petition for rule nisi on the ground that the husband was in arrears in payments due under the final decree.

An ore tenus hearing, was held in which the husband testified that he had kept the children for fourteen full weeks, although not consecutively. It was the husband’s contention at the hearing, and now on appeal, that he should be allowed a credit for those fourteen weeks to be applied against the arrearage in child support. The trial court found that the husband was not entitled to a credit for that period. From that finding the husband appeals.

It is established law in this state that the award or denial of a credit is within the sound discretion of the trial court, and such determination will not be reversed absent a showing of abuse. Kinsey v. Kinsey, 425 So.2d 483 (Ala.Civ.App.1983); Wier v. Wier, 410 So.2d 78 (Ala.Civ.App.1982). In view of the evidence presented in the instant case, we find no abuse of discretion concerning the trial court’s ruling that the husband was not entitled to a credit.

The evidence when viewed with the attendant presumptions accorded the trial court’s action shows that the husband had the children for six full, consecutive weeks. Additionally, the husband’s testimony shows that the wife did pick the children up during that period and take them to her home for some period of time.

It was the wife’s testimony that she and her ex-husband mutually agreed to let the children stay with the husband while the wife attended school out of town. She additionally testified that the longest the husband kept the children was six consecutive weeks.

In any event, we do not find an abuse of discretion in regard to the trial court’s denial of a credit to the husband. A relatively short period of time was involved in the instant appeal. Cf. Kinsey v. Kinsey, supra; Owens v. Owens, 412 So.2d 820 (Ala.Civ.App.1982); Nabors v. Nabors, 354 So.2d 277 (Ala.Civ.App.1978).

Carried to the extreme, non-custodial parents could ask for credit any time the child stays one hour past the decreed visitation period. We do not think that is the intent behind the law concerning credits.

We should not be understood as finding that there was no evidence presented which would justify a credit being given the husband. This court only finds that in this instance the trial court acted within its discretion in not allowing a credit. For this court to reverse would be to substitute our judgment for that of the trial court. This the law does not permit. Sutton v. Sutton, 55 Ala.App. 254, 314 So.2d 707 (1975).

The wife has pursuant to rule 38, A.R. A.P., filed with this court a motion to dismiss the husband’s appeal. The motion is due to be and is denied.

This case is due to be affirmed.

AFFIRMED.

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


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    Jo Ann Wall CAMPBELL v. Lamar McWhorter CAMPBELL.
    Civ. 3313-X.
    Court of Civil Appeals of Alabama.
    Feb. 9, 1983.
    Judith S. Crittenden of Clark, James & Crittenden, Birmingham, for appellant.

      Max C. Pope of Fulford, Pope, Natter, Donovan & Mullins, Birmingham, for appel-lee.
   BRADLEY, Judge.

This is a divorce case.

Jo Ann Wall Campbell and Lamar McWhorter Campbell were divorced on October 25, 1974. Under a divorce agreement which was incorporated into the decree, the husband was to pay $1,500 per month alimony from November 1, 1974 through November 1, 1975 and thereafter $1,250 per month. Mrs. Campbell received the family home in Birmingham and assumed a $35,000 mortgage on the property. Household items were also divided. Dr. Campbell took title to certain real estate in St. Clair County, and stocks and cash were split between the parties. At the time of the divorce the couple had one remaining minor child, Sarah, of whom Mrs. Campbell was given custody. The agreement recited that Dr. Campbell was to pay $250 per month child support “until the said Sarah Margaret Campbell reaches the age of twenty-one (21) years, or marries, or otherwise becomes emancipated, whichever shall occur first.” On October 21, 1981 Mrs. Campbell filed a petition to modify, claiming that her expenses had increased and that the $1,250 in monthly alimony was insufficient to meet her needs. Subsequently, on January 5, 1982, she also filed a petition for a rule nisi, claiming that Dr. Campbell had failed to make child support payments. The court, in an order dated April 12,1982, increased Mrs. Campbell’s alimony payments by $200 to $1,450 per month and assessed an arrearage of $8,500 in child support against Dr. Campbell. He was also charged interest of $2,901.97 on the arrearage. Following a denial of the husband’s motion for a new trial or to alter, amend, or vacate the judgment, Mrs. Campbell has appealed to this court on the issue of alimony, and Dr. Campbell has taken a cross-appeal on the issue of child support.

