text:
    Wilma L. LESTER, Southern Oil Exploration, Inc., An Alabama Corporation, et al. v. Paul W. COMMISKY, Ralph V. St. John, et al.
    83-244.
    Supreme Court of Alabama.
    Oct. 19, 1984.

      W. DeWitt Reams and Nancy Perry Leslie of Reams, Yollmer, Philips, Killion, Brooks & Schell, Mobile, for appellants.
    Norton Brooker, Jr. of Lyons, Pipes & Cook, Mobile, for appellees.
   TORBERT, Chief Justice.

On September 24, 1948, W.V. Lester, a non-resident of Alabama, died, leaving a will, which was probated in Texas that same year. In the will, Lester devised all his real and personal property to his widow, Lillian M. Lester. His property included an undivided one-half mineral interest in some Alabama real property. When Lester died in 1948, there was no time limit for the probate in Alabama of non-residents’ wills that had been proved out of this state. Code 1940, tit. 61, § 46.

In 1951, the legislature amended the statute to provide that a foreign will must be presented for probate in Alabama within five years from the date of the testator’s death. Acts of Alabama 1951, Act No. 988, September 12, 1951, pp. 1663-65. The plaintiffs, who claim title as though Lester had died intestate, argue that this amendment vested a property right in Henry V. Lester, W.V. Lester’s son, as heir at law, and that any rights vested in him could not constitutionally be taken away.

From 1956 to 1958, Lillian M. Lester conveyed all of her interest in the Alabama real property to Mrs. C.L. Henry and Mrs. Walter Payne. Mrs. Payne reconveyed the interest conveyed to her back to Lillian M. Lester; and Mrs. Henry reconveyed one half the interest conveyed to her back to Lillian M. Lester.

In 1959, the legislature passed an act providing that foreign wills must be filed for probate in the state of the testator’s domicile within five years from the date of the testator’s death. This act removed the requirement that the will be probated in Alabama within five years of the testator’s death. Acts of Alabama 1959, Act No. 587, November 19, 1959, pp. 1475-76.

The will was probated in Mobile County on November 22, 1974, while the 1959 Act was in effect. In 1974 and 1975, Mrs. Henry, who had retained one half of the interest conveyed to her by Lillian M. Lester, conveyed her interest to Larry H. Moses. The defendants involved in this appeal obtained their interests through Larry H. Moses and his transferees. This appeal is not concerned with those interests conveyed back to Lillian M. Lester from Mrs. Henry and Mrs. Payne; the summary judgment related only to those interests passing through Larry H. Moses.

In 1976, Henry V. Lester died and left his interest to his widow, Wilma L. Lester. Wilma L. Lester then executed leases of mineral interests in the property to Southern Oil Exploration, Inc. and Ronald H. McLeod. She also conveyed a royalty interest to Ronald H. McLeod, who, in turn, transferred portions of his interest to Larry J. Whitehead, Ray M. Marshall, and Myra K. Whatley. Myra K. Whatley transferred her interest to John Sipple, who conveyed a portion of his interest to Gary A. McLeod and A.P. Ogburn, Jr.

This action was begun on October 22, 1982, by Wilma L. Lester and those claiming under her. They sought to quiet their title on the basis that Henry V. Lester was entitled to take one-half of W.V. Lester’s mineral interest under the laws of intestacy. In the alternative, they sought a declaratory judgment construing the will of W.V. Lester and subsequent instruments transferring mineral royalty and leasehold interests. The defendants each counterclaimed, asking that the trial court enter judgments holding that plaintiffs had no right, title, or interest in or to the mineral interest claimed by each defendant and quieting title in each defendant as owner of an undivided mineral interest. The defendants joined in a motion for summary judgment to declare that they owned various tabulated interests and that the plaintiffs had no claim against their interests in oil and gas and other minerals. The trial court granted the motion and directed the entry of a final judgment.

The plaintiffs appeal, claiming that the trial court erred in granting the motions because:

“1. The appellees failed to carry their burden of proof and did not properly present evidence which would support the judgment of the trial court;
“2. The appellees failed to carry their burden of proof and did not prove that they were entitled to judgments as a matter of law;
“3. The appellees failed to carry their burden of proof and did not prove an absence of material issues of fact.”

The plaintiffs allege that the defendants did not properly present evidence that would support the trial court’s judgment because there was an incorrect name on the lower court’s judgment. In his order granting summary judgment, the trial judge said that each defendant’s interest was tabulated in an exhibit attached to the order. In the exhibit, Homer Best, Jr., rather than Julius M. Ridgway, was listed as an owner of part of the interest in controversy. Defendant Julius M. Ridg-way filed a motion pursuant to Rule 60(a), Alabama Rules of Civil Procedure, to correct this discrepancy. The trial court considered the motion and ordered the exhibit attached to the order amended so that the name “Homer Best, Jr.” was deleted and “Julius M. Ridgway” was substituted. The plaintiffs contend that the error was a judicial error and could not be corrected pursuant to Rule 60(a). In Ex parte ACK Radio Supply Company of Georgia, 283 Ala. 630, 635, 219 So.2d 880, 885 (1969), this Court explained what a clerical error is:

“[Clerical errors ... are not those alone which the clerk makes, but they include all such errors, being matters of record, whether committed by the court or counsel, to which the judicial sanction and discretion cannot be said reasonably to have been applied. Such right [of correction] exists only ‘when there is sufficient matter apparent on the record or entries of the court to amend by.’ ”

It is apparent from the motion for summary judgment and the exhibits attached thereto that all of the interest owned by Best had been transferred to Ridgway; therefore, the lower court had authority under Rule 60(a) to correct this oversight.

The plaintiffs also claim that evidence was improperly presented, in that some of the documents attached to the motion for summary judgment (including royalty deeds, mineral right and royalty transfers, and oil, gas and mineral leases) were not certified by the Probate Court of Mobile County as true and correct. We will not address this claim, since the documents were not pertinent to the resolution of the issue of whether Henry V. Lester was entitled to one-half of his father’s interest under either intestacy or testacy theories.

Most of the arguments by the plaintiffs and the defendants were based on the plaintiffs’ contention that the defendants did not prove that they were entitled to a judgment as a matter of law. The plaintiffs argue that the 1951 act vested in them a right to. be free from the probate of the Texas will in Alabama and that the 1959 act, in order to pass constitutional muster, must be construed to be prospective only. For the reasons hereinafter stated, we need not determine the issue of the constitutionality of the 1951 and 1959 acts.

The statute imposing a time limit for probating a will is a statute of limitations. Sharpe v. Booker, 263 Ala. 592, 83 So.2d 313 (1955), and Fuller v. Qualls, 241 Ala. 673, 4 So.2d 418 (1941). The statute of limitations must be affirmatively pleaded under Rule 8(c), A.R.Civ.P. See also Sharpe, supra (although Sharpe was decided before our adoption of the Alabama Rules of Civil Procedure, that case also involved the time limit for the probate of a will, and this Court held that the statute imposing the five-year time limit was a statute of limitations which had to be specially pleaded). Since the plaintiffs did not plead the statute of limitations as a defense to the defendants’ counterclaim, the trial court was correct in granting summary judgment.

In the alternative, the plaintiffs allege that the defendants did not prove an absence of material issues of fact. The plaintiffs argue that, even assuming the will was properly probated, Lillian M. Lester had only a life estate and Henry V. Lester was entitled to the remainder. The plaintiffs apparently planned to argue to the lower court that the conveyances by Lillian M. Lester to Mrs. Henry and Mrs. Payne and the conveyances back to Lillian were part of a scheme to defeat the intent of W.V. Lester and the remainder interest of Henry V. Lester. The plaintiffs, however, failed prior to the motion for summary judgment to allege any facts which would raise the issue of fraud. In addition, the plaintiffs chose not to respond to the motion for summary judgment. Once a motion for summary judgment has been made and supported as required by Rule 56(e), A.R.Civ.P., the motion should be granted unless the adverse party comes forth with an evidentiary or factual showing that there is a genuine issue of material fact for trial. Hart v. General Motors Acceptance Corp., 437 So.2d 1255 (Ala.1983).

Since the plaintiffs did not allege fraud, we must look to the language of the will to see whether Lillian M. Lester was given the power to convey the property. The will provided:

“I hereby give and devise unto my beloved wife, Lillian M. Lester, after payment of all my just debts, all of my property, real, personal or mixed, of which I may die seized and possessed, for her to use, own, control, enjoy, convey, expend and otherwise to exercise all power and authority over same that I might do in person, if alive; and at her death, in the event any of my said property so devised and bequeathed to my beloved wife, Lillian M. Lester, has not been conveyed, sold, expended or otherwise disposed of by her under and by virtue of the unlimited authority and title thereto as given to her in this will, such parts so remaining, if any, shall thereupon, upon the death of said Lillian M. Lester, vest in fee simple in my son, Henry Vanderburgh Lester.” (Emphasis added.)

The will, thus, on its face, conveyed a life estate with absolute power of disposition. Since Lillian M. Lester had absolute power of disposition and in fact disposed of her interest, and since no allegation was made in the trial court that that interest passing to these defendants through Larry H. Moses was fraudulently conveyed, we have no reason to conclude that the conveyances were not valid as against the remainder-man under Code 1975, § 35-4-291 and § 35-4-292.

Code 1975, § 35-4-291, provides:
“Every power of disposition is deemed absolute, by means of which the donee of such power is enabled in his lifetime to dispose of the entire fee for his own benefit; and, where a general and beneficial power to devise the inheritance is given to a tenant for years or for life, it is absolute within the meaning of subsections (b) and (c) of § 35-4-292.”
Code 1975, § 35-4-292, provides:
“(a) When an absolute power of disposition, not accompanied by any trust, is given to the owner of a particular estate for life or years, such estate is changed into a fee absolute, as to the rights of creditors and purchasers, but is subject to any future estates limited thereon, in case the power is not exercised or the lands sold for the satisfaction of debts during the continuance of such particular estate.”
“(b) When a like power of disposition is given to any person to whom no particular estate is limited, such person also takes a fee, subject to any future estate which may be limited thereon; but absolute in respect to creditors and purchasers.
“(c) In all cases where such absolute power of disposition is given, not accompanied by any trust, and no remainder is limited on the estate of the donee of the power he has an absolute fee.” AFFIRMED.

MADDOX, FAULKNER, ALMON, EM-BRY, BEATTY and ADAMS, JJ., concur.

JONES and SHORES, JJ., concur in the result.

JONES, Justice

(concurring in the result).

I reach the same result as the majority, but I get there by an altogether different route. While the Appellants did not denominate their answer to Appellees’ counterclaim as a statute of limitations plea, they set out fully the factual basis for such a defense. Accordingly, I would address the merits.

