author: DOMENGEAUX, Judge. GUIDRY, Judge,

text:
    STATE of Louisiana, DEPARTMENT OF TRANSPORTATION AND DEVELOPMENT, Plaintiff-Appellant, v. Larry G. TAYLOR, et al., Defendants-Appellees.
    No. 83-1096.
    Court of Appeal of Louisiana, Third Circuit.
    Jan. 15, 1985.
    Writ Denied March 15, 1985.
    Bryan Miller, Baton Rouge, for plaintiff-appellant.
    Thomas, Dunahoe & Gregory, Edwin Du-nahoe, Natchitoches, for defendants-appel-lees.
    Before DOMENGEAUX, GUIDRY, FOR-ET, DOUCET and KNOLL, JJ.
   DOMENGEAUX, Judge.

The questions involved on this appeal concern just compensation to which appel-lees are entitled by reason of expropriation. The property in question is located in Natchitoches Parish and was expropriated in fee by the State of Louisiana for the purpose of constructing a portion of Interstate 1-49, commonly referred to as the North-South Road. The minerals underlying the tract of land taken were reserved to the defendants. Plaintiff filed suit on October 27, 1982, taking 49.932 acres and deposited the sum of $97,400.00, into the registry of the court, stating iii its petition that of this sum $71,751.00 was for the value of land taken and improvements and $25,649.00 was for severance damages. Subsequent thereto, defendants withdrew the amount of money deposited, reserving their right to seek more compensation.

After trial, the lower court held that the value of the tract of land expropriated was $74,256.40. Additionally the trial court held that because of the construction of the highway, defendant’s remaining property, some 224.225 acres, became landlocked. The court held the value of this property before the taking to be $325,135.76 with a residual value afterwards of $22,422.50 (or $100.00 per acre). This resulted in a severance damage award of $302,713.26. Additionally, the trial court awarded the defendants $137,020.00 for fill dirt which the State plans to excavate from one high portion of the expropriated land and relocate it to fill the embankment at a lower area. This resulted in a total award to the defendants of $513,989.66. The State was given credit for the amount deposited, generating a net award of $416,589.66. The court also awarded the plaintiff 25% of the excess award as attorney’s fees and granted interest on all sums from the date of judicial demand.

From that judgment plaintiff has perfected this appeal claiming the trial court committed reversible error in the following respects:

1. In awarding severance damages in excess of the amount proven by defendants.

2. In making an award to the defendants for the value of the fill dirt.

3. In allowing the award of attorney’s fees to bear interest.

THE SEVERANCE DAMAGE AWARD

The general law involved here is simply that the ., owner is entitled to the market value of his land at the time of the expropriation, and market value is what a willing purchaser will pay a willing seller under ordinary circumstances. An owner is also entitled to resulting or severance damage to the remaining property when only part is taken and damage results thereby to that remainder. In the latter case the measure of compensation is the dimunition in the value of the remaining property for sale or rental, determined by arriving at the value immediately before and after the expropriation. There is no disagreement between the parties as to the value of the land actually taken. However, there is a wide divergence of opinion as to the value of the alleged landlocked 224.225 acres lying north of the proposed Interstate.

At trial, the defendants presented two expert witnesses, Mr. R. Stacy Williams and Mr. Barry Guillet, both of whom concluded that as a result of the taking herein, the 224.225 acres remaining north of the Interstate were landlocked and as such their values were significantly reduced. Mr. Williams and Mr. Guillet testified that the primary reason for the severance damage was the lack of accessibility. Mr. Williams concluded that, in his opinion, the land had practically no residual value, i.e., $100.00 per acre, with the only value being that for speculative oil and gas leasing purposes. Mr. Guillet placed a slightly higher residual value on the property, i.e., $400.00 per acre, basing his conclusion on the possibility of a sale to one of the adjoining landowners.

In support of its defense of the position that the deposit of $25,649.00 as compensation for damages represented a just estimate of the severance damages, the State called Mr. James C. McNéw and Mr. R.J. Fulco, expert fee appraisers. Both considered that if indeed the north remainder was landlocked, it contained 144 acres of timberland and about 80.225 acres of farmland, for a total of 224.225 acres.

Both appraisers studied comparable sales of landlocked property and concluded that of the allegedly landlocked property, the value of the timberland thereon would not be reduced but that the value of the crop land would be reduced by 20%. The explanation given for the difference in the value reduction was that extremely long intervals exists where no access is needed to harvest timber, as contrasted to the frequent need of access to harvest crops.

It has long been recognized that loss of access is a critical factor in the evaluation of damage to property which is caused by a partial taking. State, through Department of Highways v. O’Neal, 149 So.2d 421 (La.App. 3rd Cir.1963); and Cucurullo v. City of New Orleans, 86 So.2d 103 (La.1966).

Likewise it is well settled that severance damages must be shown to a reasonable certainty and must not be too remote or speculative for the mere possibility of severance damages is an insufficient basis for an award. City of Alexandria v. Jones, 108 So.2d 528 (La.1959).

We find that defendants have failed to prove the severance damages to a reasonable certainty; rather the evidence in the record is too speculative to support the award. For as pointed out in the trial judge’s opinion “The probability exists that the defendants could obtain accessibility to this property.”

The property in question is bounded on one side by the Interstate from which accessibility unquestionably cannot be obtained. However, opposite the Interstate boundary is the Missouri-Pacific Railroad. The other two sides are bounded by private landowners. The Bienvenus are on one side and there is a Mr. Deville on the other side. Defendants allege that “the record herein contains no evidence indicating the Bienvenus willingness to grant a way of passage.” In reality, the record does not indicate what their intentions would be one way or the other. The record is simply devoid as to any efforts being made to secure a right of way across the Bienvenu property. As to the railroad, the record only establishes that a right of way across the railroad would be “distasteful”. There is some evidence that, as according to defendant, Mr. Deville is “more likely than not” going to give gratuitous permission to cross his land. Further, there is some estimate as to the cost of building a road across Mr. Deville’s land. But the evidence when viewed as a whole is simply not adequate to support the trial judge’s determination of severance damages, i.e., that the residual value of the property is only $100.00 an acre.

We shall therefore remand this issue to the trial court to conduct further proceedings to determine the possibility of gaining access across the Deville property, the Bienvenu property, or the railroad property. This inquiry is to include all facets of securing rights of passage, whether by agreement or by legal process and the cost involved in either case, including the type of road to which the landowner may be entitled and the cost thereof. After these proceedings the trial judge will be in a better position to consider severance damages, and to assess realistic damages, if due.

THE FILL DIRT

Entirely without merit is the landowner’s contention that the State would be unjustly enriched if we failed to affirm the trial court’s award for the “top soil” of the land taken. Also without merit is their argument that, “there is absolutely no way the landowner can be compensated to the full extent of his loss if the award for the fill dirt deposit is not affirmed.”

It should be noted that the record fails to show that the soil to be excavated was anything more than dirt. The “fill dirt” was simply the soil which covers the entire region. As the claimant’s own witnesses responded about hills of such soil in the area, “they’re hills, just hills ...” This was entirely unlike the true mineral deposit of sand in the case of Lafayette Airport Commission v. Roy, 265 So.2d 459 (La.App. 3rd Cir.1972), upon which defendants placed much reliance. In that case it was found that the quality of the sand “was unique in the area within 75 miles of Lafayette and the expropriated sand mine enjoyed a virtual monopoly on the market — a situation unparalleled elsewhere in Louisiana.” However, it is more important to note that, for a proper compensation of the landowner, it js precisely “the full extent of his loss”, and not the extent of any gain enjoyed by the State which is the relevant issue. State of Louisiana, through the Department of Highways v. Haywood, 150 So.2d 6 (La.1963). The case of State v. Bitterwolf, 415 So.2d 196 (La.1982), has made it clear that it is only “the landowner’s loss” which determines the extent of his compensation. Here the full extent of the claimant’s loss, as to the property expropriated, was the market value of the part taken. Both parties agree that the market value of the property taken was $74,256.40. That award includes the value of this simple dirt. There is no additional loss to plaintiff beyond the value of the amount awarded for the land expropriated.

THE ATTORNEY FEES

The statutory authority for awarding attorney fees is La.R.S. 48:453(E). It states:

“Reasonable attorney fees may be awarded by the court if the amount of the compensation deposited in the registry of the court is less than the amount of compensation awarded in the judgment. Such attorney fees in no event shall exceed 25% of the difference between the award and the amount deposited in the registry of the court.” (Emphasis added).

The State’s contention that the attorney fees should not bear interest is well founded. La.R.S. 48:453 E speaks of attorney fees being awarded based on the difference between “the judgment” and the amount deposited into the registry of the court. Section 453 E presupposes that a “judgment” is already in existence at the time attorney fees are assessed, for if no judgment existed prior to the award of attorney fees, the statutory formula for arriving at attorney fees could never be employed. Thus the fees cannot form a part of the judgment insofar as interest thereon is concerned. The use of the word judgment in Section 453 E can only refer to the trial court’s determination of the value of the compensation awarded for the land taken, the severance damages, and any other proper damages.

These damages constitute what is meant by the use of the word judgment in Section 453 E with attorney fees being an accessory award and in fact being determined based upon the existence of “a judgment”. Attorney fees are thus not part of the Section 453 judgment. Thus Section 455 authorizing interest on the judgment is not authorization for awarding interest on the attorney fees. Additionally it has been repeatedly held that the State is not responsible for interest unless mandated by express statute or stipulation. Makofsky v. Department of Highways, 205 La. 1029, 18 So.2d 605 (La.1944); Jefferson Lake Sulphur Company, Inc. v. State, 34 So.2d 331 (La.1947). There is no specific authority to assess interest against the State in this case — and we cannot create it. We are thus constrained to reverse that part of the judgment which awarded interest on the attorney fees.

