text:
    Kenneth BOAGNI, Sr., Plaintiff-Appellee, v. STATE of Louisiana, Through DEPARTMENT OF TRANSPORTATION AND DEVELOPMENT, Defendant-Appellant.
    No. 8009.
    Court of Appeal of Louisiana, Third Circuit.
    May 28, 1981.

      Johnie E. Branch, Jr., Baton Rouge, for defendant-appellant.
    Boagni & Genovese, James T. Genovese, Opelousas, for plaintiff-appellee.
    Before FORET, SWIFT and DOUCET, JJ.
   DOUCET, Judge.

The principal issue presented by this appeal is whether a street shown on a recorded plat of a rural subdivision has been statutorily dedicated to public use. Plaintiff, Kenneth Boagni, Sr., sued the State of Louisiana through its Department of Transportation and Development (hereinafter referred to as Department), seeking compensation for the Department’s alleged appropriation of a strip of land designated as Louisiana Avenue of Linwood Subdivision East in St. Landry Parish. Following a trial on the merits, the district court rendered judgment in favor of plaintiff, awarding him a total of $8,750.00. From that judgment, the Department appeals. We reverse.

The facts are not disputed. In 1935, plaintiff purchased 363 acres of land in St. Landry Parish from his father, Dr. Charles Boagni. The property, which is located approximately two miles south of the City of Opelousas, is intersected by La.-U.S. Highway 167. In 1976, plaintiff subdivided the land on the east side of the highway, naming the subdivision Linwood Subdivision East.

On November 4, 1976, plaintiff filed a plat of the subdivision in the public records of St. Landry Parish. Prior to that date, he had sold approximately eight lots. Following its recordation, plaintiff sold numerous lots with reference to the plat.

The plat shows several lettered blocks with numbered lots and streets to serve them. All of the streets shown are fifty feet wide, except for Louisiana Avenue, which is thirty feet wide. Louisiana Avenue extends across the front of Block “M” adjacent to the highway right of way line, intersecting with Dr. Charlie Drive and Kenneth Boagni, Sr. Drive.

In April, 1978 the Department took possession of Louisiana Avenue in connection with a project to improve Highway 167 and incorporate it into a proposed north-south interstate highway between Shreveport and Lafayette. The proposed highway, which is to be designated Interstate Highway 49, will be a controlled-access facility with service roads to provide access to neighboring property that would otherwise be landlocked. The plans for the project called for widening and hard-surfacing Louisiana Avenue for use as a service road.

The Department rejected plaintiff’s demands for payment for Louisiana Avenue, contending that he had statutorily dedicated it to public use by substantially complying with the provisions of LSA-R.S. 33:5051. Plaintiff brought this suit, denying that he had dedicated Louisiana Avenue to public use and seeking compensation in the total sum of $22,502.50. He alleged in his petition that $15,000.00 of that amount was for the appraised value of Louisiana Avenue, and the remainder was the amount that he had spent for shells, dirt work and ditching in improving it.

The trial judge concluded that plaintiff had not dedicated Louisiana Avenue to public use. However, he found that a servitude of passage had been granted in favor of the public. Accordingly, he awarded plaintiff the reimbursement of his expenses in the sum of $7,500.00, but he declined to award him the full appraised valué of the land. Plaintiff’s motion for a new trial was granted, and after taking additional evidence, the trial judge awarded him an additional $1,250.00, which he found to be the value of plaintiff’s interest in the property after taking into account the servitude with which it was burdened.

On appeal, the Department argues that the trial court erred in (1) failing to find that Louisiana Avenue had been dedicated to public use, (2) awarding plaintiff $1,250.00 for his interest in the land and reimbursement for his expenses in the sum of $7,500.00, and (3) fixing the fee of plaintiff’s expert witness in the amount of $800.00 and taxing it as costs.

STATUTORY DEDICATION

As we noted earlier in this opinion, the Department’s position is that the filing of the plat of Linwood Subdivision East, pursuant to LSA-R.S. 33:5051, effected a statutory dedication of the streets to public use, vesting full ownership of them in the public. LSA-R.S. 33:5051 states:

“Whenever the owner of any real estate desires to lay off the same into squares or lots with streets or alleys between the squares of lots and with the intention of selling or offering for sale any of the squares or lots, he shall, before selling any square or lot or any portion of same, cause the real estate to be surveyed and platted or subdivided by a licensed surveyor or civil engineer into lots or blocks, or both, each designated by number, and set stakes, which shall be permanent in nature, at all of the corners of every lot and block thereof, properly marked so as to designate the correct number of each lot and block; write the legal description of the land on the plat or map, and cause to be made and filed in the office of the keeper of notarial records of the parish wherein the property is situated and copied into the conveyance record book of such parish, and a duplicate thereof filed with the assessor of the parish a correct map of the real estate so divided, which map shall contain the following:
(1) The section, township, and range in which such real estate or subdivision thereof lies according to government survey.
(2) The number of squares by numerals from 1 up, and the dimensions of each square in feet and inches.
(3) The number of each lot or subdivision of a square and its dimensions in feet and inches.
(4) The name of each street and alley and its length and width in feet and inches.
(5) The name or number of each square or plat dedicated to public use.
(6) A certificate of the parish surveyor or any other licensed surveyor or civil engineer of this state approving said map and stating that the same is in accordance with the provisions of this Section and with the laws and ordinances of the parish in which the property is situated.
(7) A formal dedication made by the owner or owners of the property or their duly authorized agent of all the streets, alleys and public squares or plats shown on the map to public use.”

It is well established in the jurisprudence that complete and detailed compliance with the above provisions is not necessary to effect a statutory dedication; substantial compliance will suffice. Garrett v. Pioneer Production Corporation, 390 So.2d 851 (La.1980); Parish of Jefferson v. Doody, 247 La. 839, 174 So.2d 798 (1965).

The Department correctly argues that the plat filed by plaintiff substantially complies with the statute. The trial judge apparently agreed with that conclusion. Nevertheless, he found that a statutory dedication had not been effected, assigning the following written reasons for his finding:

“... I conclude that there was not a fee-vesting dedication of the area in question by the actions of plaintiff. This, because the proposed thoroughfare ‘Louisiana Avenue’ was not in conformance with the substantive regulations of the policy jury regarding the width of roads and because the police jury rejected the attempted dedication of that area. Although the jurisprudence holds that there may be a statutory (and accordingly fee-vesting) dedication without strict compliance with all the requisites of R.S. 33:5051, those requirements deal with the procedure necessary to effect a fee-vesting dedication and not with the effect of a noncompliance with substantive regulations of the applicable local (here, police jury) governing authority. R.S. 33:1236(20) empowers the police jury to regulate laying out of subdivisions and roads thereof. Under that provision, the police jury herein required that streets in any subdivision be at least 50 feet in width. As to Louisiana Avenue, that regulation was not complied with and the police jury rejected the attempted dedication. I see no conflict between my holding of the effect of noncompliance with regulations enacted under the provisions of R.S. 33:1236(20) and R.S. 33:5051 plus the jurisprudence thereunder that only substantial compliance with the later provision is necessary to effect a fee-vesting dedication. The first statute deals with the authority of the police jury to enact substantive regulations and the latter deals with the procedure for complying with such regulations. Indeed, R.S. 33:5051(6) contemplates the necessity of compliance with substantive regulations provided by any local governing authority. To ignore these substantive regulations or to rule that compliance with them is not strictly necessary for a fee-vesting dedication would disempower the police jury of its regulatory power and result in a public thoroughfare being part of neither a local or state road system and consequently without maintenance responsibility or enable a landowner to force any type subdivision or road on a local authority.”

With due respect to our learned brother of the trial court, we cannot subscribe to that reasoning. The trial judge’s conclusions and the arguments advanced by plaintiff on appeal are apparently based on the erroneous premise that the dedication of newly-formed streets and alleys in subdivisions is optional, and that a subdivider may elect to retain title to such streets and alleys by failing to comply with local ordinances and regulations. That clearly is not the case. As our Supreme Court noted in Pioneer Production Corporation v. Segraves, 340 So.2d 270 (La.1976), the language of LSA-R.S. 33:5051 indicates that the legislature intended to require the platting and dedication of all newly-formed streets and alleys which were fashioned from land to be subdivided. The use of the word “shall” in the statute renders its provisions mandatory. LSA-R.S. 1:3.

The trial judge correctly noted that the statute anticipates and requires compliance with the laws and ordinances of the parish in which the property is situated. However, he fell into error in assuming that a police jury has the power to enforce its regulations by rejecting a statutory dedication if those regulations are not complied with.

Police juries in this State are subordinate political subdivisions of the State and as such their powers are limited. La.Const. Art. VI § 7(A); Rollins Environmental Services of Louisiana, Inc. v. Iberville Parish Police Jury, 371 So.2d 1127 (La.1979). As Justice Tate pointed out in his concurring opinion in Rollins, the concept that local governing authorities may exercise delegated authority only as conferred by legislation has been changed by the above cited provision of the 1974 constitution, greatly expanding local authority in certain cases. However, police juries may not under any circumstances exercise their authority in a manner that is inconsistent with the laws of this State. Rollins, supra.

LSA-R.S. 33:5051 clearly provides that newly-formed streets and alleys in land to be subdivided must be dedicated to public use. The statute also requires subdividers to affirmatively show that local laws and ordinances have been complied with. However, we find nothing in the wording of the statute that could be reasonably construed as granting authority to the police jury to reject or render ineffective a dedication if its regulations are not complied with. Nor have we been able to find any instances in the jurisprudence in which such authority has been recognized.

As we stated earlier, it is well settled that substantial compliance with the provisions of LSA-R.S. 33:5051 effects a statutory dedication. Once the dedication has been made, title to the streets and alleys vests in the public without the necessity for a formal acceptance. Arkansas-Louisiana Gas Co. v. Parker Oil Co., 190 La. 957, 183 So. 229 (1938); Police Jury, Parish of Jefferson v. Noble Drilling Corporation, 232 La. 981, 95 So.2d 627 (1957). Thereafter, a local governing authority has no legal right to disclaim title to them. La.Const. Art. VII § 14; Police Jury, Parish of Jefferson v. Noble Drilling Corporation, supra.

