author: BRADLEY, Judge.

text:
    Jessie NORRIS v. CITY OF BIRMINGHAM, et al.
    Civ. 3688.
    Court of Civil Appeals of Alabama.
    July 13, 1983.
    Jessie Norris, pro se.
    Charles H. Wyatt, Jr., Birmingham, for appellees.
   BRADLEY, Judge.

On May 14, 1982 Jessie Norris, an inmate at Holman Prison, filed a complaint in the Jefferson County Circuit Court against two Birmingham policemen and the City of Birmingham. Norris alleged that he was arrested by the defendants and that the defendants took and converted certain articles of his personal property valued in excess of $4,000. He requested that the court order the defendants to return the property or pay him the value of this property.

The defendants, in a motion for summary judgment and in their answer, contended that plaintiff failed to allege in his pleadings compliance with a condition precedent to his filing a complaint against the city of Birmingham. They asserted that plaintiff is barred from bringing suit according to Title 62, section 659 of the 1940 Code of Alabama (Recompiled 1958), which states:

“No suit shall be brought or maintained nor shall any recovery be had against the city on a claim for personal injury, or for neglect or wrongful injury to personal property, unless within ninety days from the receipt of such injury, a sworn .statement be filed with the city clerk, or the city officer corresponding thereto, by the party injured, stating substantially the manner in which the injury was received and the day and time and place where the accident occurred, and the damage claimed, and stating with substantial accuracy the nature and character of the injury received and the street and house number where the party injured resides.”

This provision, the defendants assert, is still in effect by virtue of section 1-1-10, Code 1975, a savings provision for statutes applying to only one municipality.

The trial court granted defendant City of Birmingham’s motion for summary judgment and dismissed it as a defendant in the case. Norris appeals.

From our review of the record, we conclude that Norris did not comply with the statutorily mandated condition precedent to filing suit against the city of Birmingham. The plaintiff made no showing in his pleadings that he filed a claim with the city of Birmingham. He also failed to state in his pleadings the date on which the alleged injury occurred. Therefore the dispositive issue on appeal is whether the statute is applicable to a claim for conversion.

Our duty in interpreting a statute is to ascertain the intent of the legislature as expressed in the body of the statute and determine the state’s purpose and objective in enacting the statute. Shoemaker v. Atchison, 406 So.2d 986 (Ala.Civ.App.1981). In absence of statutory definition, commonly acceptable definition of a word must be applied. Rush v. Department of Revenue, 416 So.2d 1023 (Ala.Civ.App.1982). The purpose of this statute is to give the city an opportunity to investigate and adjust claims without the expense of litigation. Ray v. City of Birmingham, 275 Ala. 332, 154 So.2d 751 (1963).

All the cases interpreting the statute, so far, have involved claims for personal injury. We note, however, from the expressed language of the statute that this notice provision also applies to claims “for neglect or wrongful injury to personal property.” Injury is defined as “an act that damages or hurts ... violation of another’s rights for which the law allows an action to recover damages.” Webster’s Seventh New Collegiate Dictionary (1976); see also, United States Fidelity & Guaranty Co. v. Mayor’s Jewelers of Pompano, 384 So.2d 256 (Fla.App.1980). Conversion is the wrongful taking or wrongful detention or interference of another person’s property. Ott v. Fox, 362 So.2d 836 (Ala.1978). Thus conversion is a “wrongful injury to personal property” and a claim for such must be filed with the city before a suit for conversion can be commenced. The decision of the lower court is affirmed.

AFFIRMED.

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


source: Caselaw Access Project

author: HOLMES, Judge.

license: Public Domain

text:
    ASHLAND CHEMICAL COMPANY v. Billy Ray WATKINS.
    Civ. 3517.
    Court of Civil Appeals of Alabama.
    July 20, 1983.

      Thomas M. Galloway, Jr. of Collins, Galloway & Smith, Mobile, for appellant.
    Christopher E. Peters and John R. Lock-ett of Pate & Peters, Mobile, for appellee.
   HOLMES, Judge.

This is a workmen’s compensation case.

The employer through able counsel appeals from the circuit court’s order directing that attorney fees be paid and deducted from the compensation award.

The pertinent facts are as follows:

The trial court found that the employee was permanently totally disabled and awarded permanent and total disability benefits in the amount of $136 per week. The employee’s attorney was awarded a fee of 15% of the estimated compensation benefits, to wit, $6,152.82. The trial court ordered the attorney’s fees paid in a lump sum to be deducted by the employer from the back end of the compensation benefits. In other words, the employer can stop making payments when the remaining balance equals $6,152.82.

On appeal the employer contends that the trial court erred in ordering the employer to pay the fee.

In regard to the employer paying the attorney’s fee, it is clear from the trial court’s judgment that payment of the attorney’s fee is to be deducted from the compensation benefits awarded the employee, as indicated above. That part of the order reads as follows: “An attorney’s fee ... is hereby awarded ... to be paid in full and in lump sum by the Defendant from the compensation award

The remaining question is whether the trial court can order attorney’s fees paid in the manner described. This court finds the trial court’s action to be permissible.

The statute controlling the awarding of attorney’s fees in workmen’s compensation cases is § 25-5-90, Ala.Code (1975). It provides that the trial judge “shall fix the fee of the attorney for the plaintiff for his legal services and the manner of its payment, but such fee shall not exceed 15 percent of the compensation awarded or paid.”

The most clear and reasonable construction of the statute suggests that it is left to the sound discretion of the trial judge to direct the “manner” of payment of attorney’s fees. The law requires that statutes be given reasonable and practical construction to prevent inconvenient or absurd consequences. Trailway Oil Co. v. City of Mobile, 271 Ala. 218, 122 So.2d 757 (1960); Alabama Surface Mining Reclamation Comm’n v. Jolly, 373 So.2d 855 (Ala.Civ.App.1979).

The employee relies on § 25-5-83 to support his position. That statute allows a lump sum payment of compensation benefits only by agreement of the concerned parties. There is nothing to indicate to this court that § 25-5-83 should be read in connection with the awarding of attorney’s fees or that that statute is applicable to the present situation.

Operating under the “any evidence” presumption, Tidwell Industries, Inc. v. Kennedy, 410 So.2d 109 (Ala.Civ.App.1982), that requires this court to uphold the trial court’s actions where supported by any evidence, we find the trial court acted within its discretion in awarding attorney’s fees in the manner that it did.

The employee was awarded $136 per week for total permanent disability. This award is subject to the rights of the employer to have the award altered in accordance with § 25-5-57(a)(4)(b), Ala.Code (1975). The evidence indicates, that while the employee is taking steps to rehabilitate himself pursuant to § 25-5-57, the period of disability will more than likely run at least 200 weeks. There is also evidence, however, that the employee may not ever be rehabilitated.

In any event, as indicated, there is evidence which would support the award of $6,152.82 as attorney’s fees equaling 15% of the compensation benefits. The fact that there is a possibility of a later change in the compensation award has no effect on the award of attorney’s fees. The attorney has earned the fee regardless of subsequent changes. The computation of attorney’s fees is based on the facts as to the attorney’s services as of the time the services are rendered. See 3 Larson’s Workmen’s Compensation Laws § 83:13 (1982).

In view of the plain language of the statute involved and the evidence, this case is due to be and is affirmed.

AFFIRMED.

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


text:
    Kenneth Dale HUTCHINSON v. Janet Lenora (Hutchinson) DAVIS.
    Civ. 3615.
    Court of Civil Appeals of Alabama.
    July 20, 1983.
    George E. Hutchinson and John T. Kirk, Montgomery, for appellant.
    R. Howell Dean, Montgomery, for appel-lee.
   HOLMES, Judge.

This is a child custody case.

The father through able counsel appeals from an order of the circuit court determining custody and visitation rights.

The parties were divorced in 1981. By agreement the wife got custody of the minor child and the husband was awarded certain visitation privileges. The instant proceedings arose after the wife sought to have the husband held in contempt for failure to pay child support. The husband cross-petitioned for a change of custody and to have the wife held in contempt for denying visitation.

After an ore terns hearing the trial court awarded temporary custody of the minor child to the maternal grandparents. The father was awarded very specific visitation to be exercised in the presence of the paternal grandmother. The wife was awarded visitation to be agreed upon between the wife and her parents on the condition that the wife’s visitation does not conflict with the husband’s.

