author: THOMAS, J.,

text:
    Debra BERMOND, Appellant, v. CASINO MAGIC, Employer and Great American Insurance Company, Carrier, Appellees.
    No. 2003-WC-01739-COA.
    Court of Appeals of Mississippi.
    May 25, 2004.

      Floyd J. Logan, Gulfport, attorney for appellant.
    William D. Blakeslee, Gulfport, attorney for appellees.
    Before KING, C.J., BRIDGES, P.J., THOMAS and CHANDLER, JJ.
   THOMAS, J.,

for the Court.

¶ 1. Following an award of temporary total benefits and medical treatment by an administrative law judge, the Mississippi Workers’ Compensation Commission entered an order denying all benefits to Debra Bermond, stating that the findings of fact made by the administrative law judge did not support a finding that Bermond had suffered a compensable cervical injury on the date that she fell while working for Casino Magic. The Circuit Court of Hancock County affirmed the Commission. Bermond appeals asserting three issues which we quote verbatim:

1.Whether there was substantial evidence to support the Commissions reversal of the decision of the administrative law judge awarding benefits to claimant.
2. Whether the administrative law judge erred in admitting the employee accident report of March 7, 2000.
3. Whether claimant’s failure to seek employment is fatal as a matter of law, under this case, to the claim of total disability.

We find that while the Commission relied in part on evidence not properly in the record, additional evidence supported the Commission’s decision to overturn the administrative judge’s order, and we affirm the finding that Bermond’s work-related accident did not cause the injuries for which she sought treatment, and this finding makes it unnecessary for us to address' whether Bermond’s admitted failure to seek employment is fatal to her claim of total disability.

FACTS

¶ 2. The parties agree that Bermond was initially hired in April of 1998, and on March 7, 2000, she slipped and fell while at work. The disputed factual issue is whether the evidence could support a finding that the fall caused, or aggravated a preexisting condition, of spondylosis at the neck vertebrae C6-7 necessitating a cervical discetomy and bone fusion.

¶3. The day before the fall, March 6, 2000, Bermond went to Gulf South Urgent Care (Urgent Care) complaining of pain and tingling in her left arm, and carpal tunnel syndrome was diagnosed. On the day of the fall, Bermond’s supervisor, Barbara Maas, testified that after Bermond fell, she initially did not complain of any injury to her left arm, shoulder or neck. Rather, the only injury Bermond reported was that she had skinned her knees, and she declined Maas’ suggestion that she should go to Urgent Care for treatment. Additionally, on the employee accident report that Bermond completed on the day of the fall, the only injury she listed was to her “knee caps.” However, during the hearing, which took place on December 6, 2001, the administrative judge ruled that Casino Magic had committed a discovery violation in failing to disclose this record prior to the hearing, and he initially ruled that the document could not be substantively entered into evidence, though he did allow it to be placed in the record for identification purposes. Inexplicably, the hearing officer reopened the record on May 24, 2002, without the presence of counsel for either party, and without any explanation admitted the document substantively into the record. Because this document was not put into evidence substantively at the hearing, Bermond was not questioned directly about it. However, Bermond testified prior to Maas, and Ber-mond stated that she did indeed complain to Maas about pain in her left arm and neck immediately after the fall.

¶ 4. Regardless of what injury Bermond actually reported, the record was clear that Bermond was placed on “light duty” in the laundry on March 7, 2000 and finished her shift that day. Bermond testified that she worked in the laundry again the next day, but her injuries were so painful that she could not continue. Maas initially testified Bermond did not work on March 8th, but on cross-examination appeared less certain. March 9th and 10th were Bermond’s regularly scheduled days off. Bermond testified that Maas told her to take short-term disability leave, which she did for one week. Maas denied telling Bermond to take short-term disability leave. At any rate, the record was clear that on March 18, 2000, Bermond returned to Casino Magic and filed for both family medical leave and disability benefits. What actually transpired during the time after Bermond ceased working and returned to file for leave was disputed. Maas, and two other Casino Magic employees, Tamera Whavers, employee benefits manager, and Brandi Wyman, room attendant, testified that Bermond told them she had vacationed in Mexico or Disney World. Bermond denied both that she made such statements and that she took any vacation.

¶ 5. Bermond testified that she did not apply for workers’ compensation benefits because Whavers told her sometime around March 20th to 22nd that she would be better off applying for disability benefits. Bermond also stated that Whavers counseled her to not disclose that her injury was work related, because this disclosure would prevent her from qualifying for disability insurance provided by Casino Magic as an employee benefit. Bermond also testified that she did not discuss any medical treatment with Whavers when she applied for disability benefits because she had not yet made any appointment with a physician. Whavers denied telling Ber-mond to not disclose a work-related injury. Whavers testified that when Bermond came to apply for disability benefits, she told Bermond that an employee could not apply for disability insurance benefits if they had a work-related injury, and that Casino Magic policy was that an employee had to apply for family medical leave prior, or simultaneously, to applying for disability benefits.

¶ 6. Bermond returned to Urgent Care on March 21, 2000 complaining of left arm pain and finger numb and tingling. Dr. Burwell testified that Bermond complained of pain and tingling in her left arm and hand, and pain in her left shoulder, all of one month’s duration. She specifically told him her injury was not work-related. He diagnosed degenerative changes to her spine, gave her a work restriction of not lifting more than twenty pounds, and planned to see her in a month, but she never returned.

¶ 7. Dr. Henry Danielson, a neurosurgeon, testified that he initially saw Ber-mond on May 18, 2000. He said Bermond gave him a history of a fall at work and brought with her an MRI. He performed the cervical discetomy on June 28, 2000. His medical opinion was that the fall at work caused “a considerable aggravation of her pre-existing condition,” and necessitated the surgery. He said that she had been temporarily totally disabled from the date of the surgery until December 12, 2000, and was instructed against prolonged extension of her neck and had sustained a 10% permanent partial impairment, but lifting up to her shoulder level was permissible. However, Dr. Danielson testified on cross-examination that he had not been aware that Bermond had not complained of a work-related injury prior to seeing him, but he would not agree with Casino Magic’s counsel that the injury was not work related, because he felt that Ber-mond’s symptoms changed following the fall at work. Nevertheless, Bermond did in fact report substantially the same symptoms to Urgent Care on March 6, 2000, that she reported to the Hancock Medical Center of March 20, 2000. The March 20th records state she presented “the same complaints” that she reported to Urgent Care two weeks previously. Following her recuperation, Bermond did not seek any employment.

¶ 8. Upon this evidence, the administrative judge found:

[T]he claimant has proven by a slim but fair preponderance of the evidence that her admitted slip and fall accident on March 7, 2000 resulted in the cervical injury that required the surgical intervention by Dr. Harry Danielson on June 28, 2000, based on her own testimony and the expert testimony of Dr. Daniel-son. Even if we were to accept as a given that Ms. Bermond went to Mexico in March of 2000, as urged by the defendants, that fact would not be preclusive of an award in this case, and, besides doubtful matters are to be resolved in favor of compensation.

The administrative judge awarded both temporary total benefits at a rate of $143.37 a week, beginning on June 28, 2000, and ending on December 12, 2000, as well as medical services and supplies that had been, and would in the future be, necessary to treat Bermond’s cervical injury.