For the above and foregoing reasons the portion of the trial court’s judgment which awarded the sum of $74,256.40 for the land taken is affirmed. The portions of the judgment which awarded $137,020.00 for fill dirt and $302,713.26 as severance damages are reversed. The portion of the judgment which awarded 25% attorney fees on the net award of $416,589.66 is also reversed. The case is remanded to the trial judge to consider all facets of securing rights of passage, whether by agreement or by legal process, and the cost involved in either case, including the type of road to which the landowner may be entitled and the cost thereof. After these proceedings the trial judge will consider severance damages and assess a realistic figure, if any damages are due. The trial judge shall also consider whether a new award of attorney fees, is proper under La.R.S. 48:453(E) and set that amount accordingly.

AFFIRMED IN PART, REVERSED IN PART, AND REMANDED.

GUIDRY, J., dissents and assigns reasons.

GUIDRY, Judge,

dissenting.

I respectfully disagree with my brethren of the majority in their decision to remand this matter to the trial court for further proceedings on the issue of severance damages. I also disagree with the majority’s determination that the défendants are not entitled to judicial interest on the attorney fees awarded pursuant to the provisions of La.R.S. 48:453(E). In other respects, I agree with the opinion of the majority, i.e., the award of $74,256.40 for the land taken and disallowance of the award for fill dirt removed by the State following expropriation.

REMAND

Although it is settled that, where the interest of justice requires, a cause may be remanded for further proceedings (La.C.C.P. Art. 2164), in my view, this authority should be exercised sparingly. In the instant case, both parties had full opportunity to present evidence on the issue of severance damages. Although I agree that the evidence in the record as to severance damages is somewhat speculative, there is jurisprudential precedent for the award made by the trial court. In this connection, the following excerpt from EMINENT DOMAIN IN LOUISIANA by Professor Melvin G. Dakin is particularly pertinent (at page 118 et seq.):

1. Loss of Access to Public Roads.
a. Total Loss of Access. When an expropriation of part of a tract deprives the subject property of all opportunity for egress and ingress via public roads, the deprivation is compensable within the constitutional provisions. One court allowed the same amount per acre for land isolated as it had for land which was subject to a taking in part. While the courts agree as to this general principle of compensability for total loss of access to public roads, they are less uniformly agreed as to the appropriate measure of the damage and thus compensation.
Some courts have used the diminution in the market value of the, property resulting from the loss of access as both the proof of the injury and the measure of compensation. Thus, when a taking leaves no road or outlet of any sort, thereby reducing the tract to merely nominal value, full market value may be awarded for the injury to the property. Yet, in one case, where a complete loss of access totally destroyed the value of the property remaining after the taking, it was held that the award of compensation should be measured by the cost of constructing the facilities necessary to provide some form of ingress and egress for the remaining 25 acres plus the diminution in value of such property, the total of which resulted in a dollar award greater than the value of the entire property prior to the expropriation. In another case the cost of facilities (a ramp and bridge) deemed necessary in order to remedy the inaccessibility of a tract separated from the highway by a 100-foot-wide ditch was termed “prohibitive”; instead, the court simply awarded the landowner a sum equal to 50 per cent of the original market value of the tract. Yet, in another case, where the cost of purchasing a right of way and building an access road would have been greater than the ensuing increase in the value of the affected parcel, the court found the remedy unfeasible and employed a rule requiring compensation not less in amount than the diminution in market value resulting from the loss of access.

In my opinion, the parties have had their day in court, and we should decide this case on the basis of the record before us on appeal.

INTEREST ON ATTORNEY FEES

My brethren of the majority conclude that defendants are not entitled to interest on the award of attorney fees granted pursuant to the provisions of La.R.S. 48:458(E). I disagree.

La.R.S. 48:453 sets forth with particularity the measure of compensation due to a defendant in an expropriation case. Subsection E of Section 453 provides that “(R)easonable attorney fees may be awarded by the court if the amount of the compensation deposited in the registry of the court is less than the amount of compensation awarded in the judgment ... ”. Therefore, as part of the overall judgment, the trial court, in its discretion, may award attorney fees. La.R.S. 48:455 specifically provides that the judgment rendered therein “... shall include, as part of the just compensation awarded, legal interest on the amount finally awarded as of the date title vests in the plaintiff to the date of payment ...”. In my view, the attorney fees awarded pursuant to Section 453, as part of the just compensation to which defendant is entitled, forms part of the judgment which is subject to the payment of interest under Section 455.

For the above reasons, I respectfully dissent.

        State v. Norris, 160 So.2d 255 (La.Ct.App.1964); State v. Lumpkin, 158 So.2d 437 (La.Ct.App.1963), on rehearing, amending 147 So.2d 80 (La.Ct.App.1962); State v. Brooks, 152 So.2d 637 (La.Ct.App.1963); State v. Williams, 131 So.2d 600 (La.Ct.App.1961); Louisiana Highway

        Comm’n v. Watkins, 172 So. 185 (La.Ct.App.1937).

        Louisiana Power & Light Co. v. Mosley, 18 So.2d 210 (La.Ct.App.1944).

        In State v. Treat, 163 So.2d 578 (La.Ct.App.1964), total deprivation of access was held to have diminished property’s value by two thirds and, in State v. Brooks, 152 So.2d 637 (La.Ct.App.1963), the court attributed only nominal value to the remaining inaccessible land. Total loss of access was held to have completely diminished the value of property in State v. Gifford-Hill & Co., 158 So.2d 448 (La.Ct.App.1963); State v. Madden, 139 So.2d 21 (La.Ct.App.1962); and Louisiana Highway Comm’n v. Watkins, 172 So. 185 (La.Ct.App.1937).

        State v. Lumpkin, 158 So.2d 437 (La.Ct.App.1963), on rehearing, amending 147 So.2d 80 (La.Ct.App.1962).

        State v. Norris, 160 So.2d 255 (La.Ct.App.1964).

        State v. Shelton, 192 So.2d 161 (La.Ct.App.1966).


source: Caselaw Access Project

author: WALKER, Presiding Justice,

license: Public Domain

text:
    Sandra Simmons JOHNSON v. STATE of Mississippi.
    No. 55315.
    Supreme Court of Mississippi.
    Dec. 19, 1984.

      Donny Meeks, Gulfport, for appellant.
    Edwin Lloyd Pittman, Atty. Gen. by Charles W. Maris, Jr., Sp. Asst. Atty. Gen., Jackson, for appellee.
    Before WALKER, P.J., and BOWLING and PRATHER, JJ.
   WALKER, Presiding Justice,

for the Court:

Sandra Simmons Johnson was convicted in Pearl River County Circuit Court of selling a Schedule I controlled substance under Mississippi Code Annotated section 41-29-113(c)(16). She was sentenced to serve a term of ten years in the custody of the Mississippi Department of Corrections.

Larry E. Taplin, a police officer with the New Orleans police department, was on special assignment with the Picayune Police Department as an undercover narcotics agent. He and another officer were attempting to buy marijuana but were unsuccessful. He approached the appellant who asked them if they wanted to buy some “T”. “T” is another name used for POP or phencyclidine. Officer Taplin purchased two “bags” or tinfoil packets for twenty dollars from appellant.

Appellant testified that she sold the drug to Larry Taplin. She said that she was given the packets by Jessie Williams in New Orleans. She said that she knew it was something that would make a person “high” but that she did not know it was an illegal drug.

On appeal appellant assigns that seven errors were committed by the lower court.

(1) THE TRIAL COURT COMMITTED REVERSIBLE ERROR IN REFUSING TO SUSTAIN APPELLANT’S MOTION FOR DISCOVERY TO INSPECT AND TEST THE AL- ■ LEGED CONTROLLED SUBSTANCE

In the record there is a motion styled “MOTION FOR DISCOVERY OF SANDRA SIMMONS JOHNSON” which reads in part:

12.

Defendant moves for the disclosure of, and to inspect, examine and test any photographs, books, papers, documents and other tangible objects that were obtained from defendant or defendant’s property or that allegedly belonged to defendant.

There is nothing further in the record to indicate what transpired. There is no indication that the trial court refused to sustain appellant’s motion. It is the responsibility of the movant to obtain a ruling from the court on motions filed by her and failure to do so constitutes a waiver. Martin v. State, 354 So.2d 1114 (Miss.1978); Conn v. State, 260 So.2d 471 (Miss.1972); Marr v. State, 248 Miss. 281, 159 So.2d 167 (1963); Grant v. Planter’s Bank, 5 Miss. (4 How.) 326 (1840). See Minor v. State, 396 So.2d 1031 (Miss.1981).

Further, the record shows that appellant did not object to the testimony concerning the alleged controlled substance or the admission of the substance into evidence. Appellant’s motion for a new trial further does not raise this question.

There is no merit to appellant’s assignment of error.

(2) THE TRIAL COURT COMMITTED REVERSIBLE ERROR IN PROCEEDING WITH TRIAL, ENTRY OF FINAL JUDGMENT AND SENTENCING OF APPELLANT FOLLOWING REMOVAL TO FEDERAL COURT

Appellant filed a Petition for Removal of her case to the United States District Court for the Southern District of Mississippi pursuant to 28 U.S.C. § 1443. On the date of trial the State and appellant announced ready for trial and voir dire of the jury began at 10:00 a.m. The Petition for Removal was received at 1:15 p.m. by the clerk of the Circuit Court of Pearl River County. After the jury found the appellant guilty and the appellant was sentenced, the trial judge directed the clerk “to withhold the entry of the order of conviction on the minutes of this Court until final disposition has been made by the Federal Court on said alledged [sic] Petition of Removal.”

28 U.S.C. § 1446(c)(1) as amended provides:

A petition for removal of a criminal prosecution shall be filed not later than thirty days after the arraignment in the State court, or at any time before trial, whichever is earlier, except that for good cause shown the United States district court may enter an order granting the petitioner leave to file the petition at a later time.

In United States ex rel. Walker v. Gunn, 511 F.2d 1024, 1027 (9th Cir.1975) the Court held that the phrase “before trial” means “before proceedings for em-panelling the jury” and a removal petition filed after a number of jurors had been selected was untimely.

The record indicates that the petition was filed and notice to the Pearl River County Circuit Clerk was given after appellant’s trial began. Even if the removal is considered timely for the sake of argument, 28 U.S.C. § 1446(c)(3) states the following:

The filing of a petition for removal of a criminal prosecution shall not prevent the State court in which such prosecution is pending from proceeding further, except that a judgment of conviction shall not be entered unless the petition is first denied.
This was done in this case.

