author: LABORDE, Judge.

text:
    STATE of Louisiana, Plaintiff-Appellee, v. Ronald E. WILLIAMS, Defendant-Appellant.
    No. CR83-774.
    Court of Appeal of Louisiana, Third Circuit.
    June 27, 1984.

      Saundra M. Isaac, Gray, Clemons & Spruel, Lake Charles, for defendant-appellant.
    Leonard Knapp, Jr., Dist. Atty., Karen Price, Asst. Dist. Atty., Lake Charles, for plaintiff-appellee.
    Before GUIDRY, LABORDE and KNOLL, JJ.
   LABORDE, Judge.

Defendant, Ronald E. Williams, was charged by bill of information with theft of approximately $6,000 in cash in violation of LSA-R.S. 14:67. After pleading not guilty, defendant was convicted by a six member jury and was sentenced to serve ten (10) years at hard labor. Defendant appeals from his conviction and sentence. We affirm.

FACTS

On or about March 6, 1981, the defendant, Ronald Williams, entered George Ther-iot’s grocery store in Sulphur. Defendant, noticing that the cash drawer in the store was unattended, allegedly filled his shirt with approximately $6,000 and left the store. A short time later, he and three companions were apprehended on Interstate 10 by Calcasieu Parish law enforcement officers. The stolen money was revealed and defendant was taken to jail. On March 7, 1981, a confession was obtained from the defendant by Lt. Bagwell of the Sulphur Police Department.

On September 21, 1981, defendant entered a plea of guilty to the charge of felony theft. He was sentenced to serve three (3) years at hard labor. Subsequently, it was discovered that defendant had been previously convicted of several felonies. For this reason, the trial court vacated the three (3) year sentence and defendant was allowed to withdraw his guilty plea. On May 11, 1983, trial on the merits commenced and defendant was found guilty of felony theft by a six member jury and sentenced to serve ten (10) years at hard labor.

ISSUES

During trial, defendant objected to three rulings made by the trial judge relating to the admission of evidence.

The issues presented on appeal are:

1) Whether the trial judge erroneously admitted into evidence a “waiver of rights” form signed by defendant when it was not produced by the state pursuant to defendant’s request by pretrial motion for discovery and inspection;
2) Whether the trial judge erroneously allowed defendant’s purported confession to be admitted into evidence; and,
3) Whether the trial judge erred in allowing the state to recall witnesses who had not been previously cross-examined by defendant.

Issue #1; Evidence of Waiver of Rights

Following defendant’s arrest, he was transported to jail whereupon he signed a “waiver of rights” form and was then questioned by officers about the offense.

In his motion for discovery and inspection, defendant requested that the state:

“Permit or authorize defendant to inspect and copy, photograph, or otherwise reproduce any written or recorded confession or statement of any nature, including recorded testimony before a grand jury, or copy thereof, of the defendant in the possession, custody, control or knowledge of the district attorney:
“Permit or authorize defendant to inspect, copy, examine, test scientifically, photograph, or otherwise reproduce any books, papers, documents, photographs, tangible objects, buildings, places, or copies or portions thereof, which are within the possession, custody, or control of the state, and which:
A. are favorable to defendant and which are material and relevant to the issue of guilt or punishment, or
B. are intended for use by the state as evidence at the trial, or
C. were obtained from or belong to defendant;
“Permit or authorize defendant to inspect and copy, photograph, or otherwise reproduce any relevant written or recorded confessions or inculpatory statements made by a codefendant and intended for use at trial, including any and all exculpatory evidence even though it is not intended for use at trial.”

Defendant claims that he did not receive the above mentioned “waiver of rights” form in response to this motion. Over defendant’s objection, the trial judge allowed the state to introduce the rights form at trial.

Defendant contends that the trial court erred by allowing this waiver into evidence and that it should have been disallowed because of the state’s prior failure to produce it subject to defendant’s motion for discovery and inspection. Defendant relies on the discovery sanctions of LSA-C.Cr.P. article 729.5 as a basis for having the evidence disallowed at trial.

We find that the signed waiver form constitutes a “statement” by the defendant as to the contents of the form. Accordingly, the state failed to comply with the pretrial discovery motion requiring production of a "... statement of any nature ...” made by defendant. The trial court should have properly disallowed the evidence in accordance with the sanctions provided for in LSA-C.Cr.P. art. 729.5.

In the instant case, it does not appear that the defendant was prejudiced by the state’s failure to provide a copy of the waiver form since a second signed waiver, nearly identical in nature, was provided along with defendant’s confession. The omitted waiver was, at most, cumulative evidence that the defendant intended to waive the constitutional rights enumerated in these two, nearly identical, Miranda warnings.

The state’s failure to comply with a defendant’s appropriate discovery request will not necessitate a reversal of defendant’s conviction in the absence of prejudice. State v. Willis, 438 So.2d 605 (3rd Cir. 1983); State v. Ray, 423 So.2d 1116 (La.1982).

Having found that defendant was not prejudiced in this instance, we hold that the trial court’s improper ruling does not warrant reversal.

Issue #2: Abandoned Assignment

Defendant failed to brief the assignment of error giving rise to the instant issue. Assignments of error which are not briefed are considered abandoned on appeal. State v. Dewey, 408 So.2d 1255 (La.1982). Accordingly, this assignment of error lacks merit.

Issue #3: Order Of Trial

Defendant contends that the trial court erred in allowing the state to recall a witness, Kay Alters.

Before the state rested its case-in-chief, the assistant district attorney recalled witness Alters to the stand for the purposes of obtaining testimony concerning an essential element of the crime charged, i.e., the value of the property taken. Apparently the state had not elicited this information when the witness initially testified. Defendant argued that this was improper and prejudicial. He asserts that since this witness’ testimony failed to establish an essential element, the defense counsel declined to cross-examine this witness and several other state witnesses. Furthermore, he argues that once the state called its witnesses, the only proper purpose of recalling them was in rebuttal of defendant’s cross-examination, and, since this was not done, that the state’s case was closed and recalling any of the witnesses even to prove an essential element of the crime was improper. The state argued that it had not rested its case.

LSA-C.Cr.P. Article 765 provides, inter alia:

“The normal order of trial shall be as follows:
(5) The presentation of the evidence of the state, and of the defendant, and of the state in rebuttal. The court in its discretion may permit the introduction of additional evidence prior to argument;”

Under art. 765(5), there is no prohibition against the state reopening its case to submit additional evidence before closing arguments. State v. Wise, 434 So.2d 1308 (3rd Cir.1983); State v. Bonanno, 373 So.2d 1284 (La.1979). Moreover, the recalling of a witness rests within the sound discretion of the trial judge. State v. Kirsch, 363 So.2d 429 (La.1978).

In State v. Kirsch, supra, the defendant argued that the trial court erred in allowing the state to recall a witness. The court held that the trial court did not err in allowing the recall in view of the fact that it also gave the defendant the opportunity to conduct cross-examination after the recall.

In the instant case, it does not appear that the trial court abused its discretion in allowing the recall of the witness, Ms. Alters. The state had not yet rested its case. Furthermore, the trial court allowed the defendant an opportunity to cross-examine the witness, once she was recalled. Thus, this assignment of error lacks merit.

DECREE

For the above and foregoing reasons, defendant’s conviction and sentence are affirmed.

AFFIRMED.

      . Art. 729.5. Failure to comply; sanctions
      “A. If at any time during the course of the proceedings it is brought to the attention of the court that a party has failed to comply with this Chapter or with an order issued pursuant to this Chapter, the court may order such party to permit the discovery or inspection, grant a continuance, order a mistrial on motion of the defendant, prohibit the party from introducing into evidence the subject matter not disclosed, or enter such other order, other than dismissal, as may be appropriate.”
      "B. * * * Omitted * * * ”


source: Caselaw Access Project

author: KNOLL, Judge.

license: Public Domain

text:
    STATE of Louisiana, Plaintiff-Appellee, v. Arthur Dwayne JOHNSON aka Arthur Hogan, Defendant-Appellant.
    No. CR 83-974.
    Court of Appeal of Louisiana, Third Circuit.
    June 27, 1984.

      Charles Soileau, Soileau & Bertrandt, Rayne, for defendant-appellant.
    Jack D. Miller, Asst. Dist. Atty., Crowley, for plaintiff-appellee.
    Before GUIDRY, LABORDE and KNOLL, JJ.
   KNOLL, Judge.

The defendant, Arthur Dwayne Johnson, aka Arthur Hogan, was convicted by a unanimous jury of twelve, on June 9, 1983 of armed robbery, a violation of LSA-R.S. 14:64. On August 31, 1983, defendant was sentenced to serve a term of thirty-five years at hard labor, without benefit of parole, probation or suspension of sentence. Defendant relies upon four assignments of errors for a reversal of his conviction and sentence. Assignments of errors five, six and seven have not been briefed nor argued, therefore are abandoned. State v. Howard, 443 So.2d 632 (La.App. 3rd Cir. 1983), writ denied 444 So.2d 1215 (La.1984).

FACTS

On May 21, 1982 at approximately 10:00 p.m., defendant and his accomplice, James Isaac, entered Church’s Fried Chicken in Crowley and placed an order with Leslie Johnson (hereafter Leslie), an employee. Unbeknown to defendant and Isaac, another employee, Kelly Nelson, (hereafter Kelly) was in the back cleaning the restrooms in preparation for closing the short order restaurant. Shortly after the order was placed, Isaac came over the counter, grabbed Leslie by the shirt collar, put a mini-size butcher knife to his face and said: “Give me the money or I’ll kill you.” Defendant was standing on the side and said: “Be cool. Just give him the money, and he won’t kill you.” Leslie agreed but was so frightened he could not open the cash register. Defendant then asked Leslie if he was alone. Leslie told the defendant that the assistant manager was in the back cleaning the restrooms. Defendant headed for the back by walking on top of the tables. Kelly heard Leslie pleading for his life, and started coming to the front. The defendant grabbed Kelly by his shirt, pulled out a small butcher knife and demanded money or he (defendant) would kill his friend (Leslie). Kelly got the keys to open the two cash registers while defendant held a knife to Kelly’s back.

As Kelly was being accosted by defendant, a struggle ensued between Leslie and Isaac, resulting in Isaac receiving a cut to his hand. After the struggle, defendant grabbed Leslie from the back. Kelly opened his cash register, then Leslie was able to open his cash register. Defendant and Isaac took money from the cash registers and a small metal box that contained large bills. The defendant told Leslie and Kelly: “Don’t be a hero. Hit the floor and don’t look up.” The defendant and Isaac fled with $510.