¶ 9. The Commission overruled the administrative judge, stating:

the Commission notes that although the findings of fact made by the administrative judge are consistent with the testimony and evidence, these facts do not support the Administrative Judges’s decision awarding compensability. Although not disputing that the claimant fell on March 7, 2000 while at work at Casino Magic, the Commission believes that the following facts, found by the Administrative Judge, support a finding that the claimant did not suffer a com-pensable cervical injury on that date:
* The claimant prepared the top portion of the document captioned “Casino Magic Employee Accident Report (Exhibit E/C-ll) indicating injury to her knee caps on March 7, 2000.
* The claimants supervisor, Barbara Maas, completed the bottom portion of the document (E/C-ll) and indicated that the claimant had denied medical attention for this injury because “it was just her knee caps that were skin [sic] and had some blood and she was alright.”
* Claimant does not dispute Ms. Maas position on the document (Exhibit E/C-ll), which is consistent with her own.
* The day prior to the work related fall on March 7, 2000, claimant had reported to a medical facility (Gulf Coast Urgent Care) with complaints of arm and neck pain, notably upper left extremity and left shoulder complaints with onset two weeks before March 6, 2000.
* On March 22, 2000, when the claimant reported to Dr. Burwell, she indicated on the patient history form that he required that she had not been injured on the job and that the symptoms of which she complained (upper left extremity and shoulder pain) had onset about a month prior to the March 22, 2000 visit.

ANALYSIS

¶ 10. The findings and orders of the Mississippi Workers’ Compensation Commission are binding on all appellate courts so long as the decisions are supported by substantial evidence. Fought v. Stuart C. Irby Co., 523 So.2d 314, 317 (Miss.1988). This is a general deferential standard of review to the findings of the Commission. Walker Mfg. Co. v. Cantrell, 577 So.2d 1243, 1245 (Miss.1991). As a matter of custom and practice, the administrative law judge is generally, within the Commission, the individual who conducts the hearing and hears the live testimony. However, it is the Commission itself that is the finder of the facts and that on judicial review, its findings and decisions are subject to the normal deferential standards, notwithstanding the opinion of the administrative law judge. Walker Mfg. Co., 577 So.2d at 1245.

¶ 11. In this case, despite the Commission’s opinion that the administrative judge’s findings could not support finding a compensable injury, Bermond’s and Dr. Danielson’s testimony did support such a finding. Nevertheless, the Commission as ultimate finder of fact was within its power to reject the administrative law judge’s opinion, so long as substantial evidence supported the Commission’s own judgment. However, the Commission’s order relied on the employee accident report, which the administrative judge had ruled was not provided in discovery, and that a discovery violation occurred contrary to the rules of the Commission. Administrative judges in workers’ compensation hearings are authorized to enforce discovery provisions. Mississippi Code Ann. § 71-3-61(1) (Rev.2000). See also, Congleton v. Shellfish Culture, Inc., 807 So.2d 492 (¶ 13) (Miss.Ct.App.2002). The Commission itself has discretion to enlarge the scope of the record and relax rules of discovery applicable to hearings. Mid-Delta Home Health, Inc. v. Robertson, 749 So.2d 379 (¶ 30) (Miss.Ct.App.1999). However, the record is simply silent as to why, nearly seven months after the hearing and less than two weeks prior to the full Commission taking up this case, the administrative judge without any explanation or, apparently, notice to counsel reopened the record to admit the employee accident report, contrary to his ruling at the initial hearing. The Commission made no finding that the administrative judge erred in finding a discovery violation, or in precluding the substance of the employee accident report to be admitted into evidence. The record does not reveal any satisfactory answer as to why the employee accident report was not included in discovery. Casino Magic tried to explain that the attorney who handled the discovery had left the firm, and that while it had provided Bermond’s entire personnel file, the document was found in “her old file,” yet the document itself, has fax numbers and handwritten notes showing that it was faxed to Maas on June 19, 2000, nearly six months before the hearing took place. The concern that the Commission follow its own rules is not merely academic, because the failure to abide by recognized discovery rules impacts whether a decision is seen as arbitrary and capricious, and an violation of due process. Mid-Delta Home Health, Inc., 749 So.2d at (¶ 28) (citing Dunn, MISSISSIPPI WORKERS’ COMPENSATION, § 261 (3d ed.1982)). Moreover, it is an “immutable” aspect of due process that a person against whom evidence is to be used be afforded an opportunity to refute the evidence. Goldberg v. Kelly, 397 U.S. 254, 270, 90 S.Ct. 1011, 25 L.Ed.2d 287 (1970). While administrative agencies are to be given deference is applying their rules, what conveys due process is the very fact that agencies abide by these rules when making decisions. Vermont Yankee Nuclear Power Corp. v. Natural Resources Defense Council, Inc., 435 U.S. 519, 523, 98 S.Ct. 1197, 55 L.Ed.2d 460 (1978). Therefore, without some justification of why the administrative judge acted contrary to his ruling at the hearing, or why the Commission chose to disregard the administrative hearing officer’s decision as to the enforcement of its own procedural rules, this Court cannot say no error occurred.

¶ 12. However, Bermond cannot complain that the Commission’s consideration of the employee accident report caused surprise. And, Bermond cannot contend that trial by ambush would have occurred if the administrative hearing officer had allowed it to introduced at the hearing, because she knew the document existed and what it contained. In effect, what Bermond was not afforded was the opportunity to say the employee accident report did not accurately reflect her injuries, and the record shows she did this on numerous occasions. Moreover, this Court will affirm a decision of the Commission if it is supported by substantial evidence. Fought, 523 So.2d at 317. The record contained, in addition to the employee accident report, a form titled workers’ compensation first report of injury or illness. This document’s information derived from the employee accident report, as Casino Magic supplied the information to the Commission, but there is not doubt that this document was properly admitted, and it indicates that the only injury reported was to “the knees.” Moreover, the record contained Bermond’s application for disability benefits, in which she averred her injury was not work related. Similarly, she represented to Urgent Care, Dr. Bur-well, and the Hancock Medical Center that her injury was not work-related. Given this evidence, this Court cannot say the Commission’s decision was unsupported by substantial evidence.

¶ 13. In sum, we find that any error that occurred when the administrative judge reopened the record to admit the employee accident report does not rise to the level of denying Bermond due process, and substantial evidence supported the Commission’s finding that no compensable injury occurred. Because the Commission is affirmed on finding no injury, it is unnecessary to address whether the Commission erred in not awarding permanent disability benefits.

¶ 14. THE JUDGMENT OF THE HANCOCK COUNTY CIRCUIT COURT IS AFFIRMED. THE APPELLANT IS ASSESSED COSTS OF THIS APPEAL.

KING, C.J., BRIDGES, P.J., LEE, IRVING, MYERS, CHANDLER AND GRIFFIS, JJ., CONCUR. SOUTHWICK, P.J., NOT PARTICIPATING.


source: Caselaw Access Project

license: Public Domain

text:
    Johnny Cornelius WATKINS, Appellant, v. STATE of Mississippi, Appellee.
    No. 2003-KA-01122-COA.
    Court of Appeals of Mississippi.
    May 25, 2004.

      Jim Davis, attorney for appellant.
    Office of the Attorney General by W. Glenn Watts, attorney for appellee.
    Before SOUTHWICK, P.J., THOMAS, IRVING and GRIFFIS, JJ.
   THOMAS, J.,

for the Court.

¶ 1. Johnny Cornelius Watkins appeals his convictions by a Harrison County Circuit Court jury of two counts of transfer of a controlled substance. Watkins asserts a single error in the proceedings below, that he received ineffective assistance of counsel. Specifically, he states counsel did not make any motions for discovery, counsel failed to request a severance of the two counts against him, counsel failed to file a motion in limine or obtain another ruling to prevent the State from using prior convictions against him as impeachment material, counsel failed to object to a certain statement made by the State during voir dire, counsel failed to object to testimony by a law enforcement officer not based on personal knowledge, and counsel failed to offer any jury instructions.

¶ 2. After reviewing the record, we disagree that Watkins received ineffective assistance from his counsel and now affirm the conviction.