Mrs. Campbell bottoms her appeal on the issue of alimony on the contention that an increase of $200 per month was so inadequate as to constitute an abuse of the trial court’s discretion in light of evidence that her living expenses had increased and that her other income had decreased since the divorce. She says that she left college at the time of her marriage to Dr. Campbell in 1949 and that she never completed her education, thus making it difficult for her to compete in the job market. She argues that a greater increase in alimony is necessary because the real estate business in which she has been engaged since she became licensed in 1976 has suffered from the recession and has produced no income for her in 1982. These facts, she claims, have caused her standard of living to decrease and have demanded that she spend money awarded to her in the property settlement. In further support of her position, she claims that Dr. Campbell’s income from his ophthalmology practice and other investments has increased.

In dealing with a divorce case where the evidence is heard orally, we must apply that standard of review known as the ore tenus rule. This rule prevents us from substituting our own judgment for that of the trial court which heard and weighed the evidence. It therefore demands that we clothe the trial court’s findings with a presumption of correctness to the point that a reversal is mandated only if we find gross abuse of discretion or palpable error. Dennis v. Dennis, 383 So.2d 187 (Ala.Civ.App.1980).

Our review of the record in the instant case does not reveal such an abuse of discretion which would mandate a reversal, and we affirm. Mrs. Campbell claims in her brief that she requires a monthly income of $2,340.10 to meet her living expenses. Evidence adduced at trial indicates that she has income from other investments and a wraparound mortgage, arising from the sale of the couple’s former residence. She, herself, testified that she received $949.20 per month under the wraparound which, after her mortgage payment of $295.60 per month, nets her $653.60 per month. This figure, coupled with her increased alimony payments of $1,450, gives her a minimum monthly income of $2,103.60. This amount itself brings her close to the amount that she testified at trial would be necessary. Moreover, the record reveals that Mrs. Campbell has money invested in a money market mutual fund and a municipal bond fund, both of which produce income for her, and also investments in a tax deferred annuity arrangement. These investments produce income which will give Mrs. Campbell the ability to meet her month-to-month needs of $2,340.10. Mrs. Campbell, however, argues that her husband’s income from his ophthalmology practice and other investments has increased over the years. Our courts have consistently said that an increase in the husband’s income is insufficient, in and of itself, to justify an increase in an award of alimony to the wife. See Capra v. Capra, 56 Ala.App. 90, 319 So.2d 286 (Ala.Civ.App.1975); O’Neal v. O’Neal, 284 Ala. 661, 227 So.2d 430 (1969). For the foregoing reasons we find that the evidence in the record supported the trial court’s decision and that an increase of $200 per month in alimony was not an abuse of the trial court’s discretion.

Dr. Campbell, by way of cross-appeal, argues that the trial court erred in finding that he owed an arrearage of $8,500 in child support payments. The parties’ agreement which was incorporated into the divorce decree of October 25, 1974 provided that child support payments were to continue “until the said Sarah Margaret Campbell reaches the age of twenty-one (21) years, or marries, or otherwise becomes emancipated, whichever shall occur first.” Dr. Campbell contends that he was relieved of his duty to make child support payments when his daughter reached the legal age of nineteen on April 9, 1976. It is his position that the enactment of section 26-1-1, Code 1975, which lowered the statutory legal age in Alabama from twenty-one to nineteen caused Sarah to become emancipated by operation of law on her nineteenth birthday. Mrs. Campbell, however, argues that the assessment of the $8,500 arrearage against her former husband was proper. She contends that the term “otherwise becomes emancipated” was intended by the parties to mean “becomes financially independent” and that they did not contemplate that a change in the- statutory legal age would affect child support payments.

