author: CURRAULT, Judge.

text:
    The BANK OF NEW ORLEANS AND TRUST COMPANY v. H.P.B., JR. DEVELOPMENT COMPANY, INC. et al.
    No. 5-282.
    Court of Appeal of Louisiana, Fifth Circuit.
    Oct. 12, 1983.
    John M. Mamoulides, Mamoulides & Ho-epffner, Metairie, David H. Schaub, Vice-President and Counsel, The Bank of New Orleans and Trust Co., Walter C. Thompson, Jr., Sessions, Fishman, Rosenson, Boisfon-taine & Nathan, New Orleans, for plaintiff-appellee.
    J.Barry Mouton, Lafayette, for defendant-appellant.
    Before BOWES, CURRAULT and GRIS-BAUM, JJ.
   CURRAULT, Judge.

This matter originated in the Twenty-Fourth Judicial District Court, Division “M”, wherein the Honorable Judge Robert J. Burns rendered judgment on a note in favor of plaintiff, Bank of New Orleans and Trust Company, and against defendant, Carlos J. Marcello, in the full sum of One Million, Seven Hundred Eighty Thousand, One Hundred Twenty Dollars ($1,780,120), together with interest, attorney’s fees and costs, and further rendering judgment in favor of plaintiff, the Bank of New Orleans and Trust Company, recognizing, maintaining and enforcing its mortgage, lien and privilege rights under the collateral mortgage of defendant H.P.B. Jr. Development Company, Inc., a/k/a H.P.B. Jr. Development Corporation.

This court, 427 So.2d 486, by judgment dated January 10, 1983, affirmed the decision of the trial court. Appellants then filed their original application for rehearing, asserting the same specifications of error as previously argued on appeal. This initial rehearing request was denied by Per Curiam for lack of merit. Appellants, subsequently, filed an amended and supplemental application for rehearing raising for the first time an issue regarding the rate of interest provided in the trial court’s judgment. We dismissed this newly raised issue as untimely under both court rules and cited jurisprudence.

Appellants applied to our Supreme Court for Writ of Review, Certiorari. On June 10, 1983, 435 So.2d 447, such writ was granted and the case was remanded to this court for the sole purpose of considering the rate of interest issue. Otherwise, the writ was denied.

In accordance with the above mandate, we ordered that rehearing be fixed, but solely for the purpose of considering the rate of interest awarded by .the trial court.

Appellant, Carlos J. Marcello, executed a promissory note in the full sum of One Million Eight Hundred Thousand Dollars ($1,800,000) dated February 3, 1976, in favor of appellee, Bank of New Orleans. This note was to bear interest at the rate of six percent (6%) per annum from date and was to be paid annually.

Appellee filed suit on this note February 2,1981, and judgment was rendered in their favor on September 8,1981. The trial court did award interest thereon, but did so at the rate of six percent (6%) per annum from and including February 10, 1981, until the date of its signed judgment, September 11, 1981, and thereafter at the legal rate until paid. Appellants contend this was error on the part of the trial court to apply the legal rate of interest to the note past judgment when the note clearly limited interest to six percent (6%).

It is well settled in our jurisprudence that in a suit to recover amounts due on a promissory note, the rate of interest stipulated in the note is the rate to be applied to the judgment rendered. LSA-C.C. art. 2924; Meyer v. Consolidated Marketing, Inc., 376 So.2d 1278 (La.App. 2d Cir.1979). The note in the instant case provided that the rate of interest on that particular note was six percent (6%). We agree with appellant. The rate of interest governing this note was fixed and the trial court erred by adjusting that rate to the legal rate once judgment was rendered.

Accordingly, for the above stated reasons, the judgment of the trial court is hereby amended to reflect an interest rate of six percent (6%) per annum; our original decision dated January 10, 1983, regarding interest only, is hereby vacated.

AMENDED AND AFFIRMED AS AMENDED.


source: Caselaw Access Project

license: Public Domain

text:
    In re Douglas Townley PHILLIPS a/k/a John Reneau, Deceased, Marsha Johnson Reneau v. Clara Jones PHILLIPS.
    No. 53928.
    Supreme Court of Mississippi.
    Nov. 2, 1983.
    John B. Farese, Farese, Farese & Farese, Ashland, for appellant.
    Thomas J. Lowe, Jr., Jackson, for appel-lee.
   Appeal from Chancery Court, Alcorn County; Fred P. Wright, Chancellor.

Before WALKER, P.J., and HAWKINS and ROBERTSON, JJ.

AFFIRMED.


author: BOWLING, Justice,

text:
    Eugene SANDERS v. STATE of Mississippi.
    No. 54352.
    Supreme Court of Mississippi.
    Nov. 2, 1983.

      Charles Victor McTeer, Willie Griffin, McTeer & Bailey, Greenville, for appellant.
    Bill Allain, Atty. Gen. by Billy L. Gore, Asst. Atty. Gen., Jackson, for appellee.
    Before PATTERSON, C.J., and BOWLING and ROBERTSON, JJ.
   BOWLING, Justice,

for the Court:

Appellant Eugene Sanders was convicted in the Circuit Court of the Second Judicial District of Bolivar County for the sale of 33.6 grams of marijuana. As he had prior convictions for that offense, he was sentenced under Mississippi Code Annotated, Section 41-29-147 (1972), to serve a term of forty years under the supervision of the Mississippi Department of Corrections and ordered to pay a fine of $20,000. On appeal, appellant propounds the following assignments of error, to-wit:

I. EUGENE SANDERS WAS DENIED A FAIR TRIAL UNDER THE FIFTH AMENDMENT TO THE UNITED STATES CONSTITUTION INSOFAR AS HIS CONVICTION WAS GAINED AS A RESULT OF THE PERJURED TESTIMONY OF NELSON BASS.
II. EUGENE SANDERS WAS DENIED HIS RIGHT TO A FAIR TRIAL UNDER THE FIFTH AND FOURTEENTH AMENDMENTS AND THE TRIAL COURT ERRED TO THE PREJUDICE OF SAID EUGENE SANDERS BY ALLOWING THE PROSECUTION TO TRY THIS CAUSE IN THE NATURE OF A CONSPIRACY WITHOUT ALLEGING CONSPIRACY IN THE INDICTMENT.
III. THE TRIAL COURT ERRED IN REFUSING TO GRANT A MISTRIAL ON GROUNDS THE STATE’S FAILURE TO DISCLOSE THE PRIOR CRIMINAL RECORD OF ITS MATERIAL WITNESS, NELSON BASS, VIOLATED THE DUE PROCESS RIGHTS OF THE APPELLANT.
IV. THE TRIAL COURT ERRED IN DENYING APPELLANT’S MOTION FOR MISTRIAL ON ACCOUNT OF PREJUDICIAL CONDUCT ON THE PART OF THE PROSECUTING ATTORNEYS IN VIOLATION OF DEFENDANT’S DUE PROCESS RIGHTS.
V. THE TRIAL COURT ERRED IN ADMITTING THE WHITE PAPER TOWELS INTO EVIDENCE IN VIOLATION OF DEFENDANT’S DUE PROCESS RIGHTS.
VI. THE TRIAL COURT ERRED IN REFUSING TO ALLOW DEFENSE WITNESS BRADLEY HAMILTON TO TESTIFY ABOUT WHAT HE OBSERVED IN APPELLANT’S STORE FROM THE APPROPRIATE LOCATION JAMES WALKER STATED THAT HE OBSERVED THE DRUG TRANSACTION BETWEEN APPELLANT AND NELSON BASS UNDER THE SAME OR SIMILAR CONDITIONS IN VIOLATION OF DEFENDANT’S DUE PROCESS RIGHTS.
VII. THE VERDICT WAS AGAINST THE OVERWHELMING WEIGHT OF THE EVIDENCE.

The evidence introduced by the state was that on the night of December 15, 1981, an undercover agent working with the Bolivar County Sheriff’s Department went to the Town of Shaw for the purpose of purchasing contraband from sellers. Admittedly on this night, concentration was made on appellant Sanders. The undercover agent was experienced, having made 28 previous “buys.” This agent testified that he went to Shaw in a vehicle furnished by the sheriff’s department, after receiving instructions and purchase money from a deputy sheriff who was in charge of such undercover operations. The undercover agent visited several places in Shaw according to his testimony, and went into the Sanders’ Food Market, where he saw Sanders, but did not attempt to make a buy personally, as people were there.

Later, sometime between 9 and 10 o’clock p.m., the agent picked up a man named Nelson Bass, who was asked to arrange for the purchase of marijuana by the agent. Bass, according to the agent, instructed the latter to park his car across the street from Sanders’ Food Market and he would take the agent’s money and secure the marijuana. The agent gave Bass $85 and requested that two ounces be purchased. The agent testified that he had a full and unobstructed view of the Food Market, including the interior. The vehicle was parked approximately 49 steps [measured later] from the market. He saw Bass tap on the door of the market, which was closed with the door locked. Sanders came to the door and let Bass in. There was a short conversation between the two men. Appellant then made a telephone call. Approximately five minutes later, Shirley Williams drove up to the market and parked her car and went inside. She had in her hand a package that appeared to be wrapped in some type of white paper. The agent saw Williams hand this package to Sanders, who in turn handed it to Bass. The latter came back across the street and gave the package to the agent. After leaving Bass, the agent placed his identifying marks on the packages containing what was thought to be marijuana, which bags were enclosed in a piece of white paper towel. No mark was made on the paper towel. The agent then met again with the deputy sheriff at their rendezvous. The deputy made his mark on the contraband and a tape recording was made of what had occurred. On proper motion, this tape was not submitted to the jury.

The deputy sheriff testified and without repeating the testimony, confirmed that of the agent in regard to the deputy’s part of the incident that occurred that night. The state then connected the package of marijuana with that purchased by the undercover agent and identified the marijuana and its quantity as a result of the usual examination at the Mississippi Crime Laboratory.

The state’s last witness was Nelson Bass. His testimony was essentially the same as that offered by the undercover agent. He testified he told Sanders he was securing the marijuana for another man who had two girls in Cleveland, who “wanted to get high.” Bass testified positively and clearly that after being let into the store, he requested the buy of marijuana from Sanders, who in turn called Williams with whom he had been living for seven years and by whom he had a child. Williams, according to Bass, came to the store the same as related by the undercover agent and brought the marijuana into the store with the bags wrapped in the piece of white paper towel. She gave the package to Sanders, who in turn gave it to Bass in exchange for the money.

Bass testified that on several occasions prior to the time of the trial, Sanders came to him and tried to bribe him not to testify at the trial. Bass testified that Sanders offered him drugs and money while making these requests.