Therefore, there is no merit to appellant’s assignment of error.

(3) THE TRIAL COURT COMMITTED REVERSIBLE ERROR IN ALLOWING OVER OBJECTION, STATE WITNESSES TO TESTIFY ABOUT THE USE AND EFFECTS OF PHEN-CYCLIDINE AND WHY PHENCY-CLIDINE IS A SCHEDULE I CONTROLLED SUBSTANCE

Larry Taplin, the undercover narcotics agent who purchased the phencyclidine, testified on redirect that if he had sniffed the phencyclidine he would “get the effect of the drug; I would get high.” Taplin’s testimony was a followup on appellant’s cross-examination in which she had asked if Taplin had sniffed or tasted the drug to determine what it was. The trial judge overruled appellant’s objection and allowed Taplin to explain his action in not sniffing the drug.

On direct examination Jim Miles of the Mississippi Crime Laboratory was allowed to testify as follows:

Q. Do you know what schedule Phency-clidine is?

A. Yes, sir, I believe it is a Schedule I controlled substance.

Q. And what type substances are categorized as Scheduled I controlled substances?

A. Schedule I controlled substances are drugs which have no proven medical value and that they also exhibit a high abuse potential.

Q. All right, sir, could you categorize this drug as an upper or downer or a hallucinogenic?

A. This Phencyclidine would be categorized as a hallucinogenic.

Q. And would you explain what that is to the jury, please?

A. A hallucinogenic would be described as a drug or substance which would produce hallucinations.

Q. All right, sir.

The record does not indicate that any objection was raised to this testimony. Consequently, any objection is deemed to have been waived and is not properly before this Court on appeal.

In Burns v. State, 438 So.2d 1347 (Miss.1983) the appellant argued that “the court erred in allowing the State’s expert from the Mississippi Crime Laboratory to testify as to the reason for marijuana being classed as a Schedule I Controlled Substance.” The Court agreed and went on to say:

The reason for the marijuana being classified as a Schedule I Controlled Substance by the legislature was not relevant on the question of the guilt or innocence of appellant. We hold that it was error to permit the testimony, but in this case it was harmless. However, in a close case on facts such testimony might be prejudicial and inflammatory, and the state should refrain from introducing such testimony.

438 So.2d 1351.

In view of appellant’s own testimony and the evidence presented by the State, this case cannot be considered as a close case on the facts. Even if this issue had been properly preserved for appeal it was harmless error.

(4) THE TRIAL COURT COMMITTED REVERSIBLE ERROR BY MAKING EX PARTE CONTACTS WITH THE DISTRICT ATTORNEY AND ATTORNEY GENERAL CONCERNING PROCEDURAL MATTERS RAISED BY THE APPELLANT AND BY REFUSING TO MAKE A RECORD OF APPELLANT’S OBJECTIONS TO THE EX PARTE CONTACTS

Prior to trial, appellant’s attorney informed the trial judge that the case had been removed to federal court under the provisions of 28 U.S.C. 1443. The trial judge contacted various State and Federal officials. According to appellant’s brief the purpose was “to ascertain whether the case should proceed to trial at that time or be continued pending the action of the Federal Court.”

Based on the record in this case, the action of the trial judge was proper. When informed that the case had been removed to federal court, the judge checked to see if removal had actually occurred. When he determined that no removal had occurred prior to the trial beginning, he had been assured that his 'court retained jurisdiction and he could proceed with the trial.

(5) THE TRIAL COURT COMMITTED REVERSIBLE ERROR BY PROCEEDING TO SENTENCE APPELLANT WITHOUT ALLOWING APPELLANT OR APPELLANT’S COUNSEL ANY OPPORTUNITY TO REQUEST ALLOCUTION IN MITIGATION OF APPELLANT’S SENTENCE

In Berry v. State, 288 So.2d 457, 460 (Miss.1974) this Court held:

If allocution is considered to be a right in felony cases, it must be considered as having been waived in the complete absence of any action on the part of the accused to indicate a desire to exercise it.

See Myers v. State, 254 So.2d 891 (Miss.1971).

The record does not indicate that Johnson or her attorney made any attempt to request to make a statement prior to sentencing. Thus under the holding in Berry the right is considered waived.

Appellant cites United States v. Sparrow, 673 F.2d 862 (5th Cir.1982) in which the federal court took the position that “the failure of the sentencing judge to afford a defendant his ‘absolute right’ of allocution is error, requiring reversal for resentencing.” 673 F.2d 865. While such may be the state of federal ease law it is not the current law in Mississippi. There is no absolute right of allocution under criminal practice in Mississippi.

It can also be noted that in imposing sentence the trial judge took into consideration appellant’s age, lack of prior criminal record, family situation and other aspects of the case.

(6) THE TRIAL COURT COMMITTED REVERSIBLE ERROR BY FAILING TO SENTENCE APPELLANT IN ACCORDANCE WITH SECTION 41-29-150 OF THE MISSISSIPPI CODE, AND IN OVERRULING APPELLANT’S PETITION FOR PARTICIPATION IN A COMMUNITY SERVICE RESTITUTION PROGRAM PURSUANT TO SECTIONS 99-20-1 ET SEQ. OF THE MISSISSIPPI COMMUNITY RESTITUTION ACT

Appellant was sentenced pursuant to Mississippi Code Annotated section 41-29-139(b)(l). The maximum sentence which can be imposed is thirty years imprisonment and a fine of one million dollars ($1,000,000.00). Appellant’s sentence of ten years imprisonment was well within the statutory limits. This Court has repeatedly held that a trial court will not be held in error or held to have abused discretion if the sentence imposed is within the limits fixed by statute. Contreras v. State, 445 So.2d 543 (Miss.1984); Boyington v. State, 389 So.2d 485 (Miss.1980); Boone v. State, 291 So.2d 182 (Miss.1974); Russell v. State, 220 So.2d 334 (Miss.1969).

Appellant argues that she should have been sentenced under Mississippi Code Annotated sections 41-29-149 and 41-29-150. These sections indicate that their use is within the discretion of the trial judge. Section (d) of 41-29-150 applies to persons convicted under section 41-29-139(b)(l) as was appellant here. There is no indication that the trial judge abused his discretion in not applying these statutes.

In Milstid v. State, 347 So.2d 1319 (Miss.1977), cited by appellant, this Court remanded the case for imposition of the proper sentence. In that case an 18-year-old defendant with no previous record of conviction of drug related offenses should have been sentenced under Mississippi Code Annotated sections 41-29-149 and 41-29-150 (Supp.1976). The attorney general conceded that these sections were applicable at that time. As pointed out by the State in this case, the statute has been subsequently amended and section 41-29-150(c) and 41-29-150(d) do not apply to the appellant here. Appellant’s reliance on Milstid is misplaced.

Although appellant assigns as error the trial court’s action in overruling appellant’s petition for participation in a community service restitution program pursuant to sections 99-20-1 et seq. of the Mississippi Community Restitution Act, this point is not argued by appellant. The statutes provide an alternative method of punishment which may be imposed at the request of a department of corrections representative upon review and determination that the eligibility requirements of Mississippi Code Annotated section 99-20-5 have been met and with notification of the district attorney and defense attorney. As noted in Mississippi Code Annotated section 99-20-9 the court is not bound by the recommendations.

Appellant’s assignment of error is without merit.

(7) THE TRIAL COURT COMMITTED REVERSIBLE ERROR IN REFUSING TO DIRECT A VERDICT OF ACQUITTAL AND OVERRULING APPELLANT’S MOTION FOR JUDGMENT NOTWITHSTANDING THE VERDICT, OR, ALTERNATIVELY, MOTION FOR NEW TRIAL ON THE GROUND THAT THERE WAS NOT PROOF THAT APPELLANT KNOWINGLY SOLD A CONTROLLED SUBSTANCE

Mississippi Code Annotated section 41-29-139(a) (Supp.1983) provides that “it is unlawful for any person knowingly and intentionally” to sell a controlled substance. (Emphasis added). Appellant contends that there was no proof that she “knew” the substance she sold was a controlled substance.

The evidence shows that when approached by Officer Taplin to buy some marijuana that appellant Johnson offered to sell him some “T”. Taplin was told to go to the next block and wait. Johnson did not want to make the sale in front of her trailer. After arriving at the arranged meeting place, appellant asked how many bags of “T” Taplin wanted. Taplin told her he wanted two. The price was agreed on as ten dollars ($10.00) a bag. According to Taplin, appellant opened the tinfoil containing the bags and took two out of the thirty or more bags. The two packets were exchanged for twenty dollars.

Appellant testified in her own behalf that a man named Jessie Williams had given her two packages but did not tell her that they contained illegal drugs. He told her that “this is something you can make a little change off of.” She testified that she knew that these drugs were something that would make a person high. She said that she knew there were drugs and that she sold them.

Appellant cites Hydrick v. State, 246 Miss. 448, 150 So.2d 423 (1963) which states the general rule as follows:

Where a crime consists of an act, combined with a specific intent, the intent is just as much an element of the crime as the act. In such cases, mere general malice or criminal intent is insufficient, and the requisite, specific intent must be shown as a matter of fact, either by direct or circumstantial evidence. See 22 C.J.S., Criminal Law, Sec. 32, p. 117; Simpson v. State, 81 Fla. 292, 87 So. 920 (1921).

While there is no direct proof that appellant knew that the substance she sold was illegal, there is evidence that she knew the effects of the drug and that sale of the drugs was profitable. She had also wanted to make the exchange away from her home. Rarely can knowledge be proved by direct evidence. There was sufficient evidence here from which the jury could reasonably infer the requisite knowledge and intent.

