text:
    John D. PEEBLES, et al. v. Mary S. MILEY.
    82-402.
    Supreme Court of Alabama.
    Sept. 30, 1983.

      Broox G. Holmes and Christopher I. Gruenewald of Armbrecht, Jackson, De-Mouy, Crowe, Holmes & Reeves, Mobile, for appellants.
    Beth McFadden Rouse of McFadden, Riley & Parker, Mobile, for appellee.
   ADAMS, Justice.

This case involves the sensitive issue of how reasonable attorney’s fees are determined.

On January 4, 1983, the Circuit Court of Mobile County entered a judgment in favor of the plaintiff, Mary S. Miley, against the defendants for the sum of $26,744.00, plus court costs. Except for the costs, this represented an attorney’s fee to the plaintiff’s lawyer as a result of collecting $197,367.88 on a promissory note executed by the defendants. Plaintiff had claimed $39,562.58, or 20% of the recovery, as attorney s fees. The court allowed 15% of the amount of the recovery. The defendants appealed from the judgment awarding attorney’s fees, claiming that the trial court abused its discretion in making this award.

As in most cases, the facts play an important part in establishing the result to be reached. In February 1980, Fairhope East Joint Venture, an entity composed of the defendants in this action, executed a promissory note to the plaintiff, Miley, for the sum of $223,200.00 with interest at 9.5%. The indebtedness was the balance of the purchase price of certain rural property in Baldwin County. The note was secured by a vendor’s lien on 79.9 acres, but the agreement provided that certain pieces of property could be released by agreement of the parties. At the time of the litigation, there was 33.3 acres left in the original encumbered acreage, which was landlocked, the released property having been road frontage.

Payments on the note were to be made in six installments, namely, September 25, 1980, 1981, 1982, 1983 and 1984, with a remaining balance due and payable on February 28, 1985. The note contained the usual acceleration clause and, in addition thereto, contained the following provision:

It is further agreed that the undersigned shall pay all costs of collection, including a reasonable attorney’s fee, on failure to pay any installment of principal and interest of the note on the date due hereof.

Defendants paid the first two installments promptly. On September 23, 1982, two days prior to the due date of the 1982 installment, plaintiff’s original counsel, by letter, informed defendants that an installment of $39,283.20 was due on September 25, 1982. Plaintiff’s then-counsel was informed by defendants’ then-counsel that the partners of the joint venture “found it impossible” to raise the funds necessary to make the payment, and that the plaintiff should consider alternatives to default.

Plaintiff, from the beginning, was against alternatives, and desired payment in part or in full. Her first counsel suggested foreclosure as a means of collecting the balance due under the note, but plaintiff, not being satisfied with this attorney, contacted Attorney Stova McFadden, who recommended that plaintiff proceed by a direct suit on the note because this action would have to be taken if there were a deficiency on foreclosure, anyway. Plaintiff, at that time, was anxious to receive funds because she had to make a payment on a note on the same property that she had sold to defendants. On October 7, 1982, McFadden sent a demand letter to the defendants, accelerated the note, and informed defendants that if payment in full was not made by October 18, 1982, suit would be filed. Plaintiff was again informed that the defendants were unable to pay the installment and defendants suggested various alternatives in lieu of the payment of the debt. Plaintiff’s attorney suggested, as an alternative, that the entire indebtedness of $196,700, plus an attorney’s fee of 15% be paid within one week and in the event this was not done, that a default in this amount plus fee be entered. Contemporaneously with this suggestion made by plaintiff, defendants advised that the debt would be paid within a week. On October 22, 1982, the lawyer for the plaintiff contacted defendants’ representative to determine whether the defendants had agreed on the alternative he suggested. He was informed that no agreement had been reached because all of the partners could not be located. On that same day suit was filed.

On November 5, 1982, defendants’ new counsel sent plaintiff’s counsel a check for $197,367.88, being the full amount plus interest due on the note. In addition thereto, $7,500.00 as an attorney’s fee was also tendered by separate check.

Plaintiff’s attorney indicated that he only spent 8 or 10 hours’ time in the handling of this litigation; however, his arrangement with his clients was that he should look to obtain his fee on a percentage basis from the defendant. In other words, if he did not receive his fee from the defendants, he could not receive any fee from plaintiff.

The court heard testimony from four attorneys, including the plaintiff’s attorney. Three attorneys testified that it was customary in the Mobile area to take collection of promissory notes on a contingent percentage fee arrangement rather than an hourly basis. They further testified that 20% of $197,367.00 would produce a reasonable attorney’s fee for plaintiff’s services in this case. One attorney, the defendant’s witness, testified that based on hours spent and the result achieved, a reasonable fee would be $2,000.00. However, he also testified that he had handled promissory note collections on a percentage basis and had been awarded fees up to 25% and “maybe one-third.”

Over 71 years ago, Justice Somer-ville set forth yardsticks to be used by our courts in determining reasonable attorney’s fees. He said:

The general principle is everywhere established that an attorney is in such a case entitled to reasonable compensation for his services, appropriate to his employment, rendered by him to his client.-Humes v. Decatur, etc., Co., 98 Ala. 461, 470, 13 South. 368. In the estimation of their value many elements may be material for consideration, among which are the nature and value of the subject-matter of the employment; the learning, skill, and labor requisite to its proper discharge; the time consumed; the professional experience and reputation of the attorney; the weight of his responsibility; and the measure of success achieved.

Faulk & Co. v. Hobbie Grocery Co., 178 Ala. 254, 59 So. 450 (1912).

Forty years later, Justice Simpson added an additional criterion to the six criteria above mentioned. King v. Keith, 257 Ala. 463, 60 So.2d 47 (1952). The seventh criterion was that in determining a reasonable attorney’s fee, the trial judge should take into consideration the reasonable expenses incurred by the attorney. Although Justice Somerville mentioned in the Faulk case that the customary charges of lawyers in a particular community should also be taken into consideration in determining a reasonable attorney’s fee, and some cases have stated that the amount of an attorney’s fee could turn on whether the fee was certain or contingent, nevertheless, the codification of the criteria, for the most part, has remained as set forth in the Faulk case. Frazer v. First National Bank of Mobile, 235 Ala. 252, 178 So. 441 (1938); Ingalls v. Hare, 266 Ala. 221, 96 So.2d 266 (1957).

Our civilization has progressed dramatically in the past 71 years, as well as our jurisprudence. Although we do not decide that the trial court abused its discretion in deciding the attorney’s fees in this case, we are also cognizant that the trial court may not have been aware of certain guideposts, not clearly enunciated in our previous decisions, that should have been taken into consideration in determining a reasonable attorney’s fee. Therefore, we vacate the judgment herein, and remand this case to the trial court for reconsideration of a reasonable attorney’s fee in the light of our discussion in this opinion of current guideposts to be used in determining counsel fees.

On January 1, 1970, Canon 12 of the American Bar Association relating to fees was superseded by Disciplinary Rule 2-106, which states in § (B):

(B) A fee is clearly excessive when, after a review of the facts, a lawyer of ordinary prudence would be left with a definite and firm conviction that the fee is in excess of a reasonable fee. Factors to be considered as guides in determining the reasonableness of a fee include the following:
(1) The time and labor required, the novelty and difficulty of the questions involved, and the skill requisite to perform the legal service properly.
(2) The likelihood, if apparent to the client, that the acceptance of the particular employment will preclude other employment by the lawyer.
(3) The fee customarily charged in the locality for similar legal services.
(4) The amount involved and the results obtained.
(5) The time limitations imposed by the client or by the circumstances.
(6) The nature and length of the professional relationship with the client.
(7) The experience, reputation, and ability of the lawyer or lawyers performing the services.
(8) Whether the fee is fixed or contingent.

Model Code of Professional Responsibility, DR 2-106(B) (1982).

Thus, according to the American Bar Association, Justice Somerville’s original criteria of six, to which one has been added, should be expanded to include five additional criteria. They are as follows:

1. Whether a fee is fixed or contingent.

2. The nature and length of a professional relationship.

3. The fee customarily charged in the locality for similar legal services. (This was included in the Faulk opinion, but not listed in cases which have followed Faulk).

4. The likelihood that a particular employment may preclude other employment.

5. The time limitations imposed by the client or by the circumstances.

After due consideration of these additional measurements, we believe them to be appropriate yardsticks to be used in determining counsel fees and adopt them as a part of our Alabama jurisprudence.

Having now adopted five additional criteria to the seven already a part of our law, what do they mean and how are they to be applied? We will first address those measurements which have particular impact in the case at bar and then we will discuss the other measurements for the benefit of the practicing bar, as well as the members of the public who may be interested. The measurements which have particular force in this case are: the time consumed; the fee customarily charged in the locality for similar legal services; whether the fee is fixed or contingent; and, the time limitations imposed by the client or by the circumstances.

I. Time Consumed

Although all of the criteria set forth above must be taken into consideration by the trier of the facts in determining a proper counsel fee — and it has been said that all of these factors should be utilized and applied as the facts so indicate — it is generally recognized that the first yardstick that is used by the trial judges is the time consumed. The reason is fairly obvious. Because of the nature of the legal profession, and the demand to make each hour productive, it stands to reason that competent lawyers would not amass huge numbers of hours unless they were absolutely necessary. However, we must beware of slavish adherence to the time criterion to the exclusion of other criteria. To do so would penalize the lawyer who desires to get his work done as rapidly as he can for the benefit of his client and all concerned. Likewise, we all know that some lawyers can accomplish in a few hours what it would take other lawyers several days to accomplish. Here, although the attorney only spent between 8 and 10 hours on the litigation, it was premium, productive time. The time spent resulted in obtaining for his client the amount immediately due, as well as the total amount of the note which ordinarily would not have been due in full until 1985. If Lawyer McFadden had chosen to proceed with foreclosure instead of direct suit on the promissory note, more time would have been consumed and if time were the only factor involved in determining the fee, more fee would have been earned, but the client would have had the embarrassment of not having funds to pay the note that she had to pay on the property-

II. Fee Customarily Charged in Locality For Similar Legal Services

Justice Somerville said in Faulk:

It seems also to be settled by high authority that, where services of the same general nature and extent are of such frequent recurrence among the legal profession that a certain fee, or a certain basis for its estimation, has become customary and usual in such cases, evidence thereof is proper to show what is reasonable.-Stanton v. Embry, 93 U.S. 548, 23 L.Ed. 983; Knight v. Russ, 77 Cal. 410, 19 Pac. 698; Vilas v. Downer, 21 Vt. 419; Nathan v. Brand, 167 Ill. 607, 47 N.E. 771.

