text:
    J.C. GRIFFIN & Myrtie Griffin v. Charles LITTLE & Robert Ferguson.
    83-407.
    Supreme Court of Alabama.
    May 25, 1984.

      Michael Miskowiec of Legal Services Corp. of Ala., Andalusia, for appellants.
    Griffin Sikes of Sikes, Johnson, Stokes & Taylor, Andalusia, for appellees.
   BEATTY, Justice.

J.C. and Myrtie Griffin filed an action to quiet title in themselves to a parcel of land. The trial court granted defendants’ motions for summary judgment and the Griffins appealed.

The only issue presented by this case is whether the trial court erred in granting defendants’ motions for summary judgment.

The Griffins allege in their complaint that they own the fee simple title to the land in question. That allegation is based upon two counts, the first of which is adverse possession of the land for more than twenty years. In the second count they allege that, in 1957, “Henry” Butler (later referred to in the record as N.O. Butler), the record owner of the land at that time, contracted to convey the land to the plaintiffs in consideration for services to be rendered by them to Butler for the rest of his life. The Griffins assert that from 1957 until the time of his death in 1979 they worked for Butler, and that, upon his death, they completed their performance under the contract. Therefore, they contend that they are entitled to specific performance from defendant Charles Little, Butler’s successor in interest. The Griffins later joined Robert Ferguson, who also claimed an interest in the disputed property, as a defendant.

Defendant Charles Little submitted interrogatories to the plaintiffs. They filed answers to those interrogatories and submitted their own interrogatories to defendants Little and Ferguson. Both defendants filed answers to those interrogatories, filed answers to the plaintiffs’ complaint, and then moved for summary judgment “based upon the pleadings, interrogatories and answers thereto.”

The Griffins filed a motion in opposition to those of the defendants, stating that there were genuine issues of material fact. They attached supporting affidavits. In pertinent part, those affidavits are set out below.

Affidavits of J.C. and Myrtie Griffin:

“I have lived on this land since 1939. I have been claiming this land as my own since 1957. Since 1957, I have not paid rent to any individual for the right to reside on this land. I have not recognized any other individual’s title to this land. I have made numerous improvements to the land without the need of permission from anyone.
“My [spouse] and I came to own this land in 1957 when it was given to us by Mr. N.O. Butler. We did not pay tax on this land until after Mr. Butler’s death because we were told by Mr. Butler that this land was exempt from taxation under the homestead exemption. We have paid tax on this land since the year Mr. Butler died.”

Affidavit of Carmen Frazier:

“My name is Carmen Frazier. I have known J.C. and Myrtie Griffin for many years. I also knew N.O. Butler for many years prior to his death.
“I have helped Mr. Butler with his land several times during his life. In or about 1970, Mr. Butler said to me in reference to the land upon which J.C. and Myrtie Griffin now live that that land was none of his concern. Mr. Butler told me that he had given that land to the Griffins and that that land was theirs.”

Affidavit of Donald Jackson:

“My name is Donald Jackson. I have known J.C. and Myrtie Griffin all my life. I also knew N.O. Butler prior to his death for many years.
“On many occasions in my presence, N.O. Butler had said that the piece of land upon which the Griffins now reside belongs to the Griffins. He said in my presence that this land was given to the Griffins by him.” . -

Evidence offered in response to a motion for summary judgment, in the form of affidavits or otherwise, must present facts which would be admissible at trial. Whatley v. Cardinal Pest Control, 388 So.2d 529, 532 (Ala.1980). The appellees, Little and Ferguson, attack the admissibility of the Griffins’ affidavits, stating:

“[Statements in the plaintiffs’ affidavits as to the transaction between the plaintiffs and N.O. Butler would not be admissible in evidence because of the Dead Man’s Statute.”

The Dead Man’s Statute, Code of 1975, § 12-21-163, provides:

“In civil actions and proceedings, there must be no exclusion of any witness because he is a party or interested in the issue tried, except that no person having a pecuniary interest in the result of the action or proceeding shall be allowed to testify against the party to whom his interest is opposed as to any transaction with, or statement by, the deceased person whose estate is interested in the result of the action or proceeding....”

In their brief, the Griffins concede the applicability of the statute to statements about the transaction with Butler, but they claim that their testimony regarding the length and hostility of their possession of the property is admissible under the “collateral facts rule.” Under that rule, this Court has found that testimony relating to a collateral matter, and not dealing with any transaction or statement by the deceased, is admissible. Gilbreath v. Levi, 268 Ala. 148, 105 So.2d 96 (1958). That rule is applicable here, and, therefore, the Griffins’ statements concerning the length and hostility of their possession are admissible and, as such, they were properly before the trial court in its ruling on defendants’ motions for summary judgment.

The appellees also attack the affidavits of Jackson and Frazier on the ground that neither of them “meets the requirements for such affidavits as spelled out in Rule 56, A.R.Civ.P.” However, the appel-lees fail to specify in their argument in what way these affidavits fall short of the requirement of that rule. From reading the appellees’ statement of the issues, it appears that their attack on these affidavits is based upon the rule against hearsay evidence.

“Hearsay may be defined as evidence of an out of court statement, being offered to show the truth of the matter asserted. Stephens v. Central of Georgia Railroad Co., 367 So.2d 192 (Ala.1978). The general rule is that hearsay is inadmissible. Id. A well recognized exception to the hearsay rule is a declaration, by a person not available at trial, made against his or her pecuniary or proprietary interest — a declaration against interest. Gamble, McElroy’s Alabama Evidence, § 245.01 (3d ed. 1977)_” Lavett v. Lavett, 414 So.2d 907, 910 (Ala.1982).

The exception referred to in Lavett is applicable here, and, therefore, the testimony of Frazier and Jackson is admissible evidence.

Next, we turn to the propriety of the trial court’s grant of defendants’ motions for summary judgment based upon the admissible evidence which was before it.

Adverse possession by prescription requires actual, exclusive, open, notorious, and hostile possession under a claim of right for twenty years. Kerlin v. Tensaw Land & Timber Company, Inc., 390 So.2d 616 (Ala.1980). Appellants admit that from 1939 to 1957 they used the land permissively, but they claim that since 1957 they have occupied the land adversely in accord with the rule stated in Pendley v. Pendley, 338 So.2d 405 (Ala.1976):

“ ‘[A]n uninterrupted, continuous possession of lands by a donee, under a mere parol gift, accompanied with a claim of right, is an adverse holding as against the donor, and will be protected by the statute of limitations, thus maturing into a good title by the lapse of [the prescriptive period]; ... the fact is immaterial that such a parol gift of lands conveys no title, and only operates as a mere tenancy at will, capable of revocation or disaffirmance by the donor at any time before the bar of the statute is complete.’ ” 338 So.2d at 406 (quoting Lee v. Thompson, 99 Ala. 95, 11 So. 672 (1892)).

While appellants’ testimony about the alleged transaction with Butler is inadmissible, there was admissible evidence before the trial court that Butler had given the property to the Griffins, which would have converted their permissible use into adverse use.

“When the factual allegations in pleadings of the party opposing the motion for summary judgment are supported by affidavits or other evidentiary material, they must be taken as true in ruling on the motion.” Arata v. Martin-Prine Entertainment, Inc., 342 So.2d 925, 926 (Ala.Civ. App.1977). Summary judgment is proper only in cases which present no genuine issues of material fact and in which the moving party is entitled to judgment as a matter of law. If the evidence or any reasonable inference therefrom contains the merest gleam, glimmer, spark, the least particle or the smallest trace in support of the theory of the nonmoving party, the trial court must allow the factual questions to go to the jury. Ex parte Bagby Elevator & Electric Co., 383 So.2d 173, 176 (Ala.1980).

We hold in this case that at least a scintilla of evidence was presented in support of the Griffins’ claim, and, therefore, the defendants’ motions for summary judgment should not have been granted. Accordingly, the summary judgments are due to be reversed and the case remanded. It is so ordered.

REVERSED AND REMANDED.

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


source: Caselaw Access Project

author: SHORES, Justice.

license: Public Domain

text:
    Charles S. HILLIAR, et al. v. STATE FARM MUTUAL AUTOMOBILE INSURANCE COMPANY.
    83-531.
    Supreme Court of Alabama.
    May 25, 1984.

      J. Huntley Johnson of Johnson, Huskey, Hornsby & Etheredge, Dothan, for appellants.
    Joel W. Ramsey of Ramsey & Baxley, Dothan, for appellee.
   SHORES, Justice.

This is ah appeal from a declaratory judgment in favor of the defendant, State Farm Mutual Automobile Insurance Company. We affirm.

On August 28, 1981, the appellants, Charles and Gloria Hilliar, purchased liability insurance on a 1971 Chevrolet Monte Carlo from the local State Farm agent, Otto Vollinger. On that date, the Hilliars paid only a portion of the $89.75 premium for the six-month policy period. A balance of $44.87 remained due.

On December 17, 1981, the Hilliars’ daughter was involved in an automobile accident while driving the Monte Carlo. The local State Farm agent was notified of the accident on the following day, whereupon he informed the Hilliars that the policy covering that automobile had been can-celled. Notwithstanding, a claim was submitted, and the Hilliars received a denial of coverage by registered mail from State Farm dated January 29, 1982. State Farm contends that on November 2, 1981, it had mailed a notice that the policy would be cancelled, effective November 29, 1981, unless the balance due on the six-month premium was paid in full.

The Hilliars filed this declaratory judgment action against State Farm to determine whether coverage exists on the automobile involved in the December 17 accident. State Farm moved for summary judgment, which was denied.