It is the Appellants’ primary claim of error that to give effect to the 1959 amendment, abolishing the five-year limitation on the probate in Alabama of a foreign will, is to give it a retrospective, and thus an unconstitutional, interpretation.

Because the five-year limitation came into being within three years of the testator’s death in 1948, and his Texas will was not probated in Alabama within five years therefrom, any construction of the 1959 act’s abolition of that limitation as permitting the will’s probate in Alabama in 1974 is, according to Appellants, a violation of the prohibition against divestiture of vested interests by subsequent legislation.

Appellants summarize their argument: “[T]he running of the statutory period as set out in the 1951 amendment acted as a bar to prevent any subsequent attempt to probate the Last Will and Testament of W.V. Lester more than five years after his death. Absent a proper probate in the State of Alabama, the right which vested upon the death of W.V. Lester was the ‘right of testator’s heirs at law’. Gilbert v. Partain, 222 Ala. 459, 133 So. 2 (1931). Thus, upon the death of W.V. Lester, title vested in his sole intestate heir, Henry V. Lester and the attempted probate of the Last Will and Testament of W.V. Lester in 1974, some twenty-six years after his death, was of no legal effect.”

Appellees seek to invoke the same “vested interest” argument in their favor, contending that the passage of the five-year limitation after Lester’s death and after the probate of his will in Texas could not divest the devisee under the will of her right to file the will in Alabama at any time. “Therefore,” say the Appellees, “since the testator died in 1948 and his Will was properly probated [in Texas], the [Vs interest here in question] vested in his surviving widow....”

In my opinion, neither the “vested interest” arguments nor the “retrospective/prospective” dichotomy is pertinent to the resolution of the ultimate issue here presented. I would hold that the Mobile County Probate Court was legally bound to give recognition to the Texas probate court’s adjudication admitting W.V. Lester’s will to probate. The correctness of the trial court’s holding, validating the will’s probate in Alabama, is grounded in the fundamental concept of full faith and credit mandated by art. IV, section 1, of the United States Constitution:

“Full faith and credit shall be given in each state to the public acts, records and judicial proceedings of every other state....”

The application of this doctrine, in the context of a foreign will, was addressed in the early case of Brock’s Adm’r v. Frank, 51 Ala. 85 (1874):

“When the will and probate is presented for probate here, the only inquiries the court of this State can make are, whether the foreign probate was granted by a court having jurisdiction, and whether the will and probate is properly authenticated. Ascertaining these facts, the duty of the court then becomes ministerial, not judicial, and that duty is the record of the will and probate. The law intervenes, and attaches to the probate not only the faith and credit it commanded within the jurisdiction pronouncing the sentence, but the value and dignity of a domestic decree of probate. Ward v. Oates, 43 Ala. 515 (1869).” 51 Ala. at 90.

This language from Brock’s Adm’r. was quoted with approval in Carter v. Davis, 275 Ala. 250, 154 So.2d 9 (1963), holding that a foreign will, properly admitted to probate in another state, is not subject to a will contest when presented for probate in Alabama.

Whether Lester’s will was properly admitted to probate in Texas or whether the testator’s son and sole heir, through whom Appellants stake their claim, was properly before the Texas court, were not put in issue at the time the will was probated either in Texas or in Alabama. Moreover, the adjudication of probate was neither contested on jurisdictional grounds in either court, nor made the subject of an appeal. Thus, the instant suit is an unauthorized collateral attack on a valid decree of the Texas probate court. Jenkins v. Clisby, 145 Ala. 665, 39 So. 735 (1905). See, also, Cassady v. Davis, 245 Ala. 93, 15 So.2d 909 (1943).

This is not to say that the constitutional mandate of full faith and credit forecloses the State’s exercise of legitimate state interests with respect to the orderly administration of testate or intestate estates, including claims of adverse possession or laches. To be sure, the requirement of the 1959 act that the proffered will be admitted to probate in the State of the testator’s domicile within five years of his death — a condition consistent with the requisite for probate of a domestic will — is clearly in furtherance of a public interest and thus constitutionally inoffensive.

Not so, however, with respect to the time limitation for filing a foreign will for probate in Alabama as prescribed by the 1951 act. To place a five-year requirement on the probating of a will in Alabama that was probated in the State of the testator’s domicile within five years of his death is to unduly circumscribe the fundamental concept of full faith and credit. Given the finality of the Texas probate decree, a statutorily imposed five-year limitation on Alabama’s recognition of that state’s adjudication is unconstitutional. I perceive this deficiency of the 1951 act as a probable basis for its repeal.


source: Caselaw Access Project

author: BEATTY, Justice.

license: Public Domain

text:
    Ex parte John B. BAKER. (In re Terrell S. MAYES v. John B. BAKER).
    83-1093.
    Supreme Court of Alabama.
    Oct. 26, 1984.

      John D. Richardson and Vincent A. No-letto, Jr. of Brown, Hudgens, Richardson, Mobile, for petitioner.
    Richard E. Browning of Cunningham, Bounds, Yance, Crowder & Brown, Mobile, for respondent.
   BEATTY, Justice.

Petitioner (defendant) seeks a writ of mandamus to the trial court, directing it to set aside its order granting respondent’s (plaintiff’s) Rule 60(b)(6), A.R.Civ.P., motion and reinstating plaintiff’s case after it had been dismissed with prejudice.

Plaintiff filed this action against the defendant in Mobile Circuit Court on November 19, 1980. The case arose out of the May 16, 1980, collision between the defendant’s automobile and plaintiff’s motorcycle. Plaintiff’s complaint contained allegations of negligence and claimed $250,000 in compensatory damages for the personal injuries he suffered as a result of the collision.

On March 11, 1981, the defendant served on plaintiff a set of interrogatories and a request for production of documents. These discovery requests went unanswered for almost 15 months, and, on June 1,1982, counsel for defendant wrote counsel for plaintiff asking that plaintiff file responses to these discovery requests within 14 days. Plaintiff failed to respond to this letter. Then, on June 18,1982, defendant filed two discovery motions seeking orders compelling plaintiff to answer the interrogatories and respond to defendant’s request for production of documents. Once again, defendant’s counsel wrote plaintiff’s counsel, on July 29, 1982, requesting that plaintiff respond immediately to the interrogatories and request for production of documents. Again, plaintiff failed to respond.

After a hearing on defendant’s discovery motions, the court granted both motions on August 20,1982, and gave plaintiff 10 days in which to answer defendant’s interrogatories and to produce the documents requested, or suffer a dismissal. Plaintiff failed to comply with this order. On September 9, 1982, the trial court dismissed plaintiff’s action with prejudice.

Plaintiff did not appeal the order of dismissal; however, some 19 months after the order of dismissal was entered, plaintiff obtained different counsel and filed a Rule 60(b)(6) motion on April 26, 1984, which stated only the following:

“Comes the Plaintiff in the above cause and moves the Court for an Order setting aside the Court’s previous Order dismissing Plaintiff’s cause of action in accordance with Rule 60(b)(6), of the Alabama Rules of Civil Procedure.”

In response to plaintiff’s Rule 60(b)(6) motion, defendant filed a motion in opposition, stating as grounds, among others, plaintiff’s failure to allege and prove any of the grounds set out under Rule 60. Defendant further alleged:

“Although Plaintiff has styled his motion a motion for relief under Rule 60(b)(6), his motion in truth seeks relief on the grounds of mistake, inadvertence, or excusable neglect. As such, it is untimely in that it was not filed within four (4) months from the date of the order of which Plaintiff complains.”

After a hearing on this motion, on May 18,1984, of which no record was preserved, the trial court granted to plaintiff Rule 60(b)(6) relief and reinstated his case. Because this order of the trial court is interlocutory, the defendant filed this petition for a writ of mandamus. Ex parte Hartford Ins. Co., 394 So.2d 933 (Ala.1981). The only issue presented is whether the trial court clearly abused its discretion, thereby requiring this Court to issue the writ of mandamus and direct that the trial court’s order reinstating this case be vacated.

Rule 60(b) provides in pertinent part:
“On motion and upon such terms as are just, the court may relieve a party or his legal representative from a final judgment, order, or proceeding for the following reasons: (1) mistake, inadvertence, surprise, or excusable neglect ... or (6) any other reason justifying relief from the operation of the judgment. The motion shall be made within a reasonable time, and for reasons (1), (2), and (3) not more than four months after the judgment, order, or proceeding was entered or taken....”

In his petition, defendant contends that the plaintiff failed to allege in his motion any grounds justifying extraordinary relief under Rule 60(b)(6), and that plaintiff failed, to present any competent evidence at the hearing on the motion that would support his 60(b)(6) motion for relief. Furthermore, defendant moves to strike an affidavit, filed by plaintiff simultaneously with his brief in opposition to issuance of the writ of mandamus, and argues that it should not be considered by this Court.

The affidavit in question was affixed to plaintiff’s brief and labeled “Exhibit A.” It consists of a statement by the plaintiff, dated July 25, 1984, which purports to substantiate grounds for plaintiff’s motion for relief under Rule 60(b)(6). Defendant maintains that neither this affidavit nor testimony to its effect was presented to the trial court at the hearing on the motion. Plaintiff does not dispute this fact, and further fails to provide copies of any record of the hearing below which “would be essential to an understanding” of the basis upon which the trial court granted plaintiffs Rule 60(b)(6) motion. Rule 21(a), A.R. A.P. Apparently, plaintiffs counsel, at the hearing on the motion, explained to the trial court the reasons why no action had been taken by plaintiff for 19 months, without benefit of testimony or an affidavit by plaintiff or his former counsel substantiating the reasons given.

Without question, a movant must both allege and prove one of the grounds set forth in Rule 60 in order to be granted relief under that rule. Raine v. First Western Bank, 362 So.2d 846 (Ala.1978). Moreover, because Rule 60(b) relief is extraordinary relief, a movant has the burden of proving extraordinary circumstances and/or extreme hardship or injustice sufficient to entitle him to relief under Rule 60(b)(6). Howell v. D.H. Holmes, Ltd., 420 So.2d 26 (Ala.1982). And, while the decision of whether to grant or deny the motion is within the sound discretion of the trial judge, that discretion is not unbridled. Douglass v. Capital City Church of the Nazarene, 443 So.2d 917 (Ala.1983); Textron, Inc. v. Whitfield, 380 So.2d 259 (Ala.1979).

In determining whether the trial court abused its discretion, this court is bound by the record and cannot consider a statement or evidence in brief that was not before the trial court. Wilson v. Crosby Lumber Co., 386 So.2d 1173 (Ala.Civ.App.1980); King v. Smith, 288 Ala. 215, 259 So.2d 244 (1972). On review by mandamus, we must look at only those facts before the trial court. See Ex parte Harrington Mfg. Co., 414 So.2d 74 (Ala.1982).

