text:
    CITY BANK & TRUST COMPANY OF SHREVEPORT, Plaintiff-Appellee, v. The HARDAGE CORPORATION, et al., Defendant-Appellant.
    No. 16155-CA.
    Court of Appeal of Louisiana, Second Circuit.
    April 30, 1984.
    Kennedy, Goodman & Donovan by John M. Frazier, Shreveport, for defendant-appellant.
    Bodenheimer, Jones, Klotz & Simmons by William E. Byram, Shreveport, for defendant-appellee.

      Skeels, Baker, Coleman & Strickland by Charles W. Strickland, Shreveport, for plaintiff-appellee.
    Before MARVIN, JASPER E. JONES and NORRIS, JJ.
   NORRIS, Judge.

The Hardage Corporation appeals a default judgment on a promissory note awarding 25% of the aggregate amount of principal and interest collected as attorney’s fees assigning as their sole error the granting of the attorney’s fees as provided in the note without sufficient proof of the adequacy or excessiveness of the fee. We amend and affirm.

On August 17,1983, City Bank and Trust Company of Shreveport sued The Hardage Corporation, James H. McConnell and Mr. and Mrs. Jackie T. Fair on a promissory note for the sum of $50,000 together with 19.5% per annum interest on the unpaid balance from June 5, 1983, until paid, plus 25% of the amount collected as an attorney’s fee and for all costs of these proceedings. On September 9, 1983, a preliminary default was entered against The Hardage Corporation which was confirmed on September 14, 1983, granting judgment as prayed for against the corporation only.

The promissory note sued upon provides:

Should it become necessary to place this note in the hands of an attorney for collection, the maker shall pay all costs of collection, including the fee of such attorney which is fixed at twenty-five (25%) percent of the amount to be collected.

Our review of the record reveals that it is devoid of any testimony or other evidence introduced to prove the value of the services rendered by the attorney for the Bank in connection with the collection of the note. In fact, the record available for our review contains the original petition with attachments, a minute entry showing the entry of the preliminary default and a minute entry showing the confirmation of the default judgment. Consequently, as reflected by the record, the requisite work necessary to obtain this judgment apparently consisted of the securing of the necessary documentary proof of the debt, the preparing of and obtaining the execution of the affidavit of correctness of account, the drafting of the original petition, the obtaining of the debtors’ addresses for purposes of service, the entering of a preliminary default, the drafting of the judgment, and the appearing in court without witnesses for confirmation of the default. Under the terms of the note reflected by the judgment, for this amount of work the fee would be a minimum of $12,500.

Leenerts Farms, Inc. v. Rogers, 421 So.2d 216 (La.1982), addressed the issue of whether the courts may inquire into the reasonableness of attorney fees which have been fixed in a note by the parties as a percentage of the amount due upon the default of the debtor and held that although parties are permitted to contract with respect to attorney fees, these fees are subject to review and control by the court. Accordingly, despite such a provision in a note, the courts may inquire into the reasonableness of the fee awarded.

This court has held that Leenerts Farms does not limit the trial court in its determination to reduce an excess fee provided for in a note to a ease where the issue is asserted by a defendant at trial but rather provides the authority for the trial court to inquire into the reasonableness of an attorney's fee provision in a note as a matter of public policy whether or not the issue is raised by the opposing party. Knighten v. Knighten, 447 So.2d 534 (La. App. 2d Cir.1984). Extending that rationale further, we conclude that the policy inherent in the Leenerts Farms decision makes a judgment obtained by default in which a fee is awarded in accordance with an attorney’s fee provision in a note reviewable by this court to determine if it is excessive.

The determining criteria for reviewing attorney’s fees are found in DR 2-106 which provides:

(A) A lawyer shall not enter into an agreement for, charge, or collect an illegal or clearly excessive fee.
(B) A fee is clearly excessive when, after a review of the facts, a lawyer of ordinary prudence would be left with a definite and firm conviction that the fee is in excess of a reasonable fee. Factors to be considered as guides in determining the reasonableness of a fee include the following:
(1) The time and labor required, the novelty and difficulty of the questions involved, and the skill requisite to perform the legal service properly.
(2) The likelihood, if apparent to the client, that the acceptance of the particular employment will preclude other employment by the lawyer.
(3) The fee customarily charged in the locality for similar legal services.
(4) The amount involved and the results obtained.
(5) The time limitations imposed by the client or by the circumstances.
(6) The nature and length of the professional relationship with the client.
(7) The experience, reputation, and ability of the lawyer or lawyers performing the services.
(8) Whether the fee is fixed or contingent.

Applying the provisions of this rule to the facts of this case, we conclude that the fee awarded is clearly excessive because we are convinced that the fee is in excess of a reasonable fee for the amount of work reflected by this record. Therefore, it is prohibited by the Code of Professional Responsibility and cannot be upheld.

The Hardage Corporation contends that we should remand the case to the district court for a hearing to determine what would be a reasonable fee under the facts of this case. While the general rule is that the trial court is in the best position to determine what is a reasonable fee under the facts of a particular case, appellate courts can set fees when the record reflects a basis therefor. McCarthy v. Louisiana Timeshare Venture, 426 So.2d 1342 (La.App. 4th Cir.1982). See also Knighten v. Knighten, supra. Because this record reflects a basis on which we can fix a reasonable fee there is no necessity for a remand.

Our review of the record leads us to conclude that a reasonable fee for the legal services rendered in obtaining this judgment is $1500 and we amend the judgment accordingly to award attorney’s fees in that amount against The Hardage Corporation.

For the foregoing reasons, the judgment of the trial court is amended to fix the attorney’s fees awarded in favor of City Bank and Trust Company of Shreveport and against The Hardage Corporation in the amount of $1500. As amended, the judgment is otherwise affirmed.

JUDGMENT AMENDED AND AS AMENDED IS AFFIRMED.

      . In arriving at this conclusion we note the 1983 amendment to La.C.C. Art. 1935 which provides:
      The damages due for delay in the performance of an obligation to pay money are called interest. The creditor is entitled to these damages without proving any loss, and whatever loss he may have suffered he can recover no more. But where the parties, by contract in writing, have expressly agreed that the debtor shall also be liable for the creditor's attorney fees in a fixed or determinable amount, the creditor is entitled to that amount as well.
      While it is apparent that this amendment was enacted in response to the Leenerts Farms decision, it is unnecessary that we address its effect on our decision because we conclude that the amendment is substantive, therefore non retroactive and not applicable to the facts of this case.

      . We are aware that there are other defendants who are being sued in this proceeding as soli-dary obligors on this note. Because they are not before this court on appeal, this opinion of necessity is limited to the attorney’s fees awarded against The Hardage Corporation.


source: Caselaw Access Project

author: McCLENDON, Judge Pro Tem.

license: Public Domain

text:
    Frank LOPEZ et al., Plaintiffs-Appellants, v. CITY OF SHREVEPORT et al., Defendants-Appellees.
    No. 16180-CA.
    Court of Appeal of Louisiana, Second Circuit.
    April 30, 1984.
    Writ Denied June 8, 1984.
    Ronald J. Miciotto, Shreveport, for plaintiffs-appellants.
    Charles B. Peatross, City Atty. by L. Edwin Greer, Shreveport, for defendants-appellees.
    Before PRICE and JASPER E. JONES, JJ., and McCLENDON, J. Pro Tern.
   McCLENDON, Judge Pro Tem.

Plaintiffs filed suit seeking a declaratory judgment adopting their interpretation of La.R.S. 33:2473, which defines “seniority” for members of the fire and police departments. These 72 employees contend that military service should be included in calculating seniority regardless of whether it came before or after employment by one of these departments.

Made defendants were the City of Shreveport and the Municipal Fire and Police Civil Service Board.

The Professional Firefighters Association of Louisiana, AFL-CIO, intervened in this action, joining with the defendants in resisting plaintiffs’ claim.

From an adverse ruling by the trial court plaintiffs appealed.

The statute in question, which is the definition section of the Fire and Police Civil Service Law for municipalities between 13,-000 and 250,000, found in Title 33 beginning at Section 2471, reads in part as follows:

R.S. 33:2473.
The following words and phrases when used in this Part shall have the following meaning, unless the context clearly requires otherwise:
20. “Seniority” means the total employment computed for an employee beginning with the last date on which he was regularly and permanently appointed and has worked continuously to and including the date of computation. Time during which an employee has served in the armed forces of the United States subsequent to May 1, 1940, not to exceed four years, shall be construed to mean continuous service and shall be included in the computation of his seniority. Total seniority in the departmental service, including positions of any and all classes, or seniority in any one or more given classes, may be computed for an employee, but in either case employment shall be continuous and unbroken by a resignation or discharge of the respective employee. An employee who is finally discharged or resigns from his position shall forfeit all accumulated seniority. An employee who is suspended and returns to his position immediately following the expiration of his suspension shall not forfeit his seniority accumulated to the date of his suspension, but he shall not be given credit for the lost time at any future computation.

The sole question for determination is whether service in the armed forces of the United States after May 1, 1940, and before an employee became employed either as a fireman or a policeman would be included in calculating the seniority of that individual under this statute.

By pre-trial stipulation it was agreed that all petitioners in this suit are employees of the City of Shreveport; that all had served in the armed forces of the United States before their employment with the city; and that all petitioners have not received credit for military service.

It was further stipulated that the Shreveport Municipal Fire and Police Civil Service Board, on August 27, 1982, decided that military time served prior to being employed by the city would not be considered continuous service and would not be applied toward seniority.

The parties also stipulated that a letter dated March 16, 1983, from Maxie E. Cox (Exhibit C) explains how the state applies the statute in question.

The trial court found that since its enactment in 1944 this statute had been consistently construed to apply only to an employee who served in the armed forces after initial employment, and does not apply to an employee who served in the armed forces before initial employment. It further found that the meaning of the statute in question was clear in that only military service which came after an employee was “regularly and permanently appointed” could be included in computing the seniority of that employee.

We find no error in the trial court’s ruling and affirm it for the reasons stated hereafter.

When confronted with interpretation of laws, this court feels it must turn first to the basic mandates of the Louisiana Civil Code.

LSA-C.C. Article 13 reads:

When a law is clear and free from all ambiguity, the letter of it is not to be disregarded, under the pretext of pursuing its spirit.
Article 14 reads:
The words of a law are generally to be understood in their most usual signification, without attending so much to the niceties of grammar rules as to the general and popular use of the words.

Also to a similar effect are the earliest provisions of the Louisiana Revised Statutes:

LSA-R.S. 1:3
Words and phrases shall be read with their context and shall be construed according to the common and approved usage of the language ....