This does not mean that a subdivider may disregard local ordinances and regulations with impunity, however. The failure to include a certificate stating that the plat is in accordance with the laws and ordinances of the parish in which the property is situated would clearly be a violation of LSA-R.S. 33:5051(6), punishable under LSA-R.S. 33:5053. Admittedly, the penalty provided by the latter statute may not be severe enough to seriously discourage such violations. However, that is a problem that addresses itself to the legislature. It cannot properly be resolved by attributing to police juries the power to circumvent the clear mandate of LSA-R.S. 33:5051.

For the foregoing reasons, we find that the trial court erred in finding that Louisiana Avenue had not been dedicated to public use as a result of plaintiff’s substantial compliance with LSA-R.S. 33:5051.

THE AWARDS TO PLAINTIFF

In view of our holding that Louisiana Avenue was statutorily dedicated to public use, the trial court’s award of $1,250.00 for plaintiff’s alleged interest in it was obviously improper and must be set aside. Plaintiff argues that he is nevertheless entitled to reimbursement for his out of pocket expenses, because the State has been unjustly enriched. We find no merit in that argument.

Recovery under the theory of unjust enrichment requires proof of five elements: (1) an enrichment; (2) an impoverishment; (3) a connection between the enrichment and the impoverishment; (4) the absence of justification for the enrichment and impoverishment; and (5) absence of a remedy provided by law. Minyard v. Curtis Products, Inc., 251 La. 624, 205 So.2d 422 (1967); Abbeville Lumber Co. v. Richard, 350 So.2d 1292 (La.App.3rd Cir. 1977). We find the evidence presented by plaintiff insufficient to establish all of these necessary elements.

There is considerable doubt about whether the State was enriched as a result of plaintiff’s expenditures for shells, dirt work and ditching. Because the street was too narrow, the Department had to plow it up and rework it, utilizing the part of the pre-existing highway right of way to make it the standard width for a service road. Assuming for the sake of argument that the State was enriched to some extent, there is also some question about whether plaintiff was actually impoverished. Expert appraisers testified at the trial that improving subdivision streets by shelling or paving them increases the value of the adjoining property. Presumably then, plaintiff recouped at least part of his out of pocket expenses by selling his lots at a higher price.

Even assuming that an enrichment and an impoverishment can be shown in this case, we note that there is a legal cause which justifies such enrichment. The regulations of the police jury are not contained in the record before us. However, plaintiff testified without objection that under those regulations he was required to make the same kinds of improvements to all of the other streets in the subdivision at his expense. Thus, there was justification for any enrichment and impoverishment that may have occurred.

EXPERT FEE

Since we have determined that plaintiff is not entitled to recovery, we agree with the Department’s contention that his expert appraiser’s fee should not be taxed as costs. Plaintiff, as “the party cast in judgment”, is required to pay the fee. LSA-R.S. 13:3666; Holliday v. Continental Can Co., Inc., 351 So.2d 181 (La.App.2hd Cir. 1977). Accordingly, we find it unnecessary to discuss the Department’s argument that the fee set by the trial judge was excessive.

For the foregoing reasons, the judgment of the trial court is reversed and set aside, and judgment is rendered in favor of defendant, the State of Louisiana, through the Department of Transportation & Development, dismissing plaintiff’s suit at his costs. All costs of this appeal are assessed against plaintiff.

REVERSED AND RENDERED.


source: Caselaw Access Project

author: LEAR, Judge.

license: Public Domain

text:
    T. E. LOFTON, Jr. v. DON J. TRAHAN, INC. and Don J. Trahan.
    No. 14143.
    Court of Appeal of Louisiana, First Circuit.
    May 29, 1981.

      James C. Walker, Jr., Houma, for plaintiff and appellee.
    Eddie N. Pullaro and Robert Cuccia, Hou-ma, for defendants and appellants Don J. Trahan, Inc. and Don J. Trahan.
    Maurice Mathieu, Houma, for third party defendants Vernon Hutchinson and Houma Sheet Metal, Inc.
    Gerald F. Lofaso and Richard P. Mire, Houma, for third party defendant Chester Nixon.
    Joseph J. Piccione, Lafayette, for third party defendant Lafayette Woodworks, Inc.
    Jerry H. Schwab, Houma, for third party defendant Top’s Woodwork & Supply, Inc.
    Before COVINGTON, CHIASSON and LEAR, JJ.
   LEAR, Judge.

This suit was filed alleging breach of a construction contract.

Plaintiff, T. E. Lofton, Jr., and defendant, Don J. Trahan, Inc., entered into a contract for construction of a residence in Terrebonne Parish, Louisiana. The contract set the approximate cost of the building at $113,200.00, including defendant’s commission. After completion of the building, plaintiff signed an acceptance of the contract or performance except for some twenty-two alleged defects. By letter, some month and a half later, plaintiff informed defendant of some twelve defects which had not been corrected.

Plaintiff alleges that the commission to defendant was for procuring and supervising laborers, subcontractors and suppliers of materials, including payment of sums due for work and supplies.

Plaintiff also sues Don J. Trahan individually, alleging that certain sums advanced to this defendant for payment of materials were misused by defendant, resulting in materialman’s liens being filed against plaintiff’s property. Plaintiff seeks judgment for $25,750.00 for unearned commission and defects in workmanship and materials plus $10,000.00 for damage to plaintiff’s credit and reputation. Defendant answered the petition by a general denial and reconventional demand, seeking judgment for $8,938.16 for funds still due under the contract.

Defendant further filed a third party demand against eight subcontractors for judgment in the amount of any judgment which may be cast against defendant and in favor of the original plaintiff.

After several days of trial, the court rendered judgment in favor of plaintiff and against defendants in the sum of $8,855.00 and further authorized plaintiff to withhold the sum of $7,801.76 representing the amount of the two liens filed against plaintiff’s property. Judgment on the reconven-tional demand was in favor of plaintiff in reconvention and against T. E. Lofton, Jr. in the sum of $8,002.10. All third party demands were disposed of either during the trial by exceptions or in the judgment after trial in favor of the subcontractors.

The trial court, in a lengthy and well reasoned opinion, which we adopt in part, held as follows:

“The defense of this lawsuit by defendant is twofold. First, defendant contends that the contract entered into by the defendant corporation and plaintiff is a cost plus contract and as such any defects in workmanship or materials are the responsibility of plaintiff unless the contrary has been stipulated to in the contract. A copy of the contract agreement is filed in the record and it is clear from a reading thereof that there is nothing in the contract stipulating who will be responsible for the cost of correcting defects in workmanship or materials. Defendants cite several cases which hold that while some mistakes will be made in construction work, the cost of correcting the mistakes is properly included in the amount to be paid to the contractor on a cost plus job. (See Schroeter v. O’Steen, 94 So.2d 556 (2nd [Cir.] [La.App.] 1957), Pennington v. Campanella, 180 So.2d 882 (1st [Cir.] [La.App.] 1965), Delta Paving Company v. Woolridge, 209 So.2d 581 (4th [Cir.] [La.App.] 1967). That is to say, the owner must bear the expenses of correcting the mistakes made in construction on a cost plus contract, unless it has been agreed to differently in the contract.

“The court recognizes that to be the law of this state and would apply it in this case except for the fact that a stipulation was entered into during the trial which the court understands to mean that the responsibility for the satisfactory performance of the contract rests on the contractor and not the owner. The transcript shows that on pages 218 through 221 it was stipulated by the parties that the defendant would be entitled to the sum of $8,002.00 but only in the event that this court finds that the residence has been constructed satisfactorily. The court will state at this time that in its opinion the residence was not constructed satisfactorily in that there were several defects amounting to and costing several thousands of dollars to remedy. Therefore, the court is of the opinion that while this contract, when it was entered into, was a cost plus contract, by virtue of the stipulation it was the intent of the parties that Mr. Trahan would be responsible for the satisfactory construction of this residence and that he would be responsible for whatever defects occurred in carrying out and performing the agreement between the parties. By stipulating that there would be $8,002.00 due and owning him, he was also stipulating that it was his responsibility to perform the job satisfactorily. The stipulation in essence placed the responsibility for performing the job satisfactorily, which included the correction of defects, squarely upon the shoulders of the contractor and not upon the owner. Therefore, the court cannot apply the ruling of law announced by the appellate courts in the cases cited by defendants.

“The second line of defense by defendants is that since Mr. Lofton has accepted and taken possession of the premises as being substantially complete that said acceptance of the residence in its then present condition voided any claim by Mr. Lofton for breach of contract. The court admits that there was an acceptance of the residence by Mr. Lofton as being substantially completed, but the acceptance was conditional and qualified in that there was attached to the acceptance a punch list of mistakes and defects that Mr. Lofton felt should be corrected by the contractor. The court agrees. Because the acceptance was conditional and qualified by Mr. Lofton, the court feels that this defense raised by defendants cannot prevail. Defendant corporation, in the opinion of this court, was still obligated and required by its agreement with Mr. Lofton to complete the house satisfactorily. Said corporation was legally responsible to correct the mistakes set out in the punch list attached to the acceptance, and its failure to do so constitutes a failure and breach of the agreement with plaintiff.

“For the above stated reasons the court has concluded that neither defense raised by defendants can prevail. Defendant corporation is liable for any defects in the construction of this residence and whatever sums of money are required to correct the mistakes is the responsibility of said corporation.

QUANTUM

“The court made a personal visit to the residence, accompanied by the attorneys and parties, and made a visual inspection of the areas of complaint that are in dispute in this lawsuit. The court will consider each item separately.

DRIVEWAY

“An examination of the driveway convinces the court that there were serious defects existing in the slab and that it appeared to be in a condition of deterioration. Testimony by an expert in the field of architecture, Mr. Eugene L. Rizzo, and Mr. Jarrett Maynard, a construction expert, further convinced the court that the driveway was defective and in a condition that the only satisfactory solution would be a total replacement thereof. The court further believes and observes that one of the causes of the defective driveway was the condition of the soil when the concrete was poured. Testimony established that weather conditions at the time had caused the ground to become very wet, and apparently was in no condition to receive concrete when it was poured. Furthermore, there was testimony indicating that there was insufficient cement and that said inadequate cement mix did not provide for a quality of concrete that was needed for the type of use that the slab would be subjected to. In other words, it was a poor mix with an inadequate amount of cement and together with the wet soil conditions caused the breaking and the deterioration of the concrete slab necessitating that it be replaced entirely. The architect estimated that it would cost $6,360.00 to make a total replacement of the driveway, and the court has concluded only replacement to be a satisfactory solution to this problem.