ASSIGNMENT OF ERROR ONE

The defendant complains that the trial court erred in excusing prospective juror Albert Bouillon without proper cause or objection.

The trial court took a roll call of the prospective jurors prior to voir dire examination. When Albert Bouillon’s name was called, he was absent. The clerk mentioned that Mr. Bouillon was a deputy sheriff. The trial court then excused Mr. Bouillon from jury duty.

From the outset we note the defendant failed to object. LSA-C.Cr.P. Art. 841 requires that defendant make a contemporaneous objection and state the reason therefor to allow the trial judge the opportunity to rule on it and prevent or cure error. State v. Herrod, 412 So.2d 564 (La.1982); State v. Hebert, 443 So.2d 613 (La.App. 3rd Cir.1983), writ denied 444 So.2d 1215 (La.1984).

This assignment of error is therefore without merit.

ASSIGNMENTS OF ERRORS TWO AND THREE

Defendant contends the trial court erred in failing to excuse for cause Mr. Lee Bou-dreaux, Mr. Samuel Boudreaux, Mrs. Me-nard and Mrs. Sarver. Although Mr. Samuel Boudreaux is named in the assignment of error, defendant did not brief nor argue this issue, therefore, the complaint as to Mr. Samuel Boudreaux is abandoned. Howard, supra.

Before a defendant can complain that the trial judge denied a challenge for cause of a prospective juror, defendant must have used all of his peremptory challenges. LSA-C.Cr.P. Art. 800; State v. Sugar, 408 So.2d 1329 (La.1982). In the instant case, defendant exercised all of his peremptory challenges, therefore these issues are properly before us.

A trial judge is vested with broad discretion in ruling on a challenge for cause and his ruling will not be disturbed on appeal absent a showing of abuse of that discretion. Sugar, supra.

Mr. Lee Boudreaux testified on voir dire examination that he had known the assistant district attorney a long time. Mr. Boudreaux had been a radio announcer for many years and in this capacity, had occasions to speak to the assistant district attorney concerning criminal trials. On one occasion, Mr. Boudreaux testified at a hearing on a motion for change of venue. He testified that he did not know anything about the present case and that his acquaintance with the assistant district attorney would not affect his impartiality. The trial judge found that Mr. Boudreaux’s relationship with the assistant district attorney was not such that it would be prejudicial to the defendant. The record is void of any showing of an abuse of the wide discretion permitted the trial judge. This assignment of error is without merit.

The defendant complains that the trial court erred in failing to excuse for cause Mrs. Sarver and Mrs. Menard based on their relationship with the assistant district attorney, thus necessitating defendant to exercise two peremptory challenges.

Mrs. Sarver was a receptionist for approximately one year and nine months for a law firm where the assistant district attorney maintained a private practice. She was no longer employed by the firm when the instant case was tried. She testified that her relationship with the assistant district attorney would not interfere with her ability to be fair and impartial.

Mrs. Menard testified she knew the assistant district attorney and his family for a long time. Two of her sons were prosecuted by the assistant district attorney and were found guilty. Further, she was related to the Sheriff of Acadia Parish.

The trial judge determined that both Mrs. Sarver and Mrs. Menard would be fair and impartial jurors and they would not let their knowledge of the assistant district attorney interfere with their judgment. There is no showing of an abuse of the trial judge’s discretion. This assignment of error is without merit.

ASSIGNMENT OF ERROR FOUR

The defendant challenges the in-court identification of the defendant by the witness, Kelly Nelson, on the basis that it was tainted by a photographic line up that contained two photos of the defendant.

Again we note the defendant failed to make any objection to the in-court identification.. For the reasons discussed in assignment of error one, we find this assignment of error is without merit.

DECREE

For the foregoing reasons, the conviction and sentence of the defendant, Arthur Dwayne Johnson, aka Arthur Hogan, is affirmed.

AFFIRMED.


author: DOUCET, Judge.

text:
    STATE of Louisiana, Plaintiff-Appellee, v. Samuel DUCOTE, Jr., Defendant-Appellant.
    No. K84-78.
    Court of Appeal of Louisiana, Third Circuit.
    June 27, 1984.
    Rehearing Denied July 23, 1984.

      Dan B. McKay, Jr., Bunkie, for defendant-appellant.
    David Lafargue, Asst. Dist. Atty., Marksville, for plaintiff-appellee.
    Before CUTRER, DOUCET and YEL-VERTON, JJ.
   DOUCET, Judge.

Defendant Samuel Ducote, Jr. was charged with “Simple Battery”, in that on or about July 18, 1983, he “did commit a battery upon one, Kenneth Price, by hitting him with a bottle without his consent”. He was found guilty and now appeals.

On July 18, 1983, during the noon hour, Kenneth Price entered the defendant’s wrecking yard on the Evergreen Highway, near Bunkie, Louisiana, for the purpose of returning a carburetor for a refund. Mr. Ducote was eating lunch at his desk. The secretary was out for the lunch hour. Several other customers were waiting for the lunch hour to end at 1:00 p.m.

Kenneth Price entered the office, approached the defendant and said the carburetor he was returning wasn’t worth “a damn”. When asked for a sales ticket, Mr. Price stated that he did not have one. Defendant, Samuel Ducote, Jr., the proprietor, asked Mr. Price to wait until he finished his lunch and he would look up a copy of the ticket. Mr. Price said he wanted his “M F” money right now.

At this point, Michael Ducote, son of defendant, told Mr. Price that, if he wanted to continue talking that way, he should go outside. Mr. Price then turned his attention to Michael Ducote and approached him saying, “who in the ‘M F’ are you”? Michael Ducote stepped down from a stool on which he had been seated, and shoved Mr. Price, ordering him out of the establishment. The defendant stood up in order to get in between Michael Ducote and Kenneth Price. According to defendant, as soon as the defendant attempted to intervene, Kenneth Price swung at Michael Du-cote, striking him on the jaw and proceeded to push both Michael and Sam Ducote down and began hitting and kicking them. According to Michael Ducote, Price had grasped him by the hair. Samuel Ducote, Jr. received a concussion and a broken bridge on his nose. Defendant then picked up a bottle and struck Kenneth Price. Undisputed is that the defendant did in fact intentionally strike Mr. Kenneth Price across the head with a Coke bottle.

Mr. Price’s father then entered the building and took Price by the chest or waist and pulled him off of Michael and Samuel Ducote.

The facts according to the State are that Kenneth Price, eighteen years of age, entered the defendant’s place of business alone. Present in the store was the defendant and his son, Michael Ducote, along with ten or twelve people, including at least two employees, Mr. Larry Jeansonne and Mr. John Descant. Mr. John Barfield also testified that the defendant and his son were on top of Mr. Price when he entered the building, and he had to pull Mike Du-cote off and take Kenneth Price outside. The State emphasizes that there was no testimony that Kenneth Price was armed or presented a danger to those involved to the extent that the use of a weapon such as a Coke bottle was warranted.

The trial judge found the defendant guilty of simple battery and sentenced him to pay a fine of $100.00 plus $50.00 court costs and $7.50 for the victim’s reparation fund, or serve thirty (30) days in the Avo-yelles Parish Jail, subject to work.

Defendant appeals, questioning whether:

1. The trial court erred in finding the defendant guilty of simple battery;

2. The trial court erred in failing to find that there was more than sufficient provocation for the single blow delivered by defendant; and

3. The trial court erred in failing to find that the defendant’s action was “reasonable” and “apparently necessary” to prevent a “forcible offense” against “person” or “property”?

The Louisiana Criminal Code provides as follows:

LA R.S. W18 — Justification; general provisions: “The fact that an offender’s conduct is justifiable, although otherwise criminal, shall constitute a defense to prosecution for any crime based on that conduct. The defense of justification can be claimed under the following circumstances:
(7) When the offender’s conduct is in defense of persons or of property under any of the circumstances described in Articles 19 through 22.”
LA R.S. 14:19 — Use of force or violence in defense:
“The use of force or violence upon the person of another is justifiable, when committed for the purpose of preventing a forcible offense against the person or a forcible offense or trespass against property in a person’s lawful possession; provided that the force or violence used must be reasonable and apparently necessary to prevent such offense, and that this article shall not apply where the force or violence results in a homicide.”
LA R.S. 14:21 — Aggressor cannot claim self defense:
“A person who is the aggressor or who brings on a difficulty cannot claim the right of self-defense unless he withdraws from the conflict in good faith and in such a manner that his adversary knows or should know that he desires to withdraw and discontinue the conflict.
LA R.S. 14:22 — Defense of others:
“It is justifiable to use force or violence or to kill in the defense of another person when it is reasonably apparent that the person attacked could have justifiably used such means himself, and when it is reasonably believed that such intervention is necessary to protect the other person.”

Where self-defense is claimed by the defendant, the State has the burden of proving beyond a reasonable doubt that he was not acting in self-defense. State v. Savoy, 418 So.2d 547 (La.1982); State v. Collins, 306 So.2d 662 (La.1975); State v. Patterson, 295 So.2d 792 (La.1974); State v. Sharp, 338 So.2d 654 (La.1976). Self-defense is justified if a person using force reasonably believes that he is in imminent danger of receiving great bodily harm and that the force employed is necessary to protect himself. State v. Guinn, 319 So.2d 407 (La.1975).

An aggressor or one who brings on the difficulty, as a general rule, cannot claim the right of self-defense unless he withdraws from the conflict in good faith and indicates his intention of abandoning the difficulty. State v. Stroud, 198 La. 841, 5 So.2d 125 (1941); State v. Leslie, 167 La. 967, 120 So. 614 (1929); La.R.S. 14:21. Where doubts exist as to whether the accused was an aggressor, the possibility of retreat is only one of many factors for the jury to consider in determining whether the defendant has a reasonable belief that the force employed was necessary. State v. Collins, 306 So.2d 662 (La.1975). Factors to be considered in determining whether the party attacked had a reasonable belief that it was necessary to resort to serious physical attack are the excitement and confusion of the occasion, the possibility of using force or violence less than used, and the party’s knowledge of his assailant’s bad character.

