text:
    Hugh MARCEAUX, Plaintiff-Appellant, v. TOWN OF LAKE ARTHUR et al., Defendant-Appellee.
    No. 7988.
    Court of Appeal of Louisiana, Third Circuit.
    Dec. 17, 1980.

      Donald R. Jory, Jennings, for plaintiff-appellant.
    F. Jefferson Millican, Jennings, Sharon F. Lyles, Baton Rouge, for defendant-appellee.
    Before FORET, CUTRER and LA-BORDE, JJ.
   LABORDE, Judge.

This is a suit for damages resulting from an alleged unjust enrichment. Plaintiff appeals the district court judgment sustaining the exception of no cause of action and dismissing his suit.

The issue on appeal is: Does plaintiff’s petition state a cause of action for unjust enrichment? We hold that it does.

Plaintiff in this suit is Hugh Marceaux, the twenty year owner and operator of Price’s Fish Market located on the shore of Lake Arthur in Lake Arthur, Louisiana. The two defendants are the Town of Lake Arthur and the Department of Transportation and Development.

Plaintiff alleges that he owned and equipped the building housing his fish market but leased the location from the Town of Lake Arthur. In the mid 1960’s, a project was initiated to develop the existing lakefront in the Town of Lake Arthur. Plaintiff’s business, with its shoreside location, was within this development zone. Plaintiff’s petition further alleges that defendants jointly administered this development project; that defendants, at the project’s beginning and continuously throughout, encouraged plaintiff to remain in business at that location; and that defendants promised plaintiff reimbursement and compensation for the loss of his business and building.

According to the petition, plaintiff relied on the promises of defendants and kept his business at that location even though he could have purchased lakefront property elsewhere at an economically feasible price. At the present time, there is no lakefront property available. As a result of his reliance on defendants’ representations, plaintiff claims he lost his business and suffered damages totaling $60,000.

The Town of Lake Arthur filed a pretrial exception labeled “Peremptory Exception of No Right of Action.” In this exception, the Town alleged:

“The plaintiff’s petition discloses no right or cause of action because under the provisions of Louisiana Revised Statutes 33:762 all contracts involving expenditures of money must be by approval of the Mayor and Board of Aldermen; that petitioner never entered into any contract with the Town of Lake Arthur for any reimbursement for loss of business and same was never acted upon by the Mayor and Board of Aldermen.”

The trial court sustained the exception and dismissed plaintiffs suit after stating, “There is nothing in the record to support a cause of action by this plaintiff.”

The allegations of the exception, the arguments of counsel, and the rationale of the trial judge’s ruling relate to the sufficiency in law of plaintiff’s petition to state a case which legally entitles the petitioner to the redress sought. Thus, even though the Town labeled its exception as one of no right of action, we conclude that it is instead an exception of no cause of action.

We now review plaintiff’s petition to determine whether it states a cause of action. In order to state a cause of action for unjust enrichment, plaintiff must allege in his petition the concurrence of these elements:

“1. An enrichment.
2. An impoverishment.
3. A connection between the enrichment and the impoverishment.
4. An absence of justification for the enrichment or impoverishment.
5. The absence of any other remedy at law.”
Daspit v. City of Alexandria, 342 So.2d 683 (La.App.3rd Cir. 1977), writ refused, 344 So.2d 1056 (La.1977); Minyard v. Curtis Products, Inc., 251 La. 624, 205 So.2d 422 (1967).

We conclude that plaintiff’s petition states a cause of action. This first element is met by paragraphs (2), (4), (7), and (8) which alleged as follows: (2) “for many years (plaintiff) was the owner and operator of Price’s Fish Market ...”; (4) “. .. (plaintiff) leased this property from the Town of Lake Arthur”; (7) “.. . (plaintiff) was encouraged by the Town of Lake Arthur and the Department of Public Works to remain in business at the location he occupied”; (8) “the Town of Lake Arthur ... and the Department of Public Works ... continually represented to (plaintiff) that he would be fairly reimbursed for the loss of his business and that he would be compensated for the loss of his buildings.”

An impoverishment, the second element, is stated as a conclusion in paragraph (11) of the petition and is supported by the allegations of fact in paragraphs (9) and (10).

The requirement of a connection between the enrichment and the impoverishment, the third element, is met by the allegations of paragraphs (7), (8), and (11) which alleged that plaintiff was encouraged to remain in business at the location he occupied, that he would be reimbursed and compensated for his losses, and that plaintiff relied upon these representations to his detriment and therefore lost his business and its value as a going concern.

Fourth in the above enumeration, an absence of justification for the enrichment or impoverishment, is inherent in this action for “unjust enrichment.”

The fifth element, the absence of any other remedy at law, is met because LSA-R.S. 33:762 provides that all contracts in involving expenditures of money by municipalities must be by approval of the May- or and Board of Aldermen. That was not done here, leaving plaintiff with no available administrative remedy.

In Hero Lands Company v. Texaco, Inc., 310 So.2d 93 (La.1975), the Supreme Court vigorously reaffirmed the basic principle that in considering a petition against which an exception of no cause of action has been raised, every reasonable interpretation must be accorded its language in favor of maintaining its sufficiency to afford the litigant an opportunity to present his evidence. We have considered the legal sufficiency of plaintiff’s petition in accordance with this mandate. We conclude that plaintiff has alleged a cause of action for unjust enrichment.

For the reasons assigned, the judgment of the trial court is reversed, the peremptory exception of no cause of action is overruled and this case is remanded to the district court for proceedings according to law and consistent with the views expressed in this opinion. All costs of this appeal are assessed against the defendant, Town of Lake Arthur, in the amount of $133.90 as provided by law, LSA-R.S. 13:4521, 13:5112; all other costs are to await further proceedings.

REVERSED AND REMANDED.


source: Caselaw Access Project

author: FORET, Judge.

license: Public Domain

text:
    Marie LEAR, Plaintiff-Appellee, v. UNITED STATES FIRE INSURANCE COMPANY, Defendant-Appellant.
    No. 7993.
    Court of Appeal of Louisiana, Third Circuit.
    Dec. 17, 1980.

      Lunn, Irion, Switzer, Johnson & Salley by Jack E. Carlisle, Jr., Shreveport, for defendant-appellant.
    Glenn F. Armstrong, Bossier City, for plaintiff-appellee.
    Before FORET, CUTRER and LA-BORDE, JJ.
   FORET, Judge.

This is a tort action. Marie Lear (plaintiff) seeks to recover damages for personal injuries she received when struck in the face with a baseball. United States Fire Insurance Company (U.S.Fire), which had issued a homeowners liability policy to James and Donna Lear, is the only named defendant.

The trial court rendered judgment in favor of plaintiff and awarded her $10,000.00 in general damages and $667.00 in special damages. U.S.Fire (appellant) has perfected a suspensive appeal from that judgment.

Appellate presents three issues on appeal. However, we need only discuss the issue raised by appellant’s first assignment of error, as our decision there will pretermit the need for a discussion of the other issues. That issue is whether appellant’s insureds were guilty of negligence.

FACTS

Plaintiff was visiting in the home of Mr. and Mrs. James Lear on April 24, 1977, the date on which the accident occurred. Three of the Lear children went outside to play baseball at approximately the same time plaintiff arrived at their home. Plaintiff also went outside shortly thereafter to swing one of the younger Lear children. The swing set was located near the spot in the yard where the boys were playing baseball. Plaintiff had begun to swing the child when a baseball (hardball) hit by one of the older children struck her near an eye. The impact of the ball caused plaintiff’s cheekbone to cave in. This condition is known as an elevation zygomatic arch fracture which required surgery to correct.

Plaintiff alleged that the accident and the resulting injuries which she suffered were caused solely and proximately by the negligence of appellant’s insureds, James and Donna Lear.

The trial court rendered judgment finding the negligence of appellant’s insureds to be the sole cause of the accident. The trial court rejected appellant’s defenses of assumption of the risk and contributory negligence.

ALLEGED NEGLIGENCE OF APPELLANT’S INSUREDS

Appellant’s first assignment of error raises the issue of whether appellant’s insureds were guilty of negligence. The alleged negligent acts of James and Donna Lear of which the plaintiff complains are:

(1) Permitting their minor children to play baseball in a small, confined area, too small for such activity, and
(2) Failure to provide a safe place for plaintiff.

Plaintiff alleges that the appellant’s insureds allowed their children to play baseball in the yard adjacent to their home when they knew that the yard was too small for such activity to be carried out safely, especially when there were other persons present. It is plaintiff’s contention that this conduct of the appellant’s insureds constituted negligence.

Before a determination of liability can be made, we must first inquire as to whether any causal relationship exists between the harm to the plaintiff and the landowner’s alleged negligent conduct. Thus, if the plaintiff can show that she probably would not have suffered the injury complained of but for the conduct of appellant’s insureds, she has carried her burden of proof relative to cause-in-fact. Stewart v. Gibson Products Company of Natchitoches Parish Louisiana, Inc., 300 So.2d 870 (La.App. 3 Cir. 1974); Vidrine v. Missouri Farm Association, 339 So.2d 877 (La.App. 3 Cir. 1976), writ denied, 342 So.2d 216 (La.1977); Hill v. Lundin & Associates, Inc., 260 La. 542, 256 So.2d 620 (La.1972); Shelton v. Aetna Casualty & Surety Company, 334 So.2d 406 (La.1976).

There can be no question that the accident would not have occurred but for the appellant’s insureds allowing their children to play baseball in the yard. However, this finding of a causal relationship between the conduct of appellant’s insureds and the injuries suffered by plaintiff does not establish the former’s responsibility in damages for such injury. Rather, in addition, before the plaintiff can be permitted to recover for such conduct, it must be established that the conduct complained of constituted a breach of a legal duty imposed to protect against the particular risk involved. Smolinski v. Taulli, 276 So.2d 286 (La.1973); Pierre v. Allstate Insurance Company, 257 La. 471, 242 So.2d 821 (La.1970); Shelton v. Aetna Casualty & Surety Company, supra; Hill v. Lundin & Associates, Inc., supra; Vidrine v. Missouri Farm Association, supra.