With these basic principles in mind, we find that the word “seniority” in R.S. 33:2473 is clearly and simply defined as the period from and after an employee’s permanent appointment during which he continues to be employed and down to the date of computation. Included in this period is any intervening military service, provided that the service took place after May 1, 1940, and limited under a 1982 amendment to a total of four years.

The key word throughout the statute, in our opinion, is “continuous”. In order to be used in calculating seniority the employment shall be “continuous and unbroken by a resignation or discharge.” If a period of military service should intervene it would be “construed to mean continuous service” and included in the computation.

Our conclusion that the statute is clear and unambiguous pretermits detailed discussion of the contemporaneous construetion method of legislative interpretation. Esso Standard Oil Co. v. Crescent River Port Pilots Assn., 235 La. 937, 106 So.2d 316 (1958) and Thompson v. East Baton Rouge Parish School Board, 303 So.2d 855 (La.App. 1st Cir.1974) do, however, support this doctrine of interpretation. Therefore, we note in passing that the contemporaneous construction placed on this statute by the appropriate administrative department is in accord with our decision.

The letter of Maxie E. Cox, State Examiner, Municipal Fire and Police Civil Service, was filed in the record in connection with the pre-trial stipulations discussed earlier. This letter indicates that R.S. 33:2473 has been consistently interpreted to include, in computing seniority, only military service which interrupted fire or police employment, not military service which came before fire or police employment.

Further, it is well established that courts should construe statutes to give them the meaning intended by the legislature and avoid absurd results. Hayes v. Orleans Parish School Board, 256 La. 677, 237 So.2d 681 (1970).

For example, under plaintiffs’ interpretation, before 1982 a career service person who had served as a Navy cook for 20 years could retire from the military, obtain employment as a policeman in Shreveport, and with minimal actual service on the force, become a ranking officer merely because of his 20 years additional “seniority”.

After the effective date of the 1982 amendment, the absurdity of this situation would not be eliminated, only reduced. That amendment limited to four years the military service which could be included in computing seniority. This court does not believe this end result is what plaintiffs actually seek.

For these reasons the trial court ruling is affirmed at appellants’ cost.


author: HALL, Judge.

text:
    NORTH CENTRAL UTILITIES, INC., Plaintiff-Appellant, v. EAST COLUMBIA WATER DISTRICT, Defendant-Appellee.
    No. 16195-CA.
    Court of Appeal of Louisiana, Second Circuit.
    April 30, 1984.

      Joe D. Guerriero, Monroe, for plaintiff-appellant.
    Cameron C. Minard, Columbia, for defendant-appellee.
    Before HALL, JASPER E. JONES and SEXTON, JJ.
   HALL, Judge.

The plaintiff, North Central Utilities, Inc., filed a petition in accordance with LSA-R.S. 9:4209 seeking to have an arbitration award in the amount of $25,061.72 in its favor against the defendant, East Columbia Water District, recognized and made the judgment of the district court. The defendant water district filed a peremptory exception of no cause and no right of action which the trial court sustained after a hearing at which evidence was taken. From a judgment dismissing its suit with prejudice at its cost, the plaintiff appealed. We reverse and remand.

The plaintiff alleged the existence of a contract between itself and the defendant and that the provisions of the contract require the parties thereto to submit all claims and disputes relating to the contract to arbitration with the American Arbitration Association. The plaintiff further alleged that in compliance with the provisions of the contract it followed the arbitration procedure provided for under the Construction Industry Arbitration Rules of the American Arbitration Association in the submission of its claim against the defendant to the arbitrator. The plaintiff also alleged compliance with arbitration rules regarding notice to the defendant and that following a hearing at which the defendant did not appear, the arbitrator made an award of $25,061.72, plus arbitration fees and expenses. The plaintiff prayed that the arbitration award be recognized and made the judgment of the court, and that the defendant be ordered to pay the amount of the award.

The evidence offered over the plaintiffs objection at the hearing on the exception related to the defendant’s contentions that it received inadequate notice of the nature of plaintiff’s claim because plaintiff refused to furnish it with any details or itemization concerning the elements of its claim, that plaintiff’s acceptance of a final settlement or payment under the contract without raising at that time the disputed claims subsequently submitted for arbitration operated as a release of the defendant from any further liability, and that plaintiff failed to comply with the Louisiana Arbitration Law by not filing suit to compel the defendant to participate in the arbitration proceedings prior to obtaining the default-type arbitration award. All of these matters are defenses to the merits of plaintiff’s suit and irrelevant for purposes of determining whether or not plaintiffs petition states a right or cause of action. The evidence should not have been allowed.

The peremptory exception of no right of action challenges the interest in the plaintiff to institute the suit. LSA-C. C.P. Art. 927. Evidence is admissible on trial of the exception of no right of action to support or controvert any of the objections pleaded, when the grounds therefor do not appear from the petition. LSA-C. C.P. Art. 931; Morton v. Washington Nat. Ins. Co., 420 So.2d 1019 (La.App. 5th Cir. 1982).

The allegations of the plaintiffs petition clearly establish that it is the proper party to assert the enforcement of the arbitration award made pursuant to a contract between the plaintiff and the defendant. The evidence produced and the arguments advanced by the defendant in support of its exception of no right of action are defenses directed to the merits of the plaintiffs claim and have no bearing on the plaintiffs right to pursue this action.

The defendant’s exception of no cause of action raises the question of whether the law affords any remedy to the plaintiff under the allegations of the petition. This exception is triable on the face of the petition and without the introduction of evidence, and for purposes of its determination, all well-pleaded facts are accepted as true and all doubts are resolved in favor of the sufficiency of the petition. Every reasonable interpretation must be accorded its language in favor of maintaining the sufficiency of the petition and affording the litigant an opportunity to present his evidence. LSA-C.C.P. Art. 931; Morton v. Washington Nat. Ins. Co., supra.

The allegations of plaintiff’s petition are clearly sufficient to state a cause of action against the defendant water district. LSA-R.S. 9:4209 specifically authorizes this action by providing that at any time within one year after an arbitration award is made, any party to the arbitration may apply to the court in and for the parish within which the award was made, for an order confirming the award. The contentions of the defendant concerning lack of notice, settlement, and the like, go to the merits of their defense that the arbitration award is not valid and enforceable and cannot be considered in determining whether the petition states a cause of action.

Defendant’s argument that plaintiff’s petition does not set forth a cause of action because plaintiff did not file a petition under LSA-R.S. 9:4203 for an order directing that arbitration proceed in accordance with the terms of the parties’ agreement, is without merit. That statute is couched in permissive terms providing that the aggrieved party “may” petition a court for such an order and does not require that such a petition be filed prior to one of the parties to the arbitration agreement proceeding with arbitration in accordance with the terms of the agreement and the procedure for arbitration established by the agreement.

For the reasons assigned, the judgment of the district court sustaining the exception of no cause and right of action is reversed and set aside, .the exception is overruled, and this action is remanded to the district court for further proceedings in accordance with law. Costs of the appeal are assessed to the defendant-appellee.

Reversed and remanded.


author: NORRIS, Judge.

text:
    STATE of Louisiana, Appellee, v. Albert Troy SEYMOUR, Appellant.
    No. 16196-KA.
    Court of Appeal of Louisiana, Second Circuit.
    April 30, 1984.
    Writ Denied June 8, 1984.

      Samuel Thomas, Tallulah, for appellant.
    William J. Guste, Jr., Atty. Gen., Baton Rouge, James D. Caldwell, Dist. Atty., Tal-lulah, for appellee.
    Before MARVIN and NORRIS, JJ., and McCLENDON, J. Pro Term
   NORRIS, Judge.

After a bench trial, Albert Troy Seymour appeals a conviction of second degree murder in violation of La.R.S. 14:30.1 assigning two errors:

(1) ... that the trial court committed error when Judge Adams found the defendant guilty of second degree murder when he pled not guilty and not guilty by reason of insanity; [and]
(2) ... that the trial court committed error when Judge Adams allowed inculpa-tory statements where the defendant did not receive a[n] [La.C.Cr.P. Art.] 768 notice.

FACTS

About 1:30 p.m. on September 15, 1982, defendant went to the home of his brother-in-law where his estranged wife, Freda Seymour, resided, to visit with his two minor children. When defendant arrived, Mrs. Seymour’s brother left to go to town. Thereafter, Annette Fondren, Mrs. Seymour’s oldest child [who was not a child of the marriage between defendant and Mrs. Seymour] went into the trailer to make sandwiches. While she was in the trailer, she heard several shots. From the window, she observed defendant leaving with her two younger brothers. After seeing that her mother had been injured, Annette called the daughter of the owner of the farm on which the trailer was located who in turn contacted the authorities. Upon arriving on the scene, officers found the body of Mrs. Seymour on the steps outside the trailer with four bullet wounds on the left side of her head.

After leaving the scene, the defendant took his two children to the home of his parents where his brother and sister-in-law were visiting. He related to them that he had shot his wife and asked that they drive him to the police station where he was arrested and charged with second degree murder.

On September 22, 1982, after appearing before the grand jury, the defendant was indicted for second degree murder. After his grand jury appearance, the defendant in the presence of retained counsel gave a statement in which he stated that he had been having difficulties with his wife over visiting with his children and that because he could take the situation no longer he had shot her. However, he also stated that he had no conscious recollection of the actual shooting itself but assumed that he must have shot her because he was the only person there.

On October 5, 1982, the defense moved for the appointment of a sanity commission to determine the capacity of the defendant to stand trial. The commission’s opinion was that because of the defendant’s severe depression he lacked the capacity to understand the proceedings and to assist in his defense. The trial court ordered that the defendant be temporarily committed to the Feliciana Forensic Facility for evaluation, treatment and management. After the completion of this evaluation, the defendant was to be returned for a further determination of the defendant’s mental capacity to proceed.

The defendant remained committed under this order for ten months during which it was concluded that the defendant was suffering from recurrent depression which had gone into remission thereby making him competent to stand trial. It was the opinion of his treating physician and psychologist that the defendant was in fact malingering and aware of the criminal charges pending against him. It was their further opinion that the defendant’s claim of amnesia could not be determined accurately because of their opinion that the defendant could be dishonestly withholding information as to his actual recall of the events. Thus, it was recommended that the defendant be returned for trial.

The previously appointed members of the sanity commission again examined the defendant and opined that the defendant was capable of assisting in the preparation of his defense, understood the nature of the charges and the proceedings and was competent to stand trial. The trial court so found. At arraignment, the defendant pled not guilty and not guilty by reason of insanity and waived his right to a jury trial. Defendant was tried, convicted and sentenced to the compulsory sentence of life imprisonment without benefit of parole, probation or suspension of sentence.

