text:
    Billy Joe TAPSCOTT and Jerry Tapscott v. William Carlton FOWLER, et al.
    82-325.
    Supreme Court of Alabama.
    Sept. 16, 1983.
    Dennis G. Pantazis of Gordon, Silberman, Loeb, Cleveland & Gordon, Birmingham, for appellants.
    Albert P. Brewer of Brewer, Lentz, Nelson & Whitmire, Decatur, for appellees.
    Reo Kirkland, Jr., Brewton, for amicus curiae The Alabama Coonhunters Assn.
   PER CURIAM.

This is the second appeal on a controversy between the plaintiffs and the two defendants. On the first appeal we reversed and remanded the trial court’s granting of a preliminary injunction because the trial court did not require the plaintiffs to give security pursuant to Rule 65(c), Ala.R. Civ.P., Anders v. Fowler, 423 So.2d 838 (Ala.1982). Again, we must reverse the granting of the preliminary injunction and remand the cause, because the trial judge, in granting the preliminary injunction, failed to follow the mandate of Rule 65(d)(2), Ala.R.Civ.P., which requires that “[e]very order granting an injunction shall set forth the reasons for its issuance.... ”

The plaintiffs, numerous landowners in Morgan County, commenced the first action on January 25, 1982, and sought to restrain the numerous defendants from allegedly illegal deer hunting activities on their properties. The trial judge granted the motion for a preliminary injunction and the defendants appealed. This Court reversed and remanded the cause on the ground that the trial court had failed to have the plaintiffs provide security as part of the order. Ala.R.Civ.P. 65(c). Anders, supra.

On remand, the plaintiffs refiled a motion for preliminary injunction against the same numerous defendants. Prior to the hearing, all of the defendants except Billy Joe and Jerry Tapscott entered into a stipulated agreement whereby an injunction would be issued against them, to be in effect until December 1, 1983. A hearing was held on December 22,1982, in regard to the Tapscotts. The trial court entered an order enjoining those two defendants. The order reads in full as follows:

“This cause having been set for hearing on this day on the application of the plaintiffs for a preliminary injunction, and it being made known to the Court that the plaintiffs and the seven defendants have settled the issues among them and have agreed to a stipulated order of injunction (which is entered by separate written judgment today) and that the issue remains only between the plaintiffs and the defendants Billy Joe Tapscott and Jerry Tapscott; whereupon the court proceeds to hear testimony to the following conclusion after the agreed submission: The plaintiffs are entitled to relief. [Emphasis added.]
“It is, therefore,
“CONSIDERED AND ORDERED that the defendants Billy Joe Tapscott and Jerry Tapscott are hereby enjoined, restrained, and prohibited from trespassing on lands of the plaintiffs, from firing firearms over said lands, from spotlighting said lands, for any persons or improvements thereon, and from running dogs on said lands or allowing dogs to run on said lands, except with the express written permission of the landowners.
“Plaintiffs shall submit to the register for approval good and sufficient security in the amount of One Thousand Dollars indemnifying the defendants against loss or damage in accordance with the appropriate Rule of Civil Procedure relevant to the temporary injunctions. Upon receipt and approval of the required surety bond, this temporary injunction shall become effective and continue in full force and effect until further order of the Court.
“All other issues other than those seeking the injunctive relief are hereby reserved for future disposition.
“This the 22nd day of December, 1982.”

In pertinent part, Rule 65(d)(2) reads:

“Every order granting an injunction shall set forth the reasons for its issuance; shall be specific in terms; shall describe in reasonable detail, and not by reference to the complaint or other document, the act or acts sought to be restrained .... ”

The appellees, in brief, claim the injunction issued complies substantially with the requirements of the rule:

“The defendants correctly point out that Rule 65(d)(2), Alabama Rules of Civil Procedure, provides that every order granting an injunction shall set forth the reasons for its issuance and shall be specific in its terms.
“'When that Rule is read in light of the proceedings in this cause, substantial compliance with the Rule by the trial court becomes apparent.
“The original preliminary injunction in this case set out the reasons for its issuance at great length and was very specific in its terms.
U * * *
“While Judge Hundley’s order on this proceeding does not set out the reasons for the granting of the injunction, his original order is very specific and comprehensive in stating all the reasons for the issuance of the original preliminary injunction following the hearing on January 28, 1982 in this cause. Obviously Judge Hundley considered the present proceeding as a continuation of the previous proceeding. It was based on the evidence on the original hearing plus additional evidence taken on December 23, 1982, and it can hardly be questioned that these defendants were advised of, and were well aware of, the reasons for the issuance of the injunction.
“The Alabama Court of Civil Appeals had this same question raised in the case of Ross v. Powell, 359 So.2d 803. There the Court upheld an injunction observing: “ ‘It is our belief that a restraining order or injunction should be direct and succinct. It must set forth the reasons for its issuance and it should be specific in that respect. However, elaborate detail is not necessary. There is sufficient basis for sustaining the injunction if the party enjoined is apprised of the course of conduct which is prohibited and the order is not so excessively broad that the party against whom it is issued is subjected to undue restraint.’ ”

The opinion in Ross, supra, is consistent with our holding that a preliminary injunction must give the court’s reasons for issuing an injunction; the critical question here is whether the reasons stated by the trial judge in the injunction issued after the first hearing were sufficient, as a matter of law, to comply with the requirements of Rule 65(d)(2) insofar as the issuance of the second injunction is concerned. We must hold that there was no compliance with Rule 65(d)(2), because the order fails to give reasons for issuance of the injunction. Under Rule 65(d)(2), Ala.R.Civ.P., it is mandatory that a preliminary injunction; (1) give reasons for issuing the injunction, (2) be specific in its terms, and (3) describe in reasonable detail the acts sought to be restrained. Teleprompter of Mobile, Inc. v. Bayou Cable T.V., 428 So.2d 17 (Ala.1983); Miglionico v. Birmingham News Co., 378 So.2d 677 (Ala.1979); International Brotherhood of Electrical Workers v. Morton, 365 So.2d 662 (Ala.1978); see C. Wright & A. Miller, Federal Practice and Procedure § 2955 (1973). The appellants contend there was a lack of evidence to show that they had hunted on any land without permission of the owner. The fact that appellants did not stipulate that an injunction issue against them is another reason we hold that the reasons for the issuance of the injunction against them should have been set out as required by the Rule.

The order granted in the instant case is quite similar to the order entered in Teleprompter, supra. As in Teleprompter, no reasons were given, in the order, for the issuance of the preliminary injunction, not even a recital that irreparable loss would occur if the injunction were not issued.

Because we hold that the trial court erred in granting the preliminary injunction by not following the mandate of Rule 65(d)(2), Ala.R.Civ.P., we pretermit any discussion of the other issues raised on appeal. Our holding should not be interpreted as precluding the plaintiffs from requesting the trial court to again issue an injunction, should they deem it necessary.

REVERSED AND REMANDED.

MADDOX, FAULKNER, JONES, EM-BRY, BEATTY and ADAMS, JJ., concur.

TORBERT, C.J., and ALMON and SHORES, JJ., dissent.

TORBERT, Chief Justice

(dissenting).

This case raises one issue. Did the second injunction comply with A.R.Civ.P., Rule 65(d)(2)? The majority holding follows the letter of the Rule while ignoring its spirit. I therefore respectfully dissent.

Rule 65(d)(2) provides that “Every order granting an injunction shall set forth the reasons for its issuance .... ” This requirement is mandatory for every injunction. Teleprompter of Mobile, Inc. v. Bayou Cable TV, 428 So.2d 17 (Ala.1983). Unlike Teleprompter, however, this case does not involve an injunction without any reasons listed for its issuance; rather, the second injunction failed to repeat the very specific and comprehensive reasons listed in the first injunction. Indeed, no Alabama case has analyzed this situation. We should, therefore, look to the intended objective of the Rule.

The purpose of Rule 65(d)(2) is to fulfill the due process requirement of notice. United States Steel Corp. v. United Mine Wkrs. of Am., 519 F.2d 1236 (5th Cir.1975), cert. denied, 428 U.S. 910, 96 S.Ct. 3221, 49 L.Ed.2d 1217 (1976). In regard to the federal counterpart, Rule 65(d)’s requirements, while mandatory, “are not jurisdictional and a court’s failure to adhere to every detail of that Rule’s requirements does not necessarily render the order void under all circumstances and for all purposes.” United States v. McAndrew, 480 F.Supp. 1189, 1192 (E.D.Va.1979). Courts should not be bound to “procedural niceties where no actual prejudice to the defendants results.” Id.

Appellees argue that Rule 65(d)(2) is substantially complied with in this case. I agree. The proceeding before issuance of the second injunction was viewed as a continuation of the original proceedings. The appellants obviously had actual notice of the reasons for issuance of the original injunction. Appellants do not contend that they suffered any prejudice from the trial court’s failure to observe the Rule’s strictures. The purpose of Rule 65(d)(2), to serve notice of the reasons for the injunction, was actually satisfied in this case. I see no reason to follow the precise procedure of Rule 65(d)(2) when its purpose is completely satisfied. See also Withrow v. Larkin, 421 U.S. 35, 44-46, 95 S.Ct. 1456, 1462-1464, 43 L.Ed.2d 712 (1975) (reference back is sufficient to establish Rule 65(d) reasons for prior order).

Because the due process purpose of Rule 65(d)(2) is satisfied in this case, I would affirm the propriety of the injunction’s issuance and consider the other issues in this case.

ALMON and SHORES, JJ., concur.


source: Caselaw Access Project

author: MADDOX, Justice. EMBRY, Justice

license: Public Domain

text:
    Thomas HAYDEN v. William D. HARRIS, etc., et al.
    82-620.
    Supreme Court of Alabama.
    Sept. 16, 1983.

      C. Steven McLaurin, Birmingham, for appellant.
    James 0. Spencer, Jr. of Balch, Bingham, Baker, Hawthorne, Williams & Ward, Birmingham, for appellees.
   MADDOX, Justice.