BREEZEWAY

“The court will not allow any recovery for the alleged defects in the breezeway. The court examined the breezeway and was also informed that Mrs. Lofton had accompanied the defendant, Mr. Trahan, to a neighbor’s home where Mrs. Lofton pointed out a driveway as an example of the materials and results which she wanted in this breezeway. The court visited that neighbor’s driveway and examined it after examining the breezeway of plaintiff’s home. The court is of the opinion and has concluded that there is very little difference between the surface of those two slabs. The construction and surface of the breezeway are almost identical to the driveway of the neighbor’s home which Mrs. Lofton used to demonstrate for the contractor what she wanted him to build for her as her breezeway. The court is satisfied that there are no defects in the breezeway and that the contractor has fully complied with his contractual obligations insofar as the breezeway is concerned and recovery of that item will be denied.

ROOF FLASHINGS AND VALLEYS

“The court believes that painting of the valleys and flashings in their present condition would correct any problem that may exist in these items. Plaintiff insists on a change in the flashings and valleys from galvanize to copper. Plaintiff did not pay for, nor should he receive, copper flashings and valleys. He paid for galvanize and he received galvanize. The significance between copper and galvanize is that copper is much more expensive than galvanize, and defendant should not be required to furnish any different material or more expensive material than it was paid for by plaintiff. Therefore, the court believes that plaintiff should recover the cost of painting the valleys and flashings as they presently exist, which has been estimated by Mr. Vernon Hutchinson to be in the amount of $145.00.

SHEETROCK

“The court examined the sheetrock defects in the living room, hall and bathroom and concluded that either the workmanship or materials was defective. These walls must be replaced. The architect, Mr. Rizzo, estimated that to correct the sheetrock would be approximately in the sum of $750.00 which the court will award to plaintiff for these defects.

PAINTING AND CLEANING OF BRICK

“The architect pointed out to the court that certain areas of the house were not painted. These areas were in the breezeway and the front porch of the home and steel lintels on the windows were not painted at all nor were they back primed. Mr. Rizzo also found that brick around the outside of the house needed cleaning as well as around the fireplace. He testified that the cost involved in these matters would be painting the exterior of the house in the amount of $800.00 and cleaning the bricks around the fireplace in the amount of $500.00, for a total of $1,300.00. Plaintiff will be allowed recovery for the cost of these repairs.

DOORS

“An examination of the doors revealed that some of the frames were not properly [plumbed], causing the doors not to close correctly, and it was also evident that the tops and bottoms of the doors had not been painted. Mr. Louis Bordelon, a representative of Lafayette Woodworks, Inc., testified that he found that the doors in the master bedroom and the master bath had not been properly hung, that the French doors in the master bedroom were not painted either on the top or bottom, and that there were other problems with the doors caused by improper installation. He was of the opinion that some of the doors would have to be replaced and other corrective work done in order to satisfactorily remedy the defects in the installation of the doors. The architect, Mr. Rizzo, also found that the interior doors needed to be painted on both sides and that the exterior doors had warping and peeling veneer. Mr. Jarrett Maynard testified that the cost of the work to be done on the doors would be approximately $300.00.

LACK OF SUPERVISION

“Plaintiff seeks the return of $10,750.00 claiming that that sum is unearned commission. The court disagrees and will not allow that sum to be awarded to plaintiff. Other than the defects that have been described in these reasons for judgment, the residence appeared to be well constructed and upon correction of the defects itemized hereinabove, the court is of the opinion that afterwards the residence will have been satisfactorily completed and that the contract would have been fulfilled in its entirety. That being so, the court is of the opinion that the defendant will have earned and is entitled to the balance of the commission which in this case would be the sum of $8,002.00 due and unpaid.

FAILURE TO PAY SUPPLIERS

“The court agrees that plaintiff paid to Mr. Trahan a sum sufficient to cover the bills from Perque’s Floor Covering, Inc. and Arceneaux Air Conditioning but that Mr. Trahan did not pay those two bills resulting in the subcontractors filing liens against Mr. Lofton’s property. Because of this failure by Mr. Trahan to pay Perque’s Floor Covering, Inc. and Arceneaux Air Conditioning and because he converted this money intended as payment of those bills to Mr. Trahan’s commission, the court feels that he has made himself personally liable for the claims involved herein. The court believes that since these two liens have not been paid that plaintiff should be allowed to withhold a sufficient sum to pay those liens in the event the defendant does not do so. Therefore, while defendant is entitled to a judgment for the balance of the contract, that is $8,002.00, which has been admitted as being the unpaid balance due and owing, plaintiff may withhold from said sum the sum of $7,801.76, representing the amounts of the liens, and cost, until such time as those two liens have been paid and can-celled from the official records of Terre-bonne Parish.

“Plaintiff also seeks the sum of $10,000.00 as damages to his reputation and credit. There has been no evidence introduced in this record to establish that Mr. Lofton suffered any damages to his reputation or to his ability to obtain credit. The burden of proof to establish these losses is upon Mr. Lofton, and absence any evidence or proof on these two claims, the court must deny him relief therefor. The court will deny recovery for an alleged loss of credit and reputation.

“There is a stipulation in the record that Quality Title Company, Top’s Woodwork and Supply, Inc., Vernon Hutchinson and Houma Sheet Metal Works, Inc. would be dismissed from the lawsuit, and accordingly: judgment will be rendered dismissing those third party defendants from this lawsuit, with prejudice.

“Additionally, the court will dismiss the third party demand against Chester Nixon, with prejudice, the court finding as a fact that Mr. Nixon was not at fault or negligent in the performance of his subcontract. The fault and negligence involving the driveway was caused by defendants as here-inabove explained.”

For the above reasons, the judgment of the trial court is affirmed, defendants to pay all costs.

AFFIRMED.


text:
    Sharon Livingston WEBSTER v. James Sidney WEBSTER.
    No. 14536.
    Court of Appeal of Louisiana, First Circuit.
    May 29, 1981.
    Sharon Webster, pro se.
    Charles Ryan, Houma, for defendant and appellee.
    Before COVINGTON, CHIASSON and LEAR, JJ.
   LEAR, Judge.

ON THE SHOW CAUSE ORDER

This court, ex proprio motu, issued a show cause order on May 1,1981, as to why this appeal should not be dismissed for untimely filing.

The following is a chronology of the relevant events in this domestic relations case:

October 27, 1980: Matter tried and taken under advisement
November 4, 1980: Letter sent from plaintiff to Judge Paul R. Wimbish
December 3, 1980: Judgment of separation signed
December 8, 1980: Notice of judgment mailed to plaintiff’s then counsel of record
January 5, 1981: Motion to withdraw filed by plaintiff’s then counsel of record
March 9, 1981: Motion for new trial filed by plaintiff, in proper person
March 10, 1981: Motion for new trial denied as untimely and notice of denial mailed to plaintiff
March 16, 1981: Motion for appeal filed by plaintiff
March 19, 1981: Order granting appeal signed

Articles 3942 and 3943 of the Code of Civil Procedure clearly provide that an appeal from the trial court’s judgment in this case must be taken within thirty days from the applicable date provided in article 2087 of the Code of Civil Procedure. The delay for applying for a new trial is seven days, exclusive of legal holidays. La.C.C.P. art. 1974. Plaintiff’s motion for a new trial of the December 3, 1980, judgment, filed on March 9, 1981, was untimely. The thirty day delay for appeal, which began to run seven judicial days after the notice of judgment was mailed, had clearly expired when plaintiff’s petition and order for appeal was filed on March 16,1981. Under the normal application of these procedural articles, plaintiff’s appeal is untimely and should be dismissed.

Plaintiff contends, however, that notice of the signing of the December 3, 1980, judgment was not properly sent, because it was mailed to her attorney rather than to herself. Plaintiff bases this contention on her letter of November 4, 1980, to the trial judge, informing him that her attorney had withdrawn.

Louisiana Code of Civil Procedure, art. 253, provides that:

“All pleadings or documents to be filed in an action or proceeding instituted or pending in a court . . . shall be delivered to the clerk of the court for such purpose.”

We find that plaintiff’s November 4, 1980, letter, sent to the trial judge rather than filed in the record with the clerk of court, does not constitute sufficient notice to the court as to plaintiff’s attorney’s withdrawal, nor as to any change in the identity of the person to receive notice of the signing of the judgment. See Oubre v. Oubre, 338 So.2d 788 (La.App. 4th Cir., 1976). The fact that plaintiff was proceeding in proper person does not excuse her from complying with the applicable procedural provisions. Foster v. State, Department of Corrections, 361 So.2d 232 (La.App. 1st Cir., 1978). Thus, we believe that the notice of the signing of the December 3, 1980, judgment was properly sent, and plaintiff’s delays for applying for a new trial and/or appeal began to run on the day after the mailing of the notice of judgment.

For the above reasons, we find that plaintiff’s motion for a new trial was untimely filed, as was her petition and order for appeal. Plaintiff’s appeal is, therefore, dismissed ex proprio motu. All costs of this appeal are to be paid by appellant.

APPEAL DISMISSED.


author: SUGG, Justice,

text:
    John ANNARATONE v. STATE of Mississippi.
    No. 52665.
    Supreme Court of Mississippi.
    June 10, 1981.
    Richard T. Phillips, Smith & Phillips, Batesville, for appellant.
    Bill Allain, Atty. Gen. by Marvin L. White, Jr., Sp. Asst. Atty. Gen., Jackson, for appellee.
    Before ROBERTSON, SUGG and BOWLING, JJ.
   SUGG, Justice,

for the Court:

Appellant was convicted in the Circuit Court of Tate County on two counts of rape and sentenced to serve two fifteen-year terms consecutively. On appellant’s motion, these two cases were consolidated for trial.

Appellant does not deny the acts were committed, but only that he lacked the mental capacity for guilt. The sole issue for the jury was whether the appellant was able to distinguish right from wrong at the time the rapes were committed. The facts of both crimes are uncontradicted.

