text:
    Al W. SEIER, a/k/a Al W. Seier III and a/k/a Alfred W. Seier v. Freddie PEEK.
    83-331.
    Supreme Court of Alabama.
    Sept. 21, 1984.
    Nathan Friedlander of Marr & Friedlan-der, Mobile, for appellant.

      Samuel N. Crosby of Stone, Partin, Gra-nade & Crosby, Bay Minette, for appellee.
   MADDOX, Justice.

This appeal concerns a suit originally brought by the payee of a promissory note against the maker of the note.

Peek was a stockholder in Gulf Coast Condominium Sales, Inc. (hereinafter referred to as Gulf Coast). Gulf Coast was the selling agent for Bileco Corporation, a condominium developer. Prior to the execution of the promissory note, Seier contacted Peek and expressed a desire to purchase all of the outstanding stock in Gulf Coast. In addition, he wanted to acquire from Bileco the exclusive right to market Bileco condominiums for the benefit of Gulf Coast.

The parties involved negotiated through one Sam McKerall, who was not a party in the suit. McKerall drafted the promissory note. Seier executed the note on June 10, 1982, gave it to McKerall, and instructed McKerall to hold the note until he (Seier) completed negotiations.

The pertinent portion of the note provided that:

“The undersigned, for value received, promises to pay to the order of Freddie Peek, the sum of ten thousand dollars ($10,000.00), together with interest thereon at the rate of fourteen percent (14%) per annum, payable in three equal annual installments of principal, plus all interest accrued thereon through the date of each payment, commencing one year from the date hereof and continuing on the same day of each succeeding year thereafter until all principal and interest are fully paid.” (Emphasis added.)

After Seier failed to make payments on the note, Peek brought suit. The trial court found in favor of Peek, and Seier appeals, raising the following issues:

(1) Whether, under the undisputed evidence, Peek failed to prove a prima facie case entitling him to recover against Seier, particularly whether there was an actual delivery of the promissory note;

(2) Whether Seier’s testimony established, without dispute, that Peek’s stock, which was the basis of the note, was worthless unless Peek could also obtain the exclusive listing agreement; and

(3) Whether the court erred in sustaining Seier’s inquiry regarding changes in the value of the stock between the date of execution of the promissory note and the date the stock was tendered.

I

We first address the issue of whether the delivery of the note to McKerall constituted delivery and thus was sufficient to prove a prima facie case against Seier. Seier alleged, among other things, that delivery of the promissory note was conditional upon his completion of negotiations for the stock and the acquisition of the exclusive listing agreement.

Code 1975, § 7-3-306, indicates that nondelivery of a note must be pleaded affirmatively by setting it out as a defense to be raised by the maker of a note or anyone else who is not a holder in due course. We find that under Rule 8(c), Ala.R.Civ.P., both nondelivery and conditional delivery are affirmative defenses which must be pleaded specially in the answer.

Although appellant’s argument may have merit we are unable to consider it here because, after reviewing the record, we find that this defense was not raised in appellant’s answer or at any time during the trial. The general rule is that a defense not asserted in a trial court cannot be raised for the first time on appeal. City of Rainbow City v. Ramsey, 417 So.2d 172 (Ala.1982), citing Green v. Standard Fire Ins. Co., 398 So.2d 671 (Ala.1981); Whitman v. Knapp, 285 Ala. 57, 228 So.2d 814 (1969). We, therefore, decline to consider Seier’s argument that there was no delivery.

II

The second issue is whether the trial court’s finding that the consideration given in exchange for the promissory note was adequate was palpably erroneous or manifestly unjust. Peek argues that we cannot address this issue since Seier did not file either a motion for new trial or a motion for a judgment notwithstanding the verdict pursuant to Rule 50 of the Alabama Rules of Civil Procedure; he contends that Seier cannot now argue on appeal the question of the sufficiency, weight, and preponderance of the evidence either in support of plaintiff’s case on the promissory note or in support of his own affirmative defenses. Although the above rule is correct, it is not applicable here, because this is a non-jury case and, therefore, we will address the merits of Seier’s second issue.

Seier argues that testimony clearly indicated that the stock he purchased was worthless without the exclusive listing agreement. Thus, he claims that without the exclusive listing agreement, nothing of value passed between the parties and, therefore, there is want of consideration for the promissory note.

The note itself is “prima facie evidence of sufficient consideration for the execution thereof, and the burden of proof is on the defendant to show there was no consideration.” Day v. Ray E. Friedman & Co., 395 So.2d 54, 56 (Ala.1981), citing Ladner & Company Real Estate Sales, Inc. v. Smith, 277 Ala. 185, 168 So.2d 217 (1964). Because there was conflicting evidence as to whether the consideration was adequate and this presented a question of fact, Nash v. Vann, 390 So.2d 301 (Ala.Civ.App.1980), citing Hyatt’s Supply Co. v. Lyle, 222 Ala. 460, 133 So. 3 (1931); Bush v. Russell, 180 Ala. 590, 61 So. 373 (1913), and because this is a non-jury case, the above rule must be read in conjunction with the ore tenus rule, which states that findings by the trial court sitting without a jury and hearing the evidence presented ore tenus are entitled to a presumption of correctness unless it is demonstrated that the findings are plainly and palpably wrong or manifestly unjust. Hines v. Heisler, 439 So.2d 4 (Ala.1983).

After reviewing the record, we find that the trial court’s judgment was supported by the evidence. Here, the promissory note itself stated that the note was for “value received.” In addition, the following testimony indicates that the transfer of the Gulf Coast stock was the only consideration promised for the execution of the note:

“THE COURT: Hold on a minute.
“Mr. Seier, I am not understanding anything. What were you supposed to get for the $10,000? Were you supposed to get stock? Were you supposed to get a listing? What were you supposed to get? •
“THE WITNESS: I was supposed to get stock.
“THE COURT: Stock, in what corporation?
“THE WITNESS: Gulf Coast Condominium.
“THE COURT: Okay.”

Seier also testified at trial that he executed the note, read the note before he signed it, and understood the terms of the note. He further testified that he had been in the real estate business for about fourteen years and was a college graduate. There is no question that the trial court could have found that he understood the note, which is complete on its face; consequently, we cannot find that the trial court’s findings are plainly and palpably wrong or manifestly unjust.

Ill

Finally, we address the issue of whether the trial court properly excluded evidence as to the change in value of the stock between the date of execution of the note and the date of the tender of the stock.

Seier contends that this evidence was relevant to show that Peek failed to deliver the stock within a reasonable time. He claims that in the interim period, the time between the execution of the note and the tender of the stock, the stock became valueless, and thus there was failure of consideration. The testimony at trial regarding this point was as follows:

“Q What was the date that the stock was offered to you?
“A I don’t know. I don’t remember the exact date on that.
“Q What was your best recollection of the date?
“A I think it was somewhere around, I am just guessing, August or September.
“Q Of what year?
“A It was ’81.
“Q ’81?
“A Let me see, it was last year so I guess, ‘82.
“Q Had the status of the corporation changed from the date that you executed the promissory note, June 10th, 1982, and September of 1982?
“A On status, I didn’t have anything to say to Mr. McKerall.
“Q I mean had the value of Gulf Coast Condominium Sales changed in any way from those two points?
“MR. CROSBY: I am going to object to that.
“THE COURT: I am going to sustain that.
“MR. FRIEDLANDER: Again, we would make an offer of proof to the Court that the question goes to the reasonableness of the time of delivery.”

We find no merit in Seier’s argument. Here, the note stated it was executed in consideration “for value received.” This note was complete on its face. Because the stock had value when the note was executed, the trial court properly denied an inquiry into the adequacy of that consideration. The mere inadequacy of consideration alone “is never sufficient to vitiate a contract or conveyance otherwise valid, and the courts are not disposed to enter upon nice calculations to strike a balance on one side or the other.” Marcrum v. Embry, 291 Ala. 400, 406, 282 So.2d 49 (1973). Having reviewed all of the issues presented, we find no prejudicial error in the trial court’s holding. We affirm.

AFFIRMED.

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

      . Code 1975, § 7-1-201(14), states that "delivery with respect to instruments, documents of title, chattel paper, or certificated securities means voluntary transfer of possession.” Seier contends that he did not voluntarily transfer possession of the note, but instead deposited it with McKerall as an escrow agent, who was to hold it until negotiations with Peek were completed. Seier cites Cannon v. Dillehay, 17 Ala.App. 294, 84 So. 549 (1919), for the general proposition that a negotiable promissory "note has no legal inception or valid existence, as such, until it has been delivered in accordance with the purpose and intent of the parties.” In addition, Seier relies on Norwood v. Stinnett, 202 Ala. 349, 80 So. 431 (1918). In Norwood the court held that a conditional delivery may exist when there is reservation of liability between the parties. 202 Ala. at 350.


source: Caselaw Access Project

author: MADDOX, Justice.

license: Public Domain

text:
    Frances Walden SHAFFER, Lyda W. Fletcher and Carolyn W. Jordan v. Hugh REED, Jr., et al.
    83-386.
    Supreme Court of Alabama.
    Sept. 21, 1984.

      M.R. Nachman, Jr. of Steiner, Crum & Baker, Montgomery, for appellants.
    Curtis Wright of Dortch, Wright & Russell, Gadsden, for appellees.
   MADDOX, Justice.

This is the second time this case has been before this Court. In Shaffer v. Reed, 437 So.2d 98 (Ala.1983), hereinafter referred to as Shaffer I, this Court held that options, given under a will, allowing specific legatees to purchase bank stock violated the rule against perpetuities. The legal effect of Shaffer I was that the bank stock became a part of the residuary estate.