In Davenport v. Davenport, 356 So.2d 205 (Ala.Civ.App.1978), we had occasion to consider a child support payment provision in a divorce decree which provided that the father was to continue making payments “until each of the said minor children obtains the age of 21, is fully self-supporting, married, or dies.” We held that the enactment of section 26-1-1, Code 1975, caused the father’s obligation to make child support payments to cease when his children reached the age of nineteen, noting that “[t]he fixing of the age of majority is within the sphere of the legislature not' the courts.” (Citations omitted.) In our later decision of Ralls v. Ralls, 383 So.2d 857 (Ala.Civ.App.1980), we dealt with an appeal from the granting of a petition to modify a divorce decree which incorporated an agreement of the parties concerning child support. There, we held that the trial court’s modification of the prior decree to relieve the father of his obligation to make child support payments and to pay educational expenses for his children on their nineteenth birthday was improper. We found that the lowering of the legal age from twenty-one to nineteen under section 26-1-1, Code 1975, did not, in and of itself, create a sufficient showing of changed circumstances which would relieve the father of his obligation to make support payments under the divorce agreement. Thus, from the logic of our prior decisions, a distinction emerges between those cases such as Davenport, supra, in which the obligation to make child support payments is based on a court-ordered decree and Ralls, supra, and the instant case in which the father’s obligation to provide support arises from an agreement of the parties which has been incorporated into the divorce decree.

The instant appeal involves a support agreement which, as we have pointed out, required the father to make support payments “until the said Sarah Margaret Campbell reaches the age of twenty-one (21) years, or marries, or otherwise becomes emancipated, whichever, shall occur first.” (Emphasis supplied.) In its April 12, 1982 order the trial court apparently construed the terms of the divorce agreement to agree with the wife that the phrase “otherwise becomes emancipated” was not intended by the parties to relieve the father of his obligation to make support payments because of the change in the statutory legal age in Alabama. It is of course proper for a trial court to construe the terms of an ambiguous divorce agreement which has been incorporated into a judgment, and in so doing it must base its construction on a meaning which would reflect the intent of the parties. Price v. Price, 360 So.2d 340 (Ala.Civ.App.1978); Reeder v. Reeder, 356 So.2d 202 (Ala.Civ.App.1978). Here, the trial court was faced with a divorce agreement which provided that child support payments were to end when one of three contingencies occurred. The first of these contingencies dealt with age — i.e., support payments were to cease when the daughter reached the age of twenty-one — and the trial court apparently concluded that the parties’ use of the phrase “otherwise becomes emancipated” was not also intended by them to relate to a change in age. The trial court apparently found that the terminology was included in the divorce agreement to cover some other contingency such as the possibility of the daughter’s attaining financial independence.

In other words, since “support until 21” was a voluntary agreement and remains in effect under our prior decisions, the determinative question is what “otherwise emancipated” means.

The phrases “until age 21” or “until age of majority” were interchangeable at the time the agreement was made. Therefore, if “otherwise emancipated” were read to mean “until age of majority,” as the father in effect contends, it creates an illogical redundancy. One would hardly contend the agreement was to support the daughter until age twenty-one or marriage or age nineteen. Thus “otherwise emancipated” must refer to something other than age. Since the trial court’s construction of the parties’ support agreement was not contrary to the terms of the agreement, itself, or the evidence in the case, it is due to be affirmed.

Mrs. Campbell’s request for an attorney’s fee on appeal is denied.

AFFIRMED.

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


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    The GOODYEAR TIRE AND RUBBER COMPANY v. Olen M. GREENE, Jr.
    Civ. 3376.
    Court of Civil Appeals of Alabama.
    Feb. 9, 1983.

      James D. Pruett of Pruett & McWhorter, Gadsden, for appellant.
    Clarence F. Rhea and Donald R. Rhea of Rhea, Boyd & Rhea, Gadsden, for appellee.
   EDWARD N. SCRUGGS, Retired Circuit Judge.

This is a workmen’s compensation case.

After an ore tenus trial, the circuit court awarded compensation to the employee with a finding that he suffered a seventy-five percent permanent partial disability to the body as a whole. The employer appeals and here contends that there was no evidence to support such finding and judgment of the trial court.