Following a trial on the merits, the trial court entered its order, holding that State Farm had properly and effectively can-celled the policy covering the Monte Carlo prior to the time of the accident, because of the Hilliars’ failure to pay the premiums. State Farm, therefore, the court ruled, was not obligated to defend the Hilliars or their daughter in any suit arising from that accident nor to pay any judgment rendered against them. We affirm.

The only issue presented is whether State Farm met its burden of proving the cancellation notice was properly mailed. Section 27-23-25, Ala. Code 1975, controls in this instance. That section reads: “Proof of mailing of notice of cancellation to the named insured at the address shown on the policy shall be sufficient proof of 'notice.” In the past, we have reviewed policy provisions which contain language similar to that of the statute, but have not before had a case in which the statute itself was relied on. E.g., Security Insurance Company of Hartford v. Smith, 360 So.2d 280 (Ala.1978).

In Security Insurance Company, supra, this Court held that where an insurer is setting up cancellation as a defense on a policy, it has the burden of proving by clear and convincing evidence that the notice of cancellation was mailed to the insured. Proof of actual receipt of the notice by the insured is not required, and where the insured insists, as in this case, that the notice was never received, it becomes a question of fact as to whether the cancellation notice was properly mailed. Harrell v. Alabama Farm Bureau Mutual Casualty Insurance Company, 287 Ala. 259, 251 So.2d 220 (1971).

State Farm contends that it complied with the statute, as well as the provisions contained in the policy, and met its burden of proof as to the proper mailing of the notice of cancellation. We agree.

State Farm submitted evidence of the procedures followed prior to the cancellation of a policy. John Victory, service superintendent for the South Alabama Automobile Division of State Farm, testified to the procedure of State Farm for cancelling a policy for nonpayment of premiums, as follows:

“For non-payment of premiums, we obviously have not received all the money that was due on the policy. And, when the money that was received or is received is applied to the policy, the amount is fed into the computer. And, the computer makes the determination how much is remaining to be paid and how far, how many days or months or whatever the premium that was paid, how far it will carry that policy to. And, it calculates the due date, the amount remaining to be paid and what the cancellation date will be. And, it also generates the balance due notice. And, in the case of a new policy being purchased, it is our procedure to send the notice, the balance due notice with the policy, with a declaration page to the agent. And then, if we still have not received the amount of money remaining on the date that the computer has calculated there, then it will generate a cancellation notice. And, the cancellation notice is printed by the computer with two copies. And, they are mailed, one to the policyholder and one to the agent and we keep one on file in the Regional Office.”

Jimmy McKeaver, postal operator at State Farm, testified in detail as to the procedure followed at State Farm for the mailing of cancellation notices. His testimony was as follows:

“I process them, I verify the copy that they send down that I stamp, that I send back upstairs, I verify that information that is on the copy with the copy that is in the envelope that is sent to the insured. Once I make this verification, I count them, make sure there is the right number, cancellation notice with the file copies. After I do this, I run them through the postal meter and put postage on them, count them again. And, at the end of the day, I hand carry them to the Post Office.”

In addition, McKeaver testified that after these notices come under his control no one else has access to them until after they are mailed. To verify the exact number of notices mailed on any certain day, McKeaver checks to be sure the number of notices mailed is exactly the same number of file copies retained at the office. He also counts the number of envelopes to be mailed and gets a second total when he runs the sealed envelopes through the postage meter for stamping.

McKeaver also verified the file copy of the cancellation notice sent to the Hilliars, noting the file stamp bearing his initials he had affixed to the notice. This procedure is performed only after Mr. McKeaver has made his final check to be certain the insured’s notice is in the proper envelope and that it conforms to the file copy to be retained by that office.

The Hilliars maintain that they never received the notice of cancellation from State Farm. There is additional evidence, however, that the Hilliars were made aware, prior to the time the policy was actually cancelled, that the full premium was not paid on their insurance policy. Mrs. Hilliar testified that she was the one who purchased the policy and that on the application, located directly beside the line where she signed her name, are the total amount due for coverage during the full six-month policy period, the “remittance received,” and the “balance due,” which clearly shows a balance due of $44.87. The evidence shows that sometime around October 2, Mrs. Hilliar received the insurance policy in the mail. The envelope in which the policy was sent was marked in bold letters “Statement Enclosed,” and shown on the declaration page of the enclosed policy was the total premium in the amount of $89.75 for the six-month policy period. These factors, in and of themselves, should have been sufficient to place the Hilliars on notice that there existed a balance due on their insurance policy covering the Monte Carlo.

Mrs. Hilliar testified that when she was informed of the lack of coverage on the automobile by the local agent of State Farm, she was also informed that the agent had his copy of the cancellation notice in his file at the local office. This is in keeping with the procedure described by McKeaver.

The appellants offered no evidence that the notice was not properly mailed by State Farm, other than Mrs. Hilliar’s statement that she did not receive the notice. As previously noted, it is unnecessary under the statute for State Farm to prove actual receipt of the notice by the Hilliars. It need only show that the notice was properly mailed. We believe, as did the trial court, that the evidence clearly and convincingly establishes that the notice of cancellation was mailed to the Hilliars at the address shown on the policy.

This being the only question presented by this appeal, the judgment of the trial court is due to be, and hereby is, affirmed.

AFFIRMED.

MADDOX, JONES, BEATTY and ADAMS, JJ., concur.


author: BEATTY, Justice.

text:
    Ex parte Joyce A. EDMONDSON, individually and as mother and next friend of Jeffrey Arnold Edmondson, a minor, and Michael Dewayne Edmondson, a minor. (In re Joyce A. EDMONDSON, as administratrix of the estate of Clifford Arnold Edmondson, deceased, et al. v. Frank L. DRESSMAN, et al.)
    83-575.
    Supreme Court of Alabama.
    May 25, 1984.

      Leon Garmon, Gadsden, for petitioners.
    Robert G. Tate and J. Hunter Phillips of Thomas, Taliaferro, Forman, Burr & Murray, Birmingham, and James C. Stivender of Inzer, Suttle, Swann & Stivender, Gadsden, for respondents Republic Steel Corp.
    Frank L. Dressman, and John N. Bryan, Jr., Cir. Judge, Curtis Wright of Dortch, Wright & Russell, Gadsden, for respondent J. Richard Carr.
    William M. Hammond, Elba, and John B. Crawley, Troy, for amicus curiae David Earl Boles and Robert Stacey Boles suing by and through their next friend and mother and legal guardian, Shirley Boles, and Shirley Boles.
   BEATTY, Justice.

This is a petition for writs of mandamus and prohibition directed to the Honorable John N. Bryan, Jr., Judge of the Circuit Court of Jefferson County. The petitioner seeks-to have Judge Bryan set aside his order transferring petitioner’s civil case from Jefferson County to Etowah County, and to prohibit Judge Bryan from transferring that case to Etowah County. The writs are denied.

The present case is part of a history of litigation which arose out of the death of Clifford Arnold Edmondson. Edmondson died after being involved in an industrial accident while employed as a brakeman on the interplant railroad of Republic Steel Corporation at its Gadsden plant. Edmond-son was survived by his widow, Joyce Ann Edmondson, and two minor children, Jeffrey and Michael.

Following Clifford Edmondson’s death, Joyce Ann Edmondson was appointed ad-ministratrix of his estate. On her own behalf, and on behalf of her two dependent children, she reached a settlement agreement with Republic Steel. In connection with that settlement, an action was filed in the circuit court of Etowah County, styled “Joyce Ann Edmondson as dependent widow, and Jeffrey Arnold Edmondson and Michael Dewayne Edmondson as dependent minor children of the deceased, Clifford Arnold Edmondson v. Republic Steel Corporation,” Case No. CV 80-1370-S. In her complaint in that case, the petitioner alleged that Republic Steel was subject to the Federal Employers Liability Act (FELA), and she sought recovery under that Act. On September 8, 1980, the Circuit Court of Etowah County, the Honorable Cyril Smith, Judge, entered a consent judgment in favor of plaintiffs in the amount of $150,000.00, and also ordered an apportionment of the damages among the widow and the dependent children.

In addition to this consent judgment, Joyce Ann Edmondson executed a release of “Republic Steel Corporation, their agents and servants and all other persons, firms, and corporations whomsoever of and from any and all actions, claims and demands whatsoever ... known or unknown ... on account of or in any wise arising out of the accident, casualty, or event ... resulting in the death of her husband.” Republic paid the amount of the judgment to the clerk of the Etowah Circuit Court.

On July 15, 1983, the petitioner filed in the United States District Court for the Middle District of Alabama an action as administratrix against Republic Steel; Frank Dressman, as agent for Republic Steel; J. Richard Carr; and two fictitious parties. The action contained four counts. Count One claimed damages under FELA for the personal injuries and wrongful death of Clifford Arnold Edmondson. Count Two claimed damages under the Federal Safety Appliance Act (FSAA) and FELA for the wrongful death of Clifford Arnold Edmondson. Count Three claimed damages for fraud on the part of Frank Dressman in connection with the settlement with Republic Steel and the consequent consent judgment and release. Count Four claimed damages for the alleged negligent representation of plaintiff by J. Richard Carr, attorney, in his investigation of the circumstances surrounding Republic’s proposal to settle, which led to plaintiffs acceptance of a sum alleged to be substantially less than she could have reasonably expected to receive. On September 9, 1983, the United States District Court granted motions to dismiss, without prejudice, observing in its order:

“[TJhere is no federal question because although the Federal Employers Liability Act and the Federal Safety Appliance Act are purportedly invoked, plaintiff is not entitled to invoke either of said federal statutes, or to assert the causes of action contemplated by either, unless and until she successfully sets aside the final decree of the Circuit Court of Etowah County, Alabama in Civil Action No. CV 80-1370-S. In other words, her real cause of action is a claim of fraud, collaterally attacking the state court judgment, a cause of action which is not a federal cause of action. Of course, if and when plaintiff should be successful in setting aside the judgment in said Civil Action ... she will have her choice of forum.”

