author: GRIFFIS, J.,

text:
    NATIONAL ENTERPRISES, INC., Appellant v. Chris VALSAMAKIS, Appellee.
    No. 2003-CA-01741-COA.
    Court of Appeals of Mississippi.
    July 27, 2004.
    W. David Dunn, Frank Braswell Webb, Christopher D. Hemphill, Columbus, attorneys for appellant.
    Robert Don. Baker, Aberdeen, attorney for appellee.
    Before KING, C.J., LEE and GRIFFIS, JJ.
   GRIFFIS, J.,

for the Court.

¶ 1. On December 1, 1994, National Enterprises Inc., obtained a judgment against Chris Valsamakis in Davidson County, Tennessee. At the time, Valsamakis was a resident of Monroe County, Mississippi. National enrolled its judgment in the Monroe County Circuit Clerk’s office on September 15, 1995.

¶ 2. National issued a writ of garnishment on Valsamakis’ employer on June 3, 1999. Pursuant to the writ, Valsamakis’ employer withheld $14,927 and tendered the funds to National.

¶ 3. On February 20, 2003, Valsamakis filed a motion to vacate the garnishment. On May 9, 2003, the Monroe County Circuit Court found that Valsamakis was a resident of Mississippi when the Tennessee action was commenced, that National had requested a writ of garnishment more than three years after its judgment was rendered, the writ of garnishment was void ab initio, and all withheld funds should be returned to Valsamakis. From this order, National appeals.

STANDARD OF REVIEW

¶ 4. The Mississippi Supreme Court articulated the standard of review for considering a ruling regarding the application of law to a set of undisputed facts in ABC Mfr. Corp. v. Doyle, 749 So.2d 43, 45 (Miss.1999). “This court uses a de novo standard of review when passing upon questions of law....” Id.

ANALYSIS

¶ 5. The enrollment and enforcement of foreign judgments in Mississippi is governed by statute. Mississippi Code Annotated §§ 11-7-301 through 11-7-309 (Supp.2003) establish the proper procedure for enrollment and enforcement of foreign judgments, as well as for any attack on the enrollment of foreign judgments. Mississippi Code Annotated § 15-1-45 (Rev. 2003) states the applicable statute of limitations for filing a foreign judgment:

All actions founded on any judgment or decree rendered by any court of record without this state shall be brought within seven years after the rendition of such judgment or decree, and not after. However, if the person against whom such judgment or decree was or shall be rendered, was, or shall be at the time of the institution of the action, a resident of this state, such action, founded on such judgment or decree, shall be commenced within three years next after the rendition thereof, and not after.

¶ 6. Valsamakis was a Mississippi resident at the time the Tennessee action was commenced and the judgment entered. National obtained the Tennessee judgment on December 1, 1994, and did not issue the writ of garnishment until June 3, 1999. Because more than three years passed, the statute of limitations found in Mississippi Code Annotated § 15-1-45 expired before National received its writ of garnishment.

¶ 7. A garnishment proceeding is no longer valid after the lapse of the judgment upon which the garnishment is issued. Anderson-Tully Co. v. Brown, 383 So.2d 1389, 1390 (Miss.1980). Once National’s judgment against Valsamakis was extinguished by the expiration of the limitations statute, judgment creditor National had no “valid claim to the funds in controversy.” Grace v. Pierce, 127 Miss. 831, 838, 90 So. 590, 592 (1922). Therefore, the garnishment was void ab initio.

¶ 8. National argues that even if its writ of garnishment was void, Valsamakis waived his right to attack its validity because Valsamakis did not file his motion to vacate the writ of garnishment for four years from the time it was entered. However, National’s argument is misplaced. While a defense based on statute of limitations is an affirmative defense that must be timely asserted, Valsamakis is not asserting that defense. Valsamakis is asserting that the judgment was void ab initio because the statute of limitations had run prior to National’s writ of garnishment being issued. With that assertion, he is correct. The judgment is unenforceable because it was not timely filed pursuant to § 15-1-45. Magallanes v. Magallanes, 802 So.2d 174, 177 (¶ 11) (Miss.Ct.App.2001).

¶ 9. THE JUDGMENT OF THE CIRCUIT COURT OF MONROE COUNTY IS AFFIRMED. ALL COSTS OF THIS APPEAL ARE ASSESSED TO THE APPELLANT.

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


source: Caselaw Access Project

author: LEE, J.,

license: Public Domain

text:
    Janie JOHNSON, as Executrix of the Estate of Walter Johnson, Appellant v. BLACK BROTHERS, INC., Appellee.
    No. 2003-CA-00878-COA.
    Court of Appeals of Mississippi.
    Aug. 3, 2004.