The issue on this second appeal, hereinafter designated as Shaffer II, is whether the trial court erred in allowing restitution in favor of Hugh Reed, Jr., as a specific legatee, without first reviewing allegations of mismanagement, maladministration, and breach of fiduciary duties on the part of Hugh Reed, Jr., in his capacity as co-executor of the estate, when these allegations were pending in a separate proceeding before the same trial judge.

The facts necessary to resolve this issue are as follows:

On August 10, 1982, appellants, as residuary legatees, filed a complaint for declaratory judgment (Shaffer I), seeking construction of certain portions of the Tevis Smith Burke will. The complaint was filed against Thomas Money and Hugh Reed, Jr., as specific legatees. Thomas Money and Hugh Reed, Jr., are also the co-executors of the Burke estate. They were not named as defendants in their capacity as co-executors of the Burke will in Shaffer I.

Pursuant to paragraph 6 of the will, Hugh Reed, Jr. exercised his option to purchase 1,119 shares of Cherokee County Bank stock from the Burke estate for the sum of $279,750. The executors used these funds to pay state and federal taxes. In Shaffer I this Court determined that paragraph 6 of the will violated the rule against perpetuities. Shaffer v. Reed, 437 So.2d 98 (Ala.1983).

On remand, the trial court entered a final judgment on September 26, 1983, in which the court directed Reed to retransfer and reassign the bank stock to the estate. The trial court allowed Reed to treat the $279,-750 he had paid for the stock as a loan to the estate, and required the estate to reimburse Reed for the money he paid to the estate, plus interest. On October 6, 1983, appellants timely filed a motion to vacate this judgment and also prayed for relief against Hugh Reed, Jr., and Thomas Money in their respective capacities as co-executors of the Burke estate, alleging misconduct, maladministration, and breach of fiduciary duties. Because these claims against the co-executors were pending in a separate proceeding filed by the appellants against them, the appellants further prayed that the two proceedings be consolidated.

On November 30, 1983, after hearing arguments from both sides, the trial court vacated the September 26, 1983, judgment on the ground that it “was issued without notice” to the appellants, but entered another judgment in which the court “require[d] the estate of Tevis Smith Burke to pay back to Hugh Reed, Jr., the sum of $279,750.00, with interest at the rate of six percent from October 1, 1982, which said payment to the estate is to be treated as a loan or advance to the estate and paid as any other claim against the estate.”

The court, in the second judgment, considered the allegations of maladministration, mismanagement, and breach of fiduciary duties, and decreed:

“[TJhere are other pending matters in regard to the ultimate disposition of the estate of Tevis Smith Burke; however, they are not involved in this proceeding for declaratory judgment at this time. One such matter is the estate of Tevis Smith Burke that was removed from the Probate Court to the Circuit Court and which is now pending in said Circuit Court as Case No. CV 82-109. The other matter now pending and most recently filed is Case No. CV 83-90, wherein the Defendant Reed is charged with mismanagement of the estate of Tevis Smith Burke and Defendant Money is alleged to have improperly paid himself Executor fees from said estate. The issues in these matters are not now before the Court. Likewise, the Court notes that Hugh Reed, Jr. and Thomas Money are not parties to the instant proceeding in their capacity as executors.”

This appeal is from the second judgment.

The appellants contend that the second judgment should be set aside because the executors did not rebut allegations of misconduct and wrongdoing which resulted in financial damage to them as residuary legatees. Because the trial court acknowledged these accusations, but refused to deal with them in the second judgment, appellants argue that, in effect, the court simply vacated the first judgment and then reinstated it in the second judgment. Thus, appellants claim that because the first judgment was set aside for violating the residuary legatees’ rights to due process, the second judgment should be set aside for the same reason. We find no merit in this argument.

The trial court’s judgment of November 30, 1983, was rendered after notice was given and following a hearing in which all parties were represented by counsel. The fact that the trial court refused to adjudicate the allegations of mismanagement, maladministration, and breach of fiduciary duties does not affect the due process rights of the residuary legatees, because these matters are still pending in an entirely separate proceeding.

In addition to their due process claim, the appellants also contend that the trial court erred in ordering restitution, with interest, to Hugh Reed, Jr., without considering his wrongdoing as co-executor. They contend that restitution is not a right and should be determined by weighing the equities which arise out of the relationships of the parties.

In Maslankowski v. Carter, 291 Ala. 8, 277 So.2d 91 (1973), this Court stated the rule with regard to restitution after reversal as follows:

“We believe that the case of McCall v. McCurdy, 69 Ala. 65 (1881), best states the rule with regard to restitution after reversal, as follows:
“ ‘ * * * The restoration of parties to the plight and condition in which they were, at and prior to the rendition of an erroneous judgment or decree, and the restitution of all advantages the party obtaining it may have acquired by its enforcement, upon reversal, it is the spirit and policy of the law to promote and compel, when there are not facts and circumstances which may render restitution inequitable.’ * * * ” (Emphasis supplied)
“Respondent, Judge Eugene Carter, in his answer to the rule nisi states that it would constitute a ‘grave injustice’ and would be contrary to equitable principles’ to require the minor to make restitution as a condition precedent to the further prosecution of this case. The answer states the minor has no funds with which to support herself and no assets except this chose in action against petitioner.
“In Atlantic Coast Line R.R. v. Florida, 295 U.S. 301, 55 S.Ct. 713, 79 L.Ed. 1451 (1935), the Supreme Court of the United States, speaking through Mr. Justice Cardozo, stated the rule to be as follows:
* * * A cause of action for restitution is a type of the broader cause of action for money had and received, a remedy which is equitable in origin and function. Moses v. Macferlan, 2 Burr. 1005; Bize v. Dickason, 1 Term Rep. 285; Farmer v. Arundel, 2 Wm.Bl. 824; Kingston Bank v. Eltinge, 66 N.Y. 625. The claimant, to prevail, must show that the money was received in such circumstances that the possessor will give offense to equity and good conscience if permitted to retain it. Schank v. Schuchman, 212 N.Y. 352, 358, 359, 106 N.E. 127; Western Assurance Co. v. Towle, 65 Wis. 247, 26 N.W. 104, 108. The question no longer is whether the law would put him in possession of the money if the transaction were a new one. The question is whether the law will take it out of his possession after he has been able to collect it. Cf. Tiffany v. Boatman’s Institution, 18 Wall. [85 U.S.] 375, 385, 390, 21 L.Ed. 868. * * *
“ ‘Suits for restitution upon the reversal of a judgment have been subjected to the empire of that principle like suits for restitution generally. “Restitution is not of mere right. It is ex gratia, resting in the exercise of a sound discretion, and the court will not order it where the justice of the case does not call for it, nor where the process is set aside for a mere slip.” Gould v. McFall, 118 Pa. 455, 456, 12 A. 336, citing Harger v. Washington County, 12 Pa. 251. There are other decisions to the same effect. Alden v. Lee, 1 Yeates (Pa.) 207; Green v. Stone, 1 Har. & J. (Md.) 405; State v. Horton, 70 Neb. 334, 97 N.W. 434; Teasdale v. Stoller, 133 Mo. 645, 652, 34 S.W. 873. “In such cases the simple but comprehensive question is whether the circumstances are such that equitably the defendant should restore to the plaintiff what he has received,” Johnston v. Miller, 31 Gel. & Russ. 83, 87.’ ”

291 Ala. at 11, 277 So.2d at 94.

We do not find that the trial court abused its discretion in granting restitution to Reed against the Burke estate. This discretion was based upon the fact that the allegations of wrongdoing on Reed’s part, in his capacity as co-executor, had not yet been resolved in an adversary proceeding.

The same trial judge in this proceeding has been specially assigned to hear the separate estate proceeding; therefore, those matters which appellants complain were not addressed by the trial judge in this proceeding may be addressed in future proceedings, and thus appellants’ rights are not being abridged, nor are appellants denied an adequate remedy.

The sole issue before the trial court was whether restitution should be allowed in favor of Reed as specific legatee. A remedy of restitution is founded upon the principle of avoiding unjust enrichment of one at the expense of another. Foshee v. General Telephone Co., 295 Ala. 70, 322 So.2d 715 (1975); Opelika Production Credit Ass’n v. Lamb, 361 So.2d 95 (Ala.1978); Sherrill v. Frank Morris Pontiac-Buick-GMC, Inc., 366 So.2d 251 (Ala.1979). Here, Reed was granted restitution for money he paid for stock which he was later directed to convey back to the estate. We cannot hold, based upon the facts before the trial court in this proceeding, that the order of restitution was inequitable. Mas-lankowski v. Carter, supra.

The judgment of the trial court is due to be affirmed, but by affirming the judgment, we should not be understood as addressing the issues raised by the appellants in the proceeding which is still pending in the trial court.

AFFIRMED.

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

      . In Shaffer I, it is apparent from the language used in the opinion that the options bequeathed to Reed and Money were characterized solely within the property context as future interests. Because the Court, in Shaffer I, characterized the options as future interests, the Court correctly concluded that the options were capable of exercise beyond the measuring period allowed by the rule. See 61 Am.Jur.2d Perpetuities and Restraints on Alienation, §§ 59-66 (1981).


author: JONES, Justice.

text:
    Billy Joe PEEK and Mrs. Billy Joe Peek v. MERIT MACHINERY COMPANY, INC., a Corporation.
    83-903.
    Supreme Court of Alabama.
    Sept. 21, 1984.

