author: MILLS, Judge.

text:
    J. David BARKER, Appellant, v. Bruce GLUECK, Appellee.
    No. AJ-269.
    District Court of Appeal of Florida, First District.
    May 21, 1982.

      W. Arvel Drury of McCormick, Reid & Drury, Jasper, for appellant.
    John E. Norris of Brannon, Brown, Norris, Vocelle, Haley, Brown & Robinson, P. A., Lake City, for appellee.
   MILLS, Judge.

Barker appeals a summary final judgment finding that Glueck held an easement over a common driveway. We affirm.

The record clearly supports the alternative findings of easement by grant, implication or estoppel.

McCORD and SHIVERS, JJ., concur.


source: Caselaw Access Project

author: PER CURIAM.

license: Public Domain

text:
    Derrell SMITH, Appellant, v. The STATE of Florida, Appellee.
    No. 80-2033.
    District Court of Appeal of Florida, Third District.
    May 25, 1982.
    Pollack, Komorowski & Headley and John Lipinski, Miami, for appellant.
    Jim Smith, Atty. Gen. and John F. Ro-benalt, Asst. Atty. Gen., for appellee.
    Before SCHWARTZ, NESBITT and FERGUSON, JJ.
   PER CURIAM.

The defendant was properly convicted of robbery with a firearm pursuant to Section 812.13, Florida Statutes (1979). Nonetheless, his enhanced sentence, as a habitual offender, must be reversed and remanded to afford the defendant a copy of the pre-sentence investigation prior to the imposition of sentence, as required by Section 775.084(3)(a), Florida Statutes (1979). Eutsey v. State, 383 So.2d 219 (Fla.1980). In all other respects, his adjudications and sentences are affirmed.

Affirmed in part and reversed in part with directions.


text:
    Robert J. BRUSH, Appellant, v. Dulce S. BRUSH n/k/a Dulce Sabat, Appellee.
    No. 81-1972.
    District Court of Appeal of Florida, Third District.
    May 25, 1982.

      Jerome Bill Ullman, Miami, for appellant.
    Levine, Reckson, Reed & Geiger and Elizabeth Bohn Garbett, Miami, for appellee.
    Before SCHWARTZ, NESBITT and FERGUSON, JJ.
   PER CURIAM.

The husband appeals from a final summary judgment denying his petition for modification of custody.

To warrant the modification of a child custody award, there must be evidence that there is a substantial change in the condition of the parties and that the best interest of the child would be promoted by the change in custody. Adams v. Adams, 385 So.2d 688 (Fla. 3d DCA 1980); Sanders v. Sanders, 376 So.2d 880 (Fla. 1st DCA 1979), cert. denied, 388 So.2d 1117 (Fla. 1980). Factors to consider in making this determination include (but are not limited to) the stability of the living environment, Rosenberg v. Rosenberg, 365 So.2d 185 (Fla. 3d DCA), cert. denied, 376 So.2d 75 (Fla.1979), cohabitation of the custodial parent, Smothers v. Smothers, 281 So.2d 359 (Fla. 1973); Young v. Young, 305 So.2d 92 (Fla. 1st DCA 1974), and the preference of the child, Taylor v. Schilt, 292 So.2d 47 (Fla. 2d DCA 1974); Goldstein v. Goldstein, 264 So.2d 49 (Fla. 3d DCA 1972). Because we find that there are genuine issues of material fact with respect to these considerations, the summary judgment must be reversed.

We caution that summary judgments should be granted sparingly upon petitions for modification of custody because of the inherent factual disputes prevalent in such proceedings.

Reversed and remanded.


text:
    STATE of Florida ex rel. Margaret H. ALLEN on her own behalf and for the use and benefit of Shorty’s BarB-Q, Inc., Petitioner, v. The Honorable Thomas A. TESTA, Circuit Judge of the Eleventh Judicial Circuit of Florida in and for Dade County, Florida, E. L. Allen, Sr. and other defendants in Case No. 80-10444, Respondents.
    No. 82-837.
    District Court of Appeal of Florida, Third District.
    May 25, 1982.
    David F. Cerf, Jr., Stephen Cahen, Miami, for petitioner.
    Horton, Perse & Ginsberg and Mallory H. Horton, Miami, for respondents.

      Before HENDRY, DANIEL S. PEARSON and JORGENSON, JJ.
   PER CURIAM.

The rule disqualifying a trial judge who attempts to refute charges of partiality and thus creates an intolerable atmosphere between himself and the litigant, see Bundy v. Rudd, 366 So.2d 440 (Fla.1978); Management Corporation of America, Inc. v. Grossman, 396 So.2d 1169 (Fla. 3d DCA 1981), is no less applicable when, as here, the trial judge’s refutation (which not only set forth his version of the context — “a climate of levity” — in which his remark, arguably prejudicial to the plaintiffs, was made, but, moreover, contradicted the alleged substance of the remark) comes in the form of an affidavit attached to his return to our rule nisi in prohibition.

Accordingly, we must grant the petition for writ of prohibition. We deem it unnecessary to issue the writ and remand the cause to the Circuit Court for further proceedings consistent with this opinion.


text:
    Raleigh DUPREE, Jr., Petitioner, v. The STATE of Florida, Respondent.
    No. 82-974.
    District Court of Appeal of Florida, Third District.
    May 25, 1982.
    Raleigh Dupree, Jr., in pro per.
    Jim Smith, Atty. Gen., for appellee.
    Before SCHWARTZ, NESBITT and JOR-GENSON, JJ.
   PER CURIAM.

Petitioner, pursuant to Fla.R.App.P. 9.140(g) having taken this appeal from the summary denial of his motion for post conviction relief under Fla.R.Crim.P. 3.850 and this court having considered the record presented and having further determined that it conclusively appears therefrom that petitioner is entitled to no relief, the denial of his motion is affirmed.


author: LEMMON, J.,

text:
    STATE of Louisiana v. Heather BROWN.
    No. 82-K-1000.
    Supreme Court of Louisiana.
    May 17, 1982.
   RE: State of Louisiana, applying for writ of Certiorari, Parish of Orleans, Number 287-929.

Denied.

LEMMON, J.,

concurs. Although the ruling is probably incorrect, the application does not warrant the exercise of supervisory jurisdiction.


author: EMBRY, Justice.

text:
    Annie Laurie GUNTER, as Treasurer of the State of Alabama, et al. v. Jere BEASLEY.
    80-185.
    Supreme Court of Alabama.
    April 9, 1982.
    Rehearing Denied May 21, 1982.

      Charles A. Graddick, Atty. Gen., and Sarah M. Greenhaw, Asst. Atty. Gen., for appellants.
    Robert C. Black and Randall C. Morgan of Hill, Hill, Carter, Franco, Cole & Black, Montgomery, for appellee.
   EMBRY, Justice.

Defendants below, the Treasurer, Comptroller, and Finance Director of the State of Alabama, appeal from a final judgment ordering payment by the State of $124,350, plus interest, to plaintiff, Jere Beasley. The trial court determined that monthly expense allowances totalling that amount were wrongfully withheld from Beasley during his eight-year tenure in office as Lieutenant Governor of Alabama, over defendants’ arguments that the legislative resolutions which authorized the expense allowance were in violation of several provisions of the Alabama Constitution.

Beasley served two terms as Lieutenant Governor, from 18 January 1971, until 15 January 1979. Early during his first term in office, House Joint Resolution 223 (Acts of Alabama, 1971 Regular Session, Act No. 1196) was passed; it was introduced and passed as a resolution rather than as a bill to be entitled an act.

H. J. R. 223 provided, inter alia, for payment of the “reasonable expenses of the presiding officer of each House of the Legislature incurred in the performance of their duties” and “while on business of the State.” Shortly thereafter, Senate Resolution 112 of the Regular Session of the 1971 Legislature, stating as its purpose the clarification of H. J. R. 223, was passed to provide for payment of the Lieutenant Governor’s “actual and necessary expenses” in the form of an expense allowance, the amount of which was to be set by the Senate Ethics Committee. That allowance was to be paid “in addition to the monthly expenses now allowed to the Lieutenant Governor.”

Subsequently, the Senate Ethics Committee set the expense allowance at a fixed sum of $1500 per month. The Comptroller initially authorized several payments in that amount to Beasley, but ceased such payments after receiving an advisory opinion from the Attorney General that the two resolutions authorizing the expense allowance were unconstitutional.