The defense of justification requires evidence on two points, as noted by the Supreme Court in State v. Landry, 381 So.2d 462 (La.1980), at p. 467:

“Justification requires a dual inquiry. First, was the force used reasonable under the circumstances, an objective inquiry. Secondly, was the force apparently necessary to prevent the imminent offense, a subjective inquiry. State v. Ford, 368 So.2d 1074 (La.1979).”

Defendant is required only to prove this defense by a preponderance of evidence. State v. Landry, supra, at p. 467, citing State v. Poree, 386 So.2d 1331 (La.1979).

The standard of review herein is whether, under the facts and circumstances of the case, a rational trier of fact, viewing the evidence in a light most favorable to the prosecution, could not have concluded that the defendant failed to prove by the preponderance of the evidence that he was justified in striking Mr. Price. State v. Landry, 381 So.2d 462 (La.1980); State v. Liner, 397 So.2d 506 (La.1981).

For a defendant to be successful in presenting defense of justification, he must show that the force was reasonable and apparently necessary, State v. Ford, 368 So.2d 1074 (La.1979). Furthermore, the defendant cannot rely on such a defense if he or the one he is purportedly defending is the aggressor, La.R.S. 14:21; State v. Simmons, 414 So.2d 705 (La.1982).

The fact that Mr. Price may or may not have used vulgar language prior to receiving a battery at the hands of the defendant does not justify defendant’s actions; Augustine v. Washington Parish Police Jury, 383 So.2d 1271 (La.App. 1st Cir.1980); Morneau v. American Oil Co., 272 So.2d 313 (La.1973).

Our review of the record convinces us that a rational trier of fact could have found the Ducotes provoked the attack and/or that the defendant used excessive force in striking Kenneth Price with a Coke bottle. Accordingly, defendant’s conviction is affirmed.

AFFIRMED.

       Kenneth Price was also found guilty of the same offense, to wit: simple battery.


author: STOKER, Judge. DOMENGEAUX, Judge,

text:
    STATE of Louisiana, Plaintiff-Appellee, v. Michael EBEY, Defendant-Appellant.
    No. K84-144.
    Court of Appeal of Louisiana, Third Circuit.
    June 27, 1984.
    B. Dexter Ryland, Garrett, Ryland & Nunnally, Alexandria, for defendant-appellant.
    R. Greg Fowler, Asst. Dist. Atty., Alexandria, for plaintiff-appellee.
    Before DOMENGEAUX, FORET and STOKER, JJ.
   STOKER, Judge.

We granted writs in this criminal case on the application of the defendant to determine whether the trial court improperly failed to quash the prosecution of defendant because of the failure of the State to bring the case to prosecution within two years and the failure to accord him his constitutional right to a speedy trial.

The State filed a Bill of Information on March 19, 1981 charging the defendant, Mike W. Ebey, with the crime of possession with intent to distribute a scheduled IV controlled dangerous substance, namely Diazepam (Valium). Trial of the case was either reset or passed several times.. Finally, the trial was fixed for February 13, 1984. On February 13, 1984 defendant’s counsel filed a Motion to Quash for Failure to Afford a Speedy Trial and for Prescription. The motion was heard that day, argued and denied. On motion of the State the trial court reset trial for February 21, 1984. The trial court denied an application for an order to stay the trial.

We granted a writ and a stay order and ordered that the matter be set down on our regular docket.

Prior to February 13,1984, insofar as the trial court minutes are concerned, the last action in the case appears to have taken place on April 16, 1982. On that date the minutes show trial was reset for July 12, 1982. At the February 13, 1984 hearing on the motion to quash, the assistant district attorney handling the case stated that on July 12, 1982, or sometime shortly before that date, Ebey’s counsel requested a continuance of Ebey’s case until the conclusion of prosecution of another defendant. According to the assistant district attorney, trial of the other defendant was had in November of 1983. Ebey’s case was reset upon written motion dated December 21, 1983 for February 13, 1984. Ebey’s attorney denies any recollection of requesting a continuance with reference to the July 12, 1982 trial date.

The State, bases its opposition to the quashal on the ground that the alleged continuance avoided or prevented the running of the prescriptive period of two years for prosecution allowed by LSA-C.Cr.P. art. 578. To support its factual contentions the State introduced, over defendant’s objection, certain office notes kept as a part of the district attorney’s file in the case. Admittedly, there was no written motion for a continuance, and there is no contention by the State that an oral motion was made in open court by defendant’s counsel. The State’s version, as stated by the assistant district attorney, is as follows:

“The matter was originally set for trial on July 13th, 1981. It was passed at that time and was refixed for trial on January the 11th, ’82, passed for some other reason, and on April 16th, 1982 was reset for trial on July 12th, 1982, well within the time periods established by our Code of Criminal Procedure in which to institute prosecution. At that date, on July 12th, Í982, or sometime shortly before that, I had a conversation with Mr. Ry-land, the defense counsel. I have a note to that effect on the back of my file of the State versus Michael Ebey that I continued that case by reason of the defense counsel, Mr. Dexter Ryland, asked that the case of Michael Wayne Ebey be continued until such time as the conclusion of the first degree murder trial of State versus Wren in which he was defense counsel also.”

The trial court’s ruling is contained in the following exchange taken from the transcript of the hearing:

“BY MR. RYLAND: Your Honor, just briefly. If the minutes would reflect in any place where I had made an oral motion for continuance, I might think twice about making this motion, but it does not reflect that.
“BY THE COURT: Well, this Court, of course, has heard many oral motions made for continuances and agreements between the District Attorney and the defense attorney to continue a matter for one reason or the other. And without going into the veracity of either the District Attorney or the defense attorney, I’m going to overrule the motion to quash on the basis that there is evidence of at least a continuance having been filed either orally or otherwise between agreement between the State and the defense attorney, and that this Court feels that that was interruption of the prescriptive period and order the matter be set for trial.
BY MR. RYLAND: To which ruling we would object....”

From the State’s brief its position appears to be that the informal continuance granted as to the fixing for July 12, 1982 served to interrupt or suspend the running of the prescription provided by LSA-C. Cr.P. art. 578. The State relies on LSA-C. Cr.P. art. 580 which reads as follows:

“Art. 580. Suspension of time limitations
“When a defendant files a motion to quash or other preliminary plea, the running of the periods of limitation established by Article 578 shall be suspended until the ruling of the court thereon; but in no case shall the state have less than one year after the ruling to commence the trial.”

The State’s position is not well taken for two reasons.

The first reason the State’s position lacks merit is the fact that the event which may have precipitated the application of Article 580 of the Code of Criminal Procedure, that is, the continuance purportedly granted July 12, 1983, was admittedly not granted pursuant to a written motion. Consequently, there was no motion for a continuance of which the trial court could take cognizance. LSA-C.Cr.P. art. 707. An oral motion for a continuance is without effect, State v. Miles, 339 So.2d 735 (La.1976), but the record does not even indicate that an oral motion was made. As a consequence, we do not reach the question of the effect that a motion for a continuance by a defendant may have on his rights to have the prosecution commence trial within the two-year time limit set by Article 578 of the Code of Criminal Procedure. For the same reason we are not called upon to consider any credibility evaluation which the trial judge may have made relative to the testimony of counsel.

The second reason that the State’s position is without merit has to do with the effect of Article 580 of the Code of Criminal Procedure quoted above. Even if all of the State’s contentions relative to prescription were well grounded, it should have commenced prosecution by July 12, 1983. A motion for a continuance filed by a defendant is a preliminary plea, which under Article 578 (as referred to in Article 580), suspends the running of prescription. State v. Fabacher, 362 So.2d 555 (La.1978). State v. Cranmer, 306 So.2d 698 (La.1975); State v. Harton, 292 So.2d 187 (La.1974) and State v. Benson, 254 La. 867, 227 So.2d 913 (1969). Under these cases, had there been a suspension by reason of the continuance, the case should have been brought to prosecution within one year of the continuance, that is, one year from July 12, 1982. Under the circumstances, the defendant is entitled to have the prosecution quashed.

In his brief, counsel states that the State does not agree with the decision in State v. Benson, supra, or in the per curiam opinion in State v. Hudson, 263 La. 72, 267 So.2d 198 (1972). Nevertheless, the State merely %rges that Article 580 of the Code of Criminal Procedure has been too strictly interpreted. As these interpretations have been made by the Louisiana Supreme Court, we are governed by them.

For the foregoing reasons, the judgment of the trial court denying defendant’s motion to quash is reversed. It is ordered that the defendant be discharged.

REVERSED.

DOMENGEAUX, J., concurs and assigns reasons.

DOMENGEAUX, Judge,

concurring.

I agree with the majority opinion concerning its first reason in disagreement with the State’s position. I concur with the result reached that the record does not reflect that either an oral or written motion for continuance had been made by defendant’s counsel. Based upon this reasoning, I agree with the majority’s conclusion that the two year time limit to commence trial set by La.C.Cr.P. Art. 578 was not suspended under the provisions of La.C.Cr.P. Art. 580.

However, concerning the second reason given in the majority opinion in disagreement with the State’s position, I respectfully suggest that the Supreme Court has misinterpreted the plain, unadulterated statutory language in La.C.Cr.P. Art. 580. The High Court’s application of this Article is contrary to the intent of the statute as evidenced in the Official Revision Comments. The Comment explains that it is essential to allow the State a reasonable time after the ruling on the plea to reset the case for trial. “For this reason, the Article allows the State at least one year after the ruling within which to commence the trial.” See La.C.Cr.P. Art. 580. The words “at least” suggest a minimum time and not a maximum time.

For the foregoing reasons, I respectfully concur.


author: WATKINS, Judge.

text:
    John FULFORD v. Roger GUISSINGER, Secretary, Louisiana Department of Health and Human Resources; John T. King, Secretary, Louisiana Department of Corrections; Nad Ross Maggio, Jr., Warden, Louisiana State Penitentiary.
    No. 83 CA 0798.
    Court of Appeal of Louisiana, First Circuit.
    June 27, 1984.

      John Fulford, pro se.
    J. Marvin Montgomery, Louisiana Dept, of Justice, Baton Rouge, for defendants-ap-pellees Roger Guissiner, et al.
    Before PONDER,' WATKINS and CARTER, JJ.
   WATKINS, Judge.