As stated in Lee v. State, 244 Miss. 813, 819, 146 So.2d 736, 738 (1962);

However, criminal intent of a defendant, dwelling in his mind, invisible to the outward sight, can never be proven by direct testimony of a third person, (except when verbally expressed or admitted), and it need not be, because a person is presumed to intend that which he does, or which is the natural and necessary consequence of his act. Jeff v. The State, 39 Miss. 593; Barcus v. The State, 49 Miss. 17. Moreover, the court and the jury are not bound by the evidence of the accused as to what his intention was in the doing of a particular act. 23 C.J.S., Criminal Law, Sec. 919, p. 641; Matthews v. State, 243 Miss. 568, 139 So.2d 386; Woodward v. State, 180 Miss. 571, 177 So. 531, 178 So. 469.
We are of the opinion that the question — as to whether or not the acts of defendant, established beyond a reasonable doubt, the “criminal intent” of defendant to obtain the home of the Isaacs by false pretense — was a factual one for the jury and that it was properly submitted to them for their determination. We also believe that there is sufficient evidence in the record on which the jury could have reasonably based a verdict of guilty. 22 Am.Jur., False Pretenses, Sec. 19, p. 455.

See Shanklin v. State, 290 So.2d 625 (Miss.1974); Applegate v. State, 301 So.2d 853 (Miss.1974). See also Martin v. State, 413 So.2d 730 (Miss.1982).

This case was properly submitted to the jury for their determination. There was ample evidence to support their verdict.

The judgment and sentence of the lower court are affirmed.

AFFIRMED.

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


text:
    Ricky Lee THOMPSON v. STATE of Mississippi.
    No. 55386.
    Supreme Court of Mississippi.
    Jan. 16, 1985.
    Robert Thomas, Alford, Thomas & Kil-gore, Philadelphia, for appellant.
    Edwin Lloyd Pittman, Atty. Gen. by Anita Mathews Stamps, Sp. Asst. Atty. Gen., Jackson, for appellee.
   Appeal from Circuit Court, Neshoba County; Marcus D. Gordon, Judge.

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

AFFIRMED.


text:
    AMCO CONSTRUCTION COMPANY, INC. v. JACKSON MUNICIPAL AIRPORT AUTHORITY.
    No. 54543.
    Supreme Court of Mississippi.
    Jan. 16, 1985.
    Richard C. Bradley, III, David L. Reynolds, Reynolds, Anderson & Bradley, Jackson, for appellant.
    Robert E. Perry, Perry, Morrison & Smith, Tommy E. Furby, Low & Furby, Jackson, for appellee.
   Appeal from Circuit Court, Hinds County; Charles T. Barber, Judge.

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

AFFIRMED.


text:
    Mauveline G. McCALL v. William Robert McCALL.
    No. 55340.
    Supreme Court of Mississippi.
    Jan. 16, 1985.
    John C. Ross, Jr., Smith, Ross & Trapp, Corinth, for appellant.
    Robert W. Elliott, Smith, Elliott, Fortier & Permenter, Marion D. Roten, Pegram & Roten, Ripley, for appellee.
   Appeal from Chancery Court, Tippah County; Anthony T. Farese, Chancellor.

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

Affirmed.


text:
    George KING, Jr. v. STATE of Mississippi.
    No. 55363.
    Supreme Court of Mississippi.
    Jan. 16, 1985.
    Thomas Kesler, Sams & Kesler, Columbus, for appellant.
    Edwin Lloyd Pittman, Atty. Gen. by Marvin L. White, Jr., Sp. Asst. Atty. Gen., Jackson, for appellee.
   Appeal from Circuit Court, Lowndes County; Harvey S. Buck, Judge.

Before PATTERSON, C.J., and PRATHER and SULLIVAN, JJ.

Affirmed.


author: PER CURIAM.

text:
    Ex parte Charles Edward JOHNSON. (Re: Ex parte Charles E. JOHNSON. In re STATE of Alabama v. Charles E. JOHNSON-Petition for Writ of Mandamus).
    83-1073.
    Supreme Court of Alabama.
    Aug. 31, 1984.
    Thomas W. Harmon, Anniston, for petitioner.
    Charles A. Graddick, Atty. Gen., for respondent.
   PER CURIAM.

Because of Petitioner’s failure to comply with A.R.A.P. 39(k) in his application for rehearing in this “no opinion” case before the Court of Criminal Appeals, the petition presents nothing for our review. Petition for writ of certiorari, 453 So.2d 8, reh. den. 456 So.2d 1170, is denied.

WRIT DENIED.

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


author: MADDOX, Justice. MADDOX, Justice.

text:
    Gary B. WRIGHT, Audrey J. Wright, Jerry D. Cornelius, Betty J. Cornelius, et al. v. CYPRESS SHORES DEVELOPMENT CO., INC., Norman H. Clark, Kenneth R. Giddens, et al. CYPRESS SHORES DEVELOPMENT CO., INC., Kenneth R. Giddens, Arthur Tonsmeire, Jr., and William Lyon v. Gary B. WRIGHT, Audrey J. Wright, Jerry D. Cornelius, Betty J. Cornelius, Kenner Rodgers, and Stella Rodgers. Norman H. CLARK v. Gary B. WRIGHT, et al.
    83-237, 83-487 and 83-488.
    Supreme Court of Alabama.
    Sept. 21, 1984.
    On Rehearing Dec. 21, 1984.

      Thomas A. Deas, Mobile, for appellants/ cross-appellees.
    William M. Lyon, Jr. of McFadden, Riley & Parker, Mobile, for appellees/cross-ap-pellants Cypress Shores Development Co., Inc., William M. Lyon, Kenneth R. Giddens and Arthur Tonsmeire, Jr.
   MADDOX, Justice.

These cases are before us for the second time. They were last before us in Wright v. Cypress Shores Development Co., 413 So.2d 1115 (Ala.1982). There are several issues raised by these appellants and cross-appellants. The appellants raise two issues: first, whether the trial court erred in failing to carry out the mandate of this court in the first appeal to compel enforcement of restrictive covenants, which prevented the building of a convenience store in a residential subdivision; and second, whether the trial court erred in failing to award attorneys’ fees to the successful plaintiffs.

The appellees/cross-appellants also raise two issues: one, whether the appellants failed to timely appeal from the trial court’s order of April 26, 1983, and two, whether the trial court could award damages and costs for the successful prosecution of an injunction to enforce restrictive covenants in a subdivision plat.

We hold that the appellants timely filed their notice of appeal from the October 14, 1983 judgment. We also hold that the trial court did not err in awarding damages of $5,000 to the Wrights, Corneliuses, and Rodgerses; and that the trial court did not err in refusing to award attorneys’ fees to the successful parties in the action to compel enforcement of the restrictive covenants. However, we do find that the trial court failed to carry out the mandate of this Court by allowing the convenience store to remain on the lots; therefore, we reverse.

These cases were first brought to this Court by the appellants (the Wrights, Cor-neliuses, and Rodgerses), who are owners of lots in Cypress Shores Subdivision. These property owners originally sought a declaratory judgment from the trial court that certain restrictive covenants, applicable to the Cypress Shores Subdivision, prohibited the building and operation of a convenience store on any lot or lots within Unit IV of the subdivision. Appellants also sought to enjoin the appellee/cross-appel-lant, Norman H. Clark, from constructing a convenience store on the two lots he had purchased in the subdivision, after the architectural control committee for the subdivision had annulled the restrictions as they applied to the two lots purchased by Clark. The trial court denied the requested relief and the lot owners appealed. This Court reversed the ruling of the trial court. Wright v. Cypress Shores Development Co., 413 So.2d 1115 (Ala.1982).

Pursuant to the mandate of this Court, the trial court, on January 19, 1983, ordered the defendant Clark “to cease the operation of a convenience store on lots 46 and 47 in said subdivision and ... within ninety days from the date of this order restore said lots to a condition compatible with the adjacent lots in Unit IV of said subdivision.”

In April, 1983, the Wrights, Corneliuses, and Rodgerses filed a motion for rule nisi, alleging that Clark had violated the court order of January 19, 1983, by failing to “restore lots 46 and 47 to a condition compatible with the adjacent lots of said subdivision.” On October 14, 1983, the trial judge heard testimony and arguments of counsel on the question of whether the convenience store building could remain on the property. He also considered the mov-ants’ request for damages and attorneys’ fees and entered the following order:

“All right. I tell you what I am going to do. I am going to award the plaintiffs damages in the amount of $5,000.00. I am going to deny the request for attorney fees. I am going to leave this building as it is. Whether it can be used for a residence or not, it depends upon whether you can get somebody that don’t mind living in a one room house. I want this Compac Food Store sign removed and I want the lessee or lessor or whoever owns that canopy to take it down. In other words, take down any signs or anything. I am not going to require that they remove the building. They may can rent it to somebody, I don’t know. But I stated that apparently at the hearing. If I am in violation of the Supreme Court mandate of this thing, I am sorry. I didn't intend to violate them. But I thought it would be an unnecessary proposition to require the removal of that building, and unnecessary expense. In addition to that, I don’t mind admitting that I was influenced by the fact that it is five years to run before this whole thing is out. I don’t feel that your clients are hurt any worse than that. The costs are assessed against the defendants in the case. That’s the best I do do on this thing, gentlemen.”

Clark and Cypress Shores Development Company then filed motions for reconsideration as to the award of damages, alleging that no evidence had been presented to sustain the award following a remand of this cause. These motions were denied on December 20, 1983.

Thereafter, notice of appeal was filed from the trial court’s order dated October 18, 1983, by the Wrights, Corneliuses, and Rodgerses.

Because we find that the trial court was correct in its other findings, we will only address the issue of whether the trial court erred in its interpretation of the mandate of this Court as pronounced in this Court’s opinion in the first appeal of these cases, Wright v. Cypress Shores Development Co., 413 So.2d 1115 (Ala.1982). In that opinion, this Court stated:

“Having determined from the recorded declaration of ‘Covenants, Restrictions and Limitations,’ and from the surrounding circumstances, that Cypress Shores Development Company intended to create a general scheme or plan [of] development for Cypress Shores — Unit Four (Subdivision), we hold the reservation of the right to annul, cancel, amend or modify the restrictive covenants could only be exercised by the Architectural Control Committee in a reasonable manner consistent with that general scheme or plan of development. Amendment or cancellation of the restrictions so as to permit the construction of a convenience store on Lot 46 was, we hold, an unreasonable exercise of the Committee’s authority and highly inconsistent with the general scheme or plan of development upon which plaintiffs relied when purchasing their lots, and was therefore null and void. Accordingly, the judgment of the trial court is due to be and is hereby reversed and this case remanded for further proceedings consistent with this opinion.”