In September of 1979, approximately eight months after leaving office, Beasley brought this action seeking a judgment declaring that H. J. R. 223 and S. R. 112 of the 1971 Regular Session were valid and constitutional, and to compel defendants to pay him $1500 for each month during his terms in office during which the expense allowance was withheld, plus interests, costs, and attorney’s fees. Following trial, in which the evidence was adduced ore tenus, the trial court granted the relief requested, with the exception of attorney’s fees. The trial court also enjoined defendants from further withholding the $124,350 plus interest, the amount owed Beasley.

In this appeal, the State essentially reiterates the issues raised below. The validity of the two resolutions and Beasley’s right to bring this action are questioned because of impediments allegedly found in numerous state constitutional and statutory provisions. Looking initially to the language of the resolutions challenged, the operative passage of H. J. R. 223 reads:

“BE IT RESOLVED BY THE LEGISLATURE OF ALABAMA, BOTH HOUSES THEREOF CONCURRING, That the staff of the Legislature is hereby increased by the addition of one secretary for the Legislative Committee on Public Accounts, one administrative assistant each and one additional secretary each for the respective presiding officers of each house whose salaries shall be set by the Clerk of the House and the Secretary of the Senate. The Clerk of the House of Representatives and the Secretary of the Senate are hereby instructed to pay out of funds appropriated to the use of the Legislature the reasonable expenses of the presiding officers of each House of the Legislature incurred in the performance of their duties. In addition to the above, the Clerk of the House and the Secretary of the Senate shall pay the reasonable expenses of the presiding officers incurred within or without the State while on business of the State and including the salaries and actual travel expenses of the individuals included in the above additions to the legislature’s staff and such other office expenses, equipment and supplies reasonably necessary to the operation of the aforesaid offices.”
The pertinent portion of S. R. 112 states:
“BE IT RESOLVED BY THE SENATE OF ALABAMA AS FOLLOWS:
“1. That the Secretary of the Senate is hereby directed to carry out the provisions of the aforesaid H. J. R. [223] as directed by the Lieutenant Governor.
“2. That the term ‘expenses’ referred to in said H. J. R. shall include, but but [sic] not be limited to, all actual and necessary expenses incurred by the Lieutenant Governor’s office which shall include all office supplies, stationery, postage and postal charges, telegrams, telephones and telephone service, equipment purchases and rentals, maintenance and repairs on equipment, travel, and other miscellaneous expenses incurred by the Lieutenant Governor related to the carrying out of the duties of his office, as directed by the Lieutenant Governor.
“3. That in addition to the monthly expense payment now allowed to the Lieutenant Governor, an additional sum shall be paid to the Lieutenant Governor each month in the form of an allowance for reasonable and necessary expenses incurred in the exercise of his official duties not otherwise provided for by law. The amount of said expense allowance shall be determined and set by the Senate Ethics Committee, which said Committee shall promptly advise the Secretary of the Senate. This monthly expense allowance shall be paid for only as long as the Lieutenant Governor maintains a residence in Montgomery and maintains a full time office in the State Capitol.
“4. This resolution shall in no way affect the validity of H. J. R. 223, but is intended to clarify certain portions thereof.
“5. All of the above mentioned sums are to be paid as directed in said H. J. R. from funds specified therein.”

The State contends the monthly payments denominated as an allowance for expenses in fact represented an increase in Beasley’s salary or compensation, in contravention of Sections 67, 118, and 281 and Amendment 92 of the Alabama Constitution. These sections variously provide that the compensation of public officers shall be fixed by law and shall not be increased or decreased during their terms in office.

A resolution is not a law but merely the form in which the Legislature expresses an opinion. The Legislature has no power to make laws by resolution. Hall v. Blan, 227 Ala. 64, 148 So. 601 (1933). Furthermore, as previously mentioned, the resolutions in question were passed during Beasley’s first term in office. Consequently, if the State is correct in its assertion that the monthly allowance represented increased compensation to Beasley, payments thereof pursuant to H. J. R. 223 and S. R. 112 would violate the Constitutional provisions cited by the State.

Our cynosure for this inquiry is Hart v. deGraffenried, 388 So.2d 1196 (Ala.1980), involving a legislative resolution increasing the per diem and monthly expense allowance of legislators during their terms in office, challenged as violative of, inter alia, Sections 281 and Amendment 92, for the same reasons assigned by the State here with respect to these provisions and Sections 67 and 118. As we commented in Hart:

“... This necessarily raises the question of whether any portion of the increased expense allowances represents compensation for services rendered as opposed to reimbursement for expenses incurred.
“We are persuaded that under the applicable provisions of the Alabama Constitution the payment of legislative expense allowances has never been considered any part of the personal compensation awarded to Alabama legislators; rather, these expense allowances exist as a means of reimbursing legislators for expenditures incurred in being called away from home in service to the state and in carrying on their official responsibilities. On the basis of this conclusion, we hold that the enactment of S. J. R. 13 does not violate Section 281 or Amendment 92 by increasing a legislator’s compensation during his term in office.”

In reaching that conclusion, however, we quoted with approval from Manning v. Sims, 308 Ky. 587, 213 S.W.2d 577 (1948):

“... that the allowance of reasonable expenses incurred in the discharge of official duties of an office is neither salary, compensation, nor emoluments of office within the purview of a constitutional prohibition against a change in compensation during the term.” (Emphasis added.)

We then noted:

“... Plaintiffs in the present case, did not question the reasonableness of the increase in expenses; ... . ”

To the contrary, however, in the case sub judice, the State does vigorously contest the reasonableness of the expense allowance granted Beasley. With regard to the issue of reasonableness the final judgment of the trial court concluded as follows:

“The Court finds from the facts that the ‘fixing’ of $1500.00 per month as an expense allowance was proper and, in fact, was a reasonable amount as an expense allowance and specifically finds that no part of said amount constitutes compensation, but instead that all constitutes a reasonable amount for expense allowance.”

The question of reasonableness is one of fact to be resolved by the trier of fact, in this case the trial court receiving the evidence ore tenus. Where the evidence is heard ore tenus, the court will not disturb factual findings of the trial court unless clearly erroneous or manifestly unjust. J. C. Jacobs Banking Co. v. Campbell, 406 So.2d 834 (Ala.1981).

The evidence presented by Beasley at trial tended to show that the responsibilities of the Lieutenant Governor increased substantially during his terms in office. This was largely attributable to an increase in the number of committees on which the Lieutenant Governor served as an appointee of the Governor or by direction of the statutes which created those committees, and an increase in the number of appearances made by the Lieutenant Governor on behalf of the state, particularly after the attempted assassination of then-Governor George C. Wallace. Also, Beasley maintained a residence in Montgomery as authorized by S. R. 112, in addition to his home in Clayton, requiring a duplication of living expenses.

The State, on the other hand, produced evidence that prior to and after passage of the resolution, office supplies, employee salaries, telephone, stationery, postage, equipment purchases, rental, travel, and other items were paid for by the Secretary of the Senate out of appropriations for the Legislature when Beasley presented vouchers for such expenses. Additionally, he was receiving the $300 monthly expense allowance received by all members of the Legislature.

The State also points to the testimony of former Senator George Lewis Bailes, a member of the Senate Ethics Committee at that time, which set the amount of the monthly allowance at $1500, that the allowance was for Beasley’s “extraordinary and unusual living expenses” and that it would have been a financial strain for him “to serve in office under the requirements of the resolution without some additional compensation.”

Finally, the State cites the testimony of Ronald Bird, an economist, who testified that a reasonable increase in the Lieutenant Governor’s expenses would have been approximately $115 monthly based on a formula incorporating economic variables such as the increase in inflation, and in duties of the Lieutenant Governor resulting from population growth and increased complexity in state government. However, on cross-examination, it was revealed that Bird was unaware of, and thus did not include in his analysis, many of the committee positions held by Beasley, the fact that he maintained a second residence with attendant costs, and several other factors which the trial court could have properly concluded were relevant to the determination of what constituted a reasonable increase in the Lieutenant Governor’s expense allowance.

Beasley also produced evidence of payment by him of numerous legitimate expenses for which he was not reimbursed including printed material distributed to visiting members of the public and to public schools, travel expenses, and various office expenses incident to the operation of the Lieutenant Governor’s office.

