author: ADAMS, Justice.

text:
    Thomas Eugene JONES and Gladys Mae Jones v. BRONCO OIL & GAS CO., et al.
    82-833.
    Supreme Court of Alabama.
    Feb. 10, 1984.

      Roger S. Morrow of Whitesell, Morrow & Romine and Robert M. Alton, Jr., Montgomery, for appellants.
    Mary R. McKay of Watson & Harrison, Tuscaloosa, for appellees.
   ADAMS, Justice.

Lessors Thomas Jones and Gladys Jones appeal from a final decree of the Circuit Court of Fayette County, declaring an oil and gas lease to be valid and in full force and effect as to all acreage described therein. Bronco Oil Company (lessee) is an as-signee of the original lessee’s rights under the lease in question.

The facts of this case are as follows: On July 23, 1969, lessors entered into the oil and gas lease in question with H.E. Bollar, who subsequently assigned his rights under the lease. The lease covers 1696V2 acres of land in Fayette County, in which lessors had an interest equal to 1659 net mineral acres. The term of the lease was ten years, and “as long thereafter as oil, gas or other mineral is produced from said land or land with which said land is pooled hereunder.” From 1969 through 1978, lessees paid the annual rental required under the lease for the privilege of postponing the commencement of drilling operations during the primary term.

In accordance with both the pooling clause of the lease and the special field rules promulgated by the State Oil and Gas Board for the Musgrove Creek Field, lessee attempted to establish a 320-acre drilling unit by pooling with other lands 122 acres (of which lessee had an interest of 62 net mineral acres) covered by the lease. On May 10, 1979, lessee sought a permit to drill a gas well on the proposed unit, which permit was approved by the supervisor of the State Oil and Gas Board on May 14. Later in May, a producing gas well was drilled on the unit, but off the leased premises. Thereafter, the well was shut in, and in June lessee paid lessors a $100.00 shut-in royalty in order to defer production of gas for one year.

Subsequent to the issuance of the drilling permit to lessee, it was discovered that certain persons claimed an interest in separately owned tracts or mineral interests comprising something less than two acres in the proposed drilling unit. Upon petition by lessee, the State Oil and Gas Board entered an order force integrating these lands and interests, establishing a gas drilling and producing unit as previously designated by lessee and approved by the Board’s supervisor. Additionally, the Board confirmed the issuance of the drilling permit, and approved the lessee’s location of the gas well. It also named lessee the operator of the unit.

In October 1979, lessee executed a “Declaration of Unit” that described the leases and interests combined into the unit, including the lease in question. Also, after the expiration of the primary term of the lease, lessors executed two division order agreements which state the following:

The undersigned hereby, adopt, ratify and confirm each oil and las lease, together with any amendments thereto, under which the gas to which this division order applies is produced. If the production which is the subject of this division order is obtained from a unit or units, the establishment of such unit or units is hereby ratified, confirmed and adopted.

Lessors concede that they executed these agreements voluntarily, and that they agreed to ratify and confirm the entire lease. Moreover, they admit receiving production royalty payments arising under these agreements beginning in December 1979, when the gas well on the unit was placed in production.

Lessors filed this action pursuant to § 9-17-50, Code 1975, requesting the trial court to declare that the lease had expired on July 22, 1979 (the end of the primary term), except as to the 67 net mineral acres included in the gas drilling unit. The court entered its final decree based upon the pleadings and a stipulation of facts agreed to by the parties. Prom that decree, lessors appeal.

Lessors argue that the lease terminated on July 22, 1979, because the drilling unit was not formed until after the well was drilled and shut in. In support of this argument, they rely on the cases of Wilcox v. Shell Oil Company, 226 La. 417, 76 So.2d 416 (1954), and Mallett v. Union Oil and Gas Corporation, 232 La. 157, 94 So.2d 16 (1957), decisions rendered by the Supreme Court of Louisiana.

In Delatte v. Woods, 232 La. 341, 94 So.2d 281 (1957), a case factually similar to that sub judice, plaintiffs in that case also greatly relied on the Wilcox case. In rejecting the application of Wilcox to the facts in Delatte, the Supreme Court of Louisiana stated:

The Wilcox case ... is readily distinguishable from the instant case. This distinction lies in the fact that the former case deals with the improper and unauthorized creation of a voluntary unit, the interpretation of a contract between the parties relating to the voluntary pooling clause contained therein, and the effect of operations on an improperly created and unauthorized voluntary unit.
In the instant case we are called upon to deal with a unit compulsorily created by an order of the Commissioner of Conservation, and the interpretation and effect of a contract between the parties as to the obligations flowing therefrom but which has been substituted for and superseded by an order of the Commissioner of Conservation. It is apparent therefore that the Wilcox case is neither controlling nor analogous to that presented here.

232 La. at 363, 94 So.2d at 289. For similar distinctions, both factual and legal, we hold that the principles announced in Wilcox, and followed in Mallett v. Union Oil and Gas Corporation, supra, have no bearing on the determination of this case.

In Delatte, the Supreme Court of Louisiana proceeded to address the significance of the existence of a shut-in gas well on a validly created unit, as in the instant case. The conclusion reached by the court illuminates, and provides the correct interpretation of, our oil and gas conservation statutes, which provide, in part, that a drilling or production unit, as established by the State Oil and Gas Board, “means the maximum area which may be efficiently and economically drained by one well, and such unit shall constitute a developed unit as long as a well is located thereon which is capable of producing oil or gas in paying quantities.” Code 1975, § 9 — 17—12(b). The court concluded that the existence of the shut-in well on an involuntary unit satisfies the lessee’s obligation to drill on a leased tract included in the unit. 232 La. at 359, 94 So.2d at 287. The court said:

... Unit B [which was established by order of the Conservation Commissioner] in which a portion of the leased premises was embraced constituted a developed area as defined by the conservation statute, supra, and therefore defendant Woods was relieved from any drilling obligation called for by his lease as extended on that portion of the leased premises embraced within said Unit B.

232 La. at 359, 94 So.2d at 288. See H. Williams and R. Myers, Oil and Gas Law, § 633.6 (1981) (commenting favorably on the holding in Delatte v. Woods). We agree with this analysis, and hold that lessee’s payment of the shut-in royalty specified by the lease effectively held the lease beyond its primary term as to those portions of the lease premises within the unit.

We now turn to a consideration of lessors’ suggestion that the existence of the gas well on a portion of the unit not covered by the lease does not maintain the lease beyond the primary term as to those parts of the leased premises outside the unit. Lessors rely on the case of Texas Gulf Producing Co. v. Griffith, 218 Miss. 109, 65 So.2d 447 (1953), while conceding that the position of the Supreme Court of Mississippi is at best a minority view. See Mize v. Exxon Corp., 640 F.2d 637, 640 (5th Cir.1981) (concerning an Alabama unit). R. Meyers, Law of Pooling and Unitization, § 14.02 (1967).

In Texas Gulf Producing Co. v. Griffith, the Supreme Court of Mississippi concluded that

... it was not contemplated under the [Mississippi] conservation statutes authorizing the establishment of drilling units and the compulsory pooling resulting therefrom that the establishment of the unit and the production from a well on land therein other than the leased land should affect the leased land without the unit.

65 So.2d at 452. The court indicated that its holding was premised on a concern that production obtained from a well on an involuntary unit, but not on leased land, could hold a lease in effect “indefinitely” as to the leased land outside the unit, depriving lessor of property without due process of law. Id.

Having carefully considered those authorities commenting on Texas Gulf Producing Co. v. Griffith, we conclude that the position adopted therein by the Supreme Court of Mississippi was overly paternalistic and erroneous. Among other things, it has been noted that within every oil and gas lease there is an implied obligation to develop the leased lands, and that this obligation remains in full force as to those lands outside a unit. Mize v. Exxon Corp., 640 F.2d at 641; Buchanan v. Sinclair Oil & Gas Company, 218 F.2d 436, 441 (5th Cir.1955); R. Meyers, Law of Pooling and Unitization, § 14.02(4). In addition, lessors have the option of including within a lease a clause providing for the division of leased lands in the event of partial pooling. Delatte v. Woods, 232 La. at 362, 94 So.2d 289. Moreover, where a unit has been force pooled to comply with special field rules, as in this case, we must regard it as prima facie valid, Code 1975, § 9-17-15, presuming as a matter of law that the Board’s action was in good faith, “though the effect is to hold lands subject to lease in circumstances where otherwise the lease would have expired.” R. Meyers, Law of Pooling and Unitization, § 14.02, n. 18 (Cum.Supp.1983), citing Miller v. Menefee, 228 So.2d 689 (La.Ct.App.1969).

For the foregoing reasons, we hold that proper payment of the shut-in gas royalty preserved the validity of the lease beyond the primary term as to those leased lands outside, as well as within, the unit. See Delatte v. Woods, 232 La. at 361, 94 So.2d at 288-289 (discussing indivisible nature of lessor’s obligation to deliver the leased land). The judgment of the trial court is due to be, and it is hereby affirmed.

AFFIRMED.

TORBERT, C.J., and FAULKNER, AL-MON and EMBRY, JJ., concur.

      . Lessees, or their predecessors in title, conducted drilling operations on the leased land on two occasions, but none of the operations resulted in a producing well.

      . The lease included a provision for 1100.00 to be paid annually for a shut-in gas well to be considered as producing under the habendum clause of the lease.

      . In passing, we note our agreement with the view of the Supreme Court of Louisiana that the orders of the regulatory authority charged with the responsibility of preventing waste of the state’s oil and gas "supersede, supplement, replace, and are incorporated in the provisions and obligations of contracts and leases relating to mineral development. [And,] that these orders become the law as between the parties in determining their respective rights and obligations.” Delatte v. Woods, 232 La. at 357, 94 So.2d at 287.