The primary issue on appeal is whether the trial court abused its discretion in the matter of the husband’s visitation privileges. Additionally, the husband alludes to the trial court’s action regarding custody as being error.

It is firmly established that the trial judge who hears the evidence ore ten-us is in the best position to ascertain whether there has been a change in circumstances which requires a custodial change. Julian v. Julian, 402 So.2d 1025 (Ala.Civ.App.1981). Furthermore, child custody and visitation rights are matters addressed to the discretion of the trial court and the exercise of that discretion will not be reversed except for abuse or plain error. Whiteport v. Whiteport, 283 Ala. 704, 220 So.2d 891 (1969); Dowdle v. Dowdle, 402 So.2d 1023 (Ala.Civ.App.1981).

In the instant case there is ample evidence to support the trial court’s decision. There is nothing to be gained from setting forth the evidence in detail. Suffice it to say that, in view of the above presumptions and the evidence, the trial court did not abuse its discretion in determining custody and visitation. This is especially true in this instance where temporary custody is involved.

As to the primary issue, we particularly note that prior to the instant proceedings the husband hád certain visitation rights and that now the husband still has visitation privileges. While the visitation might be considered more restrictive in some respects, we note that while exercising prior visitation privileges the husband refused to return the child or reveal its whereabouts to the mother and furthermore stated an intent to never return the child.

This case is due to be and is affirmed.

AFFIRMED.

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


text:
    Jean M. DILLON v. Warren DILLON and I.B.M. Corporation.
    Civ. 3672.
    Court of Civil Appeals of Alabama.
    July 20, 1983.

      S. Robert Brooks, III, Mobile, for appellant.
    Lucian Gillis, Jr. of Reams, Wood, Vollmer, Phillips, Killion & Brooks, Mobile, for appellees.
   EDWARD N. SCRUGGS, Retired Circuit Judge.

This case involves post divorce proceedings which were commenced on November 4, 1982 and which were concluded by a January 24, 1983 judgment. The Dillons were divorced in May 1979.

The appeal record contains only the pleadings which were filed on and after November 4, 1982 and the January 1983 judgment. No evidence is included in the. transcript. The May 1979 and January 1983 judgments both recite that the case was submitted for a decision on evidence which had been heard ore tenus by the trial court. All pleadings and judgments before November 4, 1982 were omitted from the record, having not been designated to be a part thereof.

The issues raised on the present appeal pertain to certain aspects of the May 1979 judgment, to the result of certain proceedings which apparently occurred before the rendition of the divorce judgment, and to one issue arising after May 1979.

The record is so inadequate that we must conclusively presume that the omitted evidence, pleadings, and judgments, especially the evidence, adequately supported the trial court’s actions as to each of the issues which have been presented for our decision, and we must affirm. Valley Mining Corporation v. Metro Bank, 383 So.2d 158, 165 (Ala.1980); Roberts v. Roberts, 424 So.2d 644 (Ala.Civ.App.1982); Blase v. Blase, 419 So.2d 599 (Ala.Civ.App.1982); Mayhan v. Mayhan, 395 So.2d 1022 (Ala.Civ.App.1981).

In deference to counsel, as to the merits of this appeal we opine, without elaboration, that, from what was properly presented to us, the trial court did not err as to any raised issue.

Since the judgment of the trial court must be affirmed, we pretermit a determination of I.B.M.’s motion to dismiss this appeal.

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

AFFIRMED.

All the Judges concur.


text:
    Harold WHITWORTH, d/b/a Whitworth Motor Company v. D.T. DODD.
    Civ. 3682.
    Court of Civil Appeals of Alabama.
    July 20, 1983.

      L. Scott Atkins, Centreville, for appellant.
    William H. Atkinson of Fite, Davis & Atkinson, Hamilton, for appellee.
   ROBERT M. PARKER, Retired Circuit Judge.

Harold Whitworth, doing business as Whitworth Motor Company, sued D.T. Dodd to recover possession of a 1981 Ford pickup truck. From a judgment in favor of the defendant, after a trial without a jury, Whitworth appeals.

On March 19, 1981, Christine Harris, Sul-ligent, Alabama, purchased the 1981 Ford pickup truck from Davis Ford Sales, Inc., Fulton, Mississippi. The vehicle was subsequently repossessed by Ford Motor Credit Corporation and returned to Davis Ford Sales by recourse or for resale. On December 18, 1981, Davis Ford Sales sold the truck to Harold Whitworth, a used car dealer in Lackey, Mississippi. This transaction was not accompanied by a certificate of title but a replacement certificate of title was applied for from the Alabama Department of Revenue.

On January 30, 1982, Joe Ed South, a used ear dealer in Winfield, Alabama, negotiated the sale of two 1981 Ford pickup trucks from Whitworth at his business in Mississippi. Whitworth accepted a check and transferred title and possession to the “other” truck. On the truck in this action, Whitworth made out a bill of sale and odometer form, which he kept in his possession, accepted a sight draft on a Winfield bank from Joe Ed South and allowed South to take possession of the truck. South apparently placed the truck on his lot in Win-field where on February 27,1982, he sold it to D.T. Dodd. A tag was obtained for the truck, by South, in Fayette County, and application for title was made by Dodd. The State of Alabama issued a replacement title dated February 22,1982, to Davis Ford Sales who transferred title to Whitworth Motors which transferred title to South, but retained the certificate. Whitworth presented the draft, title certificate, bill of sale and odometer form to the bank. The draft was dishonored. On April 6, 1982, Whitworth again presented the draft and papers to the bank, and again it was dishonored and marked “insufficient funds.” Whitworth rescinded the transfer of title to South and made demand on Dodd for the return of the truck.

It appears from the record that Dodd purchased the truck from Joe South, a used car dealer, from his used car lot, in the ordinary course of business.

A similar situation was presented in this court in First Dallas County Bank v. General Motors Acceptance Corporation, 425 So.2d 460 (Ala.Civ.App.1982); aff’d, 425 So.2d 464 (Ala.1983). In that case this court held that an automobile purchased from a dealer in the ordinary course of business took title free and clear of security interests of others in the automobile, even if perfected, under § 7-9-307(1), Code of Alabama 1975 (Supp.1982). In that case Davis, a used car dealer, purchased a 1980 Pontiac for his own personal use on an installment sales contract and security agreement which was eventually sold to GMAC. After about seven months of personal use, Davis sold the automobile to Smith who obtained a loan from First Dallas County Bank and entered into an installment sales contract and security agreement, which gave the bank a security interest in the automobile. Davis failed to pay GMAC, and GMAC retained the original title, note, financing agreement and other documents furnished by Davis in connection with his loan.

Section 7-9-307(1) provides as follows:

“A buyer in ordinary course of business [subsection 9 of section 7-1-201], other than a person buying farm products from a person engaged in farming operations takes free of a security interest created by his seller even though the security interest is perfected and even though the buyer knows of its existence.”

As stated in First Dallas County Bank v. General Motors Acceptance Corporation, supra,

“Subsection (1) allows a ‘buyer in the ordinary course of business’ to take free of a security interest created by his seller because it is felt that such a buyer has the right to expect that a merchant has the power to sell the particular item and that the buyer will be able to retain the item free of any security interest created by the seller. (Citations omitted.)”

425 So.2d at 463. This ease also states:

“A final point that supports protecting ‘buyers in the ordinary course of business’ is the fact that secured creditors who know that the goods financed by them are inventory must expect that the goods will be sold and consequently that the ‘buyer in the ordinary course of business’ should have superiority. 4 R. Anderson, Uniform Commercial Code § 9 307:8 [2nd ed. 1971]”

Id. In that regard from the transcript of the testimony of Mr. Whitworth: '

“Q. All right. What about the one he gave you the sight draft on? Did you and he have any understanding about what you and he were to do about that truck?
“A. Well, he thought he could sell it. The truck had a little damage on the hood. He was going to take it and clean the truck up and maybe fix the place on the hood and maybe by that time the draft would be in and he would pay me for the truck.
“Q. Okay. Did you tell him he couldn’t sell the truck until the sight draft was paid?
“A. No.
“Q. Did you have any understanding like that? You understood he was in the car business and he was out to sell it?
“A. That is correct.”