We have thoroughly reviewed the record and find ample credible evidence to support the trial court’s finding that $1500 monthly was a reasonable amount for Beasley’s expenses and therefore that sum did not constitute compensation to him in whole or in part.

Having determined that the allowance did not constitute compensation, we need not address those constitutional provisions cited by the State which require an increase in compensation to be accomplished by law, and which prohibit an increase in compensation to an officer during his term of office. Without regard to the question of compensation vis-a-vis expenses, however, the State contends there is no constitutional or statutory authority for the Legislature to provide an expense allowance for the Lieutenant Governor by resolution.

In Hart v. deGraffenried, supra, we held that the Legislature may fix expense allowances in the manner it deems most appropriate, including by resolution. The State, nevertheless, argues that Hart is not controlling on the question here presented because it construed Amendment 57 of the Alabama Constitution, which concerns “members of the Legislature.” The Lieutenant Governor is a member of the executive branch under § 112 of the Constitution and is not mentioned in § 50 of the Constitution, which provides that the Legislature consists of senators and representatives.

While we agree that Amendment 57, and our interpretation of it in Hart, do not directly apply to the Lieutenant Governor, we do consider highly relevant to the issue at hand the following principles enunciated in Hart:

“... The Legislature is laden with a broad form of governmental power which is plenary in character, and subject only to those express limitations appearing in the Constitution. As noted by this Court in County Board of Education v. Taxpayers and Citizens, 276 Ala. 472, 163 So.2d 629 (1964):
‘There are no limits to the legislative power of state governments save those written into its constitution. All that the legislature is not forbidden to do by the organic law, state or federal, it has full power to do. The power of the legislature except as limited by constitutional provisions is as plenary as that of the British Parliament. Finklea v. Farish, 160 Ala. 230, 49 So. 366; State ex rel. Wilkinson v. Murphy, 237 Ala. 332, 186 So. 487, 121 A.L.R. 283.’ ...
See also Hall v. Underwood, 258 Ala. 392, 63 So.2d 683 (1953), and Riley v. Bradley, 252 Ala. 282, 41 So.2d 641 (1948).” (Emphasis supplied in Hart.)

Consistent with these principles is the view expressed in 82 C.J.S. Statutes § 20 (1958):

“... [Legislative bodies have the inherent power to express legislative will by joint resolution on all matters which the constitution does not require to be adopted with the formalities prescribed as essential to the passage of a law. It has been held that the legislature can pass a resolution giving force and effect to another resolution which did not attempt to perform the function of a law but was ... to provide expenses incident to legislative session.”

See also, 72 Am.Jur.2d States § 42 (1974).

Although the Alabama Constitution does not expressly grant to the Legislature the authority to set an expense allowance for the Lieutenant Governor by resolution, neither does it expressly prohibit the Legislature from such a course of action. In view of the plenary powers of the Legislature in the absence of constitutional limitations, we hold that it was not improper for the Legislature to set an expense allowance for the Lieutenant Governor by resolution.

The State next contends that the resolutions in question violate Sections 71 and 72 of the Constitution. Once again our point of reference is Hart, wherein we stated:

“The final issue we address is based upon the question of whether there exists any legislative appropriation of monies to pay for the increased expense allowances contemplated under S. J. R. 13. This consideration is significant in view of the provisions of Article IV, § 72 of the Alabama Constitution, which provides, in part, that ‘[n]o money shall be paid out of the treasury except upon appropriations made by law . ... ’ Appellants contend that since no law was enacted to meet the specific purposes of S. J. R. 13, any disbursement of public monies in payment of the increased expense allowances is unauthorized and unconstitutional.
“Appellants erroneously conclude that there was no law passed authorizing the payment of the expense allowances provided for by S. J. R. 13. Section 71 of the Constitution provides, in part, that ‘[t]he general appropriation bill shall embrace nothing but appropriations for the ordinary expenses of the executive, legislative, and judicial departments of the state.. .. ’ The Legislature, during the 1978 Regular Session passed a general appropriation bill which, in its title expressed this purpose:
‘To make appropriations for the ordinary expenses of the executive, legislative and judicial departments of the State ... for the fiscal year beginning October 1, 1978.’
Act No. 597, Regular Session, 1978, Acts of Alabama, Vol. II, p. 723.
“Looking to the provisions of Act No. 597, we conclude that there existed a sufficient appropriation to encompass the increased expense allowances provided for by S. J. R. 13. As noted in Section 71 of Article IV of the Constitution, the general appropriation bill serves the purpose of ‘embracing’ all the ordinary expenses of the Legislature. This necessarily included increased expenses provided for by legislative action, and all other expenses which, although unexpected, were necessary. We, therefore, cannot agree with the appellants in their assertions that a law had to be enacted to meet the specific purpose of S. J. R. 13. Sufficient appropriation had already been made.” (Emphasis in Hart.)

Clearly, the resolutions challenged here provide for payment of the Lieutenant Governor’s expenses from funds already appropriated, i.e., funds appropriated “to the use of the Legislature.” The question which remains is whether expenses of the Lieutenant Governor, as opposed to expenses of members of the Legislature, may properly be paid out of funds appropriated “to the use of the Legislature.”

It is true, as the State has argued with respect to other issues raised, that the office of Lieutenant Governor is placed within the executive branch of state government under § 112 of the Constitution. It is equally true, however, that the only constitutional duty imposed upon the Lieutenant Governor (unless the Governor is removed, dies, or becomes incapacitated), that of presiding over the Senate, Const.1901, § 117, is legislative in nature. The other responsibilities of the office, primarily involving service on legislative committees, are also largely legislative in nature.

Additionally, the uncontradicted testimony at trial was that no Lieutenant Governor of the State had ever received a separate appropriation, while all Lieutenant Governors of the State had received reimbursement for expenses from funds appropriated to the Legislature.

We are of the opinion that the Legislature could properly set an expense allowance for the Lieutenant Governor to be paid out of funds appropriated “to the use of the Legislature.” “Use means usefulness, utility, advantage, productive of benefit.” 43A Words and Phrases, Use: Used, p. 251 (1969). Surely, there can be no serious contention that the functions of the office of Lieutenant Governor do not directly serve to the advantage, benefit and utility of the Legislature.

The State also contends the resolutions imposed new duties upon the Lieutenant Governor in violation of Section 67 and Amendment 92 of the Constitution, which require such an increase in duties to be accomplished by law. We find no merit in this contention, as the resolutions merely recognized the increased responsibilities and concomitant increased expenses of the Lieutenant Governor as the reason for increasing his expense allowance. As for the residence in Montgomery and full time office in the state capítol, these were not additional duties of office imposed upon Beasley by the resolutions, but rather conditions for payment of the expense allowance. As S. R. 112 states:

“This monthly expense allowance shall be paid for only as long as the Lieutenant Governor maintains a residence in Montgomery and maintains a full time office in the State Capitol.” (Emphasis added.)

A violation of Code 1975, § 29-4-2, is also contended by the State to have resulted. This statute provides:

“The number of subordinate officers and employees of the legislature, as provided in this chapter, and their respective salaries or rates of compensation or maximum permissible rates of compensation as are fixed by law upon the effective date of this Code, shall not be increased or changed, except by legislative enactment as required by the Constitution and laws of Alabama. Neither house shall have the power or authority by resolution, except as stated in this chapter, to add to the number or compensation of such officers or employees.”

H. J. R. 223, in addition to providing for additional expense monies for the presiding officer of each house, attempted to add three subordinate employees to ¡the staff of the Legislature. This conflict with Code 1975, § 29-4—2, was apparently realized at a later time by the Legislature, which then specifically authorized the addition of these staff employees by law; nevertheless, the State contends that if any portion of the resolution is invalid, the entire resolution is incurably infected and must be declared invalid. However, the authority cited by the State for this proposition, City of Mobile v. Salter, 287 Ala. 660, 255 So.2d 5 (1971), made it clear that application of this rule turns on the relationship of the offensive portions of an act to the remaining passages. Quoting from Allen v. Walker County, 281 Ala. 156, 199 So.2d 854 (1967), this court reasoned:

“. .. If the act ... deleted of the invalid part is competent to stand without the invalid part, and leaves an enactment complete within itself, sensible, and capable of being executed, it will stand, unless the two parts—the valid and invalid—are so inseparable as to raise the presumption that the Legislature would not have enacted the one without the other....” (Emphasis added in City of Mobile v. Salter.)