      . The court indicated that its holding was in accordance with the general rule that
      .... the drilling and production of oil from a unitized area constitutes an exercise and user of the mineral rights throughout the entire unit and operates as a substitute for performance of drilling obligations contained in a mineral lease covering any property or tract located within the unit.

        Delatte v. Woods, 232 La. at 358, 94 So.2d at 288.

      . Lessors stipulated that the shut-in royalty payment, and all other payments made by lessee, were made in a timely fashion and in accordance with the terms and conditions of the subject lease.

      . Lessors concede that the lease remains in full force and effect as to those parts of the leased acreage within the unit established by the Board.

      . A Pugh clause. See R. Hemingway, Law of Oil and Gas, § 7.13(D) (1983).


source: Caselaw Access Project

author: BRADLEY, Judge.

license: Public Domain

text:
    Miles Carl DUTTON, Charles Dutton and Nelson D. Gary v. Bobbie Dean DUTTON and Janet Dutton Gary.
    Civ. 3336-X.
    Court of Civil Appeals of Alabama.
    Aug. 3, 1983.
    Rehearing Denied Sept. 7, 1983.
    Certiorari Denied March 2, 1984 Alabama Supreme Court 82-1276.

      T.J. Carnes of Carnes & Carnes, Albert-ville, for appellant Miles Carl Dutton.
    James G. Stevens and Lary Waites, Birmingham, for appellant Charles Dutton.
    W.D. Wilkes, Jr., Guntersville, for appellant Nelson D. Gary.
    James D. Walker, Albertville, for appel-lee Janet Dutton Gary.
    Rowan S. Bone and Hubert L. Taylor, Gadsden, for appellee/cross appellant Bobbie Dean Dutton.
   BRADLEY, Judge.

This is a divorce case.

On July 24, 1980 Bobbie Dean Tidmore Dutton filed for a divorce from her husband, Miles Carl Dutton. For most of their married lives, the Duttons had been active in running a trucking business known as Dutton Trucking Company. Both the husband and the wife had been involved in the business at its inception with various other family members playing a role as the business grew. Somewhere around 1963 Charles Dutton, brother of Miles Carl Dut-ton, took over the management of one of the company’s Alabama terminals. Later, around 1970 Nelson D. Gary, son-in-law of the Duttons, moved to Indiana to manage an aspect of the operation there. Based on their roles in the business, Charles Dutton, Nelson D. Gary, and his wife, Janet Dutton Gary, who is the daughter of Miles Carl Dutton and Bobbie Dean Tidmore Dutton, sought to intervene, claiming that the trucking company was a partnership and that partnership assets were involved in the divorce.

After an ore tenus hearing concerning the divorce and the petitions for intervention, the trial court issued a December 16, 1981 order granting a divorce to the Dut-tons and finding that the trucking company was a partnership. The husband was ordered to pay $1,000 per month alimony, and the couple’s property was divided. Subsequently, the court issued an amended decree reducing the alimony payments to $500 per month. Concerning the partnership aspects of the case, the court said:

“Additionally, in order to bring to an end any confusion on the part of the intervenor, and the possible misconception as to the naivety of this court, it might be well to point out that the partnership, although promised many years before, was not created until the 16th day of December, 1981.”

Following the issuance of the amended order, Miles Carl Dutton, Charles Dutton, and Nelson D. Gary have appealed to this court, and Bobbie Dean Tidmore Dutton has filed a cross-appeal.

Appellant Miles Carl Dutton first attacks the trial court’s decision to grant the divorce. He claims that he testified that he did not wish the marriage to end and that he felt that his differences with his wife were capable of being reconciled. We note that the divorce was sought by Bobbie Dean Tidmore Dutton on the basis of incompatibility of temperament; however, the divorce was granted on the basis of irretrievable breakdown of the marriage. Where the evidence at trial tends to support a ground for divorce alleged in the pleadings, the trial court may properly grant the divorce on that basis. Blackwell v. Blackwell, 340 So.2d 448 (Ala.Civ.App.1976). The record before us indicates that there had, in fact, been a breakdown in the marriage which could support such a finding. We also find that the differences between the parties had occurred over a number of years and that they had intensified toward the end of the marriage. Thus, the trial court properly granted the divorce.

The second dispositive issue for our consideration of this appeal concerns whether a partnership has been formed. Appellants, Miles Carl Dutton, Charles Dutton, and Nelson D. Gary, argue that the trucking company had been operated as a partnership. Bobbie Dean Tidmore Dutton, in her cross-appeal, contends that no partnership had ever been formed and that the assets of the trucking company should be divided as a part of the property settlement in the divorce case. For the reasons stated below, we find that Dutton Trucking Company was not a partnership and that it had never been so operated. A brief review of the facts concerning the formation and running of the company will be necessary to clarify this holding.

Dutton Trucking Company was started in Albertville, Alabama around 1953 when Miles Carl Dutton had difficulty obtaining work as a truck driver in that area. At the beginning both the husband and the wife were active in the business. Miles Carl Dutton brought his brother Charles Dutton into the trucking company somewhere around 1963; and, later, Nelson D. Gary became active in the operation after he married Janet Dutton (presently Janet Dut-ton Gary). When the business expanded beyond Alabama, the Garys were sent to Indiana to manage a terminal there.

Based on the evidence before it, the trial court concluded that the arrangement between Miles Carl Dutton, Charles Dutton, Nelson D. Gary, and Janet Dutton Gary had been based on an executory agreement to form a partnership which was not brought into existence until the December 16, 1981 decree. In essence, the court created a partnership in which the assets were owned one-third by Miles Carl Dutton, one-third by Charles Dutton, one-sixth by Nelson D. Gary, and one-sixth by Janet Dutton Gary.

This action by the trial court through which it created a partnership between the partners inter se was improper. Under Alabama law the formation of a partnership is a matter which rests on the intention of the partners. Some form of agreement to become partners must be shown, and such an agreement may be derived from expressions of the parties or from the facts and circumstances surrounding their business relationship. In White v. Jackson, 36 Ala.App. 643, 62 So.2d 477 (1953), the necessity of an agreement was made clear when the court stated:

“Generally speaking a partnership inter se is a contract between two or more persons whereby funds, effects, labors or skills are to be devoted to some lawful business or enterprise. The agreement must include the understanding that the parties will share both the profits and the losses. The latter as well as the former is an essential requisite to a partnership. Watson v. Hamilton, 180 Ala. 3, 60 So. 63; Heller v. Berlin, 208 Ala. 640, 95 So. 10; Cunningham v. Staples, 216 Ala. 531, 113 So. 590; Cox v. Fielding, 24 Ala.App. 68, 130 So. 164.”

Appellants argue that there is ample evidence to show that they had an agreement to run Dutton Trucking Company as a partnership. There is testimony to indicate that Miles Carl Dutton promised his brother Charles Dutton that if he would work for the company, he would be a partner. The record also shows that Miles Carl Dut-ton told Nelson D. Gary and Janet Dutton Gary that they would be made partners if they moved to Indiana to run a terminal there. This argument, however, fails for two reasons.

First, as we have pointed out, it was held in White v. Jackson, supra, there must be some agreement between the parties to share profits and losses before a partnership can be found to exist. See Adderhold v. Adderhold, 426 So.2d 457 (Ala.Civ.App.1983). See also Odess v. Taylor, 282 Ala. 389, 211 So.2d 805 (1968); Steele v. Steele, 262 Ala. 353, 79 So.2d 8 (1955). The record in the instant appeal contains absolutely no evidence that there was ever an agreement to share either profits or losses. On the contrary, the record shows that Charles Dutton and Nelson D. Gary were paid a salary for managing various aspects of the business. Miles Carl Dutton had a drawing account which he used for personal and family purposes. The record also shows that the income taxes were prepared under the assumption that Dutton Trucking Company was a sole proprietorship run by Miles Carl Dutton. All of the money which was borrowed for the business was borrowed under his name and on his credit. Thus, it was Miles Carl Dutton who had the right to take all of the profits from the business and who bore all of the risk of loss from its operation.

Second, appellants’ argument ignores the fact that an executory agreement to form a partnership does not lead to a conclusion that a partnership exists. Higgins v. Higgins, 266 Ala. 514, 97 So.2d 812 (1957). The trial court concluded correctly, we think, that there had been an agreement between the parties to engage in the trucking business as partners. It then concluded that the agreement had never been carried out. In light of the facts stated above which indicate that the profits and losses from the business were never split, we also think that this was a correct conclusion. However, the court committed error by stating that it brought the partnership into existence by its December 16, 1981 order. Since the parties themselves had not taken the actions necessary to consummate their agreement, the court was unable to do so in their behalf.

The next and final dispositive issue presented for our review concerns the trial court’s decision to admit testimony from two expert witnesses. One of these witnesses testified as to the value of certain real estate, and the other stated an opinion on the value of trucks owned in the business. Appellants claim that interrogatories were filed with Bobbie Dean Tidmore Dut-ton requesting that she identify all expert witnesses she intended to call at trial. They say that she failed to respond to the interrogatories and that they objected to admission of the testimony at trial. According to appellants, it was error for the trial court to hear the testimony over their objection.

Rule 37, Alabama Rules of Civil Procedure, provides a method to deal with a failure to respond to discovery. Under its terms when a party fails to respond to interrogatories, the party propounding them may seek a court order by motion to compel response. Rule 37(a)(2), A.R.Civ.P. It has been stated that:

“When the discovery procedure is initial-, ly set in motion by the parties themselves without court order, the party seeking discovery must first obtain an order under Rule 37(a) requiring the recalcitrant party or witness to make the discovery sought; it is only a violation of this order that is punishable under Rule 37(b).” (Footnote omitted.)