John Fulford, an inmate at Louisiana State Penitentiary serving a term of life imprisonment for murder, filed the present action seeking an order directing that mixed hot and cold water be made available in each cell in the CCR Unit (in which plaintiff was confined when he filed suit), and that all prisoners be given unlimited access to an ice chest at all hours of the day and night, and further that a judgment in the sum of One Hundred Thousand Dollars be rendered in favor of plaintiff and against Nad Ross Maggio, Jr., one of several co-defendants, for ordering that prisoners be denied hot water and iced water at any time. Also named parties defendant were Roger Guissinger, of the Louisiana Department of Health and Human Resources, and John T. King, of the Louisiana Department of Corrections. The matter was heard before a Commissioner of the Nineteenth Judicial District Court, who recommended judgment be rendered for defendants. The trial court having adopted as a final judgment the Commissioner’s report, Fulford appealed. We affirm.

First, we note that Fulford’s brief before the court contains no assignment of errors, except in informal, rambling form, and fails to mention the question of damages until the concluding paragraph. We therefore consider the claim for damages abandoned. See Rule 1-3, Uniform Rules — Courts of Appeal.

The record indicates that appellant, Fulford, is no longer incarcerated in the CCR Unit, but is incarcerated in another unit of the penitentiary, Camp J, which appellant states, along with “(e)ach and every prison unit, camp, cellblock, or dormitory at Louisiana State Penitentiary” has hot and cold running water. The present action is not a class action. Therefore, any issue that appellant may seek to raise concerning the physical structure or rules of the CCR Unit is now moot, as appellant would not benefit from any changes brought about by a decree in this matter, as his present cell indeed has hot and cold running water.

Accordingly, the judgment of the trial court is affirmed, at appellant’s cost.

AFFIRMED.


text:
    STATE of Louisiana v. Mark Colt BUFFINGTON.
    No. 84 KW 0500.
    Court of Appeal of Louisiana, First Circuit.
    June 27, 1984.
    Patrick Quinlan, William B. Faust, III, Asst. Attys. Gen., New Orleans, for State.
    Robert Barrios, Houma, for defendant.
    Before PONDER, WATKINS and CARTER, JJ.
   WATKINS, Judge.

The State at a preliminary hearing refused to divulge the name of a confidential informant in an alleged drug transaction involving the distribution of cocaine. The trial court ordered the State to divulge the name. We granted alternative writs, which we now make peremptory.

A Louisiana State Police Trooper, Lewis Hyatt, in the presence of the unnamed confidential informant met defendant, Mark Colt Buffington, and the Trooper had a brief conversation with defendant and (to quote the Trooper’s testimony in chief at the preliminary hearing), “... advised him we wanted some cocaine...” On cross-examination at the preliminary hearing, the Trooper refused to give the name of the confidential informant. The trial court ordered the Trooper to divulge the name. The State advised that it would apply for writs, which are not before us.

As a general rule the State is not required to divulge the name of a confidential informant to the accused. However, an exception is made when the confidential informant was a participant in an illegal drug transaction. State v. James, 396 So.2d 1281 (La.1981). Disclosure is made less certain to be required at a preliminary hearing than at trial. See State v. Diliberto, 362 So.2d 566 (La.1978); State v. James, supra.

The present ruling from which the State has taken writs was made at a preliminary hearing. The record indicates the confidential informant was an onlooker, not a participant, in the alleged transaction. The use of the word “we” by the Trooper in recounting his remarks in seeking the drugs can be attributed to a slip of the tongue or a figure of speech, and does not establish that the confidential informant was a participant in the alleged transaction. Furthermore, the applicant has made no showing that the identity of the confidential informant is necessary to his defense. Although the trial court as is stated in James, supra, is entitled to great discreation in determining whether or not the disclosure of the name of the confidential informant is necessary, we hold the present record indicates the ruling of the trial court ordering disclosure was erroneous, as the record does not establish the confidential informant was a participant in the alleged transaction.

Accordingly, the writ is made peremptory, and it is ordered that Trooper Hyatt not be required to divulge the name of the confidential informant.

WRIT MADE PEREMPTORY.


author: BEATTY, Justice:

text:
    Michael DICKEY v. Thad McCLAMMY.
    82-889.
    Supreme Court of Alabama.
    April 6, 1984.
    Rehearing Denied June 8, 1984.
    John Patterson of Patterson & Rinehart and Randy Stephens,' of Alabama Educ. Ass’n, Legal Div., Montgomery, for appellant.
    Wesley Romine of Whitesell, Morrow & Romine, Montgomery, for appellee.
   BEATTY, Justice:

This is an appeal by plaintiff from a judgment for the defendant following an.. ore tenus hearing in the trial co.urt below. We reverse and remand.

Plaintiff had been employed at Trenholm State Technical College (Trenholm) until he was removed by action of the president of the college, Thad McClammy. Plaintiff initiated this action for a writ of mandamus and injunctive relief, with the view of reinstatement to his former position, claiming that because he was a tenured employee his termination was illegal. By amendment, plaintiff claimed damages and attorneys’ fees against McClammy on account of his allegedly wrongful dismissal. Defendant denied that plaintiff was a tenured employee, and also claimed sovereign immunity with regard to the claim for damages and attorneys’ fees. The defendant’s individual liability, if any, is not made an issue on this appeal.

Following the ore tenus hearing, the trial court made factual findings, concluding that:

“As painful, unfair, and unjust the firing of the Plaintiff may appear to the Court, it is the opinion and ruling of the Court, that since Plaintiff held a ‘tenure-track’ position for only two years and the third year transferred to the position of ‘coordinator,’ he did not attain tenure at Trenholm State Technical College and was not tenured when he was notified that his contract for the 1981-82 year would not be renewed.”

Plaintiff’s motion for a new trial was denied, and this appeal ensued. An examination of the facts surrounding the plaintiff’s employment and the law applicable thereto shows that the conclusion of the trial court is plainly and palpably wrong.

Plaintiff has posed several issues for our consideration, but these may be reduced to two questions:

(1) Whether plaintiff had attained continuing service status at the time of his dismissal.

(2) Whether the doctrine of mitigation of damages applies in cases of wrongful discharge of tenured personnel.

The record discloses that in March 1971 plaintiff applied to Trenholm for employment as a counselor. He executed an employment application and entered into contract negotiations with M.D. Smiley, then the director of the college, T.L. Faulkner, and one Dr. Bishop. At that time plaintiff possessed a master’s degree, granted in 1970 by Troy State University, and a Class A Certificate issued by the State Board of Education for the position of counselor. During his negotiations with Mr. Smiley, he was told by Smiley that he “would be in a tenure-track position as a counselor,” with the same benefits as one would have under a teacher contract, earning tenure after three years of employment. Plaintiff signed a teacher contract with Trenholm on April 1, 1971, the pertinent provisions of which recite:

“WHEREAS, the party of the first part does hereby agree to teach in the Trenholm State Vocational Technical School for the school year 1970-71, or the remaining part of said school year beginning April 19, 1971....
“In the event the State Department of Education shall fail to provide the full State portion of the salary provided, this contract shall be reduced in proportion to the State reduction of funds.”

This contract was also executed by M.D. Smiley on behalf of Trenholm. The State Board of Education had delegated to the directors of technical institutes the authority to appoint faculty and staff at the local level.

Plaintiff entered into his employment as counselor at Trenholm on April 19, 1971, for the remainder of the school year, which ended September 30, 1971. On the first day of October 1971, plaintiff entered into another teacher contract with Trenholm for the period from October 1, 1971, to September 30,1972. Except for the different term and a slight salary increase, this contract contained the same terms as the first contract. Plaintiff did not execute a. written contract for the school year October 1, 1972, to September 30, 1973. It was his recollection that written contracts were not issued that year, and this conclusion is not contested. Nevertheless, he continued to work at Trenholm in the position of counselor during that year at the same salary as before. On October 1, 1974, however, plaintiff and Smiley executed a written teacher contract for the school year 1974-75, identical to the others except for the different school year and except for the salary, which was increased. He performed the duties of counselor for that period. For the academic year October 1, 1975-September 30,1976, plaintiff and Smiley followed the same procedure, executing the same contract except for a salary increase. After that, the college did not require written employment contracts until the 1981-82 year; however, plaintiffs duties and functions as counselor remained essentially the same as before, and plaintiff continued to receive periodic salary increases.

For the year October 1, 1981-September 30, 1982, plaintiff entered into a written contract with Trenholm as Yeterans-CETA Coordinator. This contract was executed on behalf of Trenholm by the defendant Thad McClammy as president. During this school year, on March 30, 1982, plaintiff was informed by a letter from McClammy as follows: “This is to notify you that your 1981-82 contract will not be renewed.” According to plaintiff, this was the first time he had learned from anyone at Trenholm that he was not considered a tenured employee, even though he had been employed there for more than ten continuous years and his salary had increased from $10,128 to $32,747 per annum.

Did plaintiff possess continuing service status at the time of his dismissal?

The trial court found that plaintiffs employment for October 1,1973, to September 30, 1974, which was formalized by a “Teacher Contract” form as previously used, was changed from “counselor-instructor” to “coordinator.” This change was considered by the trial court as a removal from the “tenure track” to an administrative staff position. The trial court further found that plaintiffs' service under contract from April 19, 1971, to September 30, 1971, did not count toward obtaining tenure. This result followed, according to the trial court, in part because of the language of Code of 1975, § 16-24-2:

“(a) Any teacher in the public schools who shall meet the following requirements shall attain continuing service status: Such teacher shall have served under contract as a teacher in the same county or city school system for three consecutive years and shall thereafter be reemployed in such county or city school system the succeeding school year.”

The trial court also relied on the language of a 1974 resolution of the State Board of Education, which in part states: “Only years consisting of employment from October 1 through September 30 shall count toward eligibility in establishing tenure.”

There is no issue raised here, nor was there one raised below, concerning the matter of tenure for teachers in state trade or technical schools. By resolution adopted in 1967, the State Board of Education declared that “teachers in the State trade schools shall have the same job security as other public school teachers have and under the same conditions and procedures as contained in the Alabama Teacher Tenure Law.”

Do only full academic years of service count toward tenure, or do partial years also count? This precise question was considered in an attorney general’s opinion of February 21, 1949, concerning a regularly certified teacher who began work at the beginning of the second semester, January 15, 1946. That opinion held that service under contract in the same system for three consecutive years and re-employment immediately thereafter constituted attainment of tenured status. Special note was taken of the legislature’s purpose in enacting the tenure law, as expressed by Chief Justice Gardner in Board of Education of Marshall County v. Baugh, 240 Ala. 391, 199 So. 822 (1941):

“The very laudable purpose of this Act was to insure to the teachers some measure of security in their important work and to free them, at least to a measurable extent from the ‘vicissitudes of politics’ or the likes or dislikes of those charged with the administration of school affairs.
“Such being the manifest purpose of the Act it should be liberally construed in favor of the teachers, who constitute the class designated to be its primary beneficiaries. [Citations omitted.]” 240 Ala. at 395, 199 So. at 825.