Appellant Sanders took the stand and denied everything including being in the store the night in question. He admitted that he was convicted of the sale of marijuana in 1975 and served a term in the Mississippi State Penitentiary, where he applied himself and became a carpenter.

Sanders testified that he and Shirley Williams have two children. One of whom was by Williams’ prior marriage. Sanders further testified that he and his mother constructed the market building but that pursuant to beer licensing requirements, he was not allowed to associate himself with the market as long as it continued to sell beer since he had previously been convicted of a felony. His testimony was that the market was being run' by Williams and Sanders’ mother.

Williams testified that she and Sanders had been living together for seven years and she was the actual operator of the grocery business and had worked there from 8 a.m. until 9 p.m. the night in question and she then closed and went home to put her child to bed. She testified Sanders was not at the store on the night in question.

Appellant offered a witness who was well qualified as a surveyor and had been such for eighteen years. He testified that he had measured the distance from where the agent’s car had been parked in front of the funeral home across the street and that distance from that area to the door of the market was 68 yards and one foot. Appellant tried to develop from this witness that he had parked his car at the same place the agent’s car was parked on the night in question at about the same time at night and that he could neither see inside the building nor what was going on around the front door. There was an objection to this testimony and this objection was sustained by the trial court.

The state on redirect offered the deputy sheriff, who previously had testified. This witness stated that around 7:30 or 7:45 p.m. on the night in question, he drove into Shaw and drove down the street in front of Sanders Food Market. He testified that he saw Sanders in the market, but he did not stop for fear of exposing the undercover operation. He reaffirmed the undercover agent’s testimony about the two meeting after the buy and exchanging the marijuana.

Under Assignment of Error No. 1, appellant contends that the testimony of witness Nelson Bass was perjury. The events leading to this contention were as follows: The trial was had on June 7, 1982. Sanders, Williams and Bass had been indicted jointly; however, on Motion of Sanders, there was a severance and he was tried separately. Bass had pled guilty and was awaiting sentencing. On June 15, 1982, appellant filed his petition for appeal. On June 15,1982, appellant filed his motion for judgment of acquittal notwithstanding the verdict of the jury and motion for new trial, both of which were overruled. On the same date Sanders filed a motion for a hearing in vacation. This motion was also overruled. On July 16, 1982, after the term of court had ended, appellant filed a renewed motion for new trial alleging that on July 1, witness Nelson Bass voluntarily came to appellant’s attorney’s office in Greenville and gave a tape-recorded statement and affidavit that none of his testimony given at the trial was true. The lower court did not consider the renewed motion as the cause had been appealed and it had lost jurisdiction.

We shall not discuss the facts briefly related above further at this time, as on January 13, 1983, appellant filed in this Court an Application for Leave to File A Petition for Writ of Error Coram Nobis. We shall handle this application at the end of this opinion. It suffices to say now that the lower court clearly had lost jurisdiction of the cause at that time. We therefore are forced to hold that there is no merit to appellant’s first assignment of error. Craig v. State, 208 Miss. 528, 44 So.2d 860 (1950).

Appellant contends that the trial court was in error by permitting the state to try the case as a “conspiracy” without stating that word in the indictment. It is clear from the indictment that all three indictees were indicted as principals in the offense. One who aids and abets an offense is indictable as a principal. MCA § 97-1-3 (1972); Anderson v. State, 397 So.2d 81 (Miss.1981); and Washington v. State, 341 So.2d 663 (Miss.1977). It is clear from the evidence related above that it was sufficient to convict all three co-indictees as principals in the crime.

Appellant contends that reversible error is present for the reason that the state failed to disclose the prior criminal record of witness Nelson Bass.

The trial judge who presided over the appellant’s trial is very wise in having a form order of discovery in criminal cases which covers all those permissible under the circuit court criminal rules. Nowhere in the order or the rules is the state required to automatically disclose in every case the prior criminal record of witnesses.

In the present case appellant contends that his attorney did not learn of a prior record of witness Bass until the jury had retired to consider the verdict.

In the first place, appellant’s attorney admits that he talked with Bass prior to trial. Also, he conducted an extensive cross examination of Bass while he was on the stand and it could have been an easy matter for him to ask this adverse and hostile witness about any prior criminal record. This he did not do. Further, in our opinion, we do not believe the production of the prior record of a witness comes under the requirement of producing “any exculpatory information or material concerning defendant,” or the requirement that the state furnish “names and addresses of all witnesses in chief proposed to be offered.” [Trial Court’s Order] We therefore, hold that there was no reversible error under appellant’s argument regarding this point.

Appellant contends that the prosecuting attorney took actions during the trial that were prejudicial to appellant and require a reversal of the cause. It is first alleged that the prosecuting attorney in his opening statement indicated that if the appellant made an opening statement, he would have the burden of proving that statement. This indication was made by the prosecuting attorney, but he immediately corrected that statement and advised the jury in plain and unmistakable language that the defendant did not have to prove anything and that the entire burden of proof was on the state. This eliminated any reversible error. .

Appellant alleges as error that the district attorney in his closing argument referred to appellant as a “known dope pusher.” Any error was cured when upon objection, the court sustained the objection and clearly instructed the jury to disregard it. Furthermore, it could not have had any adverse effect, as the jury had already heard of appellant’s prior conviction for narcotics violations.

The prosecuting attorney referred to a tape-recorded conversation between the undercover agent and the deputy sheriff which, as heretofore pointed out, was not admitted into evidence. On Motion, when this tape was mentioned in the argument, the jury was admonished to disregard any mention of a taped conversation given by the undercover agent.

Appellant contends that the white paper towels that were wrapped around the bags of marijuana were erroneously shown to the jury. Admittedly, the entire quantity of marijuana was in the two plastic bags. The white paper in which they were being carried was not material to that evidence. The bags containing the marijuana were fully and sufficiently marked and identified. No reversible error exists here. The witnesses fully explained the existence of the paper towels during the “buy” of the marijuana.

Appellant alleges reversible error because the trial court refused to permit the expert surveyor to testify as to what he could see at night from across the street to the store. This experiment was made many months after the incident giving rise to the indictment. There was no proof that the conditions were the same or any qualification for admitting such indefinite and speculative testimony. There was ho evidence that the circumstances were the same the two nights in question. The exclusion of this speculative testimony was not error. Hines v. State, 339 So.2d 56 (Miss.1976).

Lastly, appellant alleges that the jury verdict was against the overwhelming weight of the evidence. We carefully have studied the record and briefs in the case and it is sufficient to say without any doubt the testimony as shown by this record clearly justified and authorized the jury to return a guilty verdict.

We therefore find that the conviction and sentence of appellant should be and it is hereby affirmed.

AFFIRMED.

ON APPELLANT’S APPLICATION FOR LEAVE TO FILE PETITION FOR WRIT OF ERROR CORAM NOBIS

As hereinbefore stated, on January 13, 1983, appellant filed his application for leave to file a Petition for Writ of Error Coram Nobis in the Circuit Court of the Second Judicial District of Bolivar County. We passed the consideration of this application until the hearing on the merits of the appeal for the reason that the application was not proper until that time arrived.

In his application, appellant attaches a copy of a taped statement taken from witness Nelson Bass on July 1, 1982, and Bass’ affidavit of July 1, 1982. The contents of both of these instruments are that Bass completely recanted his testimony at the trial. He contended that he was threatened by Bolivar County officials into giving the testimony. Due to this contention, it is our opinion that the petition for Leave to File a Petition for Writ of Error Coram Nobis in the trial court should be sustained to determine whether or not such threats actually were made.

We are forced to conclude that in the event Bass’ affidavit is accurate and truthful, this would be sufficient for the lower court to hear the petition for writ of error coram nobis. We hasten to point out that Mr. Bass now admits perjury on one or two occasions, which, of course, is a crime constituting a felony.

We, therefore, are of the opinion that appellant’s application to file his Petition for Writ of Error Coram Nobis should be granted. The lower court should hear Mr. Bass and make its finding on what Mr. Bass’ real position is in the incidents leading to appellant’s indictment and in the post-trial actions of Mr. Bass.

We, therefore, grant appellant’s application for leave to file his Petition for Writ of Error Coram Nobis with the Circuit Court of the Second Judicial District of Bolivar County.

APPLICATION GRANTED.

PATTERSON, C.J., WALKER and BROOM, P.JJ., and ROY NOBLE LEE, HAWKINS, DAN M. LEE, PRATHER and ROBERTSON, JJ., concur.


author: WALKER, Presiding Justice,

text:
    Willie L. COOPER v. STATE of Mississippi.
    No. 54505.
    Supreme Court of Mississippi.
    Nov. 2, 1983.
    Willie L. Cooper, pro se.
    Bill Allain, Atty. Gen. by Frankie Walton White, Sp. Asst. Atty. Gen., Jackson, for appellee.
   WALKER, Presiding Justice,

for the Court:

This is an appeal from the Circuit Court of Sunflower County wherein appellant’s petition for writ of habeas corpus was denied. A motion for reconsideration filed March 1, 1982, was also denied. Aggrieved with the lower court’s dismissal of his petition, appellant has perfected his appeal to this Court.

On August 25, 1978, the appellant having pled guilty to the December 12, 1977 commission of the crime of armed robbery was sentenced to serve a term of ten years in the custody of the Mississippi Department of Corrections to run concurrently with a sentence of six years which he was presently serving.

He does not attack the legality of his sentence but asserts the lower court erred in finding he was not eligible to reduce his sentence with the grant of administrative good time pursuant to Mississippi Code Annotated section 47-5-139 (1972) as amended. We disagree. Earned time for good conduct and performance only applies to those inmates who at some time are eligible for parole as specifically provided for under section 47-5-139(7) which states:

No inmate in any event shall have his sentence terminated by administrative earned time action until he is eligible for parole as provided in Title 47, Chapter 7, Mississippi Code of 1972.

Appellant’s parole status is governed by Mississippi Code Annotated section 47-7-3(d) (1972), as amended, which reads:

No person shall be eligible for parole who shall on or after January 1, 1977, be convicted of robbery or attempted robbery through the display of a firearm until he shall have served ten (10) years if sentenced to a term or terms of more than ten (10) years or if sentenced for the term of the natural life of such person. If such person is sentenced to a term or terms of ten (10) years or less, then such person shall not be eligible for parole. (Emphasis added).

Therefore, earned [good] time credits do not apply to this inmate as he will not be eligible for parole because he must serve his full sentence of ten years.