Thereafter, on September 22, 1983, petitioner filed her complaint in the instant case. This complaint was entitled, “Complaint By Administratrix Under Federal Employers Liability Act (FELA) And Federal Safety Appliance Act (FSAA).” It contained four counts, all substantially conforming to the complaint previously filed in the United States District Court. That is, Count One sought damages under FELA for the death of petitioner’s husband. Count Two sought damages for Republic Steel’s alleged violation of FSAA. Count Three alleged fraud by Republic Steel’s agent, Frank Dressman; and Count Four alleged negligent representation by attorney J. Richard Carr.

All of the defendants filed motions to dismiss or to transfer, alleging questions of venue, jurisdiction, and res judicata.

Arguments were heard on the motions, and in due course Judge Bryan transferred this case to the Circuit Court of Etowah County. In its order, the court reasoned:

“This action, now filed in Jefferson County, attacks a final judgment heretofore entered in Etowah County on September 8, 1980, by The Honorable Cyril L. Smith in Case No. CV 80 1370 S. Basically, this case charges negligence against the attorney of record and certain fictitious party attorneys who represented the plaintiff and charges their negligence caused the plaintiff to settle her case for a sum substantially less than she was entitled to. The plaintiff also makes a charge of fraud and misrepresentation against the individual claim representative of the defendant, Republic Steel Corporation, and in addition asserts two counts under the Federal Employers Liability Act against the defendant, Republic Steel Corporation.
“To further clarify the issues in this matter, it should be clearly understood that the court is not transferring this case on the usual venue issue. Venue would be proper, in the opinion of this court, as to the defendant, Republic Steel Corporation, in Jefferson County, Alabama, and, therefore, proper as to the other individual defendants in the case.
“The reason for directing the transfer to Etowah County is: One, it is felt that the proper proceeding by the plaintiff would be first a 60(b) motion before the court that originally entered the judgment on September 8, 1980. Certainly, the judge who entered the final order should have some input into this matter. Only he knows what parties were before him on that date and what facts were considered by the court. Second, for all this court knows, the settlement entered into might well have been a very fair and reasonable settlement. Judgments of One Hundred Fifty Thousand Dollars ($150,000.00) in death claims are not unusual, so much depending on the conduct of the deceased. But assuming the plaintiff has merit in this action, ultimately at some point in time a jury would have to determine just what sum would have been the sum that would reasonably compensate the plaintiff. It is a general consensus that Jefferson County jurors award greater damages than in other counties. True or not, this court feels that an Etowah County jury would be the proper jury to make such a determination. No doubt any recommendations made by the plaintiffs’ attorney to settle in the original case would have to have been predicated on what, in his opinion, an Etowah County jury would do, not what a Jefferson County jury would likely do in the case.
“This case is a somewhat unusual case and, without expressing a further opinion as to the merits of the case, it is felt that it is altogether improper to now bring this case into another circuit and attack a judgment of record of another circuit without first seeking relief through the court that entered such judgment now under attack. To do otherwise would open the door to a flood of litigation by subsequent dissatisfaction with consent judgments previously entered. If there was negligence, fraud or misrepresentation as claimed by the plaintiff, then such should be heard by the court that was induced to act by such fraud or negligence. Rule 60(b) [A.R.Civ.P.] certainly provides the plaintiff the adequate vehicle by which to accomplish this.”

Consideration of the claims filed in the instant Jefferson County case convinces us that this action is a collateral attack upon the judgment entered by the Circuit Court of Etowah County in 1980. The present action seeks recovery under FELA and FSAA. Although there are additional claims of fraud and malpractice, these too arise out of the death of Clifford Edmondson and are founded upon the premise that Republic Steel is subject to the FELA, as was the Etowah County lawsuit. Furthermore, there is no issue raised in this case of any misplaced venue or jurisdiction in the. Etowah County case, or that the judgment in that case is not regular on its face. A domestic judgment regular on its face is immune from collateral attack. See Duncan v. Kent, 370 So.2d 288, 290 (Ala.1979), which stated the well recognized rule that “a judgment of a court which has jurisdiction of the subject matter and parties and possesses the power to render the particular judgment is immune from collateral attack.”

Under the circumstances, the trial court, therefore, did not abuse its discretion in effecting. the change of venue to Etowah County. If venue was proper in both Eto-wah and Jefferson Counties, then in which county should this action have proceeded when the purpose of this action was to attack the judgment already rendered Eto-wah County? The trial court held that the proper place to launch the attack upon that judgment would have been in Etowah County. Indeed, Rule 60(b), A.R.Civ.P., provides the procedure for such relief.

WRITS DENIED.

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


author: MADDOX, Justice.

text:
    Woodie JACKSON v. John DAILY, Jr.
    83-119.
    Supreme Court of Alabama.
    May 25, 1984.

      George L. Williamson of Brown, Hud-gens, Richardson, Whitfield & Gillion, Mobile, for appellant.
    Johnny M. Lane, Saraland, for appellee.
   ON REHEARING EX MERO MOTU

MADDOX, Justice.

Because of a possible ambiguity in the original opinion, the Court, on its own motion, put this matter on rehearing. We have withdrawn the original opinion and we now substitute this opinion in its stead.

This case involves Rule 6(a), Ala.R. Civ.P., and whether or not it has any effect upon the running of the statute of limitations for a personal injury action.

John Daily, Jr., plaintiff/appellee, was injured in an automobile accident on March 21, 1982, between 8 p.m. and midnight, but did not file a complaint against Woodie Jackson, defendant/appellant, until March 22, 1983. The trial court originally granted the appellant’s motion to dismiss, but later granted appellee’s motion to reconsider, and reinstated the case. This Court granted appellant’s petition for permission to appeal from this interlocutory order, and this appeal followed.

Appellant asserts that the claim was barred, on its face, by the one-year statute of limitations applicable to negligence actions. See Code 1975, § 6-2-39(a)(5). Ap-pellee cites, however, Rule 6(a), Ala.R. Civ.P. That rule provides that “the day of the act, event, or default from which the designated period of time begins to run shall not be included”; therefore, he says the statute of limitations did not commence to run until March 22, 1982, and his claim was timely. We find that appellee's contention that the statute did not begin to run until March 22, 1982, is correct, but under both Rule 6(a) and our statute, the last day for filing was March 21, 1983. Appellee incorrectly computes the time within which his claim could be filed.

This Court finds that the trial court erred by reinstating this case; therefore, its judgment is reversed.

OPINION WITHDRAWN; REVERSED AND REMANDED.

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


author: FAULKNER, Justice.

text:
    Vernon JACOBS, as Administrator of the Estate of Earline Jacobs Chandler v. A.R. CHANDLER.
    82-1217.
    Supreme Court of Alabama.
    June 1, 1984.
    Dan M. Gibson, Tuscaloosa, for appellant.
    David L. Carroll of Rosen, Harwood, Cook & Sledge, Tuscaloosa, for appellee.
   FAULKNER, Justice.

A.R. (Rex) Chandler brought this action to determine who is entitled to administer the estate of Earline Jacobs Chandler, who died intestate. The decedent’s brother, Vernon Jacobs, was appointed administrator by the probate court. Rex Chandler petitioned to have the administration transferred to the circuit court, where the case was tried to the court sitting without a jury. It entered an order stating, inter alia:

“1. A.R. Chandler was the common law husband of Earline Jacobs Chandler, who died in Tuscaloosa County, Alabama on January 16, 1983. The Court specifically finds on the evidence before it that A.R. Chandler and Earline Jacobs Chandler, deceased, held themselves out to the public as husband and wife, and cohabited as husband and wife. Further, there was a public recognition of the existence of the marriage by members of the community.
“2. The Plaintiff is entitled to serve as Administrator of the Estate, pursuant to Alabama Code § 43-2-42(a)(l) (1975). Defendant Vernon Jacobs is Ordered to make an accounting to the Estate of his service as Administrator, and Plaintiff A.R. Chandler is appointed Administrator of the Estate of Earline Jacobs Chandler, deceased.”

Having reviewed the evidence and having heard oral argument, we conclude that the trial judge correctly entered an order holding that A.R. Chandler was the common law husband of Earline Chandler at the time of her death, and that he is entitled to serve as administrator of her estate.

The judgment of the trial court is affirmed under the ore tenus rule.

AFFIRMED.

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


author: PER CURIAM.

text:
    Paula CANTERBURY v. Earnest HARRIS, Mobile Women’s Medical Clinic, Inc.
    83-338.
    Supreme Court of Alabama.
    June 1, 1984.
    Jay A. York of Cunningham, Bounds, Yance, Crowder, & Brown, Mobile, for appellant.
    Robert H. Hood and Thomas E. Mitchell, Birmingham, for appellees.
   PER CURIAM.

Reversed and remanded on the authority of Wood Chevrolet Company, Inc. v. Bank of the Southeast, 352 So.2d 1350 (Ala.1977), and Congress Finance Corporation v. Funderburk, 416 So.2d 1059 (Ala.Civ.App.1982).

REVERSED AND REMANDED.