413 So.2d at 1124.

Suffice it to say, we did not intend for the trial court to allow the convenience store to remain standing. Closing the store, removing the canopy, and removing the store sign and gas pumps did not make lots 46 and 47 “consistent with the general scheme or plan of development” of other lots of the subdivision. If the building is allowed to stand, even during the remaining life of the restrictive covenants, the value of the appellants’ property would still be diminished and the relief sought by the appellants would have been effectively denied. We also agree with the appellants’ argument that Clark acted at his own peril in building the store because he knew that the first appeal was pending in this Court.

Where the mandate of this Court to a court below is precise, it is the duty of the lower court to carry it into execution. Lyon v. Foscue, 60 Ala. 468 (1877). Here, the trial court ' was obligated by this Court’s order on the first appeal to enforce the restrictive covenant and to protect all lot owners in Unit IV of the Cypress Shores Subdivision. We are constrained to hold that the trial court failed to carry out this Court’s mandate; consequently, we reverse the judgment and remand the cause to the trial court for further proceedings not inconsistent with this opinion.

REVERSED AND REMANDED.

TORBERT, C.J., and JONES, SHORES and ADAMS, JJ., concur.

ON APPLICATION FOR REHEARING

MADDOX, Justice.

By application for rehearing appel-lee/cross-appellant, Cypress Shores Development Co., calls this Court’s attention to the fact that our original opinion, in addition to ordering destruction of the building in question, also left standing the trial court’s $5,000 judgment, which was awarded to compensate appellants for the diminution in the value of their property resulting from breach of the protective covenant. Cypress Shores argues that monetary damages are generally awarded in addition to equitable relief only where necessary to compensate for past injury and to prevent multiplicity of lawsuits. Howell v. City of Dothan, 234 Ala. 158, 174 So. 624 (1937). Cypress Shores also contends that in the present instance such damages are unnecessary because appellants’ past injury, the decrease in their property values, will be cured by removal of the building and, further, that the covenant in question contained an election of remedies provision, providing in pertinent part:

“[If any owner] shall violate or attempt to violate any of the covenants herein, it shall be lawful for any person or persons owning any real property situated in said subdivision, to prosecute any proceedings at law or in equity against the person or persons violating or attempting to violate any such covenants and, either to prevent such person or persons from so doing, or to recover damages for such violation.” (Emphasis supplied.)

Cypress Shores argues that this provision allows appellants either equitable relief or damages, but not both.

Cypress Shores’ point is well taken. As this Court recently stated in Herring v. Prestwood, 414 So.2d 52 (Ala.1982), “A party is generally not entitled to have a contract specifically enforced and, at the same time, recover damages for breach of the same contract.” This is especially true where, as here, there was no contention that specific performance would not be a complete remedy and provisions of the protective covenant clearly require the party seeking relief to choose one or the other.

Considering that the covenant contains an election of remedies provision and considering that destruction of the offending structure will effectively negate the damages suffered by appellants, we believe that, under the facts of this case, the imposition of monetary damages in addition to specific performance of the restrictive covenant would be improper.

Therefore, we extend our earlier opinion and, although reaffirming our previous holding that the store building must be removed, reverse and remand the judgment of the trial court awarding damages.

APPLICATION FOR REHEARING GRANTED; OPINION EXTENDED AND MODIFIED; REVERSED AND REMANDED.

TORBERT, C.J., and JONES, SHORES and BEATTY, JJ., concur.

      . Appellees claim that the appellants should have appealed from an order entered on April 26, 1983, which provided, in part, "and the Defendant, Norman A. Clark, shall comply with the previous orders of this court and shall close the convenience store by noon Friday, April 29, 1983 ...” (emphasis supplied). Insofar as this order required the defendant to close the convenience store, it was favorable to the plaintiffs. Appellants timely appealed from the later adverse ruling of the trial judge which allowed the building to remain on the lots.


author: MADDOX, Justice.

text:
    James E. DAVIS v. James E. OWEN.
    83-1134.
    Supreme Court of Alabama.
    Nov. 21, 1984.
    Rehearing Denied Dec. 21, 1984.

      Edmon L. Rinehart of Patterson & Rine-hart, Montgomery, for appellant.
    Sydney S. Smith of Smith & Smith, Phe-nix City, for appellee.
   MADDOX, Justice.

This case involves a claim for back pay and benefits due an employee of Chattahoochee Valley Community College.

On September 30, 1981, James E. Davis was terminated from his employment with Chattahoochee Valley Community College (C.V.C.C.). He petitioned for writ of mandamus in Russell County Circuit Court, requesting that C.V.C.C.’s president, James E. Owen, be ordered to reinstate him to his former position and provide him with back pay and other benefits accruing during the period of his termination. The court so ordered. Owen appealed here, and we dismissed for failure to timely file notice of appeal. Owen v. Davis, 436 So.2d 26 (Ala.1983) (mem.).

After Davis was reinstated, a dispute arose as to the amount of back pay and benefits due him. Davis contended that he was entitled to $7,369.50 back pay in addition to the $39,593.00 he received, and that he was also entitled to be paid for 22 days’ sick leave and 22 days’ annual leave accruing during the period of his termination. He also contended that he should be reimbursed for $1,683.55 in medical expenses incurred during the same period.

A second hearing was held to determine the amount of back pay and benefits due Davis. Thereafter, the court issued the following order:

“This cause comes before the Court for a determination of the amount of salary, sick leave, retirement, and annual leave to which the Plaintiff will be entitled, after the Supreme Court of Alabama dismissed the appeal of the Defendant, James E. Owen, on July 5, 1983. Upon consideration of the evidence and . testimony taken Ore Tenus at said hearing, the Court finds as follows:
“I. Sick Leave. Pursuant to the rules and regulations of the State Board of Education governing State Community and Junior Colleges an employee is not entitled to receive pay in lieu of sick leave. Sick leave can be accumulated up to a maximum of 150 days, receiving one day per month credit for each month of employment.
“II. Annual Leave. The rules and regulations of the State Board of Education as applying to State Community and Junior Colleges provide that employees may accumulate annual leave at the rate of one day per month of employment up to a maximum of 18 days. Said rules and regulations further provide that persons leaving employment shall be paid for the number of days actually earned. The Court finds that James E. Davis was paid for his accumulated annual leave as of his termination of September 30, 1981. The Court further finds that Mr. Davis accumulated annual leave from October 1, 1981, to September 30, 1983, totaling 18 days. This is pursuant to the Court’s order of August 13, 1982. The evidence presented showed that Mr. Davis had taken nine of those days as of the hearing of September 9, 1983, and that Mr. Davis had nine remaining annual leave days as of that hearing.
“HI. Insurance Benefits. The Court finds that the evidence of James E. Davis relating to the claim for medical benefits for the period of time from October 1, 1981 to July 31, 1983 were speculative and unproven.
“IV. Retirement. The Court finds that James E. Davis received all retirement benefits to which he was entitled at the time of his termination on September 30, 1981.
“V. Salary. The evidence presented at the hearing established that Chattahoochee Valley Community College had experienced a decrease in student enrollment which had resulted in a substantial decrease in months [sic] appropriated to the College for the years 1981-82 and following. The evidence further indicated that Dr. Wayne Teague, State Superintendent of Education, found in a memorandum dated April 30, 1981, that certain employees had been inappropriately placed on salary schedules based upon that employee’s duties, experience, educational background and/or administrative assignments and that such employee should be placed upon the appropriate salary schedule.... Defendant, James E. Owen, testified that the position of Director of Physical Plant was eliminated for the school year 1981-82 and that elimination of this position resulted in the termination of James E. Davis. ... Because of the elimination of said position, no funds were budgeted for such a position for the school year 1981-82 and no salary was set. This Court by its order of August 13, 1982, ordered that James E. Davis be reinstated and the issue presented at the September 9, 1983, hearing concerned the salary to which Mr. Davis would be entitled. The testimony of Dr. Owen stated that had Mr. Davis been employed for 1981-82, he would have been placed upon Salary Schedule C-3, the third administrative level. Placement upon this Schedule presumes negotiation of the employee’s salary. ... Dr. Owen further testified that in' so placing James E. Davis on Salary Schedule C-3, Mr. Davis would have received a salary of $21,048.00 for the year 1981-82. Dr. Owen further stated that based upon the same premises, James E. Davis would have received a salary of $22,254.00 for the school year 1982-83.
“This Court finds that the Defendant, James E. Owen, had the authority pursuant to the Rules and Regulations of the State Board of Education to place James E. Davis on Salary Schedule C-3 for the school year 1981-82 and subsequent years. Therefore, this Court finds that the determination of the salary of $21,-048.00 for the* year 1981-82 is correct and the salary of $22,254.00 for the year 1982-83 is correct.
“It is, therefore,
“ORDERED, ADJUDGED AND DECREED BY THE COURT AS FOLLOWS:
“1. That the claim by the Plaintiff for payment of accrued sick leave is denied and the Defendant is ordered to credit the Plaintiff with sick leave which would have accrued from October 1, 1981.
“2. That the Defendant is to credit the Plaintiff with annual leave which would have accrued from October 1,1981 at the rate of one annual leave day per month up to the maximum permitted by policy, i.e. 18 days.
“3. That the Plaintiff’s claim for medical benefits be and the same is hereby denied.
“4. That the- Defendant is ordered to pay the Plaintiff the sum of $21,048.00 as salary for 1981-82 and the sum of $22,254.00 for the year 1982-83.”

Davis appeals here, contending that the trial court erred in its findings. We find no reversible error and affirm.

As we have countless times stated, where, as here, the trial court's findings are based upon evidence heard ore tenus, those findings are favored with a presumption of correctness and will not be disturbed on appeal if supported by evidence or any reasonable inference therefrom, unless plainly and palpably erroneous or manifestly unjust. Chaffin v. Hall, 439 So.2d 67 (Ala.1983).