Both parties argue that the duties owed by appellant’s insureds to the plaintiff should be determined on the basis of plaintiff’s status as an invitee. However, as stated by our Supreme Court in Cates v. Beauregard Electric Cooperative, Inc., 328 So.2d 367 (La.1976), this approach, which utilizes the common law classifications of invitee-licensee-trespasser is of little help, as the proper test to be applied in determining a landowner’s liability under LSA-C.C. Articles 2315 and 2316 is as follows:

“. .. whether in the management of his property he has acted as a reasonable man in view of the probability of injury to others, and, although the plaintiff’s status as a trespasser, licensee, or invitee may in the light of the facts giving rise to such status have some bearing on the question of liability, the status is not determinative.”

Thus, in determining the duty owed by the landowner to the plaintiff, it is not necessary to classify plaintiff as an invitee, but rather it is appropriate to ascertain this duty by examining the particular facts before us. Shelton v. Aetna Casualty & Surety Company, supra; Vidrine v. Missouri Farm Association, supra.

Plaintiff had come to visit Mr. and Mrs. Lear. (She was a sister-in-law of James Lear.) Jerry Saling, Casey Saling, and Troy Lear, whose ages were 13,11 and 6 at the time of the accident, had been told by their grandmother to go outside as they were interfering with her dinner preparations. A daughter of James and Donna Lear, Theresa, came up to the plaintiff and asked to be taken outside so she could swing. Plaintiff agreed and they went out into the yard a short time after the boys had done so. The boys testified that they had begun to practice their batting when plaintiff and the child came outside. There was no clearly delineated baseball field. Jerry Saling testified that he saw plaintiff come out of the house and held up his pitch as plaintiff crossed the yard. He stated that he and his brothers resumed the game they were playing after plaintiff reached the swing set.

Plaintiff testified that she realized that the boys were playing baseball only after she was struck by the ball. She stated that she had been swinging the younger child for about five minutes prior to the accident.

Plaintiff’s mother testified that she was looking out of a window from the time plaintiff went into the yard until she was struck. She stated that she could see plaintiff and the child on the swing set and the boys playing baseball.

This Court, in Levert v. Travelers Indemnity Company, 140 So.2d 811 (La.App. 3 Cir. 1962), stated the duty of a homeowner to an invitee, which we analogize to the plaintiff in this case, on page 813:

“The duty of an occupier of premises to an invitee is to exercise reasonable or ordinary care for his safety commensurate with the particular circumstances involved. The occupier thus owes a duty to avoid reasonably foreseeable danger to his invitee and to keep his premises safe from hidden dangers in the nature of traps or pitfalls in that they are not known to the invitee and would not be observed and appreciated by him in the exercise of ordinary care. This includes the duty of reasonable prior discovery of such unobservable dangerous conditions of the premises, and correction thereof or a warning to the invitee of the danger.
“On the other hand, the occupier does not insure an invitee against the possibility of accident. The invitee assumes all normally observable or ordinary risks attendant upon the use of the premises. The occupier is not liable for an injury to an invitee resulting from a danger which is observable or which should have been observed by the invitee in the exercise of reasonable care, or from a danger which the invitee should reasonably have appreciated before exposing himself to it.”

See also Taylor v. National Indemnity Company, 215 So.2d 203 (La.App. 3 Cir. 1968); Daire v. Southern Farm Bureau Casualty Insurance Company, 143 So.2d 389 (La.App. 3 Cir. 1962); Cook v. Central Mutual Insurance Company, 345 So.2d 1013 (La.App. 2 Cir. 1977), writ denied 347 So.2d 258 (La.1977); Crittenden v. Fidelity & Casualty Company of New York, 83 So.2d 538 (La.App. 2 Cir. 1955); Regenbogen v. Southern Shipwrecking Corporation, 41 So.2d 110 (La.App.Orl., 1949).

Plaintiffs own testimony as to her position while swinging the child shows that she was directly facing that part of the yard where the boys were playing. Plaintiff had visited this home at least twenty-five times in the past and knew that there was a large number of children in the family. She knew that these children utilized the yard around their home to engage in playful activities. We find that the danger presented by the children playing baseball should have been observed by an individual in the exercise of reasonable care, and was as obvious to a visitor as to the landowner.

We reverse the trial court and hold that there was no breach of the duty of care owed by the appellant’s insureds to plaintiff. As such, the conduct of appellant’s insureds in no way amounts to actionable negligence, and appellant is not liable to plaintiff for the injuries she suffered.

All costs incurred in the matter are assessed against plaintiff-appellee.

REVERSED.


author: CUTRER, Judge.

text:
    Marilyn Faye Johnson READ, Plaintiff-Appellee, v. Gary Paul FONTENOT, Defendant-Appellant.
    No. 8002.
    Court of Appeal of Louisiana, Third Circuit.
    Dec. 17, 1980.
    Fusilier, Pucheu, Soileau & Coreil, C. Brent Coreil, Ville Platte, for plaintiff-ap-pellee.
    Fruge & Vidrine, Jack C. Fruge, Sr., Ville Platte, for defendant-appellant.
    Before FORET, CUTRER and LA-BORDE, JJ.
   CUTRER, Judge.

This is a child custody suit involving two children, Casey Fontenot, 6 years of age, and Kelly Fontenot, 3 years of age. Paul Fontenot filed a rule for a change of custody against his former wife, Marilyn Faye Fontenot. The trial court changed custody from Marilyn Faye to the maternal grandparents, Mr. and Mrs. Sidney Johnson. The Johnsons were not parties to the suit. Paul Fontenot, defendant, appeals and Marilyn Faye Johnson Fontenot Read, plaintiff, answers the appeal seeking to have the trial court judgment amended to award custody of the minor children to her or, in the alternative, contends the trial court should be affirmed. We reverse and place the children in the custody of their father.

The parties to this suit originally separated in August 1975. The judgment of separation awarded custody of Casey to Marilyn Faye. The couple reconciled and the second child, Kelly, was born. In May 1977, Marilyn Faye obtained a judgment of divorce on the grounds of adultery and was granted custody of her two minor children. Paul did not contest the custody.

In June 1979, the Ville Platte City Court, sitting as Juvenile Court of Evangeline Parish, granted temporary custody of the children to the maternal grandparents, Mr. and Mrs. Sidney Johnson. In February 1980, the court transferred custody to the Department of Health and Human Resources. The following month, the City Court placed the children in the care of their father, leaving legal custody in the State until trial of the rule to change custody in the district court. The district court found that the orders of the Juvenile Judge of the City Court of Ville Platte were of no effect. This ruling is not made an issue on appeal.

After filing the rule for custody, Paul Fontenot filed a motion to have Mr. and Mrs. Sidney Johnson made defendants in the rule. This proceeding was not served on the Johnsons and they filed no answer. They never became parties to this suit.

The trial judge found that Marilyn Faye was unfit for the serious obligation of rearing the two children. He found that Paul was not as unfit a parent as Marilyn Faye but stated that he was also unable to have custody and control and his children.

The two basic issues presented on appeal are the fitness of the parents, Paul and Marilyn Faye, and, secondly, whether the trial court was authorized to grant custody of the children to the grandparents who were not parties to the suit.

On the issue of the fitness of the mother, Marilyn Faye, we readily agree with the trial court’s conclusions that Marilyn Faye was unfit to retain the custody of the children. In his reasons for judgment, the trial judge made the following observations in this regard:

“There is no doubt that the character of Marilyn Faye Johnson Fontenot Read leaves much to be desired. She has been fired from several jobs as a practical nurse for various infractions of hospital rules. She admitted candidly to taking drugs. She also admitted living with three different men in the last two years, and associating with disreputable individuals. She has recently married one Alan Read, who is about 25 years old, and who until recently apparently had never worked for a living. He testified that he has interests which bring him about $400 to $600 per month. He now claims to have a job paying $1000.00 a month plus commission.
* >|t * * * *
“.. . Marilyn Faye Johnson Read is unable to adequately take care of her children, and is, at the present time, unfit for this most serious obligation.”

The evidence fully supports these findings. The record reflects that Marilyn Faye has been terminated from employment as a nurse in several instances.. She was terminated from the Ville Platte General Hospital for what was termed a critical offense. She was fired from other hospitals for not reporting for work. During a period of four and one-half months she worked no more than thirty-five days.

Marilyn Faye’s private life exhibits less stability than her career. Her address at the time of trial was 130 Melrose Street, Lafayette, Louisiana. According to the testimony of Paul she had moved at least six times within the year preceding the hearing. It is difficult to glean from the record the precise sequence of Marilyn Faye’s residences. Before returning to Lafayette for the custody hearing she was residing in Sedonia, Arizona. Before that her testimony indicates that she was living in Lafayette with a boyfriend and before that she lived on Hickory Street in her own house across the street from her parents. Prior to that she lived on Chataignier Street in Ville Platte with a Hugh Bordelon. Bordelon’s testimony is that the majority of the time that he and Marilyn Faye lived together, they resided across the street from her parents on Hickory Street. He further indicates that they lived together in Lafayette for several weeks. Marilyn Faye’s testimony also reveals that she has lived with a man named Steven Bradley in Lafayette as well as with a friend named Carolyn Fon-tenot. She left Louisiana in November 1979 with Alan Read with whom she lived while she was in Arizona. She married Read on February 25,1980, just prior to the hearing and after she had become pregnant by him.