The appellant propounds the issue, “Where motor vehicles are concerned, does the Uniform Certificate of Title and Anti-theft Act, rather than the Uniform Commercial Code, govern ownership and legal title?” In Ex parte General Motors Acceptance Corporation, it was stated:

“The second argument raised by GMAC is that if the Uniform Certificate of Title and Antitheft Act is not complied with the transfer and subsequent mortgage are null and void. However, the Act does not apply .to a security interest created by a seller who holds a vehicle for sale.
“Again, when Davis put the car on the used car lot it became a vehicle held for sale by a dealer. The policy considerations that mandate this result under Code 1975, § 7-9-307(1), require the same result under § 32-8-1 through -87.”

425 So.2d at 467.

The appellant has cited certain sections of the Code of Mississippi in his brief. These issues were not pleaded or tried in the trial court but apparently raised on appeal for the first time. The courts of Alabama do not take judicial notice of the law of a sister state, whether statutory or otherwise. Watkins v. Brannon, 54 Ala. App. 424, 309 So.2d 464 (1974). Foreign laws must be pleaded and proved as evidence. Id. Issues not raised below may not be considered for the first time on appeal. Brown v. Brown, 374 So.2d 332 (Ala. Civ.App.), cert. denied, 374 So.2d 334 (Ala.1979). Therefore, these issues will not be considered on appeal.

Where one of two equally innocent persons must suffer, the one whose act enabled wrongdoer to commit wrong must suffer the loss. J.L. McClure Motor Co. v. McLain, 34 Ala.App. 614, 42 So.2d 266 (1949).

The judgment appealed from is affirmed.

The foregoing opinion was prepared by retired Circuit Judge ROBERT M. PARKER, 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.


text:
    HARLEY-DAVIDSON OF MOBILE, INC., a corporation, for the Use and Benefit of UNIVERSAL UNDERWRITERS INSURANCE COMPANY, a corporation v. The GOODYEAR TIRE AND RUBBER COMPANY, a corporation.
    Civ. 3727.
    Court of Civil Appeals of Alabama.
    July 20, 1983.
    James H. Crosby and Vincent A. Noletto, Jr. of Brown, Hudgens, Richardson, Whitfield & Gillion, Mobile, for appellant.
    Paul W. Brock and T. Bruce McGowin of Hand, Arendall, Bedsole, Greaves & Johnston, Mobile, for appellee.
   HOLMES, Judge.

This is a case for the recovery of attorney’s fees.

Harley-Davidson of Mobile, Inc., and Universal Underwriters Insurance Company (hereafter Universal) appeal the dismissal of their complaint against Goodyear Tire and Rubber Company and Harley-Davidson Motor Company (Goodyear) for the recovery of attorney’s fees expended in defending a product liability case.

In prior litigation Universal Underwriters defended Harley-Davidson of Mobile in a product liability case concerning a motorcycle sold by the retailer, Harley-Davidson of Mobile. Goodyear and the Harley-Davidson Company were also sued as manufacturers of the motorcycle. Universal informed Goodyear of the suit and requested that the manufacturers defend. They declined to do so.

Universal was successful in obtaining summary judgment against the buyer and thereafter Goodyear settled with the buyer.

Universal then brought suit against Goodyear seeking to recover attorney’s fees incurred in defending the case. At the trial court level Universal in its complaint alleged that the manufacturer (Goodyear) had a duty implied by law to defend the retailer, and having failed to do so, the manufacturer is liable for attorney’s fees expended in defense. Goodyear moved to have the case dismissed for failure to state a claim (Rule 12(b)(6), A.R.Civ.P.) and the trial court granted the motion. Universal appeals.

The dispositive issue on appeal is whether Universal’s complaint stated a cause of action that would entitle recovery of attorney’s fees in defending the aforesaid action.

Travelers Indemnity Co. v. Firestone Tire & Rubber Co., 360 P.Supp. 1328 (S.D.Ala.1973), is a case that is, in effect, identical with the case at bar. While this court recognizes that we are not bound by the decision in Travelers, we feel that it adequately expresses the law of Alabama.

As in the present case, the issue in Travelers was whether the insurer of a seller can recover the costs of defending the seller from the manufacturer where there has been no determination of ultimate liability to the injured party and no determination of primary liability as between the manufacturer and the seller.

Travelers states that there are three prerequisites to a right of recovery in eases such as the present case. They are: (1) the indemnitee (retailer) must be without fault; (2) the indemnitor (manufacturer) must be the party responsible or primarily liable; and (3) the indemnitee has been required to pay out money by a judgment of a court.

In the instant case two of the three prerequisites are absent. As indicated above, Goodyear, the manufacturer, settled the case without a judicial determination of ultimate liability.

More importantly, Universal does not base its position on Goodyear’s liability, but rather on Goodyear’s implied duty to defend the seller in product liability cases. Accordingly, there is no allegation of Goodyear’s primary liability in Universal’s complaint.

The recent case of George E. Jensen Contractor, Inc. v. Quality Mill Works, Inc., 431 So.2d 1232 (Ala.1983), also takes the same approach as Travelers.

In Jensen, our supreme court held that the right to indemnity, including attorney’s fees, requires a breach of duty on the part of the indemnitor. It is emphasized that Alabama law requires not that the indemni-tee be liable to a third party, but that the litigation arose because of some breach of the indemnitor’s duty. In Jensen, the supreme court plainly rejects the contention that the indemnitor’s refusal to defend constitutes such a breach.

In view of Jensen and the law expressed in Travelers, Universal’s failure to allege an actionable breach of duty on Goodyear’s part made the trial court’s action appropriate. Hence, no error.

Counsel for both parties have favored this court with excellent briefs for which we are grateful.

This case is due to be and is affirmed.

AFFIRMED.

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


text:
    SOUTHERN SECURITY SERVICES, INC. v. R.N. ESNEAULT.
    Civ. 3730.
    Court of Civil Appeals of Alabama.
    July 20, 1983.

      William W. Sanderson, Jr. of Lanier, Shaver & Herring, Huntsville, for appellant.
    Jerry Lee Hicks, Huntsville, for appellee.
   EDWARD N. SCRUGGS, Retired Circuit Judge.

This is an action by a landlord, Mr. Es-neault, against his tenant, Southern Security Services, for rent due under a written lease of office space to the tenant for a term of three years commencing on November 1,1980. The lease contained a covenant on behalf of the landlord that the tenant would have the right to quiet and peaceful enjoyment of the premises throughout the term of the lease, without hindrances, molestation or interruption by the landlord or any person claiming through him.

The tenant’s primary defenses were (1) that the tenant vacated the premises due to the landlord’s breach of a subsequent oral agreement of the parties not to rent to Sizemore Security (Sizemore), a competitor of the tenant, and (2) that the tenant notified the landlord that any lease to Sizemore of office space immediately above the premises rented to the tenant would breach the landlord’s covenant of quiet enjoyment but that the landlord breached that covenant by renting the same to Sizemore.

The landlord filed a motion for a summary judgment and affidavits were presented by both sides relative thereto. The trial court rendered a monetary summary judgment in favor of the landlord and against the tenant after first finding that there was no evidence that the landlord breached the lease by renting to Sizemore and that no constructive eviction of the tenant had been shown. The tenant duly appealed. The facts pertaining to raised issues as developed by the affidavits follow herein.

The landlord’s affidavit is not disputed when he swore that at no time during the lease negotiations with the tenant did the parties contemplate inclusion of a noncom-petition clause in the lease for such was never discussed. Herbert Fields, a former branch manager for the tenant, also swore to substantially the same facts.

The lease did not contain a clause prohibiting the leasing of available rental space by the landlord to competitors of the tenant.