FACTS

¶ 3. In May 2002, Tanya Ost of the Gulfport Police Department worked as an undercover buyer as part of a drug enforcement plan called Operation Rock Garden. The plan did not target any particular individual. Rather, Ost was placed in a vehicle outfitted with both audio and visual recording devices then she would cruise neighborhoods known to have high rates of drug sales and purchase crack cocaine from anyone who would sell it to her.

¶ 4. On May 20, 2002, Ost was performing these duties when she encountered Watkins, nicknamed “Old School,” who sold her twenty dollars’ worth of crack cocaine. Ost was alone in the vehicle at the time but the meeting was captured by the recording devices. The supervising detective, Gary Ponthieux, was in a separate vehicle out of sight so as not to arouse suspicion in the neighborhood. Ponthieux could hear but not see events as they transpired.

¶ 5. Upon completing the purchase, Ost returned to Ponthieux’s location, turned over the cocaine and watched as Ponthieux sealed it in an evidence bag. The video recording was retrieved from Ost’s vehicle and a still photograph was made from the tape of Watkins’ face. Ponthieux recognized Watkins from the photo, calling him by his nickname, “Old School.”

¶ 6. On May 23, 2002, Ost was again about her duties in the same Gulfport neighborhood when she was approached by Watkins. Before stopping the vehicle, Ost checked with Ponthieux whether she should buy from Watkins again or seek out a different seller. In the end, Ost stopped and again purchased twenty dollars’ worth of crack cocaine from Watkins.

¶ 7. Watkins was subsequently arrested and indicted as an habitual offender for two counts of transfer of narcotics. Trial was had May 13, 2003. The State offered the testimony of Ost, Ponthieux and Tara Milam, an analyst with the Mississippi Crime Laboratory, who confirmed the substance in each of the evidence bags given her by Gulfport police contained one-tenth of a gram of cocaine. Both videotapes made of the meetings were entered into evidence and played for the jury. Watkins argued at trial the State had not met its burden of proof beyond a reasonable doubt because the videotapes did not capture the actual transfer of narcotics. Watkins did not testify or offer any witnesses. After deliberating approximately twenty-three minutes, the jury returned verdicts of guilty on both counts.

ANALYSIS

¶ 8. Claims of ineffective assistance of counsel are reviewed based upon a two-part inquiry: (1) whether counsel’s performance was deficient; and (2) whether that deficiency caused prejudice to the defendant. Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). Deficient performance is evaluated by whether counsel’s advice falls outside objective parameters of professional reasonableness. Id. at 687-88. Prejudice is measured by whether the result of the proceedings would have been different but for counsel’s deficiency. Cole v. State, 666 So.2d 767, 775 (Miss.1995).

1. Discovery

¶ 9. For reasons not disclosed in the record, Watkins was granted substitute counsel, Michael Hester, who represented Watkins at trial. The first attorney to represent Watkins obtained the discoverable evidence from the State and turned it over to Hester. The day before trial, Hester reviewed the videotapes with his client who then informed him they did not contain the full version of events.

¶ 10. Upon cross-examination of Ost, Hester elicited the fact that the tapes had been edited, although Ost had represented on direct examination they contained a fair, accurate and unaltered recording of her meetings with Watkins. Ost further testified no part of the meetings had been altered but the portions before and after the meetings had been edited out as they contained nothing but empty minutes of her driving to the buy area and then driving away from it.

¶ 11. Hester sought a mistrial or a dismissal, arguing Ost had misled the court, the State had committed a discovery violation as he had been led to believe the remaining portions of the tape contained exculpatory evidence. In response, the State pointed out the unedited tapes had been disclosed in discovery and had always been available for review, a fact which Hester did admit. The court ordered the unedited tapes be given Hester and Watkins for their review during a recess. Following the recess, the objection to the tapes was withdrawn.

¶ 12. Having thoroughly reviewed the circumstances upon which Watkins bases this assignment of deficient performance, we believe the true thrust of Watkins’ argument is not that Hester failed to request discoverable material but that Hester failed to fully review the information made available to him prior to the eve of trial. These are two quite different things.

¶ 13. As to the former, Watkins does not address what materials remained unavailable to him for use at trial through some error of his attorney. There is no allegation that other evidence, undisclosed due to counsel’s negligence, exists. Counsel cannot be held ineffective for failing to request evidence which does not exist.

¶ 14. As to the latter, even were we to assume error on the part of Hester in failing to review the unedited videotapes, we can find no prejudice to the appellant as a result. After viewing the videotapes, the objection to them was withdrawn. Whatever exculpatory evidence counsel was led to believe existed in fact did not exist. We cannot see how the outcome of the trial would have differed from the result achieved.

2. Severance

¶ 15. Watkins next argues trial counsel should have requested a severance of the two charges against him. He suggests that having to defend two identical crimes prejudices him in the eyes of the jury for, having seen him commit one crime, the burden of proof is lowered so that a jury will convict on the second charge despite deficiencies in the evidence presented.

¶ 16. The reasoning employed by Watkins is the basis of the refusal to allow the prosecution of separate and distinct crimes in a single proceeding. Corley v. State, 584 So.2d 769, 772 (Miss.1991). However, where two or more offenses are based on the same act or transactions, or more than one act or transaction are connected together or which constitute part of a common scheme or plan, they may be prosecuted together. Miss.Code Ann. § 99-7-2 (Rev.2000).

¶ 17. Watkins implies without stating explicitly that the two charges constitute separate transactions by pointing out they occurred on different days, seventy-two hours apart. Had a motion to sever been made below, the State would have been obliged to establish a prima facie case the charges fall within the scope of the statute. Corley, 584 So.2d at 772. The defendant would then need to rebut that showing. Id. Because the claim arises from an allegation of ineffective assistance of counsel, Watkins bears the onus of making that showing on appeal.

¶ 18. There are three considerations when the charged offenses do not occur simultaneously: whether the time separating the occurrences is insignificant, whether the evidence proving each count would be admissible to prove each of the other counts, and whether the crimes are interwoven. Corley, 584 So.2d at 772. Watkins does not address any of these factors other than to state the crimes occurred on two different dates. Allegations of error on appeal unsupported by either argument or authority are generally not considered. Ramseur v. State, 368 So.2d 842, 844 (Miss.1979).

¶ 19. We need not address this point but will do so briefly. Repeated sales of narcotics in a short span of time have been held to constitute part of a common scheme or plan under the applicable statute. Ott v. State, 722 So.2d 576, 581 (¶23) (Miss.1998). This alone may be sufficient to establish a prima facie case for the State. The length of time between the transactions is not excessive. Although time lapses of two days have been held significant for purposes of simultaneous prosecution, in those instances, differing crimes were involved, in different places and with different victims. See Gray v. State, 549 So.2d 1316 (Miss.1989); McCarty v. State, 554 So.2d 909 (Miss.1989). That is not the case here. Watkins was charged with two counts of the same crime in the same general location to the same undercover officer within seventy-two hours. We do not find the time period significant.

¶ 20. Likewise, the evidence of each of the crimes would likely be admissible in both instances. Under similar facts, evidence of other crimes would satisfy the balancing test of Rule 404(b) of the Mississippi Rules of Evidence, for the purposes of showing intent, preparation or plan. Ott, 122, So.2d at 576 (¶24). Again, Watkins gives no argument why this would not be so. Finally, as in Ott, the second purchase of cocaine from Watkins, while serendipitous in timing, was a direct result of knowledge gained during the first buy. Officer Ost knew Watkins would sell her crack cocaine. This has been held to satisfy the requirement that the crimes be interwoven. Id. (¶ 25).

¶ 21. There is no evidence to even suggest a basis for severance of the charges. Any motion to do so would have been specious and we cannot find deficiency in an attorney who declines to make frivolous motions.

3. Prior convictions

¶ 22. Watkins third assignment of deficiency states trial counsel should have sought a pre-trial motion in limine or other ruling to prevent the prosecution from using his prior convictions against him at trial as impeachment material. He opines that he may have testified had he been given some assurance the prior convictions would not be raised against him.