Regarding the children, Marilyn Faye has not hesitated to shift her responsibilities to her parents. Upon leaving for Arizona she left Casey and Kelly with their grandparents without telling Mr. and Mrs. Johnson where she was going. The children stayed in Ville Platte for about six weeks while she was in Arizona. She called home frequently but her parents did not know how to get in touch with her. While traveling to Arizona, she led them to believe she was in Lafayette. Upon one occasion, while she was living with Bordelon, she went out with some friends, leaving the children in his care, and didn’t return that night. Upon finding her still gone the following morning, Bordelon brought the children to the grandparents’ home since he was on call for his job and may have had to leave at any time. Bordelon also testified that during the five or six weeks Marilyn Faye spent in Lafayette with him, the children were with them only two or three weeks. The children also spent large amounts of time with their grandparents even when Marilyn Faye lived in Ville Platte.

Marilyn Faye has a serious drug problem. She admitted this in her testimony. She used amphetamines, barbituates and marihuana. She not only ingested these drugs orally but would dissolve Desoxyn in a spoon and then inject it into her arms and hands. She stated that she had been to a rehabilitation center in Lafayette and was getting away from the drug scene.

While there are some encouraging signs that Marilyn Faye may become more settled and responsible, we do not think that any of these recent changes she claims to have made are of sufficient duration to be relied upon as a basis for judging the type of home she could provide for these two children. Agreeing with the trial court that Marilyn Faye is unfit to have custody of these children, we turn to an examination of the father, Paul Fontenot.

Paul has been steadily employed with the United States Postal Service for the last six years. His superior, Donald Frith, testified that Paul is a conscientious, honest and hard working employee. Paul has, however, had problems in the past.

In 1975, Paul voluntarily committed himself to Central Louisiana Hospital after his separation from Marilyn Faye. He testified that he was suffering emotional problems in trying to adjust to the return to a single life and that he missed his son badly. He remained at the hospital for only a short time.

Paul admitted to having used drugs in the past but stated that he has not done so for the past four or five years, and had only rarely ever done so. He testified that he drinks occasionally but he has never had a serious drinking problem. Mrs. Raoul Fon-tenot, a frequent baby-sitter for Marilyn Faye, testified that, on one occasion, Paul came to pick up the children while he was drunk. His boss, however, testified that he has never known Paul to be intoxicated on the job and his present wife, Vickie, denies that he drinks to excess.

Another accusation leveled against Paul is that he is violent. He admits to having struck his first wife, Marilyn Faye. She said that he had hit her twice and that one of those times he dislocated her jaw. Vickie, to whom he has been married since August 1978, denies that he ever hit her. She was, however, admitted to the hospital with bruised ribs. The hospital records reflect that she told the hospital employees that Paul had beaten her. Polly Williams testified that after Vickie’s ribs were bruised, Vickie told her that Paul had knocked her around. On the stand, Vickie said that she and Paul collided as they tried to go through a door at the same time and that as a result she fell and bruised her ribs on a stool she struck while falling. She said that she and Paul had been arguing but that he had not hit her intentionally.

There is also testimony by Hugh Borde-lon, Marilyn Faye’s ex-boyfriend, that Casey returned from a visit with Paul with a black eye. There is nothing in the record indicating the cause of the black eye. Vickie testified that Paul never hit any of the children, either his or hers, in her presence.

Vickie, Paul’s second wife with whom he was living at the time of the hearing, is a registered nurse. She had been working at Savoy Memorial Hospital in Mamou for about eight months at the time of the hearing. She lost custody of her two children to their father at a time she was single, unemployed and living with her parents. In making the change, in custody, the trial court in that case pointed to Victoria’s religious views as being detrimental to the interest of the children.

There has, however, been nothing brought out in the present suit to indicate that Vickie Fontenot’s religious views could be detrimental to the children. The testimony indicates that Vickie considered herself to be a non-denominational Christian. She has sought guidance from various clergymen of various faiths in her study of scripture and, as far as the children are concerned, she tries to teach them right from wrong.

Another incident pointed to by opposing counsel is Vickie Fontenot’s having overdosed on tranquilizers in June 1979. Both she and Paul testified that the overdose was accidental. The tranquilizers were prescribed medication given because of nervousness and depression over the serious illness of her father and trouble with her brothers over how to handle the situation. The hospital records indicate that she apparently had an argument with Paul and at that time was not thinking properly and ingested approximately twenty or thirty pills. Then, upon taking the medicine, she realized she had made a mistake, took some salt water and tried to expel the contents, but was unable to do so. According to her testimony she then asked Paul to take her to the emergency room.

We have thoroughly reviewed the record, realizing that, upon appellate review, the determination of the trial judge in child custody matters is entitled to great weight. His discretion on the issue will not be disturbed on review in the absence of a clear showing of abuse thereof. Fulco v. Fulco, 259 La. 1122, 254 So.2d 603 (1971). We have no problem agreeing that Marilyn Faye is unfit for the custody of these young children. We do conclude, however, that the trial court was clearly wrong in its determination that Paul, at the time of the hearing, was “unable to have the care, custody and control of his children.”

While Paul and Vickie both have evidently had some emotional problems in the past, they have been married for one and one-half years and they testified that they are happy together. They have a home and both have stable employment. They also have someone who will care for the children when they are both working. They have a recent history of stability and responsibility and, with a combined income of over $30,-000.00 annually, are well able to provide for the children. The children were in their custody from February 25, 1980 until the day of judgment, May 13,1980, and there is no indication that their care was improper.

Under these circumstances, we conclude that Paul has not forfeited his right to custody, nor did the evidence show that Paul was unfit or unable to provide a home for the children.

Having come to this conclusion, it is not necessary to decide the issue of whether the trial court had authority to award custody to the grandparents who were not parties to this action. Assuming that the trial judge had such authority, the custody of the children must still be awarded to the father, Paul.

Paul, the father, has a paramount right to the custody of the children, as he has not forfeited his paramount right to custody by being unfit or being unable to provide a home for the children. Deville v. LaGrange, 388 So.2d 696 (La.1980).

We, therefore, conclude that the trial court’s award of custody to the grandparents must be reversed and that the custody of the two children shall be placed with Paul Fontenot, the father.

For these reasons, the judgment of the trial court is reversed and it is ordered that the children, Casey Paul Fontenot and Kelly Nicole Fontenot, be placed in the custody of the father, Gary Paul Fontenot. All costs are to be borne by defendant-in-rule-appellee, Marilyn Faye Johnson Fontenot Read.

REVERSED AND RENDERED.


author: GUIDRY, Judge.

text:
    John Sheldon TOOMER, Plaintiff-Appellee v. CITY OF LAKE CHARLES, Louisiana et al, Defendants-Appellants.
    No. 7938.
    Court of Appeal of Louisiana, Third Circuit.
    Dec. 17, 1980.
    Writ Refused Feb. 13, 1981.

      McHale, Bufkin & Dees, Michael K. Dees, Lake Charles, for defendants-appellants.
    Gregory Belfour, Lake Charles, for defendant-appellee.
    Rester & Van Norman, John L. Van Norman, III, Lake Charles, for plaintiff-appel-lee.
    Before GUIDRY, STOKER and DOU-CET, JJ.
   GUIDRY, Judge.

In this suit plaintiff seeks judgment declaring certain claims, liens and privileges, resulting from the levying of special assessments by the City of Lake Charles, Louisiana, against immovable properties owned by him, extinguished or prescribed and ordering cancellation of same from the mortgage records of Calcasieu Parish. Plaintiff instituted a similar suit against Acton Hille-brandt, Clerk of Court for Calcasieu parish and the City of Lake Charles which latter suit was consolidated with the instant suit for purpose of trial and remains so on appeal. We this day render a separate decree in the latter suit.

The trial court rendered judgment in favor of plaintiff and the defendant City has appealed. The Clerk of Court, Acton Hille-brandt, has neither appealed nor answered the appeal.

The trial judge, in a well written opinion, has succinctly set forth the facts giving rise to the instant controversy and his legal conclusions in regard thereto. We quote the well prepared opinion of the trial court in full:

“These two consolidated cases involve street and sidewalk paving assessments made by the City of Lake Charles against property owned by John Sheldon Toomer. The property owned initiated the suits alleging that the claims, liens and privileges resulting from the recordation of ordinances levying assessments against the property are prescribed and that the inscriptions thereof should be cancelled. In both suits the City reconvened for the alleged balances due from the original assessments owed by the respective properties owned by Toomer.

The case was presented to the court by way of stipulated facts. The facts are essentially what appear on the public records, i. e., the ordinances, recordation data and reinscription dates, together with the admission that the assessments have not been paid.

Based on these stipulations, it is apparent that there were three ordinances levying assessments. Ordinance No. 1068, adopted October 25,1956, levied an assessment for a sidewalk. Adopted pursuant to LSA-R.S. 33:3301-3316, this ordinance provided that the amount due, if not paid on adoption of the ordinance, would be payable in annual installments over a period of ten years beginning December 31, 1956, and ending December 31, 1965. This ordinance was rein-scribed February 1, 1967. Nothing has been paid on the amount due as a result of the assessment against the property by the enactment of this ordinance.

The second ordinance involved was Ordinance No. 1185 adopted August 3, 1959 for street paving. It was adopted pursuant to the same statutory authority and the failure of the owner to pay the assessment implemented a schedule of ten annual installments beginning December 31, 1959 and ending December 31, 1968. This ordinance was reinscribed June 29,1971. Nothing has ever been paid on that assessment.

The third ordinance was Ordinance No. 1275 adopted June 21, 1961. It provided a ten year repayment schedule also, from December 31, 1961 until December 31, 1970. It was reinscribed June 29, 1973. No payments were ever made under this assessment.