The only issue before the Court is whether the notice of appeal was untimely so as to deprive this Court of jurisdiction to hear this appeal. We conclude that the notice of appeal was untimely; therefore, this appeal is dismissed.

Thomas J. Hayden, plaintiff/appellant, sought to become a candidate for Justice of the Alabama Supreme Court in the November 1982, general election. Hayden filed his declaration of candidacy with the Alabama Republican Party, defendant/appellee, on July 8, 1982, for Associate Justice, Place 2, Alabama Supreme Court. Subsequent to the July 9, 1982, deadline for filing as a candidate for nomination to public office, Hayden withdrew as a candidate for Place 2, Alabama Supreme Court, and filed a declaration of candidacy for Associate Justice, Place 3, Alabama Supreme Court. An action was filed seeking a declaratory judgment or, in the alternative, a writ of mandamus and injunctive relief to prevent the Secretary of State from certifying Hayden’s candidacy. See Bostwick v. Harris, 421 So.2d 492 (Ala.1982), wherein this Court held that Hayden’s candidacy for Associate Justice, Place 3, Alabama Supreme Court, was invalid. William D. Harris, Judy B. Bewley, in their executive capacities as chairman and secretary, respectively, of the Alabama Republican Executive Committee and the Candidate Committee of the same body, who are defendants/appellees in the instant case, were, in addition to the Alabama Republic Party and others, co-defendants in the Bostwick v. Harris case.

On November 8, 1982, Hayden filed the present suit for fraud and misrepresentation in the circuit court of Jefferson County. The appellees timely filed a motion to dismiss, which the circuit court of Jefferson County granted on January 19, 1983. The case action summary sheet in the record reads as follows: “Defts Mot to dism Granted, 30 days to amend. Bryan Jd.” Hayden filed no post-judgment motions, and did not amend his complaint, but on January 21, 1983, filed answers to the ap-pellees’ interrogatories of December 15, 1982. On March 30, 1983, seventy days after final judgment by the circuit court, Hayden filed notice of appeal with this Court.

Appellees, in their motion to dismiss, argued that plaintiff’s complaint failed to state a claim upon which relief could be granted and that the Alabama Republican Party was not a legal entity amenable to suit. The circuit court, in its order granting appellees’ motion, did not specify upon which of the grounds the decision to dismiss plaintiff’s complaint was based. Ala.R. Civ.P. 41(b) provides, in part, that:

“ * * * Unless the court in its order for dismissal otherwise specifies, a dismissal under this subdivision and any dismissal not provided for in this rule, other than a dismissal for lack of jurisdiction, for improper venue, or failure to join a party under Rule 19, operates as an adjudication upon the merits.”

According to the rule, the dismissal of appellant’s complaint on either of the grounds argued in appellees’ motion would act as an adjudication on the merits so as to dispose of the action.

This Court has provided that an appeal will lie only from a final judgment or order “... which determines the issues before the court and ascertains and declares the rights of the parties involved,” Taylor v. Taylor, 398 So.2d 267, 269 (Ala.1981), or “... which puts an end to all matters litigated or which ought to have been litigated with respect to a particular controversy.” First Alabama Bank of Montgomery, N.A. v. Martin, 381 So.2d 32, 33 (Ala.1980). The Alabama Court of Civil Appeals, in Wesley v. Brandon, 419 So.2d 257, 259 (Ala.Civ.App. 1982), followed the test of finality set forth by this Court in Alabama Public Service Commission v. Redwing, Inc., 281 Ala. 111, 116, 199 So.2d 653, 657 (1967), as follows:

“However, under the doctrines of our cases the test of finality of a judgment to support an appeal is not whether the cause remains in fieri awaiting further proceedings to entitle the parties to their acquired rights, but whether the judgment ascertains and declares such rights embracing the substantial merits of the controversy and the material issues litigated are necessarily involved. If these rights are ascertained, the decree is final and will support an appeal.” (Citations omitted.)

The order in the present case acts as an adjudication on the merits, and therefore, it ascertains and declares the rights embracing the substantial merits of the controversy and necessarily involves the material issues litigated.

This Court, in Guilford v. Spartan Food Systems, Inc., 372 So.2d 7 (Ala.1979), considered whether the dismissal of a complaint for failure to state a claim on which relief can be granted was a final order capable of supporting an appeal. The Court did not decide whether the 42-day period within which an appeal must be taken begins to run from the date of the entry of the order granting a motion to dismiss where no amendment is forthcoming or if it begins to run from the end of the period within which a party has expressly or automatically, under Rule 78, Ala.R.Civ.P., been granted leave to amend. Guilford, 372 So.2d at 8, n. 2. In Guilford, the appeal was taken within 42 days from the date the order was entered.

This Court, in Guilford, found the order to be final and appealable. The Court first considered the line of federal cases holding that an order dismissing a complaint, in the absence of an order dismissing the action, is interlocutory except when the plaintiff cannot amend or declares his intention to stand on his complaint, when an order then becomes final and ap-pealable. 372 So.2d at 8. The federal cases, however, are based primarily on the language of Fed.R.Civ.P. 58, and the Court affirms the statement in the Committee Comments to Ala.R.Civ.P. Rule 58, that “... the Alabama Rule ‘departs substantially in form from the Federal Rule in order to clarify the procedure as to rendition of judgments....”’ 372 So.2d at 9. The language in Alabama Rule 58 emphasizes the intention of the drafters to do away with the unnecessary technicalities heretofore common in orders, judgments and decrees. Ala.R.Civ.P. 58(b) provides:

“A judgment or order, or the minute entry thereof, need not be phrased in formal language nor bear particular words of adjudication. The judgment or order or the minute entry thereof will be sufficient if it indicates an intention to adjudicate considering the whole record, and if it indicates the substance of the adjudication.”

The language of Rule 58(b), considered with the decision in the ' Guilford case, indicates that a trial court’s order of dismissal with leave to amend will be final and appealable if it indicates an intention to adjudicate considering the whole record, and if it indicates the substance of the adjudication. An order of dismissal which acts as an adjudication on the merits clearly shows an intention on the part of the trial court to adjudicate as to that cause of action and necessarily involves the substance of the adjudication if it dismisses the plaintiff’s entire complaint. In the present case, the order dismissing plaintiff’s complaint acts as an adjudication on the merits under Ala.R. Civ.P. 41(b), and thus, the order is final and appealable.

This Court must now determine whether the 42-day period within which an appeal must be taken begins to run from the date of the entry of the order granting a motion to dismiss when no amendment is forthcoming or if it begins to run from the end of the period within which a party has been granted leave to amend. Ala.R.App.P. 4(a)(1) provides, in part:

“Except as otherwise provided herein, in all cases in which an appeal is permitted by law as of right to the supreme court or to a court of appeals, the notice of appeal required by Rule 3 shall be filed with the clerk of the trial court within 42 days (six weeks) of the date of the entry of the judgment or order appealed from.”

In Guilford, a majority of this Court opined as follows:

“Plaintiff was given leave to amend his complaint within ten days of the order dismissing the complaint. His failure to submit an amended complaint within the specified period, coupled with his filing an appeal, is a sufficient manifestation of his intention to stand on his complaint.”

While this Court, in Guilford v. Spartan Food Systems, Inc., found it unnecessary to decide whether the 42-day period within which an appeal must be taken begins to run from the date of the entry of the order granting a motion to dismiss where no amendment is forthcoming, or if it begins to run from the end of the period within which a party has been granted leave to amend, we now decide that the 42-day period begins to run from the date the order is entered. Here, as in Guilford v. Spartan Food Systems, the plaintiff, by filing a notice of appeal from the January 19, 1983, order of dismissal treated the order as final. Hayden’s argument now that the January 19, 1983, order was not a final order is inconsistent with the action he took in filing the notice of appeal on March 30, 1983.

Rule 2, Ala.R.App.P., provides in pertinent part:

“(a) Dismissal of Appeal. (1) An appeal shall be dismissed if the notice of appeal was not timely filed to invoke the jurisdiction of the appellate court.
ii * ⅜ 5⅜
“(b) Suspension of Rules. ... provided, however, an appellate court may not extend the time for taking an appeal, as provided in Rule 4(a)(1); ...” (Emphasis supplied.)

Correspondingly, Rule 4(a)(1), Ala.R.App.P., provides:

“Except as otherwise provided herein, in all cases in which an appeal is permitted by law as of right to the Supreme Court or to a court of appeals, the notice of appeal required by Rule 3 shall be filed with the clerk of the trial court within 42 days (six weeks) of the date of the entry of the judgment or order appealed from....” (Emphasis supplied.)

We have consistently held that the failure of an appellant to comply with the rules that requiring notice of appeal be filed within 42 days from the date of entry of final judgment deprives the Court of appellate jurisdiction. See Spina v. Causey, 403 So.2d 199 (Ala.1981); Harrison v. Alabama Power Co., 371 So.2d 19 (Ala.1979); Thompson v. Keith, 365 So.2d 971 (Ala.1978); Holmes v. Powell, 363 So.2d 760 (Ala.1978); Morris v. Merchants National Bank, 359 So.2d 371 (Ala.1978); cf. State v. Wall, 348 So.2d 482 (Ala.1977) (applying Rule 4(b)).

Because Rule 4 is jurisdictional, “the prescribed time in which a notice of appeal must be filed with the trial court cannot be waived nor is it subject to extension of time by agreement of the parties or by order of this court.” Stewart v. Younger, 375 So.2d 428 (Ala.1979). The 42-day time period for filing notice of appeal can be tolled only in very limited circumstances. For example, extensions of the time period are provided where appellant has filed “a post-trial motion pursuant to Rules 50, 52 and 59 of the Alabama Rules of Civil Procedure.” See also Rule 77(d), Ala.R.Civ.P.; Rule 4(a)(3), Ala.R.App.P.; Cockrell v. World’s Finest Chocolate Co., Inc., 349 So.2d 1117, 1119 (Ala.1977), in which defendant’s motion pursuant to Rule 60(b), Ala.R.Civ.P., was held not “to extend the time for taking an appeal.” See also Ingram v. WAAY Television, 394 So.2d 65 (Ala.Civ.App.1981). The Committee Comments published with Rule 2, Ala.R.App.P., state unequivocally:

“If an appeal is not taken within the time as specified in Rule 4(a)(1), the appellate court shall dismiss it.” (Emphasis supplied.)