ASSIGNMENT OF ERROR NO. 1

Defendant argues that the evidence adduced at trial clearly established that the defendant was insane at the time of the commission of the offense. We disagree and find in fact that the evidence preponderated that the defendant was legally competent at the time of the commission of the offense.

In Louisiana, an adult defendant is presumed to be sane and responsible for his actions. La.R.S. 15:432; State v. David, 425 So.2d 1241 (La.1983). However, a defendant may rebut this presumption by showing by a preponderance of the evidence that he suffers from a mental disease or defect which renders him incapable of distinguishing right from wrong with reference to his conduct in question. State v. David, supra; State v. Roy, 395 So.2d 664 (La.1981); La.C.Cr.P. Art. 652; La.R.S. 14:14. Our relevant inquiry on appeal is whether the defendant adduced evidence of his insanity at the time of the offense such that any rational trier of fact could have concluded that he carried the burden of proving his insanity by a preponderance of the evidence. State v. Brogdon, 426 So.2d 158 (La.1983); State v. Roy, supra. Accordingly, the trial court’s finding that the defendant was sane can only be reversed if it is found that “under the facts and circumstances of the case, that a rational fact finder, viewing the evidence in the light most favorable to the prosecution, could not have concluded that the defendant had failed to prove by a preponderance of the evidence that he was insane at the time of the offense.” State v. Roy, supra; State v. David, supra.

Two physicians and one psychologist testified on behalf of the defense at trial. It was the opinion of each of these witnesses that the defendant knew right from wrong at the time of the offense. There was no evidence that the defendant was psychotic at any point but all of the findings indicated that he was chronically depressed. Given these circumstances, the trial judge was correct in rejecting the not guilty and not guilty by reason of insanity verdict because the defendant failed to prove his insanity by the required preponderance of the evidence. State v. David, supra; State v. Roy, supra.

This assignment of error is without merit.

ASSIGNMENT OF ERROR NO. 2

Defendant next argues that the trial court erred in allowing into evidence an oral statement made by defendant to Mrs. Elizabeth Seymour without the required notice under La.C.Cr.P. Art. 768. The statement complained of is as follows: “He [defendant] asked that the Bedgoods not have his kids.” This statement was made at the time that the defendant admitted to shooting his wife and asked that Mrs. Seymour and her husband take him to the police station.

La.C.Cr.P. Art. 768 provides:

Unless the defendant has been granted pretrial discovery, if the state intends to introduce a confession or inculpatory statement in evidence, it shall so advise the defendant in writing prior to beginning the state’s opening statement. It if fails to do so a confession or inculpatory statement shall not be admissible in evidence.

Defendant’s argument incorrectly assumes that this statement in and of itself is inculpatory. 'All statements which may be damaging in nature at trial are not inculpatory. State v. Bodley, 394 So.2d 584 (La.1981). As contemplated by Article 768, an “inculpatory statement” refers to an out of court admission of incriminating facts made by the defendant after the crime has been admitted. An incriminating statement is one which admits a fact tending to establish guilt, or from which guilt may be inferred. State v. Bodley, supra. Applying these definitions to the statement complained of, it is clear that the statement is not inculpatory. It does not establish any element of the crime of murder and was not in and of itself damaging to the defense. At best, it was a statement which would come under the purview of La.C. Cr.P. Art. 716 rather than Article 768. Because no motion for discovery was filed on behalf of the defendant, he was not entitled to any notice.

This assignment of error is without merit.

Por the foregoing reasons, the defendant’s conviction and sentence are affirmed.

CONVICTION AND SENTENCE AFFIRMED.


author: PRICE, Judge.

text:
    Betty Lois DeVille CREECH, Plaintiff-Appellant, v. Graham (Snookie) CREECH, Defendant-Appellee.
    No. 16233-CA.
    Court of Appeal of Louisiana, Second Circuit.
    April 30, 1984.

      Herman L. Lawson, Mansfield, for plaintiff-appellant.
    Colvin, Hunter, Brown, Plummer & Means by Robert E. Burgess, Mansfield, for defendant-appellee.
    Before PRICE, SEXTON and NORRIS, JJ.
   PRICE, Judge.

This is a suit for separation. The wife appeals the trial court judgment of separation in favor of the husband on grounds of abandonment and reduction of alimony pen-dente lite from $750 to $600 per month. The central issue is whether the wife presented sufficient evidence to prove cruel treatment and habitual intemperance on the part of the husband sufficient to constitute grounds for separation.

The wife filed suit for separation and alimony pendente lite, alleging cruel treatment, both physical and mental, and habitual intemperance on the part of her husband. The husband answered the petition and filed a reconventional demand seeking a separation on the basis of the abandonment and cruel treatment of his wife. A consent judgment was subsequently rendered in connection with the alimony pen-dente lite claim condemning the husband to pay $750 a month. The husband later filed a motion to reduce alimony which was referred to the merits. Trial on both the separation and the alimony rule was held July 27, 1983, and judgment awarding the the husband a separation based on abandonment and reducing the amount of alimony to $600 was subsequently rendered. The wife appeals that judgment contending that the trial court erred in finding that she abandoned the husband without lawful cause and was therefore at fault in the breakup of the marriage, and in reducing alimony pendente lite from $750 per month to $600 per month.

The evidence introduced by the wife to prove her allegations of cruel treatment and habitual intemperance on the part of her husband consisted primarily of her own testimony. She testified with regard to three or four occasions on which her husband had lost his temper and cursed her, and stated that he had also threatened her with a firearm and butcher knife on at least two of these occasions. She testified she thought he was intoxicated a couple of times. Two of her friends testified to having seen red marks on her arms which she had attributed to her husband’s violence. As for the habitual intemperance claim, Mrs. Creech testified her husband did not drink more than one or two beers in her presence, but had appeared to be intoxicated when he arrived home on approximately five occasions.

The husband categorically denied all the claims of his wife, testifying he seldom drank more than one or two beers. The couple's daughter and son-in-law live just across the road from the former family home and saw the Creeches very frequently. They testified they had never seen Mr. Creech drink more than two or three beers at a time and had never known him to be intoxicated. Neither of the wife’s witnesses testified to having ever seen Mr. Creech intoxicated.

The general rule is that a plaintiff bears the burden of furnishing the court with proof sufficient to support his demands by a reasonable preponderance of the evidence. Johnson v. Johnson, 296 So.2d 470 (La.App. 2d Cir.1974), writ denied 300 So.2d 183 (La.1974). Furthermore, in the area of domestic relations, much discretion must be vested in the trial judge, particularly in evaluating the weight of the evidence, which is to be resolved primarily on the basis of the credibility of witnesses. The trial judge, having observed the demeanor of the witnesses, is in the better position to rule on their credibility. Pearce v. Pearce, 348 So.2d 75 (La.1977). Thus the factual findings of the trial court are to be accorded great weight on review and will not be disturbed unless the record, shows they are clearly wrong. Arceneaux v. Domingue, 365 So.2d 1330 (La.1978).

In Johnson v. Johnson, supra, this court held that mere uncorroborated testimony of one spouse contradicted by the other does not constitute a preponderance of the evidence required to justify a judgment of separation from bed and board or divorce. Moreover, habitual intemperance is not established by proof of intoxication on two or three occasions. Rittiner v. Sinclair, 374 So.2d 680 (La.App. 4th Cir.1978).

In the instant case, the allegations by the wife, which are denied by the husband, are unsubstantiated. Under these circumstances, the trial court was not clearly wrong in dismissing the plaintiff’s claim for separation from bed and board.

On the rule to reduce alimony, the evidence shows that the husband has three sources of income. He is employed as a pumper by G & D Oilwell Servicing Company and as a schoolbus driver for the DeSo-to Parish School Board. His third source of income is comprised of royalty payments on certain mineral interests. Part of these payments are community property and part are the husband’s separate property.

A reduction of alimony is warranted when the person who gives or receives alimony is replaced in such a situation that the one can no longer give, or that the other is no longer in need of it. La. C.C. Art. 232. To obtain a reduction in alimony, the party seeking it bears the burden of showing a change in the circumstances of one or both of the parties between the time of the previous judgment and the time of the rule for modification of that judgment. Sonfield v. Deluca, 385 So.2d 232 (La.1980); Whatley v. Whatley, 430 So.2d 129 (La.App. 2d Cir.1983). It is well established that a consent judgment of alimony is not subject to modification unless a change of circumstances supporting the modification is proved. Bernhardt v. Bernhardt, 283 So.2d 226 (La.1973); Howell v. Howell, 391 So.2d 1304 (La.App. 4th Cir.1980).

The husband testified that his employment income was exactly the same at the time of the rule to reduce as it was at the time of the consent judgment. The only change asserted was a change in the amount of royalties received from his separate mineral interests. However, he did not know how much he had received in May 1983 when he consented to pay $750 a month. The sole evidence introduced on this issue was Mr. Creech’s testimony that the royalties have “gone down.” Since the record does not indicate the total financial criteria upon which the consent award was based, this court cannot make a proper assessment of the reduction of alimony. See Whatley v. Whatley, supra. The husband has therefore failed to show justification for modifying the previous judgment, and it is this court’s finding that the trial court erred in reducing the amount of alimony. This portion of the trial court judgment will therefore be reversed and the original amount of $750 a month will be reinstated.

For the reasons assigned the judgment appealed is affirmed in part and reversed in part, and petitioner-in-rule, Graham Creech, is ordered to continue to pay the sum of $750 (Seven Hundred and Fifty Dollars) per month alimony pendente lite for the support of Betty Lois DeVille Creech.

AFFIRMED IN PART, REVERSED IN PART, and RENDERED.


text:
    Lassiter A. MASON, Jr., et ux., Plaintiffs-Appellees, v. David Arthur COEN, Defendant-Appellant.
    No. 16235-CA.
    Court of Appeal of Louisiana, Second Circuit.
    April 30, 1984.

      Donald R. Miller, Shreveport, for defendant-appellant.
    Love, Rigby, Dehan, Love & McDaniel by J. Philip Goode, Jr., Shreveport, for plaintiffs-appellees.
    Before PRICE and HALL, JJ., and McCLENDON, Judge Pro Tern.
   HALL, Judge.

This suit arises out of an agreement between the parties whereby the Masons agreed to sell a residence to Coen and to lease the residence to Coen for one year pending closing of the sale. When Coen failed to pay the monthly rent due under the lease, the Masons filed suit for eviction, past due rent and attorney fees. By supplemental petition the Masons prayed for judgment terminating Coen’s rights under the contract. Coen reconvened, alleging breach of contract and seeking recision of the agreement, return of a $4,500 part payment made by him, and damages.