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


author: BRADLEY, Judge.

text:
    Arnold PARSONS v. BOARD OF REGISTRATION FOR PROFESSIONAL ENGINEERS AND LAND SURVEYORS.
    Civ. 3840.
    Court of Civil Appeals of Alabama.
    Jan. 4, 1984.
    Rehearing Denied Feb. 8, 1984.
    Certiorari Denied June 1, 1984 Alabama Supreme Court 83-548.
    Ira DeMent and Ronald W. Wise, Montgomery, for appellant.
    Charles A. Graddick, Atty. Gen. and Carol Jean Smith, Asst. Atty. Gen., for appel-lee.
   BRADLEY, Judge.

Arnold Parsons, a licensed engineer and land surveyor, was charged with and convicted of violating section 34-11-11, Code 1975, and several canons of ethics adopted by the Board of Registration for Professional Engineers and Land Surveyors. His license was suspended for four years. He appealed to the Circuit Court of Montgomery County for a review of the suspension of his license.

The circuit court held a hearing and found that the board had not acted unlawfully or arbitrarily or in such manner as to deprive Parsons of due process of law, and sustained the suspension of Parsons’s license. Parsons appealed to this court.

The court of civil appeals reversed the circuit court’s order holding that the trial court’s order limiting the evidence to whether the board acted arbitrarily, unlawfully, or in a manner to deny due process was too limited and did not comport with the statutory requirement of a “full hearing.” See § 34-11-13, Code 1975.

On remand the circuit court held a hearing in compliance with this court’s mandate. The evidence adduced at that hearing prompted the circuit court to remand the proceeding to the board for the receipt of new or additional evidence concerning potentially mitigating circumstances surrounding Parsons’s unethical conduct.

The Board conducted a hearing at which it accepted all proferred evidence and found that “no mitigating circumstances” had been shown.

Parsons then appealed to the circuit court for a hearing. After a hearing the circuit court sustained the board’s suspension of Parsons’s license for four years. Parsons appeals that judgment to this court.

The dispositive issue here is whether the evidence supports the circuit court’s judgment sustaining the board’s order.

We said in the first Parsons decision, i.e. Parsons v. State Board of Registration for Professional Engineers & Land Surveyors, 416 So.2d 1031 (Ala.Civ.App.1982), that in order for a licensee to receive a “full hearing,” he must be permitted to present all “relevant” evidence, including that presented to the board if it be offered. Moreover, the general rule provides that judicial review of administrative decisions is limited in scope and, ordinarily, will pass only on question of agency powers, whether the order is supported by substantial evidence, and whether its action is arbitrary or unreasonable. Little Caesar’s, Inc. v. Alabama Alcoholic Beverage Control Board, 386 So.2d 224 (Ala.Civ.App. 1979), affd in part, rev’d in part, Ex parte Little Caesar’s, Inc., 386 So.2d 228 (Ala.1980), rev’d in part, Ex parte Alabama Alcoholic Beverage Control Board, 386 So.2d 228 (Ala.), on remand, 386 So.2d 231 (Ala.Civ.App.1980).

We find that the board's order suspending Parsons’s license and the circuit court’s judgment sustaining that order is supported by substantial relevant evidence.

The evidence shows without dispute that Parsons participated in a kickback scheme to retain and continue in effect the engineering contract his company, i.e. Polyengi-neering, Inc., had with the city of Saraland, Alabama. This is a violation of Canon IV A and Canon V A(5) of the Rules of Professional Engineers and Land Surveyors.

At the first board hearing, Mr. Parsons testified that his reason for making payments to the city officials was a fear that his company would not be paid for the work being done under its contract and that his company would not be allowed to continue to work for the city. After remand and oh the second hearing before the Board, Parsons now says that he was physically afraid of what might happen to his family or himself if he did not continue to make the payoffs to the Saraland officials.

Parsons very candidly stated that he had received no direct physical threats from anyone, but he did say that he had read about two murders in the Saraland area (these two people had no connection with the city of Saraland), and that the city official he made the payoffs to was sitting outside the hearing room at the first board hearing. The evidence shows that this city official was under subpoena to testify at the hearing.

A psychologist testified at the second hearing before the board that Parsons was susceptible to pressure from others and would passively accede to the kickback scheme rather than refuse the request for payoffs and assert that it was illegal to participate in such activity. The psychologist did testify, however, that this psychological fault would not prevent Parsons from doing his work. Moreover, Parsons had not sought psychological counseling for his problem.

The bulk of the evidence presented to the board at the second hearing was concerned with mitigating the suspension of Parsons’s license.

It should be noted that although Parsons now says that he was physically, as well as economically, afraid to stop making the payoffs, during that entire time he did not call on any law enforcement agency for help.

After a careful examination of the record in this case, we cannot say that the circuit court’s judgment is not supported by substantial, relevant evidence. We, therefore, affirm that judgment.

AFFIRMED.

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


text:
    CLARK CONSTRUCTION COMPANY, INC. v. STATE OF ALABAMA HIGHWAY DEPARTMENT and B.J. Kemp, Highway Director.
    Civ. 3761.
    Court of Civil Appeals of Alabama.
    Jan. 25, 1984.
    Rehearing Denied Feb. 29, 1984.
    Certiorari Denied June 1, 1984 Alabama Supreme Court 83-596.

      Sterling G. Culpepper, Jr. and William P. Cobb, II of Balch, Bingham, Baker, Ward, Smith, Bowman & Thagard, Montgomery, for appellant.
    Thomas R. DeBray of Wood, Minor & Parnell, Montgomery, for appellees.
   PER CURIAM.

Clark Construction Company, Inc., a pre-qualified contractor with the Alabama Highway Department (appellee), submitted its bid on a bridge construction project in Mobile County upon notice from the department. Clark’s bid, at submission, indicated a total amount of $1,119,609. Under one particular item of its bid, Item No. 10 (508B-00), Steel Bridge Superstructure, Clark listed in figures under “Amount Bid” the sum of $368,000. However, for the same item under “Item With Unit Price Written In Words,” Clark inserted the words “Three Hundred Sixty Eight” ($368.00) immediately before “Dollars,” mistakenly deleting the word “Thousand.”

Clark’s bid was announced at the total of $1,119,609. The Alabama Highway Department, however, computed Clark’s bid by referring to the written words “Three Hundred Sixty Eight” ($368.00) for Item No. 10, rather than the figure $368,000, on the basis of section 39-2-7, Code 1975, which provides in pertinent part as follows: “In case of a discrepancy between prices shown in the figures and in words, the words will govern.” The department thus determined Clark’s bid to be in the total amount of $816,977.60, the difference between this amount and the $1,119,609 figure being the discrepancy between the figures and the words on Item No. 10.

The Alabama Highway Department issued its low bid sheet dated December 17, 1982, showing Clark to be low bidder at $816,977.60, some $273,405 below the next lowest bid. On December 18, 1982 Clark was informed that it had been listed as low bidder. Clark, knowing the bid of “New Me” had preliminarily been announced as lowest, realized there was an error in its bid. The following Monday Clark called the department, inquired as to the error, and was informed of the discrepancy in Item No. 10.

Clark asked permission to withdraw its bid on the basis of the mistake but the department refused to permit the bid to be withdrawn; whereupon, Clark refused to accept the job, and the department declared Clark’s $10,000 bid bond to be forfeited.

On the basis of its mistake, i.e. discrepancy between the words and figures in Item No. 10 of its bid, and the above-stated events, Clark filed suit to have its bid rescinded and its bid bond returned. On the basis of section 39-2-7, the trial court declined to rescind and ordered the bid bond forfeited. Clark appealed.

It is Clark’s contention that its appeal does not involve the interpretation or construction of section 39-2-7, but involves the question of whether the statute serves to abrogate and make meaningless the longstanding rule of general contract law allowing equitable rescission due to unilateral mistake in the field of public works contract law.

In support of its argument, Clark relies mainly on the Alabama cases of Ex parte Perusini Construction Co., 242 Ala. 632, 7 So.2d 576 (1942), and Townsend v. McCall, 262 Ala. 554, 80 So.2d 262 (1955). In these two cases the principle was established that a unilateral mistake made by one offering a sealed bid for a public construction contract may be sufficient cause for abrogating such a contract if it is shown that the consideration resulting from the mistake is out of proportion to the value of the subject involved and the other party realizes that a mistake has been made. In the Perusini case the bidder failed to include in the bid certain items of cost that would have substantially increased the total amount of. its bid. In the Townsend case it was held that a city had the authority to allow a bidder to withdraw a bid based on a mistake and to reject all bids originally submitted and to advertise for new bids. Neither of these cases involved the construction, application, or enforcement of section 39-2-7.

In the recent case of Montgomery Bridge & Engineering, Inc. v. State Highway Department, 440 So.2d 1114 (Ala.Civ. App.1983), which involved a discrepancy between the amount expressed in words and that expressed in figures in a bid for a public contract, we held that section 39-2-7 was to be strictly construed.

We found the legislative intent that section 39-2-7 serve “as a rule of construction in the event of a discrepancy between amounts expressed in figures and in words in a bid for a public contract” was clearly expressed in that section of the Alabama Code. Moreover, even “though Montgomery Bridge found itself caught between the proverbial rock and hard place of either forfeiting its bid bond or accepting the contract at the lower price,” it was charged with a - knowledge of the law regulating such transactions. Further, it was shown by the evidence in that case that the “participants in the public bidding process are familiar with the statute and the attendant consequences of its application.”