On November 1, 1978, the appellant John R. Annaratone, drove to Tate County and approached Victim # 1 on the pretense of being a prospective buyer of her home stating the realtor had sent him to look at the house. Victim # 1 showed appellant throughout her house and then offered him a glass of iced tea. At that time he pulled a knife, ordered her to the bedroom and raped her. He tied and blindfolded her with nylon stockings, tore the phones from the wall and left. Victim # 1 testified that she heard the appellant empty the ice from the glass into the sink. However, the glass he used was never recovered.

On November 15,1978, appellant drove to the home of Victim # 2. At the front door he inquired about some real estate, asked her where the Ferrow place was and if she might find the phone number for him or allow him to use the telephone. He followed his victim into the mobile home and locked the door. When she turned around, he confronted her with the knife, ordered her to the bedroom and raped her. At the beginning of the sex act, Victim # 2 told appellant she might get pregnant. Before ejaculating, appellant withdrew from her. He then put on his clothes, pulled the phone out of the wall and left. He backed his truck out to the road to conceal his license tag number.

Appellant was arrested March 23, 1979, and confessed to both crimes. Officers from the Tate County Sheriff’s Department and the Mississippi Highway Patrol testified that appellant admitted he attempted to conceal his license tag number by backing out of Victim # 2’s driveway and that he expressed remorse for his actions and concern for both victims.

The defense presented two psychiatrists who concluded appellant suffered from a psychotic depressive reaction and was therefore unable to distinguish right from wrong at the time of the crimes. The 23 lay witnesses who testified for the defense primarily attested to the appellant’s good moral character and exemplary lifestyle before the rapes occurred. The state presented no expert medical testimony on the issue of appellant’s sanity. From this conflicting evidence the jury found appellant was sane when he committed both rapes. In his first assignment of error appellant contends the state’s evidence was not sufficient to refute the experts’ opinions. We disagree.

The Federal and State Constitutions guarantee an accused the right of a trial by jury, not a trial by medical experts. If a jury is not free to reach a verdict contrary to the opinion of medical experts which is contradicted by lay testimony, this would, in effect, substitute a trial by jury to a trial by medical experts. This Court has repeatedly held that, regardless of expert testimony presented by the defense, it is the jury who makes the final determination on the issue of a defendant’s sanity. King v. State, 374 So.2d 808 (Miss.1979); Lias v. State, 362 So.2d 198 (Miss.1978); Knight v. State, 360 So.2d 674 (Miss.1978); Hollins v. State, 340 So.2d 438 (Miss.1976).

In Lias, supra, the defense was predicated on the opinion of a psychiatrist who testified the defendant was unable to distinguish right from wrong at the time of the crimes. Affirming the jury verdict of guilty, we said:

While admitting the closeness of the factual determination, we also acknowledge that such determination is the purpose for which juries exist. We are unwilling on an appeal to overturn a jury determination unless such determination is unsupported by the facts. (362 So.2d at 201)

Appellant’s ability to distinguish right from wrong when he committed the rapes was supported by the state’s evidence; therefore, we are not willing to overturn the jury determination of sanity. Further, the jury’s verdict was not against the overwhelming weight of the evidence.

During deliberations the jury sent a note to the judge asking: “(1) With the top two instructions [verdicts] will the defendant get medical attention, and (2) on the third verdict [not guilty by reason of insanity] who decides how long he is committed?” Appellant does not object to the judge’s response to the jury but contends he was denied a fair trial because the jury improperly considered appellant’s subsequent disposition rather than his sanity or insanity. Appellant argues this inquiry by the jury indicates that the jury had a reasonable doubt as to his ability to distinguish right from wrong at the time he committed the crimes with which he was charged. To the contrary, the inquiry from the jurors demonstrates they were considering the instruction of the court before reaching a verdict.

Appellant’s final contention is that he was denied a fair trial because the jurors read from law books stored in the jury room. At a hearing subsequent to the trial members of the jury testified that some jurors read from one of the books stored in the jury room about an automobile accident case involving a resident of the county and from another book some history of the courthouse. The trial judge denied appellant’s motion for new trial relying on Brister v. State, 86 Miss. 461, 38 So. 678 (1905) which held:

There was no error in the action of the court in overruling the motion for a new trial. The fact that the jury had obtained and consulted law books bearing on the case is not a ground for disturbing the verdict, if it does not appear that any prejudice resulted from the irregularity. 12 Ency. PI. & Pr., 601.
But even if this were not the law, the verdict must be sustained against the assault upon it on another and higher ground. The only evidence in impeach-' ment of the verdict was the testimony of one of the jurors. It is not competent thus to impeach a verdict. “Such evidence is forbidden by public policy, since it would disclose the secrets of the jury room, and afford opportunity for fraud and perjury. It would open such a door for tampering with weak and indiscreet men that it would render all verdicts insecure; and, therefore, the law has wisely guarded against all such testimony, and has considered it as unworthy of notice. It would be a most pernicious practice, and in its consequences dangerous to this much-valued mode of trial, to permit a verdict, openly and solemnly declared in court, to be subverted by going behind it and inquiring into the secrets of the jury room.” 14 Ency. PI. & Pr., 906-909. The testimony should not have been heard. Having been heard, it should have been disregarded, as doubtless it was. (86 Miss, at 463, 464; 38 So. at 678, 679).

We agree with the trial judge’s ruling. It does not appear that reading about an automobile accident case and some history of the courthouse influenced the verdict of the jury to the prejudice of appellant.

AFFIRMED.

PATTERSON, C. J., SMITH and ROBERTSON, P. JJ„ and WALKER, BROOM, LEE, BOWLING and HAWKINS, JJ., concur.

      . The court denied appellant’s request to consolidate an aggravated assault charge in DeSoto County and another rape charge in Marshall County.


author: ALMON, Justice.

text:
    Jeffery L. WILLIAMS, et al. v. David Rex NORTON, et al.
    79-392.
    Supreme Court of Alabama.
    May 29, 1981.
    James E. Hedgspeth of Floyd, Keener & Cusimano, Gadsden, for appellants.
    William D. Hudson of Wilson & Hudson, Gadsden, for appellees.
   ALMON, Justice.

This is an appeal from an order setting aside the vacation of a portion of a public road, Code 1975, § 23-4-20, and enjoining abutting land owners from obstructing the road. We affirm.

Jack Miller, Jr., and Floyd Johnson were the owners of coterminous parcels of land in Etowah County which abut the backwaters of the Henry Neely Reservoir of the Coosa River. On July 28, 1977, Miller and Johnson dedicated a portion of their property to be used as a public street by executing and recording in the office of the Judge of Probate of Etowah County a right-of-way deed to Etowah County. This forty-foot right-of-way, which spanned twenty feet on either side of the common boundary between the Miller and Johnson properties, ran from the backwaters of the Neely Reservoir to other open public roads. (See appended diagram supplied by this Court.)

Subsequent to the dedication, Miller divided his property into parcels and sold one to Jeffery Williams on November 8, 1977; one to Franklin Cotton on December 20, 1977; and one to Lawrence Williamson on January 6,1978. As the appended diagram indicates, all three parcels abut the dedicated road. Williams’s property is situated on the water, while the property sold to Cotton is situated between the Williams and Williamson properties.

On March 21,1978, Johnson and Williams petitioned the Etowah County Commission to vacate that portion of the road which fronted Williams’s property and terminated at the water. The Commission consented to this vacation and a duly executed resolution of the Commission vacating and annulling that portion of the road was recorded in the office of the Judge of Probate on April 14, 1978. With the vacation of this portion of the road, the only other access to the water available to the abutting and nearby land owners was through a private marina, located more than one mile away, which charged a fee for the use of its facilities.

Two months after the vacation, Cotton sold his property to Norton. On May 22, 1979, Norton filed suit in Etowah County Circuit Court to have the vacation set aside and to enjoin Johnson and Williams from obstructing his access to the water. Williamson subsequently joined in the suit as party-plaintiff. Upon the conclusion of the trial, the judge granted Norton and Williamson’s requested relief. Williams and Johnson contend this was in error. We disagree.

It is well settled that an individual may bring an action to enjoin the obstruction of a public road if he suffers an injury different in kind and degree from that suffered by the general public. Ayres v. Stidham, 260 Ala. 390, 71 So.2d 95 (1954). However, because “the vacating of dedicated streets is not lightly to be viewed when it deprives others, and especially abutting land owners, of their use,” McPhillips v. Brodbeck, 289 Ala. 148, 153, 266 So.2d 592, 596 (1972), this Court has recognized that an individual, as an owner of land which abuts a public road, suffers a special injury if an obstruction of that road denies him convenient access to a nearby waterway or forces him to take a more circuitous route to the outside world. Hall v. Polk, 363 So.2d 300 (1978); McPhillips v. Brodbeck, supra, Holz v. Lyles, 287 Ala. 280, 251 So.2d 583 (1971).

In Hall v. Polk, supra, this Court found that the Polks acquired a valuable right by virtue of their close proximity and convenient access to the Bon Secour River. Accordingly, we affirmed the circuit court’s order enjoining Hall from obstructing the public road which served as the Polks’ means of access to the river. In McPhillips v. Brodbeck, supra, this Court held that the circuit court properly set aside a partial vacation of a public street and enjoined the abutting land owners from obstructing the street because it provided McPhillips with the only convenient access to Mobile Bay. Similarly, in Holz v. Lyles, supra, this Court agreed that an injunction would lie to enjoin Holz from obstructing a street which served as Lyle’s means of access to Palmetto Creek because Lyles was “entitled conveniently to enjoy the recreational advantages of his lots in their geographical proximity to Palmetto Creek.” 287 Ala. at 285, 251 So.2d at 588.

It is clear from the foregoing cases that Norton and Williamson have suffered a special injury which entitles them to the relief granted by the circuit court. Both own property which abuts a public road that terminates at a nearby watercourse. Their access to that body of water is a valuable right which not only increases their personal enjoyment of their property but also increases its economic value. The vacation of the road does not serve the interest of either the public or abutting land owners, but instead serves only the personal and individual interests of Johnson and Williams. It forces Norton and Williamson to take a more circuitous route to a point of access to the water where they must pay for such access. Both are thereby denied the right of convenient enjoyment of the economic and recreational advantages of their lots in their geographical proximity to the nearby waterway. We therefore conclude that the order below setting aside the vacation and enjoining the obstruction of the public street is due to be affirmed.