He argues that he falls within an exception to the law, contending, “The statute bars those people that are eligible to become parole consideration individuals from terminating their sentences with earned time before they become eligible for parole. The statue [sic] do not bar those from earning credits towards their sentences that are permanently ineligible for parole consideration as Appellant.” For us to so hold would be an absurdity.

In our opinion, since appellant is not entitled to parole because he must serve his full ten-year sentence (section 47-7-3(d)), he is likewise not entitled to be credited with good time that he might otherwise have earned (section 47-5-139(7)).

Appellant’s contention that the lower court erred in failing to order an evidentia-ry hearing on his claims is found to be without merit.

For the above stated reasons, the judgment of the Circuit Court denying the writ of habeas corpus is affirmed.

LOWER COURT’S DENIAL OF WRIT OF HABEAS CORPUS AFFIRMED.

PATTERSON, C.J., BROOM, P.J., and ROY NOBLE LEE, BOWLING, HAWKINS, DAN M. LEE, PRATHER and ROBERTSON, JJ., concur.

      . Effective from and after July 1, 1982, section 47-7-3(2) specifically provides “Notwithstanding any other provision of law, an inmate shall not be eligible to receive earned time, good time or any other administrative reduction of time which shall reduce the time necessary to be served for parole eligibility as provided in subsection (1) of this section.”


author: PATTERSON, Chief Justice,

text:
    SECURITY MUTUAL FINANCE CORPORATION v. Jerry WILLIS & Leon Willis d/b/a Valley Motors.
    No. 53948.
    Supreme Court of Mississippi.
    Nov. 2, 1983.

      John M. Creekmore, Carnathan & Malski, Amory, for appellant.
    Guy W. Mitchell, Mitchell, McNutt, Bush, Lagrone & Sams, Tupelo, for appellees.
    Before PATTERSON, C.J., and BOWLING and ROBERTSON, JJ.
   PATTERSON, Chief Justice,

for the Court:

Security Mutual Finance Corporation (Security) sued Jerry Willis and Leon Willis, d/b/a Valley Motors (Valley), in the Circuit Court of Lee County for breach of contract. Security had purchased retail installment sales contracts from Valley and sought repayment for the deficiency caused by a customer’s default. The jury verdict did not include a deficiency but rather awarded Valley $9100 as sought in its counterclaim. Security appeals.

Security is a finance corporation which regularly purchases retail installment sales contracts. It had done business with the Willises beginning in 1976 by the purchase of contracts from Willis Brothers Motor Company, Inc., in Tupelo and when Valley was opened in Water Valley in 1978, they purchased retail installment contracts from the business in that location as well. This relationship continued until Valley closed its business on October 31, 1979.

The contract leading to this dispute concerned the sale of a 1974 Ford Mustang to Beulah Potts by Valley on June 8, 1979. The price of this automobile was $2,729.00 of which Potts made a down payment of $329.50 and arranged financing over 24 monthly payments of $129.25 each.

Valley sold this contract to Security for $2350.00 and it then became Security’s responsibility to collect the installment payments. The contract was assigned with recourse inasmuch as it contained a limited repurchase clause which provided that payment was guaranteed by Valley for six months. This provision meant that Valley was to pay Security the unpaid balance on the account and repurchase the car if Potts defaulted during the first six months.

The July, August, September and October, 1979 payments were made but the November and December payments fell into arrears and Security repossessed the automobile in January of 1980.

The Mustang was inoperable because of engine problems when repossessed. It was transported to the site of Willises’ automobile operation in Tupelo where it was presented to Jerry Willis with a request by Security that the balance, $1711.22, be paid in accord with the contract. Willis declined to pay but offered to sell the car and apply the proceeds on the balance. Security believing the contract required payment in full, refused Valley’s offer. The Mustang was then taken back to Grenada where it was sold for $488.00.

The Mustang was not appraised before sale, neither was it cleaned nor vacuumed. Security merely took three bids (from parties with whom they had business relations), and accepted the highest bid. The testimony elicited by the defendant was that the sale price was unreasonably low. There was evidence by the Willises and Jerry Nolan, another automobile dealer, that the reasonable value of the car, with the bad engine, was between $1300.00 and $1800.00.

Additionally, Valley objected to Security’s request for the deficiency which resulted after the $488.00 from the sale was credited to the account. In its counterclaim Valley alleged that Security maintained a loss reserve account and a deferred advance account to offset losses incurred upon repossession of merchandise. Valley contends the loss reserve account was financed by deducting 10% of the finance charge on each loan and the deferred advance account deducted $50.00 from each transaction. It further alleged these monies came from the sum the sellers would have received but for the accounts and was intended to protect both parties in the event of default.

Security argued that Potts’ contract specifically required Valley to pay the balance due if there was a default before the first six payments were made, maintaining that the loss reserve and deferred advance accounts were available only after that time. Security therefore objected to evidence concerning these accounts, because the specific recourse agreement was in effect at the time of default.

Although Jerry Willis testified for Valley that the reserve accounts applied to a default within the first six months after a contract was assigned, he nevertheless admitted there was no such contractual provision having application to this sale. Leon Willis corroborated his brother in testifying that this use of funds was merely an understanding. He acknowledged that loss by default was Valley’s responsibility during the first six months after a loan was made but added that it was his impression that the revenue accounts would be used on such things as the Potts’ default. He felt the business in Water Valley would be done as he asserted it had been done in the Tupelo business. This meant, as we comprehend his testimony, that Leon Willis expected the repossessed automobiles to be sold for the highest sum possible and that the reserve accounts would then cover the deficit, whereby Valley would never be liable for any deficiency. He acknowledged, however, that the contract did not have such provision and reiterated that it was only his impression the reserve accounts would be applied to Potts’ default.

At the time of the final posting on October 17, 1979, the reserve accounts from all sales contained adequate funds to pay the Potts’ deficit. Funds were not taken from either account by Security for the deficiency because of the recourse provision that Valley would repurchase the car if default occurred during the first six months. Valley sought different treatment according to Leon Willis who stated, “... this is what I asked them to do and what we told them we would do...”. Yet, nevertheless, he admitted that such was not in accord with the contract. Security did not agree to any modification, and as mentioned, sought payment in accord with the six months provision.

Over objection, the jury was permitted to consider the loss reserve and deferred advance accounts, which was contrary to the contractual language excluding the application of such accounts for defaults within the first six monthly payments. The jury’s verdict found Security liable to Valley for $9100.00 of the reserve accounts.

Among its assignments of error, Security contends the trial court erred in receiving parol evidence concerning such accounts.

Fuqua v. Mills, 221 Miss. 436, 73 So.2d 113 (1954), addresses the use of parol evidence to modify the express written provisions of a contract.

The rule relating to the admission of parol evidence to add to or contradict written instruments is stated in 32 C.J.S., Evidence, § 851, page 784, as follows:
“It is a general rule that parol or extrinsic evidence is not admissible to add to, subtract from, vary, or contradict judicial or official records or documents, or written instruments which dispose of property, or are contractual in nature and which are valid, complete, unambiguous, and unaffected by accident or mistake. This rule, which is known as the parol evidence rule, is one of substantive law and not merely one of evidence; and it obtains in equity as well as at law.”
In the case of Kendrick v. Robertson, 145 Miss. 585, 111 So. 99, 101, the Court * * * said:
“ * * * the rule that the terms of a written contract or conveyance cannot be varied or added to by parol evidence is not merely a rule of evidence, but is one of substantive law, and, in measuring the rights of the parties to a written contract or conveyance, which, on its face, is unambiguous and expresses an agreement complete in all of its essential terms, the writing will control. Jones, Commentaries on Evidence, vol. 3, par. 434; Wigmore on Evidence, vol. 4, pars. 2400 and 2425.”
In the case of Edrington v. Stephens, 148 Miss. 583, 114 So. 387, the Court reaffirmed the rule stated above, and again held that the terms of a written contract could not be varied or added to by parol evidence.
73 So.2d 118-19.

The written provisions adopted by contracting parties merge only those prior and contemporaneous writings which are contained within as the final and complete expression of their agreement. Fortune Furniture Manufacturing, Inc. v. Pate’s Electronic Co., 356 So.2d 1176, 1178 (Miss.1978). “Where parties, without any fraud or mistake, have deliberately put their contract in writing, the writing is not only the best, but the only evidence of their agreement.” Ralston Purina Co. v. Rooker, 346 So.2d 901, 903 (Miss.1977); Noble v. Logan-Dees, Chevrolet Buick, Inc., 293 So.2d 14, 15 (Miss.1974). This does not mean, however, that a separate contract may not be entered into to explain or supplement the existing contract. Bell v. Hill Bros. Construction Co., Inc., 419 So.2d 575, 576-77 (Miss.1982).

This is consistent with our statutory scheme as well as prior cases of this Court. Miss.Code Annotated, § 75-2-202 (1972), provides that:

Terms with respect to which the confirmatory memoranda of the parties agree or which are otherwise set forth in a writing intended by the parties as a final expression of their agreement with respect to such terms as are included therein may not be contradicted by evidence of any prior agreement or of a contemporaneous oral agreement but may be explained or supplemented
(a) by course of dealing or usage of trade (Section 1-205) [§ 75-1-205] or by course of performance (Section 2-208) [§ 75-2-208]; and
(b) by evidence of consistent additional terms unless the court finds the writing to have been intended also as a complete and exclusive statement of the terms of the agreement.

It would seem that the Potts’ contract and its assignment to Security stands alone, such that the conduct of business operations in Tupelo, which was not explained at trial in any detail, would not affect the agreement between Valley, a separate business, and Security. We therefore think the course of business in Tupelo does not govern the contract here. Although the different companies were owned by the Willises the course of conduct claimed in modification of the Valley contract was antecedent to the written agreement. The contract does not contain language evincing any intention to permit the use of the deferred or reserve accounts if default occurred before the first six payments were made. We, therefore, conclude the whole agreement between the parties is expressed in the written contract. It necessarily follows that there was error by the trial court in admitting the parol testimony regarding the reserve account, since this was precluded by the recourse agreement concerning payments within the first six months. Stated differently, the parol evi-. dence was not in explanation of or supplementary to the contemporaneous writing but rather was contradictory to it.

Undoubtedly this testimony led the jury to award the Willises, d/b/a Valley, the $9100 contained in the deferred advance account. We are of the opinion the jury should not have considered this testimony on the Potts’ contract and assignment for the reasons above stated and that it was also erroneously introduced under the counterclaim because that contract was exhibited to it and by its plain terms, includes the same recourse agreement. Assuming, for the moment, that there was a course of business conduct in explanation of the Tu-pelo business and the contract there, nevertheless such was not evidenced in any detail sufficient to overcome the written agreement. We therefore hold that the verdict of $9100 is erroneous.