“In reviewing a ruling of a trial court on a Rule 60(b)(6) motion, the trial court’s decision will not be disturbed unless it is determined ‘that there is an absence of reasonable cause, that rights of others subsequently arising would be adversely affected, or that it is unjust.’ Textron, Inc. v. Whitfield, [380 So.2d 259 (Ala. 1979)], quoting Nunn v. Stone, [356 So.2d 1212 (Ala.Civ.App.1978)].” Ex parte Hartford Ins. Co., supra, at 936.

There is nothing in the record to support the grant of plaintiff’s Rule 60(b)(6) motion. There is no affidavit or testimony before us which was also before the trial court at the hearing on the motion. “Allegata non probata are worthless.” Wilson v. Crosby Lumber Co., supra, at 1175.

Mandamus itself is an extraordinary remedy which should be granted only when there is a clear showing that the trial court abused its discretion and exercised it in an arbitrary or capricious manner. Ex parte Hartford Ins. Co., supra; McDowell-Purcell, Inc. v. Bass, 370 So.2d 942 (Ala.1979). Absent any allegation and proof of the grounds justifying Rule 60(b)(6) relief, the trial court could not have granted such relief without abusing its discretion. For that reason, the petition for writ of mandamus must be granted.

WRIT GRANTED.

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


author: PER CURIAM.

text:
    William D. HARRIS, etc., et al. v. Alan WEATHERFORD, et al.
    84-24.
    Supreme Court of Alabama.
    Oct. 30, 1984.

      Perry 0. Hooper, Sr. and Edward M. Patterson for Hooper, Gallion & Wilkerson, Montgomery, for appellants.
    Oakley Melton, Jr. of Melton & Espy, Montgomery, and Edward Still of Reeves & Still, Birmingham, for appellees.
   PER CURIAM.

This expedited appeal presents, in the words of Appellants, the issue “whether that part of Code 1975, § 17-16-ll(a), which provides that all candidates for nomination to public office file their declaration of candidacy with the State Party Chairman is directory so that the State Party Chairman can legally, pursuant to § 17-16-11(a), designate a third-party as his agent or designee to receive the declaration of candidacy from a person seeking nomination to public office.” In the factual context of the instant case, we answer the inquiry in the negative and affirm the judgment below.

Because the trial court’s “Opinion and Order” contains a statement of the pleadings, findings of fact, and conclusions of law, as well as the rationale for its judgment adverse to the Appellants, we quote the entire order:

“This is an action seeking a Declaratory Judgment, injunction,, mandamus, prohibition and other appropriate relief. The Plaintiffs, who sue as registered voters, citizens and taxpayers of Mobile County, Alabama, seek to prevent the name of Cecil B. King from being certified or printed on the ballot as a Republican candidate for the Judgeship of the District Court of Alabama, Mobile County, Place No. 1. The Defendants are William D. Harris, in his capacities as Chairman of the Alabama Republican Executive Committee and as Chairman of the Candidate Committee of the Alabama Republican Executive Committee; Don Siegelman, as Secretary of State of the State of Alabama; L.W. Noo-nan, as Probate Judge of Mobile County, Alabama, and Cecil B. King, who is the individual seeking to be the Republican candidate for such Judgeship. The Defendants, Don Siegelman and Judge L.W. Noo-nan, take no position in the case and state in substance that they await directives from the Court.

“FINDINGS OF FACT

“The following factual background gives rise to this case:

“July 6, 1984, was the deadline for candidates to file their declarations of candidacy with the State Party Chairman pursuant to § 17-16-11, Code of Alabama, 1975. On this date at 3:45 P.M., Joseph D. Thetford filed qualifying papers in Mobile County in the Office of William Stoudenmire, who was the Chairman of the Mobile County Republican Committee and a member of the State Republican Committee.

“In his answer filed with this Court the Defendant, William D. Harris, asserts that Mr. Stoudenmire’s legal secretary, Bettie Croley, was the ‘designee of Harris’. Mr. Harris testified at trial that he did, in fact, designate Bettie Croley in Mr. Stouden-mire’s office to accept the qualifying papers of Joseph D. Thetford at her office in Mobile, Alabama. Marty Conners, the State Executive Director, testified that both he and Mr. Harris specifically designated Bettie Croley to accept the qualifying papers from Thetford. The papers are, in fact, stamped ‘Received — July 6, 1984— 3:45 P.M. — Bettie Croley’.

“Subsequently, on July 24, 1984, Joseph D. Thetford wrote Harris advising that he desired to withdraw his name from consideration for District Court Judge Place No. 1 and asked that his letter serve as his resignation as a candidate. Thereafter, on August 31, 1984, Cecil King signed qualifying papers for this District Court Judgeship position. Thereafter, on or about September 6, 1984, Cecil B. King filed such qualifying papers with the State Republican Executive Committee for this District Court judgeship.

“The Republican Party wishes to certify Cecil B. King as the Republican nominee under the provisions of § 17-16-41, which provides as follows:

“ ‘... where a vacancy may occur in any nomination, either by death, resignation, revocation or otherwise, or in case of any special election, [the State Executive Committee] shall have the power and authority to fill such vacancy, either by action of the committee itself or by such other method as such committee may see fit to pursue.’

“In order for Cecil B. King to be certified there must, of course, have been a vacancy. The determination of the existence of a vacancy turns on whether Joseph D. Thet-ford legally qualified within the purview of § 17-16-11, supra. The Republican Party contends that Thetford did properly qualify by filing the papers with Bettie Croley, as the designee of Harris. The Plaintiffs assert that the filing with Mrs. Croley failed to comply with the mandatory requirements of the statute.

“Counsel for both the Plaintiffs and the Republican Party Defendants present persuasive policy considerations in support of their respective position. The Plaintiffs assert that if a State Party Chairman could designate other persons to accept qualifying papers in his behalf, persons could be qualifying all over the State of Alabama and it would be several days before all the candidates for a particular office would be ascertained. Plaintiffs also assert that the Statute requires a central filing place so that potential candidates and the public could make meaningful and instantaneous inquiries as to who had qualified to seek a particular office. On the other hand, the Republican Party contends that it is entirely reasonable and permissible for the State Party Chairman to designate someone to act for the Chairman — that such involves no more than the inner workings of a political party and should be permitted to prevent hardship.

“It is well settled that within limitations imposed by statute committees of political parties have power to make rules and regulations for their own government. 29 C.J.S. Elections § 87(b); Ripon Society v. National Republican Party, 525 F.2d 567 (D.C.Cir.) 1975); Cousins v. Wigoda, 419 U.S. 477 [95 S.Ct. 541, 42 L.Ed.2d 595] (1975).

“In the case now before the Court, however, there is a statute that clearly, and without ambiguity, states that all candidates for nomination to state public office ‘shall file their declaration of candidacy with the state party chairman ’.

“The statute [§ 17-16-11, Code 1975] reads as follows:

“.‘(a) All candidates for nomination to public office or for election to party office in the primary provided for in this chapter shall file their declaration of candidacy with the state party chairman if they seek any office other than a county office (including federal, state, circuit and district offices, the state senate and house of representatives)....’

“It is undisputed that Thetford did not file his declaration of candidacy with the Alabama Republican Party Chairman either personally or at his office at the Alabama Republican Headquarters in Birmingham, Alabama, prior to 5:00 P.M. on July 6, 1984.

“The Alabama Supreme Court in the case of Morgan County Board of Education v. Alabama Public School and College Authority, 362 So.2d 850 (Ala.1978), held as follows:

“ ‘The fundamental rule of courts in construing acts of the legislature is to ascertain and give effect to the legislative intent. If possible, such intent must be gathered from the language of the legislature itself. Drake v. Pennsylvania Threshermen and Farmers’ Mut. Cas. Ins. Co., 265 Ala. 444, 92 So.2d 11 (1957). It is only when the language of the statute is ambiguous or uncertain that the court can resort to considerations of fairness, justice, and policy to ascertain the intent of the legislature.’ (emphasis supplied [by the trial court])

“A very similar question was presented in the case of Williams v. Martin, 320 So.2d 323 [ (La.Ct.App.1975),] in which a potential candidate sought to qualify with a designee of a secretary of an appropriate political committee. The Louisiana Court in that instance held that:

“ ‘the law does not authorize either the chairman or the Secretary to appoint another person to receive qualifying papers, and that the plaintiff was required to place his papers in the hands of the appropriate committee officer prior to the deadline.’

“The Court, making reference to the applicable statute, pointed out that the statute revealed no authority to designate and that:

“ ‘The procedure outlined clearly requires that nomination papers shall be filed with the Chairman, and in the event of his unavailability, then with the Secretary of the Election Committee.’

“The Court further said:

“ ‘... the Secretary of the Committee was available. Accordingly, the statute required that plaintiff file his nomination papers with him personally and not with some agent appointed by him.’

“It is interesting to note that after the case of Williams v. Martin, the Louisiana legislature amended the applicable statute to read as follows:

“ ‘State candidates shall qualify for a primary election with the secretary of state or a person in his office designated to receive qualifying papers.’ [La.Rev. Stat.Ann. § 18:462(A) (West 1979)]

“It may be that the statute involved in this case should be rewritten by the Legislature. This may well be true with regard to the entire body of election laws in Alabama. Such measures, however, as well as the policy considerations advanced by the parties address themselves to the legislature and not to the courts. Courts simply are not authorized or empowered to rewrite an unambiguous legislative directive.

“CONCLUSIONS OF LAW
“Pursuant to the opinion of the Supreme Court in Bostwick v. Harris, 421 So.2d 492 [ (Ala.1982) ], the Court finds and is of the opinion that the Plaintiffs are registered voters, citizens and taxpayers of Mobile and have standing to maintain this action.
“The Court further concludes and declares that Thetford did not legally qualify as a candidate for the Republican nomination for such Judgeship and, therefore, there was no vacancy which could be filled by the Republican Party under § 17-16-41. Foster v. Dickinson, 293 Ala. 298, 302 So.2d 111 [ (1974) ]. Therefore, King’s name should not be printed on the general election ballot.
“ORDER AND JUDGMENT
“In accordance with the foregoing Findings of Fact and Conclusions of Law, it is the ORDER and JUDGMENT of the Court that the Defendant Harris and Defendant Siegelman refrain from certifying the nomination of Cecil B. King as a nominee or candidate for the office of Judge of the District Court of Alabama for Mobile County, Place No. 1, or in the event either of them have issued such a certification prior to the issuance of this Order that they are hereby directed to withdraw or rescind such certification.
“The Defendant Noonan as Judge of Probate of Mobile County, Alabama, is hereby ordered and directed to cause the ballots to be prepared for the General Election in accord with the findings and conclusions herein set forth to the effect that the name of Cecil B. King will not be printed on such ballot as a nominee or candidate for the office of Judge of the District Court of Alabama for Mobile County, Place No. 1, and to cause the proper ballot labels to be placed on voting machines excluding therefrom the name of Cecil B. King as a nominee or candidate for such office.
“The Defendants Siegelman and Noonan are hereby affirmatively enjoined to take all action necessary and required to cause the ballots to be prepared for the General Election on November 6,1984, in such manner so that neither the name of Cecil B. King nor Joseph D. Thetford will appear on the General Election ballot as a nominee or candidate for the office of Judge of the District Court of Alabama for Mobile County, Place No. 1.”