After trial, the district court found that the contract to sell and lease was breached by Coen’s failure to pay the stipulated rent and his failure to close the sale as provided in the agreement, and that under the terms of the agreement Coen was not entitled to return of the $4,500 paid. The court further held that the Masons were entitled to recover $2,226.68 for past due rent, $1,808.25 for lost profits occasioned by Coen’s failure to consummate the purchase of the property, and $2,000 attorney fees. Coen’s demands were rejected. From a judgment rendered in accordance with the court’s findings, Coen appealed.

On appeal, Coen contends the trial court erred in not ordering return of the $4,500 deposit, in not awarding damages for expenses incurred by Coen in improving the property, in not awarding attorney fees to Coen, and in awarding the Masons damages and attorney fees. Coen argues that the agreement was first breached by the Masons in filing a previous eviction suit when Coen deducted one-half of the cost of a plumbing bill from a rent check, that the $4,500 deposit should have been placed in escrow by Mrs. Mason, a licensed real estate agent, that the Masons refused to close the sale, that the $4,500 deposit more than covered the rent due under the lease, and that, in any event, the Masons are not entitled to recover rent and damages in addition to the $4,500 paid and forfeited.

Finding merit in the contention that the Masons are not entitled to recover rent and damages in addition to the amount paid to them, we amend the judgment to delete the awards for rent and lost profits, and otherwise affirm.

On January 6, 1982, the Masons and Coen entered into a purchase agreement whereby the Masons agreed to sell and Coen agreed to buy a residence located at 4015 Akard Street in Shreveport. The purchase price of the property was $67,000. The terms of sale set forth in the purchase agreement were a $10,000 cash payment and the assumption of an existing VA mortgage. In connection with the execution of the purchase agreement, Coen deposited $500 as a prepayment of real estate commission to be deducted from the sale price at the time of closing. The purchase agreement provided that the balance of the $10,000 cash was to be paid in two installments, $4,000 on February 19, 1982, and the remainder, $5,500, at the end of the one-year lease executed in connection with the purchase agreement. The sale was to be closed on or before March 1, 1988.

A lease was also entered into which provided for a one-year term commencing on February 1, 1982, and a monthly rental of $631.67.

The purchase agreement provides that “(i)n the event of non performance by either party, the other shall have the right to specific performance and/or damages and reasonable attorney fees.” The lease provides that “(a)ny rent payment over five days late shall void entire lease/purchase agreement and all funds collected from buyer will be non-refundable and contract will be null and void." Although the purchase agreement and the lease are two separate documents, they contain several cross-references to each other and it is obvious the parties intended these documents to be considered as one agreement or contract.

Coen took possession of the premises in accordance with the lease and made the $4,000 installment on the purchase price on March 1, 1982. The Masons paid $2,000 to the two real estate firms as part payment of their commission and retained $2,000. Thereafter, Coen’s possession of the prem-' ises was uneventful until November 1982 when a dispute between the parties arose as a result of a plumbing bill incurred by Coen. The defendant attempted to deduct one-half of the plumbing bill from his November rent payment. This action was not acceptable to the plaintiffs and an eviction suit was filed. However, the matter was resolved when Coen paid the full amount of the November rent and he continued in possession of the premises.

The next month the defendant failed to pay his rent on time, although a $300 partial payment was made in the latter part of the month. The balance of the December 1982 rent, as well as the rent for January 1983, was not paid. On January 14, 1983, the present suit for eviction and past due rent was filed by the Masons against Coen. On March 1, 1983, in accordance with the purchase agreement, the Masons scheduled a meeting to close the sale of the residence but Coen did not attend. On March 9, a judgment of eviction was rendered and Coen vacated the premises.

The factual issues were correctly resolved by the trial court. There was no breach of the contract by the Masons. The matter of the plumbing bill was resolved. The Masons never refused to consummate the sale. Coen failed to pay the rent due and refused to complete the sale.

There was no obligation on the part of the Masons to escrow the $4,500 part payment. The contract did not provide for the money to be escrowed. The contract called for the money to be paid to the Masons as sellers. Although the real estate broker for whom Mrs. Mason worked cooperated with another realtor on the sale, there was no obligation on the part of her or her firm to hold the money in escrow. LSA-R.S. 37:1455, subd. A(3) and (4), cited by Coen, is not applicable.

The contract between the parties is inartistically drawn but is subject to reasonable construction and interpretation. It is a conjunctive contract to sell immovable property and of lease. LSA-C.C. Arts. 2062, 2063. It contains two primary obligations on the part of the buyer-lessee, the payment of rent and the purchase of the property.

The $4,500 part payment is not earnest money because the contract provides for a right of specific performance in the event of default, and with respect to the $500 initially paid the contract expressly provides that it is not to be considered as earnest money. LSA-C.C. Art. 2463; Ducuy v. Falgoust, 228 La. 533, 83 So.2d 118 (1955); Crow v. Monsell, 200 So.2d 700 (La.App. 2d Cir.1967).

The contract does, however, provide that in the event of a default in the payment of rent the entire lease/purchase agreement is to be null and void and all sums paid, which would include rent and the $4,500 part payment, are nonrefundable, that is, shall be forfeited. This provision is a penal clause, governed by LSA-C.C. Arts. 2117, et seq. See Richmond v. Krushevski, 243 La. 777, 147 So.2d 212 (1962).

A penal clause is a secondary obligation, entered into for the purpose of enforcing the performance of a primary obligation. LSA-C.C. Art. 2117. A penal obligation necessarily supposes two distinct contracts, one to do or to give that which is the principal object of the contract, the other to give or do something, if the principal object of the agreement be not carried into effect. LSA-C.C. Art. 2118. The creditor, instead of exacting the penalty stipulated from the debtor who is in default, may sue for the execution of the principal obligation. LSA-C.C. Art. 2124. The penal clause is the compensation for the damages which the creditor sustains by the non-execution of the principal obligation. He can not demand the principal and the penalty together, unless the latter be stipulated for the mere delay. LSA-C.C. Art. 2125.

A penal clause is designed to both fix the damages caused by nonperformance of the principal obligation and act as a constraint to encourage performance of that obligation. However, in no way may the penal clause serve as a vehicle to recover punitive, as opposed to compensatory, damages. Heeb v. Codifer & Bonnabel, Inc., 162 La. 139, 110 So. 178 (1926); Thompson v. Bullock, 236 So.2d 892 (La. App. 3d Cir.1970); Rainey v. McCrocklin, 185 So. 705 (La.App.Orl.1939); Chauvin v. Theriot, 180 So. 847 (La.App. 1st Cir.1938); 43 La.L.Rev. 1315 at 1416.

A penal clause is regarded as a stipulation of liquidated damages. Pennington v. Drews, 218 La. 258, 49 So.2d 5 (1950); Burris v. Gay, 324 So.2d 11 (La. App. 2d Cir.1975). Where the parties, by their contract, have determined the sum that shall be paid as damages for its breach, the creditor must recover that sum, but is not entitled to more. LSA-C.C. Art. 1934(5).

The penal clause in this contract was designed and intended by the parties to secure performance of both principal contractual obligations, payment of rent and purchase of the property. It was reasonable in amount as relates to contemplated damages and to proven actual damages, and should be enforced. The buyer-lessee is not entitled to return of the payments made.

The seller-lessor cannot, however, recover the principal obligations secured by the penal clause in addition to the stipulated penalty. Recovery of the $2,226.68 awarded by the trial court for accrued rent in addition to the penalty amount would allow the creditor to enforce one of the principal obligations of the contract together with the secondary penal clause, contrary to the provisions of LSA-C.C. Art. 2125.

Concerning the award for profits in the amount of $1,808.25 lost when the sale failed to materialize, we note first that the Masons’ pleadings do not allege or pray for recovery of that item of special damages. When items of special damage are claimed, they shall be specifically alleged. LSA-C.C.P. Art. 861. Even if the claim for lost profits was properly before the court for consideration, it should have been disallowed because profit from the sale was also one of the objects of the buyer’s principal obligation to purchase, and is not recoverable in addition to the stipulated penalty.

The contract specifically provides for attorney fees in the event of nonperformance of the contract and in the event it should become necessary to retain an attorney to enforce performance of any obligation thereunder, and the $2,000 awarded to the Masons by the trial court is proper and reasonable. The Masons are not entitled to additional attorney fees for services rendered on appeal, as claimed in the brief filed on their behalf, because they neither appealed nor answered the appeal.

For the reasons assigned, the judgment of the district court is amended to delete the awards to the Masons of the accrued rent and lost profits. The judgment in favor of the Masons against Coen is reduced from the sum of $6,034.93 to the sum of $2,000. As so reduced and amended, the judgment is in all other respects affirmed. Costs of the appeal are assessed to Coen.

Amended and affirmed.


author: SULLIVAN, Justice,

text:
    C. Arthur McINTOSH v. MISSISSIPPI STATE BAR.
    Misc. No. 166.
    Supreme Court of Mississippi.
    May 2, 1984.
    Grady F. Tollison, Jr., Tollison & Alexander, Omar D. Craig, Oxford, Murray L. Williams, Water Valley, William J. Gunn, Williams, Gunn & Crenshaw, Meridian, William B. Alexander, Jr., Alexander, Johnston & Alexander, Cleveland, T.H. Freeland, III, Freeland & Gafford, Oxford, Semmes Luckett, Clarksdale, for appellant.
    Andrew J. Kilpatrick, Jr., Jackson, for appellee.
   SULLIVAN, Justice,

for the Court:

On September 10, 1980, Petitioner McIntosh was convicted in the United States District Court for the Northern District of Mississippi for violating Section 1001 of Title 18, of the United States Code, which pertains to the filing of false information before the United States Government.

On October 20, 1980, a formal complaint seeking disbarment was filed pursuant to Mississippi Code Annotated § 73-3-339 (Supp.1980), and assigned Confidential Mise. No. 75.

On December 3, 1980, a second formal complaint was filed against the petitioner, alleging that he was guilty of unprofessional or-unethical conduct in his representation of Annie C. Rippie. This complaint was assigned Confidential Mise. No. 77.

We consolidated Confidential Mise. Nos. 75 and 77 for consideration. Petitioner McIntosh filed an entry of appearance and plea of nolo contendere to the allegations in Confidential Mise. Nos. 75 and 77 and a consent order of disbarment was signed by the Chief Justice on March 12, 1982.