The Committee Comments further state:

“The rule prohibits an appellate court from extending the time within which to take an appeal.”

In Spina v. Causey, 403 So.2d 199 (Ala.1981), this Court opined:

“Timely filing of an appeal is jurisdictional and ‘[a]n appeal shall be dismissed if the notice of appeal was not timely filed to invoke the jurisdiction of the appellate court.’ Rule 2(a)(1), ARAP. Under the rules, the time for taking an appeal from a final judgment is forty-two days after that judgment is entered....
it $ * *
“The timeliness of filing the notice of appeal is a jurisdictional act [citations omitted]; therefore, the [late] filing of the appeal leaves us without jurisdiction to review.”

403 So.2d at 201.

In summary, and as previously stated, Hayden’s notice of appeal was filed on March 30, 1983. The order dismissing his complaint was rendered on January 19, 1983, and Hayden neither amended his complaint nor filed a post-judgment motion. Because Hayden filed his notice of appeal some 70 days after the final judgment of the trial court, the Court is without jurisdiction to hear this appeal; therefore, this appeal is dismissed.

APPEAL DISMISSED.

TORBERT, C.J., and FAULKNER, JONES, ALMON and SHORES, JJ., concur.

EMBRY, J., concurs specially.

EMBRY, Justice

(concurring specially).

I disagree with the holding that the judgment entered in this case was a final judgment. Guilford v. Spartan Food Systems, Inc., 372 So.2d 7 (Ala.1979). I concur in the result, however, because the appeal is due to be dismissed because there was no final judgment.

      . In his reply brief, Hayden suggests that he attempted to file his notice of appeal on March 1, 1983, but we cannot consider this. We are bound by the record which Hayden filed, and it states that the notice of appeal was filed on March 30.


author: BRADLEY, Judge.

text:
    STATE of Alabama v. CAPITAL CITY ASPHALT, INC.
    Civ. 3347.
    Court of Civil Appeals of Alabama.
    Feb. 2, 1983.
    Rehearing Denied March 16, 1983.
    Charles A. Graddick, Atty. Gen., Herbert I. Burson, Jr., Chief Counsel State Dept, of Revenue, Asst. Atty. Gen., John H. Burgess, Asst. Counsel State Dept, of Revenue, Asst. Atty. Gen., for appellant.
    Gerald W. Hartley, Robert W. Bradford, Jr., Hill, Hill, Carter, Franco, Cole & Black, Montgomery, for appellee.
   BRADLEY, Judge.

This is a sales tax case.

Capital City Asphalt, Inc., a manufacturer, seller, and applier of asphalt plant mix, was incorporated in 1975. This corporation had two asphalt batch plants. In 1978 the stockholders-directors of Capital City organized a separate corporation, Montgomery Asphalt Company, Inc., for the acquisition and management of a third batch plant at Hunter Station. Montgomery Asphalt manufactures and sells asphalt but does no application work.

In 1981 the State Department of Revenue made an examination of Capital City’s books and records covering the period from April 1, 1978 through March 31, 1981. The State examiners, in making the examination for sales tax, determined that Capital City had made errors in reporting the amount of tax due on asphalt manufactured by it and withdrawn for use on paving contracts performed by it. Also during that same period, certain asphalt manufactured by Montgomery Asphalt was invoiced to Capital City at a standard cost, the cost of raw materials plus the direct and indirect cost of manufacturing, and was used in fulfilling Capital City’s contracts. In making its assessments for sales tax on the asphalt transferred from Montgomery Asphalt to Capital City, the State based the sales tax due on the amount paid by Capital City to its sister corporation. The assessments, six in all, also covered additional taxes due several county and municipal governments for which the state is the collecting agent.

Capital City contended that it and Montgomery Asphalt, although separate corporations, acted as a unit in manufacturing, supplying, and applying the asphalt mix and that the additional sales tax on the asphalt plant mix in question should have been computed only on the cost of the ingredients that became a part of the mix. § 40-23-l(b), Code 1975. Capital City wanted the asphalt mix in question to be treated the same as that which it manufactured and withdrew for use.

Capital City paid the taxes based upon the cost of the ingredients of the mix. The State made the assessments final after allowing credit for the payments made by Capital City. Pursuant to section 40-2-22, Code 1975, Capital City appealed the assessments to the Montgomery County Circuit Court. The appeals were consolidated.

A trial was held and the court entered judgment in favor of the plaintiff, Capital City. The State filed a motion to alter or amend the judgment and subsequently filed a motion to alter, amend, or vacate the judgment. Following the trial, the parties stipulated that Capital City owed certain local assessments. The State’s posttrial motions as to the other assessments were denied. The State brings this appeal.

Capital City contends, as it has at all levels of this contest, that it and Montgomery Asphalt together are only one person for sales tax purposes. Person is defined in the sales tax section of the Alabama Code as follows:

“Person or Company. Used interchangeably, includes any individual, firm, copartnership, association, corporation, receiver, trustee or any other group or combination acting as a unit and the plural as well as the singular number, unless the intention to give a more limited meaning is disclosed by the context.” (Emphasis added.)

§ 40-23-l(a)(l), Code 1975. Plaintiff asserts that the two corporations were acting as a unit in the asphalt manufacturing, selling and application business and were thus a single person for purposes of the sales and use tax sections of the code.

To support its “acting as a unit” argument, plaintiff presented at trial evidence as to the nature of the two corporate entities’ operations. The testimony showed that the two corporations had the same stockholders, officers, and directors. The manufacturing process for the two corporations at the three batch plants was identical and the same person supervised all three plants. Employees and equipment of the three plants were used interchangeably as the need arose. Accounting and bookkeeping procedures were identical for both corporations. The two entities were treated as one business for federal income tax purposes. More of this type testimony was offered in plaintiff’s effort to prove Montgomery Asphalt and it should be treated as one.

Based on this evidence, the trial court determined that, factually, Capital City and Montgomery Asphalt were acting as a unit and, therefore, one taxable person. However, we must determine whether as a matter of law two separately incorporated entities can be one person for sales tax purposes.

The State argues that Capital City and Montgomery Asphalt were separate corporations, each holding a separate sales tax license, and therefore, each individually is a “person” as defined by section 40-23-1(a)(1), Code 1975. If the two corporations formed a unit by their actions, this unit would result in a third taxable person. Any asphalt distributed by Montgomery Asphalt to this third person unit would be a sale subject to sales tax.

Although this is a case of first impression for this state, other jurisdictions have dealth with issues similar to the one now before this court.

The West Virginia tax code has a definition of “person” that is very similar to the definition in our code. This section provides:

“[T]he term ‘person’ or the term ‘company’ herein used interchangeably, includes any individual, firm, copartnership, joint adventure, association, corporation, trust or any other group or combination acting as a unit, and the plural as well as the singular number, unless the intention to give a more limited meaning is disclosed by the context.”

W.Va.Code § 11-13-1 (1974).

In Southern States Coop. v. Dailey, 280 S.E.2d 821 (W.Va.1981), the West Virginia Supreme Court examined the aforementioned definitional section in a case involving an agricultural cooperative association and its affiliated cooperatives. In an effort to avoid paying a business and occupation tax, the cooperative argued that the local affiliates were simply a part of a unitary distribution system. Although the cooperative association and its local affiliates were separate corporations, those separate entities were acting as a unit.

The court rejected this argument and held that the cooperative and its affiliates fall individually into the category of persons for taxpaying purposes.

“The designation ‘group or combination acting as a unit’ contained in W.Va.Code § 11-13-1 is used to include business configurations not otherwise specifically denominated. When separate corporations fall into specific designations of taxable ‘persons’ ... they do not constitute a ‘group or combination acting as a unit,’ despite the fact that they form part of a cooperative distribution system.”

Southern States Coop. v. Dailey, supra. We agree with their interpretation. The West Virginia court further stated that their separate corporate structure should not be disregarded merely on a showing that one corporation is owned by the other or that they share common officers.

The Colorado Supreme Court in Montgomery Ward & Co. v. State, Colo., 628 P.2d 85 (1981), affirmed the district court decision that Montgomery Ward and its separately incorporated credit corporation were not one person for sales tax purposes. This Colorado case involved a sales tax on the sale of Montgomery Ward’s accounts receivable to its wholly-owned subsidiary credit corporation. Montgomery Ward argued that it and the credit corporation were a single person under the sales tax statutes. In rejecting this argument, the district court considered the fact that Montgomery Ward and the credit corporation were separate corporations and that the credit corporation was not the exclusive purchaser of Montgomery Ward’s accounts receivable. See also White Motor Corp. v. Kosydar, 50 Ohio St.2d 290, 364 N.E.2d 252 (1977); Pure Oil Co. v. State, 244 Ala. 258, 12 So.2d 861 (1943); 68 Am.Jur.2d Sales and Use Taxes § 97 (1973); Annot., 64 A.L.R.2d 769 (1959).

Also in the Southern States Coop, decision, the court pointed out that Southern States and its cooperatives chose to do business as separate corporations and in making this choice they received the advantages and benefits of operating as corporations. “Having taken advantage of the benefits of incorporation, a corporation cannot decline to accept the liabilities of the corporate form in order to reduce the incidence of taxation.” Southern States Coop. v. Dailey, supra. See also Mercedes-Benz v. State Board of Equalization, 127 Cal.App.3d 871, 179 Cal.Rptr. 758 (1982).