Central to our holding of affirmance is the fact that Thetford’s declaration of candidacy was not timely filed with the office of the state party chairman. In other words, it is not the designation of a third-party to act for the state party chairman (the party with whom Thetford filed his declaration) that is fatal to Thetford’s compliance with § 17-16-ll(a). Rather, it is his failure to file with the office of the state party chairman that constitutes noncompliance. Indeed, the Alabama Republican Executive Committee’s official resolution accepting and electing to come under the primary election laws of Alabama specified, in part, as follows:

“Each person desiring to be elected as a nominee of the Republican Party for public office other than for county office ... shall, not earlier than June 1, 1984, and not later than 5:00 p.m. on July 6, 1984, file with the Chairman of the Alabama Republican Executive Committee at State Headquarters in Birmingham, Alabama, a declaration of candida-cy_” (Emphasis supplied.)

While we agree that a filing of a declaration of candidacy with the office of the chairman of the political party’s executive committee is compliance as contemplated by the statute, we do not agree that a filing with some other person at some other place meets the mandatory requisites which are plainly and unambiguously set forth in § 17-16-ll(a).

As herein amplified, the “Opinion and Order” of the Montgomery Circuit Court is hereby adopted as the opinion of this Court.

AFFIRMED.

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


author: WRIGHT, Presiding Judge.

text:
    Edna PATTERSON v. Robert BYRD.
    Civ. 4105.
    Court of Civil Appeals of Alabama.
    Jan. 4, 1984.
    Rehearing Denied Feb. 8, 1984.
    Stephen J; Flynn and James F. Barter, Jr. of Diamond, Lattof, Gardner & Flynn, Mobile, for appellant.
    James P. Green of Brown, Hudgens, Richardson, Whitfield & Gillion, Mobile, for appellee.
   WRIGHT, Presiding Judge.

This cáse arose from an automobile accident. Plaintiff was awarded a verdict with damages in the sum of $2,670. Her motion for new trial was denied. She appealed. The dispositive issue is whether a new trial should have been granted because of the inadequacy of the damage award.

It is basic in our law that a jury verdict is presumed correct. That presumption is strengthened on appeal when a motion for new trial has been denied by the trial judge. Woods v. Laster, 291 Ala. 139, 279 So.2d 121 (1973); Crum v. McGhee, 289 Ala. 244, 266 So.2d 855 (1972). A jury verdict attacked upon the ground of inadequacy of damages will not be set aside unless it is so inadequate in amount in light of the evidence as to plainly indicate it was rendered as a result of passion, prejudice, mistake or other improper motive. Henderson v. Hanson, 414 So.2d 971 (Ala.Civ. App.1982); Jackson v. Roddy, 224 Ala. 132, 139 So. 354 (1932).

We have carefully read the evidence in the record and considered arguments of counsel in light of cited authority. Plaintiff suffered some injury and incurred medical expenses. The verdict of the jury was in the sum of $2,670. Plaintiff was stated to have lost some time from her employment as a sitter for elderly people. It is stated in brief that the verdict is slightly less than the medical costs and wages lost. Therefore, it is the contention of plaintiff that she received nothing for her pain and suffering. We will not dispute plaintiffs contention, though defendant presents the counter-contention that the jury’s verdict could include some award for pain and suffering.

Assuming the correctness of plaintiff’s contention that little or nothing was awarded by the jury for pain and suffering, we yet cannot reverse for that reason.

We have previously herein cited the principle that the reviewing court is extremely reluctant to supersede the judgment of the jury, as disclosed by its verdict, and the judgment of the trial court, as indicated by the refusal to grant a new trial. There is yet another principle which must be especially applied to a verdict charged with being inadequate or excessive for pain and suffering from a personal injury. That principle is that an award for pain and suffering has no legal standard of measurement and must be left to the sound discretion of the jury. Louisville & Nashville Railroad Co. v. Robinson, 213 Ala. 522, 105 So. 874 (1925). That discretion should not be interfered with merely because it may differ from the opinion of the reviewing court. The authority of the reviewing court to disturb a jury verdict should be exercised with great caution and only after determining that the amount is so inadequate or excessive as to clearly indicate that it is wrong and unjust and constitutes an abuse of discretion. Vinyard v. Duck, 278 Ala. 687, 180 So.2d 522 (1965); Stringfellow v. Rambo, 277 Ala. 349, 170 So.2d 494 (1965).

This court, speaking through its first distinguished presiding judge, Judge T. Werth Thagard, in the case of King v. Sturgis, 45 Ala.App. 553, 233 So.2d 495 (1970), assembled many of the authorities stating the principles upon which we continue to rely. We consider the quotation in King v. Sturgis, taken from the case of Alabama Great Southern Railroad Co. v. Randle, 215 Ala. 535, 537, 112 So. 112, 113 (1927), authored by Mr. Justice Somerville, to properly state a valid test of the inadequacy of a verdict for personal injuries having no measurable standard, i.e., pain and.suffering. A paraphrase of that statement is, a court would be fully justified in setting aside as grossly inadequate the verdict of a jury if it fails to award substantial compensation for substantial proven injuries. This court pointed to the opinion of King v. Sturgis in the more recent case of Watts v. Pettway, 49 Ala.App. 324, 272 So.2d 251 (1972). We now reaffirm those cases here.

Our review, after considering each of the above stated presumptions and principles, fails to convince us that the verdict of the jury in this case is so grossly inadequate as to amount to an abuse of discretion. We therefore find no error in the denial of a new trial by the trial court.

We find no basis for reversible error because of the reference by defendant’s counsel, before the jury, to the presence in the lawsuit of plaintiffs insurance company as a plaintiff subrogee. Rule 17(a), A.R.Civ.P., provides for the presence of a subrogee in the case as a party plaintiff. Norton v. Staples, 377 So.2d 1095 (Ala.Civ. App.1979).

AFFIRMED.

BRADLEY and HOLMES, JJ., concur.

      . Actually our addition of the figures presented by plaintiff in brief indicates a much larger difference than contended by plaintiff.


author: ALMON, Justice.

text:
    Ex parte Edna PATTERSON. (In re Edna PATTERSON v. Robert BYRD).
    83-549.
    The Supreme Court of Alabama.
    Sept. 28, 1984.
    Stephen J. Flynn and James F. Barter, Jr. of Diamond & Flynn, Mobile, for petitioner.
    James P. Green of Brown, Hudgens, Richardson, Whitfield & Gillion, Mobile, for respondent.
   ALMON, Justice.

The facts set out in the opinion of the Court of Civil Appeals, 459 So.2d 881, show that the jury awarded damages in an amount less than plaintiffs special damages. See footnote 1 to the opinion of the Court of Civil Appeals. Furthermore, the verdict did not include an amount sufficient to make any compensation for pain and suffering. The judgment of the Court of Civil Appeals is therefore reversed and the cause remanded on the authority of McCain v. Redman Homes, Inc., 387 So.2d 809 (Ala.1980); Bibb v. Nelson, 379 So.2d 1254 (Ala.1980); and Stone v. Echols, 351 So.2d 902 (Ala.1977).

REVERSED AND REMANDED.

On remand, Ala.Civ.App., 459 So.2d 883.

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


text:
    Edna PATTERSON v. Robert BYRD.
    Civ. 4105.
    Court of Civil Appeals of Alabama.
    Oct. 24, 1984.
   WRIGHT, Presiding Judge.

In compliance with the direction of the Supreme Court of Alabama, 459 So.2d 883, in its decision rendered on September 28, 1984, the judgment of the Circuit Court of Mobile County denying plaintiffs motion for a new trial in this ease is hereby reversed and set aside. The cause is remanded to said court for a new trial.

REVERSED AND REMANDED.

BRADLEY and HOLMES, JJ., concur.


author: BRADLEY, Judge.

text:
    Ex parte Judy DODSON. (Re Judy DODSON v. ATRAX DIVISION OF WALLACE-MURRAY CORPORATION).
    Civ. 4094.
    Court of Civil Appeals of Alabama.
    Jan. 20, 1984.
    Jack Drake, Tuscaloosa, for appellant.
    Wilber Hust of Zeanah, Donald & Hust, Tuscaloosa, for appellee.
   BRADLEY, Judge.

This is a petition for writ of mandamus to be issued from this court directing the Honorable J.B. Baird, Judge of the Circuit Court of Tuscaloosa County, to set aside his order requiring the case of Dodson v. Atrax Division of Wallace-Murray Cory., 437 So.2d 1294 (Ala.Civ.App.1983), to be retried, and instead, to enter judgment in favor of claimant, Judy Dodson, and award her workmen’s compensation benefits based on the percentage of her impaired earning ability.

Claimant worked for defendant-corporation as a furnace operator. She was around hazardous substances used by defendant in the manufacturing process such as tungsten carbide and cobalt. In the fall of 1981, claimant was diagnosed as having asthma and bronchitis caused by exposure to tungsten carbide. She then filed suit against defendant, but the circuit court denied her any benefits. On appeal this court reversed and remanded the trial court’s ruling, finding claimant suffered from an “occupational disease” which impaired her earning ability. It remanded to the circuit court for proceedings not inconsistent with the above.

After the case was remanded to the circuit court, defendant’s insurance carrier, Liberty . Mutual Insurance Company, refused to pay claimant any benefits. After a conference on the matter the trial court entered an order directing that the case be retried.

The issue presented here is whether the trial court can order a new trial or should enter judgment in favor of claimant as directed by this court.

Defendant contends a completely new trial must be had on the matter. Claimant contends the trial court must enter judgment in accordance with the directions given it by this court. We agree with claimant.

This court reviewed the evidence and concluded that the trial court had erred in not finding that claimant had in fact suffered a compensable disability. We also determined that claimant suffers from an occupational disease, i.e. “an allergy which prohibits her from working at Atrax, or any similar industrial environment.” The residual effect of her bronchitis leaves her suffering from a “chronic effect” and her earning ability is thereby impaired. We left to the determination of the trial court the percentage of her benefits. This is because the determination of the proper percentage of permanent and partial disability rests with the trial court based on the evidence presented. Hester v. Ridings, 388 So.2d 1218 (Ala.Civ.App.1980).