On February 27, 1984, Petitioner McIntosh filed his petition for reinstatement and the State Bar of Mississippi responded by filing a Motion to Dismiss the Petition on March 1, 1984. Petitioner McIntosh has filed a response to the motion of the respondent Bar. It is the position of McIntosh that Rule 12 of the Rules of Discipline of the Mississippi State Bar was only adopted on September 7, 1983, and that as the suspension and disbarment of McIntosh predates the adoption of the Rule and as the Rule has no retroactive provision that it is inapplicable and would only extend to matters originating after January 1, 1984, the effective date of the said rules. McIntosh further contends that all other requirements for reinstatement have been met.

It is admitted that the petition for reinstatement was filed less than three years following the order of March 12, 1982, but argued that the three year period should run from and after November 25, 1980, which was the date of the initial order of the Mississippi Supreme Court which suspended petitioner from the practice of law and struck his name from the rolls of the Mississippi State Bar. This order of November 25, 1980, was entered pursuant to Mississippi Code Annotated § 73-3-339 (Supp.1980). The only issue before the Court on the motion to dismiss is whether or not § 73-3-337 which controlled such matters at the time petitioner was disbarred is any different in its effect from present Rule 12.

We find that it is not. We further find that under the statute the attorney may petition the Court for reinstatement at any time after the expiration of three years from and after the date of the final judgment of disbarment. The final date of disbarment in this cause was March 12, 1982. That is the date from which the three-year period begins to run. This is not only in keeping with our holding in Mississippi State Bar v. Phillips, 385 So.2d 943 (Miss.1980), but with common sense. The time begins to run from the order of disbarment and there is no “relation back”.

We further note that a petition for reinstatement whether brought under Rule 12 or § 73-3-337 must strictly conform to the specific requirements either of the statute, if brought thereunder, or Rule 12.

As this petition was brought less than three years from March 12, 1982, it is premature and it must be dismissed, but it is dismissed without prejudice.

DISMISSED WITHOUT PREJUDICE.

PATTERSON, C.J., WALKER and ROY NOBLE LEE, P.JJ., and BOWLING, HAWKINS, DAN M. LEE, and PRATHER, JJ., concur.

ROBERTSON, J., not participating.


author: PATTERSON, Chief Justice,

text:
    Tommie Lee FORD v. LAMAR LIFE INSURANCE COMPANY.
    No. 54163.
    Supreme Court of Mississippi.
    May 2, 1984.
    Ben M. Caldwell, Caldwell & Lewis, Marks, for appellant.
    Clifford K. Bailey, III, Wells, Wells, Marble & Hurst, Jackson, for appellee.
    Before PATTERSON, C.J., and PRATHER and ROBERTSON, JJ.
   PATTERSON, Chief Justice,

for the Court:

Tommie Lee Ford filed a bill of complaint against the Lamar Life Insurance Company, in the Chancery Court of Quitman County on December 28, 1981. She sought $100,000.00 in benefits pursuant to an alleged policy of insurance on the life of her husband, John B. Ford. Lamar Life interposed a general demurrer to the bill of complaint which was sustained and the complainant declining to plead further, the cause was dismissed with prejudice. Aggrieved, Mrs. Ford appeals to this Court.

She assigns as error the action of the trial court in sustaining appellee’s demurrer and dismissing her bill of complaint. Therefore, the only facts before the trial court or this Court are those which were well pled in the bill of complaint.

The appellant alleged that W.D. Gooch, an agent of Lamar Life Insurance Company, contacted John B. Ford, her husband, with reference to a $100,000 life insurance policy. Thereafter, May 18, 1981, Ford completed one of the appellee’s applications wherein Tommie Lee Ford, the complainant, was named the primary beneficiary. This application and a check for $2,512.00 which had been received from John B. Ford as the first annual premium payment was forwarded to the home company. At the time the application was completed and signed by Ford and the payment received by Gooch, Ford was issued a conditional receipt. In addition Lamar Life required a medical examination of the applicant and such was conducted by Dr. M.B. Lynch on May 21, 1981.

On June 2, 1981, John B. Ford, the applicant, was killed in an automobile accident. At the time of his- death no policy had been issued on his life by Lamar Life Insurance Company.

Thereafter the complainant filed her claim for benefits for which her husband had made application and paid the first annual premium. The claim was denied by Lamar Life and the amount paid for the premium, plus interest, was tendered to the appellant. This suit followed.

The complainant alleged the conditional receipt issued by Lamar Life to John B. Ford at the time he made application for a life insurance policy and paid the first annual insurance premium therefor was to be in full force and effect on the date of the medical examination, May 21, 1981. It is then alleged that a temporary contract of insurance was created when the defendant accepted the applicant’s premium payment and issued its conditional receipt. It is next asserted this temporary contract imposed liability upon the defendant for the sum of the insurance applied for until the defendant either accepted or rejected the application. There follows an averment that since the policy was not rejected during Ford’s life time, the temporary contract was in force and payable at the time of his death on June 2, 1981.

It is next alleged (or concluded) that had the defendant not intended there be insurance during the pendency of the application and medical examination, there would have been no reason for Ford to pay the premium as the company would receive it without assuming any obligation or risk and such would be inequitable and against public policy.

The issues presented embrace the language of the application signed by Ford and the conditional receipt issued by Lamar Life upon receipt of the application and the premium payment. The application in pertinent part follows:

(APPLICATION)
REPRESENTATION AND AGREEMENT: The undersigned represent and agree: 1. * -* * 2. No insurance shall be in force (except as may be provided in a Conditional Receipt bearing the same number as this application) until the policy has been delivered during the lifetime of persons proposed for insurance (subsequent to the payment of the full first premium), and at which time the Proposed Insured and Owner have no knowledge of any facts regarding any persons proposed for insurance which would require different answers to the questions contained in this application; whereupon, the policy will be effective as of its date of issue.

The language of the application appears to us to be without ambiguity. It states in no uncertain terms that no insurance shall be in force until the policy has been delivered during the lifetime of the persons proposed for insurance. Written into this statement in similar clear language is an exception that may come into being by the terms of the conditional receipt. This, of course, moves our attention to the conditional receipt because it has the potential of changing the effective date of the policy from the time of its delivery to a different time as provided by the conditional receipt.

It follows, in pertinent part:

(CONDITIONAL RECEIPT)
THIS RECEIPT DOES NOT PROVIDE ANY INSURANCE UNTIL AFTER ITS CONDITIONS ARE MET. NO AGENT HAS ANY AUTHORITY TO WAIVE OR ALTER THE PROVISIONS OF THIS RECEIPT.
!fc * ⅝ * * *
EFFECTIVE DATE IF INSURABLE AS APPLIED FOR
If the Company finds to its satisfaction that all persons proposed for insurance were insurable as standard risks on the effective date under the Company’s rules for insurance on the plan and for the amount applied for, the insurance shall be in effect on the latest of the following dates:
1. The date, if any, requested in the application.
2. The date of the last medical exam required by the Company.
3. The date of the application.
% ⅝ ⅜ %
NO LIABILITY WHERE THE COMPANY DECLINES — If the Company declines to issue the insurance as applied for, the Company shall have incurred no liability whatsoever because of the payment acknowledged by this receipt and this payment will be refunded.
⅝ ⅜ ⅝ * ⅜ ⅝

As mentioned, this cause was tried on a bill of complaint and demurrer. A perusal of the bill of complaint does not disclose any allegation as such that Ford was insurable as a standard risk on the effective date under the company’s rules for insurance. From this the defendant contends the conditional receipt was not effectual to displace the effective date, delivered during the life time of the person proposed for insurance, in the application. Conceding the accuracy of the defendant’s statement, we nevertheless find the argument to be unconvincing, because there is attached to the bill of complaint as Exhibit “D” the medical report of Dr. Lynch giving the result of his physical examination of Ford, the applicant. In it Dr. Lynch answered the following question, “Are you aware of anything about the health, habits, environment, or mode of life which might unfavorably affect the insurability of proposed insured?”, in the negative. In our opinion the doctor’s answer is the equivalent or approximates an allegation that Ford was insurable as a standard risk. Surely it gives no indication the risk was sub-standard thereby requiring, we suppose, a higher premium. We think also that the application, the premium payment, the conditional receipt plus the favorable report of the doctor would reasonably engender in a layman’s mind that he was then insurable as a standard risk and that the effective date of the policy was the date of the last medical examination as set forth in the conditional receipt.

In addition to the above Exhibit “D” discloses the results of a urinalysis test. In part, it reflects the following question and the doctor’s response, “Sugar? 3 + ”. It indicates also that a specimen had been mailed to a laboratory, obviously for further study. Again we think it highly improbable that the applicant would understand or appreciate the technical meaning of the elevated sugar count. Particularly would this be true if he were also unacquainted, as he probably was, with the interplay between the elevated sugar count and, “the company’s rules for insurance on the plan and for the amount applied for,” as it effected his insurability.

We are of the opinion, that neither the application nor the conditional receipt either singularly or in combination is ambiguous, but we are convinced the unambiguous language of the conditional receipt creates a factual issue or issues not susceptible of resolution by a demurrer. The issue of whether the applicant was a standard insurable risk cannot be determined from the pleadings before us, the same as before the trial court, because the significance of the elevated sugar count is not related in the pleadings and neither are the company’s rules by which the issue must be resolved so that the effective date of the policy might be determined. We are of the opinion the trial court erred in sustaining the demurrer and not granting a trial on the merits.

In reaching the above conclusion we do no violence to Jacobs v. New York Life Ins. Co., 71 Miss. 658, 15 So. 639 (1894); Cauthen v. National Bankers Life Insurance Co., 228 Miss. 411, 88 So.2d 103 (1956); Life & Casualty Co. of Tenn. v. Harvison, 187 So.2d 847 (Miss.1966); or Franklin Life Insurance Company v. Hamilton, 335 So.2d 119 (Miss.1976). If anything, we uphold them, because the premise throughout is that the contract measures the rights of the parties. Here the contract, as expressed in the receipt, poses an equation, a complex of various factors, that, in our opinion, can only be resolved by a hearing on the merits.

REVERSED AND REMANDED.

WALKER and ROY NOBLE LEE, P.JJ., and BOWLING,' HAWKINS, DAN M. LEE, PRATHER, ROBERTSON and SULLIVAN, JJ., concur.


author: DAN M. LEE, Justice,

text:
    Edward Earl JOHNSON v. Morris THIGPEN, Commissioner, Mississippi Department of Corrections; Eddie Lucas, Warden, Mississippi State Penitentiary; T.B. Bruce, State Executioner; and State of Mississippi.
    No. 53017.
    Supreme Court of Mississippi.
    May 2, 1984.