¶ 23. As a preliminary matter, we note Watkins was indicted as an habitual offender. “Habitual offender” is a status, not a crime itself, which may result in an enhanced sentence upon conviction of a crime. Gray v. State, 605 So.2d 791, 793 (Miss.1992). The State is required to prove the existence of two prior felony convictions to support the indictment. Davis v. State, 680 So.2d 848, 851 (Miss.1996). However, introduction of evidence of prior crimes is ordinarily not admissible to prove the character of the accused in order to show he acted in conformity therewith. M.R.E. 404(b). It may be introduced to show proof of motive, opportunity, intent, preparation, plan, knowledge, identity or absence of mistake or accident. M.R.E. 404(b).

¶ 24. Watkins’ prior convictions were for possession of cocaine and burglary of a business, both in August 1993, and possession of a controlled substance in February 1999. The burglary is clearly an unrelated charge and the narcotics convictions too remote in time to have any legitimate legal connection with the 2002 charges. Introduction of this evidence by the State would almost undoubtedly be solely for the purpose of showing Watkins’ character, an improper use of the information.

¶ 25. However, the State did not attempt to introduce this information during the trial. What Watkins appears to argue is that he could have testified on his own behalf if he had been assured his past would not catch up with him. The ability to avoid this was solely within Watkins’ control. A defendant may be cross-examined on prior bad acts if he opens the door to such queries by essentially testifying he has lived a wholly blameless life. Collins v. State, 734 So.2d 247, 249 (Miss.Ct.App.1999). The State could not itself raise the issue. All Watkins had to do to avoid impeachment with his prior convictions was refrain from perjuring himself on the stand.

¶ 26. Any motion made to exclude reference to prior convictions would have been an empty gesture, merely reminding the court and the State that the Rules of Evidence apply. This, too, would have been a frivolous motion.

A Voir dire

¶27. Watkins now objects to a question posed by the prosecution during voir dire. That question was, “Is there anyone here that thinks our law enforcement agencies are turning a blind eye to the drug problem? Does anybody here feel that they’re not doing enough to fight crime, drug abuse?” Two persons, neither of whom ultimately served on the jury, stated they felt this way.

¶ 28. Watkins suggests this was an improper urging to potential jurors to return a verdict reflective of the consciousness of the community. Such exhortations to “send a message” are improper. Bigner v. State, 822 So.2d 342, 352 (¶ 45) (Miss.Ct.App.2002). Although most commonly occurring during closing arguments, it is not inconceivable a venire may be primed during voir dire by such statements. However, when reading the paragraphs preceding and following this statement, the prosecution was not attempting to influence the jury but rather ascertain whether any veniremen held a bias or prejudice against law enforcement. There is no other logical context in which the question can be placed upon a review of the entire voir dire rather than a single page. Again, there was no legitimate basis for objection by counsel to this.

5. Improper testimony

¶ 29. The fifth allegation of deficient performance relates to the testimony of Gary Ponthieux for failing to object to testimony about which Ponthieux had neither personal knowledge nor qualification as an expert witness. Watkins alleges Ponthieux testified he could not remember the drug sale about which he was testifying and the detective should not have been allowed to make an identification of Watkins since he was not present at the alleged drug sale nor a qualified expert on making identifications.

¶ 30. The charge that Ponthieux could not remember the events of May 2002 is a mischaracterization of the testimony. What Ponthieux could not recall was that the plan had been named Operation Rock Garden. Ponthieux testified only to what he personally performed, such as taking custody of the cocaine from Ost and sealing it in an evidence bag, or that which he witnessed, either through the audio feed in the vehicle or upon viewing the videotape shortly after the sale. He testified to recognizing Watkins on the videotape as “Old School” then retrieving a photograph and showing it to Ost, who positively identified Watkins as the man who had sold her crack cocaine. This latter portion was established through the direct testimony of Ost. Ponthieux also testified that the person he saw on the videotapes was present in the courtroom and identified that individual as the appellant. The remainder of his testimony was explanation of the procedures of the narcotics task force and handling of evidence by the police department.

¶ 31. None of this exceeds the scope of Ponthieux’s personal knowledge. Nor was his identification of Watkins as the man on the videotapes an event which required expert qualification, but an ordinary identification. There was nothing objectionable in this testimony.

6. Jury instructions

¶ 32. The appellate argument on this matter follows:

The Defendant’s attorney offered no jury instructions at trial and this was found to be further error potential evidence of ineffective assistance of counsel in Bigner at 353; Yarborough at 662. The Defendant could have taken a different strategy at trial and contested the identification of the Defendant and offered a identification issue at trial.... Defendant’s attorney made a lack of evidence argument and moved for a directed verdict at the close of the State’s case, then did not renew his request for directed verdict and offered no peremptory instruction at the close of all the evidence.

¶ 33. Although requesting a peremptory instruction is almost a matter of due course in a trial, the well-settled rule is that instructions must have some basis in evidence before they may be given. Fairchild v. State, 459 So.2d 793, 800 (Miss.1984). In reviewing the propriety of a peremptory instruction, the court accepts as true evidence submitted by the State and the reasonable inferences of that evidence. Wall v. State, 718 So.2d 1107, 1111 (¶ 15) (Miss.1998).

¶ 34. The evidence in this case would not have supported a peremptory instruction. The sales of drugs were recorded and an eyewitness testified consistently with the recordings. Taking this as true, Watkins would not have been entitled to a peremptory instruction.

¶ 35. For the same reason, there was no basis in the record for the second instruction flaw to which Watkins alludes, that is, a mistaken identity instruction should have been requested. The videotapes were very clear in both audio and visual quality. The failure to attempt to obtain an identity instruction under the circumstances here is at most harmless given the overwhelming proof.

¶ 36. THE JUDGMENT OF THE CIRCUIT COURT OF HARRISON COUNTY OF CONVICTION OF TWO COUNTS OF TRANSFER OF NARCOTICS AND SENTENCE ON EACH COUNT OF TWENTY YEARS IN THE CUSTODY OF THE MISSISSIPPI DEPARTMENT OF CORRECTIONS AS AN HABITUAL OFFENDER WITH SAID SENTENCES TO RUN CONCURRENTLY IS AFFIRMED. COSTS OF THIS APPEAL ARE ASSESSED TO HARRISON COUNTY.

KING, C.J., BRIDGES AND SOUTHWICK, P.JJ., LEE, IRVING, MYERS, CHANDLER AND GRIFFIS, JJ., CONCUR.


author: HOUSTON, Justice.

text:
    Ex parte Timothy A. SCHAEFFEL and Mary Ellen Schaeffel. (In re Timothy A. Schaeffel and Mary Ellen Schaeffel v. Wal-Mart Stores, Inc., W.G. Yates & Sons Construction Company, and Irons Electric Company, Inc.)
    1020459.
    Supreme Court of Alabama.
    June 13, 2003.
    Rehearing Denied Aug. 15, 2003.
    Walden M. Buttram, Gadsden, for petitioners.
    Paul J. DeMarco of Parsons, Lee & Juliano, P.C., Birmingham, for respondent Wal-Mart Stores, Inc.
    Dennis Riley of Morring, Schrimsher & Riley, Huntsville, for respondent W.G. Yates & Sons Construction Company.

      Stephen V. Hammond of Chenault, Hammond & Hall, P.C., Decatur, for respondent Irons Electric Company, Inc.
   HOUSTON, Justice.

We granted Timothy Schaeffel’s petition for a writ of certiorari to review the Court of Civil Appeals’ no-opinion affirmance of the Colbert Circuit Court’s summary judgment for respondents Wal-Mart Stores, Inc., W.G. Yates & Sons Construction Company, and Irons Electric Company, Inc., in Schaeffel’s action stemming from injuries he sustained while repairing a freezer on the premises of a Wal-Mart Super Center. We affirm.