AFFIRMED.

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

APPENDIX


author: ADAMS, Justice.

text:
    Bishop M. H. HUGHES v. ARLANDO’S STYLE SHOP.
    79-748.
    Supreme Court of Alabama.
    May 29, 1981.
    Maury Friedlander of Marr & Friedlan-der, Mobile, for appellant.
    Philip H. Partridge of Brown, Hudgens, Richardson, Whitfield & Gillion, Mobile, for appellee.
   ADAMS, Justice.

This is an appeal from a judgment adverse to the plaintiff, Bishop M. H. Hughes, by the Circuit Court of Mobile County. In his appeal, plaintiff claims that the trial judge erred in not allowing him to introduce a shirt belonging to the plaintiff, and some clippings from the plaintiff’s head. Plaintiff claims that the bloody shirt and hair sought to be introduced both went to the extent of the damage he suffered as a result of defendant’s negligence. The trial court disallowed the introduction of this evidence because plaintiff’s attorney could not state to the court that this physical evidence had been timely exhibited to the other side, as provided by the court’s pretrial order of October 6, 1980.

Plaintiff claimed that the defendants, among other things, negligently placed a solution on his head which caused his head to become sore, bruised and contused and caused him loss of hair.

The sole issue in this case is whether or not the trial court abused its discretion in not amending its pretrial order of October 6, 1980, to allow plaintiff to introduce into evidence a bloody shirt and hair clippings which he could not assure the court he had made available to the defendant’s lawyer prior to the trial, as provided for by said pretrial order. We hold that the trial court did not abuse its discretion and affirm.

Whether a pretrial order will be amended is within the sound discretion of the trial court. Currie v. Great Central Insurance Company, 374 So.2d 1330 (Ala.1979). We will not interfere with that discretion unless there has been a clear abuse thereof. Westric Battery Company v. Standard Electric Company, 522 F.2d 986 (10th Cir. 1975); Trask v. Susskind, 376 F.2d 17 (5th Cir. 1967). Here, there was no abuse of discretion, because plaintiff failed to show in what manner he was prejudiced by the trial court’s disallowance of this evidence. The plaintiff, as well as his own physician, testified extensively concerning his scalp condition, which he says was caused by a solution placed on his head by the defendants. On the other hand, we can see that the introduction of the bloody shirt to the jury might indeed prejudice the defendants’ case, especially when it had not had opportunity to examine the shirt and properly prepare a defense.

There being no error in the ruling of the trial court, the judgment is due to be affirmed.

AFFIRMED.

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


text:
    Paul Grissett ANDERSON v. Homer A. ANDERSON, et al.
    79-793.
    Supreme Court of Alabama.
    May 29, 1981.

      John E. Byrd of Byrd, Carter & Smith, Dothan, for appellant.
    Oliver Brantley of Brantley & Calhoun, Troy, for appellees.
   ADAMS, Justice.

This case involves litigation between brothers, sisters and a nephew, concerning land owned by their father, mother and grandparents, Mr. and Mrs. Charles A. Anderson. Paul, Addie and Charles sued Homer, Cleone, Annie and Herman. Homer is the son of Shelby and the grandson of Mr. and Mrs. Charles Anderson. The suit sought cancellation of four deeds, on the grounds of failure of consideration, fraud and undue influence. Attached as an appendix to this opinion is defendant’s rendition of his Exhibit M, which graphically sets forth the location of each parcel and describes improvements placed thereon after each conveyance made by the grantors. This case was tried non-jury before the Circuit Court of Pike County and judgment was rendered in favor of all defendants on April 23,1980, from which one of the plaintiffs, Paul Anderson, appeals.

On October 14, 1968, Mr. Anderson and his wife, in consideration of $15,000.00, conveyed Parcel 1, comprising 3.73 acres to Shelby and Homer, who erected on it, at the cost of $50,000.00, a building to house their John Deere tractor and implement dealership. On December 4, 1970, Mr. and Mrs. Anderson executed a deed to Shelby and Homer, comprising .13 acres. Mr. Anderson stated that he noticed that the original Parcel 1 sat at an angle to the highway and that he wanted to square up this original parcel by adding the .13 acres, which formed a triangle. This land is called Parcel 1-A. Shelby eventually deeded his interest in parcels 1 and 1-A to his son, Homer. Mrs. Anderson died in December 1970 and Mr. Anderson died April 29, 1977.

On March 7, 1974, Mr. Anderson sold to Homer, Parcel 2, comprising 1.23 acres. In the spring of 1976, Homer entered into negotiations with Garnett Rigsby Ford, Inc., and Ford Motor Company concerning construction by Homer and lease by Rigsby, of a Ford dealership building on Parcels 2 and 3, if he should be able to acquire Parcel 3. He discussed the proposed purchase with his grandfather, who discussed the purchase with his attorney and the grandfather indicated to the grandson a willingness to sell, but became seriously ill and was admitted in a comatose condition to the hospital on May 26, 1976. Mr. Anderson, however, made a remarkable recovery and was released from the hospital on July 21, 1976. On July 21, 1976, Homer made an offer to purchase Parcel 3 from his grandfather for $25,000.00. Mr. Anderson consulted his own attorney, who suggested that he go up $5,000.00. On July 27, 1976, Homer’s attorney called Mr. Anderson’s attorney and told him he would pay the additional $5,000.00, and on that same day Homer purchased a cashier’s check payable to Mr. Anderson in the amount of $30,000.00 and delivered same to him in the presence of his attorney and Mr. Anderson’s attorney and closed the transaction for Parcel 3.

Homer then proceeded to construct on Parcels 2 and 3, the Garnett Rigsby Ford building at a cost of more than $200,000.00. He borrowed $150,000.00 from Troy Bank and Trust Company, giving it a mortgage on the property to secure the loan. The appellant, Paul Anderson, knew about the construction of the Ford building, as well as the construction of the John Deere building by Shelby and Homer.

The plaintiffs originally filed this suit and requested a jury trial. On December 18, 1979, the Circuit Court issued an order to the effect that the issues of undue influence and capacity to convey would be submitted to an advisory jury. On January 14, 1980, both sides announced ready when the case was called. After the court had finished its voir dire of the jury, plaintiffs’ counsel asked whether the court was going to call the witnesses then, or at a later date. The court indicated it would do whatever the plaintiffs wanted in this regard. The plaintiffs then agreed to go ahead with the rest of the voir dire. After the jury was put into the box, the court called the witnesses, and plaintiffs, for the first time, found out that two witnesses had been excused by the court for medical reasons. Plaintiffs moved for a mistrial, claiming that the court should have informed them that it had excused these witnesses prior to voir dire of the advisory jury. Thereupon, the court ruled that the plaintiffs would have to proceed to try the case with the advisory jury in the box, or have the case continued to a later date when the case would be tried non-jury, but they would have the opportunity to add additional parties. Plaintiffs chose to try the case non-jury and added as defendants a brother, along with the two sisters who had been formerly subpoenaed as witnesses.

As we see it, the issues presented by the facts and framed by the briefs of the parties are as follows:

1. Did the trial court err in failing to notify the attorneys of medical excuses that it had given to witnesses prior to voir dire examination of the prospective advisory jury?
2. Did the trial court err in deciding that the grantors possessed the requisite mental capacity and were not unduly influenced in executing each deed at issue in this case?

To each question we answer in the negative and affirm.

Our analysis must begin with a determination of what rights plaintiff Paul Anderson had to an advisory jury in a suit to cancel deeds based on lack of mental capacity and undue influence. It is hornbook law that a plaintiff in a suit to cancel a deed on the grounds stated by the plaintiff herein is not entitled to a jury as a matter of right. This is not to say that the court, having before it entirely equitable matters, may not on its own decide that it would like an advisory jury. This is entirely discretionary with the court and it may change its mind if it sees fit. Nesmith v. Vines, 248 Ala. 72, 26 So.2d 265 (1946); Lucas v. Scott, 247 Ala. 183, 24 So.2d 540 (1945); Hill v. Lindsey, 223 Ala. 550, 137 So. 395 (1931); ACRP, Rules 39(c) and 52. But the plaintiff contends that inasmuch as the court, in a pretrial order, indicated that this case would be tried with an advisory jury, that somehow this decision was fixed in concrete. Although we have said that we will not disturb a trial court’s refusal to amend a pretrial order where such refusal is reasonable and where no substantial prejudice results to one of the parties, this does not mean that the trial court can never amend its pretrial order. Westric Battery Company v. Standard Electric Company, 522 F.2d 986 (10th Cir.1975); Trask v. Susskind, 376 F.2d 17 (5th Cir.1967); Hughes v. Arlando’s Style Shop, 399 So.2d 830 (Ala. 1981); Currie v. Great Central Insurance Company, 374 So.2d 1330 (Ala.1979).

We opine that plaintiff’s difficulty with the advisory jury is largely of his own making. It is the responsibility of the lawyers to determine if their witnesses are present or available when they announce ready for trial. The mere fact that the court excused the two witnesses claimed indispensable by the plaintiff, does not diminish that fundamental responsibility. A brief excerpt from the record of the colloquy between the court and counsel will clearly indicate the extent of counsel’s involvement in the problem presented here:

MR. BYRD: Thank you very much, Your Honor. There’s one question that comes to mind; is the Court going to call the witnesses and put them in a witness room at this time or does the Court intend to do that at a later date?
THE COURT: I haven’t given it much thought, Mr. Byrd. I’d be glad to do it either way you want to, call them, now, get a jury, then call them, anyway you want to.
MR. BYRD: However it would please the Court will be all right with us.
THE COURT: I don’t have any preference.
MR. BYRD: All right. We’ll go ahead with the voir dire, then.

Later on, the court and plaintiff’s counsel had the following colloquy:

MR. BYRD: We understand from the letters that we see here that Annie and Cleone are both unable to be here. They are indispensable witnesses in this case, absolutely necessary to the trial of this case, we feel. Of course, that was one of the reasons I mentioned the call of the witnesses prior to the voir dire, and the striking of the jury.
THE COURT: Well, I distinctly remember giving you a choice—
MR. BYRD: Yes, sir. That’s true. I assume responsibility for it.

Counsel cannot have it both ways. He cannot accept responsibility for what happened, and then on appeal, seek to reverse the court because of the problem he created.