      Barry Powell, Gilbert &■ Powell, Jackson, for appellant.
    Edwin Lloyd Pittman, Atty. Gen. by William S. Boyd, III, Sp. Asst. Atty. Gen., Jackson, for appellees.
   ON APPLICATION FOR LEAVE TO FILE PETITION FOR WRIT OF ERROR CORAM NOBIS

En Banc.

DAN M. LEE, Justice,

for the Court:

This case is being heard on the petitioner’s application for leave to file a writ of error coram nobis. Petitioner Johnson was found guilty of the June 2, 1979 capital murder of Town Marshal J.T. Trest. Following his conviction he was sentenced to death by a jury which found that his crime was aggravated by the following circumstances: (1) That the offense was committed while the defendant was in flight, after committing the crime of burglary or attempting to commit the crime of rape; and (2) the offense was especially heinous, atrocious or cruel. Johnson subsequently appealed to this Court which affirmed both his conviction and sentence in an opinion recorded at 416 So.2d 383 (Miss.1982). Johnson’s petition for rehearing was subsequently denied on June 30, 1982.

In his instant petition Johnson assigns five points which he asserts require that we order that he be granted a new trial. We disagree. Each of Johnson’s contentions is addressed below.

THE MISSISSIPPI DEATH PENALTY SCHEME IS UNCONSTITUTIONAL ON ITS FACE BECAUSE FELONY MURDER IS PUNISHABLE BY DEATH AND PREMEDITATED MURDER IS NOT.

Johnson has no standing whatsoever to make this assertion as he was not found guilty of felony murder. Johnson was indicted under § 97-3-19(2)(a) Mississippi Code Ann. (Supp.1981). That provision of this state’s laws makes it a capital crime to murder a peace officer who is acting in his official capacity. The felony murder provision is § 97-3-19(2)(e). Therefore, Johnson has no standing to argue the unconstitutionality of the felony murder provision as he was never charged with that crime.

LACK OF PRIOR NOTICE OF AGGRAVATING CIRCUMSTANCES.

This point was not raised on direct appeal but was objected to at trial when the state sought instructions on aggravating circumstances. The failure to raise this issue on direct appeal bars Johnson from raising it now. In Re: Evans, 441 So.2d 520 (Miss.1983); Smith v. State, 434 So.2d 212 (Miss.1983).

THE FAILURE TO ORDER A PRESENTENCE REPORT.

Section 47-7-9(3)(a) reads as follows:

(3)(a) Separate division personnel (hereinafter presentence investigators) shall be provided to perforin investigation for the court as provided in this subsection. Presentence investigators shall conduct presentence investigations on all persons convicted of a felony in any circuit court of the state, prior to sentencing and at the request of the circuit court judge of the court of conviction. The presentence evaluation report shall consist of a complete record of the offender’s criminal history, educational level, employment history, psychological condition and such other information as the department or judge may deem necessary.

The language of the above quoted statute makes it clear that a presentence report is required only where the circuit judge requests it. In Coleman v. State, 378 So.2d 640 (Miss.1979), we held that under this statute the presentence investigation is discretionary with the circuit court judge and not mandatory. Also, in a capital case the jury imposes the sentence and both the state and the defendant are entitled to present evidence. Therefore, there is no reason to order such a report. Finally, we note that this claim is proeedurally barred because it was not raised on direct appeal. In Re: Evans, supra; Smith v. State, supra.

THE FAILURE TO EXPLAIN THE TERMS ESPECIALLY HEINOUS, ATROCIOUS OR CRUEL.

Johnson did not request an instruction defining these terms. This failure and the subsequent failure to raise this point on direct appeal renders this point procedurally barred. In Re: Evans, supra; Smith v. State, supra. Regardless, we have addressed this assertion numerous times already and found it without merit. Washington v. State, 361 So.2d 61 (Miss.1978); Coleman v. State, 378 So.2d 640 (Miss.1979).

IS THE DEATH PENALTY ARBITRARILY AND INDISCRIMINATORILY APPLIED IN MISSISSIPPI?

This point was not raised at trial or on direct appeal and is therefore procedurally barred. In Re: Evans, supra; Smith, supra.

Having addressed all of Johnson’s claims and finding them procedurally barred or meritless, we hereby deny his application for leave to file for writ of error coram nobis.

DENIED.

PATTERSON, C.J., WALKER and ROY NOBLE LEE, P.JJ., and BOWLING, HAWKINS, PRATHER and SULLIVAN, JJ„ concur.

ROBERTSON, J., not participating.


author: PRATHER, Justice,

text:
    Larry Neal McCORMICK v. Katherine June McCORMICK.
    No. 54822.
    Supreme Court of Mississippi.
    May 2, 1984.

      Jackson M. Brown, Starkville, for appellant.
    James E. Brown, Starkville, for appellee.
    Before ROY NOBLE LEE, P.J., PRATHER and SULLIVAN, JJ.
   PRATHER, Justice,

for the Court:

The legality of procedure in a partition sale of real estate is the subject matter of this appeal. The parties, former husband and wife, were owners of the realty. The Chancery Court of Oktibbeha County ordered a public partition sale of their two lots because of inability to partite the property in kind, which sale was held. The appellant, Larry Neal McCormick, appeals from the court’s confirmation of that sale charging that the sale was contrary to the law and the court’s order and was for an inadequate consideration. We affirm the trial court.

I.

A commissioner appointed by the trial court advertised for' sale, within legal hours, at public auction, for cash two lots in Oktibbeha County.

Upon one lot was constructed a dwelling which was subject to two deeds of trust. The first deed of trust, in the approximate amount of $34,000 was assumable only by the parties here. The amount of the second deed of trust is not reflected in the record, although appellee’s brief suggests the amount to be approximately $1,300.

The second lot was vacant and subject to an existing indebtedness of approximately $11,000. An announcement was made at the sale of the encumbrances, but the exact amounts were unknown to the commissioner or parties.

The sale was conducted on the inside of the courthouse at the south front door. Mr. McCormick did not bid for either lot. Mrs. McCormick bought the home for a bid of $5,000 over the balances of the deeds of trust. A third party offered $7,500 for the vacant lot, but withdrew the offer and substituted a bid of $100 when told that he would have to pay off the existing $11,000 indebtedness. The purchase price for both sales was paid by cashier’s check from both bidders.

IIA.

Appellant challenges the procedural conduct of the sale in two aspects: the place of the sale and the acceptance of a check for the purchase price by the commissioner.

Does the commissioner violate the court’s order or the statutes when the sale is conducted on the interior of the front door of the courthouse rather than the exterior when the published notice asserts that the sale would be “at the south front door of the courthouse of Oktibbeha County”?

Mississippi Code section 11-5-93 (1972) controls the conditions for judicial sales of real estate.

Sales of realty under decrees.

Every sale of real estate ordered by a decree of any court-of chancery shall be made for cash, unless otherwise ordered by the court, and at such place and on such notice as may be directed in the decree; and if direction be not given, at such place and on such notice as is required in case of sales of land under execution at law....

Mississippi Code Annotated section 11-5-95 (1972) also provides that “all property may be sold on such terms and at such time and place as the court may direct.”

The appellant relies upon the case of Jones v. Rogers, 85 Miss. 802, 38 So. 742 (1905), wherein this Court held that statutes fixing the place of sales under execution are mandatory, and not merely directory. The Court in Jones, supra, held that a sale elsewhere than the announced courthouse location was void.

In the case subjudice the published notice set the place of sale at the south front door of the courthouse, and the conduct of the sale was within the interior of the building rather than the exterior.

Factually, these instances are distinguishable. In the case sub judice the order nor legal notice were violated in the location of the sale. Whether the sale were inside or outside the front door of the courthouse is immaterial so long as it was at the front door. The commissioner should have discretion to move inside the building at the front door when conditions warranted in the exercise of common sense. There is no testimony of any person being denied access or an opportunity to participate in the bidding.

We find no error in this assignment.

IIB.

Does the commissioner violate the court order or statutory law when he accepts a cashier’s check in lieu of cash for the bid?

Clearly the statute above cited, Mississippi Code Annotated section 11-5-93 (1972), and the court order both directed a sale for cash.

Additionally, Mississippi Code Annotated section 13-3-169 (1972) provides regarding sales under executions that “(a)ll such sales shall be by auction, to the highest bidder for cash_” The chancellor’s opinion observed that “for many years a check has been an acceptable medium of exchange” and that “very few people carry thousands of dollars of cash on their person.” The commissioner here testified that he always accepted a check, rather than cash.

These statements suggest to us that the prevailing usage of accepting cashier checks for cash, in contradiction of the statute, is being followed. Thus a reevaluation of our interpretation of this statute is in order.

The definition of “cash” in the code section dealing with a judicial sale refers to United States currency, and this has been the recognized medium of payment at judicial sales in the past.

Other jurisdictions are considering cash equivalents, instruments used in the commercial world as representative of value as an acceptable substitute of legal tender. However, our statute states cash to be the medium of exchange.

Upon review of commercial and financial transactions in present usage, this court holds that although a judicial sale order directs only the acceptance of cash, that the acceptance of a cashier’s check in lieu of cash is acceptable if the cashier’s check is in fact converted into cash and honored and no prejudice results from the taking of such cashier’s check in payment.

It is noted that the commissioner did so cash the check and invest the funds pending confirmation of the sale by the court. No prejudice resulted. We, therefore, find no merit in this assignment.

III.

The last assignment of error asserts that the consideration was inadequate. This involves a factual consideration when no fair market value testimony is contained within the record with which to make a comparison. Testimony was offered by one witness, who did not attend the sale, that he would have been willing to pay $55,000 for the home.

The record is vague on the balances of the deeds of trust, but apparently the two existing deeds of trust were $34,000 and $1,300. The bid was for $5,000 in excess of these indebtednesses, or a total bid of $40,-300. Another factor to be considered was that the first deed of trust could only be assumed by the parties here.

As to the second lot, a vacant one, the indebtedness assumed by the purchaser was $11,000, with an additional $100 bid. No lot size or valuation was testified to in the record.

In neither case above discussed can this Court say that the consideration was inadequate based upon this record. Central Financial Services Inc. v. Marshall Spears, 425 So.2d 403 (1983); Federal Credit Co. v. Boleware, 163 Miss. 830, 142 So. (1932).

AFFIRMED.

PATTERSON, C.J., WALKER and ROY NOBLE LEE, P.JJ., and BOWLING, HAWKINS, DAN M. LEE, ROBERTSON and SULLIVAN, JJ., concur.


text:
    Wayne BUTLER v. STATE of Mississippi.
    No. 54813.
    Supreme Court of Mississippi.
    May 2, 1984.
    W.N. Patterson, Jackson, for appellant.
    Bill Allain, Atty. Gen., by Walter L. Turner, Sp. Asst. Atty. Gen., Jackson, for appellee.
   Appeal from Circuit Court, Neshoba County; Niles McNeel, Special Judge.