It is clear that the customary fee charged in the Mobile area for the collection of notes on a contingent percentage basis is in the neighborhood of 20%. Of course, there are lawyers who would not take a collection case on a contingent basis and in such a situation, the fee collected from the defendant under a clause such as provided in this note would only be the amount agreed to by the debtor. Faulk & Co. v. Hobbie Grocery Co., 178 Ala. 254, 59 So. 450 (1912). However, the court judicially knows that the great majority of the collections done in this state are done on a contingent percentage fee basis. The trial court here voluntarily made it known that it routinely gave in the neighborhood of 20% in collection cases where there had been a default. The reason for the contingent percentage rule is clear. Creditors with many claims or large claims need to obtain money properly owing to them without any corresponding additional charges if the attorney is not successful. Attorneys in the business of practicing law are staffed to take on such contingent arrangements because they believe their competence is sufficient to make what may seem to be an impossibility, a partial or complete success. Such an arrangement serves the public, as well as the profession.

III. Whether The Fee is Fixed or Contingent

Counsel for the defendants make much of the argument that defendants, in signing the note, did not sign to pay a contingent percentage fee, but signed to pay a reasonable attorney’s fee. We agree, but under the circumstances, these words may be synonymous. No one could seriously argue that after default, the debtor should have the right to choose the attorney that best suits his or her predilection. It is natural to believe that a creditor, if he or she can, would prefer, in collecting on a promissory note, to obtain a lawyer who would agree to obtain the fee for collection from the debtor, and if he could not obtain it from the debtor, would make no charge to the creditor. Plaintiff was able to find such an attorney, and, therefore, the charges made by such attorney based on such a contingent percentage arrangement, if reasonable in all other aspects, must be reasonable. Otherwise, we would have the hapless circumstance of the defaulting debtor’s dictating to the creditor the attorney that the creditor should choose.

Our cases recognize that an attorney on a contingent fee basis is entitled to charge more than an attorney who is guaranteed compensation by periodic billings. The common sense of this is exemplified in the adage “A bird in the hand is worth two in the bush.” If someone is willing to take the great risk of giving up the sure quantity for the uncertain, and wins, then the uncertain prize should be worth more than the certain one. Although counsel for the defendant talks about the fact that defendants promised payment in a week and plaintiff’s attorney filed suit before the week was up, this was no guarantee that defendants would actually pay within the week. Prior to this time, they had indicated they were having difficulty getting the payment in full and suggested to the plaintiff that she consider alternatives. She was not moved by this because she had her own payment schedule to meet. Plaintiff’s attorney seems to have done what was most logical — proceed to litigation in order that his client might get her money as soon as possible.

IV.The Time Limitations Imposed by the Client or by the Circumstances

Inasmuch as this criterion was not a part of our law at the time of the trial, the court will be in a position to take additional testimony as to whether plaintiff’s lawyer was precluded from other business by virtue of the fact that he had to proceed with great haste to obtain for the plaintiff the obligation that was due her. In other situations, this could include litigation brought by clients on the eve of the running of the statute of limitations, or work done for a criminal defendant in stay of execution, or preparation for trial where a former lawyer has been discharged, and other instances.

V. Nature and Value of Subject Matter of Employment and Weight of Responsibility

Although an attorney must treat all cases with seriousness and discharge his responsibilities to the best of his ability, common sense tells us that some cases are more complex, involve the lives and fortunes of larger numbers of people, and have a greater public value than other cases. In many cases, lawyers are fighting to overturn the precedents and make new ones. In class action cases, a lawyer may represent hundreds of thousands of people. In some cases, the reputation and integrity of his client may be at stake. In other cases, the very life of a client could be involved. In such cases, due consideration must be made in adjusting the attorney’s fee.

VI. Reputation of the Attorney and the Learning Requisite to His Proper Discharge

The reputation of the attorney is important, not because an attorney should be paid on his reputation, but because it is well recognized that there are certain attorneys who have reputations for being experts in certain areas of the law. These attorneys can accomplish in a few hours what it would take certain attorneys a protracted length of time to accomplish, if ever. Adequate compensation should be made for this expertise.

VII.The Nature and Length of Professional Relationship and Likelihood That a Peculiar Employment May Preclude Other Employment

Under appropriate circumstances, an attorney who is the attorney for a client who has frequent and continuing legal problems may make appropriate adjustment of the amount of the fee charged. What would be a reasonable fee to such a client may not be the same as for a client who sees the lawyer for the first time. Even in this category, as with all categories, all factors must be considered and weighed against each other before a reasonable attorney’s fee is arrived at. The converse of this treatment of the longstanding client is the treatment of a client whose case may preclude other substantial employment. For instance, a suit against a police officer may effectively preclude employment by the suing lawyer of any business from police officers. Because of this potential loss of clients, a lawyer in setting a reasonable attorney’s fee may take this into consideration.

Having briefly discussed the most current legal principles dealing with reasonable attorney’s fees, we would like to add one caveat. We agree with the admonition of the American Bar Association to the effect that “a fee is clearly excessive when after review of the facts, a lawyer of ordinary prudence would be left with a definite and firm conviction that the fee is in excess of a reasonable fee.” We are of the opinion that $26,744.00 is in excess of a reasonable fee. As the amount of the recovery increases, the attorney’s fee should be prudently reduced. Otherwise, we would have the anomalous situation of a routine collection of a promissory note of $2,000,000.00 and an attorney’s fee of $400,-000.00. The determination of a reasonable attorney’s fee should not be done in a wooden, inflexible manner, but should be done so that all factors will be given their proper interplay. Likewise, we are of the opinion that an amount from $2,000.00 to $7,500.00 is inadequate compensation. Somewhere between the $7,500.00 and $26,744.00 lies a reasonable fee in this case.

Because of the sensitive nature of the problem of attorney’s fees, the litigants and the public would be better served if both attorneys in this case, and their clients, attempted to settle these differences without further resort to the courts.

In accordance with the foregoing reasons, the judgment of the trial court is vacated and the cause is remanded for proceedings consistent with this opinion.

JUDGMENT VACATED; CAUSE REMANDED.

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

BEATTY, J., concurs in the result.

TORBERT, C.J., recused.

      . King v. Keith, 257 Ala. 463, 469, 60 So.2d 47 (1952); 7 Am.Jur.2d Attorneys at Law, § 254 (1980).

      . See 57 A.L.R.3d, 475, Amount of Attorney’s Compensation in Absence of Contract or Statute Fixing Amount; 58 A.L.R.3d 235, Attorney’s Fee in Commercial Matters.


source: Caselaw Access Project

author: FAULKNER, Justice.

license: Public Domain

text:
    CENTRAL ACCEPTANCE CORPORATION, a corp. v. COLONIAL BANK OF ALABAMA, N.A. Raymond E. EVANS v. COLONIAL BANK OF ALABAMA, N.A. Bryant A. WHITMIRE, Jr., as Administrator ad litem of the Estate of Sue B. Evans, deceased v. COLONIAL BANK OF ALABAMA, N.A.
    82-463, 82-464 and 82-465.
    Supreme Court of Alabama.
    Sept. 30, 1983.

      David Cromwell Johnson and Bryant A. Whitmire, Jr. as Administrator Ad Litem, Birmingham, for appellants.
    C. Lee Reeves of Sirote, Permutt, Friend, Friedman, Held & Apolinsky, Birmingham, for appellees.
   FAULKNER, Justice.

These appeals come to us from a summary judgment in favor of the plaintiff, Colonial Bank, against Central Acceptance Corporation, Raymond Evans, and Bryant Whitmire, Jr., as administrator ad litem of the estate of Sue Evans, deceased.

Central Acceptance was engaged in the business of financing accounts receivable. Colonial Bank entered into a loan agreement with Central Acceptance on April 5, 1979, pursuant to which Colonial made cash advances to Central Acceptance to enable Central to purchase installment sales contracts from third parties. Central Acceptance assigned Colonial its rights in the installment contracts as security for the loans. On June 1, 1979, Raymond Evans, president and sole stockholder of Central Acceptance, and his wife, Sue Evans, signed a guaranty agreement personally guaranteeing repayment of all loans, advances or other indebtedness owed by Central Acceptance to Colonial.

On January 14, 1980, Central Acceptance signed a promissory note for $525,650.14, which represented the balance owed by Central to Colonial as of that date. The note was payable on demand but not later than June 30, 1980. Colonial also loaned Central Acceptance $9,297.63 on December 4, 1981, as evidenced by a note which matured on February 8,1982. Central Acceptance maintained a checking account with Colonial. Colonial paid overdrafts drawn by Central on the account in the amount of $7,486.44.

In addition to borrowing money on behalf of the corporation, Raymond Evans, in his individual capacity, executed two notes on December 4,1981, for loans of $7,142.10 and $6,228.73, both of which fell due on February 8, 1982. Colonial also advanced Mr. Evans $2,957.53 by paying overdrafts on his personal checking account.

On September 14, 1982, Raymond Evans, acting on behalf of Central Acceptance and as individual guarantor, signed the following letter addressed to Colonial:

“I am today settling a [law suit] styled Central Acceptance Corporation and Ray Evans v. The Volirath Company, et al. for a new amount of approximately $240,-000.00. The suit involves litigation regarding certain written contracts between the parties to the suit. My interest in said contracts has been assigned to your bank to secure certain indebtedness which remains outstanding in the approximate amount of $160,000.00 plus accrued interest.
“The purpose of this letter is to confirm my agreement to first collect the proceeds of the settlement on September 14, 1982 or September 15, 1982 through my attorney in Montgomery and on the same day of collection, retire in full the balance of my indebtedness at your bank. I acknowledge your interest in the proceeds and hereby agree to pay you in full from said proceeds.”