The tenant offered the affidavit of Steve Almy as follows:

“My name is Steve Almy. I am Regional Manager for Southern Security Services, Inc. in Atlanta, Georgia. In late September, 1981 I received a telephone call from Richard N. Esneault in Huntsville, Alabama who at that time was the landlord of the office rented by Southern Security Services, Inc. in Huntsville.
“Mr. Esneault told me that Herb Fields, a former employee of Southern Security Services, Inc. who had left to manage a competitive security service named Sizemore Security, wanted to rent the office space directly above Southern Security Service, Inc. offices for use as Sizemore’s Huntsville office. Mr. Es-neault asked if Southern had any objections to that. I told him that we were very opposed to it because of pending legal action with Herb Fields and because Fields and Sizemore Security were actively engaged in soliciting Southern’s active accounts. We felt that Sizemore’s presence in our office building would give them an undue advantage in direct contact with our clients and employees.
“Fields, after leaving Southern and going to work for Sizemore despite a non-competition agreement he had with Southern, had actively recruited Southern employees including myself, to work for Sizemore. We felt that his presence in the office immediately above Southern’s office would give him access to constant knowledge of Southern’s employees and contacts with Southern’s clients that would not be tolerable.
“Because of Fields’ prior employment with Southern and his extensive knowledge of our client and employee files we felt that such proximity of Sizemore’s office under Fields’ management to Southern’s office would enhance the competitive advantage already gained by Sizemore’s employment of Fields to a very unfair level.
“I told Mr. Esneault of this situation in late September during his telephone call to me and he indicated to me that he would not lease the office to Sizemore. The next day he called and reversed himself and told me that he was going to rent to Sizemore.
“Within a couple of days David Hicks, General Manager of Southern Security Services, Inc., wrote the attached letter to Mr. Esneault, confirming that Southern considered the proposed lease to Size-more to be a breach of our right of quiet enjoyment of the premises. That letter was hand delivered on October 6, 1981.
“Subsequently, Joe Dych, general counsel for Southern Security Services, Inc., sent Mr. Esneault the attached letter concerning this breach of quiet enjoyment and informed him that due to that breach Southern considered their lease with Es-neault to have been breached and would vacate the premises prior to December 1, 1981.”

The other counter-affidavit filed by the tenant was as follows:

“My name is Bill Cantrell. I am Branch Manager for Southern Security Services in Huntsville, Alabama. In mid-September, 1981 our landlord, Mr. Richard Esneault, came to me and said that Sizemore Security wanted to rent the office directly above Southern’s office. He told me that he was pleased with the way Southern had kept up and improved the office we rented and that he didn’t think it would be right to rent to them. He indicated at that time that he would not rent to Sizemore.
“Sometime later Mr. Esneault came to me and told me that he had decided to go ahead and rent to Sizemore.”

We must look to the above evidence to ascertain if genuine issues of material fact existed, for, if there was a scintilla of evidence which supported the tenant’s position, a summary judgment was not appropriate. Rule 56(c), A.R.Civ.P.; Gross v. Republic Steel Corp., 400 So.2d 383 (Ala.1981).

The tenant contends that the above affidavits of Almy and Cantrell constitute proof of the existence and breach of an oral agreement of the parties whereby the landlord would not lease any office space to Sizemore. Both affidavits merely state that the landlord indicated that he would not rent to Sizemore, but that does not constitute evidence that the landlord and tenant actually reached a binding contract to that effect which was supported by a valuable consideration. “Unilateral grumbling cannot modify a bilateral contract.” Kinmon v. J.P. King Auction Co., Inc., 290 Ala. 323, 276 So.2d 569 (1973). We find not a scintilla of evidence of the existence of an oral agreement as contended by the tenant.

Another issue concerns whether the landlord’s leasing of office space to the tenant’s competition so interfered with the tenant’s beneficial use and quiet enjoyment of the premises as to constitute a constructive eviction of the defendant from the premises.

The two Alabama cases which were cited by the tenant are clearly distinguishable from the instant case. The decision in Senteney v. United Embroidery Co., 230 Ala. 53, 159 So. 252 (1935), differs because the supreme court expressly and at length based that decision upon an express provision in the lease whereby the landlords agreed, but subsequently breached that promise, that the landlords would continue to occupy their part of the building. As previously noted, the lease contract between these parties did not contain an agreement whereby the landlord was foreclosed from renting available office space to the tenant’s competition. The other case, Wyatt v. Adair, 215 Ala. 363, 110 So. 801 (1926), was based upon a custom, which was founded upon racial practices and discrimi-nations of the day, a violation of the custom being, at that time, reprehensible in the eyes of the supreme court. Neither a custom nor a nuisance created by the landlord is here involved.

In Paterson v. Bridges, 16 Ala.App. 54, 75 So. 260 (1917), the landlord sued the tenant for rent. In his second plea, the tenant defended upon the ground that, after he and his mother moved into the rented apartment, the landlord permitted others to occupy other rooms in the building who behaved so disorderly that the tenant and his mother could neither sleep nor rest in peace. On that account, the tenant averred that he was compelled to move since he was not given the quiet and peaceable enjoyment which the law assured him. Therein, it was decided as follows:

“If the tenant suffers total eviction, actual or constructive, he may plead this in bar of the landlord’s claim for subsequently accruing rent. Tiffany’s Landlord and Tenant, p. 1221; Abrams v. Watson, 59 Ala. 524; Warren v. Wagner, 75 Ala. 188, 51 Am.Rep. 446.
“The question here presented is whether the act averred in the second plea constitutes, as a matter of law, a constructive eviction; and while the authorities are not uniform, the weight of authority seems to establish the doctrine that, to constitute a constructive eviction, resulting from the interference with the right of the tenant to quiet enjoyment, by the landlord, not resulting in actual dispossession, it is necessary that the conduct of the landlord manifest an intention to deprive the tenant of possession of the rented premises. The intent need not be actual, but may be presumptive, or inferable from the character of the landlord’s interference. Warren v. Wagner, supra; Tiffany’s Landlord & Tenant, § 185, p. 1258; Skally v. Shute, 132 Mass. 367.
“A constructive eviction cannot be predicated on the acts of conduct of a third party, unless such third party is acting under the landlord’s authority, express or implied. Warren v. Wagner, supra. (Remaining citations omitted.)
“The landlord of an apartment house, who lets it for a dwelling place to tenants, is not responsible for the conduct of other tenants acting within their rights in their own apartments; but if the conduct of the other renters is unlawful, and amounts to a nuisance, and such nuisance is established or maintained with the consent and connivance of the landlord, and as a consequence other'tenants’ rights are materially disturbed and interfered with, he has a right to quit the premises and treat it as a constructive eviction. (Citations omitted.)
“The averments of the second plea do not bring the case within these principles, and the court erred in overruling the demurrers.”

Paterson v. Bridges, supra.

While the facts in Paterson are clearly different from those presently presented, the law therein stated is applicable.

Hence, we do not find any evidence of a constructive eviction. The tenant could have insisted upon an appropriate clause in its lease which would have precluded the landlord from renting space in the same office building to any competitor of the tenant. In the absence of such a lease provision, the renting of office space in the same building to a tenant’s competitor, whose operation does not constitute a nuisance and who is engaged in a legitimate business, does not constitute a breach of a covenant of quiet enjoyment.

Thus, we find that no genuine issue of fact existed and that the learned trial court properly granted the summary judgment in favor of the landlord. However, the parties are in agreement that the trial court erred in calculating the amount of rent due and the interest thereon. In his brief, the landlord states that he is willing to file a remit-titur to the amount computed by the tenant, which appears to be the correct amount. Accordingly, a judgment will be entered that, unless the landlord files a remittitur with the clerk of this court within fourteen days reducing the total judgment to the sum of $5,401.85, the judgment of the trial court shall stand reversed and the case shall be remanded to the circuit court. Said sum is composed of $5,176.50 for rent, plus six percent (6%) interest on each rent installment from the date each became due until the date of the circuit court’s judgment, which interest totals $225.35. If, however, such remittitur is filed, a judgment for $5,401.85 shall stand affirmed. Travelers Indemnity Co. v. Capitol City Haulers, 393 So.2d 1012 (Ala.Civ.App.1980). If the judgment so stands affirmed, it shall draw interest from February 22, 1983, the date of the entry of the circuit court’s judgment, at the rate of twelve percent (12%) per year. § 8-8-10, Code 1975; § 12-22-71, Code 1975; Montgomery Light & Water Power Co. v. Thombs, 204 Ala. 678, 685, 87 So. 205, 211 (1920).

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 § 12-18-10(e) of the Code of Alabama of 1975 and this opinion is hereby adopted as that of the court.

AFFIRMED CONDITIONALLY.

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

HOLMES, J., concurs in result.


text:
    In the Matter of Jamie C. RANDOLPH, Sonia Lindley, and Christy D. Lindley.
    Civ. 3680.
    Court of Civil Appeals of Alabama.
    July 27, 1983.