We consider these principles of construction applicable to a resolution contested as invalid on the basis that one part thereof conflicts with a statute. Furthermore, we think the provisions authorizing expense money for the presiding officers of each of the two houses of the Legislature are in no way dependent on, or inseparably linked with, those provisions for addition of legislative staff employees which conflict with Code 1975, § 29-4-2. Consequently, we find that those portions of H. J. R. 223 which operate to provide expense monies for the Lieutenant Governor can stand alone, without contravening § 29-4-2.

The final matter which we consider is whether this suit is barred by Article 1, Section 14, of the Alabama Constitution. This question is actually the threshold issue in this case, but because its resolution depends on our conclusions regarding other issues presented, we have reserved consideration of Section 14 until last.

Section 14 prohibits the State from being made a defendant in any court of this state and neither the State nor any individual can consent to a suit against the State. Aland v. Graham, 287 Ala. 226, 250 So.2d 677 (1971). The application of Section 14 to suits against officers of the State was treated in Ex parte Carter, 395 So.2d 65 (Ala.1980), as follows:

“... In determining whether an action against a state officer is barred by § 14, the Court considers the nature of the suit or the relief demanded, not the character of the office of the person against whom the suit is brought. Wallace v. Board of Education of Montgomery County, 280 Ala. 635, 197 So.2d 428 (1967). This Court has held that § 14 prohibits suit against State officers and agents in their official capacity or individually when a result favorable to the plaintiff would directly affect a contract or property right of the State. Southall v. Stricos Corp., 275 Ala. 156, 153 So.2d 234 (1963).
“There are four general categories of actions which in Aland v. Graham, 287 Ala. 226, 250 So.2d 677 (1971), we stated do not • come within the prohibition of § 14: (1) actions brought to compel State officials to perform their legal duties; (2) actions brought to enjoin State officials from enforcing an unconstitutional law; (3) actions to compel State officials to perform ministerial acts; and (4) actions brought under the Declaratory Judgments Act, Tit. 7, § 156, et seq., seeking construction of a statute and its application in a given situation. 287 Ala. at 229-230, 250 So.2d 677. Other actions which are not prohibited by § 14 are: (5) valid inverse condemnation actions brought against State officials in their representative capacity; and (6) actions for injunction or damages brought against State officials in their representative capacity and individually where it was alleged that they had acted fraudulently, in bad faith, beyond their authority or in a mistaken interpretation of law. Wallace v. Board of Education of Montgomery County, supra, 280 Ala. at 639, 197 So.2d 428; Unzicker v. State, 346 So.2d 931, 933 (Ala.1977); Engelhardt v. Jenkins, 273 Ala. 352, 141 So.2d 193 (1962).”

We are of the opinion that this action is in the nature of both an action to compel State officers to perform their legal duties and an action to enjoin State officers who have acted under a mistaken interpretation of the law.

As previously noted, defendants, in the exercise of their respective functions, caused cessation of payment to Beasley after receiving an advisory opinion from the Attorney General that the resolutions authorizing the expense allowance for the Lieutenant Governor were unconstitutional. That advisory opinion was based upon Section 67 of the Constitution and Code 1940, Title 32, Section 28 (the latter being the precursor provision of Code 1975, § 29-4-2), as well as upon Hall v. Blan, 227 Ala. 64, 148 So. 601 (1933). We have already determined that these constitutional and statutory provisions do not invalidate the provisions of H.J.R. 223 and S.R. 112 contested in this suit. Moreover, we note the holding of Hall v. Blan was expressly overruled in Hart v. deGraffenried, supra, on which authority today’s opinion primarily rests.

We therefore conclude the Attorney General was acting under a mistaken interpretation of the law in advising nonpayment of expense monies authorized by H.J.R. 223 and S.R. 112. We further hold that defendants in refusing to make these payments to Beasley failed to perform their legal duties. It follows that this is not a suit barred by Article 1, Section 14, of the Alabama Constitution.

Having determined that H.J.R. 223 and S.R. 112 do not offend any of the constitutional and statutory provisions against which the State challenges their validity, and having further found ample evidence to support the trial court’s findings of fact, the judgment below is due to be and is hereby affirmed in all respects.

AFFIRMED.

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


author: SHORES, Justice.

text:
    NATIONAL SECURITY FIRE AND CASUALTY COMPANY, INC., a corporation, and William Feazell v. James VINTSON.
    80-571.
    Supreme Court of Alabama.
    April 9, 1982.
    As Corrected on Denial of Rehearing May 21, 1982.
    Jerry B. Oglesby, Anniston, for appellants.
    Betty C. Love of Love, Love, Lawrence & Wood, Talladega, Ronald L. Allen of Merrill, Merrill, Mathews & Allen, Anniston, for appellee.
   On Application for Rehearing

SHORES, Justice.

The application for rehearing is overruled.

The opinion issued in this ease on April 9, 1982, is corrected and revised so that the opinion now reads as follows:

National Security Fire and Casualty Company, Inc., (NSFC) and William Feazell appealed from a judgment entered on a jury verdict in favor of the plaintiff James Vintson involving coverage under a fire insurance policy.

Vintson had contacted NSFC about obtaining life insurance and was visited by Feazell, a debit agent for NSFC, on June 10, 1980. Feazell returned to the plaintiff’s residence on June 18, 1980, in response to the plaintiff’s interest in purchasing fire insurance on his mobile home. Feazell filled out an application for the fire insurance during that visit, and Vintson paid the initial premium.

There is a conflict in the testimony regarding the conversation between Vintson and Feazell on this date. Vintson testified that Feazell assured him that he had fire insurance coverage from that point in time and that, as long as he had his premium receipt, it was as good as his policy. The testimony of Vintson’s son and daughter, who were also present during the solicitation of the application, attribute these same statements to Feazell. Feazell denies that any such representations were made. At the trial, NSFC’s vice president testified that no policy of insurance was binding until the application was favorably passed on by the company, the policy was issued, and delivery was made to the insured.

On June 22, 1980, Vintson’s mobile home was extensively damaged by fire. Vintson contacted NSFC’s Anniston office superintendent, Mary Morton, and advised her of the loss of the mobile home. She informed him that she doubted that NSFC would provide coverage because the application had only been received by NSFC, and no policy had been issued. She then called NSFC’s home office and advised them of Vintson’s claim. NSFC denied coverage under the policy and refunded the premium.

An NSFC employee, Jimmie Smith, testified about a message from another employee, Pat Henderson, concerning Morton’s call to NSFC. The message indicated that Morton requested a refund of the premium. Morton denied making such a request. Smith testified that she refunded the premium because the application for insurance had not been fully processed at the time of the fire, although all that remained to be done was to assign a permanent number, issue a policy, and then verify the information contained therein.

Vintson filed suit in the circuit court of Calhoun County, claiming damages for breach of contract in one count, and alleging fraud and misrepresentation in another. The jury returned a verdict in his favor on both counts. The verdict was delineated into two parts, one for breach of contract in the sum of $20,000, and one for fraud in the sum of $15,000. Vintson had testified at trial that he only had coverage under the policy in the amount of $7,000, and the insurance application form verifies that fact. When their motion for a new trial was denied, the defendants appealed.

There are two issues crucial to the disposition of this appeal. They are: (1) Should Vintson be allowed to recover for both breach of contract and fraud; and (2) is the amount of damages excessive as a matter of law?

There are a number of situations in our law whereby a plaintiff may derive benefits from a contract and yet still recover for tortious action concerning the contract, such as misrepresentation and deceit. There is a line of cases wherein the facts show misrepresentations concerning the goods that the buyer purchases; e.g., a buyer purchases a horse that the seller maintains has two good eyes, and the buyer later discovers that one of the eyes is blind. In this type of situation, the buyer need not forego the benefit received under the contract in order to sue for the misrepresentations. See, Mutual Savings Life Insurance Company v. Osborne, 245 Ala. 15, 15 So.2d 713 (1943); Moore v. Oneonta Motor Company, 223 Ala. 510, 137 So. 301 (1931); Fairbanks, Morse and Company v. Dees, 220 Ala. 41, 126 So. 624 (1929).