On September 24,1982, Colonial filed the instant action seeking to enjoin Mr. Evans from disposing of the proceeds of the action mentioned in the letter of September 14 and seeking a judgment against Central Acceptance, Raymond Evans, and Sue Evans for the indebtedness owed by Central to Colonial plus $250,000.00 for fraud and misrepresentation.

Colonial amended its complaint when it discovered that Sue Evans had died on June 20, 1982, to add her estate as a party defendant. Contemporaneously, it filed a motion pursuant to § 43-2-250 of the Code of Alabama to appoint an administrator ad litem to represent Sue Evans’s estate in the proceeding. On November 3,1982, the trial court appointed Drew Whitmire, Jr. to serve as administrator ad litem.

The defendant’s answer admitted executing the notes, but denied that any money was owing to the plaintiff. They also asserted a counterclaim alleging breach of contract, tortious interference with Central’s business relationship with a third party, and fraud.

On January 4,1983, the trial court granted Colonial’s motion for a partial summary judgment based on affidavits, depositions, and answers to interrogatories. In its decree the court made detailed findings of fact and entered a final judgment against Central Acceptance for $120,228.03, against the estate of Sue Evans on her personal guarantee of Central’s debt for $121,351.00 ($120,228.03 plus an attorney’s fee of $1,122.97), and against Raymond Evans for $129,639.24 based on his personal guarantee of Central’s debt and his own debt to Colonial. The court found that there was no just reason for delay of entry of final judgment as to each defendant and expressly directed entry of a final judgment. See A.R.Civ.P., 54(b).

In support of its motion for a summary judgment Colonial filed an affidavit signed by an official of the bank describing the course of dealing between Colonial and Central Acceptance. To the affidavit, Colonial attached copies of notes, computer print-outs, and other bank records recapitulating payments, accrual of interest and other computations with regard to the debt, along with a copy of the signed guaranty agreement.

Raymond Evans’s affidavit filed in opposition to the motion read in pertinent part:

“The note attached to the Bank’s Affidavit as Exhibit 8 is the note accepted by the Bank as a replacement for the prior notes. I call attention to the fact that said note was executed as the replacement for all prior notes and is not a renewal of any single note. That said note delivered to and accepted by the Bank is not a renewal of the prior notes referred to in the Affidavit and said note is executed only by Central Acceptance Corporation and not by me.
“Subsequent to the date of execution of said notes, the debt was reduced by substantial payments as evidenced by handwriting calculation on the last page of Exhibit 9 reflecting a principal and interest balance on February 18, 1982 of $158,931.17 (One Hundred Fifty-Eight Thousand, Nine Hundred Thirty One and 17/100). The amount of credits in reduction of said debt is disputed by me and by Central Acceptance Corporation and all credits thereon were not properly applied to the reduction of said debt.
“The debt of Central Acceptance Corporation was secured by consumer financial paper which consisted, primarily, of consumer installment sales contracts, which said contracts were delivered to the plaintiff Bank and which said contracts and the receipts thereof by prior order of this Court have been foreclosed and the security interest therein exercised and it is impossible to determine at this time the value of the consumer paper under which the Bank has exercised its security interest and proceeds of which the Bank is currently collecting. The outstanding balance on said consumer paper is in excess of the debt owed by Central Acceptance Corporation to the Bank. The records reflecting the values of said paper are in the possession of the Bank.
“The amount of the debt is denied in its totality and the amount owed by Central Acceptance Corporation is not capable of present ascertainment.
“The note of Central Acceptance Corporation attached as Exhibit 8 had not been paid on its due date of June 30, 1980, but payments were made on said note and said note was never called and demand for payment of the unpaid balance thereon made until after September 23, 1982, at which time I was orally told that the Bank demanded its payment in full and would proceed in collection efforts. The lawsuit was filed on September 24, 1982.
“I deny that there is any amount presently due and owing from Central Acceptance Corporation of which I am the sole stockholder and its President and Chief Executive Officer. The amount owed by Central Acceptance Corporation cannot be ascertained since the Bank has made collections on its debt and refused and declined to tell me what payments it has received and credited to that debt. I specifically deny the statement of account attached to Exhibit 10 of the Motion.”

In questioning the propriety of the summary judgment the defendants make two arguments. First, they argue that because the bank had control over the records on which the calculations contained in its affidavit were based, the defendants were unable to determine what, if anything, was owed. Second, they argue that the outstanding balance on the installment sales contracts held by the bank as collateral was in excess of the amount owed. Therefore, the defendants maintain the summary judgment placed the bank in the position of being able to collect twice on the debt.

Rule 56(f) of the Alabama Rules of Civil Procedure is identical to the Federal rule. It provides that:

“Should it appear from the affidavits of a "party opposing the motion that he cannot for reasons stated present by affidavit facts essential to justify his opposition, the court may refuse the application for judgment or may order a continuance to permit affidavits to be obtained or depositions to be taken or discovery to be had or may make such other order as is just.”

While Rule 56(f) should be liberally applied to allow parties an ample opportunity to marshal necessary facts to support their respective positions, the defendants in the case at bar did not request a continuance to engage in further discovery, nor did they explain their inability to determine the amount owed to the bank. On November 12, approximately a month before the motion for summary judgment was filed and nearly two months before the court’s decree, the bank answered the defendants’ interrogatories and filed a response to the defendants’ motion to produce, agreeing to “produce all documents that are unprivileged that relate to the transactions between Raymond E. Evans, Sue B. Evans, or Central Acceptance Corporation with the Bank concerning the line of credit and other debts made the basis of this lawsuit.” We find nothing in the record indicating that the bank failed to make the documents available to the defendants; nor did the defendants file a motion to compel further discovery of bank records. The defendants cannot forestall a summary judgment by asserting that the opposing party has possession of pertinent documents where the defendants failed to utilize discovery to acquire evidence to rebut the plaintiff’s contentions. United States v. Manufacturers Bank of Southfield, 518 F.Supp. 495, 497-498 (E.D.Mich.1981); Society of New York Hospital v. Associated Hospital Service of New York, 367 F.Supp. 149, 155 (S.D.N.Y.1973); United States v. Donlon, 355 F.Supp. 220, 225 (D.Del.1973), aff’d, 487 F.2d 1395 (3d Cir.1973). Once the movant established the absence of any genuine issue of material fact, the defendants’ naked assertion that they contested the validity of the bank’s computations, without more, was insufficient to create a genuine issue of fact, especially in light of Raymond Evans’s letter to the bank dated ten days before suit was filed admitting the existence of the debt.

The defendants also argued that the summary judgment should have been denied pending a determination of the value of the collateral held by the bank. We disagree. Upon default, a secured party in possession of collateral is not precluded from taking a judgment on the note. The rights of a secured party are cumulative. Section 7-9-501(1), Code of Alabama. The existence of collateral does not affect the amount of the debt; it merely provides one means of enforcing payment. See, e.g., Everett v. Parts, Inc., 4 Ark.App. 213, 628 S.W.2d 875 (1982); Ceres Fertilizer, Inc. v. Beekman, 209 Neb. 447, 308 N.W.2d 347 (1981); McCullough v. Mobiland, Inc., 139 Ga.App. 260, 228 S.E.2d 146 (1976).

Although the court’s order requires the bank to credit any amounts received in payment on the collateralized accounts receivable, the defendants argue that they are left to rely on the bank’s good faith in crediting their account. Their contention that the bank can, with impunity, collect the same debt twice ignores the protection afforded by § 7-9-502(2), which requires that if the bank undertakes to collect on the obligations held as collateral it must proceed in a commercially reasonable manner and must account to the defendants for any surplus. Section 7-9-502(2), Code of Alabama; Major’s Furniture Mart v. Castle Credit Corp., 449 F.Supp. 538 (E.D.Pa.1978), aff’d, 602 F.2d 538 (3d Cir.1979); Foster v. Knutson, 84 Wash.2d 538, 527 P.2d 1108 (1974). See also §§ 7-9-207, 7-9-504(2).

The defendants also question whether it was proper to enter a judgment against the estate of Sue Evans before any administration of the estate was begun. They point out that the non-claim statute, § 43-2-131, generally prevents the filing of an action against an administrator or an executor until six months after the grant of letters of administration or letters testamentary.

Although the non-claim statute is ordinarily a defense to an action prematurely filed, the statute does not go into effect, and hence is not a defense, where there has been no administration of the estate. Trotter v. Brown, 232 Ala. 147, 150, 167 So. 310, 312 (1936) (on rehearing); Merchant’s National Bank v. McGee, 108 Ala. 304, 307, 19 So. 356, 357 (1895). When no administrator has been appointed, an administrator ad litem must be appointed to represent the estate. Section 43-2-250, Code of Alabama.

We have examined the other contentions of the defendants and find them to be similarly meritless. The judgment is due to be, and hereby is, affirmed.

AFFIRMED.

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


text:
    Miles W. BALL, et al. v. ESCAMBIA COUNTY COMMISSION, etc., et al. ESCAMBIA COUNTY COMMISSION, etc., et al. v. G.S. “Scotty” BYRNE.
    82-528, 82-578.
    Supreme Court of Alabama.
    Sept. 30, 1983.

      James R. Owen of Owen & Ball, Bay Minette, for appellants.
    James W. Webb of Webb, Crumpton & McGregor, Montgomery, for appellees.
   FAULKNER, Justice.

These are appeals from an order granting motions for summary judgment filed by the Escambia County Commission, and by the Sheriff of Escambia County.

The appellants are deputy sheriffs of Es-cambia County. They filed a bill for declaratory judgment praying that the court order the commission to pay them overtime pay for January-February, 1982, and all future overtime pay pursuant to Act No. 81-868, Acts of Alabama, 1981, Vol. II, p. 1661.