Before PATTERSON, C.J., and HAWKINS and PRATHER, JJ.

Affirmed.


text:
    Joe RUSHING v. STATE of Mississippi.
    No. 54933.
    Supreme Court of Mississippi.
    May 9, 1984.
    James R. Sherard, Vicksburg, for appellant.
    Bill Allain, Atty. Gen. by Anita Mathews Stamps, Sp. Asst. Atty. Gen., Jackson, for appellee.
   Appeal from Circuit Court, Warren County; John E. Ellis, Judge.

Before ROY NOBLE LEE, P.J., and BOWLING and ROBERTSON, JJ.

AFFIRMED.


text:
    Bruce MINOR v. STATE of Mississippi.
    No. 54831.
    Supreme Court of Mississippi.
    May 9, 1984.
    Joseph Cashe Langston, Langston, Lott & Langston, Booneville, for appellant.
    Bill Allain, Atty. Gen. by Walter L. Turner, Sp. Asst. Atty. Gen., Jackson, for appel-lee.
   Appeal from Circuit Court, Tippah County; W.W. Brown, Judge.

Before PATTERSON, C.J., and HAWKINS and PRATHER, JJ.

AFFIRMED.


text:
    Tex J. SPRINGER v. STATE of Mississippi.
    No. Misc. 1557.
    Supreme Court of Mississippi.
    May 9, 1984.
    Tex J. Springer, pro se.
    Edwin Lloyd Pittman, Atty. Gen., Jackson, for appellee.
   Appeal from Circuit Court, Grenada County; Niles McNeel, Judge.

Before PATTERSON, C.J., ROY NOBLE LEE, P.J., and BOWLING, J.

AFFIRMED.

WALKER, P.J., and HAWKINS, DAN M. LEE, PRATHER, ROBERTSON and SULLIVAN, JJ., concur.


author: ROY NOBLE LEE, Presiding Justice,

text:
    LITTON SYSTEMS, INC. v. Elbert C. ENOCHS.
    No. 54225.
    Supreme Court of Mississippi.
    May 9, 1984.

      Karl Wiesenburg, Wiesenburg & Reed, William F. Jordan, Pascagoula, for appellant.
    John L. Hunter, David 0. McCormick, Cumbest, Cumbest & Hunter, Pascagoula, for appellee.
    Before ROY NOBLE LEE, P.J., and BOWLING and ROBERTSON, JJ.
   ROY NOBLE LEE, Presiding Justice,

for the Court:

Elbert C. Enochs filed suit against Litton Systems, Inc. (Litton) in the Circuit Court of Jackson County, Mississippi, Honorable Robert T. Mills, presiding, for damages on account of personal injuries sustained. The jury returned a verdict in favor of Enochs in the sum of $75,000 and Litton has appealed here, assigning five errors in the trial below.

I.-II.

THE LOWER COURT ERRED IN OVERRULING LITTON’S MOTIONS FOR A DIRECTED VERDICT AND JUDGMENT NOTWITHSTANDING THE VERDICT.

THE LOWER COURT ERRED IN OVERRULING LITTON’S MOTION FOR JUDGMENT NOTWITHSTANDING THE VERDICT ON THE GROUND THAT THE PLAINTIFF’S EXCLUSIVE REMEDY WAS UNDER THE MISSISSIPPI WORKMEN’S COMPENSATION ACT.

Evidence favorable to Enochs reflects that he had been employed by Litton for a period of approximately five (5) years, prior to July 7, 1977, in the capacity as a chipper-grinder at Ingalls Shipyards. The work was strenuous and involved the use of a 20-30 lb. chipping gun with which the workmen chipped off and smoothed seams left from welding the hulls of ships.

On July 7,1977,1977, Enochs reported to work for the 3:30 p.m. to midnight shift and parked his automobile in a parking lot provided by Litton, located off the shipyard premises. When the shift (second) terminated, Enochs left the shipyard through Gate # 1 and walked along a well-traveled area toward the parking lot. Several different routes were available to the parking lot and workers were at liberty to use the route they desired. In that area, guy wires were connected to tall light and antennae poles located in the shipyard and substation and were anchored by concrete deadmen, described as pillars sunk in the ground and covered with asphalt and seashells. The area was dimly lighted and, according to Enochs, was not as well lighted as previously. The shells and asphalt had eroded or washed from one of the deadmen which had protruded from two to four inches above the passageway. Although Enochs had traveled the area often before, on that night he was unable to see the deadman protruding above the ground and, because of that condition and the poor lighting, he tripped over the deadman, fell, and injured his left shoulder, head and left knee.

Litton contends that the lower court erred (1) in declining to sustain its motion for directed verdict and (2) in failing to sustain its motion for judgments notwithstanding the verdict, particularly on the ground that Enochs’ exclusive remedy was under the Mississippi State Workmen’s Compensation Act.

The same rule as to the scope of appellate review applies in motions for directed verdicts and judgment notwithstanding the verdict. Lewis Grocer Co. v. Williamson, 436 So.2d 1378 (Miss.1983), involved facts similar to the case here. There, Williamson drove through a store parking lot and stopped at one of the parking bumpers. The area was dimly lighted and, as Williamson got out of his car and started toward the door of the store, a floor mat, which customarily was located in front of the outside door, was partially draped over a parking bumper. He was unable to see the mat, fell and injured his left knee. We held that the only proof in the record as to the condition of the premises and what happened was made by the appellee; that, in the exercise of reasonable care, the store operator knew, or should have known, that the mat had been removed from in front of the door and placed in another location; that the jury could have believed from the evidence that appellant, the Lewis Grocer Company, had actual and constructive notice as to the condition of the premises, including poor lighting and the location of the mat draped over the bumper stop; and that the condition of such premises constituted a hazard and danger to the invited public. Quoting from Georgia-Pacific Corp. v. Blakeney, 353 So.2d 769 (Miss.1978), the principle relating to motions for directed verdict was restated:

The rule in determining whether a motion for directed verdict should be granted, requires the trial judge to consider the evidence on behalf of the party against whom a directed verdict is requested, along with all reasonable inferences, in the light most favorable to said party, disregard any evidence of the other party in conflict therewith, and, if the evidence and reasonable inferences to be drawn therefrom would support a verdict for such party, the motion for directed verdict should be denied. (Here the motion for directed verdict actually was a request for peremptory instruction). [Citations omitted] [353 So.2d at 772], (436 So.2d at 1380).

We are of the opinion that, under all the evidence, together with reasonable inferences, there was a question of liability for the jury to determine.

Prior to instituting the common law action in the Circuit Court of Jackson County, Enochs filed claim for benefits under the Longshoremen and Harbor Workers’ Act and the Mississippi Workmen’s Compensation Act for injuries sustained from the fall. Ingalls Shipbuilding, Division of Litton, successfully defended the actions, and both claims were found to be non-compen-sable, the administrative judges and commissions in both the federal and state proceedings, holding that the injury did not arise within the scope of Enochs’ employment. There were no appeals from the orders, and Litton does not seriously contend that such actions were a bar to the case sub judice.

The present suit was brought on the theory that Enochs was a business invitee of the appellant Litton at the time and place of the injury and, under the evidence, that he had a lawful claim against Litton which could be resolved in the circuit court action.

III.-IV.

THE LOWER COURT ERRED IN GRANTING PLAINTIFF’S JURY INSTRUCTION P-6 THAT LITTON HAD' THE DUTY TO WARN THE PLAINTIFF OF A CONDITION THE PLAINTIFF TESTIFIED HE WAS AWARE OF AND KNEW EXISTED.

THE LOWER COURT ERRED IN REFUSING TO GRANT DEFENDANT’S REQUESTED INJURY INSTRUCTIONS D-7 AND D-9 IN ACCORDANCE WITH THE DEFENDANT’S PROPOSALS TO MODIFY SUCH ASSUMPTION OF RISK INSTRUCTIONS, THE COURT DICTATING INTO THE RECORD THAT HE WAS REFUSING ALL ASSUMPTION OF RISK INSTRUCTIONS.

We have carefully examined Jury Instruction # P-6 and are of the opinion that it was supported by the plaintiff’s evidence and theory of the case, and that the instruction was proper.

Instruction # D-7, requested by Litton and refused by the court, is an assumption of risk instruction. Instruction # D-9, also refused, stated: "... but that the plaintiff knowingly and voluntarily elected to take a route that was not maintained by Litton for pedestrian use .... ”

The issues of negligence vel non were properly presented to the jury by other instructions, although Litton did not request a contributory negligence instruction. The evidence does not show that the route taken by Enochs was not maintained by Litton for pedestrian use. Therefore, we are of the opinion that the court did not commit reversible error in refusing the two instructions.

V.

THE VERDICT OF THE JURY WAS EXCESSIVE IN VIEW OF THE CONTRIBUTORY NEGLIGENCE OF THE PLAINTIFF AND WAS SO EXCESSIVE AS TO EVIDENCE PASSION, PREJUDICE, BIAS OF THE JURY AGAINST THE DEFENDANT, OR ALTERNATIVELY WAS BASED ON SYMPATHY AND COMPASSION FOR THE PLAINTIFF.

Litton does not support its fifth assignment of error by any cited authority. .However, we have carefully examined the record with reference to proof of damages. The verdict was not so excessive as to evidence bias, passion or prejudice by the jury against Litton.

There being no errors in the record, the judgment of the lower court is affirmed.

AFFIRMED.

PATTERSON, C.J., WALKER, P.J., and BOWLING, HAWKINS, DAN M. LEE, PRATHER, ROBERTSON and SULLIVAN, JJ., concur.


author: PER CURIAM.

text:
    Ex parte Michael J. VOUDRIE. (In re: Michael J. VOUDRIE v. STATE of Alabama).
    82-1082.
    Supreme Court of Alabama.
    Jan. 13, 1984.
    Robert B. Reneau of Reneau, Enslen & Reneau, Wetumpka, for petitioner.
    Charles A. Graddick, Atty. Gen., and Gerrilyn V. Grant, Asst. Atty. Gen., for respondent.
   PER CURIAM.

Upon preliminary consideration, we granted the writ of certiorari to review the “no opinion” affirmance of the trial court’s order dismissing Defendant’s petition for a writ of habeas corpus. Because the record on appeal reveals an unsigned order purporting to dismiss Defendant’s petition below, we remand this cause to the Court of Criminal Appeals with instructions to address the jurisdictional issue; and, in the event the purported order appealed from is found to be a nonfinal judgment, and thus nonappealable, to enter an appropriate order dismissing the appeal.