Analogous are the cases involving an allegation of bad faith failure to pay insurance benefits wherein a factual situation may reveal an insurance agent’s misrepresentations to a buyer that an insurance policy will cover a buyer regardless of a particular medical history that usually would preclude coverage. If the insurance company later refuses to pay, that case may lend itself to allow the buyer to recover not only under the contract itself, but also for the tortious bad faith refusal to pay under the policy. Chavers v. National Security Fire and Casualty Company, 405 So.2d 1 (Ala.1981).

In the above factual situations where benefit is obtained not only for tortious conduct but also under the contract itself, the existence of the contract was not disputed. Such is not the case here.

We hold that in the narrow situation, such as the one in this ease, where the plaintiff claims misrepresentation in the inception of the contract, i.e., where the agent misrepresents the moment in time that the policy will take effect, the plaintiff has the right to present his case to the jury under either a breach of contract theory or the tort of misrepresentation or both, because the same facts could support a finding that the contract did exist, even though the agent misrepresented the time of its inception.

The plaintiff may then elect to submit either theory, or both, to the factfinder, ARCP 8(a), with the proper instructions by the court to the jury that it must determine whether one, or both, of these theories are supported by the evidence, if at all. If the jury returns a verdict for the plaintiff, it may only award damages under one of the theories, not both. However, the choice rests with the jury. See, USF&G v. McKinnon, 356 So.2d 600 (Ala.1978).

Allowing the factfinder to elect the theory under which it may award damages, even if the facts support the existence of a contract, will preclude a situation where a defendant insurer’s agent can misrepresent the fact of coverage, and yet be assured that the plaintiff can only recover contract damages.

We point out that this decision in no way conflicts with our holding in Gulf Oil Corporation v. Spriggs Enterprises, Inc., 388 So.2d 518 (Ala.1980). In that case, we said:

“Spriggs is not entitled to have the Prince agreement specifically enforced and, at the same time, recover damages for fraud. Although the trial court seems to have ordered specific performance in a modified form, this too is inconsistent with the jury verdicts either based on tort or on breach of contract.
“We do not mean to suggest to Spriggs which of the remedies available it must elect. We hold only that it cannot have both the relief granted by the trial court and the jury verdict as well.
“On retrial, the plaintiff must make an election at the latest before the case goes to the jury as to which of its inconsistent theories it elects to proceed on.”

388 So.2d at 521. Gulf, supra, involved claims for both legal and equitable relief in a situation where there was no factual question as to the existence of a contract. In the ease before us, the plaintiffs’ two theories are both actions at law rather than actions at law and equity. Also, there is a question of fact as to whether a contract exists. Therefore, it is not improper in this case to submit both to the jury, under proper instructions that it can return a verdict consistent with only one of the theories, if applicable, but not both.

This case turns on whether or not the jury believes that Feazell, as agent for NSFC, represented to Vintson that he was covered from the time of the payment of the premium and whether Vintson relied on such representations. If the jury believes those facts, then NSFC is estopped to deny that Vintson was covered under the policy. Feazell could also be guilty of misrepresentation. If the jury so finds, it could return a verdict based either on the contract or on the tort. If the jury does not believe that Feazell made the representations, then that precludes a finding of either a breach of contract or fraud.

Vintson argues that Aspinwall v. Gowens, 405 So.2d 134 (Ala.1981), permits both verdicts to stand. There, the defendant’s agent sold the plaintiff a medical insurance policy which was eventually voided by the defendant, who claimed the policy would not have been issued if the plaintiff’s diabetic condition had been known by the company.

In the trial, the plaintiff asserted that, although she told the defendant’s agent that she had diabetes, kidney stones, and high blood pressure, he said that he would “fix it where it would definitely pay.” This Court affirmed the jury verdict for both fraud and breach of contract in Aspinwall, supra. However, Aspinwall is not controlling in this case because the Court in Aspin-wall submitted not only claims for breach of contract and fraud to the jury, but also a claim for bad faith refusal to pay. A careful reading of the record in the case before us reveals that, although Vintson in his complaint included claims for breach of contract, fraud, and bad faith refusal to pay, the trial court, through the manner in which it explained the court-prepared verdict forms to the jury, actually submitted the case without objection to the jury only on the breach of contract and fraud theories. A verdict under the claim of bad faith must necessarily find liability in contract for benefits currently due because the tort of bad faith refusal to pay a valid insurance claim is so defined that, unless the plaintiff is entitled to recover on the contract, a bad faith claim cannot be maintained. However, that is not the case here.

We hold that the verdict of $20,000 on the contract claim is excessive as a matter of law. Vintson himself testified that the insurance coverage was only for $7,000. The court charged the jury as to damages for mental anguish due to breach of contract, and Vintson asserts that the remaining $13,000 of the award was proper on that basis. We cannot agree.

The general rule in this state is that mental anguish is not a recoverable element of damages arising from breach of contract. B & M Homes, Inc. v. Hogan, 376 So.2d 667 (Ala.1979); Sanford v. Western Life Insurance Company, 368 So.2d 260 (Ala.1979); Stead v. Blue Cross-Blue Shield of Alabama, 346 So.2d 1140 (Ala.1977). There are exceptions to this rule, which are ably set out by Justice Embry in B & M Homes, Inc. v. Hogan, supra, but the facts of this case do not fall within them. Consequently, the verdict on the contract claim is excessive in the amount of $13,000.

The judgment appealed from is reversed, and the cause is remanded for a new trial.

REVERSED AND REMANDED.

APPLICATION FOR REHEARING OVERRULED. OPINION CORRECTED.

TORBERT, C. J., and MADDOX, FAULKNER, JONES, EMBRY, BEATTY and ADAMS, JJ., concur.


text:
    Bennie D. HERRING v. Hubert M. PRESTWOOD, Jr., et al. LUDLUM REAL ESTATE, INC., a corporation v. Hubert M. PRESTWOOD, et al. Hubert M. PRESTWOOD, Jr., et al. v. Bennie D. HERRING.
    79-782, 79-799, and 79-800.
    Supreme Court of Alabama.
    April 23, 1982.
    As Modified on Denial of Rehearing May 21, 1982.

      James D. Farmer of Farmer & Farmer, Dothan, and John B. Crawley, Troy, for appellants.
    Alvin T. Prestwood and Claude P. Rosser, Jr., Montgomery, for appellees.
   On Application for Rehearing

SHORES, Justice.

The application for rehearing is overruled.

The opinion issued in this case on April 23,1982, is modified so that the opinion now reads as follows:

This is a set of appeals and a cross-appeal following:

(1) Jury verdicts for Bennie Herring against Hubert Prestwood in the sum of $12,500 for the breach of a contract to sell 320 acres of farm land and in the sum of $12,500 for Prestwood’s fraud in suppressing the fact that he had decided not to sell Herring the land after he had signed an option offer.

(2) A judicial denial of Herring’s request for specific performance of the contract;

(3) A jury verdict for Ludlum Real Estate against Prestwood on the claim that Prestwood had fraudulently induced Lud-lum to void a listing agreement; and

(4)A jury verdict in favor of Prestwood against Ludlum on Ludlum’s contract claim for commissions allegedly due under the voided listing agreement.

On December 22,1977, Prestwood and his wife entered into a listing agreement with Ludlum to sell 1,305 acres of land, including the 320 acres involved in this controversy. The agent for Ludlum was Clifford Harden, who testified that he told Prestwood when the listing agreement was executed that Prestwood could take any part of the land out of the contract at any time he elected not to sell it.

In accordance with the agreement and at Prestwood’s request, Harden voided that agreement on January 19, 1978.

On January 14, 1978, Bennie D. Herring and Hubert M. Prestwood, Jr., met and discussed a possible sale by Prestwood to Herring of the 320 acres of farm land. This discussion led to the execution of an option that day by Prestwood and his wife to sell the land to Herring. The terms of the written option offered to sell the property to Herring at a purchase price of $208,000 and provided for a “down payment” of $96,-000, with the balance of $112,000 to be payable in equal annual installments for a period of from ten to twenty years at 8% interest, which could not be prepaid in less than ten years.

There was also discussion between the parties concerning a peanut allotment, although it was not included in the written option. There was evidence presented, albeit conflicting, that during the next several months there were several discussions between the parties concerning modifications on the actual financing. Herring also made personal loans to Prestwood during that period.

