author: ADAMS, Justice. TORBERT, Chief Justice

text:
    Joseph S. LEGG v. Edward KELLY, Jr. Joseph S. LEGG v. Mel LUCAS and Cliff Ellis.
    80-502, 80-278.
    Supreme Court of Alabama.
    April 9, 1982.

      Bob Sherling, Mobile, for Joseph S. Legg.
    M. Lloyd Roebuck, Mobile, for Edward Kelly, Jr.
    James D. Brooks and Carl Robert Gott-lieb, Jr., Mobile, for Mel Lucas and Cliff Ellis.
   ADAMS, Justice.

These consolidated appeals arise out of grants of summary judgment in favor of Edward Kelly, Jr., Mel Lucas, and Cliff Ellis (defendants). Joseph S. Legg (plaintiff) brought suit against corporate and individual defendants in the Circuit Court for Mobile County. Plaintiff’s suit is based upon a contract in which defendant Athletic World Sporting Goods, Inc., (not a party to this appeal) agreed to purchase plaintiff’s sporting goods store and assume responsibility for a debt owed by him. Individual defendants were stockholders and officers in the defendant corporation. Plaintiff alleged various theories of recovery against the defendants. After granting summary judgment in favor of Lucas, Ellis, and Kelly, the trial court entered final judgment as to these defendants pursuant to Rule 54(b), Alabama Rules of Civil Procedure. Plaintiff appealed.

By our review of the trial court’s action, we conclude that with the exception of three counts of plaintiff’s complaint concerning Kelly, it erred by granting summary judgment in favor of defendants. We, therefore, affirm in part, reverse in part, and remand this case. We will consider separately each count of plaintiff’s complaint as it pertains to the defendants in reviewing the trial court’s action.

We are obliged to note at the outset some fundamental principles concerning summary judgment. Recently, this court has observed:

In determining whether a summary judgment is proper, the ultimate question is whether there remains a genuine issue of material fact, and if there is one, summary judgment is inappropriate, Rule 56(e) ARCP; 6 Moore’s Fed.Prac., par. 56.15 (2nd ed. 1971). Put in another way, “[Wjhere the evi-dentiary matter in support of the motion does not establish the absence of a genuine issue, summary judgment must be denied even if no opposing evidentiary matter is presented.”
First National Bank of Birmingham v. Culberson, 342 So.2d 347, 351 (Ala.1977). More recently, the court observed in Campbell v. Alabama Power Co., 378 So.2d 718, 721 (Ala.1979), that the scintilla evidence rule applies to summary judgment motions:
This rule must be considered in the context of the scintilla evidence rule applicable in Alabama. Thus, if there is a scintilla of evidence supporting the position of the party against whom the motion for summary judgment is made, so that at trial he would be entitled to go to the jury, a summary judgment may not be granted. Donald v. City National Bank of Dothan, 295 Ala. 320, 329 So.2d 92 (1976). Furthermore, all reasonable inferences from the facts are to be viewed most favorably to the non-movant. Tolbert v. Gulsby, 333 So.2d 129 (Ala.1976).

Harold Brown Builders, Inc. v. Jordan Company, 401 So.2d 36 (Ala.1981).

In the instant case, the defendants supported their motions for summary judgment with their depositions. Plaintiff did not respond, but instead chose to rely on his pleadings. In a similar situation, this court has observed:

Although an adverse party is not required to respond to a motion for summary judgment, this court has noted failure to do so may be perilous for the adverse party. Ray v. Midfield Park, 293 Ala. 609, 308 So.2d 686 (1975). By defendant’s failure to respond to the motion, the trial court had no alternative but to consider the evidence presented by the moving party as uncontroverted. Donald v. City National Bank, 295 Ala. 320, 329 So.2d 92 (1976).

Harold Brown Builders, Inc. v. Jordan Company, supra.

Defendants made numerous contentions that the depositions supporting their motions for summary judgment, and the lack of opposing material from the plaintiff, work to resolve many disputed issues of fact in their favor, thereby justifying the trial court’s actions. As discussed below, we find that even considering defendants’ evidence as uncontroverted, the evidence they presented is insufficient to eliminate all disputed issues of fact created by plaintiff’s complaint. Summary judgment in this case would be appropriate only if the depositions, taken as uncontroverted, resolved all remaining material issues of fact. Harold Brown Builders, Inc. v. Jordan Company, at 38.

Plaintiff’s first count alleges, in pertinent part, that Kelly is personally liable on a promissory note that he signed. The note is part of the agreement by which plaintiff sold his sporting goods business. Athletic World assumed payment of an obligation owed by plaintiff. A default occurred and plaintiff seeks to hold Kelly personally liable for $57,513.71, the amount plaintiff alleges he ultimately paid under his prior obligation. Plaintiff maintains that Kelly agreed to assume personal liability, and signed the note in a like manner. Kelly disputes that and insists his signature on the note was made in a representative capacity for Athletic World. Kelly’s signature appears on the note in the following manner:

ATHLETIC WORLD SPORTING GOODS, INC, (L.S.)
(Debtor)
BY: hi Edward Kelly Jr._(L.S.)
(Debtor)

Kelly contends that the trial court properly entered summary judgment in his favor and urges us to adopt the reasoning of Southeastern Financial Corporation v. Smith, 397 F.Supp. 649 (D.Ala.1975), rev’d on other grounds, 542 F.2d 278 (5th Cir. 1976) (Smith). Smith held that an individual who signed a check, drawn on a corporation’s account, with “by” preceding his signature, signed in a representative capacity which thereby prevented his being held personally liable. We need not decide whether to adopt the reasoning of Smith. That case is factually distinguishable from the present one. Although “by” preceded Kelly’s signature, the signature line bore the designation of “debtor” and thereby, at least, the instant case is distinguishable from Smith. Code 1975, § 7-3-403, addresses the problem of an agent incurring personal liability when signing a note on behalf of his principal. Interpreting that section, this court has observed:

The purpose of Code 1975, § 7-3-403 is to encourage certainty and definiteness in the law of commercial paper. See Rotuba Extruders, Inc. v. Ceppos, 46 N.Y.2d 223, 413 N.Y.S.2d 141, 385 N.E.2d 1068 (1978). The taker of a negotiable instrument should be able “to tell at a glance whose obligation they hold.”

Wurzburg Brothers, Inc. v. Coleman, 404 So.2d 334 (Ala.1981) (citation omitted).

Viewed in that light, we cannot agree with Kelly that Athletic World is the only debtor and that he executed the note on its behalf. Kelly’s interpretation of the note flies in the face of the “certainty and definiteness” sought by § 7-3-403. His signature on a line designated for a debtor, absent an indication of his purported representative capacity, is consistent with the signature of an individual assuming personal liability on the instrument.

We also are unable to accept Kelly’s argument that he is not personally liable under the note because he did not sign as a guarantor on the reverse of the instrument. That argument presupposes Kelly had not personally obligated himself when he signed as a debtor.

Lastly, on this count, Kelly argues that his testimony at deposition was sufficient to justify the entry of summary judgment. Kelly testified that he signed the note in a representative capacity. In view of our holding above, we cannot accept Kelly’s argument. His testimony denying personal liability was insufficient to eliminate the issue of fact as to the capacity in which he signed the note. Kelly’s testimony merely creates an issue of fact. Accordingly, we hold that the trial court erred by entering summary judgment in Kelly’s favor. We note that any issue of parol evidence offered to negate Kelly’s personal liability must be resolved in harmony with Wurzburg Brothers, Inc. v. Coleman, supra. However, because that problem is not before us, we make no further comment thereon.

Count two of plaintiff’s complaint alleges defendants are liable personally for Athletic World’s agreement to assume plaintiff’s outstanding debt in the amount of $60,000.00. The complaint alleged that the assumption of plaintiff’s debt was part of the agreement for the sale of plaintiff’s sporting goods business. Plaintiff theorizes that defendants are liable personally because they failed to operate Athletic World as a corporation by not following its bylaws and articles of incorporation, and that they acted in their individual capacities when conducting the corporation’s business. Lucas and Ellis contend that summary judgment was entered properly as to this count because no evidence was presented to the trial court establishing the contents of Athletic World’s by-laws and articles of incorporation. Their contention overlooks the fact that it was not incumbent on plaintiff to produce evidence at the time of summary judgment concerning the contents of the by-laws and articles of incorporation. Plaintiff's allegations are questions of fact properly resolved at trial. Even reviewing the depositions of Lucas and Ellis, and considering them uncontroverted, we are unable to find that it was necessary for plaintiff to offer evidence in support of his allegation that defendants failed to operate Athletic World as a corporation. The contents of their depositions are insufficient to establish the absence of a genuine issue of material fact. Therefore, the trial court erred by entering summary judgment in favor of the defendants. However, because plaintiff has not addressed the issue of the propriety of the trial court’s grant of summary judgment in Kelly’s favor, plaintiff has waived that error and reversal is required only as to Lucas and Ellis.

Count three of plaintiff’s complaint is based upon an allegation of fraud. In pertinent part, plaintiff alleges that when Athletic World assumed his outstanding debt of $60,000.00, defendants fraudulently led him to believe that Athletic World had the ability to pay the debt and that they later fraudulently disposed of the corporation’s assets. Plaintiff repeats his allegation, as in count two, that defendants incurred personal liability in their operation of Athletic World. Defendants Lucas and Ellis contend that the uncontroverted testimony before the trial court at the time of summary judgment showed that plaintiff was never advised whether Athletic World could pay the debt. Specifically, Ellis’s testimony at deposition is relied on to justify the trial court’s grant of summary judgment in defendants’ favor. We have reviewed his testimony and we are unable to find that it works to establish the absence of a genuine issue of material fact on that allegation. Consequently, the trial court erred by granting summary judgment in favor of defendants on this count. As in count two, because plaintiff presented no argument regarding the propriety of the trial court’s action on this count concerning Kelly, reversal is required only as to Lucas and Ellis.