Upon reviewing the evidence presented, we cannot say that the trial court’s findings were either wrong or unjust. The evidence clearly shows that Davis was dismissed, along with other administrative employees, in an attempt to' reduce costs. The evidence also shows that, subsequent to Davis’s termination, certain salaries at C.V.C.C. were reduced because of budget proration and decreased enrollment and in accordance with a recommendation made by the post-secondary educational services division of the State Board of Education. The evidence shows that the State Board of Education gave President Owen authority to make the necessary salary reductions, that he did so solely to reduce costs, and that, upon his reinstatement, Davis’s salary was one of those reduced. Because this was within Owen’s discretion, we see no error.

The evidence shows that the parties stipulated at trial that, although Davis would not be paid for sick leave accumulating during the period of his termination, he would receive credit for those days. Therefore, this issue is not before us.

As to annual leave, the evidence shows, and the trial court correctly found, that Section 609.08 of the Policies, Procedures and Regulations Governing Alabama State Community, Junior and Technical Colleges/Institutes, 1979, provides that “Full-time noninstitutional personnel,” like Davis, may not accumulate more than eighteen days’ annual leave. In view of this, we see no error in the court’s determination that Davis should be credited with eighteen days’ annual leave.

The evidence is also supportive of the court’s determination that Davis’s claim for medical insurance benefits was too speculative. The evidence shows that, although Davis and his family were insured by C.Y.C.C.’s insurance carrier at the time he was terminated, subsequent to that time, employees of the state’s 2-year educational institutions voted to make the institutions self-insured, establishing a self-insured trust for this purpose.

The evidence shows that the trust has since become insolvent, and owes the participating employees some $600,000 for insurance claims filed but never paid. Because Davis, but for his termination, would have filed his insurance claim during the pendency of the now insolvent trust, it is uncertain whether he would have been reimbursed for his claim. Therefore, had his claim been timely filed, his status would be identical to that of the other unsatisfied claimants now seeking reimbursement from this trust. Thus, his possibility of recovery would be, at best, speculative.

AFFIRMED.

TORBERT, C.J., and JONES, SHORES and BEATTY, JJ., concur.

      . The institutions are presently insured through another insurance carrier. However, this coverage became effective on January 1, 1983, subsequent to Davis’s claim.


author: TORBERT, Chief Justice.

text:
    MOBILE WRECKER OWNERS ASSOCIATION, INC., etc. v. CITY OF MOBILE and Port City Wrecker Service and Garage, Inc., et al.
    83-743.
    Supreme Court of Alabama.
    Dec. 21, 1984.

      Jay A. York of Cunningham, Bounds, Yance, Crowder & Brown, Mobile, for appellant.
    William H. Brigham, Mobile, for appellee City of Mobile.
    Lionel L. Layden of Moore & Layden, Mobile, for appellee Port City Wrecker Service, etc.
   TORBERT, Chief Justice.

Plaintiff, Mobile Wrecker Owners Association, Inc. (Wrecker Owners), brought suit questioning the validity of a contract between the defendants, the City of Mobile (City) and Port City Wrecker Service and Garage, Inc. (Port City).

Port City entered into a contract with the City whereby Port City agreed to provide wrecker service and storage for certain vehicles. The contract requires Port City to provide tow away services for any vehicles parked or abandoned on any portion of any street in Mobile in a tow away zone, any vehicle seized or impounded by the city police department and any vehicle that the police department deems necessary to remove from the public streets. Port City supplies the trucks and truck operators, along with other personnel needed to secure the vehicles while stored. Port City is required to store the vehicles until payment of any fine or penalty imposed by the City. Under the agreement, Port City has the right to charge the owner of a vehicle removed by Port City towing and storage charges. The contract also provides that any vehicle abandoned in storage or left impounded or stored for a period of ninety days can be sold by the City at public auction, and the proceeds of the sale divided between the City and Port City, four-fifths of the proceeds going to Port City and the other one-fifth being retained by the City.

In consideration for providing the wrecker services, the City leased Port City city-owned property located in Mobile. Port City uses the property to perform its contract and also to operate its body shop business. On this property is also a city-owned concrete block building from which Port City performs the contract and operates its body shop business. Port City maintains the building and property. The City is required under the contract to provide and maintain two-way radio equipment in the tow trucks.

The plaintiffs four-count complaint alleges that:

1.' The contract provisions allowing Port City to occupy City property and allowing the City to provide and maintain a two-way radio system in Port City’s tow trucks violates the Constitution of Alabama, Article IV, § 94, as amended by Amendment No. 112. (Count 1.)

2. The contract was not in compliance with § 62, Mobile City 'Code, which regulates the operation of wreckers and wrecker companies in the City. (Count 2.)

3. The City does not receive any rents or compensation for the use of the property owned by the City. (Count 3.)

4. If it is found that Port City does pay some rent or compensation for the use of city property, then that rent or compensation is inadequate and constitutes waste of the City’s resources. (Count 4.)

The City filed a motion to dismiss the complaint. The trial court granted the motion as to counts one and four, denied the motion as to count two and treated the motion as to count three as a motion for a more definite statement. Wrecker Owners did not amend or elaborate on count three, and in its briefs it treats that count as also having been dismissed. We will also consider count three as having been dismissed. The City later filed a motion for summary judgment and an amended motion for summary judgment as to count two, which was granted. Port City’s motion to dismiss the complaint was denied and its motion for summary judgment as to all counts granted.

Plaintiff appeals and raises the following issues:

1. “Whether the contract entered into between the City of Mobile and Port City Wrecker Service .and Garage, Inc., is subject to the competitive bid requirement of Section 41-16-50(a)(l), Code of Alabama (Supp.1982).”

2. “Whether the contract entered into between the City of Mobile and Port City Wrecker Service and Garage, Inc., is in violation of Section 41-16-57, Code of Alabama (1975).”

3. “Whether or not the appellees’ alleged violations of the bid laws applicable to the State of Alabama are relevant to the issues raised on appeal in this case.”

4. “Whether or not the City of Mobile and Port City Wrecker Service violated Section 94 of the Alabama Constitution as amended by Amendment Number 112.”

We address the first three issues together. A review of the complaint reveals that on its face it does not set forth either a violation of the competitive bid law under § 41-16-50(a)(l) or a violation of § 41-16-57(e), which limits the term of service contracts to three years. Plaintiff contends that the bid law was implicitly made an issue in counts three and four. Plaintiff relies on cases which correctly hold that one of the purposes of the bid laws is to secure economy and protect taxpayers. See Carson Cadillac Corporation v. City of Birmingham, 232 Ala. 312, 167 So. 794 (1936). However, we fail to see how counts alleging failure or insufficiency of consideration raised the issue of whether the statutory bid laws compelling public advertising for bids were violated. A review of the record reveals that no such contention was ever made an issue in the trial court. There is no evidence in the record concerning whether bids were taken on the contract in question or even whether the bid laws applied. On appeal this Court is limited to a review of the record alone, and an issue not reflected in the record as having been raised in the trial court cannot be raised for the first time on appeal. Bechtel v. Crown Central Petroleum Corporation, 451 So.2d 793 (Ala.1984). For the same reason, the issue of violation of § 41-16-57(e), which was raised for the first time on appeal, is also not reviewable.

Plaintiffs also contend that the contract violates Alabama Constitution, § 94, as amended by Amendment No. 112. That section, as amended provides:

“The legislature shall not have power to authorize any county, city, town, or other subdivision of this state to lend its credit, or to grant public money or thing of value in aid of, or to any individual, association, or corporation whatsoever, or to become a stockholder in any such corporation, association, or company, by issuing bonds or otherwise. It is provided, however, that the legislature may enact general, special, or local laws authorizing political subdivisions and public bodies to alienate, with or without a valuable consideration, public parks and playgrounds, or other public recreational facilities and public housing projects, conditional upon the approval of a majority of the duly qualified electors of the county, city, town, or other subdivision affected thereby, voting at an election, held for such purpose.”

Section 94 “was designed to prevent the expenditure of public funds in aid of private individuals or corporations by reason of which a pecuniary liability, a debt of the municipality, is incurred.” (Citation omitted.) Opinion of the Justices, 294 Ala. 555, 567, 319 So.2d 682, 694 (1975). There is no lending of credit by a public body when it enters into an ordinary commercial contract, with benefits flowing to both parties and a consideration on both sides. Ramer v. City of Hoover, 437 So.2d 455 (Ala.1983); Rogers v. City of Mobile, 277 Ala. 261, 169 So.2d 282 (1964).

Port City moved for summary judgment on this count and filed a copy of the contract and affidavits in support of its motion. The standard employed to determine when summary judgment is appropriate was succinctly stated in Lantrado, Inc. v. Henry County Bank, 452 So.2d 1328, 1329, 1330 (Ala.1984):

“It is, of course, axiomatic that a motion for summary judgment tests the evidence under the scintilla rule to determine whether there is a genuine issue of material fact. Matthews v. Mountain Lodge Apartments, Inc., 388 So.2d 935 (Ala.1980); Coggin v. Starke Brothers Realty Co., 391 So.2d 111 (Ala.1980). When such a motion is made and supported, the adverse party may not stand on the mere allegations or denials of the pleadings, but must submit facts controverting those facts presented by the moving party. Butler v. Michigan Mutual Ins. Co., 402 So.2d 949 (Ala.1981).
"... Under Rule 56(e), A.R.Civ.P., if the adverse party does not respond to the motion, which is supported by affidavits or otherwise, setting forth specific facts showing a genuine issue for trial, ‘summary judgment, if appropriate, shall be entered against him.’ ”

The first count of plaintiffs complaint reads as follows:

FIRST CAUSE OF ACTION
“1. On or about the 27th day of March, 1979, the Defendants entered into a contract whereby the Defendant Port City Wrecker Service and Garage, Inc., (hereinafter referred to as Port City) promised to provide wrecker service for the City of Mobile.
“2. The Plaintiffs, Mobile Wrecker Owners Association, Inc., Massey L. Moseley, Jr., R.B. Harrelson and Bud Erb, are citizens and taxpayers of the City of Mobile.
“3. The contract provided for Port City to occupy City property without the payment of any rent and also for the City to provide and maintain a two-way radio system for Port City.
“4. This aforementioned provision violated the Constitution of Alabama, Article IV, Section 94 as amended by Amendment No. 112.
“WHEREFORE, the Plaintiff, Mobile Wrecker Owners Association, Inc., asks that the contract be declared void.”