C. Wright & A. Miller, 8 Federal Practice & Procedure: Civil § 2282 (1970). See Schleper v. Ford Motor Co., Automotive Division, 585 F.2d 1367 (8th Cir.1978). A motion for such a court order is necessary before sanctions under Rule 37(b), A.R. Civ.P., may be imposed. See C. Lyons, 1 Alabama Practice § 37.2 (1973). See also Colvin v. Lee Turzillo Contracting Co., 54 Ala.App. 401, 309 So.2d 112 (Ala.Civ.App.1975). We have examined the record in the instant action and find no motion to require answers to interrogatories. The record reveals that appellants failed to make any objection to the missing answers until the expert witnesses were ready to testify. These objections came too late for the court to impose sanctions under rule 37(b), A.R.Civ.P.

For the foregoing reasons the trial court’s decision concerning the partnership is reversed and the cause is remanded so that the trial court can reconsider its disposition of the parties’ property in light of the holding of this court as it relates to the alleged partnership. The other aspects of the judgment questioned on this appeal are affirmed.

AFFIRMED IN PART; REVERSED IN PART AND REMANDED WITH DIRECTIONS.

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


author: WRIGHT, Presiding Judge.

text:
    The STATE HEALTH PLANNING AND DEVELOPMENT AGENCY OF ALABAMA, et al. v. BAPTIST MEDICAL CENTER, et al.
    Civ. 3605.
    Court of Civil Appeals of Alabama.
    Nov. 23, 1983.
    Rehearing Denied Jan. 4, 1984.
    Certiorari Denied March 2, 1984 Alabama Supreme Court 83-410.

      Charles A. Graddick, Atty. Gen., and Al-gert S. Agricola, Jr., Asst. Atty. Gen., for appellants.
    Sydney Lavender and Michael L. Hall of Johnston, Barton, Proctor, Swedlaw & Naff, Birmingham, James D. Brooks, Mobile, for appellee Riverchase Hospital Systems, Inc.
    Carleton P. Ketcham, Jr. and Susan Dominick Doughton of Dominick, Fletcher, Yeilding, Wood & Lloyd, Birmingham, for St. Vincent’s Hospital.
    Michael S. Jackson of Melton & Espy, Montgomery, and Frank Ellis of Wallace, Ellis, Head & Fowler, Columbiana, for Shelby County Hospital Board d/b/a Shelby Medical Center.
   ON APPLICATION FOR REHEARING

WRIGHT, Presiding Judge.

In response to matters brought to the attention of the court on motion for rehearing, the court now withdraws its original opinion in this matter and substitutes in lieu thereof the following:

This matter arose from an administrative decision of the State Health Planning and Development Agency.

During November and December 1981, Baptist Medical Centers (BMC), Brookwood Medical Center, Inc. (Brookwood), RMC, Inc. (RMC), St. Vincent’s Hospital (St. Vincent’s) and The Shelby County Hospital Board, doing business as Shelby Medical Center (SMC), filed separate certificate of need applications for the construction of a hospital in the North Shelby-South Jefferson County, Alabama area. The State Health Planning and Development Agency of Alabama (SHPDA) scheduled these applications for hearing on April 20, 1982. In February 1982, Riverchase Hospital Systems (Riverchase) filed a similar application with SHPDA. Riverchase then brought suit in the Circuit Court of Montgomery County, Alabama, seeking an order requiring SHPDA to review its certificate of need application along with those already submitted. The court directed consolidation for hearing.

After hearing, SHPDA disapproved all of the applications, and a fair hearing officer determined that a review of SHPDA’s decision was jurisdictionally improper.

Each of the applicants filed an appeal; St. Vincent’s, BMC and Brookwood in the Circuit Court of Jefferson County, Alabama; SMC in the Circuit Court of Shelby County, Alabama; and RMC in the Circuit Court of Montgomery County, Alabama. Riverchase subsequently intervened in St. Vincent’s appeal in Jefferson County and also commenced an action in the Circuit Court of Mobile County, Alabama, requesting a court order directing SHPDA to issue a certificate of need to Riverchase, or, in the alternative, to enter an order requiring SHPDA to appear before the court and show cause why the certificate of need should not be issued.

SHPDA thereafter filed a petition to in-terplead all of the applicants in the appeal of RMC in the Circuit Court of Montgomery County; Alabama. The petition requested injunctions halting the various pending appeals, together with the case of Riverchase in Mobile, and sought consolida-' tion of them all in the Circuit Court of Montgomery County. The Montgomery County Circuit Court enjoined Riverchase’s Mobile suit but denied SHPDA’s request for injunctions against the remaining parties. This court also stayed the Circuit Court of Mobile County from proceeding with the show-cause hearing.

SHPDA appealed here from the Montgomery County Circuit Court’s denial of the requested injunctions and interpleader. This court ordered stays in all of the appeals, pending our review of SHPDA’s appeal. SMC and Riverchase moved to dismiss this appeal, asserting that denial of injunctions is interlocutory and therefore not appealable.

We agree generally that an appeal formerly did not lie from the denial of a preliminary injunction. However, Rule 4(a)(1), A.R.A.P. permits appeals from certain interlocutory judgments if notice is filed within fourteen days of the date of entry. In any event, in view of the exigency involved in this case as hereinafter discussed, we invoke Rule 2(b), A.R.A.P., and in order to address the need for consolidation, we treat the appeal as an alternative petition for writ of mandamus. Thomas v. Thomas, 406 So.2d 939 (Ala.Civ.App.), cert. denied, 406 So.2d 943 (Ala.1981).

The issues before us are whether the various actions now pending at circuit court level should be consolidated, and, if so, in which county venue for consolidation is proper. The applicable statute, § 22-21-275(14), Code of Alabama 1975, provides in pertinent part: “The applicant may appeal the decision to the circuit court of the county in which the applicant is situated.” The statute does not provide for our present situation, where two or more applicants appeal to separate circuit courts following an adverse SHPDA decision. No such case has previously arisen.

After oral position presentations, the parties were requested to submit memorandums of law in support of their positions. Brookwood, St. Vincent’s, BMC, RMC, SHPDA and SMC recognize that the existing situation is untenable; that SHPDA cannot defend separate appeals from its denial of a certificate of need to multiple applicants who are residents of different counties. Only Riverchase contends for literal application of the statute to each applicant.

It appears evident from the use in the statute of the singular word “applicant” that the legislature did not envision that there would be multiple appeals from the same decision in the circuit courts of different counties. We must presume that the legislature would not intentionally create a scenario which would permit the possibility of conflicting judgments of circuit courts on an appeal from one decision. Ex parte Hayes, 405 So.2d 366 (Ala.1978). The result could be the entry of judgments ordering issuance of certificates of need to more than one applicant in the same location. The judicial chaos likely to result from multiple appeals to different circuit courts would extend to this court through appeals from the judgments of the circuit courts.

After much consideration it is the opinion of this court that applications of the parties in this matter, having been consolidated for hearing before SHPDA on the one issue of determining the need for construction of a hospital in Riverchase community, should continue consolidated for appeal to circuit court.

This matter is clearly sui generis. It arises from a ruling of an administrative agency of the State of Alabama over which this court has exclusive appellate jurisdiction. § 12-3-10, Code of Alabama 1975. It is our opinion that by authority of § 12-3-11 of the Code this court has general superintendence and control of inferior jurisdiction in matters over which it has exclusive appellate jurisdiction. The court is of the further opinion that it is empowered to issue necessary remedial orders or writs to prevent the judicial disorder which has been hereinbefore stated.

The petition presented by SHPDA in the Montgomery County Circuit Court sought interpleader of all parties claiming right to a certificate of need under Rule 22, A.R. Civ.P.; injunctive relief against the mandamus action brought by Riverchase in Mobile County Circuit Court; declaratory relief from the multiple appeals and relief under the general equity powers of the court. The circuit court issued a preliminary injunction against Riverchase, restraining it from pursuing its action against SHPDA in Mobile County. The court denied injunctions against the remaining parties’ continuing their appeals in the various counties where filed. It is from the latter judgment that SHPDA has appealed to this court. There is also pending here a petition for writ of mandamus to be directed to the circuit court of Mobile County prohibiting further action in the case of Riverchase against SHPDA.

With the state of the matter as described in mind, it appears to this court that the solution to the existing dilemma cannot be catalogued specifically under any one rule of joinder or interpleader suggested by any of the parties. It may however be classified as an impossible situation which requires solution.

In consideration of the absence of a controlling statute and under the authority of superintendence granted to it by statute, it is the judgment of this court that the appeals brought by the various parties from the order of SHPDA should be consolidated in one circuit court. It is further the opinion of this court that said consolidation should be heard by the circuit court of Montgomery County. This venue is in accord with the general statute that appeals from rulings of state agencies residing in Montgomery must be brought in Montgomery County Circuit Court. Century 21 Preferred Properties, Inc. v. Alabama Real Estate Commission, 401 So.2d 764 (Ala.1981).

Therefore, the Circuit Court of Montgomery County is directed to order all defendant parties herein to file in this case, as parties appellant, their appeals from the ruling of SHPDA denying their applications for a certificate of need. Such appeals will be consolidated for hearing by said court in the Circuit Court of Montgomery County in case No. CV-82-1712-T. The parties will be directed to thereafter dismiss their respective appeals pending in other courts.

The motion to dismiss is denied.

The writ of mandamus is granted unless the trial court enters its judgment as directed herein.