The Commission filed a third-party complaint naming Sheriff Byrne as a third-party defendant, and praying that the court order the sheriff to pay the deputies their overtime from amounts already appropriated and budgeted by the Commission for operation of the sheriff’s department. The Commission filed a cross-appeal.

The Commission and the sheriff filed motions for summary judgment. Both were granted by the trial judge. We affirm.

Briefly, the facts are that the deputies were paid for overtime that was allowed within the limits of the budget. Even though funds for overtime pay were exhausted, the sheriff ordered the deputies to more overtime duty. The Commission refused to pay.

The Chairman of the Commission testified by affidavit that the Commission budgeted $11,000.00 for overtime pay for the deputies for fiscal year 1981-82. This amount was $3,500.00, less than the minimum recommended by the sheriff. He further testified that the sheriff and the commission were unable to reconcile their differences.

The issue presented for review is whether the Commission, through its budget, may limit the amount of overtime pay for Es-cambia County deputy sheriffs.

The deputies contend that the Commission is violating Act No. 81-868. That' Act provides in part:

“Section 1. Any non-elected law enforcement officer in the service of a county who is assigned to duty for more than eight hours during any one day or for more than forty hours during any calendar week shall be paid time and one-half for such excess hours worked; or he shall be given time and one-half compensatory leave. In all such cases, it shall be at the sole option of the law enforcement officer whether he shall receive overtime pay or compensatory leave.
“Section 2. Any such law enforcement officer who works overtime during any calendar month shall on the last day of such month file in writing a statement as to his election to accept overtime pay or compensatory leave. In the event such law enforcement officer elects to receive overtime pay, such pay shall be included with his compensation for the next succeeding pay period. If he elects to receive compensatory leave, such leave may be taken at any time during the calendar year in which it is earned, except during times of emergency.”

We opine that the Commission has not violated Act No. 81-868. While we are sympathetic with the deputies, we must give due regard to the budget adopted by the Commission. Of course, under Code 1975, § 11-3-13, the Commission must adopt a budget, and may appropriate sufficient funds to pay the actual expenses of the county pursuant to the budget. We do not believe that Act No. 81-868 mandates that the Commission must rework the budget and prorate other county departments to pay for the expenses of the sheriff’s department. We agree with the holding in Hale v. Randolph County Commission, 423 So.2d 893, 895-96 (Ala.Civ.App.1982):

“This means, of course, that the amount of money that it can be paid for overtime work is limited to the overall appropriation for the entire operation of the sheriffs office. In this posture, the sheriff is held to a reasonable exercise of discretion in the amount of overtime work his department will incur, just as he must decide about office expenses, use of gasoline, and the purchase of equipment.
“To say that the deputy sheriffs must be paid for all of the overtime that they are directed by the sheriff to work would be to approve an open-ended appropriation for this purpose. We do not perceive such an interpretation to be the law. * *
“We conclude, therefore, that the legislature has conferred the authority on the Randolph County Commission to appropriate an overall amount of money for the operation of the sheriffs office. Such appropriation will include mandated sums as well as discretionary sums. Such appropriation should include a sum of money for the payment of overtime work by deputy sheriffs just as it provides for the payment of gasoline, oil, office expenses, equipment purchases, etc. The failure to include a special appropriation for the payment of overtime work cannot prevent the payment of such work. The only limitation will be the overall appropriation to the sheriffs office.”

We do not find that the Commission has failed to pay for overtime under the provisions of the budget. It is apparent from the record that the Commission, in effect, said “Sheriff, you have exhausted the $11,-000.00 we budgeted and appropriated for overtime. Therefore, if you order overtime, you’ll have to shift some funds within your department to pay it. You are limited to the appropriation to your department.” We concur.

The order granting summary judgments is affirmed.

AFFIRMED.

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


author: BEATTY, Justice.

text:
    HUMANE SOCIETY OF MARSHALL COUNTY, a Corporation, et al. v. L.B. ADAMS, et al. L.B. ADAMS, Wymon Adams, and Laverne Adams v. HUMANE SOCIETY OF MARSHALL COUNTY, a Corporation, et al.
    82-606, 82-639.
    Supreme Court of Alabama.
    Sept. 30, 1983.

      Daniel B. King of King & King, Gadsden, for appellants/cross-appellees.
    T.J. Carnes, Albertville, for appel-lees/cross-appellants.
   BEATTY, Justice.

These appeals are before this Court as a result of a judgment made final under Rule 54(b), Alabama Rules of Civil Procedure. The order was entered March 3, 1983, by the Circuit Court of Marshall County. We affirm.

The factual background as stated in the order “is that the plaintiffs [the Adamses] were the owners of certain cattle and that the defendants, being members of a humane society and finding the plaintiffs’ cattle in poor condition, seized the cattle without any legal process and, later sold the cattle.” The complaint in Count I sought damages for conversion and trespass and in Count II for wrongful detention of the plaintiffs’ cattle by the defendants.

The trial court granted a partial summary judgment for plaintiffs (cattle owners) but denied them a monetary judgment, reserving the issue of damages for the jury. The plaintiffs appeal the denial of a monetary judgment. The trial court also denied defendants’ motion for summary judgment in which they contended that their acts were constitutional and authorized under Code of 1975, § 3-1-13. The defendants (the Humane Society and certain employees) appealed the denial of their motion for summary judgment.

The issue noted by the plaintiffs (cross-appellants) on their notice of appeal (the denial of the monetary judgment) was not argued in brief. Issues not argued in brief are waived. Boshell v. Keith, 418 So.2d 89, 92 (Ala.1982). Consequently, the sole issue presented for review is whether the trial court was correct in finding § 3-1-13 unconstitutional and in denying defendants’ motion for summary judgment.

The statute in question, Code of 1975, § 3-1-13, states:

“Any duly authorized officer or employee of a recognized humane society shall have the right to take charge of any animal which is sick or disabled due to neglect or is being cruelly treated or abused and to provide care for such animal until it is deemed to be in suitable condition to be returned to its owner or to the person from whose custody such animal was taken.
“The officer so taking such animal shall at the time of taking the animal give written notice to the owner or person from whose custody it was taken.
“The necessary expenses incurred for the care and keeping of the animal after such notice by the humane society shall be a lien thereon and, if the animal is not reclaimed within 10 days from the giving of such notice, the humane society may sell the animal to satisfy such lien. If the humane society determines that the animal cannot be sold, it may cause the animal to be otherwise disposed of.”

Other jurisdictions with statutes similar to Alabama’s have found them unconstitutional on due process grounds. We quote at length from the well-reasoned opinions of two other courts on the due process issue. The fundamental requirement of due process is the opportunity to be heard at a meaningful time and in a meaningful manner. Mathews v. Eldridge, 424 U.S. 319, 333, 96 S.Ct. 893, 902, 47 L.Ed.2d 18 (1976).

The Supreme Court of Colorado considered that state’s similar animal neglect statute and struck it down in 1907, saying:

“The doctrine of the authorities is that whenever it is sought to deprive a person of his property, or to create a charge against it, preliminary to, or which may be made the basis of, taking it, the owner must have notice of the proceeding, and be afforded an opportunity to be heard as to the correctness of the assessment or charge. It matters not what the character of the proceeding may be, by virtue of which his property is to be taken, whether administrative, judicial, summary, or otherwise. At some stage of it, and before the property is taken or the charge becomes absolute against either the owner of his property, an opportunity for the correction of wrongs and errors which may have been committed must be given. Otherwise the constitutional guarantees above cited are infringed .... [W]e find the statute seeks to clothe the humane society and its agents with extraordinary powers. By its terms the agent is the sole judge of whether an animal is neglected, abandoned or ill treated, and whether it has sufficient food, nourishment, and shelter. The truth respecting the matter cannot avail, because the agent is clothed with power to take possession of the animals, regardless of their condition. No tribunal or any hearing is provided to determine the facts. The agent may in his discretion take possession and create a charge which becomes a lien upon the property without notice or hearing.” Jenks v. Stump, 41 Colo. 281, 286-88, 93 P. 17, 19 (1907).

In examining West Virginia’s animal neglect statute, which is similar to Alabama’s statute, the Supreme Court of Appeals of West Virginia stated:

“There is no provision for a pre-seizure or even an expeditious post-seizure hearing to contest the validity of the humane officer’s determination of abandonment, neglect, or cruel treatment or to contest the validity of the lien which arises perforce. This failure to provide the animals’ owner a reasonable opportunity to be heard at some stage in the proceedings is the most serious constitutional deficiency of [the statute].” Anderson v. George, 233 S.E.2d 407, 409 (W.Va.1977).

The State of Alabama has a legitimate interest in seeing that animals are treated humanely. Any legislation enacted by the State to further that interest, however, obviously must comply with due process requirements. Cf. Pike v. Southern Bell Telephone & Telegraph Co., 263 Ala. 59, 81 So.2d 254 (1955). The elements of due process referred to in the quoted opinions are lacking in Alabama’s statute, § 3-1-13. Humane Society officers or employees are authorized to seize an animal which, in their sole discretion, is abused or neglected. In addition to the deprivation of the owner’s interest in his animals, he becomes liable for any expenses for their care, the amount of which expenses being solely controlled by the Society. The only “notice” the owner receives is of the seizure and of the sale. The statute provides no opportunity for the owner to contest the seizure or the sale of the animals.

Accordingly, we are compelled to conclude that the statute is unconstitutional on due process grounds. Constitution of 1901, Art. I, § 6. It follows that the trial court correctly granted the plaintiffs’ motion for summary judgment on the count of conversion, and correctly denied the summary judgment motion of defendants.

Let the judgment be affirmed.

AFFIRMED.

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

EMBRY, J., not sitting.


author: TORBERT, Chief Justice.

text:
    Richard McMILLON v. Belinda Joyce HUNTER.
    82-85.
    Supreme Court of Alabama.
    Oct. 7, 1983.
    Michael K. Beard and J. William Thoma-son of Rives & Peterson, Birmingham, for appellant.
    Eugene D. Martenson and R. Steven Bull-ington of Huie, Fernambucq & Stewart, Birmingham, for appellee.
   TORBERT, Chief Justice.