      M. Clay Alspaugh of Hogan, Smith, Als-paugh, Samples & Pratt, Birmingham, for appellants.
    Charles E. Sharp and Michael W. Ray of Sadler, Sullivan, Sharp & Stutts, Birmingham, for appellee.
   JONES, Justice.

This substitution-of-defendants case arose out of personal injuries sustained by Billy Joe Peek on March 1, 1978, while he was working at the Halstead-Mitchell plant in Scottsboro, Alabama.

Case History

Plaintiffs originally sued Havir Manufacturing Company, Inc. (engineer, manufacturer, and designer of the machine being used by Mr. Peek on the occasion made the basis of this suit), Burt Gross (individually and as assistant secretary and trustee of Havir Manufacturing Co.), John 0. Lenz (individually and as president of Havir Manufacturing Co.), Allen-Bradley Co. (manufacturer, engineer, and designer of electronic controls on the machine where Mr. Peek was injured), and multiple fictitiously named parties. The complaint, filed on February 28, 1979, was in two counts: Count I was brought under the Alabama Extended Manufacturer’s Liability Doctrine for the employee’s injuries; and Count II was brought on behalf of Mrs. Peek for the loss of her husband’s services.

In Count I, Plaintiffs allege, by paragraphs two through five, specific identification of the named defendants, Havir, Gross, Lenz, and Allen-Bradley, none of whom were identified as “sellers” of the machine. In the sixth paragraph, they allege that the “corporate and individual defendants" (emphasis added) were in the business of designing, manufacturing, and selling press machines and related equipment for use on press machines of the type on which Mr. Peek was injured. Plaintiffs further allege that the Defendants did manufacture, design, engineer, sell, or otherwise put into the stream of commerce the particular machine which the employee was operating. Paragraph seven of the complaint again alleges a claim against the “defendants.” (Emphasis added.) In the tenth paragraph, Peek avers that all his injuries and damages were “proximately caused by the defect as aforesaid in the finpress machine of the Defendants.” (Emphasis added.)

On December 10, 1979, the Peeks, by amendment to their complaint, substituted as a party defendant Merit Machinery Company, Inc., in lieu of defendant “X”, fictitiously named in the caption of the complaint as being “those persons, firms or corporations who sold, distributed or otherwise placed in the stream of commerce the press being operated by Plaintiff on the occasion made the basis of this suit.”

At the time Merit filed its amended answer, pleading the statute of limitations, contributory negligence, assumption of the risk, and general denial, it also filed a motion for summary judgment based on the statute of limitations issue. From a Rule 54(b), A.R.Civ.P., final order granting Merit’s summary judgment on that issue, Plaintiffs appeal.

The issue presented is whether the Peeks properly substituted Merit Machinery Company for a fictitiously named defendant under Rule 9(h), A.R.Civ.P., so that the substitution relates back to the filing of the original complaint under Rule 15(c), A.R. Civ.P., and thus avoids the statute of limitations bar.

Decision

Rule 9(h) states:

“When a party is ignorant of the name of an opposing party and so alleges in his pleading, the opposing party may be designated by any name, and when his true name is discovered, the process and all pleadings and proceedings in the action may be amended by substituting the true name.”

Rule 15(c) states, in part:

“[A]n amendment pursuant to Rule 9(h), Fictitious Parties, is not an amendment changing the party against whom a claim is asserted and such amendment relates back to the date of the original pleading.”

In Columbia Engineering International, Ltd. v. Espey, 429 So.2d 955 (Ala.1983), this Court stated:

“[A] plaintiff, in order to invoke the relation back principles of Rules 9(h) and 15(c), must meet the following criteria: 1) Plaintiff must state a cause of action against the fictitious party in the body of the original complaint; and 2) plaintiff must be ignorant of the identity of the fictitious party, in the sense of having no knowledge at the time of the filing that the later named party was in fact the party intended to be sued.” 429 So.2d at 958, 959.

There is no question that the plaintiffs acquired knowledge of the true identity of the seller more than one year after the date of the accident. The ultimate issue, then, is whether the original complaint, filed within the year, states a cause of action against Merit. In our analysis of this dis-positive issue, we must proceed on the premise that a cause of action under the Alabama Extended Manufacturer’s Liability Doctrine may be stated in a manner quite different from a claim sounding in ordinary negligence.

Casrell v. Altec Industries, Inc., 335 So.2d 128 (Ala.1976), and Atkins v. American Motors Corp., 335 So.2d 134 (Ala.1976), changed products liability cases in this State from the pure form of negligence theory to a modified version of the Restatement (Second) of Torts, § 402A (1965), strict liability theory, premising liability on proof that the injured ultimate user:

“(1) ... suffered injury or damages to himself or his property by one who sells a product in a defective condition unreasonably dangerous to the plaintiff as the ultimate user or consumer, if
“(a) the seller is engaged in the business of selling such a product, and
“(b) it is expected to and does reach the user or consumer without substantial change in the condition in which it is sold.”

This Court added:

“(2) Showing these elements, the plaintiff has proved a prima facie case although
“(a) the seller has exercised all possible care in the preparation and sale of his product, and
“(b) the user or consumer has not bought the product from, or entered into any contractual relation with, the seller.” (Emphasis added.) Casrell, 335 So.2d at 132-133; see Atkins at 141, and Restatement (Second) of Torts, § 402A (1965).

Casrell, supra, extending the doctrine of “manufacturer’s liability” to include not only the manufacturer, but also the supplier and the seller, stated:

“Under the ‘extended manufacturer’s liability doctrine,’ we opine that a manufacturer, or supplier, or seller, who markets a product not reasonably safe when applied to its intended use in the usual and customary manner, constitutes negligence as a matter of law.” 335 So.2d at 132.

The Court further stated that the terms “defect[ive]” and “unreasonably dangerous” are synonymous.

In Atkins, supra, the Court stated that the gravamen of a products liability action is not the defendant’s failure to exercise due care in the manufacture, design, or sale of a defective product, or in placing such a product in the commercial stream; rather, the gravamen of the action is that the defendant manufactured, or designed, or sold a defective product which, because of its unreasonably dangerous condition, injured the plaintiff or damaged his property when that product, substantially unaltered, was put to its intended use.

The Court said that a complaint substantially following the Restatement Second of Torts, § 402A, in alleging the elements of liability will withstand a motion to dismiss. “Otherwise stated, ‘negligence’ is not an essential averment in the statement of a claim” Atkins, at 137. Therefore, the practical distinction between the Court’s holding in Atkins and the Restatement is that Atkins allowed affirmative defenses not recognized by the Restatement’s no-fault concept of liability.

Later, in Sears, Roebuck & Company v. Haven Hills Farm, Inc., 395 So.2d 991 (Ala.1981), this Court stated:

“[Fjault is supplied by the defendant’s selling a product in a defective condition, unlike before, when fault was shown by the careless conduct of the defendant, i.e., his failure to exercise due care in the manufacture, design, sale or placement of the product into the stream of commerce. Emphasis is now shifted from the Defendant’s performance to the product’s performance.
“... Although this hybrid form of strict liability in products liability cases still retains vestiges endemic to the negligence cause of action, it substantially opened the way for injured ultimate users to sue the manufacturer, supplier or retailer for injuries proximately caused by a defective, unreasonably dangerous, unaltered product when put to its intended, usual and customary use.” 395 So.2d at 994 (emphasis added).

Thus, to state a claim under the Alabama Extended Manufacturer’s Liability Doctrine, one need not allege the “negligence” of the defendant. The plaintiff must aver that he suffered injury or damages to himself or his property by one who sold a product in a defective condition unreasonably dangerous to the plaintiff as the ultimate user or consumer.

In the caption of the case at hand, Plaintiffs name the fictitious parties as:

“V, W, and X, being those persons, firms or corporations who sold, distributed or otherwise placed in the stream of commerce the press being operated by Plaintiff on the occasion made the basis of this suit; ...” (Emphasis added.)

In Count I of the complaint, Plaintiffs make these averments:

“6. That both the corporate and individual defendants were in the business of designing, manufacturing and selling press machines, and related equipment for use on press machines of the type wherein Plaintiff was injured, and did manufacture, design, engineer, sell or otherwise put into the stream of commerce the press machine, controls and component parts on the press machine being operated by the Plaintiff ...
“7. That said press, and component parts thereof, at the time of injury to the Plaintiff, was in substantially the same condition or state of repair as it was when last in the custody, care or control of the Defendants.
“10. Plaintiff further alleges that all his said injuries and damages as aforesaid were proximately caused by the defect as aforesaid in the fin-press machine of the Defendants.” (Emphasis added.)

Appellee argues in its brief that the body of the original complaint does not specifically allege any wrongdoing on the part of fictitious party “X,” the seller of the machine, or Merit Machinery Company, Inc. A further argument is made that the qualifying adjectives “corporate and individual,” preceding the plural noun “defendants” in paragraph six of Count I, refer to those defendants specifically named in paragraphs two through five. Moreover, Ap-pellee claims there is no allegation that the product was sold in a defective condition, unreasonably dangerous to Plaintiff.

While Plaintiffs’ complaint is not a model of pleading, we hold that, under Alabama’s liberal view of notice pleading, the complaint does state a cause of action against the seller of the product. The Alabama Rules of Civil Procedure provide that a pleading shall include “a short and plain statement of the claim.” A.R.Civ.P. 8(a). With reference to this Rule, this Court has stated:

“Any count in a complaint which would state a cause of action under our liberal notice pleading rules would also state a cause of action against a fictitious party. One need not state with more particularity a cause of action against an unknown party as compared to a named party — the test is the same.” Columbia Engineering, supra, 429 So.2d 960.