WRIT OP. MANDAMUS IS GRANTED CONDITIONALLY.

APPLICATION FOR REHEARING IS DENIED.

BRADLEY and HOLMES, JJ., concur.

      . In viewing this matter it must be kept in mind that the ruling of SHPDA being appealed is an initial step in the procedure of securing approval of the Department of Health to construct a new hospital, or health service facility. The hearing was held solely to determine need for the proposed facility in the'Riverchase community of South Jefferson-North Shelby Counties. If a need is determined sufficient, a certificate of need is issued to an applicant. Thereafter it is determined whether the applicant's plan will satisfy the need. § 22-21-275.


text:
    Leah Kate JOHNSON v. Willie James JOHNSON.
    Civ. 3893.
    Court of Civil Appeals of Alabama.
    Nov. 23, 1983.
    Rehearing Denied Jan. 4, 1984.
    Certiorari Denied March 2, 1984 Alabama Supreme Court 83-412.

      Rose M. Sanders of Chestnut, Sanders, Sanders & Turner, Selma, for appellant.
    William A. Ryan, Moundville, for appel-lee.
   BRADLEY, Judge.

This is a divorce case.

Leah Kate Johnson and Willie James Johnson were married in 1960 and divorced in June 1983. Mr. and Mrs. Johnson had seven children during their marriage, four of whom are still minors.

In its decree the trial court awarded the wife custody of the four minor children and support for them in the amount of $300 per month. The wife was awarded $100 per month for one year as alimony in gross, a one-half undivided interest in a twelve and one-half acre tract of land, the use of the parties’ jointly owned residence which is situated on an acre tract of land for as long as there are minor children living with the wife, an automobile, and all of the furniture in the family residence. The husband was awarded title to the homeplace, all farm equipment and all other motor vehicles, and a one-half undivided interest in the twelve and one-half acre jointly owned parcel of land. The wife appeals.

The wife’s first issue questions the trial court’s award to the husband of full legal title to the parties’ homeplace. She contends that the parties owned the property as tenants in common with right of surviv-orship and, therefore, the trial court had no authority to award her interest in the property to the former husband. The ex-wife relies on the case of Durant v. Hamrick, 409 So.2d 731 (Ala.1981), as authority for her contention.

Durant does hold that a deed creating in the original grantees concurrent ownership in property as tenants in common for life with cross-contingent remainders to the survivor in fee is indestructible by the act of the cotenant. However, in the case at bar it appears that the parties are joint tenants with right of survivorship in the homeplace rather than tenants in common. But whether they are joint tenants or tenants in common in the property in question is not dispositive in this case.

The parties submitted themselves to the jurisdiction of the equity court for a divorce decree and when they did so they empowered the equity court to supply the consent of either party to a division of their property. Killingsworth v. Killingsworth, 284 Ala. 524, 226 So.2d 308 (1969); Owens v. Owens, 281 Ala. 239, 201 So.2d 396 (1967). We, therefore, find that the trial court had the authority to divide the parties’ property.

The wife says that even if the court had the authority to transfer her interest in the homeplace to the husband, it abused that authority. She says that the land was a gift from her husband’s parents and that she helped her husband build the family residence on that property. She also testified that she worked for other people as a farm laborer to earn money to help pay for materials that went into the house. She said that she also participated in the construction of the house.

The division of property in a divorce action is within the discretion of the trial court and need not be equal, but must be equitable. Smith v. Smith, 423 So.2d 884 (Ala.Civ.App.1982). The trial court’s exercise of such discretion will not be disturbed except for plain and palpable abuse. Perkins v. Perkins, 419 So.2d 593 (Ala.Civ.App.1982).

Although the trial judge said that it was not his policy to award a spouse ancestral property, we conclude, after a careful review of the record, that the evidence supports the award of the homeplace to the husband.

The husband is a farmer and farms the other land owned by the parties. The husband was awarded all of the farm machinery and vehicles other than the one awarded to the wife; the homeplace is close to the husband’s parents’ property, and the husband’s farming operation is a source of income from which he pays child support and alimony.

Based on the evidence we do not find that the trial court abused its discretion in awarding the husband the homeplace.

The wife’s next contention is that the trial court erred in the amount of child support awarded.

Amount of child support to be awarded in a divorce case is for the trial court’s discretion and will not be revised on appeal except where discretion was abused. Plaskett v. Plaskett, 348 So.2d 784 (Ala.Civ.App.), cert. denied, 348 So.2d 789 (Ala.1977). The amount of child support to be awarded in a divorce proceeding depends upon the needs of the children and the ability of the parent to pay. Metcalf v. Metcalf, 340 So.2d 38 (Ala.Civ.App.1976).

The trial court awarded the mother $300 per month for the support of four minor children. There was no evidence in the record as to the needs of the children.

There is evidence in the record that the father earned about $25,000 in 1981 and about $13,000 in 1982. The father is a county commissioner in Hale County. He will earn $9,600 from that job in 1983. He farms and also has a job at a poultry plant. The evidence shows that the husband has a sizeable amount of indebtedness as well as his personal living expenses.

The evidence supports the award of child support.

Finally, the wife argues that the trial court erred in awarding her alimony in the amount of $100 per month for one year. We agree.

The record shows that the parties were married for twenty-three years and had seven children. The wife worked in the fields to earn money to build the parties’ house and to help support the family. She cared for the children and when some of them became older she wanted to go to school so that she could get a better paying job. The husband discouraged her by saying that he wanted her to stay at home and take care of the children. She did.

In 1980 and 1981 the husband assaulted the wife, causing her physical harm. The second time she was assaulted, the wife left the marital home and has not returned. During the time the parties were separated, the wife, who had the minor children with her, lived with relatives and received aid by way of food stamps and welfare assistance.

The wife has no skills other than as a housewife, mother, and laborer. She did say that she wanted to be a nurse’s aid but that would require a good bit of training.

For the twenty-three years of marriage, the wife received the custody of the four minor children, $300 per month for their support, all of the furniture in the marital residence, one 1978 automobile, an undivided one-half interest in the twelve and one-half acre tract of land the parties owned— she was a joint owner of the property before the divorce—and $100 a month for twelve months as alimony in gross.

In determining what is a proper award of alimony, factors for the trial court to consider include future prospects of the parties, their ages, station in life, how long they were married, and the conduct of the parties with reference to the divorce. Hester v. Hester, 379 So.2d 1269 (Ala.Civ.App.1979), cert. denied, 379 So.2d 1272 (Ala.1980).

In the present case it certainly appears that the future prospects of the wife to earn more than a minimum wage are slim to none; whereas the husband’s future prospects for increased earnings appear much brighter. During the twenty-three years of the marriage, the wife was a mother—seven children—and a helpmeet in every sense of the word-. Further, the cause of the divorce was due to the husband’s assaults on the wife.

This evidence warrants the conclusion that the wife is entitled to more than $1,200 as alimony in gross from a husband earning between $13,000 and $25,000 a year. The award of $1,200 as alimony in gross by the trial court amounts to an abuse of the court’s discretion and is reversible error.

That aspect of the decree awarding the wife $100 per month for twelve months as alimony in gross is reversed and the cause is remanded for entry of a judgment awarding the wife $150 per month as periodic alimony; all other aspects of the decree are affirmed.

The wife is awarded $350 as an attorney’s fee on appeal.

The husband’s request for an attorney’s fee is denied.

AFFIRMED IN PART, REVERSED IN PART AND REMANDED WITH DIRECTIONS.

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


text:
    Terrisa Diane Turner SYPHRIT v. Odie TURNER. Martha and Frank BAGGETT v. Odie TURNER.
    Civ. 3888 and Civ. 3888-A.
    Court of Civil Appeals of Alabama.
    Nov. 30, 1983.
    Rehearing Denied Jan. 4, 1984.
    Certiorari Denied March 2, 1984 Alabama Supreme Court 83-409.

      Joseph C. McCorquodale, III, Jackson, for appellant Terrisa Diane Turner Syphrit.
    Ronnie E. Keahey, Grove Hill, for appellants Martha Baggett and Frank Baggett.
    Lee B. Williams, Grove Hill, for appellee.
   BRADLEY, Judge.

This is a child custody case.

Terrisa Diane Turner Syphrit (Syphrit) and Odie Turner (Turner) were divorced on August 29, 1980. By agreement the wife was awarded custody of the parties’ minor child, Kelley Nichole. The husband was required to pay child support of $25 per week and was given reasonable visitation privileges.

On April 12, 1982 the father filed a petition to modify the decree requesting custody of his daughter due to a material change in circumstances since the divorce. Syphrit’s parents, Frank and Martha Bag-gett, as intervenors in the suit, asked that they be awarded custody.

Both the mother and the maternal grandparents appeal from an order of the Clarke County Circuit Court which, among other things, modified the original decree of divorce and awarded custody of the minor child to her father.

It is argued here that the trial court erred in considering two reports furnished by the Clarke County Department of Pensions and Security, in modifying the decree and awarding custody of the child to her father, and in denying any custodial right to the mother and maternal grandparents.

Syphrit takes the position that it was clearly improper for the court to consider the DPS reports it referred to in its order, inasmuch as the reports were not introduced into evidence and made a part of the record on appeal.

The trial court’s final decree provides as follows:

“[Tjestimony having been heard and evidence having been presented, and the Court having considered the same, including reports furnished the Court by the Department of Pensions and Security of Clarke County, Alabama, dated the 24th day of January 1983, and the 22nd day of February 1983 -” (Emphasis added.)