The facts of Montgomery Bridge can be distinguished from the facts of the present case. In Montgomery Bridge the contractor did not attempt to rescind its contract because of the mistake made in the bid. Instead, it accepted the award of the contract based on its bid, which contained a mistake causing the contract price to be considerably less than intended, while at the same time seeking relief from the mistake by trying to force the state highway department to allow it to correct its mistake (i.e. revise the bid upward) in spite of the provisions of section 39-2-7.

The difference in the present case is that low bidder Clark is not attempting to correct its bid. Instead, it seeks to merely have the courts excuse its mistake so that it will not be penalized by the forfeiture of its $10,000 bid bond, as is required under section 39-2-4, Code 1975.

After having considered the facts of the instant case, the case authority cited by counsel, and the statutory scheme applicable to bids on public works contracts, we are of the opinion that the equitable doctrine relied upon in Perusini is not here applicable. Several factors lead us to this result. First of all, the statutory scheme dealing with public works contracts which was enacted after Perusini is comprehensive. See sections 39-2-1 through -13, Code 1975 (Supp.1983). The statute recognizes that mistakes will be made in the submission of bids and provides a specific rule of construction to govern under those circumstances. See section 39-2-7. The bid submitted must be accepted as interpreted under this statute. Montgomery Bridge, supra. Second, the statute provides a specific penalty to be imposed upon a low bidder who for any reason does not accept a contract as awarded, that is, forfeiture of the bid bond posted under section 39-2-4. Third, the bond required to be posted and consequently forfeited is not excessive, and therefore, the forced forfeiture of this amount is not unconscionable. Under section 39-2-4 it is set at five percent of the estimated project cost, but in no event in excess of $10,000. When the amount to be forfeited in the instant case is compared to what might otherwise be the measure of damages, we find no inequitable result.

In light of the above reasoning, we find that the trial court did not err in denying rescission and upholding forfeiture of Clark’s bond. The cause is due to be affirmed.

AFFIRMED.

All the Judges concur.


author: WRIGHT, Presiding Judge.

text:
    Lloyd J. MILLER v. ALABAMA STATE TENURE COMMISSION.
    Civ. 4042.
    Court of Civil Appeals of Alabama.
    Feb. 22, 1984.
    Rehearing Denied March 28, 1984.
    Certiorari Denied June 1, 1984 Alabama Supreme Court 83-723.

      Ralph E. Coleman, Jr., Birmingham, for appellant.
    David B. Carnes of Carnes & Carnes, Spec. Asst. Attys. Gen., for appellee.
   WRIGHT, Presiding Judge.

Lloyd Miller (Miller) was the tenured principal of Gadsden High School, a school under the administrative authority of the Gadsden City Board of Education (Board). §§ 16-11-1 to -27, Code of Alabama 1975. After an extensive investigation and audit of school financial records, the Board, on February 23, 1982, sent a letter as required by § 16-24-9 of the Code to Miller, giving notice of the proposed cancellation of his employment. Miller duly gave notice of his intent to contest his cancellation. The required public hearing was set for March 18, 1982.

Prior to the hearing, Miller sought, in the U.S. District Court for the Northern District of Alabama, an order restraining his suspension without pay and returning him to his job, pending the hearing before the Board. There was an evidentiary hearing before the district judge, after which he was granted the requested relief. Thereafter, the hearing was duly held by the Board beginning on March 18, 1982, and ending on March 29, 1982. The employment of Miller as principal was cancelled by resolution of the Board on April 1, 1982. He was retained by the Board in teacher status.

Miller appealed to the Alabama State Tenure Commission, which affirmed the action of the Board. He then filed a petition for mandamus against the tenure commission in the Circuit Court of Etowah County. The petition was denied on August 30, 1983. The denial of the writ of mandamus was appealed to this court and submitted for our consideration on February 10, 1984.

Miller, relying upon testimony of members of the Board before the federal district court and in prehearing depositions, presented to the Board at the adjudicative hearing the issue of denial of constitutional due process because of the bias and prejudgment of members of the Board. That issue has been resubmitted in hearings before the tenure commission, the circuit court and now here. It is submitted to this court as the only issue of the appeal.

Each of the reviewing bodies — the Board, the tenure commission and the circuit court — have disallowed the contention of Miller that he was denied due process. It appears that the contention of Miller that the Board was biased against him is primarily premised upon the fact that the Board performed, as provided by law, in the combined investigative, charging and adjudicative capacities. To establish pre-. judgment bias, he relies upon the fact that the investigative phase produced evidence against him which so prejudiced the Board that it suspended him from his position of principal without pay and caused it to direct notice to him of the intent to cancel his employment. Miller presents the testimony of Board member Cosper that the evidence had caused him to determine Miller should be dismissed before the hearing, subject, however, to having his mind changed by evidence from Miller. Cosper, it developed, did not participate in the hearing and subsequently resigned from the Board because of a conflict of interest. Cosper in his testimony had referred to “our minds” in speaking of the evidence presented to the Board. Miller’s contention that Cosper spoke for the prehearing attitude and state of mind of the entire Board is not acceptable, especially in view of the fact that each member of the Board who subsequently participated in the hearing stated his or her own state of mind.

We must begin discussion with the established proposition that Miller had a legitimate property right in his position as principal of Gadsden High School protected, under the fourteenth amendment of the Constitution of the United States, from deprivation without due process of law. Board of Regents v. Roth, 408 U.S. 564, 92 S.Ct. 2701, 33 L.Ed.2d 548 (1972). It has further been established that “a fair trial in a fair tribunal is a basic requirement of due process. Fairness of course requires an absence of actual bias in the trial of cases.” In re Murchison, 349 U.S. 133, 136, 75 S.Ct. 623, 625, 99 L.Ed. 942 (1955); Staton v. Mayes, 552 F.2d 908, 913 (10th Cir.), cert. denied, 434 U.S. 907, 98 S.Ct. 309, 54 L.Ed.2d 195 (1977). However, due process is not an inflexible term. The Supreme Court said in the case of Hortonville Joint School District v. Hortonville Education Association, 426 U.S. 482, 494, 96 S.Ct. 2308, 2314, 49 L.Ed.2d 1 (1976), “Determining what process is due in a given situation requires the Court to take into account the individual’s stake in the decision at issue as well as the State’s interest in a particular procedure for making it.”

Miller’s interest in this proceeding to determine if his contract should be can-celled is important and self-evident. However, the risk of property loss is not as important an interest as the loss of liberty, and then may not require the same degree of protection from an erroneous ruling. Hortonville Joint School District, supra at 496, 96 S.Ct. at 2315.

The Legislature of Alabama, by enacting Chapter 11 of Section 16, Code of Alabama 1975, has vested in the Board the power necessary for the administration and management of the schools of the City of Gadsden. The Board is charged with the duty and responsibility of employment and dismissal of teachers and all school personnel subject to the provisions of Chapter 24 of Section 16 of the Code. Chapter 24, commonly referred to as the Alabama Teacher Tenure Law, clearly delineates the procedures for protecting both the teacher’s property interest and the interest of the State in insuring the proper relationship between the respective Boards of Education and their employees. Chapter 24 provides that no teacher with tenure may be transferred nor their employment canceled without notice of cause and opportunity to be heard thereon at a public hearing before the employing Board. It is specifically provided therein that neither transfer nor cancellation may be based upon personal or political reasons of members of the Board. §§ 16-24-5, -8, Code of Alabama 1975.

Thus the law itself prohibits Miller’s dismissal for personal or political bias of the Board. Miller does not charge directly either of those two types of bias. It is in cases where it has been shown the adjudicator has a personal or pecuniary interest in the outcome, or where he has been shown to be the target of personal abuse or criticism from the party before him, that the probability of actual bias of the deci-sionmaker has been considered too high to be constitutionally tolerable. Withrow v. Larkin, 421 U.S. 35, 48, 95 S.Ct. 1456, 1465, 43 L.Ed.2d 712 (1975).

However, the Court said in Withrow:

“The contention that the combination of investigative and adjudicative functions necessarily creates an unconstitutional risk of bias in administrative adjudication has a more difficult burden of persuasion to carry. It must overcome a presumption of honesty and integrity in those serving as adjudicators; and it must convince that, under a realistic appraisal of psychological tendencies and human weakness, conferring investigative and adjudicative powers on the same individuals poses such a risk of actual bias or prejudgment that the practice must be forbidden if the guarantee of due process is to be adequately implemented.
“Very similarly claims have been squarely rejected in prior decisions of this Court.”

The Court in Withrow, after referring to various cases decided by it in which it had approved commissions such as the Federal Trade Commission and National Labor Relations Board, and a Social Security examiner acting as both facts developer and adjudicator, said: “The mere exposure to evidence presented in nonadversary investigative procedures is insufficient in itself to impugn the fairness of the Board members at a later adversary hearing.” Id. at 55, 95 S.Ct. at 1468.

The Court thereafter cited to the matter of judges issuing arrest warrants on the basis of probable cause or holding preliminary hearings, binding the defendant over for trial and thereafter making the determination of guilt or innocence. It was remarked that neither of such pretrial involvements had been considered to raise any constitutional barrier to a fair trial. The court then said in Withrow:

“It is also very typical for the members of administrative agencies to receive the results of investigations, to approve the filing of charges or formal complaints instituting enforcement proceedings and then to participate in the ensuing hearings. This mode of procedure does not violate the Administrative Procedure Act, and it does not violate due process of law.”

Withrow v. Larkin, supra at 56, 95 S.Ct. at 1469.

In Hortonville it was further said:

“Nor is a decisionmaker disqualified simply because he has taken a position, even in public, on a policy issue related to the dispute, in the absence of a showing that he is not capable of judging a particular controversy fairly on the basis of its own circumstances.” (Citations omitted.)