We note there appears to be a valid issue of the reasonableness of the sale of the Mustang after Potts’ default which should be considered on retrial.

REVERSED AND REMANDED.

WALKER and BROOM, P.JJ., and ROY NOBLE LEE, BOWLING, HAWKINS, DAN M. LEE, PRATHER and ROBERTSON, JJ., concur.

      . See Miss.Code Ann., Section 11-7—47. The writing was filed and made part of the record.


author: WRIGHT, Presiding Judge.

text:
    FEDERATED GUARANTY LIFE INSURANCE COMPANY, a Corporation v. Conley G. DUNN.
    Civ. 3464-X.
    Court of Civil Appeals of Alabama.
    June 24, 1983.
    Rehearing Denied Aug. 3, 1983.
    Certiorari Denied Nov. 4, 1983 Alabama Supreme Court 82-1086.

      John M. Milling, Jr., of Hill, Hill, Carter, Franco, Cole & Black, Montgomery, for appellant Federated Guar. Life Ins. Co.
    J. Thaddeus Salmon, Montgomery, for appellant Ala. Farm Bureau Mut. Cas. Ins. Co.
    John B. Crawley, Troy, for appellee.
   WRIGHT, Presiding Judge.

This is an appeal by Federated Guaranty Life Insurance Company (Federated), from verdict and judgment awarding damages to Conley G. Dunn for the breach of an insurance agency employment contract.

The material facts are undisputed. Dunn was employed as an agent of Federated under an employment contract. The contract provisions regarding the payment by Federated to Dunn of renewal commissions after Dunn’s resignation are the center of dispute. The area of dispute regarding the employment contract is paragraph 7-A and D, which reads as follows:

“7. PAYMENTS AFTER TERMINATION
“We both agree that:
“A. No payments of any kind arising under this contract will be paid after the termination of this contract except as expressly provided for in the Paragraph 7.
“D. No payment provided for in Paragraph 7-C will be made to you:
“(1) Unless at the date of termination of this contract you shall have been an agent of the Company for at least three consecutive years immediately prior to such date; and
“(2) If you represent or are employed by any person, corporation, order or association which is engaged in the business of insurance, except Farm Bureau and its affiliated organizations in territory in which Company is licensed.”

Dunn resigned after being employed more than three years. He was paid renewal commissions for nearly a year until Federated learned that he had become employed by a competing insurance company. Payment of commissions was terminated by Federated.

At trial Dunn testified that he was originally hired as an agent for Alabama Farm Bureau Insurance Company (AFB) and Southern Farm Bureau (SFB). His original written contract with SFB, containing the provisions set out above, was continued in force when Federated succeeded SFB as Dunn’s employer in 1972. Dunn introduced that contract into evidence. After introduction of the contract, Dunn was permitted, over proper objection, to testify as to his understanding of the provisions of his contract and his rights thereunder. Subsequently, he presented a witness, Eva Carr, who was allowed to be qualified as an expert in grammar; She was first heard by the court outside the presence of the jury and permitted to testify as to the grammatical effect of the use of the conjunction “and” between paragraphs (1) and (2) of paragraph 7.D of the contract. She was allowed to state that because of its grammatical effect the paragraph was made ambiguous, although in all “common sense” it was not intended to have that effect.

Objection to her testimony was made as being invasive of the province of the court to determine whether the contract was ambiguous. The objection was overruled and the witness was permitted to state to the jury that the contract was, in her opinion, ambiguous.

The overruling of objections to the plaintiff testifying as to his understanding of the contract and to permitting the witness Carr to testify that the contract was ambiguous are presented as issues for reversal on appeal. We find the court to have erred in both instances.

In the first instance, it has been held that it is reversible error to permit a party to testify as to his understanding of a contract, the basis of the suit. Such statement not only may tend to vary the terms of the written instrument which is the sole expression of the intent and beliefs of the parties, it is also a conclusion which invades the province of the court or jury. Chastain & Blass Real Estate & Insurance, Inc. v. Davis, 280 Ala. 489, 195 So.2d 782 (1967); Nunn v. Stone, 356 So.2d 1212 (Ala.Civ.App.1978).

In commenting upon the admission of the testimony of the witness Carr, we reach the most basic issue of the appeal. That is, whether the contract sued upon is, or is not, ambiguous. It is clearly the law that whether a contract is ambiguous is a question of law for the trial court. Mass Appraisal Services, Inc. v. Carmichael, 404 So.2d 666 (Ala.1981); Camp v. Milam, 291 Ala. 12, 277 So.2d 95 (1973); Air Conditioning Engineers v. Small, 259 Ala. 171, 65 So.2d 698 (1953). It is made clear in the cited cases and others, that upon presentation of a written contract, the basis of suit, it is incumbent upon the trial court to decide whether that contract is ambiguous in light of its terms before permitting any evidence extrinsic thereto.

Though strong objection, contending violation of the parol evidence rule, was made to the testimony of witness Carr, the court was silent as to whether it found the contract ambiguous. It doesn’t appear enough to contend that by silence and the permitting of such testimony the court impliedly held the contract ambiguous. It could be said that the court heard the witness testify and found the contract ambiguous because of her testimony. In either case, it is not required in this instance that we find the court in error for not specifically ruling as a matter of law whether or not the contract is ambiguous. We find the court in error for permitting testimony in violation of the parol evidence rule. It is the opinion of this court that the contract is not ambiguous as a matter of law.

We find little aid in Alabama cases for discerning a legal definition of “ambiguous.” Courts of other states have said if a contract remains reasonably susceptible to more than one meaning after the court applies established rules of interpretation, the contract is ambiguous, but if only one reasonable meaning clearly emerges, it is unambiguous. Stitt v. Royal Park Fashions, Inc., 546 S.W.2d 924 (Tex.Civ.App.1977). “[A]mbiguity in a written instrument does not appear until application of pertinent rules of interpretation to the face of the instrument leaves it genuinely uncertain which one of two or more meanings is a proper meaning.” Gardner v. Spurlock, 339 P.2d 65, 69, 184 Kan. 765 (1959). The pertinent rules of interpretation for determining the intent expressed in the contract are: look to the contract as a whole; look to its nature, purpose and the subject matter with which it deals. 4 S. Williston, A Treatise on the Law of Contracts, § 618 (3d ed. 1961); 17 Am.Jur.2d, Contracts § 246 (1964). It is only in the event of a determination of ambiguity that evidence of circumstances surrounding the making of the contract become pertinent. Smith v. Webb, 176 Ala. 596, 58 So. 913 (1912).

It is interesting to note that the expert witness Carr testified that because the word “and” grammatically joined provisions (1) and (2) of paragraph 7.D, it made them conjunctive. However, she said for them to be conjunctive was unreasonable and contrary to common sense. She indicated that when looked at in light of the position of the parties and the purpose of the provisions, it obviously did not mean what it grammatically said. It was thus ambiguous because it clearly was not intended to mean what it said. Her own words wére contrary to the meaning of ambiguity.

Not relying upon the testimony of witness Carr, but because the true intent of the provisions of paragraph 7 is clear when viewed by reasonable men as a whole in light of its purpose, only one “common sense” conclusion is possible. An unreasonable interpretation of words in a contract may not be used to create ambiguity. Robbins Tire and Rubber Company v. United States, 462 F.2d 684 (5th Cir.1972); cert. denied, 410 U.S. 913, 93 S.Ct. 964, 35 L.Ed.2d 278 (1973).

We find no reasonable interpretation of paragraph 7, except that no payments would be paid Dunn after termination of his contract unless (1) he had been employed for at least three consecutive years and unless (2) he was not employed by another insurance company in the territory of Federated.

An alternative interpretation that in order to receive payments after termination, he must have worked for Federated for at least three consecutive years and be employed by a competing company is totally unreasonable and beyond consideration. If such alternative were applied, Dunn could not have properly received the commissions paid him by Federated for the almost one year when he was not employed by a Federated competitor.

We find the court to have erred to reversal in permitting testimony of witness Carr and other extrinsic testimony tending to vary the terms of the written contract.

In light of our legal conclusion that the provisions of the contract are not ambiguous, the court erred in submitting the construction and interpretation of the contract to the jury contrary to the motion of the defendant. Miles College, Inc. v. Oliver, 382 So.2d 510 (Ala.1980).

We find no merit in the cross-appeal of plaintiff as to the entering of judgment for defendant on claim number 2 for fraud. It is affirmed.

It is therefore the opinion of the court that the verdict of the jury and judgment thereon must be and is hereby reversed and set aside. The case is remanded with direction to enter judgment in favor of defendant Federated, notwithstanding the verdict of the jury.

REVERSED AND REMANDED WITH DIRECTION.

CROSS-APPEAL AFFIRMED.

BRADLEY, J., concurs.

HOLMES, J., concurs in the result.


author: BRADLEY, Judge.

text:
    Anne B. SMITH, n/k/a Anne B. Wouters v. Frederick Williams SMITH.
    Civ. 3636.
    Court of Civil Appeals of Alabama.
    June 24, 1983.
    Rehearing Denied Aug. 3, 1983.
    Certiorari Denied Nov. 4, 1983 Alabama Supreme Court 82-1095.

      Douglas C. Martinson of Martinson & Beason, Huntsville, for appellant.
    James P. (Jim) Smith of Harrison & Smith, Huntsville, for appellee.
   BRADLEY, Judge.

This is a divorce case.

The parties to this appeal were divorced June 16,1976 by a decree which incorporated a separation agreement. A portion of their agreement provided that Frederick Williams Smith would pay for the cost of educating Dr. Anne B. Wouters’s two children whom he had adopted during the course of their marriage and that such support was to continue past the date of their attaining the age of majority. The provision in question reads:

“College or university undergraduate and postgraduate education is to be provided for Erich W. Smith (now seventeen years of age) and Benjamin C. Smith (now fourteen years of age) at a college or university of the choice of the child. Defendant will pay to plaintiff the sum of $200.00 per child per month, commencing June 1, 1976, until (a) the child completes his undergraduate and postgraduate education, (b) voluntarily terminates his education, or (c) reaches twenty-six years of age, whichever event sooner occurs. In addition, defendant will pay one half of the tuition cost for each child at the college or university which the child attends. The term ‘education’ includes the following:
“(i) School books, texts, and educational materials of all types; and
“(ii) Tuition, including the cost of teaching the child, and uniforms appropriate to the school, assuming the child attends a college or university where such uniforms are required to be worn.”