      Bill Fite, Hamilton, for appellant.
    Charles A. Graddick, Atty. Gen., and Mary Lee Stapp and William Prendergast, Asst. Attys. Gen., for appellee.
   EDWARD N. SCRUGGS, Retired Circuit Judge.

This is a permanent child custody ease.

After an ore tenus trial, the juvenile court’s final judgment awarded the permanent custody of the three children to the Department of Pensions and Security (the department). The legal rights of parents to the children were terminated, and the department was granted the right to place the children for adoption. The appeal of the parents ensued.

As their entire statement of facts in their brief, the parents requested that we “see” the entire record. It has been read and studied.

The legal custody of the children was first granted to the department in August 1979. Subsequently, the department has allowed the children to reside at times with the parents. In that regard, the department and the parents entered into a written agreement whereby the parents agreed to maintain an adequate place to live, to accept counseling, to refrain from fighting, to keep drunkenness from their home and that the father would find and keep employment. It suffices to state that the parents failed as to all, or almost all, of those promises.

When the youngest child was two weeks old, the parents engaged in a fight and that daughter was accidentally struck by her father on her head, which resulted in her overnight hospitalization. Another child was trampled and injured.

The parents have taken the children on trips, the driving parent being drunk.

The present proceedings were precipitated when the mother was driving under the influence. The three children were with her. She drove the car off a road and it came to rest at the bottom of the ten-foot road fill. There, they remained for approximately two hours. It was very cold and the children were without warm clothing. The father then requested the department to place the children for adoption before they were killed. He stated that he and their mother were unfit parents. The father had made a similar request and statement after the parents’ fight had injured two of the children.

Before permanent parental custody of children is removed, the trial evidence must clearly and convincingly prove that it is contrary to the children’s best interest for them to remain with their natural parents. Vinson v. AGAPE of Central Alabama, Inc., 416 So.2d 1075 (Ala.Civ.App.1982). The trial record supports the judgment of the trial court. The disposition of the case was not palpably wrong. Therefore, we are not authorized to substitute our judgment for that of the trial court. Hudgins v. State, 418 So.2d 913 (Ala.Civ.App.1982); Vinson v. AGAPE of Central Alabama, Inc., supra.

We affirm.

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

AFFIRMED.

All the Judges concur.


author: WRIGHT, Presiding Judge.

text:
    Rhona RICHARDSON (Hunte) v. Eyston A. HUNTE.
    Civ. 3686.
    Court of Civil Appeals of Alabama.
    July 27, 1983.
    Ann E. Taylor, Mobile, for appellant.
    Phillip M. Leslie, Mobile, for appellee.
   WRIGHT, Presiding Judge.

This is an appeal from a divorce modification proceeding wherein the trial court terminated the former wife’s alimony under § 30-2-55, Code of Alabama 1975 (Supp. 1982).

Husband and wife were divorced on July 16, 1981. The divorce decree provided among other things, that the husband, Ey-ston A. Hunte, pay to the wife, Rhona Richardson Hunte, $300 per month for a period of two and one-half (2½) years as alimony. On August 2, 1982, the husband filed a petition for modification of several provisions of the divorce decree, including the alimony provision, alleging a change of circumstances.

On September 28, 1982, the husband filed a motion requesting that the court terminate the alimony payments, on the ground that the wife was living openly and cohabi-tating with a member of the opposite sex, under § 30-2-55, Code 1975 (Supp.1982). Section 30-2-55 authorizes the court to terminate alimony upon petition and proof that the spouse receiving the alimony is “living openly or cohabitating with a member of the opposite sex.” A hearing on the motion was held on December 2, 1982.

On January 25, 1983, the trial court denied all of the husband’s motions except the motion based on § 30-2-55. The court found that the wife was living openly with a member of the opposite sex and ordered that her $300-per-month alimony payments be terminated as of the last day of September, 1982. The wife appeals the court’s ruling.

The only issue presented on appeal is whether the trial court correctly applied § 30-2-55 under the evidence presented. It is well settled that the judgment of the trial court after a hearing ore tenus will not be reversed on appeal unless after consideration of all of the evidence and all reasonable inferences drawn therefrom, we conclude the judgment was plainly and palpably wrong. Ivey v. Ivey, 378 So.2d 1151 (Ala.Civ.App.1979); Parish v. Parish, 374 So.2d 348 (Ala.Civ.App.), cert. denied, 374 So.2d 351 (Ala.1979). This presumption equally applies to the court’s determination of whether the petitioner has met the burden of proof. Id.

The wife contends there is no support in the evidence for the trial court’s order. There was undisputed testimony that one Isaac Rucker lived in the home with the wife for about two weeks jn July of 1982. Additional undisputed testimony places Rucker at the wife’s residence early in the morning, during the day, in a state of undress, and late at night, regularly over a period of five months. Rucker has taken the wife’s children to school on several occasions, and. has accompanied the wife to many social gatherings, to restaurants, and to church. The wife testified she did not date other men. Rucker uses the wife’s car, and although he testified that he has lived in his own apartment “on and off” for about three months, he had difficulty remembering the address.

The wife contends that she and Rucker are merely business partners and work out of an office in her home. They are reportedly in the construction business which requires very long hours. She denies ever having had sexual relations with Rucker, and further denies that they are living together. However their business was not incorporated until November of 1982, weeks after the filing of the husband’s motion, and the corporation had still done no business at the time of the trial. In connection with the business, the wife and Mr. Rucker maintain a joint checking account.

Cohabitation requires more than occasional sexual activity; there must be a more permanent relationship manifested by such things as the sharing of a dwelling, ceasing to date other members of the opposite sex, and the sharing of expenses. Hicks v. Hicks, 405 So.2d 31 (Ala.Civ.App.1981), and cases cited therein. There is evidence in this case indicating the presence of each of these factors over a period of several months.

The cumulative evidence, reasonably supports the judgment of the trial court. We find no abuse of discretion, and affirm the court’s judgment.

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

AFFIRMED.

BRADLEY and HOLMES, JJ., concur.


text:
    Candace H. OWENS v. William M. OWENS.
    Civ. 3700.
    Court of Civil Appeals of Alabama.
    July 27, 1983.

      Herndon Inge, Jr. of Inge, McMillan & ; Inge, Mobile, for appellant.
    Claude D. Boone and Donald C. Partridge of Deas & Boone, Mobile, for appellee.
   WRIGHT, Presiding Judge.

Wife brought suit for divorce on July 16, 1982. Various motions and proceedings pendente lite were filed including a motion by the wife to prohibit husband from residing in the family residence. Extensive re- ' corded testimony was heard by the court on that motion on August 3, 1982. Order was entered and all other motions were set for September 2. The husband answered and cross-claimed on August 31. The September 2 hearing was continued to September 22 for trial on merits. On September 22 the case was transferred to a disposition docket apparently because counsel informed the court that settlement was imminent and the wife was in the hospital.

On November 5,1982, the case was again set for trial on December 1. On December 1 there was continuance to December 15. On December 15, the case was continued at the request of counsel for the wife until December 29. It is admitted that the court, in granting the continuance on December 15, notified the parties and counsel that the matter was to be heard on December 29 without further continuance.

On December 29 counsel for the wife announced in open court that the wife, though informed of the date and time of the trial, had gone to Tennessee and had not returned. Counsel detailed his contacts with the wife by phone in Tennessee. He stated to the court her reason for being in Tennessee and failure to return. (She had gone to get her automobile repaired and repairs were not complete.) Counsel requested further continuance.

Upon denial of the continuance, counsel requested permission to withdraw as counsel for the wife. Permission to withdraw was granted, and the complaint of the wife was dismissed for failure of prosecution. Default was granted the husband on his cross complaint. The court proceeded to hear oral testimony in proof of his complaint for divorce.

The husband’s complaint charged as grounds for divorce the adultery of the wife and incompatibility. After hearing the testimony, the court entered judgment for divorce without stating grounds. He gave custody of the minor child to the wife, with an award of child support. Division of personal and real property was decreed. Alimony of $10.00 per year was awarded the wife. Motion to set aside the judgment was denied after oral hearing. Wife appealed.

Though the number of issues stated are six, there are in fact only three basic issues presented on appeal. The first is whether the court erred in denying the request of the wife for continuance on December 29, and dismissing her complaint for want of prosecution.