We note in this case that the stockholders, directors, and officers of Capital City consciously selected the separate corporate form for the Hunter Station batch plant. According to the record, this decision was made in an effort to avoid certain union contracts when purchasing the batch plant from Vulcan Materials. They have reaped the benefits of incorporation and cannot now disclaim their corporate form to reduce the incidence of taxation. Moreover, Capital City was not the exclusive purchaser of Montgomery Asphalt output.

We conclude therefore that the designation “any other group or combination acting as a unit” contained in section 40-23-l(a)(l), Code 1975, is used to describe and include business affiliations not otherwise specifically described in said section.

This case is reversed and remanded to the Circuit Court of Montgomery County for entry of a judgment consistent with this opinion.

REVERSED AND REMANDED.

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

BRADLEY, Judge.

On Rehearing

In its application for rehearing, Capital City Asphalt claims this court erred by concluding that two separately incorporated entities cannot be one person for sales tax purposes. Capital City asserts that at trial the parties stipulated that two corporations can act as a unit. According to Capital City, this stipulation should have precluded us from deciding the case as we did. We note, however, that whether two corporations can act as a unit for purposes of section 40-23-l(a)(l), Code 1975, is a legal question, not a factual matter. A court is not bound by the parties’ determination of a question of law. Resolution of a legal question is to be made by the court. Garrett v. Mathews, 474 F.Supp. 594 (D.C. Ala.1979), aff'd 625 F.2d 658 (5th Cir.1980). See 73 Am.Jur.2d Stipulations § 5 (1974); 83 C.J.S. Stipulations § 10(e) (1953).

OPINION EXTENDED.

APPLICATION FOR REHEARING OVERRULED.

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


author: MADDOX, Justice.

text:
    Ex parte CAPITAL CITY ASPHALT, INC. (Re: State of Alabama v. Capital City Asphalt, Inc.)
    82-614.
    Supreme Court of Alabama.
    July 22, 1983.
    Rehearing Denied Aug. 19, 1983.
    Gerald W. Hartley, Robert W. Bradford, Jr., of Hill, Hill, Carter, Franco, Cole & Black, Montgomery, for petitioner.
    Charles A. Graddick, Atty. Gen., B. Frank Loeb, Chief Counsel, Hendon B. DeBray, Asst. Counsel, State Dept, of Revenue, Asst. Attys. Gen., for respondent.
   MADDOX, Justice.

This is a tax case and involves the statutory interpretation of our tax laws. We granted certiorari to determine whether the Court of Civil Appeals correctly concluded that two separately incorporated entities may not be one “person” for sales tax purposes under the definition in Code 1975, § 40-23-l(a)(l), which defines “person or company” as follows:

“Person or Company. Used interchangeably, includes any individual, firm, copartnership, association, corporation, receiver, trustee or any other group or combination acting as a unit and the plural as well as the singular number, unless the intention to give a more limited meaning is disclosed by the context.” (Emphasis added.)

The word “taxpayer” is subsequently defined as “[a]ny person liable for taxes hereunder.” Code 1975, § 40-23-l(a)(l).

The facts of this case are sufficiently set forth in the opinion of the Court of Civil Appeals. State v. Capital City Asphalt, Inc., 437 So.2d 1288 (Ala.Civ.App.1983), but succinctly stated they are as follows:

Capital City Asphalt, Inc. (CCA), appealed an assessment of sales tax, on purchases of asphalt mix from its affiliate, Montgomery Asphalt Company, Inc. (MAC), to the Montgomery Circuit Court pursuant to Code 1975, § 40-2-22, and argued that due to the close relationship shared by it and Montgomery Asphalt, the two corporations were “a group or combination acting as a unit” within the meaning of the statute and should be taxed as a single entity. The circuit court found as a matter of fact, and under the statute, that the two corporations were acting as a unit and, therefore, determined that the assessment was invalid, but the state then appealed to the Court of Civil Appeals, and that court reversed the circuit court, holding that two corporations as a matter of law could not be a “person” as defined in Code 1975, § 40-23-l(a)(l). The court stated that the phrase “any other group or combination acting as a unit” contained in Code 1975, § 40-23-l(a)(l) is “used to describe and include business affiliations not otherwise specifically described in said section.” State v. Capital City Asphalt, Inc., 437 So.2d 1288 (Ala.Civ.App.1983).

This is a case of first impression, and because of that fact, we have reviewed the decisions reached by courts of other states in interpreting similar tax statutes, and which are cited in the opinion of the Court of Civil Appeals. We have also reviewed a recent decision not cited by that court which reaches the same result as those decisions cited. In Central Cooling & Supply Company v. Director of Revenue, 648 S.W.2d 546 (Mo.1982), the appellant argued that transfers of goods from its wholly owned subsidiary, Johnson Furnace Co., were not subject to sales tax because the two corporations were “acting as a unit” and were thus one “person” under the definition of that term contained in Missouri’s tax statute. Johnson Furnace Co. had been organized for the purpose of procuring supplies at advantageous wholesale prices for its parent, Central Cooling & Supply Company. “Person” is defined in Mo.Rev.Stat. 1969, § 144.010(5) as follows:

“ ‘Person’ includes any individual, firm, copartnership, joint adventure, association, corporation, municipal or private, and whether organized for profit or not, state, county, political subdivision, state department, commission, board, bureau or agency, except the state highway department, estate, trust, business trust, receiver or trustee appointed by the state or federal court, syndicate, or any other group or combination acting as a unit, and the plural as well as the singular number.” (Emphasis added.)

In holding that the two Missouri corporations could not be one person, under the above definition, the Missouri Supreme Court stated:

“Courts in other states have dealt with this specific issue or analogous issues and have decided the sales from the subsidiary to the parent (or vice versa) do constitute sales within the meaning of a sales tax law or similar statute. That two corporations, parent and subsidiary, are commonly owned and operated does not eliminate sales tax consequences as to property transferred from one to another. Annot. 64. A.L.R.2d 769 (1949). The corporate form should not be ignored, and if there is a transaction that would have been subject to the imposition of a sales tax if the transaction had been between two separately owned corporations, the common ownership of the two corporations is irrelevant. Commissioner of Revenue v. Globe Automatic Vending Co., Inc., 421 N.E.2d 1213, 1214 (1981). Ownership of capital stock in one corporation by another does not itself create identity of corporate interest as between the two
U * * *
“There is no basis for ignoring this separate corporate existence to permit Central to avoid tax liability and gain an unfair advantage over other separately owned corporations.” (Emphasis added.)

648 S.W.2d 546, 548 (Mo.1982). Accord, Southern States Co-op, Inc. v. Dailey, 280 S.E.2d 821 (W.Va.1981); Montgomery Ward & Co. v. State Department of Revenue, 628 P.2d 85 (Colo.1981) (en banc); White Motor Corp. v. Kosydar, 50 Ohio St.2d 290, 364 N.E.2d 252, (1977).

In a case involving a privilege tax computed on the basis of gross proceeds from wholesale sales of lubricating oil, we held that such sales by Pure Oil Company to Woco-Pep Company, Inc., its wholly owned subsidiary, were subject to the tax. In reaching that decision, this Court noted:

“It thus appears that the appellant sold to its subsidiary corporation as to other customers. So far as it appears, the Woco-Pep Company did business as a distinct legal entity, and business was transacted between the two companies without regard to ownership of stock.
“On the principle that deductions and exemptions in tax statutes are not implied, we think these sales must be treated as other sales in figuring ‘gross sales’ of appellant. Presumably, there were compensating advantages in thus setting up a separate corporate entity with which to do business.” (Citations omitted.) (Emphasis added.)

State v. Pure Oil Co., 256 Ala. 534, 55 So.2d 843, 863 (1951).

Although these cited cases, with the exception of Southern States Co-op, Inc. v. Dailey, involved transactions between parent companies and their wholly owned subsidiaries, for purposes of this analysis, we fail to see any substantial distinction between that type of common ownership and the ownership of two corporations having the same shareholders. See generally Kansas City v. Standard Home Improvement Co., Inc., 512 S.W.2d 915 (Mo.App.1974) (reimbursements to Standard Home Improvement Co., Inc. of amounts it had paid for supplies and labor on behalf of its affiliate corporation, Universal Home Remodeling Co., which was owned, controlled and managed by the same shareholders, officers, and directors, should be included in Standard’s “gross annual business” for computing city occupational license tax).

We agree with the Court of Civil Appeals’ construction, which held that the stockholders, officers, and directors of Capital City Asphalt “have reaped the benefits of incorporation [of Montgomery Asphalt] and cannot now disclaim their corporate form to reduce the incidence of taxation.” State v. Capital City Asphalt, Inc., 437 So.2d 1288 (Ala.Civ.App.1983).

In reaching its decision, the Court of Civil Appeals correctly applied the applicable rule of statutory construction, the doctrine of ejusdem generis, which is:

“[W]hen general words follow an enumeration of words of a particular and specific meaning, such general words are held to apply only to persons or things of the same kind, as those designated by the particular words .... But this is but a rule of construction, by which courts are to ascertain the intention of the Legislature, and when that is apparent, we are bound by it.... ”

Foster v. Blount, 18 Ala. 687, 688 (1851). See also Goode v. Tyler, 237 Ala. 106, 110, 186 So. 129 (1939) (“where general words follow the enumeration of particular classes of persons or things, the general words will be construed as applicable only to persons or things of the same general nature or class as those enumerated [citations omitted] ). 2A C. Sands, Sutherland Statutory Construction § 47.17 et seq. (4th ed. 1974).

Upon consideration of the briefs of the parties, and the opinion of the Court of Civil Appeals, we are of the opinion that the construction given Code 1975, § 40-23-1(a)(1) by that Court is consistent with the intent of the Alabama Legislature in drafting this statute; that court’s judgment is due to be affirmed.

AFFIRMED.