On July 12, 1982 Dr. Smith filed a petition for modification and request for declaratory judgment in which he sought a termination of child support for Erich Smith, who had been married on June 19, 1982. He also requested to be relieved of paying the cost of two preparatory courses which had been taken by Erich Smith and Benjamin Smith in their efforts to attend medical school. In response thereto, Dr. Wouters entered a general denial and filed a counter-petition for an increase in child support and attorney’s fees.

From the stipulation of facts before it, the trial court found 'that Erich Smith was twenty-three years of age and presently enrolled in the University of Alabama Medical College in Birmingham and that Benjamin Smith was twenty-one years old and was engaged in the process of applying to medical school. The court further found that Erich Smith had married on June 19, 1982 and that his wife was self-supporting. On the basis of this fact, the court concluded that Erich Smith had been emancipated by his marriage and that this was a sufficient showing of changed circumstances to terminate child support for him. It was further ordered that Dr. Smith’s duty to support Erich Smith ended retroactively on the date of the child’s marriage. The court rejected the contention that Dr. Smith was obligated to pay the cost of the preparatory courses for the medical school entrance examinations and denied Dr. Wouters’s claim that child support should be increased. Attorney’s fees were also denied for Dr. Wouters. From this decision of the trial court, Dr. Wouters has appealed to this court.

The first issue raised by Dr. Wouters in her brief and in argument is whether the agreement which was incorporated into the divorce decree and relates to child support and educational expenses for two children past majority can be modified. She takes the position that such an agreed decree ordinarily can be modified but that the facts in the instant case do not support a modification of the child support decree. Dr. Wouters points out that the agreement in question provided support for her two sons after they reached majority until one of three contingencies occurred. The contingencies were completing of undergraduate and postgraduate education by the children, voluntary termination of their education, or attainment of age twenty-six. She says that marriage of one or both of her children was not a contingency agreed upon that would terminate child support. She further says that had the parties wanted to make marriage by a child a contingency for termination of support, such a provision could have been placed in the agreement.

In essence, Dr. Wouters is contending that modification of an agreed support decree is limited to the terms and conditions of the decree. Hence, in the absence of a provision authorizing termination of child support for marriage, the decree cannot be modified.

In response Dr. Smith says that the marriage of Erich Smith constituted a change in circumstances which supports the trial court’s determination that child support payments in his behalf should be terminated. He relies on a line of cases which holds that the marriage of a minor child results in the emancipation of that child and also provides a supporting parent with grounds to seek a modification of a divorce decree under which he has been ordered to pay support. See Morgan v. Morgan, 275 Ala. 461, 156 So.2d 147 (1963); Owens v. Owens, 412 So.2d 820 (Ala.Civ.App.1982); Oakes v. Cummings, 47 Ala.App. 327, 253 So.2d 784 (Ala.Civ.App.1971). The father argues that the rationale of these cases is equally as compelling in this instance in which he is obligated to pay under a support agreement as it is in those instances in which a father is ordered by the court to provide support.

Prior decisions of this court have held that a support agreement under which one parent is obligated to pay child support beyond the age of majority is enforceable. These cases have made it clear that, while a court may not order a parent to pay support beyond the age of a child’s majority, the parties, themselves, may agree to do so. Scott v. Scott, 401 So.2d 92 (Ala.Civ.App.1981); Ralls v. Ralls, 383 So.2d 857 (Ala.Civ.App.1980). We said in Ralls v. Ralls, supra, that:

“[T]he parties are bound by the provisions of their agreement which are incorporated into the judgment until those provisions are modified by a court of competent jurisdiction....
“Where one of the parties seeks to modify a judgment fixing child support payments in accordance with an agreement, there will be no modification except for clear and sufficient reasons. Hutton v. Hutton, [284 Ala. 91, 222 So.2d 348 (1969)].”

Bearing these principles in mind, our task in reviewing the record before us must center on an examination of whether Dr. Smith met his burden of proving changed circumstances since the date of the rendition of the divorce decree. The trial court concluded that he had met his burden of proof by showing that his son had married and the son’s wife was self-supporting. However, we find that, within the terms and conditions set up by the parties in their divorce agreement, the marriage of Erich Smith was not a sufficient showing of changed circumstances to warrant a modification.

As we have stated, Dr. Smith premises his argument in support of the trial court’s determination to eliminate child support and educational expense payments in behalf of Erich Smith on the date of the child’s marriage on the proposition that marriage leads to a conclusion that a minor child has become emancipated. See Morgan v. Morgan, supra; Owens v. Owens, supra; Oakes v. Cummings, supra. We concede that marriage can result in the emancipation of a minor, but the agreement in the instant case obligates the father to pay child support until one of three contingencies occurs. In fact, the son was already “emancipated” prior to marriage, i.e., he was over nineteen years of age. These contingencies which were agreed to by the parties require that child support and educational expense payments continue until the two children complete their education, including undergraduate and postgraduate studies, voluntarily terminate it, or reach the age of twenty-six. Even though the parties were free to bargain with one another, their agreement contains no language which would lead to a conclusion that they intended support payments to cease upon the marriage of one of the children.

Since such a contingency is notably absent from the separation agreement, we cannot say that the parties intended for the marriage of Erich Smith to lead to a determination that child support payments should be terminated. Indeed, other facts on the record before us militate against the conclusion that Dr. Smith has met his burden of showing changed circumstances. The trial court found that neither of the two children had attained the age of twenty-six and that both of them were satisfactorily progressing towards completing their education in their chosen field of medicine. At the time of the trial court’s order, Erich was enrolled in medical school in Birmingham, and Benjamin was in the process of applying to begin his medical studies. The trial court found that both children had compiled outstanding academic records and that they showed exceptional promise. Moreover, there is no evidence on the record to show that Dr. Smith’s ability to pay has been diminished. Since none of the three contingencies in the separation agreement had occurred and since none of those factors which traditionally lead to a finding of changed circumstances is present on the record before us, we find that the trial court erred to reversal in determining that Dr. Smith met his burden of proving changed circumstances.

Dr. Wouters next argues that the trial court erred in determining that Dr. Smith was not liable to pay the cost of two “Kaplan” preparatory courses. She claims that such courses fall under the category of “school books, texts, and educational materials of all types.” We note, however, that such courses are aimed at preparation for medical school entrance examinations. Their purpose is a review, and they are not aimed at furthering the student’s education. Thus, it was not error for the trial court to determine that Dr. Smith was not liable for them as a part of educational expenses.

Finally, Dr. Wouters urges us to find that the trial court erred in refusing to grant her attorney’s fees. An award of attorney’s fees in connection with a divorce action rests largely within the trial court’s discretion, and its decision will not be disturbed, especially where the evidence, as in the instant case, supports the decision not to award attorney’s fees. Green v. Green, 380 So.2d 884 (Ala.Civ.App.1980).

For the foregoing reasons the judgment of the trial court in that aspect finding that the marriage of Erich Smith was grounds for modification of the parties’ support agreement is reversed and the cause remanded for entry of judgment consistent with this opinion. The judgment of the court as to the “Kaplan” preparatory course and its refusal to grant attorney’s fees to Dr. Wouters are affirmed.

AFFIRMED IN PART; REVERSED IN PART AND REMANDED WITH DIRECTIONS.

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


text:
    Elizabeth LACKEY, et al. v. JEFFERSON ENERGY CORPORATION, INC.
    Civ. 3823.
    Court of Civil Appeals of Alabama.
    June 24, 1983.
    Rehearing Denied Aug. 3, 1983.
    Certiorari Denied Nov. 4, 1983 Alabama Supreme Court 82-1100.
    B. Wayne Randall of Zeanah, Donald & Hust, Tuscaloosa, for appellants.
    John W. Clark, Jr., Timothy P. Donahue of Clark & Maddox, Birmingham, for appel-lee.
   BRADLEY, Judge.

This is a workmen’s compensation case.

The instant action was instituted against Jefferson Energy Corporation by Elizabeth and Alfred Lackey in connection with the death of their minor son William Paul Lackey. The complaint alleged that William Paul Lackey was killed on September 12, 1981 when he was run over by a front end loader which he was operating in the course of his employment with Jefferson Energy Corporation. The Lackeys further alleged that their son was unmarried at the time of his death and that he left no children surviving him. Damages were sought under the Alabama Workmen’s Compensation Act, and a count for wrongful death was also included in the complaint. In response thereto, Jefferson Energy Corporation sought dismissal of the action, claiming that it was immune from liability under sections 25-5-52 and 25-5-53, Code 1975. After the trial court dismissed the complaint, the Lackeys timely filed a notice of appeal.

Appellants in their briefs raise a frontal attack in two aspects on the statutory scheme of damages provided by the Alabama Workmen’s Compensation Act. They first argue that sections 25-5-52 and 25-5-53, Code 1975, are unconstitutional under the fourteenth amendment to the United States Constitution and Article I, sections 13 and 22 of the Alabama Constitution in the case of the job-related death of a minor employee who dies without dependents. They further claim that their action was brought under article 2 of the Workmen’s Compensation Act, which became operative in the instant case because relief was barred by article 3 of the Act.

As to the Lackeys’ claim that the exclusive scheme of damages provided by the Alabama Workmen’s Compensation Act is unconstitutional, section 25-5-52, Code 1975, provides:

“No employee of any employer subject to this article, nor the personal representative, surviving spouse or next of kin of any such employee shall have any right to any other method, form or amount of compensation or damages for any injury or death occasioned by any accident proximately resulting from and while engaged in the actual performance of the duties of his employment and from a cause originating in such employment or determination thereof other than as provided in this article.”

Similarly, section 25-5-53, Code 1975, states that “[t]he rights and remedies herein granted to an employee shall exclude all other rights and remedies of said employee, his personal representative, parent, dependents or next of kin, at common law, by statute or otherwise on account of said injury, loss of service or death.” However, the Lackeys argue that these two code sections are constitutionally infirm because they serve to bar the parents or personal representatives of minors who die in work-related accidents and leave no dependents from a recovery on the basis of wrongful death. Other parties similarly situated, they argue, are permitted to bring an action for wrongful death and are not barred from receiving a recovery when the death stems from some cause other than a work-related accident. The Lackeys take the position that such a classification is arbitrary and unfair.