By written order dated December 20, 1982, the court directed the Clarke County Department of Pensions and Security to make an investigation of the parties’ homes and to report its findings in writing to the court on or before January 24, 1983. Apparently two such reports were made: one on January 24, 1983, the other on February 22, 1983. As evidenced by its final decree, these reports were considered by the trial court along with all the other evidence in deciding the custody of the minor child, Kelley.

Syphrit now contends that it was wrong for the court to consider the reports without first giving her the opportunity to examine the reports or question the person(s) who prepared the reports.

In child disposition hearings the court may receive oral and written reports and rely on them to the extent of their probative value. Murphy v. Quinn, 402 So.2d 1033 (Ala.Civ.App.1981). However, all parties to such a proceeding are entitled to know all the evidence that is considered by the trial court, and to cross-examine agents of DPS as to their recommendations. Lawson v. Jennings, 52 Ala.App. 582, 296 So.2d 176 (Ala.Civ.App.1974).

In the case at bar the court informed the parties and their attorneys, in writing, that it had requested DPS to investigate the homes of the parties and report back to it no later than January 24, 1983. Thus, the parties were fully aware of the trial court’s request for reports from DPS and that the court would consider such reports in making its decision. The parties made no objection to the court’s request for DPS reports, nor did they make any effort to prevent the trial court from considering such reports in making its final decision. Under these circumstances we consider that appellants have waived any objections they might have had to the DPS reports being considered by the trial court. Lawson v. Jennings, supra; Dorough v. Colvard, 284 Ala. 462, 225 So.2d 866 (1969).

The final issue is whether the evidence discloses a material change of circumstances affecting the welfare of the child which supports a change of custody from the mother to the father.

The evidence submitted to the trial court in support of the father’s petition for modification revealed that Syphrit and Turner were divorced soon after the minor child, Kelley, was born. Syphrit was barely sixteen years old at the time she was awarded custody. After the divorce she took the child to live with her at her parents’ house. Between August 1980 and January 1982, the Baggetts supported Syphrit and Kelley and helped in the rearing of their grandchild.

In January 1982 Syphrit moved in with her boyfriend, Charles Syphrit, in his mother’s home in Jackson, Alabama. She left the child with the Baggetts. One week later Syphrit returned for Kelley and took her to Jackson with her where Kelley remained for three or four months. During this time Syphrit found she was pregnant by her boyfriend, and agreed to let the Baggetts have custody of Kelley. Syphrit testified that she now wished to withdraw that consent and retain custody of the child. Apparently on the advice of her attorney, Syphrit returned the child to the Baggett home when she was served with her ex-husband’s petition.

Syphrit married Charles Syphrit on August 2, 1982 and the couple have a daughter, born August 25, 1982. Subsequently, she had marital difficulties with her husband, moved out, and went to Troy, Alabama for about a week. The couple has since reconciled and they currently enjoy a good marital relationship.

Syphrit is now eighteen years old and her husband is seventeen years old. They reside in a two-story brick home which is fully paid for. Charles Syphrit is a stock-boy at Piggly-Wiggly and earns about $150 a week. Syphrit does not work and is a full-time mother. The evidence shows she loves Kelley very much and wants Kelley to be able to grow up with her half sister in Jackson.

The hearing on this matter also revealed that Kelley is now three years of age and has lived with her grandparents, the Bag-getts, since she was a few months old. The Baggetts have raised her, provided for her, and loved her, and the only assistance they received from anyone was $25 per week support paid by Turner. They have two other children, ages sixteen and twelve, who live-with them in their house trailer. Both Mr. and Mrs. Baggett work full time and leave the child with a sitter while they are working. It is without dispute that on occasion the Baggetts have used profanity in Kelley’s presence and have refused to allow Turner to visit with the child.

Turner, the child’s father and appellee here, is twenty-four years old. He is married to Donna Turner and the couple lives in a mobile home in Fulton, Alabama. They do not have any children of their own. Donna has known Kelley since April 1982, when Turner started getting weekend visitation rights pursuant to a temporary court order. Donna is willing to treat Kelley as she would her own daughter and will care for her and love her. Kelley and Donna appear to have a very good relationship. There was testimony given at trial that Turner is a suitable person to have custody.

Both Turners work full time. Turner is employed at MacMillan-Bloedel in Pine Hill, Alabama and has been for over six years. He works 7:00 a.m. to 3:30 p.m. some weeks and 4:30 p.m. to 1:00 a.m. other weeks. Mrs. Turner works at TG&Y in Thomasville, Alabama and works 8:00 to 4:00 some days, 9:00 to 5:00 some days, and 12:00 to 8:00 some days. The Turners have arranged to have Lois Roberts, Donna’s mother, take care of Kelley while they are working. Sometimes it is 8:30 or 9:00 p.m. before one of them can pick up the child after work.

The evidence shows that Turner has shown a sincere concern for his daughter’s welfare. He has always paid the $25 support obligation required of him under the decree, maintains hospital insurance on the child, and has designated her the beneficiary of a life insurance policy. According to Turner, he has always tried to exercise his visitation rights.

The father, as the party seeking to modify a prior award of custody, bears the burden of showing a material change in circumstances which affects the best interests and welfare of the child. If he can satisfy this burden, modification of the pri- or custody award is warranted. Munchus v. Munchus, 412 So.2d 794 (Ala.Civ.App.1982).

Summarizing the evidence relating to the mother’s conduct as it affects her child, we find that the mother moved out of her parents’ home and moved in with her boyfriend, carried Kelley with her, lived in these conditions for several months, and became pregnant by her boyfriend. After learning of her pregnancy, and apparently after being served with her ex-husband’s petition for custody of Kelley, Syphrit carried Kelley back to her parents to live.

The evidence relating to the father shows that he is a hard worker, is married, has paid his child support regularly, has visited Kelley when permitted, wants Kelley’s custody, and is a fit parent.

Based on this evidence we cannot say that the trial court’s judgment awarding Kelley’s custody to her father is clearly wrong and unjust. Sheffield v. Sheffield, 350 So.2d 1056 (Ala.Civ.App.1977).

In brief here the grandparents argue that the court should have awarded Kelley’s custody to them rather than to the father. They say they should have custody of Kelley because Kelley has been with them most of her short life and they want her to continue to live with them.

There is a presumption that where there are conflicting claims to custody between a parent and a nonparent, the parent has the primary right to custody. Pendergrass v. Watkins, 383 So.2d 851 (Ala.Civ.App.1980). The party seeking to overcome such presumption has the burden of convincing the trial court that the best interests of the child will be served by placing custody with that party. Willette v. Bannister, 351 So.2d 605 (Ala.Civ.App.1977).

The trial court found that the father was the more suitable custodian for the child. By so doing the trial court, in effect, held that the Baggetts had failed to overcome the parental presumption accorded to the father. The Baggetts contend such a finding is unsupported by the evidence. We disagree.

As noted above the father is a fit parent to have custody of Kelley and the trial court found that Kelley’s best interests and welfare would be served by her custody being placed with the father. We do not find such judgment to be wrong or unjust, nor is it unsupported by the evidence.

The judgment of the trial court is affirmed.

AFFIRMED.

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


text:
    Reba Shell AKERS, Executrix of the Estate of James Robert Shell, deceased v. Renate HAMM.
    Civ. 3911.
    Court of Civil Appeals of Alabama.
    Jan. 4, 1984.
    Rehearing Denied Feb. 8, 1984.
    James W. Rane and Samuel J. Clenney, III, Abbeville, for appellant.
    L.A. Farmer, Jr. of Farmer & Farmer, Dothan, for appellee.
   WRIGHT, Presiding Judge.

This is a probate case.

In December 1981, Renate Hamm was employed as office and medical manager of Shell Clinic, a medical clinic owned by Dr. James Shell. She had been so employed for almost fifteen years. On December 3, 1981, Dr. Shell, who was critically ill and hospitalized at the time, presented her with a check in the amount of $1,806.43. This amount represented two months’ salary and a Christmas bonus of $300. That same day, Mrs. Hamm, who had power of attorney for Dr. Shell, drew two other checks on his behalf. One check, which was drawn on Dr. Shell’s personal account, was payable to Pioneer Insurance Company in the amount of $610.80. The other, which was drawn on the clinic’s account, was payable to Union Fidelity Life Insurance Company in the amount of $533.61. The three checks were returned by the bank unpaid. Dr. Shell died on December 5, 1981.

Mrs. Hamm filed a claim against Dr. Shell’s estate for the amount of the three cheeks, claiming that, in addition to the salary owed her, the two checks payable to Pioneer and Union Fidelity were for medical insurance which Dr. Shell had agreed to provide for her.

On February 22, 1983, Mrs. Hamm petitioned for removal of the administration of the estate to the Circuit Court of Henry County, Alabama. After an ore tenus hearing, at which Mrs. Hamm was the only witness, the trial court rendered a judgment of $2,986.81 in her favor. Reba Shell Akers, executrix of Dr. Shell’s estate, appeals here asserting that the trial court’s judgment was plainly erroneous. In particular, she contends that the trial court committed reversible error by allowing Mrs. Hamm to testify as to the salary and insurance owed her in violation of Alabama’s “Dead Man’s Statute,” § 12-21-163, Code of Alabama 1975. We disagree.

Section 12-21-163 provides in pertinent part:

“[N]o person having a pecuniary interest in the result of the action or proceeding shall be allowed to testify against the party, to whom the interest is opposed as to any transaction with, or statement by, the deceased person whose estate is interested in the result of the action or proceeding....”