      Thomas Buchanan Hood, Andrew J. Kil-patrick, Ridgeland, Matt Raymond Walker, attorneys for appellant.
    J. Niles McNeel, Louisville, attorney for appellee. ■'
   LEE, J.,

for the Court.

PROCEDURAL HISTORY AND FACTS

¶ 1. In 1997, the Johnsons contracted with Black Brothers, Inc., for the construction of a home. The house was completed in December 1997 and Black Brothers returned to make repairs at Mr. Johnson’s request in April 1998.

¶ 2. On September 28, 2000, Janie Johnson, in her capacity as executrix of the estate of her husband, Walter Johnson, filed a complaint against Black Brothers in the Chancery Court of Choctaw County. The complaint alleged intentional misrepresentation, negligent misrepresentation, breach of implied warranty, negligent construction, intentional infliction of emotional distress, and breach of contract. Johnson also sought removal of a construction lien against the property in addition to attorney’s fees, compensatory damages, and punitive damages. Black Brothers subsequently filed their answer and also counter-claimed for unpaid debts as well as interest and attorney’s fees.

¶ 3. A trial was conducted in August 2002, and the chancellor issued his opinion on October 3, 2002. The chancellor determined that there had been a breach of contract, a breach of statutory warranty, and a breach of implied warranty. The chancellor denied Johnson’s claim for punitive damages and attorney’s fees, finding no proof of any intentional misrepresentation or any intentional act that harmed Johnson. Although the chancellor found Black Brothers liable, he found the evidence presented at trial insufficient to properly fix damages and ordered another hearing on the amount of damages. This hearing was held on February 17, 2003.

¶ 4. In his final judgment, the chancellor held that Johnson should recover $25,000 for the diminished value of the house due to the uneven floor and ceiling and $33,400 for the cost to repair other defects. However, having previously found that Johnson was indebted to Black Brothers in the amount of $20,475.60 for construction of the driveway, the chancellor reduced Johnson’s net award to $37,924.40.

¶ 5. Johnson now appeals to this Court asserting the following issues: 1) the chancellor erred in concluding that there was insufficient evidence offered at trial to determine Johnson’s damages; 2) the chancellor erred in finding that awarding the cost of repairs to Johnson constituted economic waste; 3) the chancellor erred in finding that the value of the Johnson home had been diminished by $25,000 and 4) the chancellor erred in denying Johnson’s claims for punitive damages and attorney’s fees.

STANDARD OF REVIEW

¶ 6. In reviewing the decisions of a chancellor, we look to our familiar standard of review:

The findings of a chancellor will not be disturbed or set aside on appeal unless the decision of the trial court is manifestly wrong and not supported by substantial credible evidence or unless an erroneous legal standard was applied. Where there is substantial evidence to support the chancellor’s findings, this Court is without the authority to disturb his conclusions, although this Court might have found otherwise as an original matter.

Memphis Hardwood Flooring Co. v. Daniel, 771 So.2d 924(¶ 18) (Miss.2000) (citations omitted).

DISCUSSION OF ISSUES

I. DID THE CHANCELLOR ERR IN CONCLUDING THAT THERE WAS INSUFFICIENT EVIDENCE OFFERED AT TRIAL TO DETERMINE JOHNSON’S DAMAGES?

¶7. In her first issue, Johnson claims that the chancellor erred in finding that there was insufficient evidence offered at the first trial to determine her damages. Specifically, Johnson contends that the chancellor was manifestly wrong to reopen the case where both sides had offered expert testimony on damages. The chancellor relied upon Gerodetti v. Broadacres, Inc., 363 So.2d 265 (Miss.1978), in order to determine the appropriate measure of damages. In discussing whether to reopen the case in order to hear additional evidence, the chancellor stated as follows:

This Court normally refuses to take such action for it takes the position that parties have the duty to be prepared to present all of their evidence when they announce ready for trial, and they should not be given a second opportunity when they see shortfalls in their case. Here, though, both sides have failed to produce the evidence required to properly decide this case under principles set forth in the Gerodetti case.

¶ 8. The chancellor found a number of defects existed in the house upon completion by Black Brothers, including unconnected sewer lines, an inadequate number of vents to properly ventilate the crawlspaces, notches cut in the floor joists to allow room for heat and air ducts, water accumulating under the house from improper site preparation, and an uneven kitchen and family room floor. The chancellor noted that both of Johnson’s expert witnesses did not testify as to the specific costs to repair each defect. Mark Watson, an engineer, testified that it would cost around $15,000 to repair the kitchen floor, but that he did not have experience in making the repairs. The chancellor noted “without experience in doing this type work, it is difficult to understand how he could compute the costs of doing it.” Tommy McKnight testified that the costs of repairs would be $228,800. However, most of McKnight’s costs relate to repairing the uneven floor. There was also testimony that the uneven floor in the kitchen was not noticeable and did not restrict the use of the house or make it less habitable.