We have reviewed the record on appeal and the appendix furnished to us. A detailed statement of the tendencies of the evidence would not serve any precedential purpose. It suffices to state that the evidence indicates that this fifty-five-year-old employee, who had continuously worked for his employer for almost thirty-six years, injured his back while engaged in his employer’s work; that, as a proximate result of which, he underwent surgery to his lower back, but that he still experiences continuous and rather severe pain and some numbness in areas of his hip, side, groin and leg; and that the pain worsens according to his activity, which creates a problem as far as continuing to work.

In workmen’s compensation cases our scope of review as to factual matters is strictly limited to an examination of the trial evidence to determine if any legal evidence was supportive of the findings of the trial court. If so, we must affirm the trial court’s judgment as to the raised issue of fact, for this court does not consider the weight of the evidence but only its existence. Agan v. Union Foundry Co., 404 So.2d 71 (Ala.Civ.App.1981); Health-Tex, Inc. v. West, 401 So.2d 88 (Ala.Civ.App.), cert. denied, 401 So.2d 90 (Ala.1981); Bazzell v. Reeves, 374 So.2d 902 (Ala.Civ.App.1979). The evidence in this case upholds the findings of the trial court. It is not required that exact evidence be presented by any witness in the precise words that “the employee suffered a seventy-five percent (75%) permanent partial disability to his body as a whole” in order to sustain such a finding by the trial court, for, in making such a determination as to the extent of disability, the trial court must consider all of the evidence, including its own observations, and interpret it according to its own best judgment. Semmes Nurseries, Inc. v. McVay, 279 Ala. 42, 181 So.2d 331 (1965); Albertville Nursing Home v. Upton, 383 So.2d 544 (Ala.Civ.App.1980). We cannot say that there is no evidence or basis for the trial court’s findings in this case. Therefore, we affirm the judgment of the circuit court.

The foregoing opinion was prepared by retired Circuit Judge EDWARD N. SCRUGGS, serving on active duty status as a judge of this court under the provisions of § 12-18-10(e) of the Code of Alabama 1975, and this opinion is hereby adopted as that of this court.

AFFIRMED.

All the Judges concur.


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    Cheryl SAIN v. Phillip SAIN.
    Civ. 3426.
    Court of Civil Appeals of Alabama.
    Feb. 9, 1983.

      Joseph P. Givhan, Jr., Mobile, for appellant.
    Daniel W. Molloy, Mobile, for appellee.
   HOLMES, Judge.

This is a child custody case.

The mother appeals from an order of the Circuit Court of Mobile County granting the father custody of the minor child. We reverse and remand.

The parties to this appeal were divorced by the Circuit Court of Mobile County in April, 1981, on grounds of incompatibility of temperament. There was one minor child born of the marriage. The parties’ agreement concerning custody and visitation was incorporated into the decree whereby the trial court awarded custody to the mother and granted the father visitation.

Subsequently, the father filed a motion in May, 1981, seeking to have the judgment vacated or a new trial. Alternatively, the father sought to have the mother found in contempt for disregarding the terms of the divorce decree and to have the decree modified with respect to custody of the minor child.

The trial court denied the motion to vacate judgment and for new trial. An ore tenus hearing was held on the motion to modify in June, 1982, at which custody of the child was awarded to the father. The mother appeals from that action.

Upon review there is a presumption of correctness which accompanies the judgment of the trial court in every case where the evidence was heard ore tenus. Alford v. Alford, 368 So.2d 295 (Ala.Civ.App.1979). However, there is also a rule of repose applicable to a motion to modify a divorce decree with respect to child custody. Alford v. Alford, supra. A decree fixing custody of a minor child is conclusive of the interests of the child and the rights of the parents as long as the status of the parties at the time of the decree remains without material change. There must be evidence of a material change in circumstances occurring since the last judgment so affecting the best interests and welfare of the child as to reveal an obvious and overwhelming necessity for change. Alford v. Alford, supra; Thorne v. Thorne, 344 So.2d 165 (Ala.Civ.App.1977). Moreover, the party seeking modification has the burden of proof. Pons v. Phillips, 406 So.2d 932 (Ala.Civ.App.), cert. denied, 406 So.2d 935 (Ala.1981).