The response to the first issue is found in the most recent case of Selby v. Money, 403 So.2d 218 (Ala.1981). The court in Selby stated the principle that continuances are not favored, and a denial of a continuance will not be reversed without a showing of gross abuse of discretion. It is further stated that a dismissal of a complaint for want of prosecution is within the inherent power of a trial court to control its docket. The exercise of such power is reviewed only for abuse of that discretionary power. Selby v. Money, supra; Smith v. Wilcox County Board of Education, 365 So.2d 659 (Ala.1978).

The evidence presented by the hearing on the post-trial motion to set aside, and by the record itself, presents a picture of delay in the face of established policy of the court to promptly hear and dispose of divorce cases. It is admitted that at the time of granting to the wife the continuance of December 15, that the court notified counsel and parties that the case would be tried on its merits on December 29. It is further undisputed that the wife left for Tennessee with that knowledge and that she was contacted several days before the 29th and reminded of the trial date. It is to be noted that no witnesses had been subpoenaed for the wife and no apparent preparation made for trial either by wife or her counsel. Wife, though claiming lack of funds to secure transportation from Tennessee, made no inquiries as to cost or means of returning to Mobile for trial. She just had to wait for her car to be repaired. In view of this evidence, we find no abuse of discretion in either denying a continuance or dismissing the complaint for want of prosecution.

The second issue is whether there was sufficient evidence presented to establish statutory grounds for divorce, either for adultery or incompatibility.

There was testimony produced at the hearing of the husband’s complaint that the wife had admitted to him an affair of sexual intimacy with another man extending over three or four years. He had no personal knowledge or corroborative evidence of such an affair. Such an uncorroborated admission of adultery is insufficient to establish the statutory ground. Watson v. Watson, 278 Ala. 425, 178 So.2d 819 (1965); Hubbard v. Hubbard, 55 Ala.App. 521, 317 So.2d 489, cert. denied, 294 Ala. 759, 317 So.2d 492 (1975); § 30-2-3, Code 1975.

There was testimony of the husband as to the incompatibility of the parties. Standing alone, such testimony may be deemed insufficient to establish the statutory ground of incompatibility of temperament as defined and discussed by this court in Helton v. Helton, 362 So.2d 257 (Ala.Civ.App.1978); Kegley v. Kegley, 355 So.2d 1121 (Ala.Civ.App.1977); cert. denied, 355 So.2d 1123 (Ala.1978); Gamble v. Gamble, 53 Ala.App. 168, 298 So.2d 254, cert. denied, 292 Ala. 721, 298 So.2d 260 (1974). However, there was before the trial court, and present in the record before this court, substantial testimony as to the relationship of the parties and events occurring between them prior to their separation. There were admissions by each of them that they could not continue as man and wife. There was also testimony of others as to their difficulties. Therefore we find that there had been presented to the trial court sufficient cumulative evidence for granting a divorce for incompatibility of temperament. Clark v. Clark, 384 So.2d 1120 (Ala.Civ.App.1980).

The last issue is whether the judgment of the court is unjust. The trial court in our opinion, based upon the testimony presented, rendered an unusually fair judgment for the wife. We are impressed with the apparent candor and fairness of the husband in admitting the need for providing a home for his child and her mother. The award of child support appears reasonable. The division of personal property with the wife appears more than reasonable. Whether more than the nominal alimony granted would have been granted the wife had she been present and testified is conjectural. That issue at least remains open to possible modification if circumstances change in the future. The trial court properly retained jurisdiction of that matter.

In summary, we find no abuse of the discretion of the trial court, nor do we find the judgment rendered unjust.

Requests for attorney fees on appeal are denied.

AFFIRMED.

BRADLEY and HOLMES, JJ., concur.


author: JOSEPH J. MULLINS, Retired Circuit Judge. BOWEN, Judge,

text:
    Rickey Joe THOMAS v. STATE.
    7 Div. 837.
    Court of Criminal Appeals of Alabama.
    Aug. 4, 1981.
    Rehearing Denied Oct. 6, 1981.

      Robert G. Wilson of Scruggs, Rains & Wilson, Fort Payne, for appellant.
    Charles A. Graddick, Atty. Gen. and J. Anthony McLain and James F. Hampton, Sp. Asst. Atty. Gen., for appellee.
   JOSEPH J. MULLINS, Retired Circuit Judge.

The Grand Jury of DeKalb County returned an indictment against the appellant, Rickey Joe Thomas, charging him with burglary in the third degree, a class C felony. When the appellant was called by the court to plea to the indictment, he stood mute. The court entered a plea of not guilty for the appellant. A jury found the appellant guilty. After a presentence hearing the court duly sentenced the appellant to ten years in the State Penitentiary, and he appeals to this Court.

Appellant was represented at all proceedings in the trial court, and in this Court, by the same counsel appointed by the trial court. This appeal was submitted to this Court on briefs.

The appellant states in his brief four reasons why his conviction should be reversed. First, that the trial court erred to his prejudice by considering a prior adjudication as a youthful offender in sentencing the appellant under the Habitual Offender Statute, 1975 Code Of Alabama, Sec. 13A-5-9 (1980 Cumulative Supplement); second, that Sec. 13A-5-9, Code Of Alabama, 1975, (1980 Cumulative Supplement) is unconstitutional in that it violates appellant’s right of equal protection and due process of law; third, by refusing to charge the jury on the lesser included offense of criminal trespass in the third degree; fourth, by refusing to give the appellant’s requested jury charges 1, 2, 3, and 10.

State’s evidence tended to prove that on the 17th day of September, 1980 Mr. Kuyk-endall, a pharmacist, was manager of Harco Super Drug, Inc., located in a building in DeKalb Plaza Shopping Center between Big K and the Radio Shack, in Fort Payne, DeKalb County, Alabama; that the store was equipped with a silent burglary alarm system; that about 2 A.M. he received a telephone call from the city police, and that he went immediately down to the Harco Super Drugstore where he found several police officers; that he unlocked the front door of the building and let the officers in where they found the appellant and another person in the building; that there was a hole in the dropped ceiling of the drugstore overhead which was not there when Mr. Kuykendall locked the store on the evening of September 16, 1980; that two empty money bags that were kept in the desk drawer had been taken out of the desk drawer, and one was found ten or twelve feet away from the desk; that the contents of the drawer had all been taken out; that the wall between Harco Super Drugstore and the Radio Shack store was made out of a very thin ceiltex, and extended from the floor of the building to the top ceiling of the building; that the Harco Drugstore was equipped with a silent alarm system that would be triggered at the moment anyone reached the floor of the drugstore; that narcotics, cameras, and other articles for sale, were kept in the store; that nothing was found to be gone from the drugstore.

State’s evidence further tended to prove that David Kean, a police officer of the City of Fort Payne, was on duty on the 17th day of September, 1980, and was in the radio room at the police station when number 16 of the burglary alarm system went off, at which time he knew it was at Harco Drugs; that immediately Officer Kean and Officer Jimmy Don Thomas got in separate police cars, and headed for Harco Drugstore, and arrived there in about three or four minutes after the alarm went off; that Officer Kean knows the appellant, and positively identified him as one of the two persons he saw, and arrested, inside Harco Drugstore; that when he arrested them, they were standing almost under a hole in the dropped ceiling; that before he arrested them, he observed them placing something on a shelf between baby pamper boxes; that he found a set of gloves, and a money bag with Harco Drugs on it; that the appellant had a big plastic bag stuck under his shirt; that neither the appellant nor the person with him appeared to be drunk, but they both appeared to be nervous.

State’s evidence further tended to prove that Jimmy Don Thomas, a police officer of Fort Payne, was on duty on September 17, 1980, and was at the police headquarters when the burglary alarm went off at about 2:00 A.M. o’clock; that he went to the back entrance of Harco Drugstore, and put his partner out to secure the back entrance, and then Officer Thomas attempted to find a way to go to the roof of the building, then he went to the front of the building, and observed that a part of the dropped ceiling in Harco Drugstore had been removed; that Mr. Kuykendall arrived at the store, and unlocked the front door so Captain Kean and Officer Thomas could enter Har-co Drugstore; that the officers arrested the appellant and the person with him; that Officer Thomas then went to the roof of the building, and found a hole in the roof large enough for a person to pass through; that the hole in the roof was over that part of the building occupied by the Radio Shack; the hole in the roof had been covered by a piece of metal, and the metal was torn loose and turned back; that Officer Thomas lowered himself into the hole, and .looked around, and found three other holes large enough for a man to pass through, one through the dropped ceiling over Radio Shack’s store, one through the partition wall between Harco Drugstore and Radio Shack and above the dropped ceiling, and the other hole through the dropped ceiling over Harco Drugstore.