The issue presented in this case is whether a third-party complaint can be dismissed with prejudice on summary judgment because it was improperly filed. We reverse the trial court’s grant of summary judgment.

The relevant facts are as follows. Appellant was injured in an automobile accident involving appellee. Because of confusion and disagreement between appellant and Allstate Insurance Company, appellee’s insurer, over responsibility for appellant’s medical treatment, the medical provider’s bills were not paid. The medical provider filed suit against appellant and Allstate for payment. Appellant filed a motion to join appellee as a defendant on the ground that she was a necessary party to the lawsuit. At the same time, appellant filed a third-party complaint (labelled as a “cross-claim”) against appellee. One month later, the court added the appellee as a party defendant. Appellee subsequently filed a motion to dismiss or, in the alternative, a motion for summary judgment, on the grounds that 1) appellant had improperly filed a “cross-claim” against a person who was not at the time a party to the action from which the cross-claim arose, or 2) appellant had improperly filed a third-party complaint because the claim did not arise out of the same occurrence that is the subject matter of the original complaint. The trial court granted summary judgment for appellee and appellant appealed.

Appellant does not contend that the third-party complaint was proper. See A.R.Civ.P., Rules 13 and 14. Rather, appellant argues that failure to properly file, whether the claim be denominated a cross-claim or third-party complaint, is not a matter for dismissal with prejudice or summary judgment. The trial court’s ruling did not adjudicate the merits. Failure to properly join a party before filing a cross-claim or to comply with the occurrence test for a third-party complaint is a defect in jurisdiction, and any judgment as a result abates, but does not bar, the action. Professor Moore explains:

“The tenor of Rule 56 indicates that the summary judgment procedure deals with merits; and that if granted in favor of a claimant it affirmatively adjudges the merits of the claim and if in favor of the defendant the judgment is in bar and not abatement.
“Matter in abatement ... only results in a dismissal of the action without prejudice; or, if the action is not then dismissed, temporarily stays the prosecution thereof or results in a transfer to another forum. The following illustrate matter in abatement: lack of jurisdiction over the subject matter; lack of jurisdiction over the person; improper venue; insufficiency of process; insufficiency of service of process; failure to join an indispensable party; incapacity of a party to sue; prematurity in bringing an action. A dismissal on any one or more of these defenses does not bar a subsequent action in a court of competent jurisdiction.”

6 J. Moore, W. Taggart and J. Wicker, Moore’s Federal Practice ¶ 56.03 (2d ed. 1976). See also Heyward v. Public Hous. Admin., 238 F.2d 689, 694 (5th Cir.1956). Therefore, a dismissal for failure to join a party is a dismissal without prejudice. Nor does the label of the motion matter; the trial court must decide if the motion presents an opportunity to judge the merits. Only then can a dismissal with prejudice or summary judgment be properly issued. See also A.R.Civ.P., Rule 41(b).

We reverse the trial court’s grant of summary judgment and remand this cause so that the trial court can dismiss the third-party complaint without prejudice.

REVERSED AND REMANDED.

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

EMBRY, J., not sitting.

      . The original third-party complaint was based on appellee’s alleged wantonness. After appel-lee had been joined as a party, appellant amended his third-party complaint by adding a negligence count.


text:
    George Rodney HART v. Audrey Spencer HART.
    Civ. 3744.
    Court of Civil Appeals of Alabama.
    Sept. 14, 1983.
    Albert J. Seale of Seale, Marsal & Seale, Mobile, for appellant.
    G. Wayne Ashbee of Hall, Friedman, Ashbee & Laden, Mobile, for appellee.
   EDWARD N. SCRUGGS, Retired Circuit Judge.

This is a civil contempt proceeding.

In their April 12, 1982 divorce judgment, Dr. Hart was ordered to pay to Mrs. Hart $800 each month as alimony and child support, and he was to be responsible for the monthly mortgage payments of $1,128 upon the homeplace. The wife was granted custody of their three children. She was given the exclusive use of their jointly-owned home until she remarries or the youngest child reaches nineteen years, at which time it would be sold with the net proceeds being divided equally between the parties.

Beginning in July 1982, the husband failed to make the required monthly mortgage payments upon the home. The mortgagee foreclosed the mortgage and Mrs. Hart and the three children removed themselves from the house at the direction of the mortgagee. The wife had instituted contempt proceedings against the husband for the nonpayment of the mortgage installments before the foreclosure occurred and then amended the petition to aver and disclose that fact. After an ore tenus hearing before the trial court, a final judgment was entered which found Dr. Hart to be in contempt of court for his failure to comply with the orders of the trial court. As “sanctions” imposed against him, Dr. Hart was ordered to pay to Mrs. Hart $432.40 for the storage of her furniture after her eviction from the house and $345 per month as a housing allowance. Mrs. Hart’s attorney was awarded an attorney’s fee. Dr. Hart duly appealed and raises two issues.

I.

He first contends that the trial court erred in holding him in contempt of court.

Dr. Hart admitted that he failed to make any of the house mortgage payments which fell due after July 1, 1982, and that the home was sold at foreclosure. He claimed inability to pay. His bookkeeper’s evidence was that Dr. Hart’s income had not materially changed since the rendition of the divorce judgment. Apparently he was in the same comparative financial condition when the contempt order was made as when they were divorced. He was current with his office monthly mortgage payments of $1,099 and with his monthly installments of $520 for his Cadillac, both of which are paid by his office. He is a sole practitioner of medicine, and his office also pays his gasoline bills and apartment rent of $345 monthly. He receives about $600 each month from his medical practice which he uses for food, laundry, medical meetings and other living expenses. Mrs. Hart testified that Dr. Hart threatened that the house would be taken from her; that if he had to live in an apartment, so would she. Rather than express remorse as to the home foreclosure, he laughed about it.

The trial court did not err in adjudging Dr. Hart to be in contempt of court. The evidence supports that holding and we are bound thereby and must affirm as to that issue for, in cases of this nature, the weight and the sufficiency of the evidence will not be reviewed. Citicorp Person to Person Financial Center, Inc. v. Sanderson, 421 So.2d 1293 (Ala.Civ.App.1982). We note that while the trial court found Dr. Hart to be in civil contempt of court, no real punishment was imposed upon him. The “sanctions” were more in the nature of modification than punishment.

II.

Lastly, Dr. Hart argues that the trial court abused its discretion in the award of the monthly housing allowance to the wife.

The order to pay the $345 each month was, in essence, an adjudication as to alimony and child support. The original judgment granted to Mrs. Hart the use and possession of the homeplace until her remarriage or the attainment of majority by the youngest child. That permitted Mrs. Hart and the three minor children of the parties to have a home. However, because of Dr. Hart’s default in the payments upon the house mortgage, it was foreclosed and the wife and children lost the use of that home. The monthly housing award was an effort to provide a substitute place for Mrs. Hart and the children to live. It was for the same amount that Dr. Hart pays as apartment rent and was for $783 less each month than the house mortgage payments had been. A change of circumstances had occurred because of the home foreclosure and the original judgment for alimony and child support was subject to being modified to provide for housing for the former wife and three children. That was a matter which fell within the discretion of the trial court. Since the action of the trial court was not palpably wrong, the decision of the trial court in making the housing award must be affirmed. Lonnergan v. Lonnergan, 421 So.2d 122 (Ala.Civ.App.1982); Mack v. Mack, 402 So.2d 1038 (Ala.Civ.App.1981).

We have responded to the issues as argued by learned counsel, and, finding no error as to those matters, we affirm.

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

AFFIRMED.

All the Judges concur.


author: WRIGHT, Presiding Judge.

text:
    Leonard PRESCOD v. Franklin JAMES; Department of Industrial Relations; and West Point Pepperell.
    Civ. 3775.
    Court of Civil Appeals of Alabama.
    Sept. 14, 1983.

      Donna Henderson Beard, Opelika, for appellant.
    George Cocoris, Gen. Counsel, and Frank D. Marsh, Asst. Gen. Counsel, State Dept, of Industrial Relations, Montgomery, for appellees.
   WRIGHT, Presiding Judge.

This is an appeal from a judgment of the Circuit Court of Lee County, Alabama, denying an award of unemployment compensation to claimant Prescod.

The circuit court denied compensation upon authority of our case of Landrum v. James, 425 So.2d 1363 (Ala.Civ.App.1982), cert. denied, 425 So.2d 1364 (Ala.1982). Claimant submits (a) that this case may be distinguished from the rule of Landrum on its facts and (b) that the decision of Landrum is wrong because of the absence of specific statutory disqualification for loss of employment due to incarceration.

In response to claimant’s contentions: (a) we find no reasonable basis for distinguishing this case from Landrum, and (b) we do not find the decision in Landrum wrong because of the absence in the statute of a disqualification because of incarceration.

The facts of this case do not vary in principle from those of Landrum. Claimant pleaded guilty, in the Municipal Court of the City of Opelika, to the offenses of driving under the influence of intoxicating liquor and driving without a license. He had recently been convicted of a prior offense of driving under the influence. He was sentenced to thirty days in jail and given a fine. He was given probation for fifteen days and permitted to serve the remaining fifteen days in the city jail on successive weekends. (Though there is no record of the proceedings in municipal court, it may be reasonably surmised that the method of serving the jail sentence was contrived so that claimant might be free to continue his employment.) While serving on a weekend, claimant was found to be in violation of jail regulations. His probation and method of serving his sentence were revoked, and he was required to continually serve his time. As a result he could not report to his job. His employer was notified and attempted to intervene with the authorities so that claimant could report to his job. Failing this, employer, after five days, declared his employment terminated. Claimant, upon release from jail, reported for work. He was told he had been replaced. His claim for compensation was denied.

From these material facts, we find no error in the judgment of the court below relying upon the authority of Landrum v. James, supra.

It is upon that authority that we must affirm.

AFFIRMED.