Count four of plaintiff’s complaint alleges that defendants violated the security agreement by which plaintiff was granted a security interest in all 15,000 shares of Athletic World stock. The agreement apparently served to secure plaintiff while Athletic World made payments on plaintiff’s debt. By the terms of the agreement, the stock was not to be transferred without plaintiff’s knowledge and consent. Plaintiff alleges that defendants violated the agreement, and damaged him thereby, when Lucas and Ellis transferred their stock to Kelly and Crawford.

We agree with Kelly that summary judgment on this count was entered properly in his favor. Because of the way plaintiff’s count is framed, Kelly cannot be found liable. Although the count seeks damages from Kelly resulting from the transfer of Athletic World stock, the very wording of the count indicates that Kelly did not transfer any stock. Instead, it states that Athletic World stock was transferred to Kelly and Crawford.

Lucas and Ellis raise several arguments in support of the trial court’s grant of summary judgment in their favor. Citing Security Life & Accident Ins. Co. v. Carlovitz, 251 Ala. 508, 38 So.2d 274 (1949), they argue that the restriction against transfer that plaintiff seeks to assert is void as against public policy. In view of Lucas and Ellis’s failure to discuss their theory in light of Code 1975, § 10-2A-41, we find their theory insufficiently argued to permit review.

Lucas and Ellis next argue that under Code 1975, § 7-9-306, a security interest continues in collateral notwithstanding a sale or exchange by the debtor, and, therefore, plaintiff could not have been injured by the transfer. Whether plaintiff was injured by the transfer is a question of fact for resolution at trial. Plaintiff could have been injured by the unauthorized transfer in spite of the protection afforded him under § 7-9-306. Lucas and Ellis also contend that Code 1975, § 7-9-311, justifies the trial court’s grant of summary judgment in their favor because that section authorizes a debtor’s transfer of encumbered collateral notwithstanding a provision to the contrary in a security agreement. The error in Lucas and Ellis’s argument is that § 7-9-311 does not shield them from the consequences of a default caused by their transfer of the stock. Sturdevant v. First Security Bank of Deer Lodge, - Mont. -, 606 P.2d 525 (1980). Whether their transfer caused a default is also a question of fact to be resolved at trial.

Finally, count five of plaintiff’s complaint alleges that defendants defrauded plaintiff by transferring Athletic World stock. All three defendants advance arguments to support the trial court’s grant of summary judgment in their favor, citing plaintiff’s failure to factually establish his allegations. They note that plaintiff produced no evidence to show how he was defrauded or that his security interest in the stock was defeated. We note again, as discussed above, it was not incumbent upon plaintiff to introduce evidence at the time of summary judgment to support his allegations. The trial court, therefore, erroneously granted summary judgment. Unlike count four, which sounds in contract, this count alleging fraud also requires reversal of the grant of summary judgment in favor of Kelly. Conceivably, Kelly could have participated in the alleged fraud without transferring his shares of stock.

In the appeal involving Lucas and Ellis, the trial court’s grant of summary judgment on counts two through five is reversed. In the appeal involving Kelly, the trial court’s grant of summary judgment in his favor on counts two, three, and four, is affirmed. However, the grant of summary judgment in Kelly’s favor on count one and count five is reversed, and the cause is remanded for further proceedings consistent with this opinion.

Case No. 80-278 — REVERSED AND REMANDED.

Case No. 80-502 — AFFIRMED IN PART, REVERSED IN PART, AND REMANDED.

FAULKNER, JONES, ALMON and EM-BRY, JJ., concur.

TORBERT, C. J„ and MADDOX, SHORES and BEATTY, JJ., dissent.

TORBERT, Chief Justice

(dissenting).

I cannot agree with the majority’s decision that Edward Kelly, Jr., signed this note as an individual, thus assuming personal liability. The trial court was correct in granting summary judgment in favor of the defendant.

The majority is correct when it decides that Code 1975, § 7-3-403 applies. However, it is not clear which part of § 7-3 — 403 results in the personal liability for Kelly.

Section 7-3-403 provides:

“(1) A signature may be made by an agent or other representative, and his authority to make it may be established as in other cases of representation. No particular form of appointment is necessary to establish such authority.
“(2) An authorized representative who signs his own name to an instrument:
“(a) Is personally obligated if the instrument neither names the person represented nor shows that the representative signed in a representative capacity;
“(b) Except as otherwise established between the immediate parties, is personally obligated if the instrument names the person represented but does not show that the representative signed in a representative capacity, or if the instrument does not name the person represented but does show that the representative signed in a representative capacity.
“(3) Except as otherwise established the name of an organization preceded or followed by the name and office of an authorized individual is a signature made in a representative capacity.”

I believe the note in this case falls under subsection (3) of § 7-3-403, which provides that a signature is made iñ a representative capacity when the name of an organization is preceded or followed by the name and office of an authorized individual.

A similar situation can be found in Southeastern Financial Corp. v. Smith, 397 F.Supp. 649 (N.D.Ala.1975), rev’d on other grounds, 542 F.2d 278 (5th Cir. 1976). The instrument in that case was signed as follows:

“CARRIAGE HOUSE MOBILE HOMES, INC.
“General Account
“By Woody Lacy /s/_
Authorized Signature
“By John Smith /s/_
Authorized Signature”

In that case, Senior District Judge Lynne stated:

“Plaintiff relies on 3-403(2)(b) as establishing Mr. Smith’s liability. That reliance is misplaced, however, since 3-403(3) more closely reflects the facts of this case. Concededly, the signatures of Messrs. Smith and Woody [Lacy] are not followed by any designation of their offices, so that subsection 3 is not precisely applicable. Since 3-403(2) imposes liability on an agent only where ‘the instrument’ fails to reveal his representative capacity, however, we are free to look at the entire instrument for evidence of the capacity of the signer. The facts that the check indicates that it is drawn against the ‘General Account’ of the corporation and that the signatures are each preceded by the word ‘By’ are sufficient to remove any possible confusion as to whether Smith and Woody [Lacy] were signing as agents of the corporation. It is improbable that anyone dealing with these checks would be led to believe that Smith and Woody [Lacy] were signing as joint obli-gors with the corporation.”

397 F.Supp. at 653 (citations omitted).

Paraphrasing a portion of that opinion and relating it to this case expresses my belief as follows:

“Plaintiff relies on 3-403(2)(b) as establishing Mr. Kelly’s liability. That reliance is misplaced, however, since 3-403(3) more closely reflects the facts of this case. Concededly the signature of Edward Kelly, Jr., is not followed by any designation of his office, so that subsection (3) is not precisely applicable. Since 7-3-402(2) imposes liability on an agent only where ‘the instrument’ fails to reveal his representative capacity, however, we are free to look at the entire instrument for evidence of the capacity of the signor. The facts that the note indicates Athletic World Sporting Goods, Inc., was a party to the note and that the signature of Kelly is preceded by the word ‘By,’ are sufficient to remove any possible confusion as to whether Kelly was signing as agent of the corporation. It is improbable that anyone dealing with the note would be led to believe that Kelly was signing as a joint obligor with the corporation.”

It is recognized that in Giacalone v. Bernstein, 348 So.2d 679 (Fla.Dist.Ct.App.1977), the Florida court held that just the word “By” preceding a signature without more on the face of the note fails to show that the note was signed in a representative capacity. In that case, however, the name of the corporation did not appear anywhere on the face of the note. In this case, however, more is shown, because the name of the corporation, Athletic World Sporting Goods, Inc., precedes the signature of Kelly.

In an Alabama pre-UCC case, Little v. Peoples Bank of Mobile, 209 Ala. 620, 96 So. 763 (1923), a note was signed “Denton Livestock Company. ‘By J. R. Little.’ ” No descriptive abbreviation or word designating his office of vice president followed J. R. Little’s signature. This Court said in that case:

“So far as the face of the note is concerned, the preposition (by) affirmatively restricted J. R. Little’s relation to the note to the service of agency thereby unequivocally imported; Little’s signature on the face of the note being given in that capacity only.” 209 Ala. at 622, 96 So. 763.

This Court held, in Little, that the corporation was the principal, the single maker, and J. R. Little was only the agent of the Denton Livestock Company and was not individually bound thereby as a maker or as a comaker of the note with the corporation.

The majority express their view that the face of the instrument involved does not put a person on notice as to who is liable on the instrument. I believe the instrument does give notice of liability. The majority incorrectly expands the scope of Wurzburg Brothers, Inc. v. Coleman, 404 So.2d 334 (Ala.1981). I concurred in Wurzburg because an examination of the instrument involved indicated that personal liability of the agent was intended when the instrument was signed. The situation in this case is quite different. In Wurzburg the name of the corporation did not appear at the bottom of the note where it was signed. I would affirm the summary judgment in favor of Kelly.

MADDOX, SHORES and BEATTY, JJ., concur.


source: Caselaw Access Project

author: PER CURIAM.

license: Public Domain

text:
    Donald Clarence PUCKETT, et al. v. ALABAMA POWER COMPANY.
    81-10.
    Supreme Court of Alabama.
    April 16, 1982.
    Clarence T. Heliums, Jr., Centreville, for appellants.
    S.Allen Baker, Jr. of Balch, Bingham, Baker, Hawthorne, Williams & Ward, Birmingham, for appellee.
   PER CURIAM.

This is an appeal from the circuit court’s dismissal of an appeal from the probate court’s order of condemnation and award of payment therefor.

On August 24, 1978, Alabama Power Company, pursuant to Code 1975, § 18-1-1, et seq., made application to the probate court of Bibb County for an order of condemnation to provide rights of way for the construction of transmission lines. The property owners, including Appellant Donald Puckett, were served with personal notice of the action on August 31, 1978, and a hearing was held on November 10, 1978. Appellant indicated to the court that, because of his concern for the safety of his family, he would appeal any order of the court adverse to his property interests.

On November 27, 1978, the judge of the probate court signed the “Order” granting the Company’s application and appointing three commissioners to appraise the land involved for compensation purposes (§ 18-1-15, et seq.). On that same day, the probate court signed a document designated as “Notice to Commissioners,” which was also signed and dated by the three Commissioners. The clerk of the probate court, however, did not send the official letter advising each Commissioner of his or her appointment until December 8, 1978. Additionally, both the November 27 “Order” and “Notice to Commissioners,” along with a December 12 “Report of the Commissioners” — assessing Appellant’s damages at $12,500.00 — and a December 12 “Order” confirming the report of the Commissioners and condemning the land upon payment of the award, were not marked by the probate court as “FILED” until December 21, 1978.