State’s evidence further tended to prove that David Walker, a police officer of Fort Payne, was patrolling on September 17, 1980 when he received a radio call to report to Harco Drugstore; that he went on the roof of the building where Officer Thomas had found a hole in the roof; that Officer Thomas lowered himself through the hole, and Officer Walker followed him; that Officer Thomas found a dark colored handbag between the dropped ceiling and the top ceiling of the building and over the Radio Shack and near a large hole through the wall into Harco Drugstore, and handed the handbag to Officer Walker who then handed it to Detective Parker.

State’s evidence further tended to prove that Detective Wayne Parker was present at Harco Drugs on September 17, 1980. That when he arrived, Officers Kean, Thomas, and Walker were the only officers on the scene; that he was familiar with the spene of the alleged crime, and went there to investigate an alleged burglary; that State’s exhibit number 3 consisted of a pair of work gloves, a pair of sox wrapped around a Fort Payne bank money bag with Harco Drugs written on it; that the gloves were found up on a shelf under the hole through the dropped ceiling over Harco Drugstore, and the sox and Harco money bag were found stuck back in between some boxes near the hole in the dropped ceiling over Harco’s Drugstore; that Detective Parker received from Officer Walker that night at the scene a black zipper handbag with a pair of handles connected to it; that the handbag contained a grappling type hook with a thirty-six foot chain with knots tied in the chain attached to the grappling hook, a short piece of rope, one hammer, three screwdrivers, one pair of pliers, a part of a broken saw blade, a swab, a lock washer, a screw, a small price tag, $680.40 in American money, two dollars in Canadian money, one Smith and Wesson 22 Caliber Pistol, one Colt 9 Millimeter Pistol, and a Radio Shack business card in a blue Fort Payne bank money bag; that in the opinion of Detective Parker the appellant was not drunk on the occasion when he was arrested. State rested its case, and appellant moved to exclude state’s evidence. Motion was overruled.

The appellant’s evidence tended to prove that Norma Hastings was the mother of the appellant; that on September 16, 1980 she had seen the appellant off and on all of the day; that he had been drinking whiskey and beer, and was drunk when he left home right after dark on the day before he was arrested. The appellant offered no other evidence on his behalf.

After the jury returned a verdict finding the defendant guilty, the court postponed sentencing the appellant pending a presen-tence hearing to be heard on March 5, 1981 at 9:30 A.M. This concluded the trial ending February 9, 1981, at 4:44 P.M.

At the presentencing hearing the state, over the objection of the appellant, introduced state’s exhibit one, a properly certified copy of a valid judgment entered on March 3, 1976 in the Circuit Court of De-Kalb County, Alabama, showing a conviction of the appellant for the offense of burglary in the second degree, a class C felony. The state was allowed to introduce, over the objection of the appellant, a certified copy of the bench notes of the Circuit Court of DeKalb County. Entries on the bench notes are, as follows: “Attorneys, J. T. Block, W. M. Scroggins, parties, the State Of Alabama vs Rickey Joe Thomas, date of filing 1/7/74, action, burglary, 2nd degree, orders and decrees of the court, 2/15/74 same as 1274 W.G.H., 5/17/74 application for consideration under the Youthful Offender Act is granted, W.G. Hawkins, Judge. September 23, 1974, court reporter took proceedings. Committed to Dep. of Prison for a period of 3 years to run concurrently with Case # 1274. W.G. Hawkins, Judge, Transcript filed 10/7/74.”

At the conclusion of the hearing, the trial court determined that the appellant having been, on March 5,1981, convicted of burglary, 3rd. degree, and after due notice, and hearing, the court found by a preponderance of the evidence that the appellant had been convicted of (1) previous felony and (2) youthful offender, and duly sentenced the appellant to ten years in the State Penitentiary.

Appellant’s first contention in his brief is that the trial court erred to his prejudice by considering a prior adjudication as a youthful offender, as a conviction of a prior felony, in. considering sentencing the appellant under the Habitual Offender Statute, 1975 Code Of Alabama, Sec. 13A-5-9 (1980 Cumulative Supplement). Section 13A-5-9(a) provides: “In all cases when it is shown that a criminal defendant has been previously convicted of any felony and after such conviction has committed another felony, he must be punished as follows:

(1) On conviction of a class C felony, he must be punished for a class B felony; . (b) In all cases when it is shown that a criminal defendant has been previously convicted of any two felonies and after such conviction has committed another felony, he must be punished as follows: (1) On conviction of a class C felony, he must be punished for a class A felony;

The appellant does not contend that he was not lawfully convicted in the Circuit Court of DeKalb County, Alabama on March 3, 1976 of burglary in the second degree, a felony, as proven by state’s exhibit one introduced at the presentencing hearing. Appellant contends that the trial court committed prejudicial error when it allowed into evidence, and considered, state’s exhibit two, as a prior conviction of a felony. State’s exhibit two is not a properly certified copy of a valid judgment showing a prior conviction of a felony. It is merely a certified copy of bench notes, and is not sufficient to prove a prior conviction of a felony. The appellant did not testify in the case. We hold that the trial court committed error when it allowed state’s exhibit number two into evidence, and considered it as a prior conviction of the appellant of a felony. A proper way to prove a prior conviction of a felony is by introducing a certified copy of the minute entry, showing a valid prior conviction of the defendant of a felony, or by the admission of the defendant. Hope v. State, Ala.Cr.App., 381 So.2d 676; Bay v. State, Ala.Cr.App., 398 So.2d 774; Certiorari Denied, Ala., 398 So.2d 777; Highsmith v. State, 65 Ala.App. 272, 314 So.2d 874; Palmer v. State, 54 Ala.App. 707, 312 So.2d 399.

The record in this case reveals that the appellant was indicted for a class C felony. That he was sentenced to the State Penitentiary for a term of ten years. Code Of Alabama, 1975, 13A-5-6 provides for a sentence of not less than ten years or not more than ninety-nine years for a class A felony; not less than two years or more than twenty years for a class B felony; and not less than one year and one day or more than ten years for a class C felony. In view of the fact that the sentence imposed on the appellant was for ten years, the evidence shown by state’s exhibit two, and erroneously considered by the trial court, resulted in no prejudice to the appellant, therefore the error was harmless. Rule 45 of Appellate Procedure. The sentence being for ten years was within the limits prescribed for either a class A, B, or C felony, and its length was well within the discretion of the trial judge. Watson v. State, Ala.Cr.App., 392 So.2d 1274; Certiorari Denied, Ala., 392 So.2d 1280; Brown v. State, Ala.Cr.App., 392 So.2d 1248; Certiorari Denied, Ala., 392 So.2d 1266; Griggs v. State, 40 Ala.App. 675, 121 So.2d 926.

Appellant’s second contention in his brief is that Section 13A-5-9 of the 1975 Code Of Alabama, (1980 Cumulative Supplement) of the Habitual Felony Offender Act violates the appellant’s constitutional rights of equal protection and due process under the law. This act provides for additional penalties in all cases when it is shown that a criminal defendant has been previously convicted of any felony, and after such conviction has committed another felony. Section 13A-5-9 has recently been held by this Court to be constitutional, and does not violate the due process, or ex post facto clauses of the constitution. Watson v. State, supra; Johnson v. State, Ala.Cr.App., 398 So.2d 393; Lyner v. State, Ala.Cr.App., 398 So.2d 420; Williams v. State, Ala.Cr.App., 393 So.2d 492; Smith v. State, Ala.Cr.App., 392 So.2d 1273.