Herring’s attorney notified Prestwood by mail of the acceptance of the option offer and proposed to pay Prestwood $96,000, to be borrowed from the Farmers and Merchants Bank of Ariton and secured by a first mortgage to the bank. He also proposed to give Prestwood a second mortgage in the amount of $112,000, payable in equal annual installments over twenty years at an interest rate of 8%. There was evidence, however, that the actual loan from the bank would have had to be refinanced after three months, thereby causing Prestwood’s $112,000 second mortgage to be subordinate to the refinanced, long-term permanent first mortgage. There was also testimony that Prestwood had already told Herring prior to the time the letter was written that he was not going to sell him the land.

Herring subsequently brought suit against Hubert and Mary Prestwood, alleging fraud concerning both the inception of the option offer and the suppression of the intention not to sell once the option contract was made. The complaint also claimed damages for breach of contract. Ludlum Real Estate intervened in the suit, seeking damages against Hubert and Mary Prestwood for alleged fraud in inducing Ludlum to void the listing agreement, and breach of contract for failing to pay a commission once the option was exercised by Herring.

At the conclusion of Herring’s case, both fraud counts were dismissed as to Mary Prestwood and, after all the evidence was presented, the fraud in the inception count was also dismissed as to Hubert Prestwood. Therefore, Herring’s case was submitted to the jury upon first a breach of contract claim against both of the Prestwoods and also a claim that Hubert Prestwood had fraudulently suppressed the fact that he had decided not to sell the land after signing the option offer.

In Ludlum’s intervention suit, the fraud count was dismissed as to Mary Prestwood, and the case went to the jury upon two theories: (1) Under contract against both Hubert and Mary Prestwood for commissions allegedly due under the voided listing agreement; and (2) the theory that Hubert Prestwood had fraudulently induced Lud-lum to void the listing agreement.

After the return of the jury verdicts, the trial judge denied Herring’s request for specific performance of the contract.

The trial court also denied the following post-trial motions:

(1) Ludlum’s motions (a) for judgment notwithstanding the verdict and (b) to alter or amend judgment;

(2) Prestwood’s motion to alter or amend judgments; and

(3) Herring’s motions (a) to alter or amend judgment or, in the alternative, for additur, and (b) for judgment notwithstanding the verdict or, in the alternative, for new trial.

All parties except Mary Prestwood appeal.

The issues raised by Herring are as follows:

(1) Whether the court erred in refusing to grant specific performance of the contract;

(2) Whether the jury verdict in favor of Herring on the contract was against the weight of the evidence concerning Herring’s damages and, therefore, warranted an additur;

(3) Whether the trial court erred in refusing to give Herring’s requested charge number 39, which stated: “Land is unique and its value to a purchaser, particularly one who purchases for his own use, cannot be assessed in monetary terms alone.”

Prestwood raises the following issues:

(1) Whether the trial court erred in failing to grant Prestwood’s motion for a directed verdict on Herring’s breach of contract claim based on the argument that there was no unequivocal acceptance by Herring of the Prestwoods’ offer;

(2) Whether the trial court erred in submitting Herring’s case to the jury based on both the theories of breach of contract and of fraud.

Ludlum raises the following issue: Whether the court erred in refusing to grant Ludlum’s motion for JNOV or, in the alternative, a new trial, due to alleged inconsistent verdicts rendered by the jury on the two plaintiffs’ contract claims.

After the jury returned a verdict for Herring for damages resulting from breach of the contract, the court issued a ruling on the request for specific performance of the contract. The ruling, in pertinent part, states:

“After hearing the evidence offered before the jury, the court is not reasonably satisfied as to the terms of the agreement between Herring and the Prestwoods. The Supreme Court of Alabama in Dendy v. Anchor Construction Co., Inc., 294 Ala. 120, 318 So.2d 164, stated the controlling principles of law. In substance, it was stated that to authorize the specific enforcement of an agreement to sell land, all terms of the agreement must have been agreed on, leaving nothing for negotiation. The court is of the opinion the terms of the Herring-Prestwood agreement were uncertain and were subject to negotiation.
“Bennie Herring has exercised his remedies at law and has obtained a jury verdict awarding him compensation for breach of contract. He is not entitled to a judgment of specific performance.”

Herring argues that the very fact that the jury found in favor of him on the breach of contract claim establishes the certainty of the contract terms and, therefore, since the value of the land to the purchaser cannot be assessed in monetary terms alone, he should be entitled to specific performance as well. We cannot agree.

A party is generally not entitled to have a contract specifically enforced and, at the same time, recover damages for breach of the same contract. Gulf Oil Corporation v. Spriggs Enterprises, Inc., 388 So.2d 518 (Ala.1980). See, also, Moore v. Lovelace, 413 So.2d 1100 (Ala.1982). Under the facts of this case, the trial court did not commit reversible error in refusing specific performance.

Herring next argues that there is no explanation for the jury verdict of $12,500 for the breach of contract other than that the jury must have disregarded some of the plaintiff’s evidence or substituted its own judgment because the uncontradicted evidence establishes that his damages were in the amount of $37,738.

The applicable standard of review here is found in Grayson v. Alexander, 347 So.2d 108 (Ala.Civ.App.1977), wherein Judge Bradley stated:

“Where damages awarded by a jury are challenged on grounds of inadequacy, an appellate court will reverse only where, after a consideration of all reasonable presumptions in favor of its correctness, the preponderance of the evidence against the verdict is so decided as to clearly convince the court that it is wrong and unjust. This standard, first enunciated in Cobb v. Malone & Collins, 92 Ala. 630, 9 So. 738 (1890), has been followed in a long line of decisions. This presumption in favor of the correctness of the jury verdict is strengthened when the trial court refuses to grant a new trial. Cf. Prescott v. Martin, Ala., 331 So.2d 240 (1976); Alabama Power Co. v. Mosley, 294 Ala. 394, 318 So.2d 260 (1975).”

347 So.2d at 110.

The record reveals that Herring’s estimate of his losses was based upon many factors, e.g., the weather conditions, the price of labor and fuel, the cost of harvesting the peanuts and the cost of drying the peanuts, the average grade and price, and the estimate of yield based upon a five-year average for the neighboring farms. Based upon this information, he testified that his damage from lost profits from the 1978 and 1979 crop years was $37,738.

Further search of the record, however, turns up additional evidence which the jury could have considered as factors in determining the amount of damages. For instance, the interest payments on the loan would also have had a direct effect on Herring’s profit margin.

In addition, the trial court correctly charged the jury that Herring was required to mitigate his damages and that he could recover only such damages as would have been sustained had such care been exercised. Dickerson v. Finley, 158 Ala. 149, 48 So. 548 (1909). There is testimony, if believed by the jury, that a basic obstacle to the consummation of the sale was a first mortgage being placed ahead of Prest-wood’s purchase-money mortgage, record shows that, after the parties had been at loggerheads on this issue, Herring received a commitment for a loan whereby he could have purchased the property without causing Prestwood’s mortgage to be subordinated to another mortgage. There is also testimony which, if believed by the jury, revealed that Herring did not try to pursue this course to break the deadlock, but rather continued to press for acceptance by Prestwood of the first mortgage arrangement. The jury was free to consider this evidence in their determination of the amount of damages to award. We are not clearly convinced that the verdict is wrong and unjust; therefore, we find no basis for an additur. The

We also hold that there was no error in the court’s refusal to give Herring’s requested jury charge number 39 because the substance of that charge was adequately covered by the court’s other instructions on both compensatory and punitive damages as well as fraud. See, Ford Motor Company v. Rodgers, 337 So.2d 736 (Ala.1976).

Prestwood first argues that the evidence did not show an offer and acceptance in this case sufficient for the jury to find that a contract ever existed between the Prest-woods and Herring. He asserts that, at best, the parties were looking to the future to agree upon a contract. In support, he cites Elmore, Quillian & Company v. Parish Bros., 170 Ala. 499, 54 So. 203, 204 (1911), which states:

“[A]n agreement to enter into an agreement upon terms to be afterwards settled between the parties, is a contradiction in terms, and amounts to nothing.”

We also note that, in Alabama, the acceptance of an option to purchase realty, in order to be effectual, must be identical with the offer and unconditional. Asbury v. Cochran, 243 Ala. 281, 9 So.2d 887 (1942).

The record reveals a great deal of conflicting testimony as to what terms the contract contained and whether there was ever a meeting of the minds sufficient to constitute an offer and acceptance.