On January 8, 1979, Appellant called the judge of the probate court, inquiring about the report of the Commissioners. Counsel for Appellant made another call the next day. In both instances, the callers were told that no report had been received from the Commissioners.

On January 22, 1979, counsel for Appellant received the December 12 “Order” of the probate court, and on January 27,1979, Appellant filed an appeal with the Bibb County Circuit Court, pursuant to § 18-1-20. On April 26, 1979, Appellant filed a motion requesting the court to set aside the “Order” of December 12 confirming the report of the Commissioners and condemning his land. This petition was denied. On August 12, 1979, the Company filed a motion to dismiss the appeal, which motion was granted. Appellant brings an appeal from that order.

We affirm.

Once an order of condemnation is made, an appeal from that order may be filed pursuant to § 18-1-20:

“Any of the parties may appeal from the order of condemnation to the circuit court of the county within SO days after the making of the order of condemnation by filing in the court rendering the judgment a written notice of appeal, a copy of which shall be served on the opposite party or his attorney .. . . ” (Emphasis supplied.)

The order from which Appellant could bring an appeal was the December 12 “Order.” State v. Pettis, 275 Ala. 450, 156 So.2d 137 (1963). Appellant concedes that the filing of his appeal with the circuit court on January 27, 1979, failed to comply with the 30-day limitation of § 18-1-20 when measured against the December 12 date of the “Order.” Appellant maintains, however, that because § 18-1-20, et seq., does not require that condemnees be notified by the probate court of the entry of the judgment of condemnation, § 12-13-12 should control. Section 12-13-12 states:

“The provisions of this Code in reference to . . . judgments and orders in the circuit court, so far as the same are appropriate, ... in the absence of express provision to the contrary, are applicable to the proceedings in the probate court.”

The required procedure, says Appellant, is found at A.R.C.P. 77(d), which provision mandates that a notice of the entry of judgment be served on “each party who is not in default for failure to appear, and who was not present in person or by his attorney, or not otherwise notified, when such order or judgment was rendered ... . ” Without that requisite notice, Appellant maintains, he falls within the statutory exception of A.R.C.P. 77(d), which allows an extension of the time within which the appeal must be filed if the failure to file was due to “excusable neglect based on a failure of the party to learn of the entry of the judgment .... ”

We hold, however, that A.R.C.P. 77(d) is not applicable here. The scope of § 18-1-1, et seq., was intended to include the entire judicial process in condemnation cases. Indeed, in Postal Telegraph Cable Company v. Alabama Great Southern Railroad Company, 92 Ala. 331, 9 So. 555 (1890), this Court held:

“[Section 18-1-1, et seq.,] was intended to provide, and did provide, for a complete proceeding by which lands might be condemned to public uses, from the initiation thereof by application to the probate court of the county in which the land, or a material portion thereof, proposed to be condemned is situated, to a final determination, if need be, on appeal to this court.” Postal Telegraph, 92 Ala. 331, at 331, 332.

See, also, State v. Pettis, supra; Stanton v. Monroe County, 261 Ala. 61, 72 So.2d 854 (1954).

The argument for non-use of the A.R.C.P. in condemnation cases is strengthened by the selective reference to the Rules in specifically limited portions of the condemnation law. If the A.R.C.P. were to be wholly and uniformly applied in condemnation cases, why would the Legislature have taken the time to make reference to specific A.R.C.P. provisions in only one of the condemnation statutes? (See § 18-1-8.)

Although the probate court was not required to provide express notice of the entry of judgment, we consider the circumstances of this case to be such as would provide notice of the status of the proceedings.

The entrance of the Commissioners upon Appellant’s property “shortly before Christmas,” and their survey of Appellant’s land for appraisal purposes, clearly were indications to Appellant that an appealable order was imminent.

Furthermore, we note that, while there is no express provision for notification of parties to a condemnation action of the entry of judgment, the language of § 18-1-19 and § 18-1-20 is clear as to the time within which specific steps must be completed in the condemnation process (/.e., the Commissioners must make their report within 20 days of their appointment; the filing of an appeal from the order of condemnation must be made within 30 days of the entry of that order). The work of the Commissioners triggers the entry of an order confirming their ultimate report and condemning the subject property. It is not unreasonable, then, to hold that Appellant, in witnessing the survey of his land by the Commissioners, was aware that a judgment by the probate court was forthcoming and that he must file an appeal from that judgment in accordance with the statute.

Indeed, we note that both the Appellant and his lawyer in thfeir telephone conversations with the probate court, did not ask whether a judgment had been entered in the case. Their questions were directed only to whether the Commissioners had made a report as to the value of Appellant’s land. We find nothing in the record to indicate that either Appellant or his lawyer made any attempt to ascertain whether a judgment had ever been entered in this case and it is the entry of judgment, rather than the report of the Commissioners, from which an appeal is taken.

We note further that the law in Alabama is stringent (and, we believe, correctly so) when appellate procedure is at issue.

“An appeal must be taken within the time and manner indicated by statute,
“We need cite only a few of the many cases which hold in effect that the time prescribed by statute for taking an appeal is jurisdictional and an appeal not timely taken will be dismissed either on motion of appellee or ex mero mota. .. .
“It is the duty of counsel for appellant to see that appeals are taken timely and that records pertaining to appeals are timely filed. . ..
“[W]e entertain the view that the language hereafter quoted from the court’s opinion in Hanley v. Hanley, [23 Cal.2d 120, 142 P.2d 423, 149 A.L.R. 1250, 1261-1267], is in accord with the holding of this court, as well as that of most of the appellate courts of this country:
“ ‘In the absence of statutory authorization, neither the trial nor appellate courts may extend or shorten the time for appeal ... even to relieve against mistake, inadvertence, accident, or misfortune. . ..’”

Meeks v. State Farm Mutual Automobile Ins. Co., 286 Ala. 513, 514-515, 243 So.2d 27 (1970).

We hold, then, that the appeal was correctly dismissed and the order appealed from is due to be affirmed.

AFFIRMED.

All the Justices concur except ALMON, J., not sitting.

      . Our reference to the Anal judgment (order of condemnation) as the December 12 “Order” is not to be construed as holding that December 12, rather than December 21 (the date on which the order was marked “FILED”), is the commencing date for measuring the time for taking the appeal. Because the notice of appeal was filed more than 30 days after December 21, we need not decide this issue. See, however, Ex Parte United States Hoffman Machinery Co., 270 Ala. 337, 118 So.2d 914 (1960).


text:
    L. B. LOWE v. Vernie MORRISON and Carolyn Morrison.
    81-85.
    Supreme Court of Alabama.
    April 16, 1982.

      Maury Friedlander of Marr & Friedlan-der, Mobile, for appellant.
    Emmett R. Cox and Robert H. Allen, Mobile, for appellees.
   ADAMS, Justice.

Vemie and Carolyn Morrison, husband and wife, (Morrisons) sued L. B. Lowe, d/b/a/ Lowe Construction Company, (Lowe) seeking damages for breach of a written contract for construction of a house and for breaches of an implied warranty of workmanlike performance in the execution of the contract. Lowe counterclaimed for the balance due on the contract. The jury awarded $15,000.00 to Lowe for the balance due and $20,000.00 damages to the Morri-sons, giving a net of $5,000.00 to the Morri-sons. The trial court entered a judgment for $5,000.00 in favor of the Morrisons and denied Lowe’s motion for new trial, after which Lowe perfected this appeal. Lowe’s primary contention on appeal is that the jury’s verdict is fatally inconsistent and reflects a misunderstanding of the law because it gives awards for both substantial performance and breach of implied warranty of workmanlike performance. We find that the jury’s awards are consistent and, therefore, affirm the trial court.

The Morrisons contracted with Lowe to build their house for $45,320.00, payable in three installments. The Morrisons paid the first two payments, totalling $30,000.00, but withheld the third because of complaints about the workmanship.

The testimony at trial, substantiated by photographs admitted into evidence, was that floors in the house were not level, walls were not plumb, the roof was poorly constructed, and many other aspects were defective or unsightly. The jury took a view of the house during the trial; “knowledge it may have acquired there, though unreported, is proper evidence.” Western Railway of Alabama v. Still, 352 So.2d 1092, 1097 (Ala.1977). We are of the opinion that the jury verdict in the amount of $20,000.00 was based on substantial evidence.

There is ample authority for allowing a contractor to recover the balance due on his contract, while at the same time allowing the owner to recover substantial damages for unworkmanlike or incomplete performance. Fox v. Webb, 268 Ala. 111, 105 So.2d 75 (1958); Annot., 76 A.L.R.2d 805 (1961). Lowe’s argument that substantial performance and breach of implied warranty of workmanlike performance are mutually exclusive is very similar to an argument disposed of by the Texas Court of Civil Appeals in Warren v. Denison, 563 S.W.2d 299 (Tex.Civ.App.1978). There, the Court held that “a finding that the builder did not complete the contract in a good workmanlike manner does not necessarily mean that he has not substantially performed the contract.” Id., at 303.

Lowe argues that the amount of damages precludes a finding of substantial compliance, because the damages are 44% of the total contract price. This argument ignores the holding in Fox v. Webb, supra, where this court allowed a judgment to stand awarding a balance due to the contractor and damages to the owner amounting to 43% of the contract price.

The jury’s award of $20,000.00 to the Morrisons was supported by sound legal authority. The proper measure of damages, where correction of defects would amount to economic waste, is the diminution in value of the house as constructed from the value it would have had if it had been constructed in a workmanlike manner. 76 A.L.R.2d 805 (1961).

For the foregoing reasons, the judgment below is due to be affirmed.

AFFIRMED.

FAULKNER, ALMON and EMBRY, JJ., concur.

TORBERT, C. J., concurs specially.

TORBERT, Chief Justice

(concurring specially).