The property owner’s allegations of prescription are based upon LSA-R.S. 33:3746 (Act No. 204, § 1 of 1954) in effect at the time that the ordinances were passed.. This statute then read as follows:

‘Claims, liens and privileges resulting from the levying of local or special assessments by any parish, municipality, sewerage district or other special taxing district to cover the cost of constructing, paving, surfacing, resurfacing or otherwise improving streets, roads, sidewalks and alleys or the cost of the construction, installation or maintenance of sewerage systems shall prescribe three years after the date when the final installment or deferred payment of said local or special assessment shall become due and payable under the terms of the ordinance or resolution levying the assessment.’

Following what is apparently standard practice where the property owner has not paid the assessments, the City caused each of the ordinances herein to be recorded again before the three year prescriptive period ran, counting in each case from the date that the last or tenth installment was due. This is the City’s way of reinscribing the assessments, and it is the City’s contention that this has the effect of interrupting prescription on the claim and the privilege and of preserving both for an additional ten years. The City reinscribed these ordinances but once, the most recent being Ordinance No. 1275, reinscribed June 29, 1973.

Suit was filed by Toomer on August 9, 1976. The City reconvened on September 9, 1977, asserting its claims for the assessments and its lien and privilege.

It is the contention of the property owner that there is no statutory or juris-pruden-tial authority for extending the life of a claim for paving by reinscription. It is the property owner’s contention that the only way the municipality can keep prescription from running is by filing a suit on the claim before prescription has run. It is accordingly his contention that the attempted reinscription was without legal effect.

The City of Lake Charles contends, on the contrary, that there is jurisprudential authority that a paving lien may be rein-scribed and that this has the effect of keeping alive the claim on which the lien and privilege is based. It points out that before the year 1918 paving liens were imprescrip-tible but that by virtue of Act 46 of 1918, a prescription of 10 years was provided for claims, liens and privileges for paving, and that this prescriptive time of ten years was the law until 1954. Since 1954 and the passage of Act 204 of that year the prescriptive period has been three years.

The cases on which the City relies were decided between 1918 and 1954. They are City of Shreveport v. Urban Land Company, 159 So. 158 (La.App. 2nd Cir. 1935) and Mount Carmel Convent of Abbeville, La. v. Hebert, 68 So.2d 918 (La.App. 1st Cir. 1953).

These cases support the City’s contention that a paving lien can be reinscribed. Dicta in the City of Shreveport case, supra, at page 160, states:

‘It seems clear to us that the liens and privileges dealt with in this Act (Act 46 of 1918) are put on all fours with mortgages and other liens and privileges against real estate, and that the general law applicable to reinscription thereof, to continue their effect as to third persons, is equally applicable to them.’

In this case the court found that the owner at the time of suit was different from the owner at the time of recordation of the ordinance creating the assessment. The new owner was therefore a third person, and the court invoked the law that the effect of registry ceases as to this third person for failure to reinscribe at the end of ten years (this being the prescriptive period of the claim, lien and privilege in existence at the time of this case).

Interestingly, in the City of Shreveport case, suit was filed by the City within ten years from the date of the ordinance, and the contention was advanced by the City that this interrupted prescription. The court responded that perhaps it did but that it was the effect of the inscription of the lien and privilege on third persons, and not the claim for paving costs, with which it was concerned in the case and as to which there is a fundamental difference. Said the court:

‘(1) It is argued by counsel for plaintiff that as this suit was filed within ten years from date of said ordinance, the current of prescription on the claim was interrupted. This contention does not take into consideration the fundamental difference between a claim for paving costs and the lien and privilege intended to secure collection thereof by the city when it has advanced the cost of the paving. Defendant is not personally bound, nor is any other person, to pay this paving cost, and even should it be conceded that filing of this in rem suit against a defendant, a third person, interrupted the running of prescription on the paving claim, it does not follow that the peremption of the lien, especially of its registry, was affected to any extent thereby. A holder of mortgage notes by suing thereon may stop the current of prescription effectively as to the mortgagor, or others bound on the notes; but if he fails to have the mortgage securing said notes reinscribed within ten years from its original registry, liens, mortgages and other incumbrances of record, originally secondary in rank to his own, will take precedence thereof .. . ’

It was not a third person but the original owner that was the plaintiff in the Mount Carmel Convent case, supra. There, the prescriptive period was ten years and neither was suit filed nor was the ordinance reinscribed within that time. The ordinance was later reinscribed, but long after the ten year prescriptive period had run. The court said:

‘The plain language of the act makes the claim itself prescribe in ten years from the date of the certificates or other evidence of the claim, liens and privileges. It is our appreciation of the act that the ten years from the date of the certificates or other evidences of the claim, etc., means ten years from the date of the certificates or when the ordinance imposing said lien and privilege is timely recorded or reinscribed within the original ten year period. It is our appreciation from the record that the claim against relator was not asserted within the ten years as provided by the act, and that the re-inscription of said ordinance was made long after the paving lien had prescribed.’

The reasoning applied by the courts in the City of Shreveport and Mount Carmel Convent cases is in accord with basic Civil Code concepts regarding obligations and privileges. The claims here are the shares owed by each tract for the street and sidewalk paving costs. They are obligations owed by the land. The obligations would be classified real obligations under Civil Code Article 1997. One of the ways that obligations are extinguished is by prescription. Civil Code Article 2130.

Under LSA-R.S. 33:3306 and the ordinances passed pursuant to its authority, the amount of these claims or obligations became due on the passage of the ordinance. When not paid in 30 days, it was conclusively presumed that the owner elected to pay by installments. A certified copy of the ordinances when filed and recorded in the mortgage records then operated as liens and privileges on the property to secure the claims.

A lien and privilege consists of a right of preference on property granted by statute to the creditor, here the City, as security for its claim. Civil Code Article 3128. Privileges are creatures of the law. Civil Code Article 3185. They exist only with respect to debts expressly made privileged by code article or statute. They are preserved by recordation, Civil Code Article 3271, and may be extinguished by extinction of the debt which gave birth to them, or by prescription. Civil Code Article 3277.

Applying these basic concepts and the rationale of the decisions above discussed to the instant facts, it appears to the court that the City’s claims herein have prescribed and are unenforceable. The rein-scription in each case did not preserve the claim itself from prescription, just as in the City of Shreveport case the filing of suit, although causing an interruption of prescription on the claim, did not supply the want of reinscription and operate to preserve the lien and privilege as to third persons. Prescription of a claim for paving costs can be interrupted as can prescription on .any obligation. But prescription on the claim itself cannot be interrupted by rein-scription, which operates only to preserve the effect of registry. Reinscription will preserve the lien and privilege but not the claim. If the claim is prescribed, then the lien and privilege is unenforceable and its recordation must be ordered cancelled and erased.

It appears to the court that filing suit is the only way that prescription can be interrupted on a paving claim. By analogy, the Legislature has expressly declared this to be the only way to interrupt prescription of certain other claims secured by privilege, for example the Private Works Act, LSA-R.S. 9:4801, et seq. and the Oil, Gas and Water Wells claim and privilege, LSA-R.S. 9:4861, et seq. As noted earlier in this opinion (page 3), suits (the reconventional demands) were not filed on any of the paving or sidewalk claims herein until more than three years after prescription began to run.

For these reasons, the court must hold that prescription applies as to all three claims for sidewalk and street paving, and that the privileges resulting from the assessments against the property are extinguished by the extinction of the debts which gave birth to them. The liens must be ordered cancelled and erased from the public records.

Defendants are exempt from costs.

We agree with the learned trial judge that the terms “Claims, liens and privileges” employed in LSA-R.S. 33:3746 are not synonymous nor were they intended to be considered synonymous. As stated by our brethren of the Second Circuit in the City of Shreveport case, there is a “fundamental difference between a claim for paving costs and the lien and privilege intended to secure collection thereof by the city when it has advanced the cost of the paving”. We likewise agree with the conclusion of the learned trial judge that since a lien or privilege is only an accessory right to the claim or debt, providing security and payment by preference, it has a life coextensive with that of the debt it is intended to secure, the result being that when the debt or claim is extinguished by prescription the privilege becomes extinct also. LSA-C.C. Art. 3277; Washington v. Washington, 116 So.2d 124 (La.App. 1st Cir. 1959), reversed on other grounds 241 La. 35, 127 So.2d 491 (La.1961). Pelican State Associates, Inc. v. Winder, 253 La. 697, 219 So.2d 500 (La.1969). Finally, we agree with the trial court that the reinscription of the several ordinances prior to expiration of the prescriptive period allowed by LSA-R.S. 33:3746 did not serve to preserve the claim from prescription, the result, at best, being preservation of the lien and privilege, although we express no opinion that a lien or privilege granted by LSA-R.S. 33:3306 can be preserved by reinscription pursuant to the provisions of LSA-C.C. Article 3369. In this latter connection we observe that LSA-R.S. 33:3301 et seq. make no provisions for reinscription of the lien or privilege granted by section 3306. It is well settled that laws regulating the collection of taxes or licenses are sui generis and constitute a system to which the general provisions of our Civil Code have little, if any, application. Triangle Oil Co. v. City of New Orleans, 5 So.2d 558 (Orleans App. 1942); City of New Orleans v. Jackson Brewing Co., 162 La. 121, 110 So. 110 (La.1926); Lisso & Bro. v. Police Jury, 127 La. 283, 53 So. 566 (La.1910).

Considering the stipulated facts and the explicit provisions of LSA-R.S. 33:3746, we conclude, as did the trial court, that plaintiff is entitled to judgment.

For the above and foregoing reasons the judgment appealed from is affirmed, costs of this appeal to be taxed to the defendant pursuant to the provisions of LSA-R.S. 13:5112.

AFFIRMED.