BRADLEY and HOLMES, JJ., concur.


author: HOLMES, Judge.

text:
    COOPER CHEVROLET, INC., a corporation v. Arthur Lee TALIAFERRO.
    Civ. 3780.
    Court of Civil Appeals of Alabama.
    Sept. 14, 1983.
    Fred Ray Lybrand, Anniston, for appellant.
    Wilford J. Lane and Thomas W. Harmon, Anniston, for appellee.
   HOLMES, Judge.

This is a fraud case involving a used automobile.

The plaintiff (Taliaferro) sued the defendant (Cooper Chevrolet) for fraud. The jury returned a verdict for $4,500 in favor of plaintiff and against the defendant. A judgment was entered thereon, Cooper Chevrolet appeals and this court affirms.

Viewing the record with the attendant presumptions, the following is revealed:

Taliaferro went to Cooper Chevrolet looking for an economical, used automobile for his daughter. After looking at several vehicles, a Cooper Chevrolet salesman showed Taliaferro and his daughter a 1978 Ford Pinto at the back of the lot. The salesman told Taliaferro that the car was being repaired and would not operate. Taliaferro testified that the salesman represented to him that the car had had only one owner. Taliaferro further testified that he relied upon this representation in deciding to purchase the automobile. Cooper Chevrolet’s salesman testified that he did not represent the car to Taliaferro as being a “one-owner” vehicle. The salesman did inform Tal-iaferro that repairs had been done to certain parts and that certain other parts had been replaced. Taliaferro eventually purchased the automobile for approximately $3,000 after Cooper Chevrolet made the necessary repairs.

Some time after closing the deal and taking the automobile home, Taliaferro discovered that the previous owner of the car had been a business concern that used the vehicle for deliveries. This business had bought the car from a used car lot. Subsequent to learning about the previous owner of the automobile, Taliaferro also discovered that the original engine had been replaced with a 1975 Mercury Bobcat engine.

Taliaferro brought suit against Cooper Chevrolet for misrepresenting the condition of the automobile and sought actual and punitive damages. As indicated, the case was heard by a jury. At the end of Taliaf-erro’s testimony, Cooper Chevrolet moved for a directed verdict which was denied. Cooper Chevrolet again moved for a directed verdict at the end of all testimony and was again denied.

After deliberation the jury returned a verdict for Taliaferro in the amount of $4,500. Cooper Chevrolet moved for a new trial or for a judgment notwithstanding the verdict, both of which were denied. Cooper Chevrolet, through able and distinguished counsel, brings this appeal.

The dispositive issue is whether the verdict is supported by the evidence. Put another way, does the evidence support an award of $4,500 as punitive damages?

A jury’s verdict is presumed to be correct and will not be reversed on appeal unless the preponderance of the evidence is against the verdict, after allowing all reasonable presumptions in favor of its correctness. Ford Motor Co. v. Tindol, 380 So.2d 904 (Ala.Civ.App.1980).

This court finds that the evidence in the present case is sufficient to support the jury’s apparent award of punitive damages.

The law as it applies to the situation at bar is thoroughly set out in detail in the following cases: Treadwell Ford, Inc. v. Lewis, 416 So.2d 406 (Ala.Civ.App.1981), judgment reversed, 416 So.2d 410 (Ala. 1982), on remand, 416 So.2d 420 (Ala.Civ. App.1982); Big Three Motors, Inc. v. Smith, 412 So.2d 1214 (Ala.Civ.App.1980), judgment reversed, 412 So.2d 1218 (Ala.1981), on remand, 412 So.2d 1219 (Ala.Civ.App.1981), judgment reversed, 412 So.2d 1222 (Ala. 1982), on remand, 412 So.2d 1225 (Ala.Civ. App.1982).

The law so thoroughly discussed in the above cases allows a jury to assess punitive damages where the misrepresentation was made willfully to deceive or where the misrepresentation of a material fact was made “recklessly without knowledge.” In other words, actual knowledge of the falsity of the representation is not a requisite to recovery of punitive damages in cases involving reckless misrepresentations. If the evidence shows that the representations were made without knowledge, but made so recklessly as to amount to knowledge of the falsity the jury is authorized to award punitive damages.

In the case at bar, Taliaferro testified that the salesman told him the car was a “one-owner.” The evidence and reasonable inferences therefrom show that the salesman was very familiar with the automobile and its particular problems. He knew what parts had been replaced and what repairs were needed. Cooper Chevrolet mechanics had worked on the vehicle and presumably were intimate with the vehicle. There was testimony at trial that it is necessary to know what year an engine is in order to obtain parts. It is undisputed that Cooper Chevrolet had to replace certain parts on the automobile. Cooper Chevrolet is in the business of dealing in automobiles and should be in the better position to know the history of the automobile it sold Taliaferro.

From the above, the jury could reasonably conclude that Cooper Chevrolet should have known, or at best, did not know if the automobile was a “one-owner” and that any representation as to that matter was made so recklessly as to amount to knowledge of its falsity. Furthermore, and more importantly, the jury could have reasonably concluded from the evidence that Cooper Chevrolet knew or should have known that the automobile did not have the original engine and, in fact, had an engine three years older than the automobile itself and that Cooper Chevrolet acted recklessly by its representations and that the representations were made so recklessly as to amount to knowledge of their falsity. Put another way, the jury could have reasonably concluded that Cooper Chevrolet represented the automobile as a 1978 Ford Pinto when in reality it had a 1975 Mercury Bobcat engine and that such representation was made with a reckless disregard to the truth amounting to the same as knowledge of the falsity of the representation. Again, for a more detailed discussion of the law we refer the reader to the cases mentioned above, Treadwell Ford, Inc. v. Lewis and Big Three Motors v. Smith.

Needless to say, the above facts show “injury,” hence, certain principles of law as enumerated in Purcell Co.,Inc. v. Spriggs Enterprises, Inc., 431 So.2d 515 (Ala.1988), are not controlling. Under Alabama law, a jury may award punitive damages even though there is a failure to show any actual damages. In other words, proof of nominal damages will support a claim for punitive damages. Rushing v. Hooper-McDonald, Inc., 293 Ala. 56, 300 So.2d 94 (1974).

The imposition of punitive damages in certain eases of fraud is discretionary with the jury, acting with regard to the enormity of the wrong and the necessity of preventing similar wrongs. It is for the jury to determine whether the actions of the defendant are such as to require the imposition, of punitive damages. Loch Ridge Construction Co., Inc. v. Barra, 291 Ala. 312, 280 So.2d 745 (1973). Considering all the circumstances, an award of $4,500 is not against the weight of the evidence.

This case is due to be and is affirmed.

AFFIRMED.

WRIGHT, P.J., and BRADLEY, J., concur.


text:
    Walter Clifford HALE v. Betty Lee HALE.
    Civ. 3838.
    Court of Civil Appeals of Alabama.
    Sept. 14, 1983.

      Gary F. Burns and Thomas E. Davis of Burns, Shumaker & Davis, Gadsden, for appellant.
    Rowan S. Bone, Gadsden, for appellee.
   EDWARD N. SCRUGGS, Retired Circuit Judge.

This is a divorce case.

The husband has appealed and complains about the division of property and the amount of periodic alimony granted to the wife. We look to the pertinent evidence concerning those issues to ascertain if the testimony was supportive of the trial court’s decision and to determine if the trial court abused its discretion in that adjudication. Because of the attendant presumptions accorded the trial court’s decision, we largely summarize that evidence which supports the judgment and, by omitting contra evidence, we do not imply that it was unworthy or that it was not presented. All of the evidence has been duly considered.

The parties were married in 1947. The wife had a “flirtation” with another man, with no adultery being involved. Months later, in 1970, the parties were divorced but remarried within three months. They next separated in February 1982 when the husband became “infatuated” with another woman and he left home. Inferences from the testimony are that the husband seemingly lived part time with the other woman and that he probably supported her to some extent.

The-wife is fifty-three years of age and has arthritis. She has not been employed in over ten years but stated that she could work as a waitress, clerk, or at an unskilled job if she could find employment. Her monthly utilities cost an average of $210 and she estimated that her total expenses amount to $600 a month. Because of their divorce, she will not be able to participate in the husband’s retirement benefits in any manner.

The husband is a federal retiree, being fifty-six years of age and in apparent good health. His gross retirement is $858 monthly. He has a regular booth at a trade day and the testimony varies as to his profits from that business of from $25 per week to $1,000 in six weeks. He also owns four rental house trailers, one of which he personally uses. The other three trailers, according to some evidence, are rentable at from $125 to $180 a month each; however, two of them are in need of repairs before they can be rented. It was also speculated that the husband has some interest income.

All of the property of the parties was free from debt.

Their home was appraised at $43,500. The husband built the house for $22,000 beginning in 1960. It is now run-down and in need of repairs. He paid $2,500 for the lot upon which the house is situated. Also located at the rear of the house' lot is a workshop which cost $5,000 to construct. The workshop and the rear one-half of the lot were estimated to be worth $10,000. Both parties used the workshop and, after their separation, they occasionally had some difficulties, arguments, and disagreements when the husband used it. The wife testified that the husband disturbed the personal property when he came to the workshop when she was absent from home. The four trailers and the twenty-two lots upon which they are placed were appraised at $17,000. After 1958 the parties bought little or no furniture and it is now worth only about $2,000. Other property owned by the parties, as to which there was no estimate of its worth, consisted of two dump trucks and a trailer, a Chevrolet truck, a 1971 Ford pickup truck, a fishing boat and mptor, a great number of tools, many of which were obviously valuable, and a 1973 Volkswagen automobile.

The husband had a cheeking account which he closed out. He withdrew $8,500 from his credit union. He cashed his $75 denomination savings bonds which had been accumulated and the wife testified that the stack of bonds was about three inches thick. He also sold the 1971 Ford pickup truck, fishing boat and motor for $1,000, but he may repurchase them for the same price. When he retired, he received $3,300 from the federal government for accumulated leave. The husband testified that, within approximately an eight to twelve month period, he had spent all of the above proceeds except for $700.