It also contains, however, sufficient testimony which, if believed by the jury, evidenced that a contract was formed between the parties. That evidence showed that the agreement consisted of a purchase price of $208,000 with a down payment of $96,000. The rate of interest for the repayment period of not less than ten years nor more than twenty years was 8%, and payment was to be made in equal installments on December 1 of each year. All of these aforementioned terms were contained in the written option contract. There was additional testimony which, depending on what the jury believed, showed that both parties either (a) had agreed to allow the buyer to put a first mortgage on the land and that the seller would take the second mortgage, or (b) had agreed that Prest-wood’s mortgage would not be subordinate to any other mortgage. A written contract can be modified by the subsequent oral agreements of the parties. Hibbett Sporting Goods, Inc. v. Biernbaum, 375 So.2d 431 (Ala.1979). Therefore, we hold that there was sufficient evidence present for the fact-finder to determine that a contract was formed.

Prestwood next argues that the jury verdicts in favor of Herring for damages for breach of contract and fraud are inconsistent and compel reversal.

In support, Prestwood cites United States Fidelity and Guaranty Company v. McKinnon, 356 So.2d 600, 607 (Ala.1978), wherein this Court said:

“May damages be recovered for breach of an existing contract and at the same time recover damages for fraud for representing there was a contract when, in fact, there was none? We think not. The theories of recovery are factually inconsistent, therefore, .the general verdict of the jury in this case is self contradictory. It had the effect of finding both that there was a contract and that there was not.”

We hold that, while McKinnon, supra, is a correct statement of the law, it only applies to the narrow situation when fraud in the inception of a contract is alleged, National Security Fire and Casualty Company v. Vintson, 414 So.2d 49 (Ala.1982), and, therefore, does not apply to this situation because here Herring’s complaint alleged fraudulent suppression of the fact that Prestwood had decided not to sell the land after signing the option offer. In this situation, the plaintiff need not forego seeking damages for breach of contract in order to recover for the fraud. National Security Fire and Casualty Company v. Vintson, supra.

In its appeal, Ludlum argues that it is entitled to a new trial because the verdict in favor of Prestwood on Ludlum’s claim for breach of contract is inconsistent in light of the verdicts returned, first of all, in favor of Ludlum on the claim that Prest-wood fraudulently induced Ludlum to void the listing agreement and also in favor of Herring on his breach of contract claim.

Ludlum asserts that, in order for the jury to have rendered a verdict in favor of Herring for breach of contract, it must have determined that there was a contract for the sale of land and that it was breached by Prestwood, which means that the option must have been exercised by Herring. Also, the expressed terms of the listing agreement provided in part:

“I/We agree to pay you a cash commission of 814% of the gross amount of any sale, agreement to sell, or exchange, which may be negotiated during the existence of this contract. The term ‘sale’ shall be deemed to include any exchange or trade to which I/we consent. In the event of an exchange or trade, you are permitted to represent and receive compensation from both parties.”

Ludlum argues that, since the listing agreement was in effect at the time the option was executed by Prestwood, then Ludlum was entitled to recover the commission also. We do not agree.

The jury agreed with Ludlum that it was fraudulently induced to void a contract which would have provided for the payment of a commission upon a “sale, agreement to sell, or exchange, which may be negotiated during the existence of this contract.” That listing agreement was voided on January 19, 1978; therefore, the only way that Ludlum would also be able to recover under the breach of contract claim would be if Prestwood had entered into a “sale, agreement to sell, or exchange” before January 19, 1978.

The record reveals that, as of January 19, 1978, Prestwood and Herring had only entered into an option agreement to sell the land.

“An option is ‘neither a sale nor an agreement to sell. It is simply a contract by which the owner of property agrees with another, that he shall have the right to buy the property at a fixed price within a time certain.’ ”

Cowin v. Salmon, 244 Ala. 285, 13 So.2d 190 (1943).

Because there was no sale or agreement to sell during the term of the listing contract between the Prestwoods and Ludlum, the Prestwoods did not become obligated to pay any commission to Ludlum. Therefore, Ludlum has no claim for breach of contract.

The judgments of the trial court as to all parties are affirmed.

AFFIRMED.

APPLICATION FOR REHEARING OVERRULED. OPINION MODIFIED.

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


author: BEATTY, Justice.

text:
    Charles S. CONLEY v. CITY OF MONTGOMERY, Alabama, a Municipal Corporation.
    80-575.
    Supreme Court of Alabama.
    April 23, 1982.
    Rehearing Denied May 21, 1982.

      Charles S. Conley, Montgomery, pro se.
    Philip H. Butler of Robison & Belser, Montgomery, for appellee.
   BEATTY, Justice.

The City of Montgomery, a municipal corporation, filed numerous actions against Charles S. Conley, owner of nineteen duplex housing units, seeking to enforce its uniform minimum housing code and to have each of the duplex units enjoined as a public nuisance. The actions, originally filed separately but consolidated for trial, were brought pursuant to Code of 1975, §§ 6-5-122, 11-47-117, -118, which provide that any municipality of this state may commence an action seeking to abate or enjoin any public nuisance injurious to the health, morals, comfort or welfare of the community or any portion thereof. After receiving evidence ore tenus, the trial court found that each of the units is a public nuisance and ordered defendant Conley to remove the nuisances by bringing the properties into compliance with the minimum housing code requirements within a reasonable timetable established by the court or suffer the removal or razing of the structures by plaintiff. All costs, including but not limited to abstract fees, attorneys’ fees, court costs and the cost of removing the nuisances if they are removed by plaintiff, were charged against defendant. Defendant appeals. We affirm.

Defendant contends that the order of the trial court was contrary to the great weight of the evidence. The order was based upon the following findings made by the trial court:

“The Court finds that each of the subject properties remain, in varying degrees, public nuisances and further finds that the City of Montgomery, Alabama, a Municipal Corporation, has legal authority to enjoin and abate such public nuisances.
“The Court finds from the evidence that the Plaintiff has pursued the abatement of the public nuisance condition of the subject properties for several years and more specifically has attempted to require the present property owner, Defendant Charles S. Conley, to remove or correct the public nuisance condition existing on each of the subject properties since 1978.
“The Court finds from the evidence that the Plaintiff has made reasonable requests of the property owner, Conley, to remove the public nuisance conditions existing on the subject properties and has established reasonable timetables for the removal or correction of the public nuisance conditions existing thereon. The Court further finds, however, that the Defendant property owner, Conley, has failed, after notice, to comply with these timetables to bring the subject properties above public nuisance standards.
“The Court finds from the evidence that the Plaintiff has not discriminated against either the subject properties or the owner of the subject properties in its application and enforcement of Sections 6-5-122 and 11-47-117 thru -118, Code of Alabama, 1975. While the evidence in these subject cases clearly demonstrates lack of discrimination by the Plaintiff, the Court, being familiar with numerous other proceedings, brought by the Plaintiff to abate public nuisances, takes judicial knowledge of the standard procedures employed by the Plaintiff and finds that these procedures were employed by the Plaintiff with regard to the subject properties and as concerns the subject property owner.”

When, as here, the trial court has heard testimony ore terms, a presumption exists as to the correctness of its findings of fact. Rush v. Atomic Electric Co., Ala., 384 So.2d 1067 (1980). We find that the trial court’s judgment was amply supported by the evidence. The Director of the Housing Code Enforcement Division of the City of Montgomery, who conducted frequent inspections of the subject properties, testified that, in his opinion, the duplexes were “almost unfit for human habitation.” The record also reveals that complaints were received by the city from tenants and neighbors, as well as from a member of the city council, about the condition of the duplexes.

Defendant claims that the order of the trial court reveals bias and prejudice against him by imposing an unreasonable timetable for the making of repairs as a condition to avoiding the destruction of his property. We respectfully disagree. The record discloses that defendant was aware, at the time he purchased the duplex units, that many of them did not comply with the minimum housing code requirements. Furthermore, defendant did not offer alternative time schedules for making the repairs. We held in National Southern Products Corp. v. City of Tuscaloosa, 246 Ala. 316, 20 So.2d 329 (1944), that the burden rests upon the property owner to bring forward matters showing that abatement of the public nuisance could be accomplished by less drastic means than requested by the municipality. Defendant here did not meet that burden.

Defendant raises other issues which he claims present constitutional questions. The record fails to disclose that such questions were presented to the court below; therefore, we cannot address them. Cooper v. Green, Ala., 359 So.2d 377 (1978). The judgment must be, and is, affirmed.