I. Standard of Review

We review the trial court’s summary judgment de novo, according to the following procedure:

“When reviewing a trial court’s summary judgment, this Court reviews the record in a light most favorable to the nonmovant, resolving all reasonable doubts against the movants, to determine whether there is a genuine issue of material fact and whether the movants are entitled to a judgment as a matter of law. Copeland v. Samford Univ., 686 So.2d 190, 191 (Ala.1996). A summary judgment is proper when ‘the pleadings, depositions, answers to interrogatories and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law.’ Rule 56(c)(3), Ala. R. Civ. P. In determining whether there is a genuine issue of material fact, this Court is limited to considering the factors that were before trial court when it entered the judgment. Broadmoor Realty, Inc. v. First Nationwide Bank, 568 So.2d 779, 782 (Ala.1990).
“ ‘The moving party bears the burden of negating the existence of a genuine issue of material fact and showing that it is entitled to a judgment as a matter of law.’ White v. Howie, 677 So.2d 752, 753 (Ala.Civ.App.1995). ‘In order to defeat a properly supported motion for summary judgment, the opposing party must present substantial evidence creating a genuine issue of material fact.’ Voyager Guar. Ins. Co. v. Brown, 631 So.2d 848, 849 (Ala.1993).”

Singleton v. Protective Life Ins. Co., 857 So.2d 803, 812-13 (Ala.2003).

II. Facts

Timothy Schaeffel, a service technician for a refrigeration, heating, and cooling company, responded to a call to repair a low-temperature floor-to-ceiling freezer at a Wal-Mart Super Center in Muscle Shoals. This was the first time Schaeffel had serviced this particular freezer.

Servicing the freezer required Schaeffel to climb through a square opening in the ceiling approximately four feet by four feet in order to work on the freezer’s condensing unit, which was located on the top of the freezer. The light that came through the opening provided the only light in the area around the condensing unit. When he climbed through the opening and onto the top of the freezer, Schaeffel found that he could not walk around the left side of the condensing unit because the area was blocked by debris, shelving, wire racks, and refrigerator fixtures. Therefore, Schaeffel walked around the right side of the condensing unit.

Schaeffel testified that, although he could not see the edge of the drop ceiling (which was adjacent to the top of the freezer), as he was walking along the right side of the unit he felt the edge of the drop ceiling with his foot; in fact, he testified, he almost fell off the work area and through the ceiling at that point. After regaining his balance, Schaeffel went behind the condensing unit and examined the defrost timer. To do so, he had to hold a cigarette lighter up to the “sight glass” (which showed how much refrigerant was in the unit) because he had left his flashlight in his truck. Schaeffel then began to walk away from the top of the freezer the same way he had come when he tripped on a piece of conduit coming out of the unit, fell through the ceiling, and was injured.

Schaeffel sued Wal-Mart, Irons Electric Company, Inc. (“Irons”), and W.G. Yates & Sons Construction Company (“Yates”), alleging negligence; Schaeffel’s wife, Mary Ellen Schaeffel, filed a derivative claim alleging loss of consortium. Yates served as the general contractor for the construction of the Wal-Mart Super Center building, and Irons performed some of the electrical work on the construction of the store. Specifically, Schaeffel alleged that Yates had breached a duty to Schaeffel when it allegedly violated the Southern Building Code in constructing the area around the condenser unit and that Wal-Mart had failed to properly supervise Yates in that regard. Schaeffel also alleged that Irons had also violated the Southern Building Code and had thereby breached a duty to Schaeffel.

Wal-Mart, Yates, and Irons (hereinafter referred to collectively as “the defendants”) filed answers and motions for a summary judgment raising the defenses of contributory negligence and assumption of the risk. The trial court entered a summary judgment in favor of the defendants without a written order.

The Alabama Court of Civil Appeals affirmed the trial court’s summary judgment, without an opinion. Schaeffel v. Wal-Mart Stores, Inc. (No. 2001009, July 19, 2002), — So.2d - (Ala.Civ.App.2002) (table). In its no-opinion affirmance, the Court of Civil Appeals cited decisions discussing the defenses of contributory negligence or assumption of the risk: McClendon v. Mountain Top Indoor Flea Market, Inc., 601 So.2d 957 (Ala.1992); Knight v. Alabama Power Co., 580 So.2d 576 (Ala.1991); and Carroll v. Deaton, Inc., 555 So.2d 140 (Ala.1989). We granted Schaeffel’s petition for the writ of cer-tiorari to review the Court of Civil Appeals’ apparent holding that in conducting his activities in the dark area around the condensing unit Schaeffel had assumed the risk and had been contributorily negligent.

Schaeffel acknowledges that this Court has held that total darkness is an open and obvious danger, as a matter of law, see Owens v. National Sec. of Alabama, Inc., 454 So.2d 1387, 1390 (Ala.1984) (“The condition of total darkness is sufficient to put reasonable people on notice of a substantial risk of concealed hazards.” (emphasis added)); Ex parte Industrial Distrib. Servs. Warehouse, Inc., 709 So.2d 16, 19 (Ala.1997) (“Total darkness, possibly concealing an unseen and unknown hazard, presents an open and obvious danger to someone proceeding through unfamiliar surroundings, as a matter of law.” (emphasis added)); Schaeffel argues, however, that this case involves partial darkness, and that a summary judgment was therefore inappropriate under our decision in Ex parte Kraatz, 775 So.2d 801 (Ala.2000). In Kraatz, we held that a summary judgment based on contributory negligence or assumption of the risk was not appropriate in a negligence action involving a woman who, while walking in dim light in a parking lot of a gasoline service station, tripped on an unmarked, black, “ragged” speed bump and was injured. 775 So.2d at 803-04. We noted a distinction between dim light conditions and total darkness with regard to open and obvious dangers:

“Partial or poor light, like that in the case before us, could mislead a reasonably prudent person into thinking that he or she would be able to see and to avoid any hazards. The variable factors which make openness-and-obviousness under partial or poor light conditions a fact question not appropriate for resolution by summary judgment are direction, level, color, diffusion, shadows, and like qualities of light as well as the other physical features of the scene.”

Kraatz, 775 So.2d at 804.

Schaeffel contends that this case is similar to Kraatz in that Schaeffel was working not in total darkness, but in dim light, when he fell. We disagree. As we stated in Kraatz, “[pjartial or poor light ... could mislead a reasonably prudent person into thinking that he or she would be able to see and to avoid any hazards.” Id. In other words, dim light is light sufficient to make one believe that he can sufficiently see and identify dangers, but in reality he cannot properly make such identifications. The problem in Kraatz was not that Kraatz could not have seen the speed bump if she had been made aware of it (as would be the case in total darkness). Rather, there was evidence indicating that Kraatz could see the blacktop parking lot but that the dim lighting made the black speed bump appear to be just another flat section of the lot, misleading Kraatz into believing that she could walk on the lot without danger. Kraatz, 775 So.2d at 803-04.

In these types of cases, the real question is not whether some light exists in some part of a room in which an injury occurs. Instead, we must focus on the specific location of the cause of the injury: in this case, the walking space around the condensing unit.