In Harvell v. Ireland Electric Company, 444 So.2d 852 (Ala.1984), the issue was:

“Whether the use of the word ‘defendants’ in the averments of plaintiff’s original complaint is sufficient to state a legal cause of action against the fictitious parties named in the caption of the complaint as ‘L_,' in accordance with A.R. Civ.P., Rule 9(h), so that the amendment to the complaint naming Ireland Electric Company as a defendant will relate back to the date of filing of the original complaint in accordance with A.R.Civ.P. Rule 15(c).” 444 So.2d at 853-854.

The Court held the complaint was sufficient. The Court further noted:

“The caption of plaintiffs complaint names every known defendant and describes several fictitious defendants in accordance with A.R.Civ.P., Rule 9(h). Plaintiff then proceeds to allege several causes of action against ‘the defendants. ’ From the structure of the complaint, it is obvious that plaintiff intended to, and did, assert each and every cause of action against each and every defendant, named or fictitious.” 444 So.2d at 854.

Likewise, in the case at hand, the caption of the Plaintiffs’ complaint names every known defendant and describes several fictitiously named defendants in accordance with A.R.Civ.P., Rule 9(h). The Plaintiffs then use the terms “corporate and individual defendants” as well as “defendants” in the body of the complaint. Therefore, the Plaintiffs’ amendment to this complaint substituting Merit Machinery Company, Inc., for “X” relates back to the filing of the original complaint by operation of A.R. Civ.P., Rule 15(c).

Merit also argues that the Peeks were not diligent in determining the true name of Merit Machinery Company, and, therefore, that the amendment did not relate back to the filing of the original complaint by operation of Rule 15(c). The evidence of record reflects that the first time Plaintiffs had knowledge of the true name of the seller of the machine was August 27, 1979. Thereafter, on December 10, 1979, Plaintiffs amended their complaint by substituting Merit Machinery as a defendant in place of fictitious party “X” as “that corporation who sold, distributed, or otherwise placed into the stream of commerce the press being operated by the plaintiff on the occasion made the basis of this suit.”

In Denney v. Serio, 446 So.2d 7 (Ala.1984), the plaintiff filed a complaint against a named doctor, a hospital, hospital board, and several fictitious defendants on March 5, 1980. The statute of limitations expired on March 8, 1980. The evidence of recorded tended to establish that Denney first learned Dr. Serio’s name on February 25, 1982, almost two years after filing the original complaint. Denney did not formally substitute Dr. Serio for a fictitious defendant, however, until July 22,1982. Dr. Serio offered no evidence establishing that Den-ney’s delay in substituting him as a defendant prejudiced him. The Court held:

“Where Dr. Serio retained counsel to defend himself against Denney’s claim as early as February 25, 1982, in response to Denney’s abortive attempt to add him as a party defendant, Denney’s five-month delay in properly substituting him for a fictitious defendant cannot be said to have prejudiced him.” 446 So.2d at 11.

Likewise, in the case at hand, the Defendant has offered no evidence establishing that the Peeks’ delayed substitution in fact prejudiced it. Furthermore, once served, Merit undertook a defense on the merits. Indeed, on its original motion for summary judgment, Merit did not raise the issue of the statute of limitations.

Although this Court will not apply the relation-back principle when there has been an inordinate delay between the time the plaintiff learned the fictitious party’s true identity and the actual substitution of the fictitious party’s true name, we find no evidence establishing that the Peeks’ delayed substitution in fact prejudiced Merit.

Conclusion

The Peeks have alleged a cause of action under the Alabama Extended Manufacturer’s Liability Doctrine in their original complaint. In the caption of the complaint, Defendant “X” was identified as the person, firm, or corporation “who sold, distributed or otherwise placed in the stream of commerce the press being operated by Plaintiff on the occasion made the basis of this suit.” Furthermore, in paragraphs six, seven, and ten of Count I of the complaint, Plaintiffs, in stating their claim, make reference to the defendants. In paragraph ten of Count I, the Peeks aver that Mr. Peek’s injuries and damages were proximately caused by the defect in the fin-press machine of the defendants. This is sufficient to state a cause of action under the Alabama Extended Manufacturer’s Liability Doctrine.

If, for example, a plaintiff sues a defendant by its true name under the Alabama Extended Manufacturer’s Liability Doctrine and alleges only that the plaintiff was injured as a result of the defendant’s sale of a defective product, he has stated a legal claim against that defendant seller. Merely because a plaintiff has named a defendant fictitiously, the test of pleading is not changed so as to require more specificity that would have been necessary had the defendant been sued initially by its true name.

Furthermore, in light of Denney, supra, we hold that Merit was not prejudiced by the delay of the Peeks in amending the complaint to substitute it as a party defendant. Therefore, we reverse the summary judgment as to Merit and remand the cause for trial.

REVERSED AND REMANDED.

All the Justices concur.


text:
    Chester Leroy BRIGHT v. Ruby Lee BRIGHT.
    Civ. 4287.
    Court of Civil Appeals of Alabama.
    Aug. 15, 1984.

      T.J. Carnes, Carnes & Carnes, Albert-ville, for appellant.
    Rowan S. Bone, Gadsden, for appellee.
   EDWARD N. SCRUGGS, Retired Circuit Judge.

This is a divorce case.

Upon his appeal, the husband raises three primary issues.

l.

The wife’s divorce complaint was filed on ’ July 14, 1982. It alleged that the parties were separated on July 5, 1982. That allegation was amended to aver that the separation happened on October 21, 1982, and it was later alleged that the separation was on November 24, 1982.

On June 8, 1983 the wife’s attorney filed a motion, which was dated June 1, 1983, to dismiss the case on the ground that the parties had reconciled their marital differences. On June 8, 1983 the trial court, apparently ex parte, granted that motion and the case was dismissed. ' On September 20, 1983 the husband’s attorney filed a motion under rule 60 of the Alabama Rules of Civil Procedure. Therein, it was alleged that the trial court had erroneously believed that the parties had reconciled and had resumed their marital relationship and that the trial court entered the June 8,1983 order by mistake. The circuit court entered an order on October 21, 1983 which recited that the parties agreed that the matters should be reinstated, and the trial court vacated and held for naught its prior order of dismissal.

On November 22, 1983 the wife presented the only evidence about any reconciliation of the parties. In its entirety that evidence was that they “went back together,” “I believe we went back together the last week in March [1983], and the last week in June [1983] he walked out on me.” There was some other evidence that, while the parties occupied the same house on occasions, they did not do so as husband and wife.

Learned counsel for the husband contends that the trial court did not have jurisdiction to render a judgment upon the merits in view of the above facts.

The husband argues that the two amendments as to the date of the separation of the parties clearly indicated that they had reconciled. However, that conclusion is conjecture, for there was no evidence that such had occurred. The evidence which was given by the wife that they “went back together” in March and that the husband walked out on her in June was presented ore tenus before the trial court. That court could have justifiably ascertained that such evidence constituted inadequate proof of a reconciliation under Jones v. Jones, 402 So.2d 1007 (Ala.Civ.App.1981), and Rikard v. Rikard, 387 So.2d 842 (Ala.Civ.App.1980).

Additionally, we find no fault in the grant of the husband’s rule 60 motion by agreement of the parties. The net effect was the same as if the trial court had heard evidence and reached the same result. While parties may not confer subject matter jurisdiction upon a court, the whole point of the husband’s motion was that a mistake had been made since no reconciliation had occurred, and, in actuality, that jurisdiction had never been withdrawn by any reconciliation. We can comprehend no just cause for the husband to now complain of the action of the trial court in providing to him the very relief which the husband initiated and sought by his rule 60 motion. The trial court must have accepted as being the truth the agreement of the parties to reinstate the case, which was the equivalent of an admission by both parties that there had been no reconciliation.

2.

The husband is fifty-nine years of age and the wife is fifty-eight. When they married they possessed no assets. They were married for forty years and raised five children, who are all adults at this time. During the first half of their marriage, the family income was derived from row crop farming and it was a period of hard work and struggle for both of them. Between fifteen and twenty years ago, the husband changed his economic endeavors to cattle raising and trading, and to the growing of broiler type chickens. He later started, and sold, a business whereby wood shavings, a by-product of planing mills, were hauled and sold by him to broiler growers who used the shavings as litter. These enterprises were managed and operated by the husband. He apparently prospered in these pursuits and the wife had an easier life thereafter. His total income as reported on his 1981 and 1982 tax returns averaged $17,826.

According to the undisputed calculations of counsel for the husband, which calculations except for mathematical errors are supported by the record as supplemented, the values of all of the assets of the parties were as follows:

Item Value
1. Home and 76 acre farm $136,900.00
2. Cattle 26,250.00
3. Farm equipment 32,620.00
4. Motor home 6,000.00
5. 1980 truck 4,000.00
6. 1978 Malibu car 4,500.00
7. Pickup truck 2,000.00
8. Debt owed by daughters, sons-in-law, and son 103,468.00
9. Furniture 5,000.00
Total $320,738.00
Less debt to Pankey 8,000.00
Net worth $312,738.00

The final judgment adjudged that the parties “shall jointly own all real estate accumulated by the parties.” Their only real estate consisted of the homeplace, the seventy-six acre farm.