¶ 9. There was no specific testimony as to how much it would cost to fix the defects that the chancellor found needed to be corrected. The chancellor found that an award of $228,000 would not be proper, but that Johnson was entitled to recover some damages. We cannot find that the chancellor was manifestly wrong in determining that there was insufficient evidence to prove the amount of damages; thus, this issue is without merit.

II. DID THE CHANCELLOR ERR IN DETERMINING THAT AWARDING THE COST OF REPAIRS TO JOHNSON CONSTITUTED ECONOMIC WASTE?

¶ 10. In her next issue, Johnson claims that the chancellor erred in determining that the cost of repairs constituted economic waste. Johnson contends that the chancellor should have awarded her the amount of $228,000 in damages. In his opinion the chancellor cited the following guidelines for determining damages:

Where a building is completed substantially according to plans or specifications, the measure of damages may be determined by: (1) the cost rule, which is the cost of repairing the defects to make the building or structure conform to the specifications where such may be done at a reasonable expense if unreasonable economic waste is not involved, or (2) the diminished value rule, which is the difference in the value of the property with the defective work and what the value would have been if there had been strict compliance with the contract. The diminished value applies where the defects can not be remedied without great sacrifice of work or material or would impair the building or would involve unreasonable economic waste or where defects can not be repaired at a reasonable cost or where it is not reasonable or practical to remedy the defects or where the cost of remedying the defects will not fully compensate the owner for damages suffered by him.

Gerodetti, 363 So.2d at 267-68. Johnson argues that the defects in the house were appreciable and substantial. However, the chancellor found that:

Mr. McKnight’s estimate for the repair is $228,000 or over 80% of the total cost of the house. As the court understands his testimony, the bulk of the costs relates to the reconstruction of the kitchen floor and family room floor and areas over them. The problem with the floor and the cabinets do not affect the house structurally at all except for the need to replace the beam. They are hardly noticeable if one is npt aware of there [sic] existence. They do not restrict the use of the house or make it any less habitable. No doubt they do have some impact on the value of the house.

After the hearing on damages, the chancellor did find that to completely redo the kitchen and family areas would be unreasonable in light of the testimony concerning the diminished value of the house and because other witnesses testified as to other less expensive means to repair the defects. Although Johnson did not put on any testimony as to the diminished value of the house, the expert called by Black Brothers was able to give an estimate as to the value of the house with the uneven floor. The chancellor relied upon this estimate in determining that Johnson should receive $25,000 for the diminished value of the house as a result of the uneven floor. We cannot find that the chancellor was manifestly wrong in determining that it would be unreasonable to award Johnson $228,000 in damages; thus, this issue is without merit.

III. DID THE CHANCELLOR ERR IN FINDING THAT THE VALUE OF THE JOHNSON HOME HAD BEEN DIMINISHED BY $25,000?

¶ 11. In her third issue, Johnson claims that nothing in the record supported the amount of $25,000 as a reasonable award for the diminished value of the house. We find it interesting that Johnson first argues that the chancellor erred in ordering a second hearing for determining damages and the diminution in value, yet fails to produce evidence at the second hearing on diminished value, and then demands we remand for another hearing to further determine the diminished value of the house.

¶ 12. The appraisal expert for Black Brothers, Andy Johnson, Jr., who is no relation to the plaintiff, testified that he would reduce the value of the house by $11,250 for the uneven floor. However, the chancellor found that his explanation was lacking and determined that the diminished value of $25,000 was more appropriate as the value of the house without the uneven floor was estimated to be $250,000 and, with the uneven floor, $225,000. Again, we cannot find that the chancellor erred in determining that the Johnson home had been diminished in value by $25,000.

IV. DID THE CHANCELLOR ERR IN DENYING JOHNSON’S CLAIM FOR PUNITIVE DAMAGES AND ATTORNEY’S FEES?

¶ 13. In her last issue, Johnson contends that the chancellor should have awarded her punitive damages as well as attorney’s fees. Johnson argues that Black Brothers was aware of the uneven floor, which amounted to intentional or fraudulent misrepresentation. Punitive damages are warranted only where the prevailing plaintiff has demonstrated that the defendant’s actions amounted to “a willful or malicious wrong or the gross, reckless disregard for the rights of others.” Valley Forge Ins. Co./CNA Ins. Co. v. Strickland, 620 So.2d 535, 540 (Miss.1993). Furthermore, punitive damages are appropriate only in extreme cases and should be allowed “only with caution and within narrow limits.” Beta Beta Chapter of Beta Theta Pi Fraternity v. May, 611 So.2d 889, 894 (Miss.1992).