Schaeffel testified that he could not see anything in the area where he was walking:

“Q. Okay. And as you were walking along the right side of the condensing unit, your foot hit the edge of the freezer and the beginning of the drop ceiling?
“A. I actually felt it under my foot, the first step I started to take around that side.
“Q. So, immediately then you knew that there was a drop ceiling—
“A. Correct.
“Q. —on the right-hand side?
“A. Even though I couldn’t visually see it because of the lighting and all, yes, there was a ceiling there and I was aware of it.
“Q. And, in fact, you almost fell then because you had to grab some stuff?
“A. The first step, I nearly put my foot too far forward.
“Q. When you first came back through the opening to go around to the back side of the condenser, did you look down where you were walking?
“A. Yes.
“Q. Did you see the conduit?
“A. Couldn’t see anything hardly.
“Q.... But you didn’t look down to see if there was any [conduit] on the ground or the floor?
“A. I looked, but where I was at, I couldn’t see anything, I mean.
“Q.... But your testimony is you couldn’t — there was no light falling on the — piece of conduit [that Schaeffel tripped on]?
“A. I didn’t even know this four-inch junction box was [there] until later, in fact, some months later, but I couldn’t see any of this at the time from the light....
“Q. You couldn’t see the junction box and you couldn’t see the ... conduit at the time—
“A. No.”

Additionally, Schaeffel had to light his cigarette lighter to be able to see the “sight glass” on the condenser unit.

In other words, while there may have been some light coming through the opening in the ceiling, the relevant area — the walking space around the condenser unit— was in total darkness, not dim light. The total darkness represented an open and obvious danger that could “possibly conceal] an unseen and unknown hazard” like the conduit. Ex parte Industrial Distrib. Servs. Warehouse, Inc., 709 So.2d at 19. Whether on the basis of contributory negligence or assumption of the risk, Schaef-fel’s walking in such conditions while being aware that the drop ceiling was inches away entitles the defendants to a judgment as a matter of law, and, there being no genuine issue of material fact, justifies the Court of Civil Appeals’ affirmance of the trial court’s summary judgment in favor of the defendants.

AFFIRMED.

MOORE, C.J., and LYONS, JOHNSTONE, and WOODALL, JJ., concur.

      . We also note that Schaeffel testified that he knew that conduit would be present somewhere in the work area, but that he did not expect it to be on the side of the condensing unit where he was working.


author: LYONS, Justice.

text:
    Thomas E. REYNOLDS et al. v. COLONIAL BANK et al.
    1020186 and 1020187.
    Supreme Court of Alabama.
    June 20, 2003.
    As Modified on Denial of Rehearing Aug. 15, 2003.

      Michael C. Skotnicki of Haskell Slaughter Young & Rediker, LLC, Birmingham, for appellants.

      Richard A. Wright and Kirkland E. Reid of Miller, Hamilton, Snider & Odom, L.L.C., Mobile for appellee Colonial Bank.
    Jeffrey E. Friedman, P. Thomas Dazzio, Jr., and Lee T. Patterson of Friedman, Leak & Bloom, P.C., Birmingham; Edward R. Jackson of Tweedy, Jackson, Beech & Fikes, P.C., Jasper; and Donald M. Wright of Sirote & Permutt, Birmingham, for appellees Friedman, Leak & Bloom, P.C., and Tweedy, Jackson, Beech & Fikes, P.C.
   LYONS, Justice.

Thomas E. Reynolds, the interim Chapter 7 bankruptcy trustee for Jefferson Screening, Inc.; Laguna Resources, Inc.; and Black Creek Land and Minerals, Inc. (hereinafter referred to collectively as “the debtors”), appeals from the trial court’s orders of condemnation of interpleaded funds and its award of attorney fees and expenses in favor of the garnishment liens of Colonial Bank; Komatsu Financial, L.P.; General Electric Capital Business Asset Funding Corporation; Brad Regan, Inc.; the law firm of Friedman, Leak & Bloom, P.C. (“Friedman”); and the law firm of Tweedy, Jackson, Beech and Fikes, P.C. (“Tweedy”). Derrell Chamblee and Scott Chamblee, former employees of Jefferson Screening, are also named as appel-lees.

I. Factual and Procedural History

The debtors were the plaintiffs in a fraud action against Seminole Electric Cooperative, Inc. On May 3, 2000, after the commencement of the debtors’ action, Colonial Bank sued both the debtors and Seminole, claiming that the debtors had defaulted on their loans with Colonial Bank because of Seminole’s alleged failure to honor its contracts to purchase coal from the debtors. Colonial Bank’s action was consolidated with the debtors’ action against Seminole.

On October 12, 2000, the trial court entered a summary judgment in favor of Colonial Bank for its claims against the debtors in the amount of $7,446,363.16. The judgment was made final pursuant to Rule 54(b), Ala. R. Civ. P. The debtors did not appeal the summary judgment against them. The debtors assigned to Colonial Bank any potential recovery in their fraud action against Seminole, and, in return, Colonial Bank agreed to seek recovery of the debtors’ indebtedness only from the proceeds recovered, if any, in the debtors’ fraud action against Seminole. The trial court entered an order of attachment in favor of Colonial Bank charging with payment of Colonial Bank’s judgment any monetary judgment recovered by the debtors against Seminole, subject to any liens held by the debtors’ attorneys. Colonial Bank dismissed its action against Seminole.

The debtors’ remaining claims against Seminole were tried before a jury. On June 26, 2001, the jury returned a verdict in favor of the debtors against Seminole in the amount of $22,196,899.69. Colonial Bank, along with Komatsu, General Electric, and Brad Regan, other creditors of the debtors, served their writs of garnishment on Seminole. Friedman and Tweedy also asserted their claims for attorney fees related to the services they provided for one of the debtors, Jefferson Screening.

Seminole subsequently appealed the trial court’s judgment for the debtors on their fraud claim. On September 9, 2002, while that appeal was pending before this Court, the debtors and Seminole executed a “Release and Settlement Agreement” settling the debtors’ judgment against Seminole for $6,900,000. To protect itself from competing claimants, Seminole filed a complaint for interpleader of the funds pursuant to § 6-6-463, Ala.Code 1975, and Rule 22, Ala. R. Civ. P. Seminole paid the interpleaded funds to the trial court so the trial court could determine the proper distribution of the funds among the competing claimants. The debtors answered the interpleader complaint and disclaimed any entitlement to the proceeds of the inter-pleaded funds.

On September 11, 2002, again while the appeal was still pending before this Court, the trial court conducted a hearing at which the debtors, Seminole, and Colonial Bank were present. The trial court entered an order condemning the $6,900,000 settlement amount; that order stated:

“Therefore, it is hereby ordered, adjudged, and decreed as follows:
“1. The $6.9 million settlement amount tendered and paid into court by Seminole Electric Cooperative, Inc. is hereby condemned in its entirety.
“2. The settlement amount, net of any partial distribution that may be approved by this Court in order to satisfy the attorneys’ liens for reasonable fees and expenses shall be held pending further order of this Court subject to the claimants’ garnishment liens.
“3. That the charging order entered by this Court on April 4, 2001, in favor of Colonial Bank and the garnishment liens of Colonial Bank, Komatsu Financial, L.P., General Electric Capital Business Asset Funding Corp., and Brad Regan, Inc. shall attach to the Court in the order of priority as determined by this Court after notice and hearing.
“4. The Clerk of the Court is directed to serve Colonial Bank, Komatsu Financial, L.P., General Electric Capital Business Asset Funding Corp., and Brad Regan, Inc. with the Complaint for Interpleader filed in this action by Seminole Electric Cooperative, Inc. and a copy of this Order. Each garnishor is directed to file an Answer establishing its claim to and priority in the interpled funds within 30 days hereof.”