Again, we utilize the undisputed computations of the husband’s attorney. The wife was awarded the following property by the final judgment:

One-half of the real estate (farm) $ 68,450.00
One-half of mobile home 3,000.00
1978 Malibu automobile 4,500.00
One-half of debts of children 51,734.00
Practically all of furniture 5,000.00
Alimony in gross 15,000.00
Total $147,684.00

The trial court awarded to the husband the following:

One-half of real estate (farm) $ 68;450.00
Cattle 26,250.00
Farm equipment 32,620.00
One-half of mobile home 3,000.00
1980 truck 4,000.00
Pickup truck 2,000.00
One-half of debts of children 51,734.00
Total $188,054.00
Less:
Alimony in gross $15,000.00
Attorney fee 2,500.00
Pankey debt 8,000.00
Total 25,500.00
His net $162,554.00

The final judgment allowed the husband the right to retain the use and possession of the homeplace of seventy-six acres. He was required to pay to the wife $500 a month as periodic alimony and to maintain his present life insurance upon his life and to designate the wife as the irrevocable beneficiary thereof. According to the evidence, including that of the husband, he had only one $10,000 life insurance policy.

The husband contends that the trial court’s division of property and the award of periodic alimony were inequitable and an abuse of discretion.

He argues that the award of almost one-half of the assets to her might be reasonable alone, and that periodic alimony might be reasonable alone, but that, when combined to the degree as was done in this case, they are inequitable. Yet, the husband himself testified that he desired that the property be left in their joint names, but that he should have its use and possession, and that he was willing to support her by the payment of alimony.

The husband further contends that his possible future need to modernize his broiler and cattle businesses is jeopardized by the trial court’s judgment since he was left without borrowing capabilities. The husband had filed a motion for a new trial or to modify the judgment under rule 59, A.R. Civ.P. The argument to us by his present attorney was substantially the same argument which was eloquently made to the trial court at the hearing upon the husband’s rule 59 motion by the husband’s then counsel who had represented the husband during the trial. At the conclusion of that hearing the trial court stated the following:

“In trying to reach a decision in this case you are right, I tried to put a lot of thought into it. It was not my intent to hamstring Mr. Bright in the operation of-that farm because he is managing that part of it, or to in effect make him a slave were he to continue to operate the place in support of Mrs. Bright. At the same time, I recognize Mrs. Bright’s contribution towards the establishment of that estate. Both of these folks have worked real hard for a long time, and both have contributed. I did have some concern on these notes receivable, for instance, whether or not if they were vested entirely in Mrs. Bright, whether or not she might simply forgive those notes_ I was concerned about that.
“I was also concerned about the situation of what happens after these notes have been paid in full. I thought maybe the best equitable way to do it would be to benefit both, both gaining equal benefit from those notes receivable. And then, the alimony be paid.
“... I wanted to draw the decree in such a way as for her to — for Mr. Bright to continue to have the operation of that farm. At the same time, I tried to divide the property equally, at the same time provide enough liquidity for Mrs. Bright to go out and get another place. That is what she wanted to do. And then, have enough money coming in, either from the combination of the alimony and half of those notes receivable to sustain herself, to be able to pay her bills and support herself. At the same time both parties would be continuing to have equity in the real property.
“I realize that a problem can arise in the future.”

The husband’s rule 59 motion was overruled by the trial court.

The evidence was heard orally by the trial court, and its findings as to alimony and as to a division of the property are, consequently, presumed to be correct and can be set aside on appeal only if they are palpably wrong. The award of alimony and the division of the property of the parties fall within the sound judicial discretion of the trial court, which is reviewable only for abuse thereof. The division of property in a divorce case may be unequal but it should be equitable. Hale v. Hale, 439 So.2d 160 (Ala.Civ.App.1983); Kaiser v. Kaiser, 434 So.2d 264 (Ala.Civ.App.1983).

We have considered all of the trial evidence, and we are not persuaded that the trial court abused its discretion or rendered an inequitable judgment regarding alimony, the property division, or the life insurance. Under those circumstances we cannot substitute our opinion for that of the trial court even though the husband’s proposed division of property also contains equity.

There being no citation of authority on the issue of the ability of the wife to manage money, we do not consider it. Neal v. First Alabama Bank of Huntsville, 440 So.2d 1111 (Ala.Civ.App.1983).

There was no error as to this issue.

3.

The trial court awarded to the wife an attorney’s fee of $2,500. The husband complains that, since no evidence was presented to the circuit court upon the reasonableness of a fee, his constitutional right of due process was violated because no confrontation was afforded to him. He argues that the judgment cannot be upheld on appeal for lack of supportive evidence. We find no merit in the husband’s contentions. Hodson v. Hodson, 276 Ala. 227, 160 So.2d 637 (1964); Ray v. Ray, 379 So.2d 627 (Ala.Civ.App.1980); Godec v. Godec, 346 So.2d 459 (Ala.Civ.App.1977). The husband had an opportunity to raise as an issue and to present evidence that such a fee was unreasonable at the hearing upon his rule 59 motion, but he did not do so.

Having found no error as to any issue which was raised upon the appeal, we affirm the judgment of the trial court.

The wife’s request for an attorney’s fee upon this appeal is denied.

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

AFFIRMED.

All the Judges concur.


author: WRIGHT, Presiding Judge.

text:
    Clyde K. AVERYT v. Robert B. DOYLE, Jr., Gary A. Greenough and Lambert C. Mims, et al.
    Civ. 4329.
    Court of Civil Appeals of Alabama.
    Aug. 29, 1984.
    Robert C. Wilson, Mobile, for appellant.
    William R. Lauten and John L. Lawler, Mobile, for appellee City of Mobile.
    Mylan R. Engel, Mobile, for appellee The Mobile County Personnel Bd.
   WRIGHT, Presiding Judge.

This is an employee dismissal case.

The employee appeals from an order of the Circuit Court of Mobile County granting defendant’s motion to dismiss.

Appellant Clyde Averyt was notified on January 12, 1982, of his dismissal from the Mobile Fire Department. The dismissal was to be effective at 8:00 A.M., January 15, 1982. The dismissal resulted from a recommendation by F.J. Seelhorst, Fire Chief for the City of Mobile.

Averyt was dismissed under the authority of. Rule 14.2 of the Personnel Board of Mobile County. Rule 14.2 provides, among other grounds, as reasons for dismissal “incapacity due to mental or physical disability” and “incompetency or inefficiency.” The Personnel Board rules and regulations are promulgated under the authority of Act No. 470, Local Acts of Alabama 1939, which established a county-wide civil service system for Mobile County.

Appellant suffers from a general epileptic condition. His dismissal followed the occurrence of a grand mal (generalized) seizure.

The record indicates that on April 30, 1978, another fireman on duty at the fire station to which Averyt was assigned noticed .that Averyt, who was napping in the next bunk, had suddenly become stiff, and that his arms and legs had started jerking severely, to the point where Averyt fell off the bunk and seemed to stop breathing. The fireman then cleared Averyt’s mouth. Averyt resumed normal breathing and his eyes opened, but he had a glazed look as though he were in a coma. The rescue unit was called, and Averyt was subsequently hospitalized. In May 1978, while at home, Averyt suffered another seizure.

From the time of his seizure in April 1978 until his discharge in January 1982, Averyt was permitted to work as a firefighter, but was not allowed to drive. After submitting letters from two doctors that described the permanent nature of his disability, Averyt applied for a disability pension in September 1981. The request was denied because Averyt was neither injured in the course of duty nor employed for the necessary period (fifteen years) for pension benefits to vest.

After holding a pretermination hearing for Averyt on January 8, 1982, Chief Seel-horst recommended to the public safety commissioner that in view of Averyt’s permanent disability and the resulting restrictions placed on his work, Averyt should be dismissed effective January 15, 1982. Av-eryt was then dismissed.

Averyt appealed his dismissal to the Mobile County Personnel Board. After holding a hearing in April 1982, the Board denied his appeal. Averyt appealed that decision to the Circuit Court of Mobile County, where it is presently pending.

On January 12, 1983, Averyt instituted another action in the Circuit Court of Mobile County. The two-count complaint alleged a violation of § 21-7-8, Code of Alabama 1975 and a failure to pay earned and accrued benefits. Named as defendants were the city commissioners, Chief Seel-horst, the City of Mobile, members of the Personnel Board individually, and the Board itself.

The defendants filed a motion to dismiss, alleging (1) failure to state a claim; (2) the running of the statute of limitations; (3) failure to exhaust administrative remedies; and.(4) failure to join an indispensable party. The court, after initially granting the defendants’ motion, later set it aside. Av-eryt then filed an amended complaint and a motion to consolidate the second action with his original appeal from the decision of the Personnel Board. The trial court then granted the defendants’ motion to dismiss and denied Averyt’s motion to consolidate. From that order Averyt appeals.

Averyt argues on appeal that the trial court erred in (1) dismissing the second action as barred by the running of the statute of limitations, (2) dismissing the action for failure to exhaust administrative remedies, (3) dismissing the complaint for failure to join an indispensable party, and (4) in denying Averyt’s motion to consolidate.

Section 22 of Act No. 470, Local Acts of Alabama 1939, contains a provision enabling a terminated civil service employee to appeal to and request a hearing before the Mobile County Personnel Board. Such hearings on appeal are de novo, and the Board may rescind, modify, alter or affirm the penalty imposed by the City. Rule 14.7 of the Personnel Board of Mobile County; City of Mobile v. Personnel Board for Mobile County, 57 Ala.App. 516, 329 So.2d 570 (1976). Rule 14.7 has been upheld by the supreme court. See Jordan v. City of Mobile, 260 Ala. 393, 71 So.2d 513 (1954). Since Rule 14.7 states that the hearing on appeal shall be de novo, it is abundantly clear that the Board is the trier of fact in these proceedings. City of Mobile v. Personnel Board for Mobile County, supra. If the dismissed employee is not satisfied with the outcome of the hearing before the Board, § 34 of Act No. 470, Local Acts of Alabama 1939, provides for an appeal to the circuit court. Grant v. City of Mobile, 50 Ala.App. 684, 282 So.2d 285 (1973).