Subsequently, this court denied defendant’s application for rehearing and the Supreme Court of Alabama denied defendant’s petition for certiorari.

Defendant apparently now wants to reopen the record in an attempt to present new and additional evidence on its behalf.

Although the directions we gave the trial court in our opinion concerning the disposition of the case upon remand are not as specific as they should have been, we nevertheless consider that our directions are clear enough for the trial court to follow in disposing of the case.

As noted above we reversed the trial court’s finding that claimant had not suffered a compensable disability and went on to point out that the evidence does show that claimant suffers from an occupational disease and that her earning ability is impaired. We then remanded the cause for the trial court to proceed to a disposition of the case in accordance with our conclusions. What was left for the trial court to do in these circumstances?

In view of our finding that claimant’s earning ability had been impaired by the contraction of an occupational disease, the only step to be taken by the trial court in disposing of this case was to determine the percentage of claimant’s earning impairment based on the evidence already before it and award compensation benefits as required by the evidence and the law.

In the case at-bar the trial court is not authorized to conduct a completely new trial but is limited to disposing of the case in accordance with the directions given to it by this court. Hames v. Irwin, 256 Ala. 319, 54 So.2d 293 (1951). The writ of mandamus will be granted unless, within ten days of this opinion, the trial court enters judgment holding that claimant suffers from an occupational disease, that as a result her earning ability is impaired, and that she is entitled to compensation benefits as determined by the trial court based on the law and the evidence presently before the court.

WRIT GRANTED CONDITIONALLY.

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


text:
    Evelyn Louise COX v. REPUBLIC STEEL CORPORATION.
    Civ. 4179.
    Court of Civil Appeals of Alabama.
    June 13, 1984.
    Rehearing Denied July 18, 1984.
    Certiorari Denied Nov. 21, 1984 Alabama Supreme Court 83-1259.
    Michael L. Roberts of Floyd, Keener & Cusimano, Gadsden, for appellant.
    Roger C. Suttle of Inzer, Suttle, Swann & Stivender, Gadsden, for appellee.
   WRIGHT, Presiding Judge.

This is a workmen’s compensation case.

On July 31, 1979, Charles Cox, an employee of Republic Steel, was injured in an accident arising out of and in the course of his employment. He received total disability workmen’s compensation benefits until March 29, 1980. He returned to work and entered into discussion concerning an award for permanent partial disability. On August 11, 1980, Cox died of cause not related to his job injury.

On July 29, 1981, suit was filed by the widow Cox, claiming, as pertinent to this appeal, benefits due her and Cox’s dependents under the Workmen’s Compensation Act in the sum of $12,234.26.

The basis of the action is found in § 25-5-57, Code of Alabama 1975 and is stated therein as follows:

“If a workman, who has sustained a permanent partial or permanent total disability, the degree of which has been agreed upon by the parties or has been ascertained by the court, and death results not proximately therefrom, the employee’s surviving spouse and/or dependent children shall be entitled to the balance of the payments which would have been due and payable to the workman,

In support of the suit, evidence was presented that in a meeting in mid-July 1980 with employer’s representative, there was agreement reached that employee had suffered a fifteen percent permanent partial disability to the body as a whole for which there would be paid as lump sum compensation the sum of $12,234.26. The proper instruments of settlement for the approval of the court were to be prepared by the employer and presented to the court.

In response, employer presented evidence that an offer of lump sum settlement had been made to Cox but had not been accepted. Employer presented a letter written by it, mailed to Cox and shown to have been received by him on or about August 1, 1980. The letter tends to negate an agreement upon the offer of settlement. It withdraws the offer and instructs Cox to contact the company physician for further examination. There was evidence that Cox received and discussed the letter with his union advisor, who instructed him to follow its instructions. Cox died within ten days thereafter, on August 11, 1980.

This case was obviously brought and tried upon the theory that there was an agreement between the employee and employer to settle the employee’s claim for a lump sum; that it was represented to employee that the employer would prepare the necessary documents for submission of the agreement for approval of the court; the employer failed to follow through; the employee died; the widow was entitled to recover the benefits of the agreement.

In response, employer denied an agreement and said, in any event, suit was not brought within one year from the date of the injury or last payment of compensation and was thus barred.

Without challenging the application of the statute of limitation, plaintiff claimed avoidance of the statute by estoppel because the misleading conduct of the employer caused the employee to defer bringing suit within one year. Thus, the theory of the trial was established. In response to that theory, the court found the evidence to support the contention that there was an agreement, there was reliance thereon by the employee which caused him to forego suit prior to his death; however, such grounds of estoppel did not toll the bar of the statute of limitation.

The, plaintiff widow appeals, presenting as the only issue: whether estoppel principles are applicable to workmen’s compensation claims so as to toll the statute of limitations asserted by an employer whose conduct in leading the employee to believe liability is admitted has caused delay in filing suit.

That misleading acts or conduct of an employer reasonably relied upon by the injured employee and which causes him to delay or fail to bring suit under the Act may toll the running of the appropriate statute of limitation has been established by the case law of this state. Ex parte Youngblood, 413 So.2d 1146 (Ala.1981); Dorsey v. United States Pipe & Foundry Co., 353 So.2d 800 (Ala.1977); Mayes v. Dake, 434 So.2d 271 (Ala.Civ.App.1983).

Let us now examine whether such rule applies in this case. First: Assuming the correctness of the finding of the trial court that there was an agreement of settlement between the employee and employer on or about the middle of July 1980, it must be noted that there was undisputed notice to employee by letter of July 29, 1980, that the agreement was no longer effective. The effect of that letter was discussed with employee’s union advisor as soon as received. The employee was advised by the union advisor to proceed as directed in the letter. Therefore, employee was no longer misled that there was agreement.

At the time of receipt of the letter, there had expired time of only approximately four months from the date of the receipt of last compensation payment, leaving remaining of a one-year statute of limitation for bringing suit, some eight months. This was, of course, more than enough time for the bringing of suit. Employee died from causes not related to his injury on August 11, 1980. His death was unfortunate, but it undeniably was the cause for his failure to pursue his claim, not any misrepresentation by the employer. Had he lived he had ample time under the statute for filing. It must be evident that any misrepresentation lasted only for some ten to fifteen days. Such misrepresentation did not cause a failure to file before the time for filing expired.

Second: The misrepresentation, if any, was made to the employee and the estop-pel, if any, was effective as to his cause of action. We have said in the case of Owens v. Ward, 49 Ala.App. 293, 271 So.2d 251 (1972), that the cause of action of the employee given by the Workmen’s Compensation Act does not survive his death. It dies with him. A separate cause of action is granted the widow or dependents merely to proceed to recover benefits already determined by agreement or as ascertained by the court. It may not be said that the widow was misled and thereby delayed suit.

Third: The judgment entered in this case sounds in all respects as if it were determining an original action between employee and employer. It includes all necessary findings of fact and conclusions of law required by the statute for such an action, even to finding of injury, average weekly earnings and percentage of disability. It concludes with an approval of the alleged amount of the lump sum settlement. All of these findings relate to the statutory action of the employee. This action was that of the widow, dependent solely on the existence of an amount due and payable to the employee at the time of his death. Owens v. Ward, supra.

Was there an amount due and payable at his death? We must find there not to have been; not because there was no agreement as to the degree of his disability at the time of his death as found by the trial court, but because such alleged agreement was for a lump sum payment which in order to be effective must have been approved by the court. § 25-5-83, Code 1975; Jamestown Corp. v. Ward, 373 So.2d 1136 (Ala.Civ. App.), cert. denied, 373 So.2d 1142 (Ala.1979).

In summary, recognizing that we have made some observations perhaps not necessary to the decision of the issue presented, we affirm the judgment of the trial court in its conclusion that principles of estoppel do not apply under the facts of this case. Therefore, plaintiff was not entitled to recover. We iterate that we have reviewed only upon the theory of the trial and issues presented thereunder.

AFFIRMED.

BRADLEY, J., concurs.

HOLMES, J., concurs in the result only.


text:
    Joyce Faye McCALPIN v. Wade Kelly McCALPIN.
    Civ. 4141.
    Court of Civil Appeals of Alabama.
    June 20, 1984.
    Rehearing Denied July 25, 1984.
    Certiorari Denied Nov. 21, 1984 Alabama Supreme Court 83-1269.

      Gary W. Alverson and C.E. Carmichael, Jr., Tuscumbia, for appellant.
    No brief for appellee.
   PER CURIAM.

This is a contempt case involving the failure to pay child support.

The mother filed a contempt petition alleging that the father had failed to pay court ordered child support. After an ore terms hearing, the trial court denied the mother’s petition. The mother through able counsel appeals and we affirm.

We do not find it necessary to detail the facts. Suffice it to say that the mother presented evidence that the father had not paid the required child support. The father presented evidence that while he had not paid the child support in the prescribed manner, he had in fact “paid” the required support.

We note that the mother does not dispute the trial court’s failure to find the father in contempt, only the trial court’s failure to determine an arrearage of child support. We further note that the trial court in its decree stated that the mother “is not worthy of belief.”

The evidence was heard before the trial court. Accordingly, the factual finding of that court in favor of the father is presumed to be correct, and this court is not authorized to alter it unless it was so unsupported by the evidence as to be palpably wrong. Johnston v. Johnston, 429 So.2d 1075 (Ala.Civ.App.1983); Dorminy v. Dorminy, 51 Ala.App. 70, 282 So.2d 686 (1973). A contested question of fact was presented as to the question of arrearage, and when a trial court resolves such a conflict in the facts, this court may not reweigh the evidence and substitute our judgment for that of the trial court. Allen v. Allen, 385 So.2d 1323 (Ala.Civ.App.1980).

For this court in this instance to reverse the trial court’s action would be to substitute our judgment for that of the trial court. As indicated, this the law does not permit.

This case due to be affirmed.

AFFIRMED.

All the Judges concur.


text:
    HEALTH MAINTENANCE GROUP OF BIRMINGHAM v. Lynneice Taylor RUTLEDGE.
    Civ. 4074.
    Court of Civil Appeals of Alabama.
    June 27, 1984.
    Rehearing Denied July 25, 1984.
    Certiorari Denied Nov. 21, 1984 Alabama Supreme Court 83-1268.

      Lawrence B. Clark, L. Burton Barnes, III, and Sally A. Sharp of Lange, Simpson, Robinson & Somerville, Birmingham, for appellant.
    Grover S. McLeod, Birmingham, for ap-pellee. -
   BRADLEY, Judge.

This is a breach of contract action.

On February 5, 1981 Lynneice Taylor Rutledge filed suit against Health Maintenance Group of Birmingham (HMG) to recover expenses incurred when her son, Paris, received surgery and treatment at Children’s Hospital in Birmingham, Alabama.