       The commencement date of the three year prescriptive period provided by this statute is the date the last payment was due, whether or not failure to pay prior payments accelerated the obligation, according to City of Lafayette v. Marks Construction Company, Inc., 317 So.2d 232 (La.App. 3rd Cir. 1975). By Act 709 of 1975 the Legislature amended the statute to incorporate this interpretation.

      . Erroneous citation, see C.C. Article 3186.

      . The trial court concluded that the defendants were exempt from the payment of costs and therefore the judgment appealed from made no award of trial court costs. The trial judge apparently overlooked the provisions of LSA-R.S. 13:5112 which allows the assessment of costs in any suit against a political subdivision of the State, which statute, being procedural in nature, is given retroactive effect. Green v. Orleans Parish School Board, 365 So.2d 834 (La.App. 4th Cir. 1978) writ denied, 367 So.2d 393 (La.1979). Since plaintiff failed to appeal or answer the appeal of defendant, we consider that portion of the judgment which failed to award trial court costs final.


text:
    John Sheldon TOOMER, Plaintiff-Appellee, v. Acton HILLEBRANDT, Defendant-Appellant.
    No. 7939.
    Court of Appeal of Louisiana, Third Circuit.
    Dec. 17, 1980.
    Writ Refused Feb. 13, 1981.
    McHale, Bufkin & Dees, Michael K. Dees, Lake Charles, for defendants-appellants.
    Gregory Belfour, Lake Charles, for defendant-appellee.
    Rester & Van Norman, John L. Van Norman, III, Lake Charles, for plaintiff-appel-lee.
    Before GUIDRY, STOKER and DOU-CET, JJ.
   GUIDRY, Judge.

For the reasons assigned in the companion case entitled Toomer v. City of Lake Charles, 392 So.2d 794, the judgment appealed from is affirmed. Defendant is cast with all costs of this appeal.

AFFIRMED.


author: STOKER, Judge.

text:
    The ESTATE of Mary Sue Logan WHITLEY and M. G. Realty, Inc., Plaintiffs-Appellants, v. James A. ANNING, Defendant-Appellee.
    No. 7866.
    Court of Appeal of Louisiana, Third Circuit.
    Dec. 23, 1980.

      Rester & Van Norman, John L. Van Norman, III, Lake Charles, for plaintiffs-appellants.
    Jones, Patin, Tete, Nolen & Hanchey, Carl Hanchey, Lake Charles, for defendant-appellee.
    Before GUIDRY, STOKER and DOU-CET, JJ.
   STOKER, Judge.

This is a suit for declaratory judgment for the purpose of determining whether defendant James A. Anning has the legal right to exercise renewal options in two lease agreements. The plaintiffs are The Estate of Mary Sue Whitley and M. G. Realty Company, Inc., the owners of the property in question. The trial court rendered judgment in favor of James A. An-ning holding that he has the right to exercise the renewal options as assignee of the leases. The plaintiffs have appealed.

The legal issues in this declaratory action may be stated in relatively simple terms. The facts, the events and history relating to the manner in which the parties arrived in the legal position with regard to one another are quite intricate and labyrinthine. The detailed facts are not important to a resolution of the case. Therefore we will discuss only the general fact situation which ultimately resulted.

The general facts are that plaintiffs were owners of five separate tracts which they leased. As to the tract which is the subject of these leases they were owners in indivi-sión. By subsequent transactions assignments were made from one party to another. At one point the original leases were amended to extend the terms. In the process of making successive assignments certain tracts of the original five tracts were broken off into separate chains so that at the time of this suit defendant-appellee, John A. Anning, was concerned with only one tract of the five tracts described in the original leases.

The principal argument of plaintiffs-appellants is that Anning is not in fact an assignee but is only a sublessee of the tract in question. As a sublessee, appellants contend that Anning cannot renew the leases. They rely on Ducote v. Callico, 307 So.2d 644 (La.App. 4th Cir. 1974) for the proposition that the right to renew a lease under a renewal option is held by the lessee and not a sublessee.

The parties appear to regard the issue in the case as being whether defendant-appellee was an assignee or sublessee. There does not appear to be any disagreement that the distinction between an assignment and a sublease is that in an assignment the original lessee transfers all of his rights in the lease, whereas in a sublease he retains some control or interest in the lease. Scurlock Oil Company v. Getty Oil Company, 278 So.2d 851 (La.App. 3rd Cir. 1973), writ issued, 282 So.2d 521 (La.1973), modified, 294 So.2d 810 (La.1974), on remand, 324 So.2d 870 (La.App. 3rd Cir. 1975); Prestridge v. Humble Oil & Refining Co., 131 So.2d 810 (La.App. 3rd Cir. 1961); Broussard v. Hassie Hunt Trust, 231 La. 474, 91 So.2d 762 (1956); J. F. Auderer Laboratories v. Deas, 223 La. 923, 67 So.2d 179 (1953); Bond v. Midstates Oil Corp., 219 La. 415, 53 So.2d 149 (1951); Roberson v. Pioneer Gas Co., 173 La. 313, 137 So. 46 (1931); and Smith v. Sun Oil Co., 165 La. 907, 116 So. 379 (1928).

There is no contention that the instruments of assignment did not manifest intention to assign rather than to sublease. Plaintiffs-appellants approach this matter by arguing that defendant-appellee did not assume all the obligations of the original leases as to all the tracts leased. They argue that since Anning assumed the obligations of lease as to one tract only, he should be regarded as a sublessee and not as an assignee as to the one tract.

We think there is a fallacy in the argument of appellants. A lease is divisible when the original lease grants the privilege to the lessee of assigning or subletting all or part of the leased property. Scurlock Oil Company v. Getty Oil Company, supra, and Roberson v. Pioneer Gas Co., supra. The lease in question granted the privilege of assigning the leases of all or of any part of the properties originally leased. Hence, defendant-appellee is not a mere sublessee on the basis argued for by the appellants. Therefore, defendant-appellee had the right as assignee' to exercise the renewal options.

Plaintiffs-appellants urge that ambiguity will result if an assignment is held to exist because none of the subsequent contracts allocated the original rental payments among the tracts. They argue that since such is the case, defendant-appellee would have to be obligated for the entire rental in order to be an assignee rather than a sub-lessee. (It appears that in prior years some proportionate rental has been paid as rent for the single property in question without any difficulty or question being raised.) The trial judge recognized that a problem may exist in determining that specific amount of rental to be allocated to each of the properties. Nevertheless, the trial judge was of the opinion that the existence of this problem did not render the assignment nugatory. The issue of what the rental allocation or allocations should be may present a legal problem if the parties cannot amicably adjust the issue, but it is not an issue in this case.

For the foregoing reasons we affirm the judgment of the trial court in favor of the defendant-appellee. Plaintiffs-appellants are cast for the costs of this appeal.

AFFIRMED.

      . Only one parcel of leased property is involved. Two leases are involved because the owners In indivisión of the property in question initially leased their separate undivided interests by separate leases.


author: PER CURIAM.

text:
    Marjorie NOLTE v. Harry WYNN et al.
    79-291.
    Supreme Court of Alabama.
    Sept. 26, 1980.
    Rehearing Denied Jan. 9, 1981.
    James R. Owen of Owen & Ball, Bay Minette, for appellant.
    Gregory F. Jones, Robertsdale, for appel-lees.
   PER CURIAM.

Appellant Nolte filed this action to quiet title under § 6-6-540, Code of Alabama 1975. Appellees (Wynn and others) filed an answer and counterclaim seeking to quiet title against Nolte under the same statute. The court, after a hearing, denied Nolte’s claim and quieted title in Wynn. Nolte appealed. We affirm.

The property was sold for taxes to Harry Wynn on June 8, 1970, following a decree ordering the same sold for taxes due from Annie Case Carter dated April 13, 1970. Section 40-10-11, Code of Alabama 1975. Thereafter on July 27, 1973, a deed conveying the property to Wynn was duly executed by the Judge of Probate and recorded, § 40-10-29, Code, infra.

Nolte’s claim of title derives from a deed executed on November 22,1977, by Howard and Rita Weinacker.

The present appellees claim title through Wynn via a quitclaim deed dated September 4, 1973.

The parties stipulated as to the validity of the tax deed to Wynn, and Nolte did not challenge the validity of the proceedings leading up to the tax deed. The record is silent as to Weinacker’s predecessor in title. There was no evidence of any redemption or attempt to redeem the land. The period for redeeming is fixed by statute. Section 40-10-120, Code, provides, in part:

“Real estate which hereafter may be sold for taxes and purchased by the state may be redeemed at any time before the title passes out of the state or, if purchased by any other purchaser, may be redeemed at any time within three years from the date of the sale by the owner, his heirs or personal representatives,

Under § 40-10-29, the tax deed vested title in Wynn, the purchaser, subject to the right of redemption granted in § 40-10-120.

“After the expiration of three years from the date of the sale of any real estate for taxes, the judge of probate then in office must execute and deliver to the purchaser, other than the state, or person to whom the certificate of purchase has been assigned, upon the return of the certificate and payment of a fee of $1.00 to the judge of probate, a deed to each lot or parcel of real estate sold to the purchaser and remaining unredeemed, including therein, if desired by the purchaser, any number of parcels, or lots purchased by him at such sale; and such deed shall convey to and vest in the grantee all the right, title, interest and estate of the person whose duty it was to pay the taxes on such real estate and the lien and claim of the state and county thereto, but it shall not convey the right, title or interest of any reversioner or remainderman therein.”

Code of Alabama 1975, § 40-10-29.

The right of redemption was never exercised. Nolte, therefore, acquired color of title only by the 1977 deed and could not acquire title by adverse possession short of ten years after acquiring color of title.

The decree appealed from is due to be and the same is affirmed.

AFFIRMED.