As Mrs. Akers correctly asserts, this section, which prevents fraudulent claims against a decedent’s estate by prohibiting the testimony of a living witness as to transactions with the decedent, applies where (1) the estate of the decedent is interested in the outcome of the suit; (2) the witness has a pecuniary interest in the result of the proceedings; and (3) the testimony of the witness relates to a personal transaction with the decedent. Bank of the Southeast v. Koslin, 380 So.2d 826 (Ala.1980); Walling v. Couch, 292 Ala. 33, 288 So.2d 435 (1973). Although all of these factors are present, we may not reverse.

If there is no objection to admission of testimony in violation of the “Dead Man’s Statute,” the statute is deemed waived on appeal. Smith v. Haynes, 364 So.2d 1168 (Ala.1978); Norton v. Liddell, 280 Ala. 353, 194 So.2d 514 (1967). The record indicates no objection was made to the admission of Mrs. Hamm’s testimony. Therefore, we must affirm.

AFFIRMED.

BRADLEY and HOLMES, JJ., concur.


text:
    Timothy WILLIAMS v. Franklin JAMES, as Director, Department of Industrial Relations, and Diversified Products Corporation.
    Civ. 3904.
    Court of Civil Appeals of Alabama.
    Jan. 11, 1984.
    Rehearing Denied Feb. 15, 1984.

      Faith R. Cooper of Legal Services of Ala., Opelika, for appellant.
    George Cocoris, Gen. Counsel, and Frank D. Marsh, Asst. Gen. Counsel, Dept, of Industrial Relations, Montgomery, for ap-pellee.
   BRADLEY, Judge.

This is an unemployment compensation case.

Claimant, Timothy Williams, was employed as a forklift driver by Diversified Products of Opelika, Alabama. In July 1982 Williams ran his forklift into some scales. Shortly thereafter he was fired. Williams then applied for unemployment benefits. The request was denied by the Department of Industrial Relations, and Williams’s administrative appeals were overruled. He then appealed to the Circuit Court of Lee County for a de novo hearing. § 25-4-95, Code 1975.

After the hearing the circuit court entered judgment holding Williams was discharged from his employment for misconduct after warning and was, thus, disqualified from receiving unemployment benefits. § 25-4-78(3)(b), Code 1975, as amended. Claimant appeals.

Claimant argues here that his forklift accident was not an act of “misconduct” within the meaning of section 25-4-78(3)(b), which would disqualify him from receiving any benefits.

Section 25 — 4—78(3)(b), Code 1975, presently provides, in pertinent part, as follows:

“An individual shall be disqualified for total or partial unemployment:
“(3) Discharge for misconduct.
“b. If he was discharged from his most recent bona fide work for actual or threatened misconduct committed in connection with his work ... repeated after previous warning to the individual.” (Emphasis added.)

In 1982 subsection (3)(b) was amended to delete the word “deliberate” from the phrase “actual or threatened deliberate misconduct.” Now an employee who has been terminated for misconduct after warning loses all unemployment benefits. It is only when an employee is terminated for misconduct without warning that he is enti-tied to partial benefits. § 25-4-78(3)(c), Code 1975.

It is for the trial court, after considering all the evidence in a case, to determine whether a claimant is totally disqualified from receiving benefits under (3)(b) or partially disqualified from receiving benefits under (3)(c). Payne v. Director of the Department of Industrial Relations, 405 So.2d 1322 (Ala.Civ.App.), cert. denied, 405 So.2d 1324 (Ala.1981). Once such a decision is made, the trial court’s findings are presumed correct and will not be set aside unless plainly contrary to the great weight of the evidence. Steele v. Carter, 390 So.2d 299 (Ala.Civ.App.1980).

In the instant case the trial court found that claimant was totally disqualified from receiving any benefits under (3)(b).

The evidence in support of such a finding shows that claimant was discharged after running his forklift into some scales, resulting in considerable damage to the scales.

Claimant contends that such an occurrence, i.e. damaging the scales with the forklift, is not misconduct within the meaning of section 25-4-78(3)(b), and thus he should not be disqualified from receiving benefits.

Defendants contend that claimant’s discharge did not occur solely because of the forklift incident, but that it resulted from a steady deterioration of his overall job performance, of which the forklift incident was the last straw.

From 1979 to 1982 claimant had been a good worker. Beginning in the early part of 1982, his job performance began to dwindle. He received several oral and written warnings about being late to work and leaving work early. Claimant had about twenty-eight instances of lateness for work in 1981. In May 1982 he received another warning about being late for work and also a reprimand for four job-related errors. Claimant failed to deliver the proper sizes of pipe to the paint shop.

Claimant was advised by his supervisor that unless his overall job performance improved, further disciplinary action would be taken against him. In July 1982 claimant severely damaged some scales when the forklift he was operating in an area with which he was thoroughly familiar struck the scales.

The continued failure of an employee to perform his job in a manner which previous performance indicates is contrary to his experience and ability may be found to be misconduct under section 25-4-78(3)(b), Code 1975. See Sheink v. Maine Department of Manpower Affairs, 423 A.2d 519 (Me.1980); Kosmalski v. Commonwealth Unemployment Compensation Board of Review, 40 Pa.Commw. 527, 397 A.2d 875 (1979); Fitzgerald v. Globe-Union, Inc., 35 Wis.2d 332, 151 N.W.2d 136 (1967).

As noted above the evidence shows that claimant was warned several times about his poor job performance and advised that if it did not improve further action would be taken against him. The forklift incident occurred after this warning. Moreover, there is evidence in the record from which the trial court could have concluded that the damage to the scales resulted from the reckless operation of the forklift by the claimant.

Whether claimant’s discharge was due to misconduct with warning pursuant to section 25-4-78(3)(b) was a fact to be found by the trial court according to the evidence. Based on the evidence in the record, a portion of which is set out above, we cannot say that the finding of the trial court is clearly wrong. We therefore affirm the denial of benefits to claimant.

AFFIRMED.

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


author: WRIGHT, Presiding Judge. HOLMES, Judge

text:
    Billy Joe SIMMONS v. FAYETTE COTTON MILL, INC.
    Civ. 3694.
    Court of Civil Appeals of Alabama.
    Feb. 8, 1984.
    James J. Jenkins of Phelps, Owens, Jenkins, Gibson & Fowler, Tuscaloosa, for appellant.
    McCoy Davidson of Roberts, Davidson, Wiggins & Davis, Tuscaloosa, for appellee.
   WRIGHT, Presiding Judge.

This is a workmen’s compensation case.

Claimant, Billy Joe Simmons, age forty-eight, was last employed by employer Fa-yette Cotton Mill as a section man or “fixer” which means he was responsible for maintaining a certain amount of frames. While at work on December 14, 1977, claimant stepped on a piece of chalk and “turned his ankle over,” but finished working his shift. The following night he went to the emergency room at Fayette Hospital. His foot was X-rayed. There being no broken bones, an ace bandage was wrapped on his ankle. His ankle worsened and Dr. Peacock put a cast on his foot for several weeks.

The cast was ineffectual in alleviating claimant’s pain, and Dr. Peacock referred him to Drs. Boston and Buckley, Orthopedics, in Tuscaloosa. Claimant was hospitalized and underwent surgery for something known as sympathetic blockage. Claimant then saw a neurosurgeon, Dr. Walter Whi-tehurst, in Birmingham, who diagnosed his malady as reflex sympathetic dystrophy, which is a condition that can result when a relatively minor injury to a nerve causes the sympathetic nerves to become abnormal.

Dr. Whitehurst surgically implanted a dorsal stimulator in claimant’s spinal cord in an attempt to control the pain in the extremity affected. Subsequently, the stimulator was removed because of infection and then later reinserted to control pain. Presently the stimulator is not in and claimant takes a prescription called Perco-dan, which is a strong narcotic used to relieve pain.

Claimant received workmen’s compensation payments from the date of his injury until March 12, 1981, at the rate of $120 per week. Payments ceased when claimant was assigned a thirty-five percent disability to the body as a whole.

On September 23, 1981, claimant filed suit in the Circuit Court of Fayette County, seeking benefits for total permanent disability. In September 1982, the trial court entered judgment in favor of employer, denying claimant’s claim for further benefits. Claimant’s subsequent motion for a new trial was denied. Claimant appeals.

On appeal claimant raises two issues; (1) whether there was any evidence of no physical disability of claimant, and , (2) whether there was any evidence of no vocational disability suffered by claimant.

“A review of the weight or preponderance of the evidence or whether the finding of fact by the trial court was correct is not properly before this court.” Suit v. Hudson Metals, Inc., 414 So.2d 115, 116 (Ala.Civ.App.1982), but rather “[W]e may only inquire as to whether there was any legal evidence to support the trial court’s finding.” (Emphasis supplied.) Id. Moreover, the trial court’s findings on conflicting evidence are conclusive. Young v. City of Huntsville, 342 So.2d 918 (Ala.Civ.App.1976), cert. denied, 342 So.2d 924 (Ala.1977). This court therefore, must juxtapose the trial court’s findings with the evidence presented at trial and determine if any of the evidence supports the court’s decision.

Specifically the trial court found:

1. That claimant received a minor injury for which he was entitled to receive compensation benefits.
2. That claimant did not prove that he received any permanent injury or disability (with all of its possible consequences of loss of income, decrease in ability to earn or the like) that was the direct or proximate result of the injury he sustained on December 14, 1977.
3. That the testimony of Drs. Gabriel Fernandez and Walter Whitehurst do not prove that claimant is totally or partially disabled as a result of the injury he received in December 1977.
4. That claimant’s testimony regarding his physical inability to do certain things is directly impeached by documentary evidence and testimony presented by appellee.
5. That claimant does not now have any permanent disability, either partial or total as a result of the accident for which employer is liable.