In its decision of Slagle v. Reynolds Metals Co., 344 So.2d 1216 (Ala.1977), our supreme court, when faced with a challenge to the constitutionality of the exclusive scheme of damages provided by the Workmen’s Compensation Act, stated:

“Without question, the above mentioned statute provides immunity for an employee for injuries arising out of and in the course of employment. Furthermore, this section expressly includes any claims against the employer by the parents of an employee. An action brought under Alabama Workmen’s Compensation laws is purely statutory. Hartford Acc. & Indem. Co. v. Rigdon, 418 F.Supp. 540, 542 (S.D.Ala.1976); Boatright v. Dothan Aviation Corp., 278 Ala. 142, 176 So.2d 500 (1965). A lengthy discussion of the cases interpreting the Workmen’s Compensation statutes is unnecessary. Suffice it to say that the rights and remedies granted by the Act against an employer for injuries resulting from a work-related accident are exclusive. Patterson v. Sears-Roebuck & Co., 196 F.2d 947 (C.A. 5 1952); Gunter v. U.S. Fid. & Guar. Co., Ala., 340 So.2d 749 (1976); De Arman v. Ingalls Iron Works Co., 258 Ala. 205, 61 So.2d 764 (1952) (dictum); Owens v. Ward, 49 Ala.App. 293, 271 So.2d 251 (1972).”

This decision, coupled with the holding in Slagle v. Parker, 370 So.2d 947 (Ala.1979), where the supreme court stated that it has been held to be “constitutionally permissible for the legislature through the Workmen’s Compensation Act to deprive a father of his right to sue for the wrongful death of his son under § 6-5-391,” forecloses the Lackeys’ argument that sections 25-5-52 and 25-5-53 are unconstitutional. See also Kelley v. Moretti-Harrah Marble Co., 414 So.2d 1 (Ala.1982). Since we are bound to follow these precedents, we must affirm the trial court’s decision to grant a dismissal in favor of Jefferson Energy Corporation.

We similarly find no merit in the Lackeys’ second argument that the instant action is governed by article 2, rather than article 3, of the Workmen’s Compensation law. They claim that the language of section 25-5-30, Code 1975, causes article 2 to apply in the event of the job-related death of a minor employee who dies without dependents. Section 25-5-30 provides:

“This article shall not apply in cases where article 3 of this chapter becomes operative in accordance with the provisions thereof, but shall apply in all other cases, and in such cases shall be an extension or modification of the common law.”

The Lackeys further argue that since they, are barred by the terms of section 25-5-60, Code 1975, from receiving a recovery for the death of their son, they are entitled to a remedy under article 2. This same argument was advanced in Holliday v. C.T. Thackston Sand & Gravel Co., 361 So.2d 13 (Ala.Civ.App.1978). There, we held that “[t]he fact that the employee simply has no dependents does not render article 3 inapplicable and, therefore, article 2 applicable.”

For the foregoing reasons the decision of the trial court to dismiss the Lackeys’ action must be affirmed.

AFFIRMED.

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


text:
    Matthew SHUTTLEWORTH and Deborah Shuttleworth v. CATHOLIC FAMILY SERVICES, et al.
    Civ. 3626.
    Court of Civil Appeals of Alabama.
    July 6, 1983.
    Rehearing Denied Aug. 10, 1983.
    Certiorari Denied Nov. 4, 1983 Alabama Supreme Court 82-1136.

      William J. Baxley and Joel E. Dillard of Baxley, Beck & Dillard, Birmingham, for appellants.
    Susan M. Tuggle of Rodenhauser & Tug-gle, Huntsville, Jim Beech of Tweedy, Jackson & Beech, Jasper, for appellees.
    Virginia Bedford, Birmingham, for ami-cus curiae Concerned United Birthparents.
   WRIGHT, Presiding Judge.

This case began March 11, 1980, by the filing of a petition to terminate the parental rights of Deborah Ann Kelley and Matthew Shuttleworth to a child born out of wedlock on January 1, 1980. The petition was filed by Catholic Family Services, which organization had been given custody of the child at birth by her mother. By judgments on March 11 and March 25,1980, the rights of the parents were terminated and custody of the child, with permission to place for adoption, was granted to Catholic Family Services.

On June 10, 1980, a Rule 60(b) motion was filed on behalf of the parents, who were then married, seeking to set aside the orders of March 11 and 25. After lengthy evidentiary hearing, the court entered a judgment on August 14, 1980, with extensive finding of fact, denying the 60(b) motion. Appeal of that judgment was brought to this court. We affirmed the judgment of the trial court by decision entered December 12, 1980, Kelley v. Licensed Foster Parents, 410 So.2d 894 (Ala.Civ.App.1980). Our judgment was reversed by the Supreme Court of Alabama on October 2, 1981. Ex parte Shuttleworth, 410 So.2d 896 (Ala.1981). Application for rehearing was denied by that court. An order of remand with directions was issued by this court, 410 So.2d 902, on February 24, 1982, to the trial court.

The remandment directions transmitted through this court to the trial court were contained in the last two sentences of the opinion. Id. at 901. Earlier in the opinion, the court determined that the order of the trial court terminating the father’s parental rights should have been set aside upon hearing of the 60(b) motion because notice of the hearing for termination was not served in strict compliance with Rule 4.1(c)(2). Thereafter, the court noted that in hearing the 60(b) motion, the trial court held a “protracted custody hearing.” The hearing was held without the presence of the adoptive parents. The supreme court set out the principles controlling claims of custody between natural parents and foster parents. The court then stated that the issue of custody was best determined by the trial court and further said as follows:

“For these reasons the judgment of the Court of Civil Appeals is due to be reversed and the cause is remanded to the Court of Civil Appeals with directions to reverse the judgment of the Family Court of Jefferson County and require it to hold a hearing to determine the parental rights of the petitioners in the light of the principles set forth in this opinion. The family court is also to determine if there has been a valid waiver of rights made by the petitioners.
“Reversed and Remanded with Directions.”

Upon application for rehearing, the chief justice (concurring in the result and denial of rehearing) added comment that the sole issue that should be considered by the trial court on remand was “whether the natural father knowingly consented to the adoption of the child or otherwise waived his right to object.” He further commented that the adoptive parents should remain anonymous.

Upon remand, motions were filed by Catholic Services for protection of the adoptive parents. Motions for discovery were filed by the natural parents. All motions were heard by the court on March 19, 1982. The trial court took all under advisement and sought from the supreme court clarification of its opinion of October 2, 1981. There was denial of clarification. The trial judge granted a motion of the natural parents to recuse and removed himself from the case.

In August 1982, the new trial judge denied Catholic Services’ motion to protect the identity of the adoptive parents. Catholic brought a petition for mandamus to this court. We granted the writ of mandamus. The effect was to preserve the anonymity of the adoptive parents until the issue of consent or waiver for the adoption by the father was determined by the trial court.

Petition for writ of mandamus to be directed to this court was granted with opinion on August 16, 1982. Ex parte Nice, 429 So.2d 265 (Ala.1982). The supreme court reiterated much of its opinion of October 1981 and held that the trial court had broad discretion in permitting discovery to Shut-tleworth. The court stated that discovery of any information in the possession of Catholic Services “which might bear on the issue of whether the father waived his parental rights” was permissible. The court also said that whether the identity of the proposed adoptive parents would be disclosed was a matter within the discretion of the trial court. However, it said that ordinarily the identity of proposed adoptive parents is not discoverable in a proceeding to rescind an adoption or to set aside an order terminating parental rights.

The chief justice entered a dissent joined by Justice Faulkner. The dissent pointed out that the area of disagreement with the majority was in the disclosure of the identity of the adoptive parents. It said the only issue to be heard was the validity, vel non, of the adoption proceedings. If the adoption was not valid, the natural parents were entitled to custody. If the adoption was valid, the adoptive parents were entitled to custody. Thus the need to learn the identity of the adoptive parents so that relative fitness could be determined, was unnecessary in either case.

This court, in compliance with the directive of the supreme court, set aside its writ of mandamus. The trial court on October 20, 1982, set a hearing for December 6,1982, upon the issue of consent and waiver of service of the adoption proceedings. Intervention of counsel for the adoptive parents was permitted on November 3, 1982.

The trial court heard testimony of ten witnesses on December 6 and 9, 1982, with arguments and written briefs. On January 12, 1983, the court entered a lengthy judgment including statement of evidence and finding of fact. The conclusion was that Matthew Shuttleworth had waived all parental rights to object to the adoption of the child, Mary Ann Kelley. Shuttleworth appeals.

The preceding lengthy recital of the court history of this case is felt necessary for full understanding. To this court, the bottom line of the history is that the present and future welfare of a child has been in limbo since its birth on January 1, 1980.

The primary issue presented by this, the third proceeding brought to us in this matter, is: did the court err upon remand in finding that Matthew Shuttleworth knowingly consented to the adoption of Mary Ann Kelley or that he waived his right to object?

In beginning our discussion, it must be recalled that the supreme court in its decision of October 12, 1981, Ex parte Shuttleworth, 410 So.2d 896 (Ala.1981), reversed this court’s affirmance of the denial of a 60(b) motion by the trial court. That motion alleged fraud, undue influence and misrepresentation by Catholic Services upon the mother to secure her relinquishment of parental rights, and consent to adoption of her child. The motion also charged improper service of notice of hearing to terminate parental rights of the father. This court held that the trial court did not abuse its discretion in denying the Rule 60(b) motion on either ground.

The supreme court granted certiorari and held that we had erred in finding that valid service of notice was had upon the father. Having found service of notice of termination of parental rights legally insufficient, the court said as follows:

“Having said all of this, we could stop here, reverse and remand the case, and leave dangling a very emotionally sensitive issue, as well as the future hopes and aspirations of several individuals, including a 21 month old infant.”

The court then observed that the trial court, while entertaining the 60(b) motion, had, in effect, held a protracted custody hearing, though without the presence of the adoptive parents. It followed that observation with favorable comments about the natural parents and stated principles to be applied in custody claims between parents and nonparents. The supreme court concluded its opinion by stating that it was going to remand to the trial court for the “delicate balancing of these principles... . ” The remand directions were then given as we previously quoted herein.

It is the best understanding of this court from these pronouncements of the supreme court that it considered that the hearing on the 60(b) motion expanded into a hearing to determine custody of Mary Ann Kelley as between the natural and adoptive parents. It determined that setting aside the termination of parental rights of the father for failure of legal service did not conclude the “sensitive issue” of custody.

In its opinion in Ex parte Nice, supra, the court, referring to its opinion in Shuttleworth stated:

“The third issue addressed but not decided was whether the unwed father had knowingly consented to adoption and whether the parents of the child had otherwise waived their rights to the child. We directed the Court of Civil Appeals to remand the cause to the family court of Jefferson County for a determination of this issue.”