After an ore tenus trial which was conducted before the trial court on three separate days, a judgment was rendered which divorced the parties for incompatibility of temperament. The wife was awarded $500 a month as periodic alimony and she received the following property: the house and workshop, the furniture and appliances, the Volkswagen automobile, the Chevrolet truck and her personal tools.

The husband was awarded the four mobile homes, the twenty-two lots, all personal property and materials located in the workshop (which included the tools), all other vehicles, all trade day equipment, all garden tools including one rotor tiller, all moneys checked out of savings, and all refunds from joint income tax returns.

The division of property in a divorce case need not be equal but must be equitable according to the particular facts and circumstances of the case. Miller v. Miller, 361 So.2d 577 (Ala.Civ.App.1978); Thompson v. Thompson, 377 So.2d 141 (Ala.Civ.App.1979). The trial court has a wide discretion in awarding periodic alimony and in making a division of property. Hawkins v. Hawkins, 346 So.2d 967 (Ala.Civ.App. 1977). In an ore tenus matter, this court will not alter the trial court’s judgment upon those issues unless it is so unsupported by the evidence as to be palpably wrong. Butts v. Butts, 418 So.2d 161 (Ala.Civ.App. 1982).

After a careful study of the evidence, we find no abuse of discretion in this case. While the amount of the periodic alimony might be considered to be somewhat high under some aspects of the evidence and while the wife received a liberal amount of the marital property, the decision of the trial court was fairly supported by credible evidence and was not clearly unjust, palpably wrong, or inequitable. We affirm the judgment of the circuit court.

The wife is awarded $250 from the husband for her attorney’s fee on this appeal.

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

AFFIRMED.

All the Judges concur.


author: PER CURIAM.

text:
    RYDER INTERNATIONAL CORPORATION v. STATE of Alabama.
    Civ. 3631.
    Court of Civil Appeals of Alabama.
    Sept. 21, 1983.

      Joseph B. Mays, Jr. of Bradley, Arant, Rose & White, Birmingham, and Robert C. Black of Hill, Hill, Carter, Franco, Cole & Black, Montgomery, for appellant.
    Charles A. Graddick, Atty. Gen., and B. Frank Loeb, Chief Counsel, and Ronald J. Bowden, Asst. Counsel, Dept, of Revenue, and Asst. Attys. Gen., for appellee.
   PER CURIAM.

The trial court of Montgomery County dismissed taxpayer’s appeal of a use tax assessment. The taxpayer appeals the trial court’s action and we reverse.

The dispositive issue on appeal is whether the trial court committed reversible error in dismissing the taxpayer’s appeal for failure to comply with a local circuit court rule. The pertinent facts are not in dispute.

In June of 1982 the Alabama Department of Revenue made a $47,208.91 assessment for use taxes against the taxpayer, Ryder International Corporation. Within the appropriate period of time, taxpayer filed its notice of appeal from the Department of Revenue’s action to the Circuit Court of Montgomery County. The taxpayer did not, however, also file a complaint setting forth the issues presented for review. Under the Local Court Rules of the 15th Judicial Circuit, specifically rules 1(d)(1)(A) and 1(e), an appellant’s failure to file such a complaint within thirty days from the taking of the appeal may result in a dismissal as provided in rule 41, Alabama Rules of Civil Procedure. It is undisputed that the appellant’s failure to file the required complaint stemmed from appellant’s Birmingham counsel’s ignorance of the trial court’s local rules.

In the months following the filing of the notice of appeal taxpayer’s attorney conferred with the attorney from the Revenue Department in an attempt to come up with a stipulation of facts and a schedule to be submitted for the trial judge’s approval. In the meantime, the trial judge noticed a scheduling conference for October 7, 1982. Because taxpayer’s attorney had agreed with the Revenue Department concerning a proposed case schedule, he decided not to attend the scheduling conference and instead asked the Department of Revenue attorney to present the parties’ proposed schedule to the judge. At the conference the trial judge, on his own motion, dismissed the appeal for appellant/taxpayer’s failure to file the complaint required under the local rule.

Upon receiving notice of the trial court’s action, the taxpayer immediately filed the required complaint, a motion for reconsideration, and an affidavit explaining that the oversight was due to out-of-town counsel’s ignorance of the local rules. The motion for reconsideration was denied. (We note that when the trial court dismissed taxpayer’s appeal the statutory 30-day time limit on administrative appeals had already expired. See Ala.Code § 40-2-22 (1975). Therefore, the trial court’s action effectively denied taxpayer the opportunity to contest the use tax assessment. See Burden v. Tates, 644 F.2d 503 (5th Cir.1981).

The relevant portions of the local rule here at issue are as follows:

“LOCAL RULE 1. REVIEW, OTHER THAN DE NOVO OF GOVERNMENTAL ACTION
“(d)(1)(A) Appeals. Where the method of review is by way of appeal the Plaintiff-Appellant shall serve his complaint within thirty (30) days from the taking of the appeal. The Defendants-Appel-lees shall serve their Answers within thirty (30) days after service of the complaint.
“(e) Sanctions. Failure to comply with this rule may result in a dismissal as provided in Rule 41, A.R.C.P., or a default judgment as provided in Rule 55, A.R.C.P.”

A similar local rule dealing with appeals from the Alabama Public Service Commission has been construed so as to make the dismissal sanction discretionary with the trial court. See Alabama Public Service Commission v. Redwing Carriers, Inc., 281 Ala. 111, 199 So.2d 653 (1967).

The general rule is that a court may, pursuant to rule 41(b) and its inherent powers, dismiss an action for a party’s failure to prosecute or to comply with court rules or orders. See, e.g., Link v. Wabash R.R., 370 U.S. 626, 82 S.Ct. 1386, 8 L.Ed.2d 734 (1962); Selby v. Money, 403 So.2d 218 (Ala. 1981); Smith v. Wilcox County Board of Education, 365 So.2d 659 (Ala.1978). However, a dismissal with prejudice sanction, such as we in effect have in the instant appeal, is drastic and should be ordered only in extreme situations involving willful or contumacious conduct. Id.

Finding no prejudice to the Revenue Department from the appellant’s failure to timely comply with the local rule and because it is undisputed that taxpayer was diligently prosecuting this action, that the error was accidental due to out-of-town counsel’s ignorance of local rules, and that taxpayer demonstrated an immediate willingness to file the required complaint when made aware of the rule, we must find the trial court’s action to constitute an abuse of discretion. See Selby v. Money, 403 So.2d 218, 220 (Ala.1981). However, our action should not be construed as either condoning attorney ignorance of local court rules or barring dismissals under more compelling facts.

REVERSED AND REMANDED FOR PROCEEDINGS NOT INCONSISTENT WITH THE ABOVE.

All the Judges concur.


text:
    Ernest MOORE v. Sheila Ruth Moore CASEY.
    Civ. 3760.
    Court of Civil Appeals of Alabama.
    Sept. 21, 1983.

      William M. Beck, Sr. of Beck & Beck, Fort Payne, for appellant.
    John F. Porter, III of Livingston, Porter & Paulk, Scottsboro, for appellee.
   ROBERT M. PARKER, Retired Circuit Judge.

This is a divorce case.

Appellant and appellee were divorced on September 8, 1977, with custody of minor child awarded to appellee and appellant was ordered to pay $35 per week for child support. After a period of time the parties tried to “work out their differences” and cohabited on at least three different occasions, for various lengths of time, the longest being about one year, and this ceased by October, 1980. Appellee married Frank Casey on July 20, 1981. There was discord between appellant and appellee and appel-lee filed for modification of the divorce judgment on June 24,1981, but dismissed it on July 7,1981, and on August 28,1981, she again filed for modification of the divorce judgment. On March 3, 1982, appellant filed a divorce action against appellee alleging a common-law marriage. These actions were consolidated for trial on April 16, 1982, and trial was held on May 13,1982. A judgment was entered in the divorce action on September 16, 1982, which denied the existence of a common-law marriage upon which to grant a divorce. The modification was not ruled on and the trial judge vacated his office in January, 1983. A pretrial order on the modification was entered by the successor judge and further testimony was taken on March 8, 1983; on March 14, 1983, a judgment was entered setting visitation rights and a judgment in the sum of $4,400 was entered against appellant for child support arrearage. On March 14, 1983, appellant filed a rule 60(b), A.R.Civ.P., motion and motion for new trial in his divorce action. After argument of counsel, the trial judge denied both motions.

Appellant alleges in his rule 60(b) motion that he did not receive notice of entry of judgment in his divorce case as required by rule 77(d), A.R.Civ.P. In denying this motion the trial court found, as a fact, that the appellant was personally given a copy of the judgment and a copy of the judgment was mailed to appellant’s attorney on September 20,1982. This was sufficient notice under rule 77(d) and this contention is without merit.

Appellant further alleges that the judgment of September 16, 1982, is not an appealable order as all issues tried were not adjudicated in that order. The test of the finality of a decree sufficient to support an appeal is that it ascertains and discloses the rights of the parties and settles the equities and is not controlled by the fact that the cause remains in fieri in respect to other matters. Miles v. Bank of Heflin, 295 Ala. 286, 328 So.2d 281 (1975); McCullough v. Roberts, 290 Ala. 303, 276 So.2d 425 (1973); Carter v. Mitchell, 225 Ala. 287, 142 So. 514 (1932). In an equity case there can be more than one final judgment. Chadwick v. Town of Hammondville, 270 Ala. 618, 120 So.2d 899 (1960). Separate cases that are consolidated for trial still retain their separate identity. Oikarinen v. Alexian Brothers, 342 F.2d 155 (3d Cir.1965).

In this case the judgment in the appellant’s case alleging a common-law marriage was a final judgment and would support an appeal even though the appel-lee’s modification motion still awaited determination by the court. This contention, therefore, is without merit.