A jury trial was held on July 25, 1983. At the close of plaintiff’s case, HMG filed a motion for a directed verdict and reasserted its motion for directed verdict at the close of all the evidence in the case. The trial court denied both motions and refused to grant any of HMG’s requested jury instructions.

The jury returned a verdict in favor of plaintiff and against defendant in the amount of $6,457.06. HMG filed a motion for judgment notwithstanding the verdict or, in the alternative, for a new trial. Denied. HMG appeals.

HMG argues here that the trial court erred in denying its motions for directed verdict and in refusing to grant its requested jury charges. We consider the failure to properly charge the jury dispositive of this appeal and we will focus on. that aspect of the case.

The evidence shows that plaintiff was employed at Eastside Mental Health Center in Birmingham. She was enrolled in a prepaid group health insurance program offered by HMG that provided for medical, surgical, and hospital care to insureds and members of their family at Lloyd Noland Hospital (LNF). Under certain limited circumstances HMG provides its members with reimbursement and payment for services rendered at a medical facility other than Lloyd Noland Hospital. One such circumstance concerns “emergency service.” Specifically, the HMG contract (policy) provides that:

“3. Emergency Service. If a Member requires Emergency Service and his health would be endangered were Emergency Service delayed until it could be provided at the LNF Hospital or LNF Clinic, he shall be entitled to payment to the Physician of the Reasonable and Customary Fee for Emergency Medical Service rendered to him.
“(b) If the Member is admitted to a Participating Hospital, he is entitled to coverage for the same Hospital Services he would have received in the LNF Hospital.
“(d) The benefits of this Paragraph 3 are subject to the following conditions:
“(3) Approval by LNF and HMG. Each case of Emergency Service shall be reviewed and approved or disapproved by both LNF and HMG. HMG’s decision shall be final.” (Emphasis added.)

The HMG contract defines “Emergency Service” as follows:

“9. ‘Emergency Service’ means Hospital Service, Medical Service, or service in the outpatient department of a Hospital which is required unexpectedly and immediately because of an Accidental Bodily Injury or emergency illness at a place and under circumstances precluding a Member from obtaining such service from the LNF Hospital, the LNF Clinic, and/or LNF Physicians.” (Emphasis added.)

On June 6, 1980 Paris Taylor, plaintiffs two year old son, was severely burned when the stove in plaintiffs apartment collapsed, spilling boiling water on his back. Plaintiff took Paris to the emergency room at Baptist Hospital-Princeton in Birmingham, but was referred to the emergency room at Children’s Hospital in Birmingham. Paris was treated by Dr. Pitts in the children’s burn unit for second degree bums and was released from the hospital on June 24, 1980.

Plaintiff subsequently filed a claim with HMG for Paris’s hospitalization and attendant services. HMG paid the claim.

Following Paris’s discharge from the hospital, plaintiff returned to Children’s Hospital every two days with Paris so that the burn could be scrubbed down, soaked, and rebandaged. She was informed by an HMG employee that “follow-up [care] should be handled by LNF,” and that HMG would not guarantee coverage for the care at Children’s Hospital unless it was established that LNF could not furnish the same care. On July 7, 1980 plaintiff took Paris to LNF for follow-up treatment. The examining physician changed Paris’s bandage and they left.

On July 9, 1980 plaintiff returned with Paris to Children’s Hospital. Paris was sick, whining, and not eating. He was restless and his bandages were soiled. There was a ten by ten centimeter area on Paris’s back where he had scratched and rubbed the skin healing over the burned area. He was admitted to the hospital and was scrubbed down and rebandaged. His arms were put in slings so that he could not scratch his back.

There was testimony that Paris could have been moved to another hospital and that “a few hours wouldn’t make much difference.” There was also evidence that LNF could have rendered the care to Paris.

On July 14, 1980 a skin graft was performed on Paris at Children’s Hospital. He was subsequently released from the hospital on July 30, 1980.

Plaintiff sent HMG a claim for Paris’s second hospitalization and surgery. HMG refused to pay the claim and plaintiff filed suit against HMG seeking payment.

The issue in this case is whether the trial court erred to reversal in failing to charge the jury that under a satisfaction contract, plaintiff could only recover if HMG’s denial of payment for Paris’s second admission was not made in good faith and was arbitrary or capricious.

We note that a satisfaction contract is a contract in which a promissor obligates himself to perform only upon performance by the other party to the promis-sor’s satisfaction. 17 Am.Jur.2d Contracts § 366 (1964). In the case at bar, HMG’s approval was required before it would pay a claim for services rendered at a hospital other than LNF. Thus, it was obligated to perform only if it was satisfied that services rendered at a hospital other than LNF were of an emergency nature. For similar cases see Manufacturers’ Finance Acceptance Corp. v. Woods, 222 Ala. 329, 132 So. 611 (1930); McDennis v. Finch, 197 Ala. 76, 72 So. 352 (1916); Norwood Hospital v. Howton, 32 Ala.App. 375, 26 So.2d 427 (Ala.Ct.App.1946).

And, it is a rule of law in satisfaction contracts that a promissor must exercise good faith in its determination of whether it is satisfied and will perform under the contract. Shelton v. Shelton, 238 Ala. 489, 192 So. 55 (1939); Utley v. Stevens, 221 Ala. 666, 130 So. 405 (1930); McDennis v. Finch, supra; Electric Lighting Co. of Mobile v. Elder Brothers, 115 Ala. 138, 21 So. 983 (1897). Moreover, whether in fact good faith has been exercised is a question for the jury. Kern v. Friedrich, 220 Ala. 581, 126 So. 857 (1930); Worthington & Co. v. Gwin, 119 Ala. 44, 24 So. 739 (1898).

The record reveals in the instant case that the trial judge denied all the charges requested by HMG. Various of these charges dealt with the good faith of HMG in denying plaintiff’s second claim. HMG argues the trial court’s failure to instruct the jury as to its good faith amounted to reversible error. We agree.

The trial judge has the duty to instruct the jury on the law applicable to the case. Raines v. Williams, 397 So.2d 86 (Ala.1981). Each party is entitled to have proper instructions given the jury regarding the issues presented. Failure to give a correct jury charge as to any theory of the case to which a proper objection is made is reversible error. Liberty National Life Insurance Co. v. Smith, 356 So.2d 646 (Ala.1978).

In the case sub judice the trial court refused to instruct the jury that, in order to find for the plaintiff, they must be satisfied that HMG had not exercised good faith in determining that Paris’s second admission was not an emergency within the terms of the contract. Such refusal is error and requires reversal of the judgment.

REVERSED AND REMANDED.

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


author: HOLMES, Judge.

text:
    Robert E. TATE and Suzanne Tate v. Dorothy LOPER and Charlie Howard Loper.
    Civ. 4040.
    Court of Civil Appeals of Alabama.
    July 11, 1984.
    Rehearing Denied Aug. 22, 1984.
    Certiorari Denied Nov. 21, 1984 Alabama Supreme Court 83-1403.

      Lee B. Williams, Grove Hill, for appellants.
    S.J. Laurie, Chatom, for appellees.
   HOLMES, Judge.

This is a condemnation case.

Appellants, the Tates, appeal from a judgment of the Washington County Circuit Court condemning a right-of-way across the Tates’ land and awarding damages in the amount of $2,471.

The following facts are pertinent.

The appellees, the Lopers, owned certain land which is not adjacent or contiguous to any public road or highway. In accordance with § 18-3-1, Ala.Code (1975), Mr. Loper initiated proceedings to acquire a right-of-way over the Tates’ land to the public highway.

Evidence at trial showed that there were three potential routes of access to the Lop-ers’ land. The route ultimately condemned by the trial court goes across the center of the Tates’ land and is called the “old woods road.” This road had been the primary route of access to the Loper land in previous years. Apparently, the former owner of the Tate land had allowed this road to be traveled. The other two routes are along the east and west boundaries of the Tates’ property. These routes are referred to respectively as the “fire-line” and the “swamp road.”

The trial court heard evidence presented ore tenus and then made a personal inspection of the property. Thereafter, the trial court condemned a right-of-way down the center of the Tates’ property, the road known as “old woods road,” and assessed damages. The Tates appeal the condemnation and the assessment of damages.

The dispositive issues on appeal are whether the Lopers had reasonable access to Loper land without condemning a right-of-way and whether the trial court erred in assessing the Tates’ damages at $2,471.

In a case such as the one at bar, where the trial court has heard ore tenus evidence and personally viewed the property in question, the trial court’s judgment is given great weight. This proposition is succinctly stated in Tenison v. Forehand, 281 Ala. 379, 202 So.2d 740 (1967):

“This case is peculiarly one where the rule should be applied that where the hearing is before the judge and the witnesses testify orally before him, his findings will be sustained on appeal unless plainly erroneous or against the great weight of the evidence. Particularly in this case, where he had the advantage of viewing the premises and knowing the locale, the rule should be emphasized and we would be most reluctant to disturb his findings.”

(Cites omitted) 202 So.2d at 742.

The above principle of law is particularly relevant in proceedings involving condemnation under § 18-3-1, Ala.Code (1975), where the trial court must make crucial factual determinations. One of these factual determinations involves the first issue, that is, whether or not the condemnor has reasonably adequate access to and from his land.

The intent of § 18-3-1 is

“to provide a means whereby a landowner, enclosed on all sides by lands of others and unable to get to his land from a public road or highway, can get relief by condemning a right of way to it across intervening land. However, if such landowner already has a reasonably adequate way to and from his land, there is no field of operation for the statute. On the other hand, if there is no reasonably adequate means of access he may acquire, as provided in the statute, ⅛ convenient right of way not exceeding in width fifteen (now thirty) feet over the lands intervening and lying between such tract or body of land and the public road nearest or most convenient thereto.’ ”

Tenison v. Forehand, 281 Ala. 379, 202 So.2d 740 (1967).

As stated above, the trial court must make a factual determination of whether the condemnor has reasonably adequate access to and from his land. McGowin Investment Co. v. Johnstone, 54 Ala.App. 194, 306 So.2d 286 (1974); cert. denied, 293 Ala. 766, 306 So.2d 290 (1975). Given the presumptions accorded the trial court under the ore tenus rule, this court cannot say it was error to condemn the right-of-way granted in the present case. This is particularly so in view of the fact that the trial court personally inspected the property.

The evidence tended to show that the east and west routes to the Lopers’ land do not provide “reasonably adequate” access. There was evidence that both the “swamp road” and the “fire line” are low-lying and under water much of the time. There was testimony that these routes, when wet, could not be traveled by a conventional vehicle. There was further testimony that it would cost a rather large sum to prepare either of these roads for regular travel.