I concur in the result of this case because the appellant did not properly preserve any error for review by this Court. The trial judge charged the jury that it could find both for the plaintiffs on their claim and for the defendant on his claim. The trial court had previously advised counsel for all parties of his intention to so charge the jury. At the time the trial court charged the jury, neither the plaintiffs nor the defendant made any objections. Therefore, these instructions became the law of the case and bound the jury. W. T. Ratliff Co. v. Purvis, 292 Ala. 171, 291 So.2d 289 (1974); Loch Ridge Construction Co. v. Barra, 291 Ala. 312, 280 So.2d 745 (1973); Ross-Clayton Funeral Home, Inc. v. Turner, 358 So.2d 754 (Ala.Civ.App.1978).

In Ross-Clayton Funeral Home, Inc. v. Turner, the Court of Civil Appeals stated:

“The record indicates that in charging the jury, the court directed that they could return any one of three verdicts. The third form given was the verdict returned. No objection to the form was made by either counsel. When the verdicts were returned and counsel for defendant moved for mistrial, the court reminded counsel that no objection had been made when the form of the verdict was given to the jury.
“Without deciding whether the verdicts are in fact inconsistent under the pleading and evidence, we find the trial court may not be held in error when there was no objection to the charge of the law to the jury. ARCP Rule 51. Hogan v. Alabama Power Co., 351 So.2d 1378 (Ala.Civ.App.1977). The instruction became the law of the case when defendant made no objection and the jury was bound by it. Loch Ridge Constr. Co. v. Barra, 291 Ala. 312, 280 So.2d 745 (1973); Lee v. Gidley, 252 Ala. 156, 40 So.2d 80 (1949).”

358 So.2d at 755. I believe that this statement of the law should be controlling in this case. For this reason I agree that the decision of the trial court is due to be affirmed.

      . The trial court entered a $20,000.00 judgment for the plaintiffs, a $15,000.00 judgment for the defendant, and a $5,000.00 judgment for the plaintiffs. The $5,000.00 judgment apparently is the difference between the other two judgments and was not intended as a second recovery. We understand Lowe to be appealing from a $20,000.00 judgment; therefore, this Court has jurisdiction of the appeal.


author: BRADLEY, Judge. HOLMES, Judge

text:
    BIG THREE MOTORS, INC., a corporation, v. Geraldine SMITH.
    Civ. 1847.
    Court of Civil Appeals of Alabama.
    Jan. 16, 1980.
    Rehearing Denied March 5, 1980.

      Patricia K. Olney and Richard W. Voll-mer, Jr., of Pillans, Reams, Tappan, Wood, Roberts & Vollmer, Mobile, for appellant.
    James H. Lackey, Mobile, for appellee.
   BRADLEY, Judge.

This is an appeal-from a jury verdict of $10,000 for the plaintiff against Big Three Motors in an action for breach of warranty of title and false representation.

The controversy in this case revolves around the ownership and possession of a brown and white 1968 Buick Special automobile. In February 1973 Diamond Motors sold the Buick to Henry Alexander and retained a lien against the vehicle in favor of the Pearl Finance Company. The lien was recorded with the Probate Court of Mobile County. Alexander filed for bankruptcy subsequent to his purchase of the Buick and sold the vehicle to J. C. Mason while in bankruptcy. Mason was aware that Alexander was in straight bankruptcy, but testified that he thought that meant the car was clear of any claims. Mason was a used car salesman at Big Three Motors although he testified that he purchased the Buick for himself after the owners of Big Three Motors refused to buy the vehicle. He also testified that he was allowed by Big Three Motors to buy and sell automobiles of his own on the Big Three Motors lot based on his long-term relationship with the company. In these type transactions, Mason would split the profit with Big Three Motors.

On August 23, 1974 the plaintiff, Geraldine Smith, and a friend, James Bradley, went to the used automobile lot of Big Three Motors looking for an automobile to buy. J. C. Mason approached them upon their entry onto the lot and asked if they were looking for a car and they replied that they were. After determining their price range to be about $250, Mason showed them a 1968 Buick. Smith test drove the Buick and decided to buy it.

Mason then escorted Smith to the office at Big Three Motors and a secretary employed by Big Three Motors prepared a bill of sale and other documents necessary for Smith to obtain an automobile tag. At this time the plaintiff gave Mason $256.25 as cash payment for the Buick, and he handed it over to the secretary who, in turn, placed it in the cash drawer. This cash payment was deposited in Big Three Motors’ bank account. The plaintiff was provided with a receipt for her cash payment, a bill of sale, and a purchase order, all of which were signed by the secretary for Big Three Motors. The bill of sale and purchase order were on Big Three Motors’ stationery and at no time was the plaintiff informed that the automobile she was buying was not owned by Big Three Motors. The bill of sale accepted by the plaintiff contains the following statement:

And I-We hereby covenent [sic] with the grantee that I-We are the lawful owners of said above described automobile; that it is free from all encumbrances; that I-We have a good right to sell the same aforesaid; and that I-We will warrant and defend the title to same against the lawful claims and demands of all persons.

The plaintiff made some repairs to the vehicle and retained it for nine months until Pearl Finance repossessed the vehicle to enforce their lien. After the plaintiff determined what had happened to the vehicle, she contacted Fred Roan, Sr., president of Big Three Motors, and complained. The plaintiff, Mason, and Roan had several discussions aimed at settling the matter. However, these efforts were unsuccessful.

The plaintiff filed suit on July 31, 1974 against Big Three Motors and several other parties who have since been dismissed from this suit. The complaint sought compensatory and punitive damages from Big Three Motors for breach of warranty of title and false representation. Big Three Motors filed a third party complaint against J. C. Mason on March 25, 1976, with leave of court.

The defendant, Big Three Motors, filed two separate motions for directed verdict during the trial. The first sought a directed verdict against the third party defendant, J. C. Mason. The trial court denied this motion, and the defendant does not contest this ruling on appeal. Big Three Motors filed a second motion for directed verdict at the conclusion of the plaintiffs case on each count of the complaint and on plaintiff’s claim for punitive damages. This motion was also denied. The defendant, Big Three Motors, refiled the motions for directed verdict at the conclusion of all testimony and again the motions were denied.

The trial court instructed the jury on breach of contract and warranty of title and three separate aspects of legal fraud: willful misrepresentation, reckless misrepresentation, and mistaken misrepresentation. The jury rendered a verdict against the defendant, Big Three Motors, in favor of the plaintiff for $10,000, and in favor of J. C. Mason on the third party complaint. Thereafter Big Three Motors filed a motion for a judgment notwithstanding the verdict or, in the alternative, for a new trial. The trial court denied this motion and this appeal followed.

The only issue presented to this court by the defendant is whether there was a scintilla of evidence to take the case to the jury on the issue of punitive damages.

In Winn-Dixie Montgomery, Inc. v. Henderson, Ala., 371 So.2d 899 (1979), which appears to be the latest pronouncement on the subject of punitive damages in a fraud case, the Alabama Supreme Court said:

It is clear that punitive damages may be awarded in a fraud case only when there is evidence from which the jury can conclude that the fraud was malicious, oppressive, or gross, and the statements were made with knowledge of their falsity. Old Southern Life Insurance Co. v. Woodall, 295 Ala. 235, 326 So.2d 726 (1976). It is only where “the evidence tends to establish an intent to deceive and defraud” that the evidence warrants the award of punitive damages. [Emphasis theirs.]

This same rule was followed in Proctor Agency, Inc. v. Anderson, Ala., 358 So.2d 164 (1978). However, in International Resorts, Inc. v. Lambert, Ala., 350 So.2d 391 (1977), the court had this to say:

As a general rule, an intent to deceive is an indispensable element to the successful maintenance of a tort action for fraud and deceit. 37 Am.Jur.2d, Fraud and Deceit, § 188. However, it is equally well-established that an action for damages will lie when one makes representations relied upon by another without knowing or caring whether they are true or false.

The court also held that the evidence supported a finding that misrepresentations had been made, whether they were with an intent to deceive or were made heedlessly and without any regard to the consequences, and the court upheld the award of punitive damages.

The Lambert case implies that the “intent to deceive” rule is not the only one; however, we feel compelled to follow the rule enunciated in the Henderson case because it is, to the best of our knowledge, the latest decision on the subject. See Berry v. City of Huntsville, 288 Ala. 731, 259 So.2d 276 (1972).

Applying the Henderson rule to the case at bar, we conclude that neither Mason, nor through him, Big Three Motors had actual knowledge that someone else had a lien on the vehicle sold to plaintiff and that they could not give good title. Mason testified that he knew the seller of the vehicle was in bankruptcy but that he thought this meant that the title to the vehicle was free and clear of any claims.

The basis of the fraud charge in the instant case arose out of the absence of title in either Big Three Motors or Mason, not the failure of the title as between Big Three Motors and its agent, Mason. As we view the situation, whether title was represented to be in Big Three Motors or in Mason had nothing to do with plaintiff’s loss.

Based on the evidence we cannot say that Big Three Motors or its agent, Mason, had the requisite knowledge of the falsity of the representations made to the plaintiff concerning the title of the vehicle purchased from Big Three Motors to support an award of punitive damages.

Absent evidence to support an award of punitive damages, the trial court erred in refusing the motion for a directed verdict as to such damages. The judgment of the trial court is reversed and the cause remanded.

REVERSED AND REMANDED.

WRIGHT, P. J., concurs.

HOLMES, J., dissents.

HOLMES, Judge

(dissenting).

I respectfully dissent.

The question, as pointed out by the plaintiff, is whether Big Three Motors represented to plaintiff that it was the owner of the automobile in question and that it had a right to sell the vehicle. Put another way, the issue is not whether Big Three knew there was a prior encumbrance on the vehicle, but whether Big Three knew it was not the owner of the vehicle when it represented that it was the owner.

Without addressing the propriety of the majority’s implied conclusion that it is no longer the law in Alabama that representations made recklessly without regard for the truth if made heedlessly without any regard to the consequences, will support an award of punitive damages, I would find that Big Three knew it was not the owner and thus intentionally deceived the plaintiff in warranting title.