All the Justices concur.


text:
    Richard FOWLKES v. LIBERTY MUTUAL INSURANCE COMPANY.
    78-652.
    Supreme Court of Alabama.
    Oct. 3, 1980.
    Rehearing Denied Jan. 9, 1981.

      Ross Diamond, III and Stephen J. Flynn of Diamond, Lattof, Gardner, Pate & Peters, Mobile, for appellant.
    Richard T. Dorman of Johnstone, Adams, May, Howard & Hill, Mobile, for appellee.
   PER CURIAM.

Richard Fowlkes appeals from the granting of a motion to dismiss Liberty Mutual Insurance Company in an action brought by Fowlkes against Liberty Mutual and others for personal injuries sustained when a furnace exploded. We affirm.

Fowlkes had been an employee of Aireo Alloys & Carbide Corporation since 1970. At the time of the accident he was employed in the position of furnace operator. His duties consisted of monitoring the pressure of the furnace and shutting it down if it exploded or erupted. The potential of explosion stemmed from the fact that the furnace was used in a manganese process although it had been designed for a pig-iron process.

On October 28, 1972, as Fowlkes was working in the control room, the furnace erupted and spewed forth fire, smoke, carbon monoxide and molten metal. Fowlkes shut the furnace down and sought an escape route from the furnace area. To perfect his escape, Fowlkes had to jump from the lower end of a suspended staircase to the railroad tracks thirty feet below. He alleges that as a result of this jump, he has sustained severe, painful and permanent injuries which have reduced his earning capacity, caused him pain and anguish and have caused him to incur medical expenses.

On October 5, 1973, Fowlkes filed his original complaint against the Frank C. Huber Company, a construction company which had performed extensive work in Airco’s plant, including maintenance and alterations on the furnace; and against four unknown defendants designated as John Doe I through John Doe IV. These defendants were described as “persons, partnerships or corporations whose names, identities, and places of business are unknown to the plaintiff, but will be added by amendment when this information is ascertained.” Fowlkes alleged that these defendants were responsible for the manufacture, sale or maintenance of the equipment, fixtures and premises where Fowlkes was employed.

In February of 1976, Fowlkes filed an amended complaint substituting DeMag Electro Metelurgy (a/k/a and d/b/a DeMag Baumaschinen, a German corporation, and DeMag American Corporation, a corporation) for John Doe I.

On September 12, 1977, Fowlkes again moved to amend his complaint. This motion was granted and Liberty Mutual Insurance Company was substituted for John Doe II. Counts three, four and five, alleging negligence, breach of contract and willful and wanton conduct, were added in this amended complaint.

On January 17, 1978, Liberty moved for an order dismissing Fowlkes’ complaint with prejudice on the ground that the complaint failed to state a claim upon which relief could be granted. Liberty moved in the alternative for summary judgment on the ground that no genuine issue of material fact had been presented. Both the motion to dismiss and that for summary judgment were based upon the contention that counts three, four and five were barred by a one-year statute of limitations.

On February 24,1978, Liberty’s motion to dismiss was granted as to count five. Three days later a motion to dismiss was granted as to counts three and four, without prejudice. Fowlkes was given twenty days within which to amend.

Fowlkes amended his complaint by adding count six, a negligence claim, and count seven, a contract claim.

Liberty again filed a motion to dismiss, or, in the alternative, for summary judgment, on the basis that counts six and seven of the amended complaint were barred by a one-year statute of limitations. On January 9, 1979, counts six and seven were dismissed with prejudice.

The trial court denied Fowlkes’ motion for reconsideration of counts six and seven and he now appeals to this Court, seeking relief from the trial court’s dismissal of counts three through seven.

The issue presented for óur consideration is whether these counts properly relate back through Fowlkes’ compliance with Rule 9(h), ARCP.

Counts three and six of Fowlkes’ amended complaint allege Liberty was negligent in undertaking to provide safety inspections and safety programs. Liberty contends that these counts are barred by the one-year statute of limitations applicable to personal injury actions. Code 1975, § 6-2-39 (a)(5). Counts four and seven are contract counts which Liberty also contends are barred by the same statute. Lastly, Liberty contends count five, which is for Liberty’s alleged wantonness in their safety inspections, is actually for trespass on the case and is barred by the same one-year statute of limitations.

It is Fowlkes’ contention that these counts should not be barred as he has made proper use of Rule 9(h), ARCP, which permits fictitious party practice. This rule states:

Fictitious parties. When a party is ignorant of the name of an opposing party and so alleges in his pleading, the opposing party may be designated by any name, and when his true name is discovered, the process and all pleadings and proceedings in the action may be amended by substituting the true name.

Under rule 15(c), ARCP, an amendment pursuant to Rule 9(h) relates back to the date of the original pleading.

Liberty contends that Fowlkes’ negligence claims do not relate back under Rule 9(h) as he knew of Liberty’s alleged involvement at the time the original complaint was filed. Therefore, Liberty claims that Fowlkes was not ignorant within the meaning of Rule 9(h).

We need not address this contention, however, as we find that Fowlkes’ claim of negligent inspection as set out in his amended complaint is barred by the one-year statute of limitations.

This Court has recently interpreted Rule 9(h) in Browning v. City of Gadsden, 359 So.2d 361 (1978), wherein we stated that

the principal area of operation of [Rule 9(h) and its statutory predecessor Tit. 7, § 136] is in emergency cases where neither the name nor the identity of the defendant is known, as where the cause of action is known but the party liable is not, and there is urgent need to get service of process upon the party against whom the plaintiff has an action, or there is need for immediate seizure of property. McKelvey-Coats Furniture Co. v. Doe, 240 Ala. 135, 198 So. 128 (1940); Roth v. Scruggs, 214 Ala. 32, 106 So. 182 (1925). [Emphasis added.]

It is clear from this statement that Rule 9(h) is not intended to operate when the cause of action is unknown, but operates only when the identity of the adverse party is unknown. Thus, in order for a plaintiff to invoke Rule 9(h) and 15(c), the plaintiff must at the very least state a cause of action in his complaint against the fictitious party.

We find that Fowlkes has failed to satisfy this requirement. In his original complaint, filed in 1973, Fowlkes did not allege that any defendant, named or fictitious, had negligently inspected the premises. The first time he raised this claim was when he amended his complaint four years later. Thus, the trial judge correctly found that the negligent inspection claim was time-barred.

Furthermore, we have studied the alleged contract counts very carefully and do not discern from the averments a valid contract-claim.

For the foregoing reasons, the order of the trial court is hereby affirmed.

AFFIRMED.

TORBERT, C. J., MADDOX, FAULKNER, JONES, ALMON,'SHORES and EM-BRY, JJ., concur.

BEATTY, J., not sitting.


text:
    Henrietta A. HENDERSON v. Richard ARRINGTON, Mayor of the City of Birmingham.
    78-716.
    Supreme Court of Alabama.
    Oct. 3, 1980.
    Rehearing Denied Jan. 9, 1981.

      J. Scott Vowell of Beddow, Fullan & Vo-well, Birmingham, for appellant.
    James K. Baker and Charles H. Wyatt, Jr., Birmingham, for appellee.
   PER CURIAM.

This is an appeal from a final judgment upholding an executive order issued by the Mayor of Birmingham. We reverse.

The facts of this case are not in dispute. On July 13, 1976, Mayor David Vann issued an executive order which required all persons employed by the city after that date to either live inside the corporate limits or move inside within ten months of their appointment. Richard Arrington, who has since been elected Mayor, has not rescinded the executive order.

Henrietta Henderson began working as a stenographer for the Birmingham Police Department on July 14, 1977. Because she did not reside within the city limits at the time of her appointment, Henderson was required to, and did, sign a notice acknowledging that as a condition of employment she was obligated to comply with the residency requirements within ten months. When she failed to do so, Mayor Vann sent her a letter informing her that she was in violation of the executive order and that she would be dismissed unless she complied by December 14, 1978. Instead of complying, Henderson filed suit seeking both a declaratory judgment that the executive order was illegal, null and void, and a writ of mandamus commanding the Mayor to vacate and set aside the order. The trial court ruled that the executive order was legal and denied Henderson’s requested relief.

The issue presented for our determination is whether the Mayor has the authority to require city employees to live within the corporate limits of Birmingham as a condition of continued employment. To resolve this question, we must look to the interrelationship and respective powers of both the Mayor and the Jefferson County Personnel Board.

The authority vested in the Mayor, purely statutory in origin, is derived from the Mayor-Council Act of 1955. Vol. 14, Appx., § 1504, et seq., Code of 1940, Recompiled 1958, as amended. The section of that Act pertinent to the issue in this case provides:

The mayor; powers and duties. — The mayor shall be the head of the administrative branch of the city government. He shall not sit with the council nor shall he have a vote in its proceedings and he shall have the power and dutiés herein conferred. He shall be responsible for the proper administration of all affairs of the city and, subject to the provisions of any civil service or merit system law applicable to such city and except as otherwise provided herein, he shall have power and shall be required to:
(1) Enforce all laws and ordinances;
(2) Appoint and, when necessary for the good of the service, remove all officers and employees of the city except as otherwise provided by this Act and except as he may authorize the head of a department or office to appoint and remove subordinates in such department or office .... [Emphasis added.]

Id. at § 1517(6).