Plaintiffs’ complaint seeks to cancel four deeds executed by their father and mother, on the grounds of lack of mental capacity and undue influence. Plaintiff Paul Anderson’s brief concentrates mostly on setting aside the last deed, which was executed by his father six days after he had suffered a serious illness that required extensive hospitalization. Although it is true that Mr. and Mrs. Anderson were elderly when the deeds were signed (Mrs. Anderson only signed the deeds of October 14, 1968 and December 4, 1970), Mrs. Anderson being 84 years of age when the 1968 deed was signed and Mr. Anderson being 86 years of age at that time, both having had physical ailments, this is insufficient to prove that they did not have the requisite mental capacity to execute a conveyance. We stated the law with reference to mental incapacity to void a conveyance of land in the case of Fortune v. Boutwell, 271 Ala. 592, 595, 126 So.2d 116, 118 (1960). We observed in that case as follows:

We have stated the governing principle in varying language: Incapacity to understand the business transacted, as distinguished from mere sickness, must be proved in order to avoid a conveyance. Stanfill v. Johnson, 159 Ala. 546, 49 So. 223. A person with sufficient mental ability to comprehend what he is doing and understand the nature of the act and its consequences has capacity to make a deed. Frederic v. Wilkins, 182 Ala. 343, 62 So. 518; Harris v. Bowles, 208 Ala. 545, 94 So. 757; Hall v. Britton, 216 Ala. 265, 113 So. 238. Mere weakness of intellect is not sufficient to incapacitate a grantor and to warrant cancellation of a deed on ground of mental incapacity. McKinney v. Weatherford, 242 Ala. 493, 7 So.2d 259. The law presumes everyone to be sane until the contrary is proved, and it is unsoundness of mind and incapacity to understand the business transacted, in contradistinction to mere weakness, which must be proved in order to avoid a conveyance. Halman v. Bullard, 261 Ala. 115, 73 So.2d 351. Likewise, advanced age or mental enfeeblement is not sufficient .to invalidate a conveyance unless the grantor’s mind was so impaired as to render her incapable of acting intelligently and voluntarily in the conveyancing. Lee v. Menefield, 249 Ala. 407 31 So.2d 581.

It would serve no useful purpose to detail the statements of witnesses which support the court’s judgment that Mr. and Mrs. Anderson had sufficient legal capacity to execute the conveyances in question here, and were not unduly influenced. Although Mr. Anderson had been seriously ill before the execution of the last deed, he did sign it in the presence of his lawyer, obtained the $5,000.00 increase in the price originally offered, and quipped at the closing with the lawyers about two lawyers who had similar telephone numbers and questioned which lawyer was losing business to the other. Over the years he showed great mental acumen — he was able to get an increase in the amount of money for property sought in a state condemnation hearing, and on his own, thought to give to his son Shelby and his grandson Homer additional property which would square Parcel 1.

The testimony of Betty Russell, a registered nurse, now an instructor at Troy State University School of Nursing, is particularly instructive on the question of Mr. Anderson’s mental capacity during the latter stage of his life. She testified that she visited Mr. Anderson every two weeks after his discharge from the hospital up until the time of his death, her visits lasting 30 to 45 minutes. She stated that he was never irrational. A short excerpt from her testimony is as follows:

A. Yes, we always talked about — I mean I talk with every patient, but the thing that really amazed me, I think about him was that he was so up to date in current events. Like he talked a lot about politics and it was relevant.

The record reveals that the plaintiffs lived away from their father and the defendants lived in Troy, Alabama, in close contact with him. The plaintiffs did not visit him very often.

In Gilbreath v. Gilbreath, 278 Ala. 289, 293, 177 So.2d 915, 918 (1965), we said:

Where the evidence is heard orally by the trial judge, his conclusions therefrom have the effect of a jury’s verdict and his finding should not be disturbed unless plainly erroneous or manifestly wrong. Mize v. Mize, 273 Ala. 369, 141 So.2d 200; Maxwell v. City of Birmingham, 271 Ala. 570, 126 So.2d 209, 211; Board of Zoning Adjustment for the City of Lanett v. Boykin, 265 Ala. 504, 508, 92 So.2d 906.

A careful review of the record does not reveal that the judgment of the circuit court was plainly erroneous. It is, therefore, due to be affirmed.

AFFIRMED.

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

APPENDIX


text:
    Charles H. LANGLEY v. James E. BEASLEY, III.
    79-822.
    Supreme Court of Alabama.
    May 29, 1981.

      Stephen D. Heninger of Hare, Wynn, Ne-well & Newton, Birmingham, for appellant.
    Jerry R. Barksdale, Athens, for appellee.
   ALMON, Justice.

This is an appeal from a judgment against the appellant on a promissory note. We affirm.

Frozen Carbonated Beverages, Inc., was indebted to its president, James E. Beasley, III, in the amount of $9,114.14 for machinery Beasley, in his individual capacity, had purchased for the corporation. On August 1, 1973, Beasley executed on behalf of the corporation a promissory note for that amount, payable to himself. Charles Langley witnessed this note in his capacity as Frozen’s secretary-treasurer and also signed as “maker.” Langley’s wife, Virgie, also signed as “maker,” even though she neither had an interest in nor held a position with Frozen. The note provided:

FOR VALUE RECEIVED, the undersigned jointly and severally promises to pay James E. Beasley, III, or order the principal sum of Nine Thousand One Hundred Fourteen and 14/100 ($9,114.14) Dollars with interest at the rate of six percent (6%) per annum.
******
The makers and endorsers of this note hereby expressly waive all right to claim exemptions allowed by the Constitution and Laws of this or any other State * *. Notice and protest on the nonpayment of this note is hereby waived by each maker and endorser; and it is understood and agreed by each person whose name is signed hereto that he signs this note without any condition or representation as to any other person or persons having signed the same, or that any other person or persons shall sign the same as maker or endorser.
Done this the M day of August. 1973.
ATTEST: FROZEN CARBONATED BEVERAGES, INC. a corporation
/s/ Charles H. Langley BY: /s/ James E. Beasley, III (SEAL) Secretary-Treasurer James E. Beasley, III, Its President
WITNESSES:
_ /s/ Charles H. Langley (SEAL) Maker /a/ Virgie Langley (SEAL) Maker

When the note was not paid as promised, Beasley filed suit against Frozen, Charles Langley and Virgie Langley.

Beasley moved for summary judgment, and supported his motion with his affidavit in which he stated that the Langleys agreed to be personally liable on the note as part of the consideration for the sale of Frozen by its owner, Sweet Sue Kitchens, Inc., to Charles Langley. Langley countered with his own affidavit in which he stated that he and his wife executed the note on behalf of Frozen and not as individuals. Beasley’s motion for summary judgment was subsequently denied and the case was placed on the non-jury docket.

Upon conclusion of the trial, the trial judge entered a judgment in favor of Beasley and against Charles Langley; a judgment was also entered for Virgie Langley based upon the trial judge’s determination that there was no consideration to support her promise on the note. Charles Langley appeals.

We think that the judgment against Charles Langley is due to be affirmed. It was a question of fact whether he signed the note in his individual capacity or on behalf of Frozen. There exists ample evidence from which the trial judge, hearing the witnesses ore tenus, could reasonably conclude that Charles Langley signed the note in his individual capacity. Because this finding is neither palpably erroneous nor manifestly unjust, the judgment is due to be affirmed. Smith v. McNaughton, 378 So.2d 703 (Ala.1979); Gertz v. Allen, 376 So.2d 695 (Ala.1979).

AFFIRMED.

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


text:
    Ex parte The ALABAMA GREAT SOUTHERN RAILROAD. In re ALABAMA POWER COMPANY v. Mose SWAIM, et al.
    80-183.
    Supreme Court of Alabama.
    May 29, 1981.
    James J. Jenkins of Phelps, Owens, Jenkins, Gibson & Fowler, Tuscaloosa, Cathy S. Wright of Cabaniss, Johnston, Gardner, Dumas .& O’Neal, Birmingham, for petitioner.
    James H. Miller, III of Balch, Bingham, Baker, Hawthorne, Williams & Ward, Birmingham, and Olin W. Zeanah of Zeanah, Donald & Hust, Tuscaloosa, for respondents.
   ALMON, Justice.

Petition for writ of mandamus to the Honorable Fred W. Nicol, Judge of the Circuit Court of Tuscaloosa County, Alabama.

Alabama Power Company filed an application for an order of condemnation in the probate court of Tuscaloosa County, Alabama seeking to condemn a right-of-way over an existing right-of-way owned by the petitioner, Alabama Great Southern Railroad Company. Specifically, Alabama Power sought a right-of-way over AGS’s railroad tracks in order to relocate its overhead transmission lines to a point 500 feet south of where they already crossed AGS’s tracks and to add an additional transmission line to those existing lines.

The Honorable W. Hardy McCollum, Judge of the Probate Court of Tuscaloosa County, Alabama presided over the condemnation proceedings. At the close of Alabama Power’s case, AGS moved for a directed verdict on the ground that Alabama Power failed to carry the burden of proof imposed upon one who seeks to condemn property already devoted to a public use. AGS’s motion was denied. Judge McCol-lum subsequently entered an order granting the right of condemnation and appointed commissioners to establish the value of the property.