This is so because to me the evidence is clear that Big Three’s agent allowed plaintiff to believe Big Three was the owner when in fact the agent was the owner. Indeed, Big Three’s defense at trial had at its very core the claim that Mason, the agent, was the owner. Nevertheless, it warranted to plaintiff that it had clear title to the vehicle.

Viewed another way, Mason’s admitted failure to disclose his ownership amounted to the suppression of a material fact which he, as agent, or Big Three, as principal, had a duty to disclose. Under § 6-5-102, Code of Ala.1975, such suppression constitutes fraud.

In the very recent case of Neil Huffman Volkswagen Corporation v. Ridolphi, 378 So.2d 700 (Ala., 1979), the Supreme Court of Alabama upheld a jury award of punitive damages totaling over $27,000 when liability was predicated upon this statute. There, the salesman failed to disclose the fact that the used automobile plaintiff was contemplating purchasing had been wrecked despite the plaintiff’s express inquiries as to the condition of the car. Certainly, the information suppressed here, namely the true ownership of the vehicle, as known by the agent and principal, was just as vital as the information suppressed in Neil Huffman. Put another way, Big Three, the principal, clearly knew it was not the owner.

In closing, I could do no better than to set out the eloquent language of Mr. Justice Faulkner in Neil Huffman, supra:

The doctrine of . caveat emptor, if not already grounded, is a weak bird. The law now is consumer oriented, and federal and state laws (Truth-in-Lending, UCC, for example) have been passed for the protection of the consumer. It now appears that the seller is the one to beware. This certainly appears to be true in the matter of the sale of used cars. It is a rare case when the seller and buyer of a used car stand on equal footing. In most cases the buyer is at the mercy of the seller, and when he pays a substantial portion of his monthly paycheck in car payments, he does not want to drive a car running sideways down the highway, or have the thing come out nude when he drives it through a carwash. These statements are made to emphasize the statutory law, particularly § 6-5-102....

I would only add to the penultimate quoted sentence, “or be owned by someone other than the dealer.”

I would affirm the verdict of the jury and the resulting judgment.


author: BEATTY, Justice.

text:
    Ex parte, Geraldine SMITH. (Re BIG THREE MOTORS, INC., a Corporation v. Geraldine SMITH).
    79-476.
    Supreme Court of Alabama.
    Jan. 9, 1981.
    James H. Lackey, Mobile, for petitioner.
    Richard W. Vollmer, Jr. and Patricia K. Olney of Reams, Tappan, Wood, Vollmer, Philips & Killion, Mobile, for respondent.
   BEATTY, Justice.

The writ of certiorari was granted to enable this Court to consider the effect upon the law of fraud of the opinion of the Court of Civil Appeals, 412 So.2d 1214. Specifically, the question is whether this Court, in Winn-Dixie Montgomery, Inc. v. Henderson, Ala., 371 So.2d 899 (1979), modified the law of fraud by allowing a recovery of punitive damages only upon proof of statements made with actual knowledge of their falsity.

In Henderson we stated:

It is clear that punitive damages may be awarded in a fraud case only when there is evidence from which the jury can conclude that the fraud was malicious, oppressive, or gross, and the statements were made with knowledge of their falsity. Old Southern Life Insurance Company v. Woodall, 295 Ala. 235, 326 So.2d 726 (1976).. ..

The Court of Civil Appeals recognized the principle this Court had enunciated earlier in International Resorts, Inc. v. Lambert, Ala., 350 So.2d 391 (1977), which allowed an action for fraud and deceit to be based upon misrepresentations made heedlessly and without knowing or caring whether they were true or false. However, that Court chose to apply the “Henderson rule,” as it was put, because it was the latest decision dealing with that precise point, and thus that Court abrogated heedless or reckless fraud.

With deference to our brothers, our opinion in Henderson was not intended to change the law of fraud by eliminating the possibility of a recovery based upon a heedless or reckless misrepresentation. The principle quoted above which emanated from Woodall was stated in response to the type of fraudulent misrepresentation alleged in Woodall. Both Woodall decisions, 295 Ala. 235 and 348 So.2d 1377 (1977), involved allegations of misrepresentations made with knowledge. Likewise, Henderson concerned misrepresentations made with knowledge, one count charging a promise made with intent not to perform it, and another count alleging representations known to be false at the time they were made, “which were made willfully to deceive or recklessly without knowledge.” Henderson, Ala., 371 So.2d 899 at 900. The opinion in Henderson reveals that the case was reversed and remanded simply because the evidence failed to approach “the requisite maliciousness, oppressiveness, or grossness justifying an award of punitive damages.” Thus there was no necessity for references to other types of misrepresentations which would support an action for fraud and deceit.

One of the types of fraudulent misrepresentation alleged in Lambert, supra, however, was a reckless misrepresentation. It was not out of place, therefore, for this Court to discuss that principle in that opinion, and in so doing to call attention to the definition of legal fraud found in Tit. 7, § 108, Alabama Code (now Code of 1975, § 6-5-101):

Misrepresentations of a material fact made willfully to deceive, or recklessly without knowledge, and acted on by the opposite party ... constitute legal fraud.

Because the Court of Civil Appeals failed in its review to apply the correct principle of law to the evidence adduced in the trial court, the judgment of that Court is reversed and this cause is remanded to that Court for an order not inconsistent with this opinion.

REVERSED AND REMANDED.

MADDOX, FAULKNER, JONES, AL-MON, SHORES, EMBRY and ADAMS, JJ., concur.

TORBERT, C. J., concurs in the result.


text:
    BIG THREE MOTORS, INC. v. Geraldine SMITH
    Civ. 1847.
    Court of Civil Appeals of Alabama.
    March 25, 1981.
    Rehearing Denied May 13, 1981.

      Patricia K. Olney and Richard W. Voll-mer, Jr., of Pillans, Reams, Tappan, Wood, Roberts & Vollmer, Mobile, for appellant.
    James H. Lackey, Mobile, for appellee.
   BRADLEY, Judge.

This case is on remand from the supreme court, 412 So.2d 1218. The facts appear in our original opinion, 412 So.2d 1214. On original submission the sole issue raised was whether there was a scintilla of evidence to take the case to the jury on the issue of punitive damages. We held that there was insufficient evidence as to punitive damages and reversed.

In that opinion we were constrained to follow the supreme court’s opinion in Winn-Dixie Montgomery, Inc. v. Henderson, Ala., 371 So.2d 899 (1979) which set out a two-pronged test for punitive damages. That test is as follows: (1) that the fraud be malicious, oppressive or gross, and (2) that the statements were made with knowledge of their falsity and with an intent to deceive.

On certiorari, the supreme court, 412 So.2d 1218, stated the issue to be “whether this Court [Alabama Supreme Court], in Winn-Dixie Montgomery, Inc. v. Henderson, Ala., 371 So.2d 899 (1979), modified the law of fraud by allowing a recovery of punitive damages only upon proof of statements made with actual knowledge of their falsity.” The supreme court went on to answer this question by stating, “With deference to our brothers, our opinion in Henderson was not intended to change the law of fraud by eliminating the possibility of a recovery based upon a heedless or reckless misrepresentation.”

It is apparent to this court that neither Big Three nor Mason had actual knowledge of any lien on the vehicle sold to plaintiff. However, actual knowledge is not'the only requirement for granting punitive damages. Ex parte Smith, 412 So.2d 1218 (Ala.1981).

We therefore return to International Resorts, Inc. v. Lambert, Ala., 350 So.2d 391 (1977), where the supreme court stated:

As a general rule, an intent to deceive is an indispensable element to the successful maintenance of a tort action for fraud and deceit. 37 Am.Jur.2d, Fraud and Deceit, § 188. However, it is equally well-established that an action for damages will lie when one makes representations relied upon by another without knowing or caring whether they are true or false.

The court also held that the evidence supported a finding that misrepresentations had been made, whether they were with an intent to deceive or were made heedlessly and without any regard to the consequences, and the court upheld the award of punitive damages.

The Lambert case implies that the two-pronged test for punitive damages enunciated in Henderson is not the only rule. Our interpretation of Lambert is confirmed, so we believe, by the decision in Ex parte Smith, supra. Statements made other than with actual knowledge of their falsity will support an award of punitive damages. Such statements, if made so heedlessly and so recklessly and without knowing or caring whether they are true or false may support an award of punitive damages in a fraud action. Lambert, supra. Furthermore, representations made recklessly and heedlessly without regard to their consequences will supply the requisite intent to support a fraud action. Winn-Dixie Montgomery, Inc. v. Henderson, 395 So.2d 475, 79-456 (Ala.1981).

It appears to us after reviewing the cases dealing with fraud and punitive damages that the rule to follow in this case is that punitive damages may be awarded where there is evidence from which a jury could conclude that the fraud was malicious, oppressive or gross, and the statements were made recklessly without regard to their truth and without knowing or caring if they were true. Lambert, supra.

Therefore, the issue presented to this court on remand is whether there was a scintilla of evidence to take the case to the jury on the question of punitive damages. We find that there was no such evidence and reverse the judgment of the trial court.

The evidence shows that the vehicle was parked on or near Big Three’s lot, that Big Three’s stationery was used to draw up the bill of sale, that the bill of sale provided that Big Three was the lawful owner of the vehicle, that Big Three’s office employee processed the sale in Big Three’s office, that payment was made to Big Three, and that, in fact, Big Three received one-half of the profits from the sale.

Nowhere in this evidence do we find that Big Three acted so heedlessly or recklessly that it could be said Big Three did so without knowing or caring whether the representations made were truthful nor that the representations made by Big Three were gross, oppressive or aggravated.

In the absence of a scintilla of evidence to support a punitive damages award, the trial court erred in refusing the motion for a directed verdict as to punitive damages. See Proctor Agency, Inc. v. Anderson, Ala., 358 So.2d 164 (1978).

REVERSED AND REMANDED.

WRIGHT, P. J., concurs.

HOLMES, J., dissents.

HOLMES, Judge

(dissenting).

I respectfully again dissent.

The question, as pointed out by the plaintiff, is whether Big Three Motors represented to plaintiff that it was the owner of the automobile in question and that it had a right to sell the vehicle. Put another way, the issue is not whether Big Three knew there was a prior encumbrance on the vehicle, but whether Big Three knew it was not the owner of the vehicle when it represented that it was the owner.