The rules of law controlling modification of child custody are not limited to the material change in circumstances standard. A change in custody can also be justified by proof of material facts which, though existing at the time of the original decree, were then undisclosed and have since been revealed. Smith v. Smith, 334 So.2d 915 (Ala.Civ.App.1976). Regardless of all the principles of law concerning custody, the most important, the paramount consideration in all child custody cases, is the welfare and best interests of the child. Pons v. Phillips, supra.

In the instant appeal we find that the father has not met the burden of proof necessary to show that the welfare and best interests of the child have been adversely affected so as to require a change in custody-

There are two areas of contention that could be the possible basis for a change in custody: the parents’ conflict over visitation and certain material facts undisclosed at the time of the original decree. In view of the above stated principles regarding child custody, neither of these areas warrants a change.

First, we will consider the material facts undisclosed at the time of the original decree.

There was evidence presented at the modification hearing which reveals that the mother had committed adultery prior to the divorce. It is the father’s position that this evidence is sufficient to support the trial court’s actions. We do not agree.

It is true that such evidence, as indicated above, may be received by the trial court as it has a direct bearing on the fitness of the custodial parent. Porter v. Porter, 46 Ala.App. 22, 237 So.2d 507 (1970).

Be that as it may, the moral unfitness of a mother sufficient to deprive her of custody must be such as to have a direct bearing upon the welfare and best interests of her child. A parent will not be denied custody for every act of indiscretion or immorality. Gandy v. Gandy, 370 So.2d 1016 (Ala.Civ.App.1979); Roberson v. Roberson, 370 So.2d 1008 (Ala.Civ.App.1979); Gould v. Gould, 55 Ala.App. 379, 316 So.2d 210 (1975).

Nowhere in the record is it shown that the mother’s adultery before the divorce had any effect whatsoever on the child. In fact, very little of the record concerns the mother’s misconduct in that respect. The record does reveal that the mother married the man involved sometime after her divorce. The evidence tends to show that the mother did not live with the man before they were married and he did not stay in her house or spend the night there. There is no indication that the child and his step-father do not get along with one another. In short, there was no showing that the child was affected in any way by the mother’s conduct.

The father also alleged that the mother did not clothe the child as he liked and that she did not properly feed or provide medical care for the child. This was all denied by the mother and, at any rate, there was no evidence presented that would tend to establish conditions existed which would require a change in custody.

The majority of the evidence presented concerned the parties’ conflict over visitation.

Soon after the parties’ divorce, the mother moved with the child from Mobile to North Alabama. As far as visitation is concerned, this move did nothing to improve relations between the parties.

Needless to say, there was difficulty between the parties over visitation. Both parties were forced to resort to court orders at different times to compel the other party to abide by the divorce decree. Without detail, suffice it to say that much animosity was involved in the parties’ dealings over visitation. On at least two occasions the mother did not comply with court orders concerning the father’s visitation.

This court has previously held that disputes over visitation are not alone sufficient to necessitate change in custody. Pons v. Phillips, supra; Thorne v. Thorne, supra.

As we indicated in the above styled cases, the problems involving visitation in this case appear to be precipitated by the attitude of the parents; the parents appear to be giving vent to their feelings toward each other in this manner. Visitation disputes should not be settled by changing custody of the child from one parent to the other absent compelling reasons. Pons v. Phillips, supra.

Children should not be the pawns in the parents’ personal battle. Disputes over visitation can be and should be solved by the parents.

It is our sincere hope that these two parties will put aside their animosity toward each other so that their child can grow up knowing and sharing in the love and companionship of both parents.

As indicated above, we find that the father has not met the burden of showing an obvious need for a change in custody. There was no showing made that the mother’s misconduct had any adverse effect on the child. There was no showing that the best interests and welfare of the child would be best served by a change in custody-

In view of all the attendant presumptions and rules of law, we find that the learned and able trial judge erred in changing custody and this case is due to be reversed.