Paragraph three could be read as stating a cause of action for violation of § 94, in that it alleges that the City gave a thing of value in aid of a corporation. However, paragraph one of that count apparently indicates there was no violation of § 94, since it states that Port City entered into a contract in which it promised to provide wrecker service for the City. As previously stated, § 94 does not prohibit the City from entering into ordinary commercial contracts, with benefits flowing to both parties and a consideration on both sides. The complaint itself, the contract and the affidavits of Mobile’s police chief and the chief operator of Port City, submitted in support of summary judgment, reveal that this was a contract for services, with benefits flowing to both parties and consideration on both sides.

In summary, the contract provides that Port City will furnish two wreckers with operating personnel and equipment, which shall be available 24 hours daily on demand of the police. Port City will also agree to store and protect all towed vehicles. Port City is entitled to charge the vehicle owners for towing and storage. The City, in exchange, leases to Port City property from which it can operate and on which it stores vehicles. The City also provides and maintains the two-way radios in the wreckers.

The plaintiff offers no evidence to suggest that this was not an ordinary commercial contract. Under these circumstances, the summary judgment was appropriate, and that judgment is due to be affirmed.

The City’s motion to dismiss the first count of plaintiff’s complaint, alleging a violation of § 94, was granted. A complaint is not subject to dismissal for failure to state a claim unless it appears that plaintiff can prove no set of facts in support of his claim which would entitle him to relief. Roberts v. Meeks, 397 So.2d 111 (Ala.1981).

A cause of action for violation of § 94 in this case should allege that the City gave away a thing of value in aid of the corporation. The complaint on its face seemingly states that in fact the City did not give the property for storage and the radios to the corporation, but instead exchanged those things in consideration for Port City’s providing wrecker service. While there is authority for dismissing a complaint which on its face has a built in defense that is an absolute bar to the action (Sims v. Lewis, 374 So.2d 298 (Ala.1979); McGruder v. B. & L. Construction Co., 293 Ala. 354, 303 So.2d 103 (1974); see also 1 C. Lyons, Alabama Practice 175 (1973)), this is not such a complaint. This count was dismissed more than two years before the summary judgment motions were made. At that time the court had before it only the complaint and the motion to dismiss. At the time the motion was granted the trial court could not conclusively say that there was an ordinary commercial contract in existence which would be a defense to the allegation that the City was giving away the property. The existence or nonexistence of an “ordinary commercial contract” was a question of fact. At the time the motion was granted, it was conceivable that plaintiffs could have shown that the agreement was not an “ordinary commercial contract.” Therefore, the trial court erred in dismissing that count of the complaint.

The judgment of the trial court is therefore to be affirmed, except for that part of the judgment which dismissed count one of plaintiffs complaint as to the City.

AFFIRMED IN PART, REVERSED IN PART, AND REMANDED.

FAULKNER, ALMON, EMBRY and ADAMS, JJ., concur.

      . Issues one and two were presented in appellant’s initial brief. Issues three and four were presented in appellant’s reply brief. Issue three is not really a separate issue, as it merely attempts to refute the appellees’ argument that issue one, violation of the bid law, is in fact not an issue properly reviewable on this appeal.

      . We recognize that while we find dismissal was improper as to the City, we found summary judgment was proper on the same issue as to Port City. While it may seem useless to remand on this issue as to the City in light of our disposition of the same issue on summary judgment, conceivably the plaintiff could present some evidence which would make summary judgment improper.


text:
    John M. TYSON, Sr. v. SAFECO INSURANCE COMPANIES.
    83-869.
    Supreme Court of Alabama.
    Dec. 21, 1984.

      Charles S. Street, Mobile, for appellant.
    Geary A. Gaston and Lucian Gillis, Jr. of Reams, Vollmer, Philips, Killion, Brooks & Schell, Mobile, for appellee.
   PER CURIAM.

Cross-claim plaintiff John M. Tyson, Sr., appeals from a summary judgment granted in favor of co-defendant Safeco Insurance Companies on a cross-claim seeking damages for breach of contract, outrage, and bad faith. The cross-claim arose from a suit filed by Simpson Construction Company against both Tyson and Safeco, after a dispute arose concerning repair work Simpson was engaged to perform on the fire-damaged home of Tyson. Safeco moved for and was granted summary judgment on the claim brought by Simpson, which was not appealed.

Summary judgment on this cross-claim was certified as final by the trial court and, hence, made appealable, pursuant to Rule 54(b), Alabama Rules of Civil Procedure. We affirm.

The trial court set forth the following facts in its order granting summary judgment:

“1. Safeco issued a policy of insurance covering the residence of Tyson and his wife at 419 LaBorde Drive in Mobile, Alabama, and such policy of insurance was in full force and effect on July 13, 1979, at which time such residence suffered a loss by fire.
“2. Subsequent to such fire Simpson Construction Company, Inc. (hereinafter ‘Simpson’), was engaged to perform and, in fact, did perform certain work and labor in connection with repairing the fire damage suffered to the Tysons’ residence as a result of the fire.
“3. A dispute arose between the Ty-sons and Simpson as to the performance of the work and labor by Simpson, and as to the quality, sufficiency, and completeness of the Work and labor performed by Simpson.
“4. Safeco advanced TWO THOUSAND FIVE HUNDRED ($2,500.00) DOLLARS to Tyson under the dwelling coverage portion of the policy. Total damage to the dwelling was ELEVEN THOUSAND NINE HUNDRED SIX and 12/100ths ($11,906.12) DOLLARS, leaving a balance of NINE THOUSAND FOUR HUNDRED SIX and 12/100ths ($9,406.12) DOLLARS.
“5. Safeco advanced NINE HUNDRED TWENTY-THREE ($923.00) DOLLARS to Servicemaster Cleaning under the contents coverage portion of its policy. There was remaining contents damage of THREE THOUSAND FORTY-ONE and 24/100ths ($3,041.24) DOLLARS, for a total of THREE THOUSAND NINE HUNDRED SIXTY-FOUR and 24/1100ths ($3,964.24) DOLLARS.
“6. In a letter dated May 27, 1980, Simpson gave notice to Safeco that Simpson desired that any further drafts issued in payment for the damages sustained to the Tyson residence in such fire should include the name of Simpson Construction Company, Inc., as payee.
“7. On December 12, 1980, a proof of loss was executed by Mr. and Mrs. Tyson. Safeco then paid them their remaining claim under contents coverage of $3,041.24 and also paid ONE THOUSAND EIGHT HUNDRED FORTY-SIX and 70/100ths ($1,846.70) DOLLARS under the additional living expense portion of the policy for a subtotal of FOUR THOUSAND EIGHT HUNDRED EIGHTY-SEVEN and 94/100ths ($4,887.94) DOLLARS, minus plaintiffs deductible of ONE HUNDRED ($100.00) DOLLARS for a total of FOUR THOUSAND SEVEN HUNDRED EIGHTY-SEVEN and 94/100ths ($4,787.94) DOLLARS.
“8. On May 14, 1981, pursuant to advice of counsel, Safeco issued a draft in the sum of $9,406.12, being the full amount then owed by Safeco as the balance for the fire loss made the subject of this lawsuit, and included as payees on that draft the following: John Malcolm Tyson and Grace D. Tyson, Simpson Construction and Jacksonville National Bank. That draft was forwarded to Mr. and Mrs. Tyson and was subsequently returned by the Tysons to Safeco.
“9. Tyson notified Safeco that payments of the money should be made to him without regard to the claim of Simpson.
“10. On July 24, 1981, Simpson filed suit for damages arising from work done on Tyson’s property, and named as defendants both Tyson and Safeco.
“11. On September 2, 1981, Safeco answered Simpson's complaint and petitioned the Court for a bill of interpleader. The court denied Safeco’s motion to in-terplead monies on November 20, 1981.
“12. Tyson then filed his cross-claim against Safeco on July 14, 1982, alleging (1) breach of contract, (2) ‘outrageous, reckless, wanton, malicious and oppressive conduct’ and (3) ‘the tort of bad faith.’
“13. On July 19, 1982, Safeco moved for summary judgment as to the claim of Simpson. The Court granted this motion on August 13, 1982, and entered an order of final judgment on August 27, 1982.
“14. The FORTY-TWO (42) day period allowable for Simpson to take an appeal from the above order of final judgment expired on Friday, October 8, 1982.
“15. On the next business day, October 11, 1982, Safeco through its attorney forwarded a draft to Tyson’s attorney in the amount of $9,406.12, representing the remainder due the Tysons under their proof of loss.
“16. After conducting discovery, Safeco moved for summary judgment as to Tyson’s cross-claim on January 24, 1983. The Court granted this motion on May 20, 1983.
“17. Tyson thereafter moved to reconsider the ruling on Safeco’s motion of summary judgment. The Court denied this motion and entered an order of final judgment in favor of Safeco on July 7, 1983.
“18. On August 19, 1983, the last day for Tyson to take an appeal from the above final judgment, Safeco’s attorney waived the appeal date in a telephone conversation with the trial judge.
“19. On August 26, 1983, the Court granted plaintiff’s motion for relief from judgment and set aside Safeco’s motion for summary judgment.
“20. On [January] 23, 1984, Safeco refiled its motion for summary judgment.
“21. On February 17, 1984, after considering additional affidavits submitted by Mr. and Mrs. Tyson, the Court heard Safeco’s motion for summary judgment.”

The court thereupon granted Safeco’s motion for summary judgment. This appeal followed.

Tyson’s contract claim against Safeco, including accrued interest, was fully satisfied prior to this appeal. Remaining for our consideration, therefore, are the claims for outrage and bad faith.

Outrageous Conduct

We first recognized an independent theory of recovery for the intentional or reckless infliction of emotional distress in American Road Service Company v. Inmon, 394 So.2d 361 (Ala.1980). Expressly utilizing the language of § 46, Restatement (Second) of Torts (1948), we wrote:

“(1) One who by extreme and outrageous conduct intentionally or recklessly causes severe emotional distress to another is subject to liability for such emotional distress, and if bodily harm to the other results from it, for such bodily harm.”