The civil service system applicable to Jefferson County and municipalities located therein was created by the legislature in 1945 when it established the Jefferson County Personnel Board. Vol. 14, Appx., § 645, et seq., Code of Ala. 1940, Recompiled 1958, as amended. That Board is vested with broad power and authority to establish rules and regulations necessary to govern and control “all employees holding positions in the classified service of” Jefferson County and all municipalities within that county. Id. at § 646. The Board does not, however, govern or control persons employed in the “unclassified” services. Those rules and regulations adopted by the Board, to the extent that they are not inconsistent with their statutory authorization or principles of a nonpartisan merit system, have the force and effect of law and bind all persons affected thereby. Vol. 14B, 1971 Cum. Supp. to Appx., § 656, Code of Ala. 1940, Recompiled 1958, as amended; Simpson v. Van Ryzin, 289 Ala. 22, 265 So.2d 569 (1972); City of Tuscaloosa v. Marcum, 283 Ala. 440, 218 So.2d 254 (1969); Letson v. Gadsden Civil Service Board, 356 So.2d 653 (Ala.Civ.App.1978). Furthermore, it is “the duty of all elected officials in authority of either [Jefferson County or the municipalities located therein] ... to aid in all proper ways in carrying into effect the provisions” of the Act and those rules and regulations established by the Board. Vol. 14, Appx., § 651, Code of Ala. 1940, Recompiled 1958, as amended.

Pursuant to this grant of authority and prior to the Mayor’s executive order, the Board adopted, inter alia, a rule governing recruitment of prospective employees. That rule provides:

Rule 3.1 — Recruitment. Individuals shall be recruited from a geographical area as wide as is necessary to assure obtaining well-qualified candidates for the various types of positions. Employment, therefore, shall not necessarily be limited to residents of Jefferson County, Alabama; however, in cases where residents and non-residents are equally qualified for particular vacant positions, the residents shall be considered before non-residents in filing such vacancies. [Emphasis added.]

Henderson contends that the May- or’s executive order is void because it contravenes the recruitment rule adopted by the Personnel Board. We agree in part. The Mayor has the power, subject to applicable civil service laws, to appoint and remove all city employees. The civil service laws in effect in Jefferson County, applicable only to positions of “classified service,” state that “[e]mployment ... shall not necessarily be limited to residents of Jefferson County.” This rule has the force and effect of law, binds the Mayor and, under the Mayor-Council Act, limits the Mayor’s authority. By his executive order, the Mayor has exceeded his authority and contravened this rule by limiting employment to an even smaller group of persons, i. e., only those who live within the city limits of Birmingham. It should be noted, however, that we do not find the Mayor’s ordér to be void in toto; we merely hold that the order is void as far as it affects those persons employed by the City in a position of “classified service.” Therefore, the judgment of the trial court is due to be reversed and the cause remanded.

REVERSED AND REMANDED.

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

      . This rule was amended July 20, 1978, to delete that portion of the rule expressing a preference for Jefferson County residents.


author: EMBRY, Justice. TORBERT, Chief Justice

text:
    SHILOH CONSTRUCTION COMPANY, INC., a corporation v. MERCURY CONSTRUCTION CORPORATION.
    78-779, 78-779X.
    Supreme Court of Alabama.
    Oct. 3, 1980.
    Rehearing Denied Jan. 9, 1981.

      W. Eugene Rutledge, Birmingham, for appellant.
    Stanley D. Bynum of Bradley, Arant, Rose & White, Birmingham, and Herbert D. Jones of Burnham, Klinefelter, Halsey & Love, Anniston, for appellee.
   EMBRY, Justice.

Shiloh Construction Company, Inc., appeals from orders of the trial court dismissing its claim based upon breach of contract and requiring remittitur as a condition to the overruling of the motion for new trial of Mercury Construction Corporation; and from that order which set aside the jury verdict and judgment based thereon and granted Mercury's motion for new trial.

Mercury cross-appeals, contending the trial court erred by allowing Shiloh to proceed to trial on its claim based upon fraud.

Shiloh is a Texas corporation, the principal business of which is concrete construction. It is owned and operated by Wendell Halpin and Thomas H. Vanderventer.

Mercury Construction Corporation is a general contractor. It was awarded a contract with the United States Army Corps of Engineers for construction of two trainee barracks on the military reservation at Fort McClellan, Alabama. The Corps of Engineers issued plans, specifications, and amendments thereto, to prospective bidders. Mercury estimated prices for the work and obtained quotations from certain subcontractors in order for them to bid on subcontract work.

Shiloh’s first contact with Mercury was after Mercury had been awarded the Fort McClellan construction contract. A few days after 4 July 1976 Mr. Halpin of Shiloh contacted Mercury’s senior estimator, Mr. Charles Jones, in Montgomery, expressed an interest in submitting a bid for the concrete subcontract on the Fort McClellan barracks, and made an appointment to pick up a copy of the plans and specifications two days later.

When Halpin picked up the plans and specifications at Jones’s office he was given a set that did not contain certain amendments thereto which had previously been made by the Corps of .Engineers. Jones, at that time, had in his office at Mercury, for his own use, a set of plans and specifications which did contain the amendments. When properly amended and posted, the plans and specifications are conspicuously marked to show that the amendments were included. The set given Halpin for the purpose of Shiloh preparing its bid was not so marked.

Halpin used those unamended plans and specifications to compute Shiloh’s original bid of $833,000 for the concrete subcontract of the Fort McClellan project. In August 1976, on the basis of its bid, Shiloh was invited to Mercury’s field office at Fort McClellan to negotiate a contract.

At these negotiations, Halpin and Van-derventer represented Shiloh. Mercury was represented by Jones, Bobby Head, its senior construction manager, Charles Jordan, its Fort McClellan project manager, and Joe Potter, an engineer assigned to the field office to assist Jordan.

Although Mercury offered some evidence to the contrary, there was testimony that Shiloh’s negotiators brought to the negotiations, and had in plain view of Mercury’s negotiators, the unamended plans and specifications supplied them by Mercury. The fact that the plans and specifications there presént were not amended was conspicuous from the absence of a stamp on the front of them indicating the amendments had been posted. There was also testimony that one of Shiloh’s negotiators questioned whether there were addenda containing amendments to the plans and specifications in Shiloh’s possession. Head, of Mercury, responded by stating: “ * * * they are darn sure in there.”

The evidence shows that during the negotiations Shiloh was promised the job would follow the Critical Path Method and “that everyone would be out of our way, no one would hold us up in any way, we could get our crews out there, a minimum number of people, and do our work and our production orders and there would be no hold up.” The Critical Path Method (CPM) of scheduling construction work utilizes a flow chart showing the work to be performed and the sequence in which it is to be performed. It is used to achieve a smooth and continuous flow of work and to assure completion of the project at a designated time.

Shiloh was induced to lower its bid price for capillary fill, a crushed rock subsurface for concrete floors, based on assurances by Mercury’s Jordan that the CPM would allow Shiloh to spread the capillary fill by truck before structural steel was erected. In fact, structural steel was allowed to be erected before Shiloh spread the capillary fill and as a result Shiloh was forced to spend additional money on manual labor.

The negotiations were concluded and culminated with an agreement that Shiloh would do the concrete work for the sum of $794,000, whereupon, Shiloh employed John Ingram as job superintendent and directed him to begin hiring men and acquiring equipment. Actual work at the job site commenced some time shortly before 18 August 1976. At this time, Mercury supplied Ingram with full size field plans which included the amendments. About a week and a half later, Halpin, one of Shiloh’s principals, questioned Ingram about discrepancies in the work being performed and the specifications set out in the plans and specifications used by Halpin to work up Shiloh’s bid. At this time Halpin discovered the plans and specifications supplied Shiloh for construction differed from those supplied Halpin for bidding the job. He discussed this discrepancy with Jordan, who promised that Mercury would pay for any extra work done as a consequence of the differences in plans and specifications. Shiloh stayed on the job and continued its work according to the amended specifications.

During the course of the work, Jordan, as project manager of Mercury, the general contractor, prepared weekly work schedules. Under these schedules Shiloh was required to make numerous small-volume pours of concrete which were tedious and labor consuming; therefore, costing more per yard of concrete poured than large-volume pours. There was evidence the job was run in an uncoordinated fashion with subcontractors scheduled so that they were in each other’s way. Also, men and tools had to be shifted from place to place and caused to perform smaller and more tedious tasks.

On 14 June 1977, Jordan directed a Mercury employee to padlock Shiloh’s office trailer located at the job site. Although Mercury claimed Mercury abandoned the job, there was evidence that the only remaining work consisted of large-volume pours and that two weeks before the padlocking Shiloh had contracted with one Lad-son Boozer, a local concrete subcontractor, to perform the remaining work under its contract.

We think it significant regarding Mercury’s motives and intent to note that several of Shiloh’s workers were hired by Mercury after Shiloh was locked out and Mercury contracted with Boozer to do the remaining work at the same price Boozer had agreed upon with Shiloh and after one of Shiloh’s crew leaders had been questioned by Mercury about the qualifications of several of the workers a day or two before the trailer was padlocked. Two of Shiloh’s workers testified that Mercury asked them to work for it a week before the lockout.

Ingram, Shiloh’s job superintendent, testified he told one of Mercury’s supervisors at some time from two days to a week before the trailer was padlocked that Shiloh had subcontracted with Boozer for the remaining concrete work. Ingram was questioned about the contract price with Boozer and when he stated that price Mercury’s representative said it was a good one.

After the padlocking, Ingram was in Mercury’s project manager’s office where he heard Jordan say to someone on the telephone with reference to the Shiloh contract: “I know when to pull a subcontract and make money off of it.”

Under the evidence the jury could have found definite calculable losses suffered by Shiloh to be in a dollar amount aggregating $93,855.50.

The record supports the following as a fair summary of Shiloh’s specific claims of fraud:

(1) Mercury intentionally furnished Shiloh an incomplete set of plans and specifications knowing they were incomplete and that Shiloh would use those plans and specifications to prepare a bid for the Fort McClellan concrete work that was economically disadvantageous to Shiloh.