REVERSED AND REMANDED.

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


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    TRUSTEES LOAN AND DISCOUNT COMPANY v. Christine JARRETT.
    Civ. 3453.
    Court of Civil Appeals of Alabama.
    Feb. 9, 1983.
    Howard C. Alexander, Montgomery, for appellant.
    Olivia Hardy Hudgins of Legal Services Corporation of Ala., Montgomery, for appel-lee.
   BRADLEY, Judge.

This is a truth-in-lending case.

Trustees Loan and Discount Company (Trustees) filed an action against Christine Jarrett (Jarrett) in the District Court of Montgomery County seeking recovery on a promissory note. Judgment was rendered in favor of Trustees and against Jarrett in the amount of $478.03. Jarrett appealed this judgment to the Circuit Court of Montgomery County. After a hearing, the circuit court found that Trustees had violated the Truth-in-Lending Act, 15 U.S.C. § 1601 et seq. (1976), and Regulation Z, 12 C.F.R. 226.1 et seq. (1981), and rendered judgment in favor of Jarrett by voiding the promissory note, awarding her $213.26 plus court costs and $400 as an attorney’s fee. Trustees appeals from this judgment.

Trustees contends on appeal that the trial court erred in finding that it had failed to disclose in the promissory note executed by Jarrett “the number, amount and due dates or periods of payments scheduled to repay the indebtedness,” as required by the Truth-in-Lending Act and Regulation Z.

Jarrett says that Trustees did not provide her with the due dates of the loan payments between the first and last payments as required by the law in question. In addition, she says that the statement of the number of payments after the first payment required to satisfy the loan fails to satisfy the requirement that the terms of the loan be stated “clearly, conspicuously, [and] in meaningful sequence.” 12 C.F.R. 226.6(a) (1981).

Jarrett’s reference here is to that part of the promissory note which provides:

“Schedule of Monthly Payments: The First One of $36.00 and 143 [sic] of $36.00. First Payment Due Date 8-27-81. Final Payment Due Date 10-27-82.”

Particular reference is made to the typing of the number “143” in the contract, which is supposed to be the number of payments required to satisfy the loan.

It is obvious that uncertainty surrounds this typed number. The debtor is left to speculate whether “143” is number intended to be typed, whether number “14” is intended, or whether “13” is the intended number. To be certain of the number intended, the debtor would have to divide the total amount of the loan ($540) by the amount of each payment ($36.00) to arrive at the number of payments required to satisfy the loan. Such a confusing and misleading disclosure of the number of payments required to satisfy the loan is as much a violation of the Truth-in-Lending Act as is the failure to disclose any number at all. Smith v. Chapman, 614 F.2d 968 (5th Cir.1980). The effect is the same; the debtor cannot easily compare credit terms so as to avoid the uninformed use of credit. 15 U.S.C. § 1601 (1976).

As to Jarrett’s contention that Trustees failed to set out the due dates of each payment between the first payment and the last payment, we note that only the due dates for the first and last payments are set out in the promissory note by Trustees.

The trial court found that the failure to specify the due dates of loan payments between the first and last payments, which were specified, amounts to a violation of the Truth-in-Lending Act and Regulation Z. The court relied on Owens v. Magee Finance Service, 476 F.Supp. 758 (E.D.La.1979) for its authority in so holding. The United States District Court said that a credit customer is not required to assume or speculate what the due dates of subsequent loan payments will be but is entitled to be told specifically when those future due dates will occur, and a failure to disclose the due dates of those subsequent payments is a violation of section 226.8(b), (c). See Pennino v. Morris Kirschman & Co., 526 F.2d 367 (5th Cir.1976).

We agree with the trial court’s decision and the rationale of the authority cited by it.

The appellee has requested an award of attorney’s fees for the appeal. This matter is remanded to the trial court for a determination in its discretion of whether attorney’s fees should be awarded for the efforts expended on this appeal. Thomas v. Myers-Dickson Furniture Co., 479 F.2d 740 (5th Cir.1973).