Under these circumstances, the standard of review by the circuit court is, in effect, that of certiorari, and on such a review the circuit court is limited to a review of the record made before the Board and the questions of law presented thereby. Ex parte City of Tuskegee, 447 So.2d 713 (Ala.1984); Grant v. City of Mobile, supra. The circuit court should not offer a trial de novo on the merits of an employee dismissal case, where the employee is already seeking redress through the statutorily mandated process and the procedures adopted pursuant to that process. If it did, the circuit court would assume a jurisdiction it did not possess. Ex parte City of Tuskegee, supra.

Appellant contends on appeal that the second action filed with the trial court is of a different nature than the appeal being pursued through the administrative process, in that it alleges- a violation of § 21-7-8, Code of Alabama 1975, which is an independent cause of action based upon constitutional questions which cannot be adequately adjudicated through the administrative process, and which is not limited to review by the Personnel Board. § 21-7-8 reads as follows:

“Employment by state, political subdivisions of state, public schools, etc.
“It is the policy of this state that the blind, the visually handicapped and the otherwise physically disabled shall be employed in the state service, the service of the political subdivisions of the state, in public schools and in all other employment supported in whole or in part by public funds on the same terms and conditions as the able-bodied, unless it is shown that the particular disability prevents the performance of the work involved.”

We have stated that the Board is the trier of fact in these situations. City of Mobile v. Personnel Board for Mobile County, supra. The appealing employee is entitled to have assistance of counsel and present witnesses. The Board may rescind, modify, alter or affirm the penalty imposed by the City. City of Mobile, supra. The hearing is de novo. City of Mobile, supra. Precisely the same facts and issues were, or could have been, examined at the Personnel Board hearing as if in a court of law, including whether the nature of Averyt’s disability was such that it “prevented the performance of the work involved.”

Appellant argues that there are perhaps constitutional issues such as equal protection rights and arbitrariness which may be raised and which are of such nature as to be properly presented only in a court of law. We know of no restriction upon the pleading of such issues in administrative hearings, especially at the required de novo hearing before the Personnel Board. If presented before the Board, such issues will be reviewed by certiorari in the circuit court and if necessary in this court.

Additionally, the remedies which are available to the appealing employee are reinstatement and back pay. § 22, Act No. 470, Local Acts of Alabama 1939. These are the same types of remedies, compensatory in nature, which are available to an employee in a wrongful dismissal action in Alabama. Ala.Law of Damages, § 21-1 (1982). Furthermore, in Bush v. Lucas, 462 U.S. 367, 103 S.Ct. 2404, 76 L.Ed.2d 648 (1983), where a dismissed civil service employee sought a judicial damages remedy outside of the administrative process for first amendment violations by superiors, the United States Supreme Court has held that because the employee’s claims arose out of an employment relationship that was governed by comprehensive procedural and substantive remedies, it would be inappropriate for the Court to supplement that regulatory scheme with a new non-statutory damages remedy. The Court felt that the question was “not what remedy the court should provide for a wrong that would otherwise go unredressed,” but rather, “whether an elaborate remedial system that has been constructed step by step, with careful attention to conflicting policy considerations, should be augmented by the creation of a new judicial remedy for the constitutional violation at issue.” Bush v. Lucas, supra.

In light of the above, we hold that the administrative process is the appropriate forum in which to seek redress in Aver-yt’s case. Having done so, we need not address the other issues raised on appeal, other than to note that the decision whether to grant or deny a motion for consolidation is one which is in the sound discretion of the trial judge and will not be reversed in the absence of a gross abuse of that discretion. Russell v. Crenshaw, 283 Ala. 59, 214 So.2d 333 (1968).

The order of the circuit court is due to be affirmed.

AFFIRMED.

BRADLEY and HOLMES, JJ., concur.


text:
    D. & J. MINERAL AND MINING, INC. v. James Carl WILSON, Sr.
    Civ. 4247.
    Court of Civil Appeals of Alabama.
    Sept. 5, 1984.
    Robert T. Wilson of Wilson & King, Jasper, for appellant.
    Orrin R. Ford, Birmingham, for appellee.
   WRIGHT, Presiding Judge.

The issue in this case is whether the trial court abused its discretion in denying appellant’s motion for continuance made at time of trial and in denying motion for new trial.

FACTS

Appellant brought original action in District Court of Walker County upon common count. Judgment was entered in its favor for $250. Defendant-appellee appealed to circuit court for trial de novo. He filed there a counterclaim for damages for breach of contract in November 1982. On June 29, 1983, at a regular setting for trial, judgment by default in the amount of $5,900 was entered against counter-defendant (appellant). That judgment was subsequently set aside upon motion of appellant. Thereafter, an order was entered in the case recusing all the circuit judges of the Fourteenth Judicial Circuit from hearing any further matters in the case.

On October 12, 1983, the Chief Justice of Alabama appointed the Honorable William 0. Winston, District Judge, Vernon, Alabama, to preside as a circuit judge in the case. On October 14, 1983, Judge Winston set the case for trial on November 3, 1983, with notice to counsel.

Counsel for defendant-appellee, on October 18,1983, filed a motion for continuance, averring need to attend other business out of state on November 3, 1983. Copy of the motion was sent by mail to counsel for plaintiff-appellant. By written order filed October 20,1983, Judge Winston denied the motion to continue. The record contains clerk’s legend that a copy was sent to each counsel. The case was called for trial on November 3, as scheduled. In its judgment after trial, the trial court noted that counsel for plaintiff-appellant moved for continuance at trial; but based upon the state of the record and after argument of counsel, continuance was denied; whereupon, after trial, judgment was entered in favor of defendant (counter-claimant) in the sum of $5,900. Motion of plain tiff-appellant for new trial was filed. As grounds the motion averred, (1) absence of notice to plaintiff of the setting for trial, (2) impression of plaintiffs counsel that case had been continued upon defendant’s motion, (3) lack of notice to counsel for plaintiff that the motion for continuance by defendant had been denied, (4) prejudice to plaintiff by proceeding to trial without its knowledge and by denying its counsel’s motion for continuance before trial.

The motion for new trial was duly heard with the taking of testimony. The motion was denied.

The essence of the testimony presented at the hearing below on the motion to set aside the judgment and grant a new trial is that a special trial was set by a special judge in a special case which had previously brought recusal of all the circuit judges in Walker County; that counsel for each party had due notice of the date of trial; that defendant’s out-of-county counsel filed written request for a continuance with a copy sent to counsel for plaintiff; that counsel for plaintiff had not notified his client of the setting of the case for trial; that continuance was denied by the judge by written order duly filed in the clerk’s office; that a copy of the denial was mailed to defendant’s out-of-county counsel and a copy placed in the box of local counsel, according to longstanding custom in the county; that plaintiff’s counsel upon notice of the motion for continuance assumed, based upon local practice, that the continuance would be granted; with such assumption and apparent failure to check his box, he failed to notify his client to appear at trial or make any preparation for trial; that counsel was out of town when his case was called, although his son and partner did appear at trial, move for continuance, and upon denial, participate in the trial by cross-examining the defendant.

MERITS

It is the contention of appellant that the judge abused his discretion in denying continuance on the day of trial and denying a new trial thereafter. Placing the position of appellant (actually that of his counsel) in its most simple form, it is that because of his reliance upon a custom of procedure at the bar in Walker County, he should be excused for failing to notify his client of a case setting and to keep track of the status of his case. In considering this position, the court is immediately faced by the prevailing rule that a litigant, usually through an attorney, has responsibility for keeping track of his case and knowing its status. Generally, the court owes no duty to notify a party of the setting of a case or to continue a case because of the absence of a party or other engagements of his attorney. Knight v. Davis, 356 So.2d 156 (Ala.1978). This court takes judicial note that the different bars and judicial circuits, even different judges, establish methods and customs of handling court business such as publishing court dockets, granting continuances and giving notice to attorneys. However, such customs and methods are not court rules and are constantly subject to change and variation depending upon circumstances.

Assuming for argument that Walker County and its bar have developed certain local customs used in the ordinary course of court business, such customs are not binding in this case. This case was not one proceeding in the ordinary course. It was a special case, becoming special because of prior proceedings in which local counsel and the local judiciary saw cause for withdrawing from it. It was special because of being assigned to a judge from another circuit who was not aware of or concerned with local custom. It was set for trial, not on a regular docket, but specially and immediately by the assigned judge. That judge promptly denied a motion for continuance by written order. According to the testimony of the court clerk, that order was promptly given publication to each counsel according to local practice — by mail to out-of-town counsel and by positing in the box for local counsel.

On the date of trial, one party and out-of-town counsel appeared and were ready. The other party did not appear, having never been notified of the setting by local counsel. Local counsel was out of town and did not appear, having assumed the granting of the continuance requested by opposing counsel. Counsel now admits that because of such assumption and his failure to know the status of his client’s case, the case proceeded to trial without notice to the client. He submits that it was an abuse of discretion for the court to proceed to judgment and to deny a new trial because of those circumstances.