(2) In a negotiating session to establish the price at which Shiloh would perform work for Mercury, the latter misrepresented to Shiloh, with intent to deceive it, the following:

(a) That Shiloh would be allowed to place the capillary fill required for the job from dump trucks rather than by hand labor because Mercury would not begin structural steel erection until Shiloh had placed the capillary fill;

(b) That the Critical Path Method would be used on the project and that it would be strictly followed to the letter in order that Shiloh could more quickly perform its work by being ahead of the other subcontractors in point of time of performance;

(c) That Mercury’s purpose in making these intentional misrepresentations was to fraudulently induce Shiloh to lower its bid.

(3) That Mercury had no intention of performing the subcontract with Shiloh at the time it entered into it.

The case was submitted to the jury on the question of whether Shiloh had been defrauded by Mercury and whether any such fraud, if found, was malicious, oppressive or gross, thus entitling the jury, in its discretion, to award punitive damages. The jury verdict was in the amount of $559,-966.61.

On motion by Mercury for judgment notwithstanding the verdict, or in the alternative for a new trial, the trial court entered the following order:

“Regardless of the thoughts or opinions of the Judge concerning the truthfulness of witnesses and the reasonableness of their assertions, the jury was entitled to believe that Plaintiffs lost $2.24 a yard on applying capillary fill because they reduced their bid on a false statement that no structural steel would be erected before the capillary fill was completed or that the job plans called for putting in the capillary fill first and that the material could be trucked in and dumped at the point to be applied. 4500 yards at $2.24 a yard gives a loss of $10,080.00.
“The jury was entitled to believe that obsolete plans were furnished to bid on and that the difference in cost between the correct plans and the obsolete plans was $13,886.00 due to Plaintiff.
“The jury was entitled to believe that Plaintiff was unduly shifted about the job, but no specific losses or damages were proved.
“The great weight of the evidence is that no gross or oppressive fraud was perpetrated.
“The verdict and judgment are hereby set aside and held for naught and a new trial is ordered, UNLESS, within five days Plaintiffs enter a remittitur of all amounts over $26,841.92 and costs, which is the correct amount due as of the date of the judgment.
“In the event of such remittitur, the Motion for New Trial is denied.”

The issues for resolution on this appeal may be readily discerned from a reading of the first two paragraphs of this opinion.

Mercury says the trial court erred in denying its motion to dismiss, motion for summary judgment, motion for directed verdict, and motion for judgment notwithstanding the verdict; all because Shiloh should not have been permitted to maintain its claim for fraud. The trial court had dismissed claims of Shiloh for breach of contract and quasi-contract upon a showing by Mercury that Shiloh was not qualified to do business in this state and those claims were proscribed by the provisions of Art. XII, § 232, Const, of Ala., 1901, and § 10-2-254, Code 1975. Mercury contends that Shiloh’s action based upon fraud may not be maintained because it merely seeks to enforce promises or agreements in connection with a void contract that cannot give rise to legal duties the breach of which may be redressed by an action ex delicto. The principal authority cited in support is C & C Products, Inc. v. Premier Industrial Corp., 290 Ala. 179, 275 So.2d 124 (1972). This cannot be contradicted if the foundation premise is that the action complains of nothing more, in fact, than the failure to perform contract obligations. C & C Products is not apt here. In that case the non-qualified foreign corporation sued a former employee, alleging conspiracy to procure breaches of noncompetition clauses in its agents’ contracts. The gist of this court’s holding was that, any way you slice it, the action was ex contractu. Injunctive relief was sought and, significantly, in each paragraph of the prayer for relief it was prayed that respondents be enjoined from doing certain acts in violation of Premier's contracts with its sales agents. Obviously, where there is no contract there is no basis for an action for interference with one. However, a claim for fraud lies independent of the creation of a valid contract.

That being the case, we need not address appellants’ contentions urging the contract to be a valid one because entered into on a United States military reservation which is outside the territorial jurisdiction of Alabama; therefore, permitting actions for breach of that contract to be maintained in Alabama courts.

Actions ex delicto by nonqualified foreign corporations are not prohibited in the courts of Alabama and this is an action ex delicto. See Jones v. Americar, Inc., 283 Ala. 638, 219 So.2d 893 (1969).

The question remains whether the trial court erred in its order for a new trial based upon its finding, of an insufficiency of evidence to show gross or oppressive fraud and Shiloh’s consequent failure to remit any amount in excess of $26,841.92.

We have stated that the imposition of punitive damages in cases of fraud and deceit is discretionary with the jury, acting with regard to the enormity of the wrong and the necessity of preventing similar wrongs. Mid-State Homes, Inc. v. Johnson, 294 Ala. 59, 311 So.2d 312 (1975). This is likewise true where the fraud is malicious, oppressive, or gross and representations are made with knowledge of falsity, or so recklessly made as to amount to the same thing, or made with the purpose of injuring the other party. See Spartan Pools v. Royal, 386 So.2d 421 (Ala.1980); Hall Motor Co. v. Furman, 285 Ala. 499, 234 So.2d 37 (1970).

Once an intent to deceive has been established it is difficult to see but that a fraud was committed grossly. Randell v. Banzhoff, 375 So.2d 445 (Ala.1979); Hall Motor Co. v. Furman, supra. Proof of fraudulent intent at the time the representation is made is required in cases where fraud concerns a promise or representation regarding a future event, Southeastern Properties, Inc. v. Lee, 368 So.2d 288 (Ala.1979). In such cases, if, from the evidence, the jury finds present-intent fraud regarding the future event to conclude a fraud was committed, the award of punitive damages is properly within the discretion of the jury.

Because punitive damages are left to the discretion of the jury, with no standard set for the admeasurement of them, a remittitur or new trial should not be ordered merely because in the opinion of the court the jury gave too much. Airheart v. Green, 267 Ala. 689, 104 So.2d 687 (1958). Only where the verdict is the result of bias, prejudice, corruption, or other improper motive, is a court authorized to order a remit-titur. B & M Homes, Inc. v. Hogan, 376 So.2d 667 (Ala.1979).

We are not unmindful of strong presumption of correctness indulged in favor of the trial court regarding its rulings on the motion for new trial. We are also aware of the rule that, if, after indulging all reasonable presumptions as to the correctness of the ruling granting a new trial, the ruling was erroneous because the evidence plainly and palpably supported the verdict, then, that ruling is due to be set aside. A review of the evidence in this case discloses that it plainly and palpably supports the verdict. See generally, Kennedy v. General Transport Company, Inc., 293 Ala. 455, 304 So.2d 896 (1975). The great weight of it does support the jury’s conclusion that Mercury’s fraud was intentional, gross, and oppressive; therefore award of punitive damages was not improper.

Further, we find nothing in the record to show that verdict resulted from bias, prejudice, corruption, or other improper motive. Therefore, we are compelled to reverse the trial court’s order of a new trial improperly conditioned upon Shiloh’s failure to remit a portion of the damages.

The original verdict and judgment based thereon in the amount of $559,966.61 are hereby reinstated by the judgment of this court. The rulings and actions of the trial court are, in all other respects, hereby affirmed.

REVERSED AND RENDERED ON APPEAL; AFFIRMED ON CROSS-APPEAL.

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

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

TORBERT, Chief Justice

(dissenting).

I respectfully dissent from the holding of the majority to reinstate the jury verdict. The trial judge ordered a remittitur on the basis that the jury verdict as to punitive damages was contrary to the great weight of the evidence.

Our standard of review in an appeal of an order granting a new trial is abuse of discretion. See, Allen v. Harper, 277 Ala. 691, 174 So.2d 331 (1965); Camp v. Atlantic Coast Line R., 251 Ala. 184, 36 So.2d 331 (1948); Birmingham News Co. v. Lester, 222 Ala. 503, 133 So. 270 (1931). A trial court abuses its discretion in granting a new trial when the great weight of the evidence plainly and palpably supports the jury verdict. See, Robertson Banking Co. v. Ebersole, 331 So.2d 278 (Ala.1976); Morgan County v. Hart, 260 Ala. 418, 71 So.2d 278 (1954); Merkle v. Armstrong, 342 So.2d 788 (Ala.Civ.App.1976). Where the trial court entertains a definite, well-considered opinion that the jury’s verdict failed to do justice between the parties, it is its duty to grant a new trial, even where the evidence is conflicting. Cox v. Martin, 250 Ala. 401, 34 So.2d 463 (1947); Schaeffer v. Walker, 241 Ala. 530, 3 So.2d 405 (1941); Williams v. Birmingham Water Works Co., 230 Ala. 438, 162 So. 95 (1935). When a court grants such a motion, the presumption on appeal is that it was properly granted, Hubbard Brothers Construction Co. v. C. F. Halstead Contractor, Inc., 294 Ala. 688, 321 So.2d 169 (1975), and on appeal, the record must be construed against the appellant. Parker v. McGaha, 291 Ala. 339, 280 So.2d 769 (1973). I do not feel that, indulging all the presumptions favoring the trial court’s holding, and construing the record against the appellant, the conflicting evidence presented at trial so clearly and palpably supports the jury verdict that in granting a new trial the trial court abused its discretion.

Since both parties agree that the evidence as to the intentional nature of the conduct of the defendant is conflicting, the trial court’s holding that the great weight of the evidence fails to support a finding of gross, malicious and oppressive fraud should not, in my opinion, be disturbed. If there was no intentional fraud on the part of the defendant, and thus no gross, malicious or oppressive fraud, plaintiff is entitled only to damages actually proved, and not to punitive damages. See, Winn-Dixie Montgomery, Inc. v. Henderson, 353 So.2d 1380 (Ala.1977); International Resorts, Inc. v. Lambert, 350 So.2d 391 (Ala.1977). In view of the trial court’s finding that there was no gross, malicious or oppressive fraud, it was entitled to remit all damages over those actually proved, and when remittitur was refused, to grant a new trial. See, Fields v. Parker, 361 So.2d 356 (Ala.1978).

MADDOX, J., concurs.