394 So.2d at 362.

We also adopted in Inmon, Comment (d) of § 46 of the Restatement, which defines the proscribed behavior as conduct “so outrageous in character, and so extreme in degree, as to go beyond all possible bounds of decency, and to be regarded as atrocious and utterly intolerable in a civilized community.” Restatement, supra, at 72.

In the instant case, there was nothing in Safeco’s actions to amount to conduct so outrageous and extreme as to be “utterly intolerable in a civilized community.” Safeco wanted to pay Tyson and Simpson jointly to avoid the possibility of double liability. Significantly, after the time to appeal the summary judgment Safeco obtained against Simpson lapsed, along with the possibility of double liability, Safeco promptly paid Tyson all monies due under the insurance contract. It is clear, therefore, that the trial court properly withheld this count from the jury. Empiregas, Inc. of Gadsden v. Geary, 431 So.2d 1258 (Ala.1983).

Bad Faith

The elements which must be proven to establish a prima facie case of bad faith refusal to pay an insurance claim are as follows:

“(a) an insurance contract between the parties and a breach thereof by the defendant;
“(b) an intentional refusal to pay the insured’s claim;
“(c) the absence of any reasonably legitimate or arguable reason for that refusal (the absence of a debatable reason);
“(d) the insurer’s actual knowledge of the absence of any legitimate or arguable reason;
“(e) if the intentional failure to determine the existence of a lawful basis is relied upon, the plaintiff must prove the insurer’s intentional failure to determine whether there is a legitimate or arguable reason to refuse to pay the claim.”

National Security Fire & Casualty Co. v. Bowen, 417 So.2d 179, 183 (Ala.1982).

Additionally, we have held that in a normal case, the plaintiff must be entitled to a directed verdict on the contract claim as a matter of law. National Savings Life Ins. Co. v. Dutton, 419 So.2d 1357 (Ala.1982). Thus, a plaintiff’s burden of proving facts sufficient to sustain a case of bad faith is a heavy one.

In the instant case, it is readily evident that Tyson has not sustained this burden.

Safeco’s refusal to unconditionally pay the claim owed Tyson was prompted by a demand by Simpson to be named as a joint payee on any further checks representing payments under the insurance policy. We note that Safeco’s fear of double liability in this regard was not unfounded. Simpson, for example, by virtue of performing work on the home of Tyson, was entitled to a lien on the house, the land, and any other improvements thereon to insure payment for its work. Ala.Code 1975, § 35-11-210. This Court need not, however, determine in hindsight the precise legal relationships between Safeco, Tyson, and Simpson, to conclude that Safeco was faced with a situation of sufficient uncertainty to supply it with a debatable reason to act in the manner it did.

Summary judgment, therefore, in favor of Safeco on the bad faith count was proper.

AFFIRMED.

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


text:
    Marion B. WALKER, et al. v. Mary L. NORDEN, Ann Catherine Garin, as co-executrices of the estate of Henry S. Norden, deceased; Harry E. McConnell; and Judy H. McConnell.
    83-881.
    Supreme Court of Alabama.
    Dec. 21, 1984.

      Carole W. Delchamps, Mobile, for appellants.
    Jeffry A. Head of McFadden, Riley & Parker, Mobile, for appellees Norden and Garin.
    Ben H. Kilborn and James H. Griggs, Mobile, for appellees Harry E. McConnell and Judy H. McConnell.
   TORBERT, Chief Justice.

Plaintiffs Marion and Margaret Walker purchased a lot from defendant Harry McConnell and his late wife on June 19, 1976. At the time of purchase, plaintiffs asked Judy McConnell, the real estate agent and daughter of the McConnells, whether the lot would qualify for financing through the Veterans Administration (VA) or the Federal Housing Administration (FHA) if plaintiffs built a home on it. She allegedly replied that it would. Subsequently, it was discovered that the plat of the lot prepared by Henry Norden, now deceased, which was used to describe the property in the deed, indicated that a 60-foot easement had been given Mobile County along Old Pascagoula Road instead of the 80-foot easement which was actually conveyed. Because of the 80-foot easement, the lot would not qualify for VA or FHA financing for building a home because it did not have the required square footage to accommodate a septic tank and well.

The Walkers sued, alleging breach of warranty by Harry McConnell and fraud by Harry McConnell, Judy McConnell, and Henry Norden. The defendants moved for summary judgment, claiming the statute of limitations had run on the fraud counts. Norden also contended that he had made no representations to the Walkers and, therefore, that they could not have relied on any misrepresentation. The McConnells also contended that the Walkers had failed to show they were damaged by the alleged fraud or breach of warranty. The defendants’ motions for summary judgment were granted, and this appeal followed.

The standard for granting summary judgment has been stated as follows:

“Summary judgment shall be rendered if the pleadings, depositions, interrogatory answers, or affidavits submitted show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law. Rule 56(c), ARCP. The burden of proof is on the movant to establish the absence of any issue of a material fact. Donald v. City National Bank of Dothan, 295 Ala. 320, 329 So.2d 92 (1976). If there is a scintilla of evidence supporting the position of the party against whom the motion is made, summary judgment cannot be granted. Rule 56(c), ARCP, Committee Comments; Loveless v. Graddick, 295 Ala. 142, 325 So.2d 137 (1975). The court must view the evidence and all reasonable inferences to be drawn from the evidence in the light most favorable to the non-moving party. Tolbert v. Gulsby, 333 So.2d 129 (Ala.1976).”

Ray v. Montgomery, 399 So.2d 230 (Ala.1980).

Defendants claim summary judgment was proper because the pleadings fail to allege with specificity the circumstances surrounding the discovery of the fraud. Amason v. First State Bank, 369 So.2d 547 (Ala.1979). However, defendants’ motions for summary judgment were based only upon allegations that there were no genuine issues of material fact, and therefore were insufficient to raise the lack-of-particularity issue. McLaughlin v. Alabama Farm Bureau Mutual Casualty Insurance Co., 437 So.2d 86 (Ala.1983).

Defendants contend that the fraud actions were time barred because they were brought more than one year after the alleged fraud was discovered. The sale of the lot occurred in 1976 and this action was not brought until January of 1980. The Walkers’ complaint said the fraud was discovered in 1979. Marion Walker testified in his deposition that he discovered the fraud in the spring of 1978 when he began compiling the paperwork necessary to obtain VA approval for the home he proposed to build. In Mr. Walker’s affidavit, filed in opposition to the motion for summary judgment, he claims his prior statement was incorrect. He states that he did not seek VA approval until he received his deed from Judy McConnell. He did not receive the deed until after Judy McConnell had recorded it. The recordation took place in December of 1978. Therefore, he states, it must have been the spring of 1979 rather than 1978 that he discovered the alleged fraud. Because there was a dispute as to this factual issue, summary judgment as to the fraud count on this ground was inappropriate.

In order to make out a claim for fraudulent misrepresentation, whether the defendant acted wilfully, recklessly, or mistakenly, there must be (1) a false representation, (2) which concerns a material existing fact, and (3) the plaintiff must rely on that false representation, and (4) the plaintiff must be damaged as a proximate result. McLaughlin, supra; International Resorts, Inc. v. Lambert, 350 So.2d 391 (Ala.1977).

Norden contends that the Walkers did not rely on Norden’s alleged misrepresentation and, therefore, that summary judgment as to Norden on the fraud count was appropriate. The only evidence presented on this issue is the deposition testimony of Mr. Walker. The relevant portion of his testimony is as follows:

“Q. Did you ever discuss this matter with Mr. Norden, who originally allegedly made the survey of the subdivision?
“A. No, sir. I didn’t know Mr. Henry Norton. I understand he was a good engineer.
“Q. Did you just testify that you had never met Mr. Henry Norden?
“A. That’s right.
“Q. Did you personally ever see the plat which Mr. Norden prepared which shows McConnell’s subdivision of which you purchased a lot?
“A. I saw the recorded copy of it in the Probate Office. Is that sufficient?
“Q. Yes, sir. When did you see that?
“A. After Mr. Adams called me and told me it was a 60-foot right-of-way.
“Q. About what year would that have been?
“A. ’78.
“Q. So this was after you purchased your lot when you saw this plat?
“A. That’s right.
“Q. When you bought the lot, did you purchase title insurance on it?
“Q. ... Would you tell me who was the first person to show you the plat prepared by Mr. Norden?
“A. Probate Court, the people in the Probate....
“Q. Okay. That’s fine. Did you ever check the Probate records here in Mobile County prior to purchasing your lot for any easements, rights-of-way, or anything of that sort?
“A. No, I did not.”

This testimony shows that at the time the Walkers purchased the lot, they had neither talked to Norden nor examined the plat he prepared; therefore they could not have relied on any misrepresentation he may have made in purchasing the lot. Summary judgment for Norden on the fraud counts was therefore proper.

The remaining defendants, Harry McConnell and Judy McConnell, contend that summary judgment on the fraud and warranty counts was appropriate because the Walkers failed to prove they were damaged. The Walkers contend that the damage is their inability to obtain VA approval to build a home on the lot because the lot does not contain the unencumbered number of square feet the deed purported to convey and therefore does not meet YA requirements. The defendants point out that the Walkers never formally applied for VA approval. They also contend that plaintiffs failed to establish any specific monetary loss and that plaintiffs did not attempt to obtain a waiver of the VA requirements.

While we agree that plaintiffs could have gone to greater lengths to document their damages, on summary judgment the only question is whether defendants have conclusively shown as a matter of fact that plaintiffs were not damaged. The facts as alleged by plaintiffs are sufficient to raise an inference of actual damages — in that they got something less than they thought they were getting — and this inference is sufficient to raise an issue of fact. This issue of fact has not been negated by defendants’ evidence offered on their motion for summary judgment.

In summary, we affirm the summary judgment on the claims against Norden and reverse the summary judgment on the claims against Judy McConnell and Harry McConnell.

AFFIRMED IN PART; REVERSED IN PART; AND REMANDED.

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

      . After suit was filed, Mr. Norden died and the executrices of his estate, Mary Norden and Catherine Garin, were substituted as defendants. For convenience, we will still refer to defendant Norden.