Additionally, the “old woods road,” the condemned right-of-way, has been used as a means of access to the Lopers’ property for many years. This road provides drainage and water does not stand on the road. In other words, the “old woods road” is navigable when wet. There was also evidence that the “old woods road” is the best route from the Lopers’ land to the public highway.

In short, considering the presumptions accorded the trial court’s judgment, there was evidence from which it could be found that the Lopers did not have reasonably adequate access to their property, and therefore condemnation was proper. There was also evidence which supports the trial court’s determination that the right-of-way condemned is the most “convenient” and appropriate route. Hence no error.

The Tates’ next contention is that the award of damages is not supported by the evidence. We do not agree.

The area taken for the right-of-way is twenty feet wide, 1,465.3 feet long and covers approximately three-fifths of an acre. This right-of-way runs down the middle of eighty acres “cutting” the property almost exactly into two equal parts. Mr. Tate testified that he paid $500 per acre for the land the year before the condemnation proceedings.

There was testimony from several witnesses on both sides as to the damage Tate would suffer as a result of the taking. From these witnesses a range of $397.07 to $154,000 was established. Other figures in this range include $7,700 and $471. It goes without saying whose witnesses established the floor and the ceiling on this price range.

There is a long line of condemnation cases where it has been consistently held that where a verdict is returned which falls within the expert testimony, we will not reverse on the grounds that the verdict is inadequate or unsupported by the evidence. State v. Shepard, 411 So.2d 132 (Ala.1982); Dorroh v. Jefferson County, 264 Ala. 335, 87 So.2d 619 (1956). Accordingly, the award of damages in the instant case is affirmed.

The Tates also contend that condemnation is improper because there is a landowner whose land intervenes between the public highway and the Tates. In other words, the Lopers must go through the Tates’ land and then the intervening landowner’s land before reaching the highway. The Lopers have permission to cross this land on the “old woods road.” The Tates contend that the statute does not provide for condemning only a portion of the land between the public highway and the Lop-ers. The Tates also contend that because the Lopers have permission to cross the intervening land and the general public does not, the taking of the right-of-way is not subject to public use. We do not find merit in any of these contentions.

As mentioned earlier, § 18-3-1 has no field of operation where a landowner: already has reasonable access to the public highway. McGowin Investment Co. v. Johnstone, 54 Ala.App. 194, 306 So.2d 286 (1974), cert. denied, 293 Ala. 766, 306 So.2d 290 (1975). In the present case, the Lopers have permission from the intervening landowner to cross his land on the “old woods road,” the very road that runs through the Tates’ land and was condemned as a right-of-way. Obviously, the Lopers have reasonably adequate access through this land to the highway so that any attempt to condemn for a right-of-way under § 18-3-1 would appear to be futile.

In regard to the Tates’ other contentions, they rely on Harvey v. Warren, 212 Ala. 415, 102 So. 899 (1925), in support of their position. Harvey holds that once property is condemned for a right-of-way, the road is for all those who can or may use it. We do not believe that principle is violated here. We are aware of no authority which would so hold. The right-of-way here condemned appears to be open to all who can or may use it. What effect the intervening land will have on the general public is beyond the scope of this appeal. The intervening landowner is not a party to this case and, from all that appears, we do not know if this situation will have any impact on the general public’s use of the condemned right-of-way.

This case is due to be and is affirmed.

AFFIRMED.

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


author: PER CURIAM. PER CURIAM.

text:
    Emmett T. SWANN v. BOARD OF ZONING ADJUSTMENT OF JEFFERSON COUNTY, ALABAMA.
    Civ. 4210.
    Court of Civil Appeals of Alabama.
    July 11, 1984.
    Rehearing Denied Aug. 8, 1984.
    Certiorari Denied Nov. 21, 1984 Alabama Supreme Court 83-1297.

      Charles H. Huey, Birmingham, for appellant.
    Charles S. Wagner, Birmingham, for ap-pellee.
   PER CURIAM.

This is a zoning case. The plaintiff attempted to secure a variance that would enable him to operate a retail plant and flower business in an area zoned R-l (residential). The circuit court upheld the Board of Zoning Adjustment’s refusal to grant a variance. We reverse.

The following is pertinent. In 1974, Emmett T. Swann purchased the subject property. Mrs. Swann’s hobby was growing flowers, and consequently, the couple erected a small greenhouse on their lot. In 1976, when the couple began thinking of retirement, someone suggested that Mrs. Swann’s hobby be turned into supplemental income for the couple’s retirement. When their son-in-law advised them that the zoning on their property was C-l (commercial), the Swanns purchased business licenses and began operations. In 1977, they constructed a- second greenhouse, measuring fourteen feet by eighty feet; in 1980, they were in the process of preparing a third greenhouse, measuring thirty-six feet by seventy feet, when the zoning board stopped them and advised them the area was zoned R-l.

On July 11, 1980, Mr. Swann filed a request with the Jefferson County Commission to have the land rezoned from R-l to C-l. The application was denied on September 16, 1980, and Mr. Swann chose not to appeal. Instead, on September 23, 1980, he filed an application for a use variance with the Board of Zoning Adjustment to allow operation of an existing greenhouse with retail sales located in an area zoned residential.

On September 30, 1980, while Mr. Swann’s application was pending, the Jefferson County Commission passed a zoning resolution which stripped the Board of Zoning Adjustment of its power to grant use variances. Thereafter, on October 27, 1980, the Board denied the variance for lack of a majority vote, and Mr. Swann appealed to the circuit court.

On September 29, 1988, the learned trial judge entered a summary judgment on the defendant’s motion, apparently bottomed on the premise that the September 30, 1980, resolution of the Jefferson County Commission precluded the relief the plaintiff sought.

This case requires interpretation of the powers granted to the Jefferson County Commission and the Board of Zoning Adjustment of Jefferson County by the state legislature in the enabling statute. See [1947] Ala.Acts 344.

At issue is whether the Jefferson County Commission has the power to take away from the Board of Zoning Adjustment a traditionally recognized power to grant use variances in “unnecessary hardship” cases. See generally Nelson v. Donaldson, 255 Ala. 76, 50 So.2d 244 (1951). Accord, e.g., Priest v. Griffin, 284 Ala. 97, 222 So.2d 353 (1969); Thompson, Weinman & Co. v. Board of Adjustment, 275 Ala. 278, 154 So.2d 36 (1963); City of Mobile v. Lee, 274 Ala. 344, 148 So.2d 642 (1963); Board of Zoning Adjustment v. Boykin, 265 Ala. 504, 92 So.2d 906 (1957); Graham v. City of Huntsville, 398 So.2d 698 (Ala.Civ.App.), cert. denied, 398 So.2d 700 (Ala.1981). Cf. Baggett v. City of Montgomery, 276 Ala. 166, 160 So.2d 6 (1963) (Airport Zoning Act).

The following general discussion of Alabama zoning law hopefully places the present issue in the proper perspective: Cities and other municipal corporations in Alabama do not have the inherent power to enact and enforce zoning regulations. See, e.g., Ball v. Jones, 272 Ala. 305, 132 So.2d 120 (1961); Alabama Alcoholic Beverage Control Board v. City of Birmingham, 253 Ala. 402, 44 So.2d 593 (1950). Municipal corporations have, however, been granted the power to enact comprehensive zoning ordinances by the legislature. See e.g., §§ 11-52-70 through -84, Ala.Code (1975). Any zoning ordinances which are enacted under this delegated legislative authority must be enacted pursuant to, and in substantial conformity with, the enabling act. Lynnwood Property Owners v. Lands Described in Complaint, 359 So.2d 357 (Ala.1978).

Ordinarily municipal ordinances are presumed to be valid and reasonable and within the scope of the powers granted municipalities to adopt such ordinances, and therefore, such ordinances will not be struck down unless they are clearly arbitrary and unreasonable. Cudd v. City of Homewood, 284 Ala. 268, 224 So.2d 625 (1969). Zoning ordinances are no exception.

“[ZJoning is a legislative function committed to the sound discretion of municipal legislative bodies, not to the courts. Waters v. City of Birmingham, 282 Ala. 104, 209 So.2d 388 (1968); Marshall v. City of Mobile, 250 Ala. 646, 35 So.2d 553 (1948). As a result, local governing authorities are presumed to have a superior opportunity to know and consider the varied and conflicting interests involved, to balance the burdens and benefits and to consider the general welfare of the area involved. Episcopal Foundation of Jefferson County v. Williams, 281 Ala. 363, 202 So.2d 726 (1967); Leary v. Adams, 226 Ala. 472, 147 So. 391 (1933). They, therefore, must of necessity be accorded considerable freedom to exercise discretion not diminished by judicial intrusion. Walls v. City of Guntersville, 253 Ala. 480, 45 So.2d 468 (1950). Nevertheless, this discretion is not unbounded, and local authorities may not, under the guise of legislative power, impose restrictions that arbitrarily and capriciously inhibit the use of private property or the pursuit of lawful activities. When such arbitrary and capricious action is made apparent, a reviewing court will not hesitate to disturb the zoning determination as a clear abuse of discretion. ”

City of Birmingham v. Morris, 396 So.2d 53, 55 (1981) (emphasis added). Accord, Ball v. Jones, 272 Ala. 305, 132 So.2d 120 (1961).

Because zoning ordinances impose restrictions on the use of private property, see generally, Smith v. City of Mobile, 374 So.2d 305 (Ala.1979), in the same statutory schemes that empowered local governments to enact zoning ordinances, the legislature provided for boards of zoning adjustment that could determine that in particularly harsh situations the zoning ordinances enacted by the municipality should not be applied literally. Cf. Baggett v. City of Montgomery, 276 Ala. 166, 160 So.2d 6 (1963) (Airport Zoning Act). These boards are authorized to make proper adjustments to prevent “unnecessary hardship,” i.e., to grant variances from the zoning ordinance’s requirements. See Alabama Power Co. v. Brewton Board of Zoning Adjustment, 339 So.2d 1025 (Ala.1976); Priest v. Griffin, 284 Ala. 97, 222 So.2d 353 (1969).

The term “variance” can encompass anything from a slight modification in height, area, or distance of a building from boundaries to the authorization of a nonconforming use. See Nelson v. Donaldson, 255 Ala. 76, 50 So.2d 244 (1951).

The power and the authority of the board of zoning adjustment (to determine that the facts are such as was intended by the legislature to entitle a property owner to a variance from the terms of a zoning ordinance) is not a delegation of legislative authority; the board of zoning adjustment sits as an administrative body performing a quasi-judicial function. Id. Accord, Ball v. Jones, 272 Ala. 305, 132 So.2d 120 (1961). And, since the board of adjustment derives its powers directly from the state legislature, such powers cannot be circumscribed, altered, or extended by the municipal governing body. Nelson v. Donaldson, 255 Ala. 76, 50 So.2d 244 (1951). Accord, Water Works Board v. Stephens, 262 Ala. 203, 78 So.2d 267 (1954).