The trial court also approved the payment of attorney fees and litigation expenses pursuant to the employment contract Friedman and Tweedy had with Jefferson Screening. The trial court stated:

“It is Therefore, the Order, Judgment and Decree of this Court as Follows:
“1. The petition of [Friedman] and [Tweedy] as to [their] attorney fees is hereby granted as reasonable and the Court finds that [Friedman] and [Tweedy] receive as its attorney fees forty percent of the gross amount of the settlement for a total of $2,760,000.00.
“2. The petition of [Friedman] and [Tweedy] as to the expenses incurred in connection with the prosecution is granted. The expenses are found to be reasonable and necessary, in the sum of $964,833.70 and are approved based on the findings contained in this order.
“3. The Court has been advised that [Friedman] and [Tweedy] have arrived at a split of the monies due them for their attorney fees and expenses and so approves said split.
“4. The Clerk is ordered to instanter pay to the firms of [Friedman] and [Tweedy] the sum of $2,974,833.70 as their total amount of attorney fees and reimbursement of expenses owed herein. The sum of these numbers represents the payment of 40% of the gross amount of the settlement plus approved expenses.
“5. The Clerk is ordered to instanter pay to Scott Chamblee the sum of $350,000.00; to Derrell Chamblee the sum of $400,000.00.
“6. The money remaining in the clerk’s office after the payment of these fees and expenses as set out hereinabove is to be held by the clerk until further order of this court.
“7. Seminole Electric Cooperative, Inc., ... is forever released from any further liability in this case and the judgment against it shall be marked satisfied by the clerk.”

The trial court also entered an order sealing the record in the case.

On September 11, 2002, the same date the trial court entered its orders, the parties filed a joint motion with this Court asking us to remand Seminole’s appeal of the underlying fraud action. Not until two days later, on September 13, 2002, did this Court remand Seminole’s case for proceedings consistent with the release and settlement agreement. Consequently, the trial court’s hearing took place and its orders were entered while Seminole’s appeal was pending before this Court.

On September 13, 2002, the same date this Court remanded Seminole’s case, General Electric, Cumberland Casualty and Surety Company, and Regions Bank filed petitions of involuntary bankruptcy against the debtors. Reynolds was appointed as interim bankruptcy trustee. On September 26, 2002, approximately 15 days after the trial court entered its orders, this Court dismissed the appeal on Seminole’s motion.

On October 23, 2002, Reynolds appealed the trial court’s condemnation order and its award of attorney fees and expenses. The named appellees are Colonial Bank, Komatsu, General Electric, Brad Regan, Friedman, Tweedy, Derrell Chamblee, and Scott Chamblee.

II. Standard of Review

Reynolds’s appeal focuses on the application of the law to the facts. Reynolds claims that the facts are uncontested; Colonial Bank, Friedman, and Tweedy claim that Reynolds omits pertinent facts and that he mischaracterizes the record. We find that the facts applicable to the issues presented are undisputed, and that, therefore, “no presumption of correctness is accorded to the trial court’s judgment” and “we review de novo the application of the law to the facts of this case.” Allstate Ins. Co. v. Skelton, 675 So.2d 377, 379 (Ala.1996); Beavers v. County of Walker, 645 So.2d 1365, 1372 (Ala.1994). Because we find that the trial court lacked jurisdiction to enter its condemnation order and to award attorney fees and expenses, we pre-termit a discussion of Reynolds’s claim that the interpleader notices to the creditors were insufficient.

III. Analysis

Reynolds argues that the trial court could not recognize or enforce the parties’ settlement agreement without the consent of this Court because, he argues, the trial court was divested of its jurisdiction while Seminole’s appeal was pending before this Court. According to Reynolds, only “collateral” matters remained within the jurisdiction of the trial court. See Foster v. Greer & Sons, Inc., 446 So.2d 605, 608 (Ala.1984) (overruled by Ex parte Andrews, 520 So.2d 507 (Ala.1987), to the extent Foster held that filing a notice of appeal ousts the trial court of jurisdiction to consider a timely filed postjudgment motion).

Colonial Bank claims that Reynolds’s jurisdictional argument is without merit because it obtained a judgment against the debtors that was made final pursuant to Rule 54(b), Ala. R. Civ. P., and that was not on appeal when the trial court’s orders were entered. Colonial Bank claims that the trial court’s orders were not only “collateral” to Seminole’s pending appeal— they were not even a part of Seminole’s appeal. Colonial Bank states that “[t]he trial court has taken no action that could prejudice any claimant’s right to establish its claim to the interpled funds (only attorneys’ fees and expenses were disbursed, which no competing creditor should [claim] in any event) and, even if prejudicial, these claimants have filed no appeal.” Colonial’s brief at p. 20.

Friedman and Tweedy argue that after the parties agreed to the settlement “[t]he only action taken by the [trial court] was approving the [debtors’] attorneys’ motion for attorneys fees and the approval of payment of litigation expenses including payments to representatives of the [debtors] for extensive amounts of time expended over four years in the litigation.” Friedman and Tweedy’s brief at p. 28. Friedman and Tweedy argue that once the parties reached the settlement agreement, Seminole’s payment of the funds to the trial court and the trial court’s disbursement of such funds were “collateral” to any issue on appeal.

The question of jurisdiction is fundamental. Mobile & Gulf R.R. v. Crocker, 455 So.2d 829, 831 (Ala.1984). “ ‘[I]f there is an absence of jurisdiction over either the person, or the subject matter, a court has no power to act, and jurisdiction over the subject matter cannot be created by waiver or consent.’ ” Mobile & Gulf R.R., 455 So.2d at 831 (quoting Norton v. Liddell, 280 Ala. 353, 354, 194 So.2d 514, 517 (1967)). See also Rinehart v. Reliance Life Ins. Co. of Georgia, 272 Ala. 93, 128 So.2d 503 (1961); Dickinson v. Cosmos Broad. Co., 782 So.2d 260 (Ala.2000). In Wilkinson v. Henry, 221 Ala. 254, 256, 128 So. 362, 364 (1930), this Court stated:

“The question of jurisdiction is always fundamental. It would amount to usurpation and oppression for a court to interfere in a matter over which it has no jurisdiction, and its pronouncements in respect thereto would be without force, and its decrees and judgments would be wholly void. This is a universal principle, as old as the law itself; hence the question of jurisdiction is a question of primary importance in every case, and, if there is an absence of jurisdiction over the subject-matter, this ends the inquiry; it cannot be waived or supplied by consent.”

(Emphasis added.)

Jurisdiction of a case can be in only one court at a time. Ex parte State ex rel. O.E.G., 770 So.2d 1087, 1089 (Ala.2000). Therefore, while an appeal is pending, the trial court “can do nothing in respect to any matter or question which is involved in the appeal, and which may be adjudged by the appellate court.” Foster, 446 So.2d at 608. Although the general rule is that a trial court is divested of its jurisdiction during a pending appeal, a trial court may proceed in matters that are entirely “collateral” to the appeal. See Owens v. Williams, 276 Ala. 627, 165 So.2d 709 (1964); Osborn v. Riley, 381 So.2d 268 (Ala.1976); Barran v. Roden, 263 Ala. 305, 82 So.2d 398 (1955).

Colonial Bank claims that Reynolds, as bankruptcy trustee, cannot object on appeal to the trial court’s orders because the debtors did not object to the orders before the trial court. However, Reynolds’s objection raises a purely jurisdictional issue, and the absence of jurisdiction may be raised for the first time on appeal. Mobile & Gulf R.R., 455 So.2d at 832; International Longshoremen’s Ass’n v. Davis, 470 So.2d 1215 (Ala.1985). Therefore, the issue presented before this Court is whether the trial court’s order condemning the settlement amount and its award of attorney fees and expenses were “collateral” to the pending appeal so that the matter was properly within the jurisdiction of the trial court.