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


author: HOLMES, Judge. HOLMES, Judge.

text:
    Judy DODSON v. ATRAX DIVISION OF the WALLACE-MURRAY CORPORATION.
    Civ. 3358.
    Court of Civil Appeals of Alabama.
    April 6, 1983.
    Rehearing Denied May 4, 1983.
    Certiorari Denied Sept. 30, 1983 Alabama Supreme Court 82-768.
    Jack Drake, of Drake, Knowles & Pierce, Tuscaloosa, for appellant.
    Olin W. Zeanah and Wilbor J. Hust, Jr., of Zeanah, Donald & Hust, Tuscaloosa, for appellee.
   HOLMES, Judge.

This is a workmen’s compensation ease.

The employee-claimant appeals from a decree which denies her any compensation under the workmen’s compensation statutes.

Viewing the record with the attendant presumptions, the following is shown: The employee worked for the defendant-employer, Atrax Division of Wallace Murray Corporation (hereafter Atrax) from May 14, 1979 to September 18, 1981. During her employment, the employee worked as a furnace operator for Atrax, a manufacturer of hard cutting tools. Atrax uses hazardous substances, tungsten carbide and cobalt, in the manufacturing process. Even though Atrax has filtering systems to filter particles of dust from the atmosphere inside the plant, Atrax was cited by the Occupational, Safety and Health Administration (OSHA) for a slight over exposure of cobalt particulate matter to two workers in the plant. In the fall of 1981, OSHA investigated the plant and found the level of cobalt particulate matter to be below the OSHA standard.

Exposure to tungsten and cobalt is commonly associated with two hard metal diseases. The less serious of these two is a bronchitic or an asthmatic response. The metal dust is inhaled, and may create an allergy-like response with obstruction of the airways as a result.

A careful review of the medical testimony taken as a whole and read in the proper context revealed the following:

In the fall of 1981, the employee was suffering from bronchitis, and was seen by Dr. Rice. At that time, Dr. Rice’s diagnosis was that the employee was suffering from asthma and bronchitis, or obstruction to her airways caused by exposure to tungsten carbide. Her condition would clear up on weekends, and cleared up after she ceased to work at Atrax. Soon after the bronchitis began to subside, the employee developed hemoptysis, or coughing up blood. She was then hospitalized due to the he-moptysis. Tests failed to indicate a reason for the hemoptysis, which continued even after the bronchitis cleared up.

The employee was referred to Dr. Bailey, a lung specialist. Under Dr. Bailey’s supervision, a lung biopsy, major surgery, was done, and during this surgery an area of old scar tissue was removed. The area of scar tissue was not work-related. The hemop-tysis cleared up after surgery.

Dr. Rice testified that while he could not be 100% certain, he felt the hemoptysis was related to the bronchitis. “I don’t think that Ms. Dodson would have had the difficulty with hemoptysis that she had, had it not been for exposure to tungsten carbide. And I base that on the severe bouts of coughing that she used to get with exertion that seemed to precipitate the episodes of hemoptysis.”

Dr. Bailey testified that when he examined the employee in February of 1982, the bronchitis had cleared up, and was not the cause of the hemoptysis at that .time. But Dr. Bailey did testify he could not rule out bronchitis resulting from exposure to tungsten carbide, nor could he rule out bronchitis as a cause of the hemoptysis. “I cannot say that she didn’t have an obstructive airways syndrome [hard metal disease] at the time she went to work that was gone by the time we saw her because she reported symptoms that were consistent with bronchitis.” Dr. Bailey said that bronchitis was a “very nonspecific thing,” and “might have been there unrelated to her exposure, aggravated by exposure, or even caused by exposure [to tungsten carbide].”

Dr. Bailey testified that the bronchitis could have irritated the scar inside her lung, causing the hemoptysis. Although stating the cause of the hemoptysis was “debatable,” Dr. Bailey said it would be “a reasonable speculation” that the bronchitis triggered the hemoptysis.

Dr. Rice testified the employee could not work at Atrax, nor could she work in an environment containing any dust or industrial irritants. Although he testified she suffered no permanent disability, the employee should not work around dust, fumes, or irritants because her previous condition “sensitized” her airways. Once the airways have been sensitized, the airways tend to stay sensitized so that work around chemicals, dust, or fumes would cause more difficulty.

Dr. Bailey also testified the employee could no longer work at Atrax, and it “would be desirable for her to avoid” work in any similar environment.

In uncontradicted testimony, a vocational expert said that “looking at the limitation of her not being able to tolerate a contaminated environment for whatever reason,” the employee suffered an earning disability of 80% to 82%. A person who could not tolerate a “contaminated environment” could not work in any of the production industries in the employee’s area.

The trial court, in its finding of facts, stated:

“The Court finds that in September and October of 1981 Ms. Dodson was suffering from bronchitis. However, the Court finds that the plaintiff did not prove to the Court’s reasonable satisfaction that this bronchitis was the result of her exposure to any condition at Atrax. The Court further finds that the bronchitic condition has completely cleared and at the present time the plaintiff is not suffering from any bronchitis, asthma, or any obstructive airways disease.... ”
“The Court further finds that none of the plaintiff’s allergies or other medical problems ... were caused by her exposure to tungsten carbide or cobalt or any condition at Atrax and, therefore, the plaintiff’s alleged medical ailments did not arise out of and in the course of her employment at Atrax.”

The trial court held that the employee is not entitled to recover workmen’s compensation benefits under any provision of the Alabama Workmen’s Compensation Act.

From this order, the employee appeals, contending she did develop an occupational disease as a result of her exposure through her employment to toxic, hazardous substances, and that the trial court’s contrary finding was devoid of any factual basis. She further contends her occupational disease caused a severe permanent impairment to her ability to earn a living, and she is entitled to compensation.

At the onset, we note the standard of review in a workmen’s compensation case is very narrow. The Workmen’s Compensation Act in Alabama Code § 25-5-81(d) (1975) provides for review by certiorari. On appeal, review of a workmen’s compensation case is limited to questions of law, and to examination of the evidence to determine if there is any legal evidence to support the findings of the trial court. E.g., Agan v. Union Foundry Co., 404 So.2d 71 (Ala.Civ.App.1981). We have considered the evidence and the trial court’s findings, and we have concluded that there is no reasonable view of the evidence that supports the conclusion of law expressed by the learned trial judge that the “disease” did not result from conditions to which she was exposed at work.

Dr. Rice testified the bronchitis was work related, was probably related to the hemop-tysis, and certainly prevented her return to work at Atrax, and at any similar industrial environment. Dr. Bailey, who saw her after the initial bronchitis had cleared, did not dispute Dr. Rice’s conclusions. Dr. Bailey only said he did not know for certain the cause of either the bronchitis or the hemop-tysis, but that Dr. Rice’s conclusions were reasonable. Dr. Bailey agreed the employee could not work at Atrax, and probably should not work in a similar industrial environment.

One doctor said the bronchitis was work-related. The other doctor, who had not examined her at the time she suffered the bronchitis, said he could not say what caused it, but he did not dispute the first doctor’s testimony. Therefore, there is no “conflict” as such in the medical testimony. See Hightower v. Brammall, Inc., 435 So.2d 1295 (Ala.Civ.App.1982). Cf. Dan River Mills, Inc. v. Foshee, 365 So.2d 1232 (Ala. Civ.App.1979), which discusses uncertainty in the state of the art in medical causation.

We fail to see how the uncertainty as to cause of a doctor who did not examine the employee until the bronchitis had cleared can support the trial court’s finding. This is especially true in light of the fact he did not dispute Dr. Rice’s diagnosis and found it “reasonable.” See Hightower v. Brammall, Inc., supra.

Furthermore, it is hardly material whether the employee’s physical response to the work environment was caused by the job or was pre-existing but activated or aggravated by the job. Hightower v. Brammall, Inc., supra. We held in Newman Brothers, Inc. v. McDowell, 354 So.2d 1138 (Ala.Civ.App.1977), cert. denied, 354 So.2d 1142 (Ala.1978), that the fact of a pre-existing disease did not affect an award of compensation if the job combined with the disease to produce injury or death.

Dr. Rice testified that if the employee already had bronchitis that exposure to the metal dust would have aggravated her condition. Dr. Bailey said “she had symptoms of a problem that would have been aggravated by that [work environment.]”

We hold the court erred in finding the employee suffered no compensable disability-

In order for her to recover under the occupational disease portion of the Workmen’s Compensation Act, she must prove the disease arose out of and in the course of employment. Ala. Code § 25-5-110 (1975). It is axiomatic that an occupational disease is not compensable if it is not caused or aggravated by the nature of the employment. Chrysler Corp. v. Henley, 400 So.2d 412 (Ala.Civ.App.1981). In order for a disease to be occupational it must be due to hazards which are (1) in excess of those ordinarily incident to employment in general and (2) different in character from those found in the general run of occupations. To state the matter succinctly, the employee must be exposed by his or her employment to the risk causing the disease in a measurably greater degree and in a substantially different manner than are persons in employment generally. Chrysler Corp. v. Henley, supra.

In the instant case, there is medical testimony which is not directly contradicted that the bronchitis and resulting sensitization of the airways resulted or were aggravated from exposure to the hazardous substances in the work environment. Furthermore, bronchitis and lung ailments are frequently found in people working in environments with tungsten carbide. The exposure to the metal dust over a period of time causes the body to react to the dust. Other Atrax employees have been treated for similar symptoms as the employee suffered.

While we have previously recognized that bronchitis and bronchial asthma are occupational diseases within the meaning of § 25-5-110, Chrysler Corp. v. Henley, supra, the evidence here is that the employee does not presently suffer from bronchitis. However, in undisputed testimony Dr. Rice explained the bronchitis sensitized her airways leaving her more susceptible to bronchitis and other obstructive airway diseases. It is this remaining sensitivity and susceptibility which has left her with an earning impairment. In other words, she has an “allergy” which prohibits her from working at Atrax, or any similar industrial environment.

In order for her to recover under § 25-5-110, we must be prepared to say this residual sensitivity falls within the definition of an occupational disease. Under the code provision, an occupational disease is one which is more than temporary, one which denotes a serious disorder which has impaired the constitution or left in its wake some organic or chronic effect which has undermined the employee’s general health. Chrysler Corp. v. Henley, supra.