The attorney general rejected the argument that employment must begin at the beginning of the school year in order to begin earning tenure. Such an effect, he reasoned:

“would require a teacher originally employed at the beginning of the second semester of a school year to do more in the way of continuous employment and reemployment to attain continuing service status than is required of a teacher originally employed at the beginning of the first semester of a school year. I am convinced that such was not the intention of the legislature_” 1949 Atty.Gen. Quarterly Rep.Vol. 54 at 100.

Shortly thereafter, this Court held, in Board of Education of Randolph County v. State, 256 Ala. 107, 53 So.2d 371 (1951), that a teacher whose service began in June 1947 and continued through July 29, 1950, had earned continuing service status, and, accordingly, that his contract could not be cancelled without proper statutory proceedings. This decision, and the persuasive reasoning of the cited attorney general’s opinion, have convinced us that the service of the plaintiff here, regularly certified and employed under a teacher contract, was intended by the legislature to be one of the class protected by the tenure law at the time he entered into performance of his service under that contract. Accordingly, that period of time from April 19, 1971, to September 30, 1971, did count toward tenured status. Thus, on April 18, 1973, plaintiff had acquired two years’ accumulated time toward tenure, and on September 30, 1973, he had attained over five additional months toward that status.

Was plaintiff’s employment changed at that point in a manner which would have removed him from the “tenure track” he had occupied up to that time?

The defendant concedes that at the time plaintiff was employed as a counselor under his teacher contract, he had been on the “tenure track.” However, defendant’s principal argument is that when plaintiff moved into the position of “coordinator” then his position became an administrative one. Retaining that position thereafter, defendant has concluded, plaintiff did not gain continuing service as a counselor and hence he was not entitled to the cancellation process of § 16-24-9, because he did not obtain the third year of service.

In support of this conclusion, defendant offered opinion evidence from an official of the State Board of Education that plaintiff was untenured that third year of service because the budget carried him as a coordinator. This witness testified additionally that “the budget was the contract,” and that no contract between the individual (teacher) and the institution existed until the budget itself was approved. Under this reasoning, when plaintiff’s job title was changed to “coordinator” and moved to a different location on the institute’s budget, he thereby became an administrator and outside the “tenure track.”

Defendant argues also that plaintiff’s duties changed in his new position as coordinator and that he was listed as a member of the administrative staff and paid from the approved State Board of Education schedule which classified plaintiff as a “coordinator.”

But the record discloses that the defendant’s witnesses were neither parties to the plaintiff’s initial teacher contracts nor privy to any negotiations or consultations between Smiley and the plaintiff. Plaintiff was originally carried on Tren-holm’s budget as an “instructor” and his duties were those of a “counselor.” This, concededly, was a tenure-track position. It follows that if plaintiffs duties continued to be those of “counselor” under his teacher contract, he likewise continued in the “tenure track.” The mere fact that he received an increase in salary when his budgetary classification was changed to “coordinator” would not in and of itself control, since plaintiff had received periodic salary increases as a “counselor.”

Moreover, in the Faculty and Staff Handbook of Trenholm for 1971-72, plaintiff was listed under “Administrative Staff” as “Counselor,” whose duties were described as including the following:

“He advises and counsels with students expressing an interest in enrolling in vocational programs at Trenholm State. He receives all applications for enrollment. After reviewing the applications, transcripts ... and personal interviews ... [he] makes his recommendation to the director concerning admission....
“The counselor administers tests and assists in determining prospective vocational students’ aptitudes, interests, and abilities. Once a student is enrolled, the counselor follows his progress and continuing vocational interests, and offers assistance with any difficulties encountered. ...
“The counselor assists with follow-up studies of graduates and dropouts from vocational programs.”

Comparison of this job description and that of the “coordinator” of student services shows that the duties were substantially similar. And, it is not without significance that the Faculty and Staff Handbook for 1976-77, apparently the successor to the Handbook for 1971-72, contains the identical job description for the “Coordinator of Student Affairs,” plaintiffs position at that time, as the job description for “Counsel- or,” the position plaintiff occupied in 1971 when he was carried on the budget as an “instructor.” We conclude from this evidence that no substantial change in plaintiff’s position occurred when his title changed from “counselor” to “coordinator.” Cf. Alabama State Tenure Commission v. Green, 409 So.2d 850 (Ala.Civ.App. 1982).

Nor was the trial court warranted by the evidence in finding that plaintiff and Mr. Smiley discussed this change. Smiley did not testify. Dickey, the only other participant in such a supposed discussion, denied having any such discussion. He stated that the reason for the change in the title of his position classification was to “pay counselors slightly more than instructors for having a master’s degree.” And.surely, if Smiley had intended a change in Dickey’s position from a tenured to a non-tenured “track,” he would not have continued to execute annual “teacher” contracts with Dickey from 1973 through 1976.

Plaintiff Dickey also contends that the notice provisions of Code of 1975, § 16-24-12, were offended if the Trenholm authorities were found to have changed his teaching contract on October 1,1973. That section mandates that:

“Any teacher in the public schools, whether in continuing service status or not, shall be deemed offered reemployment for the succeeding school year at the same salary unless the employing board of education shall cause notice in writing to be given said teacher on or before the last day of the term of the school in which the teacher is employed; and such teacher shall be presumed to have accepted such employment unless he or she shall notify the employing board of education in writing to the contrary on or before the fifteenth day of June....”

The fact that Dickey received a salary increase under the 1973 contract does not constitute a waiver of such notice. This Court has heretofore ruled that this statute must be literally applied. Stollenwerck v. Talladega County Board of Education, 420 So.2d 21 (Ala.1982). Accordingly, any attempt to terminate Dickey’s “tenure-track” position without the requisite notice would have been contrary to law.

Finally, it is well established that a transfer of positions within the same system does not result in a loss of tenure already earned. Marshall County Board of Education v. State Tenure Commission, 291 Ala. 273, 280 So.2d 114 (1973). Dickey’s appointment as Veterans-CETA Coordinator in October 1981, therefore, did not negate his tenure earned earlier under his teacher contract.

The second issue presented by the petitioner was not considered by the trial court; therefore, we pretermit any consideration of it here.

Being mindful of the presumption of correctness indulged in favor of the findings and decision of the trial court when based upon an ore tenus proceeding, nevertheless we conclude that decision must be overturned as palpably wrong when, as in this instance, that presumption is overcome by both the law and the evidence. The decree of the court below must be, and it is, reversed, and this cause is remanded to that court for further proceedings not inconsistent with this opinion.

REVERSED AND REMANDED.

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

      . The parties have not raised, and the Court will not discuss, the procedure used by plaintiff to review his tenure status. Compare Code of 1975, §§ 16-24-9, -10; 16-24-36 (appeals to State Tenure Commission).

      . "The term ‘teacher,’ as employed in this chapter, is deemed to mean and include all persons regularly certified by the teacher certificating authority of the state of Alabama who may be employed as instructors, principals or supervisors in the public elementary and high schools of the state of Alabama....” Code of 1975, § 16-24-1.


author: ALMON, Justice.

text:
    Billy F. MOORE and Patricia Elaine Moore v. ALABAMA FARM BUREAU MUTUAL CASUALTY INS. CO.
    82-1237.
    Supreme Court of Alabama.
    June 1, 1984.
    Joe S. Pittman, of Pittman, Whittaker & Pittman, Enterprise, for appellants.
    Joe C. Cassady, of Cassady, Fuller & Marsh, Enterprise, for appellee.
   ALMON, Justice.

Appellants seek to have this Court declare that interest on a sum due them under a policy of fire insurance accrued at the rate of twelve per cent. Appellants sued on the policy and judgment was entered in their favor on December 17, 1981. This Court affirmed. Alabama Farm Bureau Mut. Cas. Ins. Co. v. Moore, 435 So.2d 712 (Ala.1983).

After affirmance, Farm Bureau petitioned the trial court to determine the amount due on the judgment. Farm Bureau took the position that, although post-judgment interest should be computed at twelve per cent under the provisions of Act No. 81-1115, Ala. Acts 1981, Third Special Session, interest on the amount due under the policy should be computed at six per cent from the time payment was due to the time of judgment.

Act No. 81-1115 took effect on November 13, 1981, and amended Code 1975, § 8-8-10, to read in pertinent part:

“Judgments for the payment of money, other than costs, bear interest from the day of entry, at a rate of twelve (12) percent per annum, the provisions of Section 8-8-1 of the Code of Alabama 1975 to the contrary notwithstanding .

(Emphasis added.)

The trial court agreed with Farm Bureau’s position that the pre-judgment interest should be computed at six per cent under Code 1975, § 8-8-1. We also agree. Act No. 81-1115 relates only to interest from the date of entry of judgment. Interest from the date payment was due to the date of judgment should be computed at six per cent under the provisions of § 8-8-1.State Farm Automobile Ins. Co. v. Reaves, 292 Ala. 218, 292 So.2d 95 (1974). See also, Jones v. Casey, 445 So.2d 873 (Ala.1983).

The judgment of the trial court is affirmed.

AFFIRMED.

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


author: FAULKNER, Justice.

text:
    Louis DALE, et al. v. The BIRMINGHAM NEWS COMPANY.
    83-132.
    Supreme Court of Alabama.
    June 8, 1984.
    William G. Somerville, Jr., James E. Simpson, and Augusta Dowd of Lange, Simpson, Robinson & Somerville, Birmingham, for appellants.

      James C. Barton and Gilbert E. Johnston, Jr., of Johnston, Barton, Proctor, Swedlaw & Naff, Birmingham, for appellee.
    David R. Boyd of Baleh, Bingham, Baker, Ward, Smith, Bowman & Thagard, Montgomery, for amicus curiae Alabama Ass’n of School Boards.
    David M. Olive, Gen. Counsel, Birmingham, for The Alabama Press Ass’n, as ami-cus curiae.
   FAULKNER, Justice.