The granting of continuances and motions for new trial are matters within the discretion of the trial court. Cox v. Cox, 431 So.2d 527 (Ala.1983); Scott Paper Co. v. Griffin, 409 So.2d 1375 (Ala.1982). This court recognizes that counsel is a distinguished and respected member of both his local and state bar, but now finds himself caught upon the horns of this dilemma. However, we must adhere to the principle that facts known to the attorney are considered known to his client. Knight, supra; Waters v. American Casualty Co., 261 Ala. 252, 73 So.2d 524 (1953). We cannot declare that the trial judge abused his discretion in either event under the facts and circumstances of this case, even if this court might have proceeded otherwise. There was not a judgment by default in this case. There was a trial, with associate counsel for the absent party (appellant) participating through cross-examination, and the judgment entered was supported by legal evidence. We must affirm.

AFFIRMED.

BRADLEY and HOLMES, JJ., concur.


author: PER CURIAM.

text:
    William CHEATHAM and Mary Cheatham v. GENERAL MOTORS CORPORATION, a corporation.
    Civ. 4348.
    Court of Civil Appeals of Alabama.
    Sept. 5, 1984.

      Joel E. Dillard of Baxley, Beck, Dillard & Dauphin, Birmingham, for appellants.
    Patricia Clotfelter of Johnston, Barton, Proctor, Swedlaw & Naff, Birmingham, for appellee.
   PER CURIAM.

This is an appeal from a summary judgment in the Circuit Court of Jefferson County rendered in favor of General Motors Corporation (General Motors), and against William and Mary Cheatham.

The Cheathams purchased a 1979 Pontiac automobile from Doug Willey Pontiac, Inc. (Willey Pontiac) on or about March 30, 1979. The automobile contained a 350 cubic inch engine produced by the Buick division of General Motors. The Cheathams allege that they relied to their detriment on the representation by the salesman at Wil-ley Pontiac that the automobile had a 301 cubic inch engine produced by Pontiac.

The Cheathams filed suit against Doug Willey Pontiac, Inc. and against General Motors for false or reckless misrepresentation as to the engine and asked for $8,000, compensatory and punitive damages, and costs. Subsequently, Willey Pontiac and the Cheathams entered into a pro tanto settlement and release which was made final on April 12, 1984.

The trial court granted General Motors’ motion for summary judgment on March 22, 1984, which was made final on April 12, 1984.

The dispositive issue is whether the trial court properly granted the summary judgment to General Motors. We hold that it did not.

It is well settled that for a summary judgment to be properly granted the pleadings and affidavits must show that there is no genuine issue as to any material fact such that the moving party is entitled to the relief sought strictly as a matter of law and that there is not even a scintilla of evidence supporting the position of the non-movant. Silk v. Merrill Lynch, Pierce, Fenner & Smith, 437 So.2d 112 (Ala.1983); Alabama Rules of Civil Procedure 56(c). The party moving for the summary judgment, General Motors here, has the burden of clearly showing that the nonmoving party, the Cheathams, cannot recover under any discernible set of circumstances. Missildine v. Avondale Mills, Inc., 415 So.2d 1040 (Ala.1981). The evidence must be viewed in the light most favorable to the nonmoving party and it must appear'that the nonmoving party still cannot prevail. Forester & Jerue, Inc. v. Daniels, 409 So.2d 830 (Ala.1982).

Here, when the evidence is viewed in the most favorable light to the Cheathams, General Motors did not meet its burden and the summary judgment was not properly granted.

At issue is whether Willey Pontiac was an agent for General Motors for purposes of the circumstances surrounding the alleged misrepresentation. The issue of agency is one of fact. Wood Chevrolet Co. v. Bank of the Southeast, 352 So.2d 1350 (Ala.1977). Whether an agency relationship exists is a question of fact to be determined by the jury. Oliver v. Taylor, 394 So.2d 945 (Ala.1981); Cashion v. Ahmadi, 345 So.2d 268 (Ala.1977). Thus, summary judgment on the issue of agency is generally inappropriate. Oliver, supra; Moses v. American Home Assurance Co., 376 So.2d 656 (Ala.1979). However, the courts do not presume agency. 3 C.J.S. Agency § 491 (1973).

There must be a scintilla of evidence on the issue of agency to overcome a motion for a summary judgment.

The scintilla rule requires only that the evidence at hand furnish a mere gleam, glimmer, spark, the least bit, the smallest trace, in support of plaintiffs complaint. Watkins v. St. Paul Fire & Marine Insurance Co., 376 So.2d 660 (Ala.1979). This glimmer or spark can come from the evidence or from reasonable inferences drawn from the evidence. Wilson v. Liberty National Life Insurance Co., 331 So.2d 617 (Ala.1976). There are at least two issues in the record which produce the necessary scintilla.

First, it is in dispute as to whether there were posters placed around the dealership at General Motors’ behest. The record contains a letter from General Motors to its dealers instructing them to put the posters in their showrooms. These posters promoted General Motors vehicles and contained “information regarding the engines used in 1979 Pontiacs including the name of the General Motors division which produced such engines.” One view from this evidence and the reasonable inferences drawn therefrom would permit one to conclude that General Motors held a right of control over Willey Pontiac. The existence of such a right of control tends to show a principal-agent relationship. Wood Chevrolet Co. v. Bank of the Southeast, 352 So.2d 1350 (Ala.1977); Hodges & Co. v. Albrecht, 288 Ala. 281, 259 So.2d 829 (1972).

The Alabama Supreme Court recently concluded that a scintilla of evidence on the issue of agency existed when a dealer of heavy farm equipment had literature from the manufacturer about his premises and when the manufacturer had employees accompany the dealer’s employees in attempting to repair some equipment. Massey-Ferguson, Inc. v. Laird, 432 So.2d 1259 (Ala.1983). There, the court did not inquire into whether the buyer read the literature and relied on it, but found that the mere existence of the literature at the dealership was a scintilla of evidence as to agency.

Second, there is at least conflicting evidence as to whether Cheatham relied upon a representation by General Motors indicating an agency relationship. This is significant because of the Alabama Supreme Court’s reasoning in Massey-Ferguson, Inc. v. Laird, supra. The court reasoned as follows:

“The record in the instant case presents conflicting evidence as to whether Laird, in fact, relied on the representations made by Boyd. Given the conflicting evidence, we conclude that the trial court properly submitted to the jury the question of agency, since whether one is the agent of another is normally a question of fact for the jury.” (Emphasis added.)

The pertinent facts on the question of whether Cheatham relied on a representation by General Motors of an agency relationship are as follows: Cheatham looked at a car in Willey Pontiac’s showroom that was identical to the car purchased except for the color; Cheatham testified in a deposition that he read a window sticker on an identical car and that the sticker provided that the car contained a 301 engine; the salesman raised the hood on the identical car and Cheatham looked at the engine; there was no window sticker on the car actually purchased, and Cheatham did not worry about the missing window sticker or raise the hood to look at the engine because the salesman apparently stated that the car purchased was the “identical same car, and the same cubic, and your 301.”

The facts are pertinent because the record indicates that General Motors uses window stickers to advise customers of the placement of Buick engines in Pontiacs. The record, in fact, contains a letter from General Motors to all Pontiac dealers, specifically instructing Pontiac dealers “to apprise customers of the source of the engines assembled in the purchased automobiles.”

When the circumstances indicate that a principal-agent relationship may exist, there is a genuine issue of agency for the trier of fact.

The summary judgment is reversed and the cause is remanded.

REVERSED AND REMANDED.

All the Judges concur.


author: BRADLEY, Judge.

text:
    BOARD OF ZONING ADJUSTMENT FOR the CITY OF DOTHAN, Alabama v. Richard BRITT.
    Civ. 4464.
    Court of Civil Appeals of Alabama.
    Sept. 5, 1984.

      D. Taylor Flowers of Buntin & Cobb, Dothan, for appellant.
    J. Huntley Johnson of Johnson, Huskey, Hornsby & Etheredge, Dothan, for appel-lee.
   BRADLEY, Judge.

The Board of Zoning Adjustment for the City of Dothan, Alabama (the Board) appeals from a judgment of the Circuit Court of Houston County granting Richard Britt a variance from the city zoning ordinance. The subject property had been zoned residential. The trial court, contrary to a prior ruling of the Board, granted a restricted variance to allow the operation of a direct mail fund-raising business.

The dispositive issue is whether the granting of the variance is so against the weight of the evidence as to be plainly and palpably erroneous.

When the evidence is heard by the trial court ore tenus, its findings are presumed correct and will not be overturned except for plain and palpable abuse of discretion. Pipes v. Adams, 381 So.2d 86 (Ala.Civ.App.1980).

The trial court, after a full hearing and a view of the house, found the following facts:

“(a) That the property consists of an older, abandoned, delapidated house located on a large heavily wooded lot in a R-100-S District. The property, although not being located in the subdivision, directly backs up to a well-kept residential subdivision consisting of much newer occupied homes.
“(b) That the Plaintiff originally purchased the property as a zoned single family residence and not with the hope of securing rezoning or a variance from zoning merely for the purpose of a quick, profitable resale.
“(c) That the Plaintiff seeks a variance . for use of the presently abandoned building which in its present condition is undesirable for use as residential property, rental or otherwise.
“(d) That considering the character and condition of the structure and other circumstances such as the nature, extent or effect of needed repairs and renovations, Plaintiffs property can be utilized for a permitted use under the existing zoning regulations only at prohibitive expense.
“(e) That Plaintiffs property is incapable of being used for a conforming- use because of the decayed, dilapidated, or obsolete structure.
“(f) That furthermore, the property in its present condition reasonably appears to constitute a security hazard to the neighborhood and a danger to the children in the neighborhood.
“(g) That the proposed use with certain imposed conditions will not alter the essential character and integrity of the residential neighborhood and will not be contrary to the public interest.”