Hortonville Joint School District, supra 426 U.S. at 494, 96 S.Ct. at 2314.

It is clear to this court that from the testimony in this case relating to those Board members who in fact acted as adjudicators, there was no more evidence of bias or the risk of bias or prejudgment than inhered in the fact that the Board had investigated, found probable cause, charged Miller and, after adversary hearing, found the charge sustained. They each stated that though they had been submitted an official audit of the financial condition of the school, had heard from the superintendent as to matters alleged to have been committed by Miller and discussed those matters in relation to the bringing charges for cancellation, they had open minds entering the hearing and were prepared to decide the case only on the evidence produced at the hearing. The evidence presented at the hearing upon the charges under any view was preponderantly in favor of the findings of the Board. We perceive the Board to have proceeded in this matter as directed by the Teacher Tenure Act, and as required by that act in every case. We find no denial of constitutional due process.

It is finally to be noted that the Teacher Tenure Act of Alabama mandates a three-tier review of the propriety of the proceedings before the Board and a review of the record of the evidence to determine if the findings of the Board were unjust. This case was first reviewed by the State Tenure Commission. That commission is composed of seven members, at least five of whom are teachers, superintendents or school board members. The secretary of the commission is the executive secretary of the Alabama Education Association. The commission was created by the legislature to protect the teacher from any unjust action of an employing school board. State Tenure Commission v. Madison County Board of Education, 282 Ala. 658, 213 So.2d 823 (1968). The tenure commission, after review in this case, found the Board to have proceeded correctly and its decision not to have been unjust. The decision of the commission is final and subject to review by mandamus only to determine if there was procedural error by the commission or if its action was unjust because contrary to the preponderance of the evidence. Alabama State Tenure Commission v. Mountain Brook Board of Education, 343 So.2d 522 (Ala.1976), on remand, 343 So.2d 528 (Ala.Civ.App.1977). A review of the decision of the tenure commission by the Circuit Court of Etowah County was held at the request of Miller. The court found the action of the commission to be proper and not unjust. This court has now reviewed the matter and finds no error.

It may be noted that there is no contention that there was any lack of procedural due process nor insufficiency of the evidence to support the action of the Board.

It must be concluded that because this case has proceeded through all of the statutory requirements for hearing and review and because of the facts presented, there is slight foundation for a claim of an unfair hearing and lack of due process. Staton v. Mayes, supra.

AFFIRMED.

BRADLEY and HOLMES, JJ., concur.


text:
    (In the Matter of Shakeitha Marie ROLAND, a minor). Cathy ROLAND v. STATE of Alabama.
    Civ. 3519.
    Court of Civil Appeals of Alabama.
    Feb. 29, 1984.
    Rehearing Denied April 11, 1984.
    Certiorari Denied June 1, 1984
    Alabama Supreme Court 83-763.

      Richard C. Hamilton, Phenix City, for appellant.
    John Coleman Campbell, Asst. Atty. Gen., and Michael J. Bellamy, Phenix City, for appellee.
   BRADLEY, Judge.

The mother, Cathy Roland, appeals from an order of the Juvenile Court of Russell County terminating her parental rights to her daughter and placing the child’s permanent custody with the Russell County Department of Pensions and Security for adoptive planning.

The mother argues that the trial court erred in terminating her parental rights. She contends that there is no proof of her unfitness as a parent or any strong proof of her neglect of the child. She also says that the court failed to consider less drastic measures than permanent removal of parental custody.

The evidence shows that in July 1980 the mother was found wandering in the streets of Phenix City, Alabama. She was seven months pregnant, had no income, and no residence. A Mr. Adams and his wife took Miss Roland in and allowed her to live in their home. They provided for her and the child after it was born.

The child, Shakeitha Marie, was born in September 1980. On December 18, 1980 the child was placed in DPS’s custody. The mother agreed to the placement, as she was living with friends at the time, had no way to support herself, and recognized that she was unable to properly care for the child. There was evidence that the mother would at times overfeed the baby, would not change the baby’s diapers, and would not dress the child properly for cold weather. There was also evidence that the mother was in poor mental health. Mrs. Adams testified she heard the mother say that the baby was a devil and had the mark of the beast. On another occasion the mother said to the child, “If you are going to act like a dog, I am going to treat you like a dog,” and she took the child out of her crib and placed her on the floor. At the hearing the mother herself testified that the baby had given the Adamses’ cat “distemper.”

On December 23, 1980 the mother was committed to Griel Hospital. She was diagnosed as having a schizophrenic reaction, paranoid type, with strong depressive features. She was released from the hospital on March 24, 1981 with a prognosis of “guarded.”

The record revealed that after her release from the hospital Miss Roland did not obtain employment nor did she establish a permanent residence. There was evidence that between March 24, 1981 and May 1982 the mother had resided in at least ten different locations and that her only income consisted of what people gave her. During this time DPS enrolled Miss Roland in a vocational rehabilitation program, but she failed to return after an initial visit. Coun-selling was arranged for her but she refused to go. Miss Roland also refused to take her medication.

DPS petitioned for permanent custody and termination of parental rights of the mother on April 15, 1982. At a hearing on May 5, 1982, DPS was awarded custody, and the mother’s parental rights were terminated. This order was set aside and the court continued the case for review.

During the summer of 1982, the mother’s situation improved. She began living with a couple, Mr. and Mrs. Mathews, in Seale, Alabama. She was more rational in her thoughts and outlook, and showed a real concern for her daughter’s welfare. Moreover, she enrolled in a rehabilitation program and was going to counselling sessions. DPS agreed to let the mother visit with the child on weekends provided the improvements continued. DPS even considered returning custody of the child to Miss Roland.

Instead of getting better, however, the mother’s situation took a turn for the worse. There was evidence that the child’s alleged father, who had never seen the child, began calling the mother from Florida and promised her that if she and the child would come to Florida he would marry her. On or about August 23, 1982 the mother left for Florida with the child in a car belonging to the Mathewses, which she sold in Georgia. She travelled to Florida, found out she’d made a mistake in doing so, and then hitchhiked with the baby to Tupelo, Mississippi. On September 21, 1982 the mother called the child’s foster mother requesting that the foster mother send money. The foster mother convinced Miss Roland to let her come and get the child. There was evidence to show that when the child was picked up she was wet, dirty, and hungry, and was suffering from an ear infection, sore throat, stuffy nose, and severe diaper rash.

After a hearing on October 6, 1982, the trial court found that the mother had violated the terms of her agreement with DPS concerning visitation by leaving the state and had neglected the child by not obtaining proper medical care for her. There was also evidence that by leaving the state Miss Roland had violated the terms of a Georgia probation. She had been convicted of car theft in 1979 and put on three years’ probation. The alleged father has made no contact with DPS or the child and has shown no interest in having custody of the child. There was evidence that DPS tried to locate the child’s relatives, but that the maternal grandparents are deceased and there are no other relatives able to care for the child. Based on these reasons the trial court awarded DPS permanent custody of the minor child and terminated all legal rights of the parents.

This court has held that where there is a dispute over custody of a child between a natural parent and one who is not a natural parent the natural parent is presumed to be the best custodian for the child. Borsdorf v. Mills, 49 Ala.App. 658, 275 So.2d 338 (Ala.Civ.App.1973). To remove custody from the natural parent, the trial court must have before it clear and convincing evidence that it would not be in the child’s best interests to remain with the natural parent. Vinson v. AGAPE of Central Alabama, Inc., 416 So.2d 1075 (Ala. Civ.App.1982); Massey v. Massey, 410 So.2d 422 (Ala.Civ.App.1981). And, where there appear less drastic measures than permanent removal of parental custody, the trial court must consider those measures before terminating parental rights. Lovell v. Department of Pensions & Security, 356 So.2d 188 (Ala.Civ.App.1978).

In the instant case the trial court determined that the child’s best interests would be served by placing its permanent custody in DPS, and terminated the natural mother’s parental rights. Where the trial court hears the evidence ore tenus, its judgment is presumed correct, unless it be shown that the judgment is plainly and palpably wrong. Hudgins v. State, 418 So.2d 913 (Ala.Civ.App.1982). The judgment is not plainly wrong.

The evidence shows that the child has been in DPS’s custody since she was three months old. The mother is financially and emotionally unstable and is incapable of supporting herself, much less providing for the care, protection, and control of a child. Also, it is quite obvious from the record that the use of less drastic measures than permanent deprivation was tried on many occasions. The trial court and DPS worked with the mother in regard to establishing a relationship with the child. Miss Roland was given overnight and weekend visitation rights and the chance to rehabilitate herself and regain custody of her daughter. Yet, the mother disobeyed the court order by taking the child out of the jurisdiction of this court and by not properly caring for the child. The evidence also shows that DPS tried to place the child with relatives or with the alleged father. These efforts produced no viable results.

The judgment of the trial court is affirmed.

AFFIRMED.

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


text:
    Ex parte Rosemary SUMNER. (In re Philip Leroy SUBLETT).
    Civ. 4093.
    Court of Civil Appeals of Alabama.
    Feb. 29, 1984.
    Rehearing Denied March 28, 1984.
    Certiorari Denied June 1, 1984 Alabama Supreme Court 83-720.
    William H. Mills and Stephen W. Shaw of Redden, Mills & Clark, Birmingham, for appellant.
    Mary Lee Stapp, James E. Long, and Coleman Campbell, Asst. Attys. Gen., for appellee.
   PER CURIAM.