The Birmingham News Company (News) brought this action against the members of the Birmingham Board of Education, alleging that the Board had excluded the public from meetings during which it interviewed applicants for the position of Superintendent of the Birmingham School System, in violation of Section 13A-14-2, Code of Alabama (1975). The circuit court issued an order enjoining the defendants from excluding the public from interviews conducted by the Board. The order provided that the public could be excluded if subjects were discussed regarding the character or good name of the applicant.

Section 13A-14-2 provides:

“(a) No executive or secret session shall be held by any of the following named boards, commissions or courts of Alabama, namely: Alabama public service commission; school commissions of Alabama; board of adjustment; state or county tax commissions; any county commission, any city commission or municipal council; or any other body, board or commission in the state charged with the duty of disbursing any funds belonging to the state, county or municipality, or board, body or commission to which is delegated any legislative or judicial function; except, that executive or secret sessions may be held by any of the above named boards or commissions when the character or good name of a woman or man is involved.”

The Board hired consultants from the National School Board Association Search Service to aid it in selecting the new superintendent. The consultants, in accordance with the Association’s established procedures, established the following plan for conducting the search. The consultants solicited applicants on a nationwide basis from among those qualified for the position. They assured the applicants that their identity would not be revealed unless they were among the two or three finalists for the position. The consultants then screened the applications and recommended a few applicants to the Board for it to interview and to select from.

Nine candidates were recommended to the Board for interview. The consultants recommended that the interviews be conducted in private in order to provide for a free and open inquiry into the applicants’ qualifications and to maintain the applicants’ anonymity. Board members were not to discuss the applicants or make any decisions until all interviews were completed. After the Board reduced the number of applicants to a number between two and four the finalists’ names would be made public. The final selection would be made at a public meeting.

As of the date of the hearing on the request by the News for an injunction, four of the interviews had been completed. Subsequent to the trial court’s ruling, the Board conducted interviews of three of the remaining candidates and selected a Superintendent from among those interviewed.

In Miglionico v. Birmingham News, 378 So.2d 677 (Ala.1979), the circuit court enjoined the Birmingham City Council from excluding the public from meetings held to consider an appointment to the city board of education. At the meetings the council members interviewed potential appointees and indicated their preferences by making marks on sheets of paper. This Court ruled that the council should be enjoined from holding closed sessions to consider the appointments except when an individual’s character or good name is involved. If a closed session is held, nothing other than the individual’s good name or character may be discussed. Miglionico at 682.

Appellants attempt to distinguish this ease from Miglionico on the fact that no decisions were to be made during the interviews in question. In Miglionico the council members marked their preferences on pieces of paper during the meetings. The selection of a new superintendent in this case, on the other hand, was to take place at a subsequent public hearing. Appellants argue that a “session” is a meeting of a judicial or legislative body for the purpose of transacting business and that in this instance the board members were acting as individuals, not as a body in conducting the interviews. The board argued that they did not gather to conduct business and that the interviews did not, therefore, constitute “sessions” within the meaning of the statute. See Dayton Newspapers, Inc. v. City of Dayton, 28 Ohio App.2d 95, 274 N.E.2d 766 (1971).

We disagree. Under this statute all meetings of these bodies named, whether formal or informal, whether or not an official vote is taken, must be open to the public, except where the character or good name of a person is involved. The right to public access extends to the entire process from public policy discussion and formulation through adoption and enforcement. Otherwise, business could be conducted in secrecy and public meetings held only to ratify decisions already made in secret. Courts in other states have rejected attempts to draw a distinction between formal and informal meetings. See Orange Co. Publications v. Newburgh City Council, 60 A.D.2d 409, 401 N.Y.S.2d 84 (1978); Sacramento Newspaper Guild v. Sacramento Co., 263 Cal.App.2d 41, 69 Cal.Rptr. 480 (1968).

The board also made policy arguments to the effect that the assurance of anonymity of the applicants was of crucial importance to the public interest in securing the best qualified applicants possible for the position. The board argues that courts must balance the public’s right to know what public officials are doing with the public’s interest in having the business of government carried on efficiently and without interference. Notwithstanding the absence of any express exception in the statute covering the precise situation involved, the board would have this court impose limitations on public access to the interviews by application of a “rule of reason.”

As this court noted in Miglionico, most sunshine laws have a list of exceptions which cover interviews of prospective appointees. Miglionico, supra, at 681. Our legislature, however, saw fit not to include any exceptions other than the one governing “character or good name.” While that exception will apply to certain aspects of the interview process, it is not broad enough, in our opinion, to justify the exclusion of the public to the extent that the candidates could remain anonymous to the public. That omission in our statute was pointed out to the legislature over four years ago in the Miglionico decision. The legislature has not amended the statute, and we deem it inappropriate to engraft by judicial fiat a change the legislature has apparently chosen not to make.

AFFIRMED.

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


author: BEATTY, Justice.

text:
    Cora M. BROWN and Bernice Wilson v. Betty Jean ATWELL, et al.
    82-1049.
    Supreme Court of Alabama.
    June 22, 1984.

      Alice L. Anderson, Enterprise, for appellants.
    D. Bruce McLean, Enterprise, for appel-lees.
   BEATTY, Justice.

This is an appeal by plaintiffs from an order dismissing their action for lack of prosecution. We reverse and remand.

Cora Brown, an elderly widow, is the mother of Betty Atwell and Catherine Tate. Mrs. Brown and her late husband owned a certain ten acres of land in Coffee County on which their home was located. On October 10, 1968, they executed a warranty deed of this land to Betty Atwell. Later, in 1978, in a lawsuit involving these parties over the validity of that deed, a judgment was entered holding the deed void and vesting in Cora Brown all right, title, and interest in the ten acres. While none of those circumstances is in issue in this appeal, they do aid in an understanding of later events.

On January 23, 1979, some three weeks after that judgment was rendered, Cora Brown, again by warranty deed, conveyed the same ten acres to Betty Atwell. This deed was duly recorded. In it, Mrs. Brown did not reserve any kind of life estate or other interest in the property, nor did it contain a recital of any special consideration to be passed to her.

Then, on September 25, 1979, Betty At-well and her husband, Paul Atwell, conveyed this same ten acres to Catherine Tate (Betty’s sister) and her husband. Like the preceding deed, this deed contained no reservations and recited no special consideration. The purchase of this land was facilitated by a title opinion from Alice L. Anderson, a lawyer in Enterprise.

About a year and a half later, Mrs. Brown and the Tates became involved in a dispute over the title to this property, which resulted in Mrs. Brown’s filing an action in ejectment against the Tates and the Atwells on February 4, 1981. The defendants answered with a general denial, and the Atwells filed a third-party complaint against Alice L. Anderson, alleging that if they were liable to Mrs. Brown their liability was due to a title opinion certified to them by Alice L. Anderson indicating that they held a fee simple title to the subject land free of any claims of Mrs. Brown, and they pleaded reliance upon that title opinion to their detriment. The At-wells demanded judgment against Anderson for all sums adjudged against them in favor of Cora Brown. The Tates filed a third-party complaint against Commonwealth Land Title Insurance Company, alleging that Commonwealth had issued them an owner’s title insurance policy, and demanded judgment for whatever sums might be adjudged against them in favor of Brown.

On March 31, 1981, plaintiff Brown addressed interrogatories to Betty Atwell. On April 14, 1981, Anderson moved to dismiss the third-party complaint against her.

Shortly thereafter, on April 20, 1981, the Atwells and the Tates moved for summary judgment, their motion being supported by certain exhibits, namely, the earlier judgment, the warranty deed from Brown to the Atwells, and the quitclaim deed from the Atwells to the Tates.

On April 23, 1981, Brown moved to compel answers to her interrogatories previously addressed to Betty Atwell. On April 29, 1981, defendant Atwell responded to that motion by asserting grounds as to why the motion should be denied. On that same day, plaintiff Brown moved for an extension of thirty days within which to file affidavits and pleadings to the defendants’ motion for summary judgment, alleging bad health, her absence from Alabama, the lack of response to her interrogatories, and the need for additional time in which to procure material affidavits. Additionally, Mrs. Brown filed an amendment to her complaint, as follows:

“Comes Cora M. Brown, through her attorney of record, and moves the Court to amend her complaint in this cause for the following reasons:
“1. That when Cora M. Brown transferred and conveyed the land herein to Betty Jean Tate Atwell, the said Betty Jean Tate Atwell was going to carry out the wishes of the parties as set forth in the testimony of these parties in Civil Action CV 78-110 in this Circuit Court. Betty Jean Tate Atwell represented unto Cora Brown that she was younger than she was and better able to look after the business concerning real estate than the said Cora Brown — that she would look after the sale of the real estate and buy herself, Cora Brown, and Betty Paye Tate a home more suitable to their needs than the property herein. Since it was the desire of Cora Brown, at her decease, to leave her property to her daughter Betty Jean Tate Atwell and to her granddaughter, Betty Faye Tate, the suggestion of Mrs. Atwell seemed reasonable and fair. Cora Brown had great and complete confidence in her youngest child, Betty Jean Tate Atwell, and implicitly believed in her promise to her as set forth herein. Upon reliance of this promise, Cora Brown conveyed to Betty Jean Tate Atwell the property herein. After Cora Brown transferred this land to Betty Jean Tate Atwell, Mrs. Atwell ran her off the property and completely failed to comply with and carry her promise to Cora Brown as herein set forth.
“Betty Jean Tate Atwell transferred this land to another daughter of Cora Brown, Catherine Tate. Catherine Tate and her husband, Floyd Tate, were supposed to let Cora Brown live on the property for her lifetime, and to help care for her needs. These parties also failed to keep their promise to Cora Brown and ran her off this property, hence the suit herein.”

On May 19, 1981, Betty Atwell filed her answers to the interrogatories.

On June 3, 1981, plaintiff Brown filed a response to the motion for summary judgment supported by affidavits and exhibits. The tenor of these documents alleged that the consideration for her deed to the At-wells was a promise that Cora Brown would be furnished care for her personal needs and a home for her remaining years, either the original homeplace or another one provided, as the Atwells and the Tates knew. The affidavits also tended to establish not only the failure of this consideration but harassment of Mrs. Brown by the Tates and the Atwells. An amendment to the complaint, adding Bernice Wilson (another daughter) as a plaintiff and alleging that Cora Brown and Bernice Wilson were “imprisoned, harassed, and physically restrained and detained” on or about June 27, 1980, was also filed on June 3,1981, together with a request to inspect the real property and inventory for personal property.