I would find that Big Three knew it was not the owner and thus intentionally deceived the plaintiff in warranting title.

This is so because to me the evidence is clear that Big Three’s agent allowed plaintiff to believe Big Three was the owner when in fact the agent was the owner. Indeed, Big Three’s defense at trial had at its very core the claim that Mason, the agent, was the owner. Nevertheless, it warranted to plaintiff that it had clear title to the vehicle.

Viewed another way, Mason’s admitted failure to disclose his ownership amounted to the suppression of a material fact which he, as agent, or Big Three, as principal, had a duty to disclose. Under § 6-5-102, Code of Ala. 1975, such suppression constitutes fraud.

In the case of Neil Huffman Volkswagen Corp. v. Ridolphi, Ala., 378 So.2d 700 (1979), the Supreme Court of Alabama upheld a jury award of punitive damages totaling over $27,000 when liability was predicated upon this statute. There, the salesman failed to disclose the fact that the used automobile plaintiff was contemplating purchasing had been wrecked despite the plaintiff’s express inquiries as to the condition of the car. Certainly, the information suppressed here, namely the true ownership of the vehicle, as known by the agent and principal, was just as vital as the information suppressed in Neil Huffman. Put another way, Big Three, the principal, clearly knew it was not the owner.

In closing, I could do no better than to set out the eloquent language of Mr. Justice Faulkner in Neil Huffman, supra:

The doctrine of caveat emptor, if not already grounded, is a weak bird. The law now is consumer oriented, and federal and state laws (Truth-in-Lending, UCC, for example) have been passed for the protection of the consumer. It now appears that the seller is the one to beware. This certainly appears to be true in the matter of the sale of used cars. It is a rare case when the seller and buyer of a used car stand on equal footing. In most cases the buyer is at the mercy of the seller, and when he pays a substantial portion of his monthly paycheck in car payments, he does not want to drive a car running sideways down the highway, or have the thing come out nude when he drives it through a carwash. These statements are made to emphasize the statutory law, particularly § 6-5-102 ....

378 So.2d at 702. I would only add to the penultimate quoted sentence, “or be owned by someone other than the dealer.”

I would affirm the verdict of the jury and the resulting judgment.


author: SHORES, Justice.

text:
    Ex Parte: Geraldine SMITH. (Re BIG THREE MOTORS, INC. v. Geraldine SMITH).
    80-645.
    Supreme Court of Alabama.
    Feb. 5, 1982.
    Rehearing Denied March 5, 1982.

      James H. Lackey, Mobile, for petitioner.
    Richard W. Vollmer, Jr. and Patricia K. Olney, of Reams, Wood, Vollmer, Philips, Killion & Brooks, Mobile, for respondent.
   SHORES, Justice.

This case has been exhaustively reviewed on appeal and the facts have been repeatedly stated. The Court of Civil Appeals first reversed a judgment rendered on a jury verdict (Big Three Motors, Inc. v. Smith, 412 So.2d 1214 (Ala.Civ.App.1980)); this Court granted certiorari and remanded the case to the Court of Civil Appeals (412 So.2d 1218 (Ala.1981)). The Court of Civil Appeals, 412 So.2d 1219, has once again reversed the trial court, and this Court has again granted certiorari.

It has been established beyond any doubt and, in fact, it is not disputed, that Big Three Motors (Big Three) represented in writing to Geraldine Smith that the car she was buying was owned by Big Three, and that Big Three had good title thereto and could transfer good title to her. She paid cash for the automobile, and the money went into Big Three’s account. Big Three issued her a purchase order and executed a bill of sale.

At the time Big Three made these representations, it knew that it did not own the automobile, and that it did not have title to the automobile and could not transfer good title. When the car was repossessed by a prior lienholder and this suit was filed, Big Three’s defense was that it did not own the car, but that its salesman owned the car. It says that it made no representation with regard to prior lienholders. The question is: Under these facts was a jury justified in awarding punitive damages? We hold that it was. As Judge Holmes pointed out in his dissent, the issue is not whether Big Three knew there was a prior encumbrance on the car, but whether it knew it was not the owner of the car and capable of transferring good title as it said it was. In this regard, the jury was justified in finding that it intentionally and knowingly lied to the purchaser.

The law should and does permit the imposition of punitive damages under these facts. It is true, as the Court of Civil Appeals correctly notes, that not all actionable wrongs permit the imposition of punitive damages. But some do. At 22 Am. Jur.2d Damages § 249 (1965), the rule is summarized as follows:

“Exemplary damages, if recoverable at all, may be recovered only in cases where the wrongful act complained of is characterized by, or partakes of, some circumstances of aggravation, such as wilfulness, wantonness, maliciousness, gross negligence or recklessness, oppression, outrageous conduct, indignity and contumely, insult, or fraud or gross fraud. . . .
“One or more of the conditions under which exemplary damages are recoverable is sufficient. For example, if the act is done with a fraudulent, malicious, or oppressive motive on the part of the wrongdoer, there is ground for exemplary damages, although the act is done without rudeness or insult. Exemplary damages may be also recovered, although there is no malice, fraud, or intent to oppress on the part of the wrongdoer, if the act is done in a rude, insulting, or reckless manner, in disregard of social obligations, or with such gross negligence as to amount to positive misconduct.” (Emphasis added.)

The elements are disjunctive. One need not prove each of them, but must prove at least one of them, to justify an award of punitive damages. Thus, the question is: Has any one of the foregoing been proved by the plaintiff in this case? Clearly so. It has been proved without contradiction that Big Three willfully and intentionally represented that it owned the car when it knew that it did not own the car. It represented that it had good title when, in fact, the car was encumbered by a prior lien. Ala.Code 1975, § 6-5-103. This we think is enough to meet the burden which the law casts on a plaintiff seeking exemplary damages. At least as early as 1849, this Court recognized this principle. In Munroe v. Pritchett, 16 Ala. 785 (1849), having said that an action of deceit would lie where the seller represented to the purchaser of land that the tract conveyed contained a certain quantity of good land, which was not true, the Court went on to say that the same rule applied in the sale of personal property. The Court continued:

“In Bacon’s Ab.tit.Act, on the Case E, it is said if there be a communication between A and B for the buying of certain sheep, and B, the vendor, says they are his own sheep, when in truth they are the sheep of another; whereupon A buys them of B, though B made not any express warranty of the sheep, yet an action upon the case in the nature of deceit lies against him. So also, where the vendor affirms that the goods belong to a stranger, his friend, and that he has authority to sell the same, in consequence of which B buys them, when in truth they are the goods of another; yet if he sold them fraudulently and falsely upon this pretense of authority, though he did not warrant them, and though it is not averred that he sold them, knowing them to be the goods of a stranger, yet B shall have an action upon the case for this deceit.. .. These cases rest on this principle, that if a man having the possession of property which gives him the character of owner, affirms that he is owner, and thereby induces a man to buy, when in point of fact the affirmant is not the owner, he is liable to an action. It has been said that this is because there is a breach of contract to rest the action on, and that there is no contract in this case. This is not the true principle — it is this: He who affirms either what he does not know to be true, or knows to be false, to another’s prejudice and his own gain, is, both in morality and law, guilty of falsehood, and must answer in damages.
“... From our own decisions, I think the conclusion may be deduced, that although in an action on the case to recover for the consequences resulting from a fraudulent misrepresentation of matter of fact, coming within the restrictions above laid down, the plaintiff must show that such misrepresentations were fraudulently made, yet it is not indispensable that the party making them should at the time have known them to be false. It is sufficient that he made them recklessly, not knowing them to be true, and for the purpose of influencing the other party in making the purchase.... He thus induces the purchase, upon his false statement of matter of fact, and pockets the gains. Shall he, when sued, say, T did not know that I was telling an untruth’? It is sufficient that he misrepresented the fact, and did not care that he did so, — in other words, that he asserted as true, and as matter of knowledge, that which was untrue, and which he either knew nothing about or knew to be untrue. Did the law allow the action to punish the untruth, and not as a compensation to the party injured by its consequences, then it would be proper to make the action depend upon the scienter; but the action is for the injury sustained by reason of the reckless, false assertion of the vendor, which was calculated to deceive and did deceive the purchaser — consequences which to him are precisely the same, whether the vendor knew or did not know, or care to know, that the assertion was false.” (Emphasis added on last sentence; other emphasis in original.)

16 Ala. 785, 788-791. The Court recognized that, if the misrepresentation is shown to have been made knowing that it is false, then the law permits punitive damages by way of punishment. Without knowledge of its falseness, the law allows only compensatory damages (Ala.Code 1975, § 6-5-101), unless the misrepresentation is made so recklessly and heedlessly as to amount to the same thing as knowledge of its falseness.

The Court concluded by noting that this view harmonizes with both reason and sound morality and requires no more of a vendor than fair and open dealing. This remains the law to this day in this State. It is to punish wrongdoers and to deter others from committing such wrongs that the law sanctions the award of punitive damages. It is a matter of policy of long standing, the goal of which is the protection of the public from oppressive practices, particularly in the sale of consumer goods. See, Neil Huffman Volkswagen Corporation v. Ridolphi, 378 So.2d 700 (Ala.1979).

The judgment of the Court of Civil Appeals is reversed, and the cause is remanded.

REVERSED AND REMANDED.

MADDOX, FAULKNER, JONES, AL-MON, EMBRY, BEATTY and ADAMS, JJ., concur.

TORBERT, C. J., concurs in the result.


author: BRADLEY, Judge.

text:
    BIG THREE MOTORS, INC., a corporation v. Geraldine SMITH.
    Civ. 1847.
    Court of Civil Appeals of Alabama.
    March 31, 1982.
   BRADLEY, Judge.

Upon remand to this court by the Supreme Court of Alabama, 412 So.2d 1222, it is considered that this cause should be affirmed in accordance with the opinion rendered by the supreme court on February 5, 1982 in the above-styled cause.

AFFIRMED ON REMAND.