This is a domestic relations case. The mother seeks a writ of prohibition contending the Juvenile Court of Jefferson County is without “jurisdiction” in the instant case.

The parties to this case were divorced by the Circuit Court of Russell County in 1976. The mother was awarded custody of the minor child who was approximately one-year-old at the time of the divorce. The father was given reasonable visitation rights. Subsequent to the divorce, the father moved to Jefferson County and the mother moved to Lee County.

The pleadings, exhibits, and other documents before this court reveal the following.

In October 1983, while exercising his visitation rights in Birmingham, the father observed numerous bruises on various parts of the child’s body. The father took the child to Children’s Hospital in Birmingham for treatment. After an examination, law enforcement officials and the Department of Pensions and Security in Jefferson County (Department) were notified by the hospital of a suspected child abuse case. These officials investigated the matter and decided to take certain steps towards an official inquiry.

Meanwhile back in Russell County, the father had not returned the child from his weekend visitation as required by the divorce decree, and the mother filed a petition to have the child returned to her custody. The trial court found the husband in contempt for failure to comply with the terms of the decree and ordered the sheriff to retrieve the child and return him to Russell County. Subsequently, the trial court rescinded its finding of contempt against the father.

Later on the same day that the mother filed her petition in Russell County, the Department filed a petition in the Juvenile Court of Jefferson County alleging that the child was a dependent who was being physically and mentally abused. The juvenile court entered an order placing temporary custody of the child with the father pending a hearing on the merits.

The mother has now filed a writ of prohibition with this court seeking to prevent the Juvenile Court of Jefferson County from proceeding with this matter. Specifically, the mother contends that the Circuit Court of Russell County has exclusive jurisdiction of the case and the Juvenile Court of Jefferson County cannot have jurisdiction to hear matters pertaining to custody in that it cannot usurp the duties and functions of the circuit court which initially had jurisdiction and determined custody. The mother arrives at this position by viewing the proceedings in the Jefferson County Juvenile Court as a custody issue; however, we believe that the focus of this case is not solely custody of the child. This is a case where the juvenile court in Jefferson County was called upon to look after the best interests of a child within its jurisdiction and protect his safety and well-being. Therefore, the writ is denied.

The dispositive issue, as alluded to above, is whether the Juvenile Court of Jefferson County had jurisdiction to proceed in the manner in which it did.

Essentially, to support her position that the juvenile court is without jurisdiction, the mother relies on the fact that the divorce and custody were accomplished by the Circuit Court of Russell County and on the general rule that once a circuit court originally obtains jurisdiction over a minor child involved in a divorce case, that court retains jurisdiction during the child’s infancy. However, as this court recognized in Roberson v. McAliley, 387 So.2d 840 (Ala. Civ.App.1980), that rule is not followed without exception.

“Under certain circumstances, the court where the child is then residing may gain jurisdiction concurrent with that of the original court. These circumstances are those ‘which create an emergency as to the immediate welfare of the child.’ Ferguson v. State, 251 Ala. 645, 648, 38 So.2d 853 (1949).”

Id. at 842.

We mention, for purposes of clarification, that the use of the word “residing” in the above is in connection with an emergency situation and is not intended to connote traditional legal definitions of “residency.” See also § 12-15-30(c)(l)a, Ala.Code (1975).

In the instant case, the Department filed a petition with the Juvenile Court of Jefferson County alleging an emergency situation in which a child who was physically present in the juvenile court’s district is a suspected victim of child abuse. The child, who has-been deaf most of his life and cannot speak, had communicated to his father and Department workers that his stepfather in Russell County had beaten and abused him. As corroboration, the child had several recent bruises and contusions on various parts of his body. The oldest of these injuries appeared to be at least a week old while others were more recent.

This ease is not a case solely concerned with child custody. Because of the suspected abuse inflicted on the child while in Russell County, the Jefferson County Juvenile Court had jurisdiction to determine that an emergency situation existed which threatened the safety and well-being of a child within its district and award temporary custody to the father to insure that the child was protected from the alleged abuse. Ala.Code §§ 12-15-30 and 12-15-35 (1975); Roberson v. McAliley, 387 So.2d 840 (Ala.Civ.App.1980).

We particularly note that the Juvenile Court of Jefferson County has not entered a final order in this case, and it has made no provisions other than that necessary to insure the immediate safety and well-being of the child at the time the “child abuse” petition was presented to it; in other words, the court was faced with an emergency situation requiring immediate action.

A writ of prohibition is an extraordinary and drastic remedy which is to be employed with great caution and only in cases of extreme necessity. Barber Pure Milk Co. v. Alabama State Milk Control Board, 274 Ala. 563, 150 So.2d 693 (1963). The present case is not a situation that necessitates a writ of prohibition.

We further note that it has been indicated to this court that the child is presently with his mother, presumably in Lee County. Upon a hearing on the “merits” or otherwise, the Juvenile Court of Jefferson County may well transfer the proceeding to the Russell County Circuit Court or another appropriate court.

In any event, this court cannot say the Jefferson County Juvenile Court was without “jurisdiction” to enter the aforesaid orders. Therefore, the writ of prohibition is due to be and is denied.

WRIT DENIED.

All the Judges concur.


author: BRADLEY, Judge. BRADLEY, Judge.

text:
    The PRUDENTIAL INSURANCE COMPANY OF AMERICA and Ronald Buffo v. Tommy WATTS.
    Civ. 3908.
    Court of Civil Appeals of Alabama.
    March 14, 1984.
    Rehearing Denied May 9, 1984.

      Ollie L. Blan, Jr. and J. Mark Hart of Spain, Gillon, Riley, Tate & Etheredge, Birmingham, for appellants.
    Jack Drake of Drake, Knowles & Pierce, Tuscaloosa, for appellee.
   BRADLEY, Judge.

David T. “Tommy” Watts, appellee, worked for Prudential Insurance Company in its Tuscaloosa, Alabama office for several years. In August 1981 Tommy resigned his position as an agent with Prudential and went to work for Bankers Life Insurance Company. Watts did not leave Prudential on friendly terms. On the night that Watts informed Buffo, an employee of Prudential, that he was leaving Prudential, Buffo accused Watts of stealing files from Prudential. Later Buffo held up Watts’s final paycheck. Also, Watts and Buffo were now business rivals. Buffo worked for Prudential and Watts worked for Bankers Life.

As an agent for Bankers, Tommy called upon some people to whom he had sold Prudential policies. According to the record, as Tommy sold adjustable life to his clients and friends, some of them cancelled their whole life policies with Prudential. In each instance of “replacing” an existing policy with a Bankers Life policy, Tommy complied with the requirements of the state of Alabama. Moreover, appropriate forms were filled out and Prudential received notice that the existing insurance was being replaced.

When replacement notices came to Prudential, Mr. Buffo contacted some people by phone, and assigned one of his agents, Elaine Katz, to talk to other policyholders in an effort to persuade them to keep their Prudential policies.

Tommy called eight people who testified they were contacted either by Ron Buffo or by Elaine Katz and were told various things about their policies and about Mr. Watts. Some of these people stated that they were merely told that Tommy did not fully explain the difference between the Prudential and Bankers policies, that they did not know what they were getting, or that the Prudential policy was better than the Bankers policy. Others stated that they were told that Tommy Watts was doing this for his own interest and not the interest of his clients and that he was doing this to collect first year commissions. Three of these people testified that Ron Buffo told them that what Tommy Watts was doing was unethical.

All the people who testified about being called by either Ron Buffo or Elaine Katz stated that they still had confidence in Tommy Watts and that they had either bought additional insurance from Tommy or that they would buy. additional insurance from him. Mr. Watts, however, testified that on occasions he had been “kidded” in public about Prudential’s accusations. Moreover, some of his own clients stated in public that “they had a crook for an insurance agent.”

Mr. Watts filed a complaint against Prudential Insurance Company and Ron Buffo on May 31, 1982 for tortious interference with his right to do business, for slander, and for outrageous conduct as a result of their statements.

Defendants answered by denying the allegations, and Prudential counterclaimed by alleging that Watts had converted confidential records. Watts denied these allegations.

Defendants requested a summary judgment and in support of it submitted the deposition of Ronald Buffo and the affidavit of Hugh Easterwood, an employee of the Alabama Insurance Department. Watts objected to the granting of summary judgment and filed the deposition of Tommy Watts and an affidavit of Jack Drake, Watts’s attorney. Summary judgment denied.

Plaintiff dismissed count three of his complaint and revised count two, the slander count. Defendants answered the amended complaint by alleging a qualified privilege. The case proceeded to trial before the court and a jury on counts one and two. At the conclusion of plaintiff’s case in chief, he dismissed count one. Defendants’ request for a directed verdict as to count two was denied. The jury returned a verdict in favor of Watts in the amount of $3,000 as compensatory damages and $7,000 as punitive damages. Defendants asked for a judgment n.o.v., which was denied, and they appeal.

Defendants’ first contention on appeal is that the trial court erred in refusing to grant summary judgment in their favor. We disagree. It is well-settled law that if there is a scintilla of evidence supporting the position of the party against whom the motion is made summary judgment cannot be granted. Missildine v. Avondale Mills, Inc., 415 So.2d 1040 (Ala.1981); Alabama Rules of Civil Procedure 56. The pleadings, depositions, and affidavits filed both for and against summary judgment established a genuine issue of material fact. The trial court properly overruled the motion for summary judgment. As noted above, the trial court had before it the depositions of Watts and Buf-fo, yet only portions of those depositions appear in the record filed in this court. Where the trial court considered evidence that is not before the appellate court, the trial court’s judgment is presumed supported by the evidence heard by it. Livengood v. Sechler, 382 So.2d 567 (Ala.Civ. App.1980).