In Health-Tex v. West, 401 So.2d 88 (Ala.Civ.App.1981), a garment factory worker who developed acute allergic dermatitis from the cloth materials she worked with was found to be permanently and totally disabled. We held there that disability in this sense relates to the inability to perform the work of one’s trade or inability to obtain reasonably gainful employment. Allergies or allergenic reactions have been the basis for recovery in Albertville Nursing Home v. Upton, 383 So.2d 544 (Ala.Civ.App.1980); Federal Mogul Corp. v. Taylor, 345 So.2d 1366 (Ala.Civ.App.1977); B.F. Goodrich Co. v. Martin, 47 Ala.App. 244, 253 So.2d 37, cert. denied, 287 Ala. 726, 253 So.2d 45, 46 (1971).

We are therefore prepared to hold in this case that the residual effect of the employee’s bronchitis amounted to an occupational disease because the resulting sensitivity impaired her earning ability, and left her suffering with a “chronic effect.” We therefore reverse and remand for proceedings not inconsistent with the above.

REVERSED AND REMANDED.

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

On Application for Rehearing

HOLMES, Judge.

The .employer, through able counsel, contends in brief in support of its application for rehearing that a certain portion of this court’s opinion is “misleading.”

While this court does not necessarily agree with the employer, in deference to all concerned, the following is deleted: “Even though Atrax has filtering systems to filter particles of dust from the atmosphere inside the plant, Atrax was cited by the Occupational, Safety and Health Administration (OSHA) for a slight over exposure of cobalt particulate matter to two workers in the plant. In the fall of 1981, OSHA investigated the plant and found the level of cobalt particulate matter to be below the OSHA standard.”

OPINION EXTENDED; APPLICATION FOR REHEARING OVERRULED.

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


text:
    Richard Earl PUCKETT v. Mamie Lois PUCKETT.
    Civ. 3693.
    Court of Civil Appeals of Alabama.
    Aug. 31, 1983.

      L.H. Little, Jr. of Berry, Abies, Tatum, Little & Baxter, Huntsville, for appellant.
    Jackson P. Burwell of Lanier, Shaver & Herring, Huntsville, for appellee.
   EDWARD N. SCRUGGS, Retired Circuit Judge.

This is a divorce case.

After hearing the conflicting evidence, the trial court awarded the assets of the 26 year old marriage to the wife as alimony in gross. That property consisted of a jointly owned house reasonably worth $27,000, which is subject to a mortgage, and the household furniture and appliances. As the only issue on this appeal, the husband contends that the trial court palpably abused its discretion in failing to award any portion of the marital estate to him.

Because of the attendant presumptions that are accorded to the factual findings of the trial court, we will primarily summarize that portion of the evidence which tends to uphold those findings; however, by doing so, we do not imply that there was no contrary testimony.

The parties were married in 1957. Two children were born of their union. One daughter is 21 years of age and has been married for four years. The other daughter is 19 years old, is single and resides at home.

The husband has had a drinking problem since his teen years. Apparently, he is an alcoholic at the present time. Mr. Puckett drinks to excess very, very frequently and, while drinking, is usually verbally, and sometimes physically, abusive to his family. In short, his affliction has made life miserable for all members of his family for many years.

Mr. Puckett, a college graduate, worked almost full time in finance businesses and collection agencies until 1976 when he quit his employment shortly before that last employer closed the business. Since then, he has only worked occasionally on a temporary basis for a week or two at a time and has not sought regular employment in the past five years. When he worked regularly, he would give his wife $50 every two weeks to use towards family expenses, but, since 1976, he has contributed nothing to those expenses. On occasions, in order to temporarily satisfy his drinking habit, he would request and receive back from his wife a portion of the money which he had given to her. His sister testified that he had always been a poor provider for his family.

The wife has been continuously employed with the same employer since 1969. From the joint income tax returns of the parties for 1977 through 1981, the husband had a total five-year reported income of $252, while the wife’s wages amounted to $45,742 for that period of time.

The wife paid for all of the appliances presently located in the home and for much of the furniture and other personal property.

Just before the termination of the husband’s last full time employment in 1976, the parties bought their home for a total purchase price of $13,500. The wife paid in full the down payment of $100 and the entire closing costs of $275, with the balance of the home cost being financed through a mortgage against it. Since the home was purchased, Mrs. Puckett has made each and every $136.25 monthly payment upon that mortgage exclusively from her wages. The wife and both daughters testified that the husband only did a minimal amount of work and repair around the house.

In a divorce case, the division of the property of the parties need not be equal, but a division is required according to the nature of each individual case. When the trial is ore tenus before the trial •court, the final judgment as to the division of property and alimony in gross is presumed to be factually correct. They are matters which fall within the discretion of the trial court. We will not reverse if the trial court’s findings are supported by the evidence unless there was a palpable abuse of that discretion. Keleher v. Keleher, 389 So.2d 1160 (Ala.Civ.App.1980); Mack v. Mack, 389 So.2d 1156 (Ala.Civ.App.1980).

The briefs and the entire record have been read and studied. There was no abuse of judicial discretion in the award of alimony in gross as made by the trial court. The evidence fully upholds that judgment and it was not palpably wrong. All of the marital assets may be awarded to one spouse under appropriate circumstances. Carter v. Carter, 390 So.2d 294 (Ala.Civ.App.1980). It was appropriate for the trial court to grant the assets of this marriage to the wife under the somewhat unusual circumstances of this particular case. We affirm.

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

AFFIRMED.

All the Judges concur.


author: WRIGHT, Presiding Judge.

text:
    Sandy King BUTLER v. Larry C. KING.
    Civ. 3777.
    Court of Civil Appeals of Alabama.
    Aug. 31, 1983.

      Stanley E. Munsey, Tuscumbia, for appellant.
    Jerry M. Vanderhoef, Tuscumbia, for ap-pellee.
   WRIGHT, Presiding Judge.

This is an appeal of the modification of a divorce decree.

The parties, former husband and wife, were divorced in 1979. The decree ordered the husband to pay $450 per month in child support ($225 per month for each of his two minor children), a pro-rata portion of the payments to be discontinued upon each child’s nineteenth birthday or emancipation. In return, he was awarded reasonable visitation rights, including visitation for the entire month of July of each year.

After almost three years of disputes over custody and visitation rights and one earlier modification of the decree, the trial court granted the husband’s petition for modification, reducing his support payments to $400 per month ($200 per child) and allowing him two additional weeks of summer visitation tangent to those already provided.

The wife’s motion for new trial was denied. She appealed here. We reversed based on the trial court’s failure to grant a hearing and remanded with instructions for a hearing to be conducted, 429 So.2d 1076 (Ala.Civ.App.). After a hearing on the motion, it was again denied. Again, she appeals here, asserting four errors: (1) that the petition to modify was not supported by a showing of a material change in circumstances; (2) that the modifications granted were not prayed for and, thus, improperly given; (3) that the trial court improperly made a comparison between her and her ex-husband’s incomes; and (4) that the trial court erred in not granting a new trial.

A trial court may, in its discretion, modify an original award for alimony or support in a divorce decree. Skipper v. Skipper, 280 Ala. 506, 195 So.2d 797 (1967). However, a modification may only be granted upon the showing of a material change in circumstances, the burden of establishing such being on the moving party. Taylor v. Taylor, 418 So.2d 148 (Ala.Civ.App.1982). The determination of whether a modification should be granted is solely within the discretion of the trial court. Young v. Young, 376 So.2d 737 (Ala.Civ.App.1979). Where, as here, a modification is rendered upon an ore tenus hearing, the findings of the trial court are presumed correct and will only be set aside on appeal if unsupported by any credible evidence so as to be plainly and palpably wrong. Brothers v. Vickers, 406 So.2d 955 (Ala.Civ.App.1981).

This presumption of correctness also applies to the trial court’s determination of visitation rights, which must be determined on a case-by-case basis, depending on the particular facts and personalities involved, Skipper, supra 195 So.2d at 799, keeping in mind the best interest and welfare of the children involved. Brothers, supra 406 So.2d at 958; Green v. Green, 47 Ala.App. 171, 252 So.2d 97 (1971). The trial court has broad discretion in such matters. Crane v. Crane, 392 So.2d 242 (Ala.Civ.App.1980).

The record reveals that the trial court considered several factors in granting the modification, including the remarriage of both parties. Although this alone is not grounds for modification, Mencer v. Mencer, 277 Ala. 679, 174 So.2d 319 (1965), it may properly be considered as a factor. Wise v. Wise, 396 So.2d 111 (Ala.Civ.App.1981). The trial court also properly considered other factors, including the husband’s recent loss of military housing allowance, expenses incurred while the children were visiting him, his expenses in traveling from Kentucky to Alabama to exercise his visitation rights, and his impending transfer to Europe. We cannot say that these considerations evidence a clear abuse of discretion or that the modification granted was plainly or palpably wrong. Therefore, we find sufficient evidence to support the decision of the trial court.

Extension of the father’s summer visitation privileges was proper even though he made no specific prayer for the extension in his petition. Rules 15(b), 54(c), 61, A.R.Civ.P., permit the trial court to render a judgment not based on the pleadings if the proof offered would support the judgment. Parrish v. Parrish, 365 So.2d 1237 (Ala.Civ.App.1979). Specifically, 54(c) states that a final judgment shall grant the relief to which a party is entitled even though he failed to demand such relief in his pleadings. These rules apply to modifications of divorce decrees, allowing modification, notwithstanding the petitioning party’s failure to so request. Parrish v. Parrish, supra at 1240. Although these rules will not be applied where undue hardship would result, such is not the case here. The wife knew of the presentation of evidence supporting the extension and, thus, was not prejudiced by the relief granted. Jackett v. Jackett, 380 So.2d 919 (Ala.Civ.App.1980).