Reynolds acknowledges that a trial court may proceed in matters that are “collateral” to a pending appeal. See Owens, 276 Ala. at 632, 165 So.2d at 714. For example, in Owens the appellees filed a motion in the trial court seeking an additional deposit to apply toward the rent of the premises in question pursuant to a previously entered agreement between the parties. 276 Ala. at 632, 165 So.2d at 714. The motion was filed while an appeal seeking specific performance of a contract to purchase the premises in question was pending before this Court. 276 Ala. at 628, 165 So.2d at 710. The trial court granted the motion and required the appellant to pay an additional deposit in order to protect the parties’ interests while the case was pending on appeal. 276 Ala. at 632, 165 So.2d at 714. The appellant argued that the pending appeal divested the trial court of jurisdiction. 276 Ala. at 632, 165 So.2d at 714. This Court disagreed and held that the additional deposit was collateral to the subject matter of the appeal, and that, therefore, the trial court properly assumed jurisdiction. 276 Ala. at 632, 165 So.2d at 714.

Moreover, in Osborn, supra, the appel-lees filed a motion in the trial court for an additional supersedeas bond after the appellants had filed an appeal of the trial court’s judgment declaring the deed in question to be void. 331 So.2d at 270. This Court concluded that the appellees’ motion was properly within the jurisdiction of the trial court because it merely protected the appellees’ interest in the trial court’s order entered in their favor and did not involve the “rights and equities” relative to the question on appeal. 331 So.2d at 272. This Court stated that the “motion presented a question which [was] clearly collateral to the questions raised by [the] appeal of the court order setting aside the deed.” 331 So.2d at 272. See also Barran v. Roden, 263 Ala. at 307, 82 So.2d at 399 (“As to those matters which are entirely collateral to the questions involved on appeal, the court and parties are free to proceed notwithstanding the appeal if taken, or without affecting the right to appeal if not then taken.”).

Reynolds claims that the trial court’s orders in the present action, unlike the orders in Owens and Osborn, which protected the interests of the parties pending the appeal of the matters in question, directly affected the matters on appeal. Reynolds argues that the present action is more similar to that presented in Ex parte Elmore, 585 So.2d 921 (Ala.1991). We agree. In Elmore, both Elmore and Hays were granted joint custody of their two children, with Hays having physical custody, subject to Elmore’s rights of visitation. 585 So.2d at 922. The trial court modified the visitation provision, allowing each parent alternating two-week periods with the children. 585 So.2d at 922. The Court of Civil Appeals reversed the order modifying visitation and remanded the case to the trial court for it to enter an order specifying Elmore’s visitation periods. 585 So.2d at 922. This Court granted certiorari review and subsequently quashed the writ as having been improvidently granted. 585 So.2d at 922. However, while the case was pending before this Court, the trial court purported to enter an order in compliance with the Court of Civil Appeals’ opinion. 585 So.2d at 922. This Court granted Elmore’s petition for a writ of mandamus because the trial court was without jurisdiction to enter the order, stating the general rule that the trial court “can do nothing in respect to any matter involved on appeal that may be adjudged by the appellate court.” 585 So.2d at 922.

In the appeal from the debtors’ fraud judgment, Seminole raised numerous issues, including whether the trial court erred in failing to dismiss the promissory-fraud and suppression claims and whether the trial court failed to give Seminole’s requested jury charges and to exclude certain evidence. Seminole also raised issues related to damages, including whether the compensatory-damages award was supported by the evidence, whether Jefferson Screening was entitled to punitive damages, and whether punitive damages should be capped at $250,000. While Seminole’s appeal was pending, the trial court enforced a settlement, condemned the settlement amount, awarded attorney fees and expenses from the interpleaded settlement funds, and released Seminole from further liability in this case. As in El-more, the trial court’s orders directly affected the matters involved on appeal that could have been adjudged by this Court.

Colonial Bank argues that the trial court’s orders were collateral to the pending appeal. It argues that Reynolds’s “fatal omission” in his jurisdictional argument is the fact that Colonial Bank’s antecedent final judgment against the debtors was not on appeal when the trial court entered its orders. Colonial Bank’s brief at p. 30. We agree that Colonial Bank’s judgment against the debtors was made final pursuant to Rule 54(b), Ala. R. Civ. P. However, while Colonial Bank’s status as a judgment creditor of the debtors had been established, the judgment debtors’ rights against Seminole were dependent upon the success of their action against Seminole— which was on appeal to this Court. For all that appears, the judgment against Seminole could have been reversed and a judgment rendered for Seminole, and Seminole would have had no obligation to the debtors or to Colonial Bank, as the assignee of the debtors. Of course, a settlement of which this Court is unaware, entered into before this Court’s opinion in the case is released, could necessitate proceedings to set aside this Court’s opinion so as to enforce the settlement. But that circumstance does not alter the fact that the trial court’s order enforcing, pursuant to the settlement agreement, a reduction of the amount of the judgment made the basis of the pending appeal directly rather than collaterally involved matters pending on appeal.

Friedman and Tweedy also argue that the trial court’s orders were “completely collateral” to the issues presented in Seminole’s pending appeal because, they say, the trial court merely approved attorney fees and litigation expenses. Friedman and Tweedy’s brief at p. 34. Friedman and Tweedy cite Florida cases for the proposition that a trial court has jurisdiction to consider a motion for an assessment of attorney fees even after a notice of appeal from a final judgment has been filed. See Casavan v. Land O’Lakes Realty, Inc. of Leesburg, 526 So.2d 215 (Fla.Dist.Ct.App.1988); McGurn v. Scott, 596 So.2d 1042 (Fla.1992). However, even if we consider Florida authority as persuasive, it is clear that the trial court here went beyond a mere assessment of attorney fees and expenses. The trial court enforced and then condemned a settlement amount in order to disburse the funds to Friedman and Tweedy, and it released Seminole from further liability. Those actions are not collateral to the pending appeal because they involve the “rights and equities” affected by the matters presented on appeal. See Osborn, 331 So.2d at 272.

It is clear that the debtors as well as Seminole agreed to be bound by the release and settlement agreement. However, the parties’ consent cannot confer jurisdiction on the trial court. See Wilkinson, 221 Ala. at 256, 128 So. at 364. The trial court was divested of its jurisdiction to proceed on any matters that would affect the issues presented on appeal. The trial court lacked the jurisdiction to enter the orders because it could “do nothing in respect to any matter involved on appeal” that might have been adjudged by this Court. See Elmore, 585 So.2d at 922.

IV. Conclusion

We reverse the trial court’s orders and remand the case for further proceedings consistent with this opinion.

REVERSED AND REMANDED.

MOORE, C.J., and HOUSTON, JOHNSTONE, and WOODALL, JJ., concur.

      . The Release and Settlement Agreement was not made a part of the record.

      . In its order, the trial court refers only to the contract Friedman and Tweedy had with Jefferson Screening. However, in their brief, Friedman and Tweedy stated that they also previously represented the debtors.

      3. We note that the sum of 40% of the gross amount of the settlement plus the approved expenses as stated in the trial court’s order does not equal the amount approved as the total attorney fees and expenses awarded by the trial court.

      . Cumberland Casualty and Regions Bank are not parties to the interpleader action and are not involved in this appeal.

      . Colonial Bank filed a motion to dismiss the bankruptcy petition for lack of jurisdiction. This Court issued an order to show cause why it should not stay the proceedings in this appeal pending a decision by the bankruptcy court on Colonial Bank’s motion to dismiss. Reynolds did not object to the issuance of a stay. Colonial Bank, Friedman, and Tweedy objected to the issuance of a stay, claiming that the resolution of the jurisdictional issues before the bankruptcy court depends upon the finality of this Court’s decision regarding the application of state law to the trial court;s orders. Based upon the parties’ responses, we review Reynolds’s claims despite the fact that Colonial Bank’s motion to dismiss is pending in the bankruptcy court.

      .On October 10, 2002, General Electric filed its answer to Seminole's interpleader complaint; it argued that the complaint should be dismissed because the proper forum was the bankruptcy court. On October 16, 2002, Ko-matsu filed a motion to dismiss in the trial court arguing that the trial court lacked jurisdiction to enter its orders.