Defendants next say that the trial court erred in overruling their motions for directed verdict and judgment n.o.v. because their remarks were qualifiedly privileged. The trial court did instruct the jury that a qualified or conditional privilege did exist in favor of the defendants as a matter of law. Also, Watts made no objection to this instruction.

Therefore, in order for the conditionally privileged statements to be actionable, the evidence must show that actual malice exists. Kenney v. Gurley, 208 Ala. 623, 95 So. 34 (1923).

A motion for a directed verdict is properly overruled when there exists a scintilla of evidence in favor of the nonmov-ing party. Feaster v, American Liberty Insurance Co., 410 So.2d 399 (Ala.1982). Likewise, a motion for a judgment n.o.v. is properly overruled where there is a scintilla of evidence in favor of the nonmoving party. Ritch v. Waldrop, 428 So.2d 1 (Ala.1982).

In Alabama slanderous statements are considered malicious if they were made with knowledge that they are false or made with reckless disregard of whether they are false. Lewis v. Ritch, 417 So.2d 210 (Ala.Civ.App.1982). There is sufficient evidence in the record from which the jury could have concluded that Prudential’s employees knew their statements about Watts were false. Therefore, the trial court properly overruled defendants’ motions for directed verdict and for judgment n.o.v.

Prudential’s last contention on appeal is that there was no evidence at trial of any damage to Mr. Watts.

The supreme court in Beneficial Management Corp. v. Evans, 421 So.2d 92 (Ala.1982), in summarizing current Alabama law regarding slander, stated that Alabama would follow Gertz v. Robert Welch, Inc., 418 U.S. 323, 94 S.Ct. 2997, 41 L.Ed.2d 789 (1974). Evans and Gertz both dealt with slander of private figures.

Gertz, supra, holds that private figures may recover only for actual damages suffered in all defamation cases. The Gertz court further noted:

“We need not define ‘actual injury,’ as trial courts have wide experience in framing appropriate jury instructions in tort actions. Suffice it to say that actual injury is not limited to out-of-pocket loss. Indeed, the more customary types of actual harm inflicted by defamatory falsehood include impairment of reputation and standing in the community, personal humiliation, and mental anguish and suffering. Of course, juries must be limited by appropriate instructions, and all awards must be supported by competent evidence concerning the injury, although there need be no evidence which assigns an actual dollar value to the injury.” (Emphasis added.)

Apparently then, in Alabama, all defamation cases brought by private individuals require a showing of actual damages by the plaintiff in order for him to collect compensatory damages. However, as noted in Gertz, supra, in establishing actual damages, plaintiff is not limited to out-of-pocket loss but may show mental anguish and other traditional tort measures of actual damages. We find that the record is replete with evidence from which the jury could conclude that the statements made by Prudential were embarrassing and humiliating, and caused Mr. Watts mental suffering. Therefore, we hold that the $3,000 compensatory damages awarded to Mr. Watts was not erroneous.

Moreover, as a private individual, a plaintiff may recover punitive damages for statements made with actual malice. Alabama courts have noted that if compensatory damages are found the plaintiff may recover punitive damages as well through the showing of actual malice. Bryan v. Brown, 339 So.2d 577 (Ala.1976). Malice may be shown by the knowledge that the statement is false. Lewis v. Ritch, supra.

Actual malice “may be shown by evidence of previous ill will, hostility, threats, rivalry, other actions, former libels or slanders, and the like, ... or by the violence of the defendant’s language, the mode and extent of publication, and the like.” Kenney, supra. There is evidence in the record of ill will and hostility between Buffo and Watts; there is also evidence of intense rivalry between Buffo and Watts, and that the slanderous statements made about Watts were extensively published. Moreover, the evidence was such that the jury could infer that the statements made about Watts were false and, therefore, were made with malice.

We find the evidence supports the award of punitive damages.

AFFIRMED.

WRIGHT, P.J., concurs.

HOLMES, J., concurs in the result.

On Rehearing

BRADLEY, Judge.

In brief in support of appellants’ application for rehearing, counsel claims that the failure to include complete depositions of Mr. Watts and Mr. Buffo influenced this court’s review of the trial court’s ruling on summary judgment.

Appellants filed a motion to correct or modify the record on February 7, 1984, pursuant to rule 10 of the Alabama Rules of Appellate Procedure, wherein they requested that this court direct the circuit clerk to prepare a supplemental record consisting of the depositions of Mr. Watts and Mr. Buffo. This motion failed to be docketed. Accordingly, the appellants requested that this court rehear the case and order the correction or modification of the record.

Appellants argue that rule 10(d), A.R. A.P., has abrogated the proposition that a trial court’s judgment will be presumed to be supported by the evidence where the trial court considered evidence which is not before the appellate court.

The committee comments to rule 10 expressly state that the rule abolishes the old presumption.

In Adams v. Adams, 335 So.2d 174 (Ala. Civ.App.1976), this court stated about rule 10 the following:

“[Wjhere existing matter is omitted from the record by appellant, appellee can no longer rely solely on the omission to gain affirmance, but must designate for inclusion in [the] record whatever else is available to help his case.” (Emphasis added.)

Moreover, appellants contend that although it was not their burden to do so appellants moved to properly supplement the record and that either the record should be supplemented or the trial court’s ruling on summary judgment should be reversed because there is no evidence in the original record to show actual malice.

While we recognize rule 10, A.R.A.P., as the law in Alabama, we do not find that either party has been prejudiced by the initial omission from the record of the depositions in question. We have received and carefully examined these depositions along with all the other evidence in the record and we hold that the addition of these depositions to the record does not change our view of the trial court’s ruling on summary judgment.

OPINION EXTENDED.

APPLICATION FOR REHEARING OVERRULED.

WRIGHT, P.J., concurs.

HOLMES, J., concurs in the result.


text:
    Betina KING v. STATE of Alabama.
    Civ. 4024.
    Court of Civil Appeals of Alabama.
    April 11, 1984.
    Rehearing Denied May 16, 1984.

      James P. Hess of Fohrell, Hess & MeMurtrie, Huntsville, for appellant.
    Charles A. Graddick, Atty. Gen. and Mary Lee Stapp, Asst. Atty. Gen., and James D. Chadbourne, Huntsville, for the Madison County Dept, of Pensions and Security.
   EDWARD N. SCRUGGS, Retired Circuit Judge.

This is a parental rights termination case.

Two illegitimate children are here involved. The boy was born in May 1980 and the girl in June 1981. The alleged, and admitted, father of both children was seventeen years of age, and the mother was fourteen at the time of the birth of the oldest child. On the date of the final hearing in this matter, the parents and children were the following ages: the father, twenty-one; the mother, seventeen; the boy, three; and the girl, two.

After personally hearing several witnesses testify, the juvenile court found that the children were dependent for several reasons which were stated in the judgment. Consequently, the parents’ rights were terminated, and the children were placed in the permanent legal custody of the department so that the children could be placed for adoption. The mother, through her guardian ad litem, has appealed, and the sufficiency of the evidence to support the final judgment is the raised issue.

In the most recent published ease upon this subject, the applicable law concerning this issue was succinctly stated as follows:

“ ‘Where the dispute over custody of a child is between the child’s natural parent and a party who is not the child’s natural parent, the natural parent has a prima facie right to the child’s custody. However, the right is not absolute but is subject to the equally well settled rule that the best interest and welfare of the child are controlling in child custody cases. Borsdorf v. Mills, 49 Ala.App. 658, 275 So.2d 338 (1973).’
Ely v. Casteel, 341 So.2d 730 (Ala.Civ. App.1977).
“In a termination of parental rights case, the ore tenus rule applies. This means that the judgment of the trial court is given every favorable presumption and will not be overturned unless it is palpably wrong. Hudgins v. State, 418 So.2d 913 (Ala.Civ.App.1982).
“Before a trial court can terminate a parent’s right to custody of its child, there must be clear and convincing evidence before the court that it would not be in the child’s best interests to be in the natural parent’s custody. Vinson v. AGAPE of Central Alabama, Inc., 416 So.2d 1075 (Ala.Civ.App.1982).”

Matter of Rivera, 444 So.2d 858, 859 (Ala. Civ.App.1983).

We have read, reviewed and studied the briefs of counsel and the entire 126-page transcript of the trial testimony. The evidence was clear and convincing in the following aspects: The father of the two children had indicated very little or no care or paternal responsibility for the children since their respective births. The mother had a flippant lack of concern for, or interest in, the welfare of these children and even expressed relief when the temporary custody of both children was granted to the department. She neglected the physical and medical needs of these babies. The mother possessed few parenting skills, had no desire to learn basic mothering techniques and evidenced no progress in those skills after over two years of supportive services, which were consistently tendered and rendered to her by DPS. She was disposed to almost always fail to cooperate with the department. This mother has lived out of wedlock with a forty-five-year-old man since March 1982, and she gave birth to his child in the early summer of 1983. She was seventeen years of age when that third child was born.

While we opt not to detail the evidence in this case, the above broad sketchy synopsis of parts of it is adequate to indicate that clear and convincing evidence supports the trial court’s findings that parental rights be terminated and that permanent custody of the children be awarded to the department so that these young children may be adopted. Matter of Rivera, supra. The evidence was clear and convincing that the judgment as rendered by the learned trial court was to the best interest of these two children and was not palpably wrong.

We affirm.

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

AFFIRMED.

All the Judges concur.