Although comparison of the parents’ income alone is not the proper criteria for determining the amount of child support required of the father, Palmer v. Palmer, 399 So.2d 315 (Ala.Civ.App.1981), the record shows that this was not the only consideration. The trial court may consider many factors, including the wife’s financial status and need, the financial ability of the former husband to pay and the needs of the dependent children. Parrish v. Parrish, supra 365 So.2d at 1239. The respective salaries of the parties, being a component of these factors, were properly considered.

Granting or refusing a motion for new trial rests within the sound discretion of the trial court; the exercise of that discretion carries with it a presumption of correctness which will not be disturbed unless some legal right was abused and the record plainly and palpably shows the trial court was in error. Hill v. Cherry, 379 So.2d 590 (Ala.Civ.App.1980). Based on the above cited authority and a review of the record, we find no error in the trial court’s failure to grant a new trial.

AFFIRMED.

BRADLEY and HOLMES, JJ., concur.


author: PER CURIAM.

text:
    DEPARTMENT OF INDUSTRIAL RELATIONS and Black Diamond Coal Company v. James W. PICKETT, Amos Boyd, Leodis Majors, Johnson T. Morse.
    Civ. 3791.
    Court of Civil Appeals of Alabama.
    Aug. 31, 1983.
    Barry Frederick and Harry Hopkins, of Lange, Simpson, Robinson & Sommerville, Birmingham, for Black Diamond Coal Company and George Cocoris, Gen. Counsel, and Frank Marsh, Asst. Gen. Counsel, Dept, of Industrial Relations, Montgomery.

      William E. Mitch and Fred T. Kuyken-dall, Birmingham, for appellees.
   PER CURIAM.

This is an unemployment compensation case.

This is the second time the subject matter of this case has been before this court. Interested parties should refer to this court’s prior opinion. See Davis v. Pickett, 412 So.2d 1225 (Ala.Civ.App.1981), cert. quashed, 412 So.2d 1280 (Ala.1982).

In the majority opinion of Davis v. Pickett, supra, this court, in pertinent part, stated the following:

“In the present case the trial court awarded unemployment benefits to ap-pellees even though it specifically found that Black Diamond gave them ‘their lay off notices in anticipation of an industry strike.’ These two aspects of the court’s judgment are inconsistent. If appellees were indeed given their layoff notices in anticipation of a coal miners’ strike, then their unemployment would in this instance apparently be directly due to a labor dispute in active progress at the place where they were employed, i.e. Black Diamond’s washer number nine, and they should not have received any compensation benefits. If the appellees were given their layoff notices because of a lack of work, then the trial court’s judgment awarding benefits contains an implicit finding that appellees were not disqualified from receiving those benefits.
“Because of this obvious inconsistency, the aspect of the trial court’s judgment implicitly finding that appellees were not disqualified from receiving unemployment compensation benefits is erroneous and must be reversed.
“That aspect of the judgment holding that appellees Pickett, Boyd and Majors were eligible for benefits is affirmed; that aspect of the judgment holding that appellee Morse was eligible for benefits from December 1, 1977 to February 7, 1978 is reversed; and that aspect of the judgment holding that appellees were not disqualified from receiving benefits is also reversed. The cause is remanded so that the trial court can make findings of fact and conclusions of law relating to the disqualification of appellees to receive unemployment compensation benefits that will be consistent with its judgment.” (Emphasis supplied.)

412 So.2d at 1229.

This court’s opinion was issued in July of 1981. The Supreme Court of Alabama quashed the writ of certiorari in April of 1982.

The trial court in an undated order, which was filed in the circuit clerk’s office in April of 1983, stated in its entirety the following:

“The Court, being duly advised in the premises, having reviewed the record in this case, it is hereby ORDERED, ADJUDGED and DECREED, consistent with the Findings of Fact and Conclusions of Law contemporaneously herewith entered, that Plaintiffs Picket, Majors and Boyd are entitled to unemployment compensation benefits for the period December 1, 1977 to February, 1978.
“This_, day of_, 1982.”

Quite frankly, we do not understand the learned trial judge’s action. However, we call to his attention the above emphasized portion of this court’s prior opinion.

We have no alternative but to remand the latest judgment back to the trial court in order that our prior mandate be followed. Our action is taken pursuant to our general superintendence power. See Ala.Code § 12-3-11 (1975).

In view of the lengthy road this case has traveled, the trial court is directed to comply with the above within fourteen days of this order.

Therefore, this court, as indicated, considers it necessary to remand this cause to the trial court to enable that court to comply within fourteen days with the mandate of this court as enunciated in Davis v. Pickett, supra. See Louisville & Nashville Railroad v. Atkins, 435 So.2d 1275 (Ala.1983). It is so ordered.

REMANDED WITH DIRECTIONS.

All the Judges concur.


text:
    Frank DAVIS v. Cladie TOWNSON.
    Civ. 3800.
    Court of Civil Appeals of Alabama.
    Aug. 31, 1983.
    Larry Grissett of Prestwood, Prestwood & Grissett, Andalusia, for appellant.
    No Brief for Appellee.
   EDWARD N. SCRUGGS, Retired Circuit Judge.

This is an account case.

After a trial a final judgment was rendered and entered on September 17,1982 by the small claims court in favor of Mr. Townson, the plaintiff, for $400. No post-judgment motion was filed. The defendant’s notice of appeal to the circuit court was filed on October 7, 1982. That typewritten notice erroneously stated that the date of the judgment appealed from was September 27, 1982. The true date of the entry of the judgment of the small claims court, September 17, 1982, most certainly prevails over the defendant’s designation of a false, erroneous, or mistaken judgment date in his notice of appeal.

Contrary to the requirements of section 12-12-70(a), Code 1975, the defendant did not file his notice of appeal to the circuit court within fourteen days from the date of the judgment in the small claims court. The taking of an appeal within the time specified by the statute is essential to perfect the appeal and is jurisdictional. Crawford v. Ray & Pearman Lincoln Mercury, 420 So.2d 269 (Ala.Civ.App.1982); Moutry v. State, 359 So.2d 388 (Ala.Civ.App.1978). Since the appeal was not timely taken, the circuit court had no jurisdiction over the appeal; that is, it had no jurisdiction over the subject matter. Because of such lack of jurisdiction, the final judgment for Mr. Townson for $800 as entered by the circuit court was void and will not support the appeal to this court. That lack of jurisdiction follows from the circuit court even to the appeal taken to this court for “[wjhen-ever it appears by suggestion of the parties or otherwise that the court lacks jurisdiction of the subject matter, the court shall dismiss the action.” Rule 12(h)(3), Alabama Rules of Civil Procedure (emphasis supplied); Bibb v. Boyd, 417 So.2d 206 (Ala.Civ.App.1982). Since jurisdiction over the subject matter may not be waived and since this court observed that jurisdictional defect in the record on appeal, the appeal in this case must be dismissed. Bibb v. Boyd, supra.

We realize that, in a sense, the defendant, who filed the false, erroneous, inaccurate or mistaken notice of appeal, is being rewarded since the small claims court’s judgment will stand and since the larger judgment of the circuit court would have been affirmed by this court upon its merits; however, for the foregoing reasons, neither the circuit court nor this court had, or has, any jurisdiction to proceed.

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

APPEAL DISMISSED.

All the Judges concur.


text:
    Buddy Deering ANDREWS v. Eva W. ANDREWS.
    Civ. 3812.
    Court of Civil Appeals of Alabama.
    Aug. 31, 1983.

      Neil L. Hanley, Mobile, for appellant.
    W. Stanley Garner, Ozark, for appellee.
   WRIGHT, Presiding Judge.

This is a case of interpretation of a divorce decree.

The parties herein were divorced in March 1978 and the plaintiff (the mother herein) was awarded custody of the two minor children, Candice (18) and Paul (14). Child support was set at $300 per month until June 1, 1982, at which time the amount would be reduced to $150 per month until June 1,1986. Payment of child support from June 1982 to June 1986 would continue unless Paul “shall have quit school or taken full-time employment.” The final divorce decree did not provide for a reduction upon one of the children attaining majority or marrying.

Full payment of child support continued through December 1,1979, after which time the father unilaterally reduced payments to $150 per month. Payment of the $150 per month continued until approximately April 1982, when all payment ceased. The mother petitioned the court for a rule nisi for the father’s failure to make proper support payments. The court found the father in arrears in the amount of $6,000 through February 1, 1982. It also held that the father was obligated to continue paying $150 per month for the support of the son until Paul either quit school or assumed full-time employment. The father’s motion to amend the judgment was denied. He appealed.

The father raises two issues: (1) that he was authorized to reduce child support payments from $300 to $150 upon the marriage of his daughter, and (2) that he was authorized to terminate child support payments pursuant to the terms of the divorce decree when his son withdrew from school for a quarter and played in a band through the spring and summer.

We find neither of the contentions well taken. The father’s agreement to continue support payments after a child has attained majority, when incorporated in a decree, is enforceable and subject to modification. Scott v. Scott, 401 So.2d 92 (Ala.Civ.App.1981). We have stated that the legal duty of a father to support a minor child ends when the child marries and that such marriage provides cause to seek modification. Owens v. Owens, 412 So.2d 820 (Ala.Civ.App.1982). Yet, a father may not unilaterally reduce lump sum child support payments where the decree does not so provide. Id, at 822. See also, Weaver v. Weaver, 401 So.2d 77 (Ala.Civ.App.), cert. denied, 401 So.2d 78 (Ala.1981). The agreement placed in the decree does not provide for automatic reduction upon the marriage of one of the children. The father could have sought judicial modification of the decree. The court correctly held that past-due installments become judgments and are unmodifiable thereafter. Smith v. McNaughton, 378 So.2d 703 (Ala.1979).

With regard to the father’s second contention, neither party disputes that the son withdrew from college after two quarters, that he worked for a band through the summer or that he returned to college in the fall and has since continued in school. The dispute is in the interpretation of those facts. The father contends the son quit school and assumed a full-time job which automatically terminated payment under the decree. The mother, however, contends that the son only temporarily withdrew, taking on temporary employment and not quitting school in the sense of permanent abandonment.