Appellant further contends the trial court erred in granting judgment against appellant in the sum of $4,400 for child support arrearage, as the parties had reconciled and entered into a common-law marriage. After an ore tenus hearing the trial court did not find a common-law marriage existed. That judgment is presumed correct and will not be reversed on appeal unless so unsupported by the evidence as to be plainly and palpably wrong and unjust. In reviewing the record there is ample evidence to support the trial court’s judgment and that judgment is dispositive of the common-law marriage defense for failure to pay child support. Waters v. Waters, 387 So.2d 838 (Ala.Civ.App.1980).

For the foregoing reasons, the trial court is due to be affirmed.

The foregoing opinion was prepared by Retired Circuit Judge ROBERT M. PARKER while serving on active duty status as a judge of this court under the provisions of § 12-18-10(e) of the Code of Alabama of 1975 and this opinion is hereby adopted as that of the court.

AFFIRMED.

All the Judges concur.


text:
    Arbra ALLEN, Jr. v. Barbara HOLMES.
    Civ. 3802.
    Court of Civil Appeals of Alabama.
    Sept. 21, 1983.

      S. Mark Jordan, Enterprise, for appellant.
    Elizabeth R. Herbert of Legal Services Corporation, Dothan, for appellee.
   WRIGHT, Presiding Judge.

This is an interstate child custody case.

Hauns M. Allen was born out of wedlock to Barbara Holmes and Arbra Allen, Jr., in Hutchinson, Kansas. The child continued to live there until Holmes moved away with her present husband, John Holmes, taking Hauns and her other illegitimate child by Allen with her.

After living in several states, the family began residing in Ft. Rucker, Alabama.

On October 9, 1982, Allen petitioned for custody in the District Court of Reno, Kansas, but made no attempt to serve Holmes.

On November 9, 1982, Allen abducted Hauns from Ft. Rucker Elementary School, taking him back to Kansas. That same day, Holmes petitioned for and received temporary custody in the Circuit Court of Dale County, Alabama. The court ordered return of the child.

On February 4, 1983, the Alabama court heard and denied Allen’s motion to dismiss and granted permanent custody to Holmes, again ordering the child’s return.

On April 7, 1983, after denial of Allen’s motion for a continuance, the Alabama court found Allen in contempt for failing to comply with its November 9th and February 4th orders. The court also assessed Allen with Holmes’ attorney’s fees of $2,000.

Allen’s April 20, 1983 motion for rehearing on the contempt decree was denied. He appeals from the November 9th, February 4th and April 7th orders and from the denial of a continuance on April 5, asserting that the trial court erred by: (1) granting Holmes custody in violation of the Uniform Child Custody Jurisdiction Act (UCCJA); (2) denying Allen’s motion for a continuance; and by (3) denying Allen’s motion for rehearing. He also asserts that the amount of attorney’s fees was unreasonable.

A review of the record reveals that Allen’s notice of appeal, filed on May 12,1983, was not timely in regard to the November 9th and February 4th orders.

Timely filing of an appeal is jurisdictional. Spina v. Causey, 403 So.2d 199 (Ala. 1981). If not timely filed, this court has no jurisdiction. Gamble v. First Alabama Bank, 404 So.2d 688 (Ala.Civ.App.1981). The Alabama Rules of Appellate Procedure (ARAP), require the filing of notice of appeal from a final judgment within forty-two days from the date the judgment is entered. Rule 4(a)(1), A.R.A.P. Spina, supra at 201.

Post trial motions may suspend the time for taking an appeal. However, such motions must be timely filed within thirty days from entry of the judgment. Rule 4(a)(3), A.R.A.P. Freer v. Potter, 413 So.2d 1079 (Ala.1982). Allen’s motion for rehearing was not timely as to the judgments of November 9,1982 and February 4, 1983. His failure to appeal within forty-two days from either of these judgments is fatal and requires dismissal of the appeal ex mero motu. Stewart v. Younger, 375 So.2d 428 (Ala.1979).

We do not consider the contempt decree, since it was not brought here by petition for writ of certiorari, Foster v. Foster, 409 So.2d 833 (Ala.Civ.App.1981), nor addressed in Allen’s brief. Boshell v. Keith, 418 So.2d 89 (Ala.1982).

The order denying the motion for continuance is not a judgment which, standing alone, will support an appeal. § 12-22-2, Code of Alabama 1975. Such orders meet none of the requirements of finality. They neither ascertain nor declare rights embracing the substantial merits of the controversy nor do they litigate material or necessary issues involved in the litigation. Morton v. Chrysler Motors Corp., 353 So.2d 505 (Ala.1977). Further, the ruling on a motion for a continuance is within the discretion of the court. Trial delays are not favored. We perceive no abuse of discretion in this instance. Pody v. Pody, 416 So.2d 1028 (Ala.Civ.App.1982).

Similarly, rulings on motions for rehearing are discretionary, Rayford v. Rayford, 390 So.2d 636 (Ala.Civ.App.1980), as are determinations of attorney’s fees. Noien v. Nolen, 398 So.2d 712 (Ala.Civ.App.1981). Neither will be reversed absent clear abuse. Hill v. Cherry, 379 So.2d 590 (Ala.1980); Nolen, supra at 714. We find no abuse of discretion.

Finding no error, we affirm.

AFFIRMED.

BRADLEY and HOLMES, JJ., concur.


author: BRADLEY, Judge.

text:
    Robert E. PINSON v. Linda Q. PINSON.
    Civ. 3816.
    Court of Civil Appeals of Alabama.
    Sept. 21, 1983.

      Robert C. Snead, Jr., Birmingham, for appellant.
    Harold H. Goings of Corley, Moncus, By-num & DeBuys, Birmingham, for appellee.
   BRADLEY, Judge.

This appeal is from a denial of a motion to set aside a sale of property pursuant to a divorce decree.

The parties to this proceeding were divorced on September 21, 1981 in the Circuit Court of Jefferson County. The divorce decree incorporated a property settlement agreement which disposed of the parties’ real and personal property.

Paragraph 3(b) of the agreement required that the husband sell the parties’ home as soon as possible and that the ex-wife receive $55,000 from the sale. The agreement also required the husband, within ten days from the execution of the agreement, to pay his ex-wife $3,000 of the $55,-000 and gave him the right to occupy the home until its sale.

Paragraph 3(d) provided that if the home was not sold within twelve months, then either party could apply to the court for a public sale at such time and under such terms as prescribed by the court.

Pursuant to the agreement, Mrs. Pinson applied to the court for sale of the property after the twelve month period expired and the house was not sold. On December 2, 1982 the deputy register gave notice that a public sale would take place on January 7, 1983.

On December 13, 1982 and December 14, 1982, respectively, Mr. Pinson filed a motion to stay the register’s sale of the real property and a petition to modify the divorce decree. The motion to stay was heard and denied by the court.

The sale took place as scheduled on January 7, 1983, and Mrs. Pinson purchased the home and property for $100. On that same date, but prior to the sale, the parties entered into an agreement that Mr. Pinson would convey his interest in the property to Mrs. Pinson, that Mrs. Pinson would assume the first mortgage of about $52,000, and that she would pay off a second mortgage in the amount of $35,288.73. The court accepted the parties’ settlement of the court-ordered sale of the property and entered a decree confirming it on February 27, 1983.

On February 3, 1983 Mr. Pinson filed a motion to set aside all proceedings pertaining to the sale of real property.

After a hearing the court denied the motion. Mr. Pinson appeals.

In brief appellant argues that he was denied due process of law as he was given no opportunity to be heard on his motion to stay, that the final judgment of divorce is invalid due to a contradiction in the property settlement agreement, that the public sale is invalid as it did not comply with state law, and that his ex-wife did not pay a fair price for the home.

As to appellant’s contention that his due process rights were violated because he had no opportunity to be heard on his motion to stay, the evidence shows Mr. Pinson was in the courthouse coffee shop on the day of the hearing but not in the courtroom. Appellant’s attorney, who was in the courtroom, upon being asked by the court if he wished to be heard, replied that he had neither evidence nor law to present to the court in support of the motion. The court denied the motion.

Since appellant had an opportunity to defend his motion but declined to do so, we fail to perceive a due process violation.

The provisions of the decree in question are not uncertain or contradictory. The decree authorizes the appellant to sell the property and to give appellee $55,000 as her share of the net proceeds of the sale. The decree further provides that the private sale shall be accomplished as soon as possible but no later than twelve months after the decree. If the property has not been sold in twelve months by private sale, the court will direct a public sale. The appellant did not sell the property in twelve months and the court ordered a public sale of it. We find no error here.

Appellant’s next contention is that the public sale should be set aside because of irregularities in the sale procedure and that the ex-wife failed to pay a fair price for the property.

Irregularities in the sale of land pursuant to court decree are to be considered in determining whether the sale shall be upheld only when such irregularities are manifestly injurious to the parties. Parker v. Clayton, 248 Ala. 632, 29 So.2d 139 (1947). Also, an owner who fails to resist the confirmation of a sale of land or who in fact approves and consents thereto, cannot later challenge the adequacy of the purchase price, or the terms of the sale. Baer v. Alco Land & Timber Co., 291 Ala. 640, 285 So.2d 913 (1973).

The evidence shows that the appellant received notice of the sale, appeared at the courthouse on the sale date, negotiated with his former wife and her attorney about the "disposition of the property, entered into a written agreement with his former wife for the disposition of the property, and then, along with his former wife, concurred with the court in the sale of the property by requesting in writing that the court dispose of the property in the manner agreed to by the parties.

Having agreed to the terms for the disposition of the parties’ home, appellant cannot now question the terms of the sale or the purchase price. However, we note that there was testimony that the property was worth about $150,000 but that it needed a lot of work. There was also proof that the appellee paid off a second mortgage of about $35,000, assumed the first mortgage which amounted to $52,000, and accepted a warranty deed from the appellant in lieu of $52,000 he had agreed to pay her. Considering the obligations assumed by appel-lee to obtain the property, the actual price paid to the court by her for the property is not so much less than the market value as to shock the conscience of this court. Dunn v. Ponceler, 235 Ala. 269, 178 So. 40 (1937). No error in this aspect of the court’s order.

The judgment of the trial court is affirmed.

AFFIRMED.

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