This clarification, followed by discussion and quotations from the case of Williams v. Pope, 281 Ala. 416, 203 So.2d 271 (1967), must have caused the trial court to limit the hearing on remand to the issue of consent or waiver of right by the natural parents to object to the adoption of their child. It is our opinion that such was the proper issue.

Though the mother is now claiming to have been misled and confused by the representations of the social worker for Catholic Services, Mrs. Dinwiddie, there is more than sufficient evidence to conclude the contrary. She first sought an abortion, traveling with her parents and Shuttle-worth to Atlanta for that purpose. Upon being informed that an abortion was not medically advised, she sought the aid of Catholic Services in giving birth at a place away from her hometown. She allowed her child to be taken from the hospital and placed in a foster home. She signed a petition and consent for termination of her parental rights and those of the father, and she appeared in court when the judgment of termination of her parental rights was entered. The court proceedings were instituted away from her home county at her direction. She served as intermediary and informant between Catholic Services and Shuttleworth, keeping him informed of each event and step toward adoption of their child. She contrived, consented to, and participated in every aspect of the proceeding. She therefore may not change her mind and undo what she has done. Williams v. Pope, supra.

The father, Shuttleworth, though not physically participating as fully as the mother, was kept fully informed of everything she was doing. He was present on the trip to Atlanta to secure an abortion. He was present at the birth of the child in Tennessee. He was informed of the role of Catholic Services in that birth and the removal of the child from the hospital. He never saw his child nor contributed to the expense of her birth. He knew that the mother had agreed to her adoption long before she was born on January 1, 1980. He was informed by the mother of the termination of her rights and her consent thereto on March 11, 1980. He admitted to being informed that there was scheduled another hearing for March 25, 1980, of which he was to receive notice, to terminate his parental rights. He acknowledged that he did receive the registered letter advising him of the hearing and containing consent and waiver form, albeit the letter was not served procedurally according to statute. He acknowledged that he subsequently signed the form contained in the letter at the request of the mother and gave it to her to return to Mrs. Dinwiddie for filing. The court found that Shuttleworth had the letter at least ten days prior to the hearing on March 25. He denies opening the letter and examining its contents though he gave it to the mother and discussed with her its contents and the form for waiver of notice and consent. He admits failing to keep an appointment with Dinwiddie set for the morning of March 25. The court was at liberty to disbelieve his denial of opening and examining an official letter from the court when he knew of its purpose. In fact, the testimony of Shuttleworth and the mother pertaining to misrepresentation and misunderstanding of events leading to the adoption is subject to disbelief.

There has been considerable reference to the signing of a jurat to Shuttle-worth’s signature on the form by Mrs. Din-widdie as a notary public. That jurat was removed by Mrs. Dinwiddie because she had not actually performed it. Concern about the jurat has little importance — first, because we find no statutory requirement that consent for adoption be notarized; second, because the signature of Shuttle-worth to the instrument is admitted. The form he signed was an admission of knowledge of the pending proceedings and of their purpose. It contained an acknowledgment of service and waiver of further notice. There was consent to termination of parental rights and to placement for permanent custody and adoption. We recognize that the waiver was apparently signed after the hearing and judgment and was not filed in the court. However, it is evidence and indication of the knowledge and state of mind of Shuttleworth after he knew of the judgment terminating the rights of the mother and the pending hearing as to his parental rights.

For some three months subsequent to the termination of parental rights and the direction by the court to find adoptive parents, the Shuttleworths made no effort to set aside the judgment. When this proceeding was begun the child had been in the custody of Catholic Services for her lifetime of nearly six months. The mother had seen her no more than three times. The father had never seen her. Foster parents had fed her, held her, loved her while the parents proceeded with their lives as though they never had a child, even though they were in daily company and subsequently married. The dark secret of her birth and being remained hidden from their friends. She was exiled in a foreign land — until she found love, care and protective parents who wanted her so badly that they would pay a fee of a thousand dollars to get her. Thereafter, her existence was no longer denied. She came alive in the arms of parents who were proud of her. Parents who surely announced to all that they had a daughter and that she had a family.

Our supreme court spoke poignantly of the family unit as the basic foundation of our society and the duty of courts to forge chains that will bind it together in its first opinion in this case (R. 901). We endorse that expression. However, chains of a family unit in this case have been forged between Mary Ann and her adoptive parents. They have been bound together for more than three years. Mary Ann knows no other parents or family. It does not require the wisdom of a King Solomon'to decide the real parents of this child nor to recognize the devastating trauma which will strike her if her family unit is broken. A family unit is forged through love and caring, one for the other. It does not arise merely from birth and blood. If that were the test, this case would never have arisen.

In Ex parte Nice, supra, the supreme court said:

“[A] mere change of mind cannot justify the rescission of a decision to place a child for adoption if the natural parents have given an informed, intelligent consent and all the procedural safeguards have been followed.”

It is our opinion that these conditions have been met; that the trial court correctly found as a fact that the mother consented and that the father with knowledge of the acts of the mother and the proceedings before the court, acquiesced therein and by his conduct waived his parental right to object to the adoption of his child. It is further our opinion that in regard for finality of judgment and in consideration of the best interest of Mary Ann, the motion 60(b) should be denied.

The second issue presented is that the trial court after Ex parte Nice, supra, denied discovery of information as to the adoptive parents, but permitted appearance of their attorney in the case. Shuttleworth also complains of the court receiving letters from counsel praising the adoptive parents. In response to this issue we note that the supreme court in Ex parte Nice, supra, expressly left discovery concerning the adoptive parents to the discretion of the trial court after specifically directing that the court’s first course was to determine whether the “unwed father had knowingly consented to adoption and whether the parents of the child had otherwise waived their rights to the child.” It is our conclusion that the trial court followed the mandate of the supreme court.

The trial judge did not solicit the letters received. He expressly stated he did not consider them and placed them in the court file. The only issue before the court did not involve the consideration of the respective merits of the natural parents and adoptive parents. This court considers that counsel for the adoptive parents properly had an interest in the case (Rule 24, A.R.Civ.P.) if only as amicus curiae. We find no error in allowing him to participate.

AFFIRMED.

BRADLEY and HOLMES, JJ., concur.


text:
    Roy Travis WILLIAMS, Jr. v. Elizabeth Ann (Williams) STUMPE.
    Civ. 3673.
    Court of Civil Appeals of Alabama.
    July 6, 1983.
    Rehearing Denied Aug. 10, 1983.
    Certiorari Denied Nov. 4, 1983 Alabama Supreme Court 82-1121.

      Bryce U. Graham, Tuscumbia, for appellant.
    Charles W. Cochran, III, of Keller, Cochran & Pitts, Florence, for appellee.
   WRIGHT, Presiding Judge.

Roy Williams, Jr. (Appellant) was divorced from Elizabeth Williams in 1975. He was ordered by that judgment to pay as child support the sum of $30 per week. He failed to make any of the weekly payments for nearly six years. After hearing on the petition of Elizabeth, Roy was determined to owe the delinquent sum of $9,130 by order of November 25, 1981. He was directed to pay a lump sum upon the delinquent amount and to reduce the remainder by weekly payments in addition to current support. He was not found in contempt at that time. He subsequently failed to comply. After another hearing the order of November 25,1981, was amended, removing the requirement of the payment of the lump sum. He was again ordered to reduce the delinquent sum by making additional weekly payments.

In February 1983, upon petition for rule nisi and after oral hearing, Roy was found in contempt for failure to pay according to the last order of the court. In order to purge his contempt, he was directed to pay the full delinquent amount of child support, medical bill and attorney fees in the sum of $8,843. He was committed to jail until payment in full.

He gave notice of appeal and filed a supersedeas bond in the amount of the delinquency.

The issue is contended in only one page of argument, without citation of authority or parts of the record relied on. The issue presented is that the court could not require the full payment of the delinquent child support as the purgative for his contempt, but could only require payment of sums delinquent from the last order of November 25, 1981.

Our initial impression in the case was to dismiss the appeal without comment because relief from a finding of contempt of court is not available by appeal. Review of a judgment for contempt is available only by extraordinary writ; habeas corpus if incarcerated, or certiorari if not incarcerated. Williamson v. Williamson, 391 So.2d 115 (Ala.Civ.App.1980); Ala. Digest, Contempt 66(1). However, this court has in some instances chosen to consider an appeal as a petition for writ of certiorari. Wilson v. Freeman, 376 So.2d 1096 (Ala.Civ.App.), cert. denied, 376 So.2d 1099 (Ala.1979). We choose to so consider this case.

Because of the failure of appellant to comply in any degree with Rule 28(a)(5), we might have proceeded under Rule 2(a)(2), A.R.A.P., to dismiss. We choose not to do that. We will respond to the issue stated by appellant.

There is no statutory limitation upon the power of a circuit court to compel obedience to its orders. The extent of punishment is a matter within the discretion of the court subject to review only for exces-siveness. Ex parte Griffith, 278 Ala. 344, 178 So.2d 169 (1965), cert. denied, 382 U.S. 988, 86 S.Ct. 548, 15 L.Ed.2d 475 (1966); Ex parte Hill, 229 Ala. 501, 158 So. 531 (1935). The record indicates that Williams had failed, since the initial decree of divorce rendered in 1975, to comply with the orders of the court. Though the trial court had attempted to secure obedience by adjustment and amendment, the delinquency mounted in spite of all efforts of the court. At last, patience of the court terminated in a finding of contumacious contempt. There was then authority in the court to order punishment of jail conditioned upon payment of all delinquency. We find the use of such power was not excessive as a matter of law.

The only defense to such conditional punishment is inability to comply with its condition — i.e., to pay. The burden to show inability to pay rests upon the contemnor. Ex parte Capps, 396 So.2d 70 (Ala.1981). We find no argument in appellant’s brief before the court as to such inability. In truth, the execution and acceptance of a supersedeas bond upon this appeal indicates to the contrary. Payment of the bond will serve to expurgate the contempt. Therefore the judgment is affirmed.

The appellee’s request for attorney’s fee on appeal is granted in the amount of $300.

AFFIRMED.

BRADLEY and HOLMES, JJ., concur.


text:
    Charles WILLIAMS and Clara S. Williams v. Marvin BURNETT and Marlin Burnett.
    Civ. 3595.
    Court of Civil Appeals of Alabama.
    July 13, 1983.
    Rehearing Denied Aug. 24, 1983.
    Certiorari Denied Nov. 4, 1983 Alabama Supreme Court 82-1213.