AGS then filed a petition for writ of mandamus in the circuit court. The Honorable Fred W. Nicol granted this petition and commanded Judge McCollum to either dismiss the application for condemnation or to appear before him on December 15,1980, to show cause why he should not do so. On November 25, 1980, Alabama Power filed a motion to dismiss the petition for writ of mandamus. At a hearing held before him on that day, Judge Nicol realized that he had signed AGS’s petition under the mistaken belief that it was another case, as the following excerpts from the transcript of the hearing reflect:

MR. ZEANAH: Judge, the reason we are here_
THE COURT: Yes, sir.
MR. ZEANAH: Is to file with the court a motion to quash the Writ of Mandamus which you had signed on [November] 18.
THE COURT: Had I just set a date for it?
MR. ZEANAH: No, sir.
THE COURT: I actually issued a Mandamus?
MR. ZEANAH: Yes, sir, and it is dated [November] 18, 1980, and we want to file this motion to quash and to dismiss the petition for mandamus which Alabama Great Southern Railway has filed.
******
THE COURT: How did this get sent to me in the first place? I thought I had signed something in the Peco case, which is a condemnation case that we had just had a hearing about. * * * *
******
THE COURT: I will give you gentlemen my word in thinking back on this thing I thought I had signed an order to answer interrogatories in the Peco case. I knew I told them to put it in writing, but this is the petition here. I must have signed the order.
MR. ZEANAH: That is our petition.
THE COURT: Well, I mean ...
MR. JENKINS: The order is in the court file.
THE COURT: Where is the order I signed?
MR. JENKINS: In the court file, Your Honor.
THE COURT: Well, Jim, I am sorry. I don’t know anything else I could do about the mistake. I just don’t want to make two wrongs.
******
THE COURT: Well, I am sorry, gentlemen. I am sorry it happened is all I can say, but in view of the circumstances I feel that I should quash what I did through error.
******
MR. JENKINS: Is Your Honor going to enter that order now?
THE COURT: Yes, sir, I feel that I should.
******
MR. MILLER: Did you date the order, Your Honor?
THE COURT: I dated it 11-25-80. The foregoing motion is sustained and granted and said petition is ordered dismissed and the writ is quashed.
******

Neither the merits of the motion to dismiss nor the facts in the case were discussed during this hearing.

AGS has filed a petition for writ of mandamus in this Court requesting that Judge Nicol be directed to vacate his order dismissing the petition and to conduct a hearing on the merits of the petition. We think AGS is entitled to its requested relief.

The decisions of this Court in Brittain v. Southern Railway Co., 280 Ala. 650, 197 So.2d 453 (1967); Southern Railway v. Todd, 279 Ala. 260, 184 So.2d 341 (1966); Lybrand v. Forman, 259 Ala. 354, 67 So.2d 4 (1953); and Gerson v. Howard, 246 Ala. 567, 21 So.2d 693 (1945), recognized the rule that mandamus is a proper remedy to review an order of condemnation entered by the probate court. It is implicit from those cases that the petitioner is entitled to have the merits of its petition considered and that the circuit court judge should conduct a hearing and enter an appropriate judgment on the merits of the petition.

WRIT GRANTED.

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


text:
    Ex Parte Otis GRAY. (Re Otis Gray v. State of Alabama).
    80-468.
    Supreme Court of Alabama.
    May 29, 1981.
   ADAMS, Justice.

WRIT DENIED — NO OPINION.

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


author: JONES, Justice.

text:
    Nicholas MADISON, et al. v. Bill G. LAMBERT.
    80-73.
    Supreme Court of Alabama.
    June 5, 1981.

      Tyrone C. Means of Gray, Seay & Lang-ford, Montgomery, for appellants.
    Jesse M. Williams, III of Rushton, Stakely, Johnston & Garrett, Montgomery, for appellee.
   JONES, Justice.

Appellants appeal from a trial court decree adjudging Code 1975, § 35-6-100 et seq., “patently unconstitutional,” and, pursuant to such a determination, ordering a public sale of certain jointly owned property. We reverse.

Invoking § 35-6-100 et seq., certain of the Appellants filed a timely offer to purchase Lambert’s interest in the property as well as the interests of all others seeking to sell.

On February 22, 1980, Lambert filed a motion to strike Appellants’ offer to purchase, alleging that § 35-6-100 et seq., violated the Due Process and Equal Protection Clauses of the Fifth and Fourteenth Amendments to the United States Constitution.

The circuit court, on June 3, 1980, granted Lambert’s motion to strike Appellants’ offer to purchase on the ground that the challenged statute was “patently unconstitutional.” On September 2, 1980, the circuit court issued a decree for sale, ordering a public auction for the sale of the subject property.

In urging our affirmance of the trial court’s determination that § 35-6-100 et seq., is “patently unconstitutional,” Appel-lee attacks the statute as being in deprivation of his rights to 1) have the property sold for division, and 2) have the land partitioned. According to Appellee, the destruction of such “vested” rights by a state statute clearly derogates that protection afforded under the Due Process and Equal Protection Clauses of the United States Constitution.

Even if we embrace Appellee’s statement of jurisprudence concerning “vested rights,” we refuse to accede to his contention that § 36-6-100 abolished vested rights. Simply stated, his rights were' not “vested.” The right to a sale for division of proceeds is not inherent, but derives from statute. Ragland v. Walker, 387 So.2d 184 (Ala.1980); Raper v. Belk, 276 Ala. 370, 162 So.2d 465 (1964).

In enacting Code 1975, § 35-6-20, the Legislature formulated a procedure whereby joint owners or tenants in common could sell property for division only after adducing proof that the land could not be equitably divided “in kind.” Watson v. Durr, 379 So.2d 1243 (Ala.1980).

Section 35-6-100 et seq., was ostensibly drafted to protect joint owners from being divested of their property in a forced “public” sale by allowing them the option to purchase the filing joint owner’s interest. Prince v. Hunter, 388 So.2d 546 (Ala.1980). (Although the constitutionality of the statute was upheld in Prince, its validity was challenged in the narrow context of the statute’s use of the word “shall” rather than “may.”)

In refuting Appellee’s contention that § 35-6-100 et seq., obliterated his “right” to a public sale for division, we adopt Appellants’ premise that no rights have been destroyed. The only change brought about by § 35-6-100 et seq., is the manner in which the sale is effectuated.

The mere passage of legislation does not of itself abrogate the prerogative of the legislature to thereafter refine, modify, or recompose the same by additional legislation, subject, of course, to the same constitutional scrutiny as that afforded the original enactment. Ala.Const. 1901, Section 44; Newberry v. City of Andalusia, 257 Ala. 49, 57 So.2d 629 (1952).

Appellee next asserts that certain portions of § 35-6-100 — “Upon the filing of any petition ...” and “[must be initiated] not later than 10 days prior to the date set for trial ... ” — effectively remove his right to have the land equitably partitioned. As stated in Watson, supra, a prerequisite to the invocation of § 35-6-20 is that evidence be introduced affirmatively proving that the land cannot be partitioned “in kind.” See, also, Meador v. Meador, 255 Ala. 688, 53 So.2d 546 (1951).

By demanding that the property in question be “sold and the proceeds from said sale be divided and distributed among the joint owners and tenants in common ...,” Appellee, necessarily, has conditioned his prayer for relief on the jurisdictional assertion that the property cannot be partitioned in kind. Watson and Meador. Therefore, he cannot now assert his right to partition in defense of Defendants’ prerogative to invoke § 35-6-100.

Appellee next contends that § 35-6-100 et seq., deprives him of equal protection of the law in that it creates an arbitrary and capricious classification, to wit: favoring defendants over plaintiffs. We cannot agree.

The “test” by which a state statute establishing nonsuspect or nonfunda-mental classifications is deemed to come within the purview of “equal protection” is whether the state action is rationally related to any legitimate state interest. Baker v. Baxley, 348 So.2d 468 (Ala.1977). Section 35-6-100 et seq., obviously seeks to avoid that situation whereby joint owners of property are divested of ownership through a forced public sale brought about as a result of a plaintiff’s petition for a sale for division.

The requisite rational basis for the statute’s classification perforce finds itself in the protection afforded co-owner defendants against co-owner plaintiffs seeking involuntary severance of the co-ownership for pro rata distribution of the proceeds of sale. Prince, supra. For an excellent discussion of the operative effect of § 35-6-100, see the recent decision of this Court authored by Justice Maddox in Kittrell v. Benjamin, [MS. March 27, 1981] 396 So.2d 93 (Ala. 1981). (Although we approved the constitutionality of the statute in Kittrell, we did not address the specific constitutional issues presented in the instant case.) Suffice it to say, therefore, in our view there exists a “rational basis” for the statutory scheme founded on a “plaintiff-defendant” distinction.

Lastly, Appellee submits that pursuant to Code 1975, § 35-6-101, one seeking a sale for division is deprived of his right to a “hearing” on the determination of the property’s fair market value. Additionally, Ap-pellee asserts that this infraction, along with the statute’s failure to provide a plaintiff with the right to cross-examine court appointed appraisers, violates his rights to due process. We are unable to adopt such contention.

A close reading of the statute reveals that the court appointed experts are utilized only “in the event the parties cannot reach agreement as to the price.” Nothing in the subject statute prevents any challenge of the appraiser’s report to the court. Nowhere is the court mandated to accept such appraisals. Nothing prevents an objection by any party to the selection of particular appraisers. The court, in the exercise of its equitable power, is free to accept or reject any appraisal, and to order a new appraisal where the ends of justice demand.

Clearly, such safeguards cannot be equated with a violation of due process.

REVERSED AND REMANDED.

All the Justices concur.

      . “§ 35-6-100. Upon the filing of any petition for a sale for division of any property, real or personal, held by joint owners or tenants in common, the court shall provide for the purchase of the interests of the joint owners or tenants in common filing for the petition or any others named therein who agree to the sale by the other joint owners or tenants in common or any one of them. Provided that the joint owners or tenants in common interested in purchasing such interests shall notify the court of same not later than 10 days prior to the date set for trial of the case and shall be allowed to purchase whether default has been entered against them or not. (Acts 1979, No. 79-334, p. 532, § 1.)”
      “§ 35-6-101. In such circumstances as described in section 35-6-100, and in the event the parties cannot reach agreement as to the price, the value of the interest or interests to be sold shall be determined by one or more competent real estate appraisers or commissioners, as the court shall approve, appointed for such purpose by the court. The appraisers or commissioners appointed under this section shall make their report in writing to the court within 30 days after their appointment. (Acts 1979, No. 79-334, p. 532, § 2.)”

      . “§ 35-6-20. The circuit court shall have original jurisdiction to divide or partition, or sell for partition, any property, real or personal, held by joint owners or tenants in common; whether the defendant denies the title of plaintiff or sets up adverse possession or not; and the court in exercising its jurisdiction shall proceed according to the Alabama Rules of Civil Procedure and, where necessary, allow service of process by publication as prescribed therein. (Code 1886, § 3262; Code 1896, § 3187; Code 1907, § 5231; Acts 1909, No. 123, p. 124; Code 1923, § 9331; Code 1940, T. 47, § 186.)”


author: BRADLEY, Judge. HOLMES, Judge

text:
    Saundra PATTERSON v. Charles Myers PATTERSON, Jr.
    Civ. 2342.
    Court of Civil Appeals of Alabama.
    Nov. 19, 1980.
    Rehearing Denied, Dec. 24, 1980.
    See also, Ala., 399 So.2d 849.
    DeWayne N. Morris and Curtis 0. Liles, III of Markstein & Morris, Birmingham, for appellant.
    Douglas Corretti and Samuel Maples of Corretti, Newsom & Rogers, Birmingham, for appellee.
   BRADLEY, Judge.