On July 9, 1981, the trial court notified the parties that all pending motions would be called and submitted on August 31, 1981, without oral argument, unless counsel appeared and desired argument.

On August 11, 1981, plaintiffs requested that the third-party defendant, Commonwealth, produce the opinions and abstracts of title made for the Tates to obtain the title insurance policy. And, on August 19, 1981, plaintiffs addressed interrogatories to Commonwealth.

On January 29, 1982, plaintiffs refiled the request to inspect the real property and “other motions.” On the same date, third-party defendant Anderson filed an amended motion to dismiss.

Then, on February 19, 1982, the trial court took the following actions: Anderson’s amended motion to dismiss was denied; the summary judgment motion of the Atwells and the Tates concerning the ejectment claim by Brown was granted; no judgment on “any unlawful imprisonment claim, if any, or any other claim, if any,” was rendered.

Thereafter, on March 15, 1982, plaintiff Brown filed a document labeled “An Amendment” (which from its allegations and character appears to be a Rule 59(e) motion), reciting the understanding of the parties that the consideration for the At-well deed was the care, maintenance, and support of plaintiff Brown; additionally this “Amendment” realleged the neglect, harassment, and abuse of plaintiff Brown. This document was followed by the filing on March 19, 1982, of plaintiff Brown’s motion to set aside the summary judgment on the ground that “plaintiff has a cause of equitable ejectment,” citing, inter alia, Heartsill v. Thompson, 245 Ala. 215, 16 So.2d 507 (1944). Also on this date, the defendants filed a motion to dismiss Brown’s “Amendment.” The trial court, on March 25, 1982, denied the defendants’ motion to dismiss, reading the amendment “as a claim to cancel a conveyance with incidental relief.” The trial court did, however, deny plaintiff Brown’s motion to vacate the summary judgment against her.

Apparently, no further action was taken by any party until May 17, 1983, when the Atwells and the Tates moved to dismiss the case for lack of prosecution. This motion was presented that day to a different circuit judge and granted on the same day, although plaintiffs’ motion to strike the motion to dismiss, filed on May 25, 1983, stated that it was not seen by plaintiffs’ attorney until May 19, 1983.

Later, on June 16, 1983, plaintiffs moved to set aside the judgment of dismissal. This motion was denied on June 20, 1983.

The issue before this Court is whether or not, based upon the record, the trial court abused its discretion in granting the motion to dismiss for want of prosecution. That is, was the trial court’s action supported by the evidence? State v. Horton, 373 So.2d 1096 (Ala.1979).

We have cataloged the activity in this cause to demonstrate its nature and the legal issues which remain unresolved. The myriad documents contained in the record on behalf of plaintiff Brown disclose an attempt to void, at her option, the conveyance by an elderly widow, based upon an agreement to support her for life. Such an action is specifically authorized by statute, Code of 1975, § 8-9-12, and was recognized by the trial court in this case. Without doubt, the record establishes very real questions of fact on that issue. Nevertheless, the trial court, without any hearing or any offer of a hearing, dismissed all causes of action, because the plaintiffs had not proceeded between March 25, 1982, and May 17, 1983. The record, however, shows more than a lapse of time of approximately fourteen months. It discloses a plaintiff who has been away from her home in Alabama, taken to Florida by another daughter, both ill at various times and unable to communicate with her Alabama lawyer, but with a continuing interest in retaining her home and personal belongings, as indicated in part by her unruled-upon motion for an inspection of the premises and an inventory of her personal property. Other material before the trial court suggests a continuing fear of physical harassment and a need for adequate personal protection. Given these circumstances, with overtones of family dispute, the lapse of fourteen months, standing alone, was insufficient upon which to dismiss the action. Cf. State v. Horton, supra (multiple grounds for dismissal included an almost five-year lapse between complaint and proceedings).

Accordingly, the judgment of dismissal of plaintiffs’ action is reversed, and this cause is remanded for further proceedings. It is so ordered.

REVERSED AND REMANDED.

MADDOX, JONES, SHORES and EM-BRY, JJ., concur.


author: SHORES, Justice.

text:
    John MORROW v. Cassie BERRY.
    82-1278.
    Supreme Court of Alabama.
    June 22, 1984.
    William M. Bouldin of Guin, Bouldin & Alexander, Russellville, for appellant.
    Bryce U. Graham, Tuscumbia, for appel-lee.
   SHORES, Justice.

The litigation between these coterminous landowners was begun in July 1973, when Mrs. Cassie Berry filed her complaint against John Morrow, alleging that Morrow had begun diverting the natural flow of water from his land onto her land. She also asked the court to establish the true boundary line between the parties.

The court ordered a survey made establishing the boundary line between the parties and then, after the parties agreed to a method of dealing with the drainage problem, entered its decree incorporating the agreement.

In 1978, Mrs. Berry brought the present action, seeking to have the court hold Morrow in contempt for not complying with the decree of 1975, insofar as the drainage problem is concerned.

The trial court heard testimony and finally entered a decree which only fixes the boundary line between the parties, again pursuant to the survey made at the court’s request in 1974. The boundary line between the parties as fixed by the court-ordered survey, and as adopted by the court in 1975, is consistent with the description in each of their deeds. It is, then, only the boundary line dispute which is involved on this appeal.

Morrow contends that the evidence shows that he, or his predecessors in title, have adversely held a strip of the land beyond the line called for in the respective deeds and as fixed by the survey, adversely to Mrs. Berry, who with her husband has held record title to that land for more than fifty years. He contends that the evidence shows that this strip, used as a terrace or dike, has been held openly, notoriously, and hostilely to the Berrys for the requisite time to vest title in him by adverse possession. We disagree.

There is abundant evidence to support the line as fixed by the court. First, it is apparent from the record that there was never any disagreement or controversy between the parties as to where the line was. Each claimed the lands which their respective deeds called for. The lands of each had been terraced for many years by the owners of both tracts. It was only after Mr. Morrow placed drainage pipes in the terraced land that water started to flood Mrs. Berry’s land. Only after she brought the contempt action did he claim by adverse possession a part of her land where the terrace is located. Actually, now that the drainage pipes have been installed and the terraces heightened, the flooded area includes the lands of both parties. The trial court did not attempt to resolve this problem, but only fixed the boundary line. There being evidence to support the line as established, we have no alternative but to affirm the judgment appealed from. Kendall v. Bay La Launch Community Ass ’n, Inc., 413 So.2d 1050 (Ala.1982); Evans v. Green, 411 So.2d 788 (Ala.1982); Nelson v. Garrard, 403 So.2d 230 (Ala.1981). See for an exhaustive list of cases so holding: Ala. Dig. Boundaries, Key No. 43.

The judgment of the trial court is affirmed.

AFFIRMED.

MADDOX, JONES, EMBRY and BEAT-TY, JJ., concur.


text:
    LANTRADO, INC., a Corporation, Jimmy L. White, and William F. Covington v. HENRY COUNTY BANK.
    83-373.
    Supreme Court of Alabama.
    June 22, 1984.

      Alan C. Livingston of Lee & Mclnish, Dothan, for appellants.
    James W. Rane and Samuel J. Clenney III, Abbeville, for appellee.
   BEATTY, Justice.

Appeal by defendants from an order granting summary judgment for plaintiff in an action based upon a promissory note. We affirm.

The plaintiff bank made a loan of money to the defendants, who executed a promissory note, secured by a mortgage on real estate and payable to the bank in the principal amount of $35,472.48, with interest thereon at the rate of 18% per annum. The note was dated February 4, 1982, and was due August 3, 1982. Defendants defaulted on their payment of the note, whereupon the bank initiated foreclosure proceedings. At a public sale held on December 20,1982, the bank bid in the property for $12,000.00. This action was then filed, alleging that “Defendants owe to Plaintiff the sum of Twenty-nine Thousand Seventy and 33/100 Dollars ($29,070.33) that is due on said note and interest,” and demanding that sum. Defendants' motions to dismiss were denied. Thereafter each defendant filed an answer and counterclaims seeking a court order requiring that the property be resold in separate parcels, alleging that the sale had not been conducted in good faith or in a commercially reasonable manner.

Plaintiff then moved for summary judgment. This motion was supported by the affidavit of Guy F. Medley, the bank’s chief executive officer. Following a hearing, this motion was granted and judgment entered against the defendants in the amount of $33,430.88.

Defendants argue two points in contending that summary judgment was improper. First, they maintain that there was an issue of fact on the good faith of the plaintiff bank in conducting the sale. This follows, defendants insist, from the fact that even after giving defendants credit for the amount of the sale, $12,000.00, the bank still claimed $35,472.48, which was the amount of the original note. Additionally, defendants assert that the trial court itself must have given the defendants’ counterclaim some credit against the amount claimed by Medley’s affidavit, i.e., $35,-472.48, because the judgment entered was for the amount of $33,480.88. According to defendants, this indicates that the trial court decided that plaintiff had not acted in good faith, and thus improperly decided an issue of fact upon a summary judgment motion.

Defendants’ second point also concerns an allegation of bad faith on the part of the plaintiff bank in conducting the sale of the real estate, which consisted of two noncon-tiguous tracts. The argument here is that the bank acted in bad faith by selling the property together instead of separately, which, it is argued, would have brought a higher sales price. Defendants argue that the trial court, on motion for summary judgment, made a decision upon this question of fact.

It is, of course, axiomatic that a motion for summary judgment tests the evidence under the scintilla rule to determine whether there is a genuine issue of material fact. Matthews v. Mountain Lodge Apartments, Inc., 388 So.2d 935 (Ala.1980); Coggin v. Starke Brothers Realty Co., 391 So.2d 111 (Ala.1980). When such a motion is made and supported, the adverse party may not stand on the mere allegations or denials of the pleadings, but must submit facts controverting those facts presented by the moving party. Butler v. Michigan Mutual Ins. Co., 402 So.2d 949 (Ala.1981).