The trial court thereupon granted a variance, but in doing so, it imposed the following conditions:

“a. That the property be used for the office for the Plaintiffs direct mail fund raising business and for no other business activity.
“b. That the office be used only between the hours of 7:00 A.M. and 6:00 P.M.
“c. That no more than five employees work at the house at any one time.
“d. That there be no sign on the property advertising or identifying the business, including on the mail box.
“e. That there be no customer or client traffic at the house.
“{. That the residential appearance and character of the house and lot be maintained.
“g. That if the Plaintiff sells the property or business or ceases to use the property for the purpose approved in this variance, the variance shall automatically terminate.
“h. That any violation of the above conditions shall automatically result in immediate and permanent termination of the variance.
“i. That the variance shall be reviewed 12 months from the date of this Judgment at which time the Board of Zoning Adjustment shall consider whether or not to extend the variance for an indefinite period of time.”

It is well established that courts are reluctant to grant a variance which will disturb an existing zoning ordinance which was properly enacted by a city governing body sitting in its legislative capacity:

“[Ujnless we are clearly convinced from all the evidence before the trial court and appearing in the record that the variance will not be contrary to the public interest (and the interest of the people in a given use district) and, owing to special conditions, a literal enforcement of the provisions of the ordinance will result in unnecessary hardship.”

Priest v. Griffin, 284 Ala. 97, 222 So.2d 353 (Ala.1969).

There was evidence from which the trial court could find that it would cost Britt $50,000 to $70,000 to upgrade the house to allow him to move his family there. It would cost $15,000 to $20,000 for him to put the house in good enough condition to be used in his business. Britt admitted the house could be used for low income rental property but the trial court found that the cost of improving the house so that it could be safely put to this conforming use was prohibitive.

Economic hardship to the party seeking the variance is not of itself sufficient justification for the Board or the courts to supplant the restrictions enacted by the city. Priest, supra, citing Nelson v. Donaldson, 255 Ala. 84, 50 So.2d 251. But, as we stated above, the court can also look to the public interest.

There was testimony from which the trial court could find that the house was not only an eyesore, but also, as the court stated in its decree, a security hazard to the neighborhood and a danger to local children.

Here, the trial court committed no reversible error in granting the variance. There was testimony, plus its view, from which it could have found that the cost of putting the house to a conforming use was prohibitive, thereby resulting in an unnecessary hardship. The court’s decree was fashioned in such a way as to retain the residential integrity of the neighborhood while simultaneously allowing Britt to operate his direct mail business from a partially renovated house. The restrictions were such that to those passing by the house it will appear to be just another house on the block. The variance could result in an increase in property values since the neighborhood will look better with a renovated house than it would with a rundown security hazard. Thus the restrictions will insure the residential character of the neighborhood. Moreover, should unforeseen problems arise, the Board has twelve months from the date of the trial court’s decree to determine whether to extend the variance.

We conclude, as did the trial court, that the public’s interest and Britt’s interest will be served by the variance.

The judgment of the trial court is affirmed.

AFFIRMED.

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


text:
    Jack T. CAVANAUGH v. Mary Agnes CAVANAUGH.
    Civ. 4336.
    Court of Civil Appeals of Alabama.
    Sept. 19, 1984.
    Robert H. Brogden and Kenneth W. Quattlebaum, Ozark, for appellant.
    James R. Fuqua of Fuqua & Kominos, Ozark, for appellee.
   EDWARD N. SCRUGGS, Retired Circuit Judge.

This is a divorce case.

In presently pertinent part, the final judgment granted custody of the eleven-year-old daughter to the wife and of the son, who is thirteen, to the husband. At this time the husband must pay $150 each month to the wife as child support and must provide periodic alimony by the payment of the monthly mortgage installments upon the marital home of $79 and by the further payment of the utilities for the home, which the wife estimated at $100 each month. Except for a savings account for each child, the savings of the parties were divided equally between them. The wife was given the use of the home until she remarries, or certain other contingencies occur, at which time the property will be sold and the equity of the parties will be equally divided between them.

The husband appeals and contends that the trial court abused its discretion by awarding to the wife the amounts granted as alimony and child support and in giving to the wife one-half of the savings of the parties.

The trial was conducted ore tenus before the circuit court. Consistent with the applicable presumptions, the following facts are revealed by the trial evidence:

They were married in 1969, the wife then being nineteen years of age. The two children were born to them.

Shortly before their marriage, the husband had been seriously injured in an automobile accident and, as a result, underwent numerous surgical procedures over an extended period of time. In addition, the husband developed thyroid cancer for which he received surgical and other treatment resulting in a good prognosis.

Commencing in 1974 or 1975, the wife had mental or emotional problems that required counseling and treatment on several occasions at different facilities. However, she is apparently well at the present time and has never been mentally better in her life. She is now under no medication for that condition and has been released by her attending physicians.

The husband has two college degrees, including a master’s degree. The wife had one and one-half years of college credits and is now receiving career training.

The husband has worked at the courthouse as a volunteer without pay for three or four days a week since 1976, by assisting an official in interviewing people. He is seeking a paying job but has been unsuccessful after many applications. In accordance with the husband’s desires, the wife did not work during their marriage. She is searching for employment, and she is hopeful of obtaining it after she completes her career training.

The husband’s physical disability rating was reduced from 100% to 60% by the Veterans Administration and, consequently, his monthly checks have been reduced from $1,377 to $497. That constitutes his present income. The wife has no earnings or other receipts at this time.

According to the wife, the only account owed by the parties was for $200, while the husband stated that those debts totaled $905. As of November 1982, the husband’s Social Security disability benefits were terminated, but the husband appealed and those payments were then continued each month from November 1982 until that particular appeal was determined against the husband in May 1983. The matter is still in litigation and, if the husband is not successful in his case, the Social Security Administration must be reimbursed by him for the payments that he received from them from November 1982 until May 1983, which the husband estimated to be from $13,000 to $14,000. The wife states that he told her that it would amount to $8,000. There was no evidence specifically as to how much was paid to him monthly as Social Security. Those disputed payments were placed in one of their savings accounts.

The parties jointly own the home, the use of which was awarded to the wife. The house mortgage balance is $8,000. The wife estimated the worth of that property to be $35,000. The husband was granted three lots across the street from the marital home which had been purchased for $1,500. They also still jointly own fifty-five acres of woodland which was purchased from the wife’s father for $4,000.

The wife testified that her monthly living expenses totaled $661, including the mortgage payment of $79 and utilities of $100. The expenses of the husband were estimated by him to be $1,016 each month.

Outside of a savings account for the education of each of their children, the parties had accumulated additional funds totaling $19,672 as of the date of the trial. Those savings consisted of $15,842 with a credit union and $3,830 with a savings and loan institution. Prior to the trial, the husband had cashed one certificate of deposit and had closed two savings accounts, which three items totaled $4,972, which is not included in the $19,672 savings funds. At the trial it was the testimony of the husband that he had no objection to the savings, other than the two savings accounts for the two children, being divided equally between the parties. They had accrued $13,000, exclusive of the Social Security payments which were deposited in the savings accounts, according to the wife’s testimony.

The trial court heard the extensive evidence ore tenus; hence, the final judgment is presumed to be correct as to child support, periodic alimony and the division of the savings, and the determination of the trial court must not be disturbed unless the decision was palpably wrong. Each of those issues is interrelated and falls within the sound discretion of the trial court and will not be disturbed upon appeal unless that discretion was clearly abused. Pugh v. Pugh, 406 So.2d 966 (Ala.Civ.App.1981); Chernau v. Chernau, 396 So.2d 1061 (Ala.Civ.App.1981). In Alabama, no fixed standard has been established for determining the amount of either periodic alimony or child support, but the trial court has a discretion to exercise as to those matters. In awarding periodic alimony, some relevant factors to be considered are the ages, sex, station in life, health, future prospects of the parties, the duration of the marriage and the cause of the divorce. Phillips v. Phillips, 49 Ala.App. 514, 274 So.2d 71 (1973). The needs of the child and the ability of the parents to contribute to those needs must be considered. Smith v. Smith, 387 So.2d 224 (Ala.Civ.App.1980).

The periodic alimony which was awarded to the wife amounted to the payment of her utilities of about $100 monthly, and the payment of the home mortgage monthly installment of $79. Since the husband still owns a one-half interest in the home, only one-half of the mortgage payments ($39.50) should be considered to be for the wife’s benefit. The periodic alimony now amounts to about $135.50 each month. The total of the payments for child support and alimony take a big slice from the present income of the husband; however, we do not deem those ordered payments to be excessive or palpably wrong under all of the circumstances. There was no abuse of discretion in the award of alimony or child support. While more funds could be used by both parties, hopefully their respective financial conditions will improve by their future employment. In any event, the amount of child support and periodic alimony may be altered and changed, in the discretion of the trial court, if future events create a material change in the circumstances of the parties.

As to the equal division of the remaining savings accounts of the parties, we likewise find no abuse of discretion. Under all of the facts (including those surrounding the husband’s contingent liability to the Social Security Administration, his prior receipt of almost $5,000 of their savings, and the division of all of their property), we cannot say that the trial court was plainly wrong in equally dividing their remaining savings. It is noteworthy that the husband testified that he had no objection to an equal division of the savings of the parties. Having found no error as to any issue which was presented by able counsel for our decision, the judgment of the trial court is affirmed.

Appellee’s request for attorney fees on appeal is granted in the amount of $400.

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

AFFIRMED.

All the Judges concur.