If a property owner is unsuccessful in his attempt to secure a variance from a board of zoning adjustment, he may perfect a de novo appeal to the appropriate circuit court. The authority of the circuit court on appeal to permit a variance from the terms of the ordinance is the same as that conferred on the board of adjustment, Nelson v. Donaldson, 255 Ala. 76, 50 So.2d 244 (1951); and the scope of the inquiry by the circuit court is limited to only those issues which could be properly presented to the board of zoning adjustment. The de novo hearing provided for under state law envisions an entirely new hearing in the circuit court as if the matter had not been tried before. Board of Zoning Adjustment v. Warren, 366 So.2d 1125 (Ala.1979). Although state law requires that a transcript of the proceedings before the board of zoning appeals be certified to the circuit court, it appears that this transcript has no evidentiary value, but is for the primary purpose of permitting a better understanding of the issues tried before the board. Id.

The controlling part of the statutory scheme which authorized the Jefferson County Commission to exercise zoning powers and established the Board of Zoning Adjustment of Jefferson County is as follows:

“Section 8. BOARD OF ADJUSTMENT. In availing itself of the powers conferred by this Act, the governing body of the county shall provide for the appointment of a board of zoning adjustment. ... The board of adjustment shall have the following powers: ... (3) to authorize upon appeal in specific cases such variance from the terms of the ordinance as will not be contrary to the public interest, where, owing to special conditions, a literal enforcement of the provisions of the resolution or order will result in unnecessary hardship, and so that the spirit of the ordinance shall be observed and substantial justice done.”

[1947] Ala.Acts 344 (emphasis added).

Because the words “unnecessary hardship” have been interpreted to allow the granting of use variances, supra, p. 3, that portion of the Jefferson County Commission’s September 30, 1980, resolution which provides that “[i]n no case shall the Board [of Zoning Adjustment] grant a variance that permits the permanent use of land, building or structure for a use prohibited within the District in which the land, building or structure is located” is in conflict with the Board’s traditional powers. Such restriction on the Board’s authority is obviously inconsistent with the applicable enabling statute, and is, therefore, invalid. See, e.g., Lynnwood Property Owners v. Lands Described in Complaint, 359 So.2d 357 (Ala.1978). (A further argument might be made based upon Baggett v. City of Montgomery, 276 Ala. 166, 160 So.2d 6 (1963), that even in the absence of the conflict with the enabling statute, the Board would have to have the power to grant use variances to prevent the confiscation of property rights contrary to law. See id. at 170, 160 So.2d at 9.)

The appellee, Board of Adjustment, contends that the appellant is prohibited from challenging the September 30, 1980, zoning resolution because of Alabama case law which prohibits a property owner from seeking a change in classification of property under a zoning ordinance and at the same time, and in the same action, attacking the constitutionality of such zoning ordinance. See Byrd Companies v. Jefferson County, 445 So.2d 239 (Ala.1983). This rule was adopted based upon the following reasoning from Watts v. City of Wiggins, 376 So.2d 1072, 1074 (Miss.1979):

“A petitioner may not seek a change in a classification of property under a zoning ordinance and at the same time attack the validity of the ordinance. The reason for the principle is evident. The right to seek a change in the classification of property under a zoning ordinance rests on the basis that the ordinance is in effect, and to hold the ordinance invalid, would destroy the basis for the relief sought. In seeking relief from the Mayor and Board of Aldermen, petitioners could not consistently attack the validity of the ordinance which was the sole basis for the relief they sought.”

(Emphasis added). This reasoning is not applicable to the facts of the instant case because the plaintiff must establish that the September 30 resolution is invalid in order to establish a basis for the relief sought — a use variance. See Ball v. Jones, 272 Ala. 305, 132 So.2d 120 (1961). We likewise find without merit the appellee’s argument, through able counsel, that appellant cannot challenge the resolution because the Jefferson County Commission was not made a party to the proceeding, a contention for which no authority was cited. Id.

As earlier stated, this action comes to us after the trial court entered a summary judgment on the defendant’s motion which relied upon the September 30, 1980, Jefferson County Commission resolution as authority for denying the variance sought. As this resolution is invalid, the defendant, Board of Zoning Adjustment, was not entitled to a judgment as a matter of law on this ground. See Alabama Rules of Civil Procedure 56(c). Accordingly, the judgment below is due to be reversed.

REVERSED AND REMANDED FOR PROCEEDINGS NOT INCONSISTENT WITH THE ABOVE.

All the Judges concur.

ON REHEARING

PER CURIAM.

The Board of Zoning Adjustment of Jefferson County, in its brief in support of an application for rehearing, in part contends that the original appeal was due to be dismissed.

This contention is based on the premise that the Attorney General was not served with a copy of the proceedings that challenged the constitutionality of the Board’s action. See § 6-6-227, Ala.Code (1975). This argument is being made for the first time on rehearing. It comes too late.

“[S]uch failure, defect, or insufficiency must be brought to this Court’s attention prior to its submission by written motion; and, failure to timely file this motion, giving appellant reasonable opportunity to correct such defect, constitutes a waiver of consideration by this Court. Supreme Court Rule 52.” Lawrence v. Gayle, 294 Ala. 91, 94, 312 So.2d 385, 387 (1975). Furthermore, it appears that the action by the Board was held “invalid” and was not challenged on the grounds of “constitutionality” nor decided on that basis as contemplated by section 6-6-227, Ala.Code (1975).

The Board on rehearing also contends that the Jefferson County Commission was a necessary party to the original proceeding. Again, this issue was not properly presented in the first submission. Even if the contention is meritorious, which is doubtful, it comes too late.

OPINION EXTENDED. APPLICATION FOR REHEARING OVERRULED.

All the Judges concur.

      . For the purposes of this case the language of the enabling act that applies to Jefferson County is identical to that found in § 11-52-80, Ala. Code (1975), and the cases dealing with § 11-52-80 can be relied upon as controlling.

      . The general principles hereinafter stated are discussed for the purposes of the instant enabling legislation and, of course, do not take into account minor variations found in other zoning statutes not here at issue.


text:
    GOODYEAR TIRE & RUBBER COMPANY v. Justin M. MITCHELL.
    Civ. 4186.
    Court of Civil Appeals of Alabama.
    July 25, 1984.
    Rehearing Denied Aug. 22, 1984.
    Certiorari Denied Nov. 21, 1984 Alabama Supreme Court 83-1402, 84-34, 84-35, 84-36, 84-37, 84-39.

      Howard B. Warren of Pruett, Hudson, Turnbach & Warren, Gadsden, for appellant.
    David B. Carnes, Gadsden, for appellee.
   HOLMES, Judge.

This is a workmen’s compensation case.

Plaintiff below, Justin M. Mitchell, filed a complaint for workmen’s compensation benefits against his employer, Goodyear Tire & Rubber Company. The complaint alleged that Mitchell was injured on July 27, 1981, in an on-the-job accident which caused permanent partial impairment to his lower back. In its answer, Goodyear admitted the substance of the complaint, leaving as the sole factual issue the extent of Mitchell’s permanent partial disability.

After a hearing the trial court entered a final order holding (1) that Mitchell had sustained a thirty-three percent permanent partial disability or loss of ability to earn as a result of an on-the-job accident, for which he was entitled to compensation under the Workmen’s Compensation Act and (2) that Mitchell was entitled to attorney fees in the amount of $3,687.30, this sum immediately payable in full, with Goodyear entitled to a dollar-for-dollar credit for this sum against the last of its future compensation payments. See Ashland Chemical Co. v. Watkins, 435 So.2d 1301 (Ala.Civ.App.1983).

Goodyear through able counsel appeals, raising two grounds for reversal: (1) that the evidence does not support the award of a thirty-three percent permanent partial disability rating in the face of the fact that Mitchell had returned to work and was earning more than he did at the time of the accident, and (2) that this court erred in Ashland Chemical Co. v. Watkins, 435 So.2d 1301 (Ala.Civ.App.1983), when it held that the trial court’s discretion under section 25-5-90, Ala.Code (1975), to fix the manner of attorney fee payments extended to requiring a lump-sum attorney’s fee payment by the employer.

Taking up the matter of Mitchell’s post-accident earnings first, the evidence, which is not in dispute, does support a finding of a thirty-three percent permanent partial disability despite the fact that Mitchell’s post-injury earnings exceed his pre-accident wages.

Section 25-5-57(a)(3)g articulates the procedure for calculating awards for nonscheduled permanent partial injuries such as Mitchell’s. That section provides an award of two-thirds of the difference between the average weekly earnings of the employee at the time of his injury and the average weekly earnings the employee is able to earn in his partially disabled condition.

While it is true that an injured worker’s post-injury earnings are a factor for the trial court to consider in assessing the degree of disability, Alabama courts have consistently rejected the notion that these earnings are the determinative factor as to loss of ability to earn. See Goodyear Tire & Rubber Co. v. Corfman, 424 So.2d 1326 (Ala.Civ.App.1982) (and cases cited therein). Where actual post-injury earnings equal or exceed the pre-injury earnings, a presumption arises that the claimant has suffered no reduction in earning ability. Florence Enameling Co. v. Jones, 361 So.2d 564 (Ala.Civ.App.), cert. denied, 361 So.2d 567 (Ala.1978). This presumption can, however, be overcome by showing either independent evidence of incapacity or evidence tending to indicate the unreliability of the post-injury earnings as an estimate of earning capacity. Id.

In the instant case, Dr. William A. Crunk, a vocational expert, testified that Mitchell had lost the ability to perform heavy work as a result of his back injury. Dr. Crunk testified that this injury would reduce the number of jobs available to Mitchell by thirty-three percent. Crunk further testified that there exists a hiring bias against persons who have sustained back injuries requiring surgery and that this should further reduce Mitchell’s ability to obtain work by seventeen percent, for a total of fifty percent disability.

Additionally, Mitchell himself testified that he is more careful now about lifting and that he cannot handle the same sort of weight that he could lift before. Mitchell estimated that he could only handle about sixty percent of the weight he used to handle. He also said he now tires more easily, that he suffers lower back pains, and that he has passed up Sunday and overtime work to protect his back.

In light of this and other evidence, we can find no error in the trial court’s decision to set the degree of disability at thirty-three percent.

We must likewise reject Goodyear’s argument that the Workmen’s Compensation Act does not allow for a lump-sum payment of attorney fees. As Goodyear concedes, this issue was decided adversely to it in Ashland Chemical Co. v. Watkins, 435 So.2d 1301 (Ala.Civ.App.1983). Goodyear has failed to argue any compelling reason why our Ashland analysis should be overturned. Accordingly, the trial court’s action, as it was soundly based upon Ashland, should be affirmed.

AFFIRMED.

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