In this case, the plaintiff bank supported its motion for summary judgment with Medley’s affidavit, which follows:

' “1. I am the Executive Officer of Henry County Bank (now Southland Bank) and as such, I have personal knowledge of all pertinent facts concerning the above-captioned case.
“2. Defendants, on or about the 4th day of February, 1982, did execute and deliver to Plaintiff two promissory notes [sic], a copy of which is attached to the Complaint, and did agree to pay a reasonable attorney’s fee for collection and waived exemption from execution.
“3. Defendants did default on said promissory note.
“4. After Defendants defaulted on said promissory note, the Plaintiff did proceed to advertise and sell at foreclosure sale 16.459 acres of real estate which Plaintiff held as security for said promissory note by virtue of a mortgage recorded at Mortgage Record No. 337 at Pages 790-791, Probate Office, Henry County, Alabama.
“5. That at said foreclosure sale held on the 20th day of December, 1982, Plaintiff did sell according to the terms of said mortgage and notice given, the property described in said mortgage for the total sum of $12,000.00.
“6. That the Plaintiff was the highest, best and last bidder at said foreclosure sale and did purchase said property for the total sum of $12,000.00. Said sum was a fair market value.
“7. That the defendants did not make an appearance at said foreclosure sale.
“8. That the indebtedness of the Defendants to Plaintiff, after credit given for the net proceeds of the foreclosure sale, is $35,472.48.
“9. Defendants have failed to make any payments or offer any acceptable plan of repayment on their debt.
“10. As such, Plaintiff filed suit against Defendants for the balance due on said note of $35,472.48 plus interest, attorney’s fee and costs.
“11. That I make this affidavit in support of Henry County Bank’s (now Southland Bank) Motion for Summary Judgment.”

This affidavit recites that the sale was held in accord with the mortgage and note; that plaintiff was the highest, best and last bidder; that the $12,000.00 purchase price represented a fair market value; that the defendants made no appearance at the sale; that the defendants agreed in the promissory note to pay a reasonable attorney’s fee, interest, and costs; and that the indebtedness, after credit for the proceeds of the sale, was $35,472.48.

To this affidavit in support, the defendants made no reply. The hearing on the motion in fact took place on May 6, 1983, without anything further from defendants. Some seven and one-half months elapsed from that date before the motion was granted on November 23, 1983, without any evidence having been offered by defendants in opposition. Under Rule 56(e), A.R.Civ.P., if the adverse party does not respond to the motion, which is supported by affidavits or otherwise, setting forth specific facts showing a genuine issue for trial, “summary judgment, if appropriate, shall be entered against him.”

According to the affidavit submitted in support of the bank’s motion, the sale was conducted properly and the proceeds applied to the indebtedness. Given the fact that the defendants were liable for an attorney’s fee, interest, and costs, there was nothing offered to controvert the amount of the trial court’s award. The defendants’ mistake was to rest upon their pleadings after the bank filed its summary judgment motion. Davis v. First Colbert National Bank, 413 So.2d 1103 (Ala.1982); Whatley v. Cardinal Pest Control, 388 So.2d 529 (Ala.1980); Twine v. Liberty National Life Ins. Co., 294 Ala. 43, 311 So.2d 299 (1975).

Let the judgment be affirmed.

AFFIRMED.

MADDOX, JONES, SHORES and EM-BRY, JJ., concur.


author: WRIGHT, Presiding Judge.

text:
    WATTS HOMES, INC., and Ted B. Watts v. William ALONZO and Margaret Alonzo.
    Civ. 3894.
    Court of Civil Appeals of Alabama.
    Feb. 15, 1984.
    Rehearing Denied March 21, 1984.
    Certiorari Denied June 22, 1984 Alabama Supreme Court 83-702.
    J. Knox Argo and Laird R. Jones of Argo & Enslen, Montgomery, for appellants.
    Edmon L. Rinehart of Patterson & Rine-hart, Montgomery, for appellees.
   WRIGHT, Presiding Judge.

This is an implied contract case.

On September 20,1980, William and Margaret Alonzo, plaintiffs, entered into a written agreement of sale with Ted B. Watts and Watts Homes, Inc. (Watts), defendant, for the sale of a lot and the construction of a garden home with certain specifications as provided in an addendum to the agreement of sale. After defendant completed construction of the garden home, plaintiffs moved in on January 20, 1981.

Several weeks after plaintiffs moved in, they dug up a one-foot-by-two-foot strip of sod to plant a flower bed. Shortly thereafter they experienced flooding in the area of the yard where the flower bed was planted. Defendant attempted to correct the flooding, but water continued to stand in plaintiffs’ yard and rose to levels likely to flood the house of an adjoining neighbor.

When defendant refused further corrective measures, plaintiffs undertook further steps at their own expense to correct the drainage problem. While the flooding condition did improve, additional corrective work remains to be done.

On September 22, 1982, plaintiffs filed a complaint against defendant alleging breach of contract, fraud, fraud and rescission, and a continuing trespass to their land. Defendant answered and counterclaimed for expenses incurred in repairing damage to the adjoining neighbor’s house resulting from flooding allegedly caused by plaintiffs’ flower bed.

At trial the jury returned a verdict in favor of plaintiffs as to their claims for breach of contract and continuing trespass and awarded them damages in the amounts of $4,100 and $336 respectively. The jury returned a verdict in favor of defendant as to the fraud count and in favor of plaintiffs as to defendant’s counterclaim. Defendant moved for a judgment notwithstanding the verdict and/or a new trial. The court denied his motion and he appeals.

The essential issue on appeal is whether the trial court erred in denying defendant’s motion for a directed verdict and subsequent motion for a judgment notwithstanding the verdict and/or a new trial as to the breach of contract claim. Defendant argues the claim is a tort action and therefore is barred by the one-year statute of limitation found in § 6-2-39, Code of Alabama 1975. He also argues that the jury’s verdict is contrary to the weight of the evidence regarding the breach of contract claim, in that no evidence was presented to show that defendant failed to perform the contract in a skillful and workmanlike manner.

Our first task in resolving the case at bar is to determine whether the nature of the claim is tort or contract. In Berry v. Druid City Hospital Board, 333 So.2d 796 (Ala.1976), Justice Shores wrote, “[Ujnfor-tunately a distinction between misfeasance and nonfeasance was made in some cases to deny a plaintiff an action in contract if any attempt was made at performance by the defendant.” She continued, stating that exclusively equating nonfeasance with contract and misfeasance with tort is an unnecessarily limiting restriction and that it has long been the rule in Alabama and most other states that “an action for breach of contract can arise by virtue of misfeasance.” Id. at 800. The manner of performance as well as the terms of performance of a contract may be implied from the facts. See Horton v. Northeast Alabama Regional Medical Center, Inc., 334 So.2d 885 (Ala.1976).

In Wright v. Sears, Roebuck & Co., 355 So.2d 353 (Ala.1978), plaintiff sued defendant when he negligently failed to properly perform his contract with plaintiff to install a heating unit, and a fire resulted in plaintiff’s home. The trial court dismissed plaintiff’s claim, determining that the complaint sounded in tort and was thereby barred by the one-year statute of limitation contained in § 6-2-39. The Alabama Supreme Court reversed, finding the claim sounded in contract and therefore suit was not barred.

Though defendant attempts to characterize plaintiffs’ complaint as a tort action, we cannot agree.

“It is a general rule in contracts for work or services that there is implied a duty to perform with that degree of skill or workmanship which is possessed by those of ordinary skill in the particular trade for which one is employed. Sherrill v. Alabama Appliance Co., 240 Ala. 46, 197 So. 1. In the instant case of an express warranty of construction according to plans and specifications, we consider implied therein the assurance that such plans and specifications were followed and put together in a good and workmanlike manner. Failure of such assurance constitutes a breach of warranty.”

C.P. Robbins & Associates v. Stevens, 53 Ala.App. 432, 436, 301 So.2d 196, 199 (1974). Even in the absence of an express agreement to perform in a skillful manner if the parties by “their conduct have manifested mutual assent to its terms, it is an implied contract implied from the facts.” Sims v. Etowah County Board of Education, 337 So.2d 1310, 1313 (Ala.1976).

The next question is whether an implied warranty existed in the present case. “In pleading an action on a contract implied in fact, the allegations must show the facts and circumstances from which the agreement can be inferred.” Carter v. Calhoun Board of Education, 345 So.2d 1351 (Ala.1977), citing Wright & Miller, Federal Practice and Procedure: Civil § 1235; Berry v. Druid City Hospital Board, supra. The court in Carter observed that the spirit of the rules does not require exacting particularity in the allegations but rather requires that defendant be sufficiently informed of what plaintiffs claim is and the grounds upon which it is based. Id.

In the present case the complaint states in pertinent part as follows:

“Defendants did not perform the contract on their part but on the contrary Defendants designed and erected said building, and graded and prepared drainage for said building and premises in so unskillful manner that the yard, planting, patio, walkways, carport-garage became flooded causing damage thereto and interfering with the Plaintiffs use thereof.”

We consider the complaint adequately alleges facts and circumstances from which an implied contract could be inferred and which sufficiently informs Watts of the nature of the claim and the reasons therefor. Once past the hurdle of an adequate complaint, plaintiffs have the burden of proving Watts did impliedly promise to furnish them a habitable place to live and that such agreement was breached. Carter v. Calhoun County Board of Education, supra.

Defendant’s second contention is that the verdict is against the weight of the evidence in that no evidence was presented to prove the proper standard of care due or that Watts negligently failed to meet such standard. In Sims v. Lewis, 374 So.2d 298 (Ala.1979), the elements of a cause of action for implied warranty were delineated: (1) plaintiffs purchased a new residence from defendants; (2) defendants had constructed the residence; (3) the residence had not been inhabited by any other person or persons prior to the purchase of the residence;. (4) the residence was constructed by defendant for purposes of sale and was in defective condition which impaired the habitation of the premises; (5) plaintiffs were not aware of the defective condition and were not possessed of any knowledge or notice by which they could have reasonably discovered it; and (6) by reason of the defective condition, plaintiffs suffered damages in the fair market value of the residence.

The first three factors above are uncontested in the evidence. Though the latter three factors were disputed at trial, there is evidence in the record to support a finding that the latter three elements were met. As there is evidence to support the verdict, we cannot say the trial court erred in denying defendant’s motions. A motion for directed verdict or judgment notwithstanding the verdict is proper only where the evidence, when viewed in the light most favorable to the non-moving party, reveals a complete absence of proof on a material issue, or where there are no disputed questions of fact upon which reasonable people could differ. See Caterpillar Tractor Co. v. Ford, 406 So.2d 854 (Ala.1981). Moreover, we cannot overturn the trial court’s denial of defendant’s motion for a new trial unless we determine the verdict was plainly and palpably in error. Holcombe v. Blackwell, 382 So.2d 566 (Ala.Civ.App.1980). We cannot so hold; therefore we affirm.

AFFIRMED.

BRADLEY and HOLMES, JJ., concur.