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


author: BRADLEY, Judge. WRIGHT, Presiding Judge,

text:
    William J. DAVIS, as Director of the State of Alabama Department of Industrial Relations and Black Diamond Coal Company v. James W. PICKETT, Amos Boyd, Leodis Majors, and Johnson T. Morse
    Civ. 2637.
    Court of Civil Appeals of Alabama.
    July 22, 1981.
    Rehearing Denied Aug. 19, 1981.

      George Cocoris, Gen. Counsel, and Frank D. Marsh, Asst. Gen. Counsel, Montgomery, for appellant Director, Dept, of Indus. Relations.
    Harry L. Hopkins and Carol A. Smith of Lange, Simpson, Robinson & Somerville, Birmingham, for appellant Black Diamond Coal Co.
    William E. Mitch and Earl V. Brown, Jr., of Cooper, Mitch & Crawford, Birmingham, for appellees.
   BRADLEY, Judge.

This is an unemployment compensation case.

On December 1, 1977 Black Diamond Coal Company (hereinafter Black Diamond), through one of its supervisory personnel, distributed a termination slip to James W. Pickett, Amos Boyd, Leodis Majors, and Johnson T. Morse notifying them that, effective immediately, they were being “laid off” from their jobs at its coal washer number nine located at West Blocton, Alabama. Appellees are members of United Mine Workers of America Local 7578. Black Diamond was a signatory to the National Bituminous Coal Wage Agreement of 1974 which, among other things, governed the terms and conditions of employment by Black Diamond of the members of Local 7578. The agreement provided that it would remain in full force and effect until December 6, 1977. Burgess Mining and Construction Company was also a signatory party to this agreement and its employees were represented by Local 7578. In October of 1977 it became increasingly probable that the rank and file members of Local 7578 would go out on strike after December 6, 1977 since protracted negotiations between the United Mine Workers of America and the Bituminous Coal Operators Association had produced little progress toward agreement on the terms of a new employment contract. In late November 1977 Burgess’s management began to winterize its coal mining equipment and facilities to protect them from damage during the anticipated strike. In conjunction with these measures Burgess halted further strip mining of coal and began to ship out all the coal which it had previously mined and stockpiled on its properties. All of the coal washed at Black Diamond’s coal washer number nine came from Burgess’s strip mining operations. All of Burgess’s coal which had been shipped to Black Diamond’s number nine washer had been cleaned before Black Diamond closed down its operations at the washer on December 1, 1977.

After receiving the termination slips, ap-pellees did not return to work at the washer until three days after Local 7578 and Black Diamond executed a new employment contract on March 28, 1978, nor did they attempt to secure temporary or permanent employment commensurate with their training and experience with other employers at any time between December 1, 1977 and March 28,1978 by directly applying for work with potential employers. Instead, they filed separate claims for unemployment compensation, registered for work at a state unemployment office, and, with the exception of appellee Johnson Morse, continued to periodically report to that office in an effort to obtain work with other employers. It is undisputed that appellees were able to work at all times from the moment they were “laid off” by Black Diamond until the time that they returned to work for Black Diamond.

On January 30, 1978 the company’s vice president of coal operations, Richard B. Johnson, addressed a separate letter to each appellee notifying him “that work is available at our West Blocton preparation plant and has been since December 5, 1977.” Mr. Johnson requested each appellee “to report to work at your regular occupation at 7:00 A.M. Monday, February 6, 1978.” Each ap-pellee, save Amos Boyd, reported for work at the number nine washer on February 6 shortly before 7:00 a.m. Mr. Boyd did not report for work until “somewhere between 9 and 9:30.” All appellees testified that the entrance gates to the washer were locked on that February morning. Each appellee, with the exception of Mr. Morse, stated that he did not see Mr. Neal Meyers, one of appellees’ supervisors at the number nine washer, or any other management personnel at the washer at 7:00 a.m. on February 6. No appellee stayed for more than a few minutes at the gates to the washer before concluding that Black Diamond had no work available for him to perform on that day. Only one appellee thereafter applied for any type of work with the company before it signed the March 28,1978 employment contract. Johnson Morse appeared at the washer on the morning of February 7 and discussed the possibility of returning to work there with Mr. Meyers. Meyers told Morse that maintenance work was available at the washer but Morse declined to perform such work for the company. Morse did not thereafter apply for work with Black Diamond until March 1978.

After a hearing the trial court found that Black Diamond gave appellees layoff notices in anticipation of an industry strike, that appellee Morse refused reemployment on February 7, 1978, and that all appellees returned to work on March 31, 1978. The court then held that Morse was entitled to benefits from December 1, 1977 to February 7, 1978 and that Pickett, Boyd and Majors were entitled to benefits from December 1, 1977 until March 31,1978. After a denial of its motion to vacate the judgment, the Department of Industrial Relations (hereafter the Department) appealed to this court. Black Diamond also appealed to this court.

Appellants say here that the trial court erred in finding that appellees were available for work during their unemployment and in holding that appellees’ unemployment was not due to a labor dispute in active progress.

Section 25-4-77 of the 1975 Code permits an award of unemployment compensation benefits to an unemployed individual if:

(1) He has made a claim for benefits ....
(2) He has registered for work at, and thereafter continued to report at, an unemployment office ....
(3) He is physically and mentally able to perform work of a character which he is qualified to perform by past experience or training, and he is available for such work either at a locality at which he earned wages for insured work during his base period or at a locality where it may reasonably be expected that such work may be available.

Generally, an individual asserting a claim for unemployment benefits under § 25-4-77 bears the burden of establishing his right to such benefits by proving through competent evidence that he has satisfied each of the conditions precedent, detailed above, to obtaining such benefits. Department of Industrial Relations v. Tomlinson, 251 Ala. 144, 36 So.2d 496 (1948). In the case at bar the Department contends that appellees failed to prove that they were available to perform work which they were qualified to perform by past experience or training either at Black Diamond or at any other “locality where it may reasonably be expected that such work may be available,” and that, therefore, they are not entitled to unemployment compensation. We cannot agree.

In Director, State Department of Industrial Relations v. Bishop, Ala.Civ.App., 373 So.2d 1119, cert. denied, Ala., 373 So.2d 1121 (1979), this court found that a claimant for unemployment compensation benefits was “available for work” within the meaning of § 25-4-77 (3) even though the only evidence of such availability was the claimant’s own testimony that she (1) had sought similar employment “in the area from the unemployment office” and (2) was ready to take a job.

In the instant case each appellee testified, in substance, that he had filed a claim for unemployment benefits, that he had registered for work with the unemployment office, and that from December 1, 1977 to March 31, 1978 he was physically and mentally able to perform work of a character which he was qualified by past experience or training to perform. In addition, each appellee, save Johnson Morse, stated affirmatively that he had continued to report for work at the unemployment office after he had registered for work there. We believe such evidence sufficient to make out a prima facie case that appel-lees were available for work under § 25-4-77(3) unless appellants adduced further testimony contradicting or otherwise countering such evidence of availability for work. Id.

The record in this case does not convince us that appellants ever contradicted or countered appellees’ evidence of availability for work with evidence that appellees did not seek employment similar to that in which they were engaged on December 1, 1977 at washer number nine from an unemployment office or that, with the exception of Johnson Morse, they were not ready to take a job at any time after they were “laid off” at the washer. Hence, the trial court properly concluded that Pickett, Boyd, and Majors were eligible for benefits. However, in view of the fact that there is no evidence in the record that appellee Johnson Morse continued to report for work at the unemployment office after he registered for work at same, we believe the circuit court erred in concluding that Mr. Morse was eligible for benefits. See generally Department of Industrial Relations v. Tomlinson, supra.

Even though we have concluded that appellees Pickett, Boyd, and Majors are eligible to receive unemployment compensation benefits pursuant to § 25-4-77(3), it is now necessary to decide whether these appellees are disqualified from receiving benefits under § 25-4-78, Code 1975. The courts of this state have consistently held that the two sections of the Code, i.e. §§ 25-4-77 and 25-4-78, must be construed together to determine a claimant’s eligibility for unemployment compensation. Southern Bell Telephone & Telegraph Co. v. Department of Industrial Relations, 42 Ala.App. 351, 165 So.2d 128 (1964); accord, State, Department of Industrial Relations v. Thomas, 55 Ala.App. 712, 318 So.2d 739 (1975).

Black Diamond contends that appellees’ unemployment was caused by a labor dispute in active progress at washer number nine and that they should have been denied compensation benefits. Section 25-4-78(1), Code 1975 provides:

An individual shall be disqualified for total or partial unemployment:
(1) Labor dispute in place of employment. — For any week in which his total or partial unemployment is directly due to a labor dispute still in active progress in the establishment in which he is or was last employed. For the purposes of this section only, the term “labor dispute” includes any controversy concerning terms, tenure or conditions of employment, or concerning the association or representation of persons in negotiating, fixing, maintaining, changing or seeking to arrange terms or conditions of employment, regardless of whether the disputants stand in the proximate relation of employer and employee. This definition shall not relate to a dispute between an individual worker and his employer.

For an unemployment compensation claimant to be disqualified by § 25-4-78(1), five separate and distinct conditions must coincide, namely (1) his unemployment must be directly due, (2) to a labor dispute, (3) in active progress, (4) in the establishment, (5) in which he was last employed. Tennessee, Coal, Iron & Railroad v. Martin, 33 Ala.App. 502, 36 So.2d 535, aff'd, 251 Ala. 153, 36 So.2d 547 (1948).

In the present case the trial court awarded unemployment benefits to appellees even though it specifically found that Black Diamond gave them “their lay off notices in anticipation of an industry strike.” These two aspects of the court’s judgment are inconsistent. If appellees were indeed given their layoff notices in anticipation of a coal miners’ strike, then their unemployment would in this instance apparently be directly due to a labor dispute in active progress at the place where they were employed, i.e. Black Diamond’s washer number nine, and they should not have received any compensation benefits. If the appellees were given their layoff notices because of a lack of work, then the trial court’s judgment awarding benefits contains an implicit finding that appellees were not disqualified from receiving those benefits.

Because of this obvious inconsistency, the aspect of the trial court’s judgment implicitly finding that appellees were not disqualified from receiving unemployment compensation benefits is erroneous and must be reversed.