This is a child custody case. The wife appeals from the modification of a divorce decree awarding custody to the father. We reverse.

Saundra and Charles Patterson were divorced on April 25, 1979. The custody of their two young children was awarded to Saundra, the mother.

On January 30, 1980 the father, Charles, filed a petition in the Circuit Court of Jefferson County asking that the divorce decree be modified by awarding him custody of the children. The petitioner averred that circumstances had changed since the divorce decree in that the mother was openly living with a man to whom she was not married and, therefore, she was not a fit person to have custody of the children. Saundra denied this charge, and the trial court, after an ore tenus hearing, entered an order finding “that since the date of the divorce of these parties, the Plaintiff has conducted herself in such a manner in the presence of the minor children of the parties, that a consideration for the welfare of the said minor children require that there be a change of custody.” The custody of the children was then awarded to the father.

The evidence shows that at all times since her divorce, Saundra has lived with her two children in a three bedroom house in Birmingham where they lived prior to Saundra’s and Charles’s divorce. On at least three occasions during October and November 1979 Mr. Gewin Johnson spent the night at Saundra’s house. On these occasions Saundra admits having sexual intercourse with Johnson. Saundra admits that these were not the only occasions Johnson spent the night at her home. Saundra’s children were home on the three nights Johnson spent the night during October and November but they were not always home when he stayed there. When Johnson spent the night with Saundra the children never entered the bedroom where the sexual relations occurred. The children were asleep in their own bedroom some ten steps away.

Charles is employed at Handy TV Warehouse. He is twenty-nine years old and his present wife is thirty-five years old. Charles made $13,000 in 1979. He is a salesman and his income varies depending on his commissions. Sandra Sue, Charles’s current wife, is unemployed, pregnant, and receiving unemployment compensation. Charles and Sandra Sue had engaged in regular sexual relations with each other prior to their respective divorces. Furthermore, Charles and Sandra Sue spent the night together along with Sandra Sue’s twelve year old daughter in a motel in Pell City, Alabama prior to their respective divorces. After Charles and Sandra Sue had divorced their former spouses, but prior to their marriage to each other, they resided in an apartment together. Also Sandra Sue voluntarily gave up custody and control of her minor children as part of her divorce from Thomas Ray McClellan. Sandra Sue’s children by her prior marriage are now residing with her and Charles, but she does not receive any child support. Her children are a boy age seventeen and a girl age twelve. They now live in a two bedroom apartment but plan to move into a larger house.

Saundra is twenty-seven years old and is employed at Photocopy, Incorporated. The divorce decree awarded Saundra child support payments of $65.00 per week plus twenty-five percent of Charles’s net take-home commissions.

The issue before this court is whether there has been such a material change in circumstances as to authorize the trial court to take custody of the children from the mother and award it to the father.

At the outset, we take notice of the following time-honored principles:

First, it is well established that where testimony is taken ore tenus, the finding by the trial court has the weight of a jury verdict and such finding will not be disturbed unless plainly and palpably wrong and contrary to the great weight of the evidence.
Second, divorce decree providing for custody of a minor child will not be modified unless changed conditions are shown which justify such modification.
Third, in proceeding to modify a divorce decree respecting custody, each case must rest on its own facts and circumstances with the principle always in mind that the welfare of the child is of paramount importance.
Fourth, where the children are of tender years, the mother is generally considered better fitted to exercise custody unless she is unfit for the trust.
And, finally, it is held in this state that a party seeking modification of a child custody provision of a divorce decree must allege and show some change of conditions or other substantial reason for modification. [Citations omitted.]

Gould v. Gould, 55 Ala.App. 379, 316 So.2d 210 (1975).

The mother argues that the evidence totally fails to show that she is an unfit mother and should be deprived of her children. The father replies that the mother has conducted herself in such a manner that she is not fit to have the custody of the children because she has been illicitly cohabiting with a man to whom she is not married in the house where she and the children reside. The mother says that her boyfriend has spent the night at the house and they have had sexual relations but never in the presence of the children. But she also says that her former husband, while married to her, had sexual intercourse over a period of several months with the woman to whom he is presently married; and that on one occasion when he was staying with this woman, who was also married to someone else at the time, they were forced to leave the apartment and go to a motel because relatives of the woman discovered them in her apartment. At the motel the husband and his married woman friend slept in one bed and the woman’s twelve year old daughter slept in the other bed in the same room.

The evidence shows that Saundra, on several occasions, had sexual intercourse with a man not her husband while her two children were in the same house. Nowhere in the record does there appear any evidence that the children witnessed or were even aware of such conduct. The children are ages six years and four years. They were asleep in their own bedrooms when their mother and Johnson were in another room. At no time were the children in the presence of this conduct. In Roberson v. Roberson, Ala.Civ. App., 370 So.2d 1008 (1979) the mother allegedly engaged in an act of oral sex with an employee of the husband in her bedroom while her two children were crying and beating on the locked bedroom door. We said then:

[Although it [sexual act] was alleged to have been committed while the children were in the Roberson home, it was not in their presence. The remaining testimony which relates to the mother’s unfitness, particularly that of Mr. Dunlap, at best tends to indicate indiscretion on her part. But here again, there is no proof that it occurred in the children’s presence or that it had a direct bearing on their welfare.

While this court in no way condones such conduct on the mother’s part, we do not consider these acts of indiscretion alone to be sufficient to warrant a custody change. Gould v. Gould, supra.

We also said in Roberson, supra that:

With respect to the modifications premised on the moral unfitness of the mother with whom custody of the children was originally vested, it has long been held that while indiscreet conduct is a factor to consider, a mother will not be denied custody for every act of indiscretion or immorality. Gould, supra. This rule obtains especially where the party seeking modification fails to establish a substantial detrimental effect by the immoral conduct on the welfare of the child.

See also Etheridge v. Etheridge, Ala.Civ. App., 375 So.2d 474 (1979).

Again, we point out that the trial court based its decision to deprive the mother of the children’s custody solely on her conduct with her boyfriend. Also, the thrust of the evidence was directed solely toward the immoral relationship of the mother and her boyfriend.

We are of the opinion that the father has failed to carry the burden placed upon him to show a substantial change in circumstances since the divorce such as would warrant a change in custody of the children. At most, the father proved only that the mother had acted indiscreetly. There was no proof that such conduct occurred in the presence of the children and no proof was offered that such conduct had adversely affected the children. Furthermore, the conduct of the father with his present wife during the time he was married to the appellant would'militate against a finding that he was a more fit person to have custody of the children than the appellant.

Based on this state of the evidence we conclude that the trial court erred in changing the custody of the children from the mother to the father, and we reverse its judgment. The case is remanded for entry of a judgment consistent with this opinion.

REVERSED AND REMANDED WITH INSTRUCTIONS.

WRIGHT, P. J., concurs.

HOLMES, J., dissents.

HOLMES, Judge

(dissenting):

I respectfully dissent.

It is axiomatic that where a trial court modifies a child custody decree after hearing evidence ore tenus, its findings will not be reversed on appeal unless those findings are plainly and palpably wrong. I do not believe that in this instance the trial court is plainly and palpably wrong.

As I view the testimony, there is evidence that would support the conclusion that a male acquaintance of the mother in fact resided in the home of the mother. At least, the evidence supports a conclusion that the male friend was in the home on a frequent basis. There is further evidence that the mother and the male friend regularly engaged in sexual intercourse. There is further evidence that these encounters occurred when the children were in the home and the children were aware that the mother and the male friend were sleeping in the same room. It is also clear that the mother and the male friend were not married at the time of trial nor was the mother married to anyone. There is also some evidence, although slight, that the mother did not properly care for the children.

In view of the above, I would affirm the trial court. See, Smith v. Smith, Ala.Civ. App., 334 So.2d 915 (1976).

I would further note that I have no difficulty in distinguishing the facts of this case from Gould v. Gould, supra; and Roberson v. Roberson, supra. In Gould the evidence of the mother’s alleged indiscreet conduct was, at best, inconclusive. Furthermore, at the time of the hearing on the petition to modify, the mother had married her alleged paramour and had created a healthy family environment for the children. In Roberson, the alleged acts of indiscretion on the mother’s part were isolated incidences; no man was ever alleged to have spent the night with her or moved in with her. Additionally, the mother in Roberson had also remarried at the time a change in custody was requested. Finally, the evidence clearly showed that the mother and her new spouse provided a stable home environment for her children.

I would affirm the trial court’s decree for to do otherwise would be to substitute our decision for that of the trial court. This the law does not permit. See, Sutton v. Sutton, Ala.Civ.App., 359 So.2d 392 (1978).


author: PER CURIAM. MADDOX, Justice

text:
    Ex parte Charles Myers PATTERSON, Jr. (In re Saundra PATTERSON v. Charles Myers PATTERSON, Jr.)
    80-237.
    Supreme Court of Alabama.
    May 8, 1981.
    Samuel Maples of Corretti & Newsom, Birmingham, for petitioner.
    Curtis 0. Liles, III of Markstein & Morris, Birmingham, for respondent.
   PER CURIAM.

WRIT QUASHED AS IMPROVIDENTLY GRANTED.

FAULKNER, JONES, SHORES, EM-BRY, BEATTY and ADAMS, JJ., concur.

TORBERT, C. J., and MADDOX and AL-MON, JJ., dissent.

See also, Ala.Civ.App., 399 So.2d 846.

MADDOX, Justice

(dissenting).

Decisions of trial judges, who see and hear the witnesses and assess the evidence, should be affirmed in child custody cases unless there is a clear abuse of discretion.

The trial judge determined that the best interest of the child would be best served by changing custody. I am of the opinion that a majority of the Court of Civil Appeals has substituted their judgment for that of the trial judge. I would grant the writ.

TORBERT, C. J., and ALMON, J., concur.