      J. Paul Whitehurst of Henley, Whitehurst & Shirley, Northport, for appellants.
    James J. Odom, Jr., Birmingham, for ap-pellees.
   WRIGHT, Presiding Judge.

This is an appeal from the circuit court’s denial of a motion for relief from judgment under Rule 60(b), A.R.Civ.P.

Prior to 1974, Mr. and Mrs. Williams were joint owners with W.K. and Brenda H. Dunham of a parcel of land in Bibb County, Alabama. In 1974 the Williamses and the Dunhams divided the property by executing deeds, each to the other, of half of the property. Contained in the deed to the Dunhams was a grant of a twenty-foot easement along the western boundary of the Williamses’ property, in order to give the Dunhams access to Highway 25. The deed from the Dunhams to the Williamses did not note any exception for the easement.

In December 1975, Mr. and Mrs. Williams entered into a contract to convey their portion of the property to appellees, Marvin and Marlin Burnett. Pursuant to the sales contract, a title insurance binder was procured from an attorney and agent for Mississippi Valley Title Insurance Company. The binder failed to note the twenty-foot easement; the deed to the property also contained no exception for the easement.

On August 23, 1979, the Dunhams filed suit in Bibb County Circuit Court against the Burnetts to enforce the easement which had been granted by the Williamses. The Burnetts answered the complaint and filed a third-party action against the Williamses alleging breach of warranty of title. The Williamses counterclaimed against the Bur-netts, asserting breach of an agreement relating to other rights and uses of the land.

Following a jury trial on the merits, judgment was entered on January 22, 1982, in the amount of $6,000, in favor of the Burnetts against-the Williamses, and in the amount of $9,000 in favor of the Williamses against the Burnetts. On June 30, 1982, the Williamses filed a motion for relief from judgment under Rule 60(b). Testimony was taken on the motion in open court on September 27, 1982.

The motion asked the court below to enter a satisfaction of the judgment rendered against the Williamses, either totally or in the amount of $5,000, on the grounds that the Burnetts’ damages were covered by a policy of title insurance which paid $5,000 to the Burnetts in settlement of claims under that policy before the beginning of the trial. The Williamses further alleged that payment by the title insurance company was not discovered and could not have been reasonably discovered by the Williamses prior to February 18, 1982.

Based on the record and testimony presented at the hearing on the motion, the circuit court denied the motion on the following grounds: (a) the Williamses knew or should have known of the payment by the title insurance company before the trial began; (b) the motion for relief from judgment came more than four months after the judgment was entered; (c) the motion for relief from judgment was not filed within a reasonable time. The Williamses appeal the court’s ruling.

The Williamses argue on appeal that the trial court erred in denying their motion under Rule 60(b)(5), A.R.Civ.P. The trial court has wide discretion when considering a motion for relief from judgment under Rule 60(b). Clark v. Clark, 356 So.2d 1208 (Ala.Civ.App.1978). “In exercising this discretion the court must balance the desire to remedy injustice against the need for finality of judgments. Consequently, the court may deny a Rule 60(b) motion where it finds that ... the moving party has not shown good cause for having failed to take appropriate action sooner....” Id. at 1211. The trial court’s discretion includes the determination of whether the motion has been filed within a reasonable time. Pittman v. Pittman, 397 So.2d 139 (Ala.Civ.App.), cert. denied, 397 So.2d 142 (Ala.1981).

In the present case, we cannot say the trial court abused its discretion. There was evidence before the court that the attorney for Mr. and Mrs. Williams knew of the settlement between Mississippi Valley Title Insurance Company and the Burnetts on the day of the trial. Appropriate pleading to claim any benefit from the settlement could have been filed at that time. More than four months passed between entry of final judgment and filing of the Rule 60(b) motion. The trial court found the further delay to be unreasonable. We affirm.

AFFIRMED.

BRADLEY and HOLMES, JJ., concur.


text:
    Gene B. DONALDSON v. STATE DEPARTMENT OF INDUSTRIAL RELATIONS.
    Civ. 3525.
    Court of Civil Appeals of Alabama.
    July 20, 1983.
    Rehearing Denied Aug. 24, 1983.
    Certiorari Denied Nov. 4, 1983 Alabama Supreme Court 82-1214.

      Alice L. Anderson, Enterprise, for appellant.
    George Cocoris, Gen. Counsel and Frank Marsh, Asst. Gen. Counsel, Montgomery, for appellee.
   EDWARD N. SCRUGGS, Retired Circuit Judge.

This is an unemployment compensation case.

Mr. Donaldson (the claimant) promptly applied for unemployment compensation benefits when his employment ceased with Enterprise State Junior College (the employer). A claims examiner for the Department of Industrial Relations (the department) determined on June 6, 1979, that the claimant was entitled to receive compensation. The employer was not mailed a copy of or notice of that determination until June 18, 1979. On June 19, 1979, the employer wrote to the benefits supervisor of the department that the claimant was self-employed. That letter was construed by the department to be an appeal from the determination of the claims examiner to an appeals referee. On October 7, 1979, after a prior hearing, the referee determined that the claimant was disqualified from receiving benefits in that he was then self-employed and had been since he filed his claim. Notice was provided at the bottom of the referee’s decision as follows: “THIS DECISION MAILED October 9, 1979 BECOMES FINAL UNLESS AN APPEAL IS RECEIVED AT THE LOCAL CLAIMS OFFICE OR AGENCY ADDRESS ABOVE BY October 24, 1979.” The claimant’s attorney gave notice of appeal by a letter dated October 29, 1979, which was received by the department on October 30, 1979. The Board of Appeals (the board) affirmed the decision of the referee on January 18, 1980, and the parties were given notice of the board’s opinion on the same date. No appeal to the circuit court was ever taken by anyone from the January 18,1980 determination of the board.

On June 26, 1980, the department sued the claimant to recoup the $1,440 which was paid to the claimant for unemployment benefits during the period while he was not entitled thereto because of his self-employment. The circuit court rendered judgment in favor of the department and against the claimant for the amount sued for. The claimant appeals. We affirm.

As his first issue, the claimant contends that the employer’s letter of June 19, 1979 was insufficient to constitute an appeal. The statute states that unless a party shall “within 15 calendar days after such notice was mailed to his last known address, file an appeal from such decision, such decision shall be deemed final.” § 25-4-91(e)(1), Code 1975 (Suppl.1983). Particularity in pleading is not required as to such appeals. This is just and fair because laymen, both employers and claimants, ordinarily represent themselves [at this stage in unemployment compensation proceedings]. It has been held that, in case of an appeal to the circuit court from a determination by the board, “[A]ll that need be stated is that the decision of the Board is incorrect under the facts or the law.” Department of Industrial Relations v. Jaco, 337 So.2d 374 (Ala.Civ.App.1976). That was true even though the statute for such appeals to the circuit court provides that the notice of appeal shall state the grounds upon which a review is sought. § 25-4-95, Code 1975. In the present controversy, the provisions of § 25-4-91(e)(l) simply require the filing of a timely appeal.

Here, the employer’s letter was directed to the department’s “Benefits Supervisor,” not to the fraud investigation section of the department. That letter stated that the employer had received notice of the determination that claimant was eligible to receive unemployment compensation and that “[I]t is our understanding that Mr. Donaldson owns and works at Wiregrass Art Center in Enterprise, Alabama.”

An individual is disqualified from receiving unemployment compensation benefits for any week in which he is self-employed and each week thereafter until he establishes that he is no longer self-employed. § 25-4-78(11), Code 1975 (Supp. 1983). Thus, the letter, in legal substance, stated that the claimant was then ineligible to receive such benefits and that the decision of the claims examiner was in error. An appeal can be duly taken under § 25-4-91(e)(1), supra, by simply identifying the claim, stating the party taking the appeal, writing the words “we appeal” thereon and timely filing it with the department. The method or procedure for taking an appeal under that code section is not detailed therein. The magic word “appeal” need not appear in such a writing, although, without it, an interpretation of the entire instrument must be made to determine the intent of the party in filing the document. Here the letter was more specific than statutorily required, for it stated the alleged reason for the claimant’s ineligibility. The letter was sufficient to “file an appeal” as is required by the applicable code section, and the employer’s appeal to the appeals referee was timely.

When the employer’s June 19, 1979, letter was finally offered into evidence by the department, the claimant’s objection was “and we object to it,” which was overruled by the trial court. Such was a general objection.

“It is generally recognized that a specific objection is a condition precedent to appellate review while a general objection is a waiver of appellate review. When the trial judge, for example, overrules a general objection, such action will be affirmed on appeal unless the matter objected to was patently illegal or irrelevant.”

C. Gamble, McElroy’s Alabama Evidence § 426.01(7) and (8) (3d ed. 1977). The claimant’s objection in the circuit court did not include hearsay as a ground, and hearsay cannot be asserted as a ground on appeal. Irwin v. State, 281 Ala. 163, 200 So.2d 465 (1967). The letter was neither illegal nor irrelevant. It was admissible.

We find no instance where any constitutional right of the claimant was violated by the department or by the unemployment compensation laws or the application thereof to the claim of the claimant.

The decision of the board became final by operation of law upon the expiration of the statutorily required time without an appeal. § 25-4-94, Code 1975 (Supp.1983). It then became a final decision as to his ineligibility to receive unemployment compensation benefits. The amount of benefits paid to the claimant during his period of ineligibility was due to be repaid to the department, and, upon his failure to do so, the department was authorized to institute the present civil action to collect the $1,440, which amount was admitted to be the amount of benefits paid to the claimant. Cargill v. State Department of Industrial Relations, 428 So.2d 62 (Ala.Civ.App.1982).

Other matters were argued on this appeal, but we find no error therein and we waive a consideration of those issues for they are not essential to a determination of this litigation in this court. The controlling questions have been written to and answered herein.

We affirm.

The foregoing opinion was prepared by retired Circuit Judge EDWARD N. SCRUGGS, serving on active duty status as a judge of this court under the provisions of § 12-18-10(e) of the Code of Alabama 1975, and this opinion is hereby adopted as that of this court.

AFFIRMED.

All the Judges concur.

      . Since there was no appeal from the January 18, 1980 decision of the board to the circuit court, the board’s determination became final by operation of § 25-4-94(d), Code 1975 (Supp.1983). Also, the decision of the appeals referee of October 7, 1979, possibly could have previously become final because of the claimant’s untimely appeal to the board. § 25-4-92(c), Code 1975. While we have responded to the claimant’s raised issue in this case, we do not expressly or impliedly decide whether a collateral attack may or may not be made as to determinations by claims examiners, appeals referees or the board of appeals which decision has become final by operation of the various code sections governing such matters.