REMANDED WITH INSTRUCTIONS.

All the Justices concur.


author: BOWEN, Presiding Judge.

text:
    Michael J. VOUDRIE v. STATE.
    5 Div. 765.
    Court of Criminal Appeals of Alabama.
    March 20, 1984.

      Robert Reneau, Wetumpka, for appellant.
    Charles A. Graddick, Atty. Gen., and Gerrilyn V. Grant, Asst. Atty. Gen., for appellee.
   AFTER REMANDMENT

BOWEN, Presiding Judge.

Voudrie appealed from the summary dismissal of his petition for writ of habeas corpus challenging his removal from the Work Release Program. This Court affirmed the dismissal on July 5, 1983, 434 So.2d 877, without issuing a published opinion. The Alabama Supreme Court subsequently remanded the cause to this Court with instructions to address the jurisdictional issue of whether an unsigned order dismissing the petition was a final order from which an appeal could be taken. Ex parte Voudrie, 449 So.2d 1217 (Ala.1984).

Under Alabama law an unsigned order, judgment, or decree is valid if it is responsive to the pleadings, and is duly filed and incorporated in the minutes of the court. LeFlore v. State ex rel. Moore, 288 Ala. 310, 314, 260 So.2d 581, cert. denied, 409 U.S. 1007, 93 S.Ct. 436, 34 L.Ed.2d 299 (1972); Taylor v. Hoffman, 231 Ala. 39, 163 So. 339 (1935). The order before us is responsive to the pleadings. It states that both the petition for writ of,habeas corpus and the State’s Motion to Dismiss had been considered, and bears a stamp showing that it was filed with the Circuit Court Clerk on March 17, 1983. The minutes of the Circuit Court, however, are not included in this record and, consequently, we are unable to ascertain whether the order was properly incorporated into those minutes.

In his Notice of Appeal, Voudrie alleges that the “Court Ordered Dismissal was not properly authenticated by Judge Macon.” Because there is nothing in the record to show that the apparent order of dismissal was in fact a valid order, this appeal is due to be dismissed.

We also note that Voudrie’s petition was unverified and for that reason alone was due to be denied. Barnhill v. State, 439 So.2d 822 (Ala.Cr.App.1983); Barker v. State, 437 So.2d 1375 (Ala.Cr.App.1983).

APPEAL DISMISSED.

All Judges concur.


author: FAULKNER, Justice.

text:
    Larry MURPHREE v. ALABAMA FARM BUREAU INSURANCE COMPANY. Richard STOVER v. ALABAMA FARM BUREAU INSURANCE COMPANY.
    82-1173, 82-1174.
    Supreme Court of Alabama.
    Jan. 20, 1984.
    Rehearing Denied April 20, 1984.

      John L. Sims, Hartselle, for appellants Larry Murphree and Richard Stover.
    Norman W. Harris, Decatur, for appel-lee.
   FAULKNER, Justice.

Appellants, Larry Murphree and Richard Stover, appeal from trial court decisions granting summary judgments in favor of defendants, Farm Bureau Insurance Company (Farm Bureau) and Federated Life Insurance Company, in actions alleging both breach of contract and fraud. We affirm the decision in Murphree’s case and reverse the decision in Stover’s case.

In February 1980, Murphree answered an advertisement in the Decatur Daily newspaper which referred to a “Career Opportunity for sales representative with Alabama Farm Bureau Insurance.” On March 3, 1980, Murphree commenced employment with Farm Bureau as an insurance agent. Murphree testified that his employment contract with Farm Bureau was partially written and partially oral. The written part included an agent’s handbook, a production schedule, and various other documents. The oral part concerned various oral communications between Murphree and Ms. Jean Wood, a district manager for Farm Bureau. Murphree’s case is particularly concerned with an alleged oral representation made by Ms. Wood to Murphree that he would be entitled to employment with Farm Bureau so long as he complied with a particular production schedule. On February 2, 1982, Farm Bureau terminated Murphree’s employment, allegedly for “attitude and lack of life production.”

Richard Stover was hired as an insurance agent by Farm Bureau on July 19, 1982. Stover testified that his employment agreement was also partially written and partially oral. The written part included the production schedule and various other documents. The oral part included representations by Farm Bureau to Stover that he would be compensated by commissions and Stover’s agreement with Farm Bureau that he would move to Athens, Alabama (his sales territory), from his home in Decatur, Alabama. On November 2, 1982, Farm Bureau terminated Stover’s employment for “failure to relocate to Territory.”

Murphree, on October 27, 1982, and Sto-ver, on November 29,1982, filed complaints against Farm Bureau Insurance Company and Federated Life Insurance Company, both alleging breach of contract and fraud. The defendants filed answers generally denying the allegations of the complaints, and discovery followed in both cases.

On January 21, 1983, the defendants filed a motion for summary judgment in both cases, based on the ground that, since no specific term of employment was stated or could be inferred from Murphree’s or from Stover’s contract, Murphree and Sto-ver were employees-at-will of defendants, and, thus, could be terminated at any time. The trial judge granted defendants’ motions on April 12, 1983. Instead of applying the employment-at-will doctrine, however, the trial judge ruled:

“The requirements for a contract of permanent employment to be binding, as it was held in Alabama Mills, Inc. v. Smith, [237 Ala. 296,] 186 So. 699 (Ala. Sup.Ct.1939) and more recent cases following the above, include the requirement that it is necessary to show a valuable consideration supplied by the employee other than services to be rendered for which he is to be paid. The plaintiff has not done this.”

Murphree and Stover then filed motions for new trials which were denied. These appeals followed.

Appellants’ basic argument on appeal is that the trial court erred in granting the summary judgment motions, since there was evidence that each appellant supplied a valuable consideration to support a permanent employment contract.

The state of the law concerning permanent employment contracts is summarized by Justice Maddox in Scott v. Lane, 409 So.2d 791, 794 (Ala.1982), as follows:

“In United, Security Life Insurance Co. [v. Gregory, 281 Ala. 264, 201 So.2d 853 (1967) ], this Court quoted the following passage from National Union Life Insurance Co. [v. Ingram, 275 Ala. 310, 154 So.2d 666 (1963)],:
“ ‘In regard to a contract for life employment, the majority rule seems to be that two elements must be shown to exist before such a contract can be held enforceable. First, it must appear that there was a consideration of substantial value, independent of any service to be performed, and in making that determination the courts inquire into the actual value of the consideration. Second, where the promisor is a corporation, in the absence of ratification or estoppel, it must appear that the individual or individuals who acted on behalf of the corporation had actual, as opposed to implied, authority to bind the corporation. Alabama Mills [Inc.] v. Smith, 237 Ala. 296, 186 So. 699; Chesapeake & Potomac Tel. Co. of Baltimore City v. Murray, 198 Md. 526, 84 A.2d 870; Heaman v. E.N. Rowell Co., 261 N.Y. 229, 185 N.E. 83; Carney v. New York Life Ins. Co., 19 A.D. 160, 45 N.Y.S. 1103, affirmed 162 N.Y. 453, 57 N.E. 78; Rennie v. Mut. Life Ins. Co. ofN.Y., 1 Cir., 176 F. 202; * ⅜ * [further citations omitted].’ ”

Furthermore, this court has stated:

“[0]rdinarily, in the absence of additional express or implied stipulations as to duration, a contract for permanent employment, for life employment, or for other terms purporting permanent employment, where the employee furnishes no consideration additional to the services incident to the employment, amounts to an indefinite general hiring terminable at the will of either party, and ..., therefore, a discharge without cause does not constitute a breach of such contract justifying recovery of damages therefor * ⅝.”

United Security Life Insurance Company v. Gregory, 281 Ala. 264, 265, 201 So.2d 853, 854 (1967) (quoting Annot., 35 A.L.R. 1432, supplemented at 135 A.L.R. 646).

In Alabama Mills, Inc. v. Smith, 237 Ala. 296, 186 So. 699 (1939), we find examples of when a valuable consideration sufficient to support a permanent employment contract has been deemed to exist. In that case, the court stated:

“Not infrequently contracts by railroad companies to furnish ‘steady and permanent’ employment to employees in consideration of the relinquishment of claims by the employees against the companies have been construed to show an agreement on the part of the company to furnish the employee with employment as long as the latter is able, ready and willing to perform such services as the company may have for him to perform. The fact that the employee has a right to quit work at his option does not give the employer a reciprocal right to terminate the contract at pleasure, since the employee, by releasing his claim, has paid a valuable consideration for the option.”

And further:

“[I]f the hirer knows that the person being employed then has employment, and that he is giving it up to engage in his new work under the new contract, a valuable consideration is shown.”

We have carefully searched the record in this case for any evidence that Murphree or Stover supplied a valuable consideration to defendants sufficient to support a permanent employment contract. We have found no evidence that Murphree provided such consideration. Murphree’s contention that his agreement to comply with a certain production schedule constituted sufficient consideration is unpersuasive. The record reveals that compliance with the production schedule is merely incident to employment with the defendants. Indeed, failure to so comply can be grounds for termination. The trial court was, therefore, correct in granting summary judgment on Murphree’s claim due to lack of consideration. Thus, the trial court’s judgment in Murphree’s case is affirmed.

However, Stover’s contention that his agreement to move to Athens, Alabama, was sufficient consideration to support a permanent employment contract is not without merit. It is well settled that on motion for summary judgment, the burden is on the moving party to show that no genuine issue of material fact exists, see Amason v. First State Bank of Lineville, 369 So.2d 547 (1979), and it must appear that the moving party is entitled to a judgment as a matter of law. Raley v. Royal Insurance Company, Ltd., 386 So.2d 742 (Ala.1980). Furthermore, if there is a scintilla of evidence supporting the position of a party against whom summary judgment is made, so that an issue is entitled to go to a jury, summary judgment cannot be granted. Coggin v. Starke Brothers Realty Company, Inc., 391 So.2d 111 (Ala.1980); Campbell v. Alabama Power Co., 378 So.2d 718 (Ala.1975). It is the opinion of the court that Stover’s agreement to relocate to Athens, Alabama, was not entirely incidental to employment with Farm Bureau and, therefore, that there was at least some, i.e., a scintilla of, evidence that Stover provided a consideration additional to the services incident to such employment which might have supported a permanent employment contract. The trial court was in error in granting the defendants’ motion for summary judgment on Stover’s claim. Thus, the trial court’s judgment in Stover’s case is reversed, and the case remanded for proceedings consistent with this opinion.

82-1173, AFFIRMED.

82-1174, REVERSED AND REMANDED.

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