AFFIRMED.

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


text:
    E. A. GULLEDGE and Iowa Meat Distributing Company, Inc. v. FROSTY LAND FOODS INTERNATIONAL, INC.
    80-642.
    Supreme Court of Alabama.
    April 23, 1982.
    Rehearing Denied May 21, 1982.

      Thomas R. Christian of Turner, Wilson, Christian & Dorrough, Montgomery, for appellant.
    Sterling G. Culpepper, Jr., and William P. Cobb, II, for Smith, Bowman, Thagard, Crook & Culpepper, Montgomery, for appel-lees.
   SHORES, Justice.

Frosty Land Foods International, Inc. (hereinafter Frosty Land) and Lorenz Transport and Ship Lines, Inc. (Lorenz), a wholly-owned subsidiary of Frosty Land, filed suit against E. A. Gulledge and Iowa Meat Distributing Company, Inc. (Iowa), alleging that Gulledge, while an officer, employee and director of both Frosty Land and Lorenz, violated his fiduciary duty to the plaintiff corporations by engaging in a competing business to the detriment of those plaintiff corporations. The plaintiff corporations further alleged that Gulledge used their men and equipment to further his business and that he usurped corporate opportunities of the plaintiff corporations to his own use, converted Frosty Land’s equipment and property and was also guilty of gross negligence, indifference, or bad faith in failing to perform his duties as the chief executive officer in a diligent manner.

The defendants denied that Gulledge, acting either through Iowa or by himself, violated any fiduciary or confidential duty to the plaintiffs. By stipulation, all parties agreed before trial that they would adjudicate the question of any monies owed by the parties to each other.

After a hearing ore tenus, the trial court entered judgment in favor of Frosty Land on all counts.

Defendants filed a motion for new trial or to alter, amend or set aside the judgment. The trial court entered an amended order correcting the amount of damages awarded but denied a new trial. Defendants appeal. We affirm.

The plaintiffs, Frosty Land and Lorenz, were corporations primarily involved in the business of processing and distributing beef, respectively.

From 1972, defendant E. A. Gulledge occupied a number of executive positions with the plaintiff corporations. He was director of sales and distribution/transportation for Frosty Land from November, 1976 through mid-April, 1977. He then became chief operating officer, president, and a corporate director of Lorenz, a subsidiary formed at that time for the sole purpose of distributing/transporting Frosty Land meat.

In May, 1977, while employed in the above capacities with Lorenz and as vice president and corporate director of Frosty Land, defendant Gulledge first approached an officer of First Alabama Bank of Montgomery with respect to formation of Iowa. The same month, Gulledge, still so employed by the plaintiffs, solicited an order for the sale of beef on his own behalf as Iowa Meat Distributing Company. The order was solicited from Clyde Porter, the meat buyer for “Bi Lo,” a grocery chain of South Carolina, which was the largest principal customer of Frosty Land, purchasing approximately thirty-seven percent of Frosty Land’s meat. Gulledge approached a Lorenz driver about making this haul, told the driver he was going into business for himself, asked the driver not to tell anyone about the trip, and ultimately used a Lorenz driver, tractor, and trailer to deliver his meats. Gulledge told the driver that he “could come to work for him” and asked him to make a similar delivery the following week. As Gulledge put it, he “had made a decision to leave the corporation and was looking out for [his] own self” as of May, 1977. Also in 1977, Gulledge used Lorenz’s equipment to haul two loads of building supplies to the home construction site of Clyde Porter, the “Bi Lo” buyer, which trips were not authorized by plaintiffs.

In September, 1977, Gulledge approached another Lorenz driver about working for him and asked the driver to make a haul for his company to “Bi Lo.” The driver made the run for Gulledge on his instructions in a Lorenz tractor and later made a trip to Atlanta using a Lorenz tractor to pick up a trailer for Gulledge.

In late September, 1977, Gulledge informed Larry Neuhoff, president of Frosty Land and chairman of the board of Lorenz, that he was leaving his employment. Plaintiff corporations allege that he never told his employer about the use of Lorenz men and equipment to make deliveries for Iowa Meat. Instead, these facts were first learned as the result of an investigation. Gulledge testified that he informed Neu-hoff on that same day.

After leaving Frosty Land/Lorenz, Gul-ledge continued delivering meat to “Bi Lo” as Iowa Meat Distributing Company. Upon leaving, he put Jim Willis, who was employed full time as the dispatcher in charge of equipment and drivers at Lorenz, on the payroll of Iowa Meat. Willis had been aware of Gulledge’s using Lorenz drivers to make hauls for Iowa Meat in May and September. While still employed by Lorenz and after being put on Gulledge’s payroll, Willis, without the knowledge of Lorenz, twice instructed Lorenz employees to use Lorenz’s equipment at Lorenz’s expense to repair Gulledge’s equipment. He dispatched a Lorenz driver on a trip north which resulted in bringing a Gulledge tractor back to Montgomery. He solicited other drivers to make hauls for Iowa while working full time at Lorenz. Gulledge admitted that he and Willis were in direct contact by telephone during this time. Willis remained on Gulledge’s payroll and finally left Lorenz to begin officially working for Iowa in March, 1978.

Gulledge, operating as Iowa Meat, continued delivering meat to “Bi Lo,” increasing the number of loads each month, through the end of 1977. The number of loads shipped by Lorenz to “Bi Lo” began decreasing in October, 1977, after Gulledge left.

Iowa Meat accounts reflected a cash flow income of some $75,794.49 for the period of May through December, 1977. In late December, 1977, E. A. Gulledge incorporated his new business as Iowa Meat Distributing Company, Inc. The corporation listed as an asset some $79,650 in cash beginning its first year in January, 1978.

In early July, 1978, Jane Porter, wife of “Bi Lo” meat buyer, Clyde Porter, and living in South Carolina, was added to the Iowa payroll. Also, early that month, “Bi Lo” further cut back on its beef orders to Frosty Land/Lorenz. Frosty Land/Lorenz had been selling and distributing to some ninety-three “Bi Lo” stores for over three years. By January 16, 1978, that number had dropped to fifty-seven. After five months in 1978, that number had decreased to fifty-five. This drop resulted in a loss of gross revenues of some $38,000 to plaintiffs, as compared to the same period in the preceding year. As of September 30, 1980, ninety to ninety-five percent of Iowa’s business consisted of its “Bi Lo” accounts.

Gulledge used Lorenz men and equipment to ship his goods and repair and pull his tractors at an estimated cost of $7,643 between May and December, 1977.

Between February and September, 1977, Frosty Land/Lorenz drivers submitted and were paid for driving 1,834,860 miles more than they actually drove. The overage resulted in overpayments of some $30,509 to company drivers. Throughout this period, Gulledge was the officer charged with the responsibility for distribution/transportation, first as the officer in charge of sales and distribution with Frosty Land and later as president of Lorenz, the transport company, beginning in April, 1977.

The defendants first argue that the trial court erred to reversal in allowing the plaintiffs’ use of tape recordings of certain telephone conversations between Gulledge and Willis in its examination of Gulledge. Defendants’ assignment of error is based on the proposition that proper predicate or foundation was not laid for the use of the recordings.

Assuming, without agreeing, that the proper predicate or foundation was not laid, this objection is still not well taken, because defendants stipulated prior to trial that all objections were to be waived and that the trial court would only consider evidence which was relevant and admissible. We hold that defendants’ stipulation precludes the matter being considered here.

The defendants next argue that the court erred in failing to grant a new trial because the trial court’s judgment was based on actual findings that were not supported by the evidence.

This case was tried without a jury. Conflicting evidence was taken orally, through exhibits and also by the admission of depositions and statements stipulated to by the parties.

When a trial court makes findings of fact based on evidence presented ore tenus, those findings of fact will not be disturbed on appeal unless clearly erroneous or manifestly unjust, and this rule is especially applicable in cases in which the trial court makes its findings of fact after hearing conflicting evidence; every presumption will be indulged in favor of the court’s findings, and those findings will not be disturbed unless palpably wrong. Leslie v. Pine Crest Homes, Inc., 388 So.2d 178 (Ala.1980).

After careful review of the record, we find that the trial court’s findings of fact and application of law are clearly supported by the evidence, and they will not be disturbed by this Court on appeal.

The judgment is affirmed.

AFFIRMED.

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