AFFIRMED AND REMANDED FOR A HEARING ON ATTORNEY’S FEES ON APPEAL.

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


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    Joan MUNCASTER, et al. v. STATE of Alabama, et al.
    Civ. 3462.
    Court of Civil Appeals of Alabama.
    Feb. 9, 1983.

      Joan Muneaster and Esther Muncaster, pro se.
    Charles A. Graddick, Atty. Gen., and B. Frank Loeb, Acting Chief Counsel, Dept, of Revenue and Asst. Atty. Gen., and John J. Breckenridge, Asst. Counsel, Dept, of Revenue and Asst. Atty. Gen., for appellees.
   PER CURIAM.

This is a tax case.

The State of Alabama made a final assessment for motor vehicle license taxes against the taxpayer. The taxpayer sought relief from the assessment in the Circuit Court of Elmore County. The State of Alabama filed a motion to dismiss taxpayer’s action. The circuit court granted the state’s motion as to certain named individuals. The taxpayer appeals to this court and we affirm.

We do not deem it necessary or prudent to set out in detail the facts and circumstances of this appeal. The following is sufficient.

After the final tax assessment the taxpayer filed, apparently pro se or through her mother, in the circuit court what is styled a “Bill of Complaint.” The “Bill of Complaint” named as parties the Probate Judge of Elmore County and various State of Alabama Revenue Department employees.

The state in response filed a motion to dismiss taxpayer’s action. The state’s motion is to the effect that the taxpayer’s action is an attempt to appeal from a final assessment and that as such Ala.Code § 40-2-22 (1975) must be followed; that § 40-2-22 was not complied with, in part because the State of Alabama is a proper party to such proceeding and the State of Alabama is not named; furthermore, the parties named are not proper parties.

The taxpayer thereafter apparently in some manner attempted to amend her complaint to add the State of Alabama as a party. The record before this court is not clear as to precisely what occurred as to the attempted amendment.

In any event, after allowing all parties to be properly heard, the trial court granted the state’s motion to dismiss the probate judge and the revenue department employees. Specifically, the trial judge stated “that the said motion to dismiss is well taken as to the defendants, Enslen [Probate Judge], Bryan, McCain and Evans [Revenue Department employees].”

While the taxpayer, as we understand her contention, urges in effect that her court action is not an appeal pursuant to § 40-2-22 (appeal from final assessment), this court finds that her action is precisely such an appeal.

After a careful perusal of her bill of complaint, this court is convinced that of necessity her complaint is an attempt to “appeal from a final assessment” pursuant to § 40-2-22. As such, the procedure outlined in § 40-2-22 must be followed. Radue v. Bradshaw, 289 Ala. 481, 268 So.2d 760 (1972).

The proper parties to an appeal under § 40-2-22 are the State of Alabama and the taxpayer. State v. Aluminum Ore Co., 263 Ala. 422, 82 So.2d 800 (1955); Birmingham Vending Co. v. State, 251 Ala. 584, 38 So.2d 876 (1949).

An appeal not taken in accordance with the terms and provisions of § 40-2-22 is to be properly dismissed. Dowda v. State, 274 Ala. 124, 145 So.2d 830 (1962).

In view of the above, the learned trial judge was eminently correct in dismissing the aforesaid named individuals and his actions in so doing are due to be affirmed.

This court would, however, be remiss in not further commenting. As indicated above, it is not clear to this court whether the taxpayer added the State of Alabama. We make no determination regarding this aspect as that issue is not before this court. However, as indicated, it is clear that the named individuals were the parties who were in fact dismissed.

Additionally, we note that if in fact the State of Alabama was properly added as a party, then in that event, the taxpayer’s appeal would of necessity appear to be required to be dismissed. An order entered in a multiple party action involving multiple claims for relief which adjudicates fewer than all the claims or liabilities of fewer than all the parties is not a final order which will support an appeal. Tubbs v. Brandon, 366 So.2d 1119 (Ala.1979).

The trial court’s action dismissing the named individuals is due to be affirmed.

AFFIRMED.

All the Judges concur.