The son testified that he withdrew for financial reasons and took a job to enable him to return to school in the fall. The intent of the conditions for continued payment for the son’s support in the original divorce decree was that he not abandon or permanently quit school or that he not assume full-time permanent employment. The court found the son did not permanently forsake his college education nor assume full-time permanent employment. We do not find the trial court to be palpably in error.

The mother’s request for attorney’s fees on appeal is granted in the amount of $500.

AFFIRMED.

BRADLEY and HOLMES, JJ., concur.


text:
    Roy G. JOHNSON and Bobbie Johnson v. Dorothy May SPARKS and Kenneth Sparks.
    Civ. 3837.
    Court of Civil Appeals of Alabama.
    Aug. 31, 1983.

      Michael L. Fees of Berry, Abies, Tatum, Little & Baxter, Huntsville, for appellant.
    H. Evins Hamm, Huntsville, for appel-lees.
   BRADLEY, Judge.

This appeal arises out of a dispute between the paternal and maternal grandparents over which ones should have the custody of their grandchild.

The Sparkses’ daughter, Connie, and the Johnsons’ son, Michael, were married on December 31, 1981. On December 4, 1982 Connie and Michael were killed in an automobile accident. They left surviving them an infant child, Kelly Dawn Johnson, born August 14, 1982, who is the subject of this controversy.

Mike and Connie lived with the Johnsons for about a month after they were married, but resided with the Sparkses for the last seven months of their marriage. Kelly was born while the couple was residing with the Sparkses. Kelly continued to reside with, and was cared for by the Sparkses after the couple’s death.

On December 29, 1982 the Sparkses filed a petition seeking custody of Kelly, and the Circuit Court of Madison County granted them temporary custody. On January 18, 1983 the Johnsons filed a motion to intervene and on January 25, 1983 filed their petition for custody of Kelly.

Both custody petitions were heard ore tenus on March 17,1983. On April 27,1983 the trial court entered a decree awarding primary custody of Kelly to the Sparkses with liberal visitation rights in the John-sons. The trial court also directed the Sparkses to set up a trust fund with a local bank to hold forty percent of Kelly’s social security benefits and invest them for her education, subject to invasion for necessary expenses. The Sparkses established this trust with the First National Bank of Alabama-Huntsville.

In support of their appeal, the Johnsons contend that awarding custody to the Sparkses was clearly adverse to Kelly’s best interests and welfare both now and in the future. The paramount consideration in every child custody case is the best interests of the child. Robertson v. Robertson, 415 So.2d 1085 (Ala.Civ.App.1982). In determining what is in the best interests of a child, a trial court considers numerous factors including the sex and age of the child, the child’s emotional, social, moral, material, and educational needs, the parties’ age, character, stability, health, and home environments, the interpersonal relationship between the child and the parties, the effect on the child of a disruption of the custody arrangement, and the parties’ success in raising other children. Ex parte Devine, 398 So.2d 686 (Ala.1981). The award of custody of a child is within the sound discretion of the trial court and its decision will not be set aside unless it is so contrary to the evidence as to be plainly and palpably wrong. Nesmith v. Nesmith, 419 So.2d 247 (Ala.Civ.App.1982). Appellants argue that the evidence fails to support the trial court’s finding that Kelly’s best interests would be served by placing her custody with the Sparkses and, thus, should be set aside.

The evidence shows that the child in question has lived with the maternal grandparents, the Sparkses, since her birth and the child’s parents lived with the Sparkses for about seven months prior to their death.

The Sparkses were married in 1960 and have three children who still live at home. The two boys work and contribute $200 per month to the family’s living expenses. The Sparks family lives in a double-wide house trailer with four bedrooms and two bathrooms.

Mr. Sparks is a subcontractor in the building industry and presently earns about $1,200 per month. Mrs. Sparks formerly worked in a local textile mill, earning about $10,000 per year. She quit work shortly after the daughter’s death to take care of the child. She said that if it became necessary she could resume her work at the mill.

The Sparkses had marital problems beginning in late 1980 and resulting in a divorce in March 1981. The parties subsequently reconciled and remarried. During the period of separation, Mr. Sparks had a drinking problem and, coupled with the depression in the building industry, earned very little money during the years 1980, 1981, and the early part of 1982.

Since the Sparkses’ reconciliation, Mr. Sparks has not had a drink of alcohol, has become employed, and goes to church regularly.

The evidence shows that the child in question is well-cared for and well-loved. Mrs. Sparks applied for and obtained social security benefits for the child in the amount of $205.60 per month. Forty percent of this amount is placed in a trust fund and administered by a local bank for the child’s education.

The Johnsons point out in brief that the educational level of the Sparks family is about at the grammar school or junior high school level, whereas their family members have all completed high school. In view of this evidence and the evidence that an educational trust fund has been created for the child by the Sparkses, the trial court could have decided that the Sparkses intended that their grandchild would receive the education that they failed to obtain. Moreover, it is interesting to note that the Johnsons have not contributed anything to the maintenance or education of their grandchild since the parents’ death.

The Johnsons also argue that they are in a better financial condition to provide for the child than are the Sparkses. It is true that Mr. Johnson’s gross income is considerably more than Mr. Sparks’ income. However, the Johnsons have a sizeable amount of monthly indebtedness which reduces considerably the amount of spendable income available to them. But, assuming that the Johnsons do have more spendable income than the Sparkses, the financial ability of a party to care for a child whose custody it is seeking is not the controlling factor but is just one factor along with others for the court to consider in awarding custody of a child. Horton v. Gilmer, 266 Ala. 124, 94 So.2d 393 (1957).

Based on the evidence in the record before us, we are convinced that the trial court’s award of the child’s custody to the Sparkses is not contrary to the evidence, nor is it plainly and palpably wrong.

AFFIRMED.

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


author: HOLMES, Judge.

text:
    STATE of Alabama v. Larry MARTIN.
    Civ. 3695.
    Court of Civil Appeals of Alabama.
    Aug. 31, 1983.
    Frank L. McGuire, III, Opp, for appellant.
    Donald F. Colquett, Opp, for appellee.
   ON REHEARING

HOLMES, Judge.

This is a paternity action brought pursuant to Alabama Code sections 26-12-1 through -9. The learned trial judge determined the action was barred by the statute of limitations.

On August 3, 1983, this court issued an opinion affirming the trial court’s judgment in favor of the defendant.

The State then filed a prompt application for rehearing, bringing to the court’s attention certain crucial facts earlier overlooked. After considering the State’s brief in support of its application for rehearing this court is of the opinion that rehearing should be granted, that the August 3 opinion should be withdrawn, and that the trial court should be reversed.

The child whose paternity the State seeks to establish, Harvey Dewayne Pickron, was born December 2, 1976. On that date the paternity limitations statute was two years. See Ala.Code § 26-12-7 (1975). On May 21, 1981, well after Harvey Dewayne Pick-ron had reached his second birthday, the Alabama Legislature extended the limitations statute to five years. See Ala.Code § 26-12-7 (Cum.Supp.1982). On September 1, 1981, Shirley Tucker, the mother of Harvey Dewayne Pickron, commenced this action by swearing out a paternity warrant against the defendant/appellee. On December 2, 1981, while this cause was pending before the trial court, Harvey Dewayne Pickron reached his fifth birthday.

In its brief in support of its application for rehearing the State makes two arguments. The first argument is that the two-year statute of limitations which, as indicated, was apparently applied below should be ruled unconstitutional on the authority of recent U.S. Supreme Court precedent. Alternatively, the State argues that this court should apply the new five-year statute and find that this cause was timely filed.

In choosing between successive limitations statutes this court is guided by three recent Alabama opinions. See Tyson v. Johns-Manville Sales Corp., 399 So.2d 263 (Ala.1981); Street v. City of Anniston, 381 So.2d 26 (Ala.1980); Adams v. State, 428 So.2d 117 (Ala.Civ.App.1983). Street sets out the general rule: “the statute of limitations in effect at the time the suit is filed, as opposed to the one in effect at the time of the accrual of the cause of action, has been held to apply unless the later statute clearly states the contrary.” 381 So.2d at 29. Adams is to the same effect. Tyson, however, highlights an important exception to this general rule: if when the successor statute becomes effective, the cause of action has already been barred by the limitations statute in effect at accrual, then the new, longer statute cannot be applied to revive the barred cause. 399 So.2d at 269. A limitation statute which attempts to revive an already barred action would violate section 95 of the Alabama Constitution. Id.

Applying the above law to the facts of the instant case, this court must reject the five-year statute (the statute of limitations in effect when the action was filed) because this action was already barred when the five-year statute was enacted. We cannot accept the State’s alternative argument and apply the five-year statute because to do so would violate Tyson and section 95 of the Alabama Constitution.

Rejection of the five-year statute in favor of the two-year statute does not, however, lead to a ruling that the State’s action was properly rejected. Under recent U.S. Supreme Court precedent this court has no alternative but to invalidate Alabama’s two-year statute under the equal protection clause of the fourteenth amendment. In Pickett v. Brown, - U.S. -, 103 S.Ct. 2199, 76 L.Ed.2d 372 (1983), the U.S. Supreme Court invalidated Tennessee’s two-year paternity statute because a “two-year limitations period does not provide illegitimate children with ‘an adequate opportunity to obtain support.’ [Mills v. Habluetzel, 456 U.S. 91,] 100 [102 S.Ct. 1549, 1555, 71 L.Ed.2d 770] .... ” Although the Supreme Court also gave alternate grounds for finding the two-year statute invalid, we do not believe these alternate grounds can be used to distinguish Pickett from the present case. Accordingly, the Alabama two-year paternity statute must be invalidated.

The State’s application for rehearing is hereby granted. The August 3, 1983, opinion of this court is hereby vacated and withdrawn and this opinion is substituted in its place. The judgment below is reversed, and this action is hereby remanded for further proceedings.

APPLICATION FOR REHEARING GRANTED.

OPINION SUBSTITUTED.

REVERSED AND REMANDED.

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