The evidence of the trial court apparently relied upon was the testimony, photographs and film provided by a witness, Mr. Michael Reagan, an insurance investigator hired by employer. This evidence tended to controvert claimant’s alleged disability. Upon cross examination claimant denied that he could walk out in his front yard without the aid of crutches or use an axe to chop kindling wood. When asked if he had helped anyone pick up aluminum cans along a highway, he admitted accompanying his wife and a friend but denied picking them up from the floorboard of a car or helping to store them. Further testimony by claimant revealed a discrepancy between his answers given at trial and those given at a previous deposition regarding claimant’s ability to do woodwork and his use of a cane.

Mr. Reagan, the investigator, testified regarding what he and an associate observed and photographed while having claimant under surveillance. Claimant was seen walking with his weight on his cane, bending from the waist to remove what appeared to be aluminum cans from the floorboard of a vehicle and carrying them to another big pile of cans and sanding some woodwork. He was also seen and photographed using an axe to split wood.

Mr. Reagan also testified that two men in an Alabama Power Company car arrived at claimant’s house. Claimant used his crutches during the entirety of their visit but after their departure, claimant emerged from his house carrying his crutches over his shoulder.

While film, photographs and testimony such as that above do not lend increased credibility to claimant’s veracity, neither does it establish that no disability, either physical or vocational, exists. Such evidence does show claimant has walked without his crutches and has, at least on one occasion, sanded some woodwork and lifted aluminum cans, but this does not negate his claim of some physical and vocational disability.

It is correct that the general rule is that “[A]n expert opinion is not conclusive on the trier of fact even if the testimony was uncontroverted. Furthermore, the weight and credibility to be attributed to an expert witness is for the trier of fact.” Clark Lumber Co. v. Thornton, 360 So.2d 1019, 1021 (Ala.Civ.App.1978). Thus, while the court is not obligated to accept the experts’ conclusions, “[A]ll reasonable doubt in the evidence must be resolved in favor of the employee.” Lankford v. Redwing Carriers, Inc., 344 So.2d 515, 520 (Ala.Civ.App.1977).

Dr. Fernandez testified in deposition that claimant’s case is,

“[o]ne of the most complicated cases that I have seen stemming from a simple problem to begin with which was apparently a twisted ankle type problem .... I don’t think there is any question that from what I gather from the records now that after the month or so elapsed a problem of what they call reflex sympathetic dystrophy developed and coupled with that there was a problem with cellu-tis of the skin which is an infection of the skin itself.”

Dr. Fernandez further stated that he believed claimant suffers now from a herniated disc condition. Regarding claimant’s ability to work, Dr. Fernandez opined that, “I think he is incapable of working right now.”

Dr. Whitehurst testified in deposition that in his opinion claimant has a reflex dystrophy and that there is “very much of a possibility that if claimant’s dorsal stimulator cannot be successfully inserted and remain in place that claimant could become addicted to the narcotics that he would have to take to suppress his pain.” He then stated, “I don’t think he [claimant] should be working.”

Clearly from a review of the evidence presented, claimant has some disability. The inference presented by the impeaching evidence concerns the extent and severity of the physical disability and the precise limitations such disability places on his vocational ability.

There is no disputing evidence but that his disability, whatever it is, results from the initial injury. If the effect of that injury has extended to other parts of his body, producing a greater and more prolonged incapacity than would naturally result, claimant is not limited in his recovery for the specific injury. Bell v. Driskill, 282 Ala. 640, 213 So.2d 806, 811 (1968). Claimant need not be absolutely helpless or entirely physically disabled to be assigned a permanent total disability, but rather he must be unable to perform his trade or unable to obtain gainful employment. J.S. Walton & Co. v. Reeves, 396 So.2d 699 (Ala.Civ.App.1981).

We find the evidence does not support the trial court’s determinations other than number “1.” The resolution of this case must be that of having some permanent partial disability. We reverse the trial court’s finding of no permanent disability and remand the case to that court only for a determination of the extent of such disability insofar as it affects his ability to earn.

REVERSED AND REMANDED.

BRADLEY, J., concurs.

HOLMES, J., concurs specially.

HOLMES, Judge

(concurring specially).

I view this case as involving a unique question of workmen’s compensation law.

It appears to me that the basic question to be resolved is as follows: the evidence, as I view it, shows that the employee has some degree of permanent partial disability. The evidence also reveals that the employee has exaggerated his injury. In fact, it could be said the employee has been untruthful. Under these facts, is the trial court free to find the employee has failed to prove a compensable injury?

My initial conclusion was that under the standard of appellate review of workmen’s compensation eases, i.e., “any evidence,” the trial court was due to be affirmed. However, upon reflection I believe the better conclusion, when viewed in light of the “beneficent purposes” of the act and the somewhat unusual facts of this case, is that the case should be remanded to the learned trial judge. Upon remandment, a determination should be made as to the percentage of permanent partial disability.

I would further comment that in my view there is no need for additional testimony and, furthermore, the trial court can, in view of the employee’s burden of proof, consider the employee’s “untruthfulness” in determining the percentage of disability.


author: HOLMES, Judge.

text:
    John William MOSES v. Peggy Ann (Moses) HOLOWAY.
    Civ. 3983.
    Court of Civil Appeals of Alabama.
    Feb. 8, 1984.

      Howard Belser, Jr., Decatur, for appellant.
    Sherman B. Powell, Jr., Decatur, for ap-pellee.
   HOLMES, Judge.

This is an appeal from a court order ordering a resale of marital property sold under a previous court order.

The parties to this appeal were divorced in February 1982. The divorce decree gave the wife the use of the marital home and approximately seven acres of land surrounding the house. When the wife remarries, the decree in pertinent part provides that the homeplace would be sold and the proceeds divided equally. The property is subject to a $10,000 mortgage held by the husband’s father.

The wife subsequently remarried and she petitioned to have the property sold as mandated by the terms of the decree. The trial court ordered the property sold at public auction and the proceeds divided after the mortgage was paid.

At the auction the husband’s father bid $10,000, the highest and only bid received, and the property was “knocked down” to him. The husband’s father set off his mortgage against the purchase price and obtained title. The husband’s father is not a party to this appeal. The parties are the wife and the husband.

Thereafter, the wife objected to the sale on the grounds that the price was inadequate and that the husband and his family prevented others from bidding by intimidating them.

At the hearing the wife presented a witness who testified that he would pay $15,-000 for the property if it were to be resold. The witness further testified that he had intended to bid as much as that on the property at the auction, but he did not bid at all because he was, in effect, “discouraged” from bidding by the husband’s brother who lived next to the property.

After the hearing, the trial court set aside the sale to the husband’s father and ordered the property resold at public auction. The husband, through able counsel, now appeals that order.

The only issue on appeal is whether the trial court erred in setting aside the sale. We find no error and affirm.

It has been said that the overriding objective in cases such as this one is to sell the property so as to realize the best price possible with regard to fairness and the rights of all the parties. Martin v. Martin, 415 So.2d 1120 (Ala.Civ.App.1982). Also, under the ore tenus rule, we must presume that the trial court’s conclusions are correct, and we will not disturb these findings unless they are palpably wrong. Martin v. Martin, 415 So.2d 1120 (Ala.Civ.App.1982).

This court is aware of the principle that courts must not render judicial sales unstable by setting them aside too freely. Martin v. Martin, 415 So.2d 1120 (Ala.Civ.App.1982). However, “each case of this kind must rest upon its own bottom,” and if, after considering all of the surrounding facts and circumstances, the trial court is convinced that the price obtained was not a reasonably fair one, then it is within the trial court’s discretion to order a new sale. Jones v. Bridges, 336 So.2d 1113 (Ala.1976).

Considering the facts and circumstances under the presumptions accorded the trial court, we find that a resale of the property would be consistent with the objective of realizing the best price possible with regard to everyone’s rights. The ordering of the resale was within the trial court’s discretion which, in this instance under these facts, was properly exercised.

Here, the sale was not to a stranger; it was to the husband’s father who also happened to hold the mortgage on the property. The purchase price bid by the father equalled his mortgage so that the parties did not realize any money from the sale, only relief from the mortgage, and furthermore, the parties are responsible for the expenses of the sale. The father’s mortgage will be satisfied from the resale so it appears that he will not be out any money except possible incidental expenses. Clearly, under these facts, the trial court was within its discretion in ordering a new sale to achieve a reasonable price. The parties are not prejudiced by the trial court’s action, and the father is not a party to this appeal, although it appears that he will not be substantially harmed.

In regard to the matter of “intimidation” by the husband’s family, there is evidence to support the trial court’s findings.

At the hearing a witness testified that he went out to inspect the property before the auction with the intention of calculating a bid. While on the property the witness was approached by the husband’s brother. According to the witness, the brother indicated that the witness was not welcome on the property and that the property belonged to his father. The witness and the husband’s brother had a conversation concerning the sale of the property, and the brother informed the witness that the neighbors, of whom the brother was one, would not be too “friendly” if the witness bought the property at auction.

The witness further testified that he attended the auction but did not bid when he saw that the husband’s father was the only one bidding.

The trial court concluded that the brother’s actions were enough to taint the sale. Under the present facts and circumstances, we cannot say that the trial court’s conclusions, when viewed with the attendant pre--sumptions, are in error. This is so especially considering our conclusion on the adequacy of the price.

This case is due to be and is affirmed.

AFFIRMED.

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


text:
    George MULLINS v. ALLIED PRODUCTS CORPORATION, a Delaware Corporation, Bush Hog Continental Gin Division.
    Civ. 4001.
    Court of Civil Appeals of Alabama.
    Feb. 8, 1984.

      Harold Howell of Howell, Sarto & Howell, Prattville, for appellant.
    Tabor R. Novak, 'Jr. of Ball, Ball, Duke & Matthews, Montgomery, for appellee.
   WRIGHT, Presiding Judge.