The third and fourth prejudicial errors argued in appellant’s brief are that the trial court refused to charge the jury on the lesser offense of trespass in the third degree, and refused to give written charges numbers 1, 2, 3, and 10 requested by the appellant. It was not error for the trial court to refuse charges 1, 2, and 3 because they were substantially covered by the court’s oral charge, or other written charges given at the request of the appellant. Charge 10 was properly refused because it attempted to have the court charge that they could find the appellant guilty of criminal trespass in the third degree as a lesser offense included in the indictment for burglary in the third degree. Under the evidence in this record there is no rational basis for the conviction of the appellant of the offense of a criminal trespass in the third degree. Section 13A-1-9(b) of the 1975 Code Of The State Of Alabama, with reference to lesser included offenses in an indictment, provides: “The court shall not charge the jury with respect to an included offense unless there is a rational basis for a verdict convicting the defendant of the included offense.” Fulghum v. State, 291 Ala. 71, 277 So.2d 886; Johnson v. State, supra; Brown v. State, supra; Taylor v. State, Ala.Cr.App., 380 So.2d 363; Williams v. State, Ala.Cr.App., 377 So.2d 634; Certiorari Denied, Ala., 377 So.2d 639; Jenkins v. State, Ala.Cr.App., 384 So.2d 1135; Certiorari Denied, Ala., 384 So.2d 1141.

The record fully sustains the verdict of the jury finding the appellant guilty of burglary in the third degree.

We have searched the record and are of the opinion that reversible error does not appear. The judgment of the trial court is due to be and is hereby affirmed.

The foregoing opinion was prepared by Honorable JOSEPH J. MULLINS, a retired Circuit Judge, serving as a Judge of this Court; his opinion is hereby adopted as that of the Court.

The judgment below is hereby affirmed.

AFFIRMED.

All the Judges concur, except BOWEN, J., who dissents with opinion.

BOWEN, Judge,

dissenting.

I dissent from that part of the majority opinion which holds that the defendant was not prejudiced by the consideration of the youthful offender conviction because the defendant could have been sentenced to ten years even if this conviction had not been considered. Merely because the defendant could have been sentenced to ten years does not mean he would have been if the trial judge had not considered the youthful offender conviction. Harmless error cannot be based on such possibilities. Saltzburg, The Harm of Harmless Error, 59 Va.L.Rev. 988 (Sept. 1973).

I would remand this cause for proper sentencing.


author: PER CURIAM.

text:
    Ex parte: Rickey Joe THOMAS. (In re: Rickey Joe Thomas v. State of Alabama).
    81-21.
    Supreme Court of Alabama.
    Feb. 5, 1982.

      Robert G. Wilson of Scruggs & Wilson, Fort Payne, for petitioner.
    Charles A. Graddick, Atty. Gen. and J. Anthony McLain and James F. Hampton, Sp. Asst. Attys. Gen., for respondent.
   PER CURIAM.

Rickey Joe Thomas was convicted of third degree burglary in February of 1981. Prior to sentencing, the State gave notice that it sought to have Thomas sentenced as a habitual offender, pursuant to Code 1975, § 13A-5-9 (Habitual Offender Act), and, at sentencing, introduced evidence of one previous felony conviction of 2nd degree burglary and one previous “youthful offender” adjudication, both of which were admitted by the trial court. The trial court sentenced Thomas to ten years in the state penitentiary, but did not indicate the basis for its determination of the term of the sentence imposed. The Court of Criminal Appeals affirmed and this Court granted the petition for writ of certiorari.

On appeal, Thomas contends that the sentence imposed by the trial court was erroneous because it was based upon the court’s erroneous admission and consideration of his prior adjudication as a youthful offender in sentencing him under the Habitual Offender Act.

Section 13A-5-9, commonly referred to as the Habitual Offender Act, provides, in part:

“(a) In all cases when it is shown that a criminal defendant has been previously convicted of any felony and after such conviction has committed another felony, he must be punished as follows:
“(1) On conviction of a Class C felony, he must be punished for a Class B felony;
“(b) In all cases when it is shown that a criminal defendant has been previously convicted of any two felonies and after such convictions has committed another felony, he must be punished as follows:
“(1) On conviction of a Class C felony, he must be punished for a Class A felony;”

The Youthful Offender Act (§ 15-19-1, et seq.) provides that a minor charged with certain crimes may be adjudged a youthful offender and, as such, not be subject to trial for those crimes as an adult.

Thomas specifically calls this Court’s attention to that portion of § 15-19-7, which states that a youthful offender determination “shall not be deemed a conviction of a crime.” He charges that after admitting the State’s proffered evidence of his youthful offender adjudication, the trial court used that youthful offender determination as a previous felony conviction, as contemplated by the Habitual Offender Act, and erroneously sentenced him under subsection (b)(1) of § 13A-5-9 to ten years in the state penitentiary.

The State concedes that the ten-year sentence falls within the 10-99 year range of subsection (b)(1) (conviction of a Class C felony with two prior felony convictions), but points out that a ten-year sentence is also permissible under the subsection (a)(1) (conviction of a Class C felony with one previous felony conviction) range of 2-20 years. Furthermore, we note that the possible sentence for a conviction for third degree burglary, notwithstanding the Habitual Offender Act, is 1-10 years in the state penitentiary.

The peculiar circumstances of the instant case could lend support to a finding that Thomas’s ten-year sentence was imposed under any of the three alternatives discussed above. We agree, however, with the dissent filed by Judge Bowen, who wrote: “Merely because the defendant could have been sentenced to ten years does not mean he would have been if the trial judge had not considered the youthful offender conviction. Harmless error cannot be based on such possibilities. Saltzburg, The Harm of Harmless Error, 59 Va.L.Rev. 988 (Sept. 1973).”

Ordinarily, trial judges are not required to make findings of fact. Where, however, as in the instant case, various sentence ranges overlap (i.e., the sentences which would apply to a defendant as a habitual offender with and without the youthful offender adjudication overlap the sentence applicable notwithstanding prior felonies), we believe the trial court’s order of sentence should clearly indicate whether the court invoked the Habitual Offender Act in arriving at the sentence imposed. This being done, the basis of the trial court’s sentencing order need not be questioned on appeal, nor need its propriety rest upon speculation.

The State calls our attention to further language found in § 15-19-7 which states that if a youthful offender “is subsequently convicted of crime, the prior adjudication as youthful offender shall be considered.” We hold that a prior youthful offender adjudication is properly considered in determining the sentence to be imposed within the statutory range for a later crime for which the defendant has been convicted. That same youthful offender determination, however, may not be considered a prior felony conviction, as contemplated by the Habitual Offender Act, so as to bring the defendant within the purview of the higher sentence categories of that Act.

The judgment of the Court of Criminal Appeals, 435 So.2d 1319, is reversed; the cause is remanded for an order reversing the judgment of sentence and remanding the cause for a sentencing hearing and judgment of sentence consistent with this holding.

REVERSED AND REMANDED.

All the Justices concur.

      . “Minors,” as contemplated by the Act, does not include those whose offenses are disposed of in juvenile court. See, also, § 26-1-1, which exempts the Youthful Offender Act from its provisions lowering the age of majority to 19 years.


text:
    Rickey Joe THOMAS v. STATE.
    7 Div. 837.
    Court of Criminal Appeals of Alabama.
    May 18, 1982.
   PER CURIAM.

Pursuant to the mandate of the Supreme Court of Alabama in the case of Ex parte: Rickey Joe Thomas (In re: Rickey Joe Thomas v. State of Alabama), 81-21, 435 So.2d 1324 (Ala.) released on February 5, 1982, it is ordered that the sentence of appellant be vacated and the cause remanded to the Circuit Court of DeKalb County, for a sentence hearing, and a sentence consistent with the Supreme Court opinion.

REMANDED WITH DIRECTIONS.

All the Judges concur.

Appeal after remand, Ala.Cr.App., 435 So.2d 1327.


text:
    Rickey Joe THOMAS v. STATE.
    7 Div. 837.
    Court of Criminal Appeals of Alabama.
    Aug. 2, 1983.
   JOSEPH J. MULLINS, Retired Circuit Judge.

The transcript submitted on return to remand shows that a sentencing hearing was conducted by the trial court with the appellant, his attorney, and the district attorney present. Evidence was taken at that time, and the appellant was duly and legally sentenced to be imprisoned in the penitentiary of the State of Alabama for a period of four years under the Habitual Offenders Statute, said sentence to run concurrently with the sentences he is now serving. The record demonstrates a clear compliance with § 13A-5-9, Code of Alabama, 1975, and this Court’s request on remand, 435 So.2d 1326, and the opinion issued in this case by the Supreme Court of the State of Alabama on February 5, 1982, 435 So.2d 1324.

The judgment of conviction and sentence imposed by the trial court on remand is hereby affirmed.

AFFIRMED.

All the Judges concur.