That aspect of the judgment holding that appellees Pickett, Boyd and Majors were eligible for benefits is affirmed; that aspect of the judgment holding that appellee Morse was eligible for benefits from December 1, 1977 to February 7, 1978 is reversed; and that .aspect of the judgment holding that appellees were not disqualified from receiving benefits is also reversed. The cause is remanded so that the trial court can make findings of fact and conclusions of law relating to the disqualification of appellees to receive unemployment compensation benefits that will be consistent with its judgment.

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

HOLMES, J., concurs.

WRIGHT, P. J., dissents.

WRIGHT, Presiding Judge,

dissenting.

I must dissent from the action of my brothers of the court in remanding the case to the trial court for further consideration. I would reverse the judgment of the court because of disqualification under § 25-4-78(1). The material finding of fact of the trial court in paragraph 5 is that plaintiffs were laid off on December 1, 1977. There were negotiations in progress on a new contract between the coal industry, of which Black Diamond was a member, and the United Mine Workers Union, to which plaintiffs belonged. The Industry-Union contract in force on December 1 was to expire at 12:01 A.M., December 6, 1977. The employer gave plaintiffs their layoff notice in anticipation of an industry-wide strike by the UMW on December 6. These facts are undisputed.

Additional undisputed evidence was that negotiations had been in progress for more than four months and there was every reasonable expectation that agreement on a new contract was not going to be reached before midnight December 5. There was no dispute that it was union policy that there would be no work without a new contract. There was no contract by midnight, December 5, and a nationwide coal industry strike occurred on December 6 at 12:01 A.M. and continued until March 31, 1978.

The undisputed facts, including the facts found by the court, require disqualification under the statute and its construction and application in the cases, Dept. of Industrial Relations v. Walker, 268 Ala. 507, 109 So.2d 135 (1959); Ex parte Pesnell, 240 Ala. 457, 199 So. 726 (1940); Dept. of Industrial Relations v. Savage, 38 Ala.App. 277, 82 So.2d 435 (1955). The facts in those cases are remarkably similar to those in this case. The court said in Walker:

[W]e find no error in the Court of Appeals holding that the direct cause of the unemployment was the labor dispute, nor do we find error in the holding that under the evidence, the employer was authorized in anticipation of a strike, to take proper measures for protection of its property from damage during a pend-ency of the strike.

Again, there is no dispute that the layoff of its employees by Black Diamond was because its supplier of coal for washing (Burgess Mining) had shut down its mining and winterized its equipment in anticipation of the industry-wide strike by plaintiffs’ union. There is no dispute but that Black Diamond had no coal to wash and had been informed it would not receive any more when it drained its pumps, shut down its washing plant and laid off its employees. All of this, as found by the trial court, was in anticipation of the impending strike by all UMW members, including the plaintiffs. Applying the statute and the case law, there was a labor dispute in active progress in the industry and establishment in which plaintiffs were employed on December 1, 1977, and their layoff and unemployment were directly due to such dispute. I would hold that the trial court erred in applying the law to its own finding of fact and reverse and render for disqualification.

I perceive no reason for deciding the issue of availability for work under the statute. However, I would observe that in spite of the obvious game that was played by both the employer and the employees, there was no work available since there was no coal. Neither were the employees available for work at Black Diamond or anywhere else in the coal industry. The testimony was very clear that the employees were long-time UMW members and adherents to the UMW creed — “No contract-no work.” There was testimony by each of them to that point. There was also testimony that the employees did not seek other employment because they had a job at Black Diamond which they expected to return to when the new contract was signed. The letter from the company advising the employees of availability of work in February 1978 and the response of the employees in going to the locked back gate of Black Diamond and remaining “a few minutes” were merely examples of each playing games with the other.

I dissent.


author: MADDOX, Justice.

text:
    Ex parte William J. DAVIS, as Director of the Alabama Department of Industrial Relations and Black Diamond Coal Company. (Re William J. DAVIS, et al. v. James W. PICKETT, et al.) and Ex parte BLACK DIAMOND COAL COMPANY. (Re William J. DAVIS, et al. v. James W. PICKETT, et al.)
    80-879, 80-880.
    Supreme Court of Alabama.
    April 9, 1982.

      George Cocoris, Gen. Counsel and Frank D. Marsh, Asst. Gen. Counsel, Dept, of Industrial Relations, Montgomery, for petitioners in 80-879.
    Joseph C. Carroll and Harry L. Hopkins of Lange, Simpson, Robinson & Somerville, Birmingham, for petitioners in 80-880.
    Earl V. Brown, Jr., of Cooper, Mitch & Crawford, Birmingham, for respondents.
   MADDOX, Justice.

WRIT QUASHED AS IMPROVIDENTLY GRANTED.

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


text:
    Raymond F. TAYLOR v. Julia A. TAYLOR (Ward).
    Civ. 2813.
    Court of Civil Appeals of Alabama.
    Dec. 9, 1981.
    Rehearing Denied Jan. 13, 1982.
    Certiorari Denied, April 23, 1982 Alabama Supreme Court 81-356.
    Harry D. Raymon of Raymon, Nathanson & Raymon, Tuskegee, for appellant.
    Floyd Minor of Wood, Minor & Parnell, Montgomery, for appellee.
   BRADLEY, Judge.

This case involves a modification of child support payments.

Julia Taylor and Raymond Taylor were granted a divorce on May 31, 1968 in Montgomery County, Alabama. The parties had three minor children. The divorce decree ordered the husband to pay the wife $120.00 a month as child support for eighteen months, and thereafter $150.00 per month.

The mother filed a petition for modification of these child support payments on February 23, 1980. She alleged that there had been a material change in circumstances since the original decree of divorce. During the pendency of this petition, the oldest child, Raymond G. Taylor, reached the age of majority. Therefore, he was not subject to the petition for modification.

Service was not made on the father until December 1980. A hearing was held on February 16, 1981. As a result of that hearing, the trial judge modified the child support provisions of the original decree. The court ordered the father to pay $150.00 per month for the support of David Taylor and $200.00 per month for the support of Kelli Taylor. These payments would cease upon the child reaching majority age or becoming self-supporting. The court also awarded the mother $550.00 as attorney fees. From this judgment the father has appealed.

In this appeal the father contends that the trial judge erred in awarding $150.00 a month as child support for David. The father claims that David was self-supporting due to the fact that he had a part-time job earning approximately $100.00 a week. We, however, do not agree with this contention.

We begin by stating the general rule that modification of child support payments is a matter within the judicial discretion of the trial court and will not be overturned on appeal unless plainly and palpably wrong. Green v. Green, 380 So.2d 884 (Ala.Civ.App.1980). In determining whether to modify child support payments, the court is to consider the needs, conditions, and circumstances of the children as well as the father’s ability to meet these needs. Womble v. Womble, 56 Ala.App. 318, 321 So.2d 660, cert. denied, 295 Ala. 429, 321 So.2d 664 (1975).

The evidence adduced at the hearing showed that the son lived with his mother and stepfather. He was attending high school at night and working part time during the day. He testified that he earned approximately $100.00 a week. The evidence also showed that he used all of his earnings for his personal expenses. His mother and stepfather paid all of his living expenses including food and medical bills. The mother testified that she spent approximately $200.00 a month for her son’s support.

The evidence also showed that the father received approximately $600 a month as military retirement benefits. He also worked as a mud logger in oil fields earning up to $1,000.00 a month. Also the testimony showed that the father lived with his sister and had no extraordinary expenses.

The father contends that the son’s earnings from his part-time job make him self-supporting and thus the father’s duty of support has ended. The father claims that the trial judge has abused his discretion in awarding further child support for the minor son.

In Brooks v. Brooks, 386 So.2d 472 (Ala.Civ.App.1980), we said:

Generally, parents owe a legal duty to support minors because children are unable to, and do not, support themselves, requiring many years for developing, education, training and maturing before they can become reasonably self-sufficient. When a minor’s situation is such that he no longer needs to be supported, then his right to support from his parents, or either of them, should no longer exist. This is because the amount of child support required to be paid by a parent has always been dependent upon two factors; first, the needs of the child and second, the ability of the parent to pay. Spears v. Spears, 382 So.2d 572 (Ala.Civ.App.1980); 15A Ala.Dig., Parent and Child, Key No. 3.1(10) and 3.3(7), and 8 Ala.Dig., Divorce, Key No. 307. When a minor is employed and self-supporting, and may properly be expected to continue to do so, his parents are relieved from the obligation of support. Adcock v. Adcock, 45 Ala.App. 328, 229 So.2d 925 (1970); 67A C.J.S. Parent and Child § 51 at p. 331; 24 Am.Jur.2d, Divorce and Separation, § 850 at p. 965. “Self-support” has its common and ordinary meaning, that is, the independent support of oneself. Webster’s Third New International Dictionary.

In the present case the father clearly has the ability to pay the increased amounts of child support ordered by the trial court. As to the minor son’s need for support, the evidence shows that he is eighteen years old, attending high school full time, and working part time. He earns approximately $400.00 per month from his part-time job. He lives with his mother and stepfather and they provide food, housing and medical and dental expenses. His mpther testified that she expended about $2,600 in 1980 on his support. The son testified he could not support himself.

We said in Brooks that “self-supporting” meant the independent support of oneself. In the instant case the evidence would support a finding that the minor son was not self-supporting. Therefore, we cannot say that the trial court was plainly and palpably wrong in concluding that the minor son was not self-supporting and needed support from his father.

The father also contends that the award to the mother of $550.00 as attorney’s fee was excessive. The grant of attorney’s fees is within the discretion of the court and will not be reversed on appeal unless palpably wrong. Price v. Price, 360 So.2d 340 (Ala.Civ.App.1978).

We can find no abuse of discretion under the circumstances. The mother’s attorney spent a great deal of time in attempting to obtain service on the father. Numerous motions had to be filed in the trial court. As a result, we can find no error in the court’s award of $550.00 as attorney’s fees.

The mother has requested this court to grant her attorney’s fees on this appeal. We, therefore, grant her request and award $350.00 as attorney’s fees for this appeal.

AFFIRMED.

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