This is a workmen’s compensation case.

George Mullins (claimant) is a fifty-nine-year-old man formerly employed by Allied Products Corporation, Bush Hog Continental Gin Division (employer). Claimant worked as a welder in the press shop where cotton gins were constructed. His duties included the fabrication of steel doors which involved • lifting and exertion when certain doors were manually turned in the course of fabrication.

On April 1, 1982, while claimant was at work he did not feel like eating lunch. About 1:30 P.M. he experienced a tightness in his chest. The pain subsequently shifted to his left elbow. He had a cold sweat. He informed two co-workers of his condition. He completed his shift of work and went home.

At home, he took a short walk and ate supper. While walking he experienced shortness of breath, tightness of chest and pain in his left arm. After supper he went to his bedroom where he fainted and suffered a heart attack. Claimant was taken to the emergency room at the Chilton County Hospital where he was treated and admitted for a myocardial infarction. He was transferred to Baptist Medical Center in Montgomery for approximately thirteen days. Subsequently, he was transferred to St. Margaret’s Hospital for a cardiac cath-eterization. The catheterization disclosed a narrowing of all three coronary arteries, some more severe than others and moderate damage from the heart attack.

Claimant underwent extensive treatment, care and rehabilitation before being released to return to work with some limitations placed on him. He has been unable to resume his former work.

Claimant brought suit against employer in the Circuit Court of Autauga County for alleged benefits due him under the Workmen’s Compensation Act. The court entered judgment in favor of the employer, finding that no medical causation for claimant’s injury was shown. A motion for a new trial was denied. Claimant appealed.

The issue on appeal is whether the trial court committed reversible error in his determination that claimant failed to offer proof regarding medical causation.

Our review in a workmen’s compensation case is limited to a determination of whether any lawful evidence exists to support the finding of fact by the trial court and whether the correct law was applied to such facts. City of Tuscaloosa v. Howard, 55 Ala.App. 701, 318 So.2d 729 (1975).

For an accident or death to be com-pensable under the Alabama Workmen’s Compensation Act, two requisites must be shown: (1) that the accident or death must have arisen out of the employment, and (2) the accident or death must have occurred in the course of employment. Slimfold Manufacturing Co. v. Martin, 417 So.2d 199 (Ala.Civ.App.1981), writ quashed, 417 So.2d 203 (Ala.1982). The burden is upon the claimant to establish a definite causal connection between his work and the alleged injury. Id.

In City of Tuscaloosa v. Howard, supra, the problem of causation in heart attack cases was detailed. The two-pronged test adopted in that case is as follows:

“If in the performance of the duties for which he is employed an employer is exposed to a danger or a risk materially in excess of that to which people not so employed are exposed, and an injury occurs, such injury may legally be determined to have arisen from his employment and to be an accident under the statute. Such can be the legal test of causation. However, the medical test of causation must also be met — that is that such exposure, though operating with or upon other exposure common to all was in fact the contributing cause of the injury.”

Id. at 705-706, 318 So.2d at 732.

The trial court concluded that though there was some evidence which might satisfy the test of legal causation, it was unnecessary for the court to make such a determination because claimant failed to offer proof regarding medical causation. The court found that the record was “silent as to any evidence to satisfy the Court that any strain or exertion experienced by [claimant] on April 1st was a contributing cause to his heart attack.” The court stated that none of the treating physicians offered any testimony relating to any connection which may have existed between claimant’s job and his heart attack.

Moreover, the court noted in its order that the attending cardiologist testified that where an underlying heart disease exists, physical or mental stress can bring on a heart attack, or one may occur spontaneously without any stress whatsoever, and that the doctor did not offer any opinion that claimant’s heart attack was precipitated by any physical or mental exertion arising out of his job performance. The court also found the medical records silent as to any causal connection between claimant’s employment and his heart attack.

Claimant contends there is evidence tending to show a medical causal connection. He additionally argues that since the Workmen’s Compensation Act is remedial in nature, it should be liberally construed to effectuate the intended beneficent purposes and that all reasonable doubts should be resolved in claimant’s favor. See, Kroger Co. v. Millsap, 280 Ala. 531, 196 So.2d 380 (1967). However, even such a liberality of construction does not abrogate the measure of proof or sufficiency of evidence required in ordinary cases. Id. The burden remains upon claimant to reasonably satisfy the trial court that the requisite causal connection exists between an alleged infirmity and claimant’s course of employment. See, id.

As we stated in City of Tuscaloosa v. Howard, supra, merely showing claimant had a heart attack is not enough to establish the requisite proof of causation. Neither the court, employer, or attending physicians contested that claimant suffered a heart attack; however, the evidence does not show a definite medical causal connection between claimant’s employment and the heart attack he suffered April 1, 1982. Therefore, we must affirm the trial court’s judgment.

AFFIRMED.

BRADLEY and HOLMES, JJ., concur.


text:
    Jean Bodden ROBERTS v. William L. ROBERTS, Jr.
    Civ. 4033.
    Court of Civil Appeals of Alabama.
    Feb. 8, 1984.

      Irving Silver and Ellen J. Mullins of Silver & Voit, Mobile, for appellant.
    Warren L. Hammond, Jr. of Conrad, Hammond & Barlar, Mobile, for appellee.
   BRADLEY, Judge.

This is an appeal from the granting of a Rule 60(b)(6), Alabama Rules of Civil Procedure, motion.

On January 26, 1983 the parties to this appeal were divorced by a decree of the Circuit Court of Mobile County. In that decree the wife was ordered to convey her interest in the homeplace to husband and husband was ordered to pay wife a reasonable attorney’s fee. The court awarded m alimony to either party and allowed each ⅜ retain the personal property brought into the marriage. No disposition was made of any real property owned by the parties.

On June 2, 1983, four months and six days after entry of the judgment of divorce, husband filed a motion to amend the decree under rule 60(b), A.R.C.P., seeking a conveyance of wife’s interest in certain jointly owned real estate acquired during the marriage. Husband claimed he had “just discovered” that he and wife owned the property, that he was “unaware” of the joint ownership until recently and that this was an “inadvertent mistake.” Wife requested the court to deny the motion because it was filed too late. Rule 60(b)(1), A.R.C.P.

After a hearing on the motion, the court granted the motion, treating it as a 60(b)(6) motion, and ordered wife to transfer her interest in the jointly owned property to husband. She appeals.

The issue presented is whether the trial court erred in treating husband’s motion to amend the decree under rule 60(b) as falling under the purview of 60(b)(6).

By the specific provisions of rule 60(b)(1), (2), and (3), a motion for relief from judgment based upon mistake, inadvertence, surprise, excusable neglect, newly discovered evidence, or fraud, must be filed not more than four months after the judgment was entered. A motion filed pursuant to rule 60(b)(6) permits relief from judgment in the discretion of the trial court for “any other reason justifying relief,” and allows a motion to be filed within a reasonable time from entry of judgment.

The evidence shows that husband filed his motion seeking to amend the decree under rule 60(b); he did not specify whether the motion was filed pursuant to 60(b)(1) or 60(b)(6). Yet, the court treated it as a 60(b)(6) motion and granted it. Wife argues this was reversible error. We agree.

Rules 60(b)(1) and 60(b)(2) are very clear on the filing requirements of motions based on mistake, inadvertence, excusable neglect, and newly discovered evidence — such motions must be filed within four months of entry of judgment or else they are untimely and cannot be entertained.

Husband’s motion stated he had “just discovered” that he was a joint owner of the property, and that his failure to discover it before expiration of the four month period was an “inadvertent mistake.” It is clear that the allegations of husband’s motion spell out mistake, inadvertence, and neglect, the very grounds of rule 60(b)(1), and under the rule husband was too late in filing the motion.

The next question is whether relief can be afforded husband by way of rule 60(b)(6).

Relief is justified under rule 60(b)(6) when a party is able to show exceptional circumstances sufficient to entitle him to relief. Rodgers v. Rodgers, 424 So.2d 647 (Ala.Civ.App.1982). For rule 60(b)(6) to be available as a device for extraordinary relief, two prerequisites must be satisfied. First, the motion must be based on some reason other than those stated in rule 60(b)(1) through (5); and, second, the reason urged for relief must be such as to justify relief. Ex parte Hartford Insurance Co., 394 So.2d 933 (Ala.1981). Neither prerequisite is satisfied in this case.

Husband’s motion is based on mistake, inadvertence, or excusable neglect. In other words he alleges that he failed to ask the court in the divorce action to give him the jointly-owned property because he was unaware that he was a joint owner. That is, he inadvertently failed to list the property, and because of this mistake he should be allowed to ask the court to dispose of the real property by giving him title. These reasons bring the relief sought within the bounds of rule 60(b)(1) through (5). So the first prerequisite is unsatisfied.

As to the second prerequisite, nothing is alleged in the petition that would bring it within the ambit of rule 60(b)(6). The reasons given in the motion pertain to why relief should be granted pursuant to rule 60(b)(1) and (2); not the “extraordinary circumstances” required to warrant relief under rule 60(b)(6). Hereford v. Hereford, 425 So.2d 480 (Ala.Civ.App.1983). For this reason the second prerequisite is also unsatisfied.

For the reasons given above, the judgment of the trial court is reversed and the cause is remanded for entry of a judgment denying the husband’s motion for relief from judgment.

We note that the parties to this proceeding will still be the joint owners of the property in question and can dispose of the property through an amicable sale or can seek appropriate legal disposition of the property should the parties not agree.

REVERSED AND REMANDED WITH DIRECTIONS.

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