¶ 14. Our supreme court has established the following elements of intentional or fraudulent misrepresentation as: (1) a representation, (2) its falsity, (3) its materiality, (4) the speaker’s knowledge of its falsity or ignorance of its truth, (5) his intent that it should be acted on by the hearer and in the manner reasonably contemplated, (6) the hearer’s ignorance of its falsity, (7) his reliance on its truth, (8) his right to rely thereon, and (9) his consequent and proximate injury. Franklin v. Lovitt Equip. Co., Inc., 420 So.2d 1370, 1373 (Miss.1982). These elements must be shown by clear and convincing evidence. Id.

¶ 15. Johnson testified that she and her husband, while the house was under construction, noticed the uneven floor and showed it to Black Brothers, which said it would fix it as it put the rest of the floor down. Obviously, the floor was not fixed, but the chancellor did not find any intentional misrepresentation on the part of Black Brothers, stating: “Clearly, there was substantial evidence of negligence on the part of the Black Brothers. There is no evidence of any intentional act that harmed the Plaintiff.” The chancellor further noted that there was no proof of damage for a misrepresentation beyond the need to fix the defects caused by the negligence of Black Brothers.

¶ 16. We cannot find any clear and convincing evidence that Black Brothers intentionally or fraudulently misrepresented the damage. We agree with the chancellor that the case at hand lacks the requisite malice or gross negligence in order to consider punitive damages.

¶ 17. THE JUDGMENT OF THE CHOCTAW COUNTY CHANCERY COURT IS AFFIRMED. COSTS OF THIS APPEAL ARE ASSESSED TO THE APPELLANT.

KING, C.J., BRIDGES AND SOUTHWICK, P.JJ., MYERS, CHANDLER AND GRIFFIS, JJ., CONCUR. IRVING, J., DISSENTS WITHOUT A SEPARATE WRITTEN OPINION.


author: SOUTHWICK, P.J.,

text:
    Bernard BRYANT, Appellant v. STATE of Mississippi, Appellee.
    No. 2004-CP-00127-COA.
    Court of Appeals of Mississippi.
    Aug. 3, 2004.
    Bernard Bryant (pro se), attorney for appellant.
    Office of the Attorney General by W. Glenn Watts, attorney for appellee.
    Before SOUTHWICK, P.J., and MYERS and CHANDLER, JJ.
   SOUTHWICK, P.J.,

for the Court.

¶ 1. Bernard Bryant’s petition for post-conviction relief was denied. After reviewing his appellate issues, we find no error and affirm.

¶ 2. Bryant pled guilty to the sexual battery of a girl under the age of fourteen. He was given an eight year sentence, seven and one half years suspended with five years of probation. His probation has been revoked and Bryant is now incarcerated. He filed a petition for post-conviction relief in circuit court, which was denied. Bryant appeals raising issues with his indictment, his sentence, and the effectiveness of counsel.

DISCUSSION

¶ 3. The circuit judge dismissed Bryant’s motion for post-conviction relief, finding that it was time barred. Bryant was sentenced on July 12, 1999. His motion for post-conviction relief was filed on November 17, 2003. When a conviction arises from a guilty plea, a motion for post-conviction relief must be made within three years after. the judgment. Miss. Code Ann. § 99-39-5(2) (Rev.2000). The same subsection provides for some exceptions to this three year limitation. We examine the nature of Bryant’s claims to see if any are within those exceptions.

¶ 4. Bryant alleges that the indictment should have charged that the eleven-year-old victim did not consent to the offense. At the time of the offense, the statute defined the crime as sexual penetration of a child under the age of fourteen. Miss.Code Ann. § 97-3-95(l)(c) (Rev.1994). Consent was not an issue. Further, he alleges that he was not told of a statutory minimum sentence. The sentencing statute in effect for his offense provided for imprisonment for not more than thirty years, without a minimum. Miss.Code Ann. § 97-3-101 (Rev.1994). Bryant was sentenced to eight years. The ineffective assistance of counsel issue focuses on the failure to object to the unobjectionable indictment and counsel’s advice about parole. None of these issues are • exceptions to the three year deadline for bringing claims.

¶ 5. THE JUDGMENT OF THE CIRCUIT COURT OF LINCOLN COUNTY DENYING POST-CONVICTION RELIEF IS AFFIRMED. ALL COSTS ARE ASSESSED TO LINCOLN COUNTY.

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


author: SEE, Justice. MOORE, Chief Justice SEE, Justice. HOUSTON, Justice

text:
    Ex parte Ansuya J. PATEL. (In re State of Alabama v. Ansuya J. Patel).
    1020364.
    Supreme Court of Alabama.
    May 23, 2003.
    Order Denying Rehearing Oct. 3, 2003.

      William N. Clark, Laura S. Gibson, and Keith E. Brashier of Redden, Mills & Clark, Birmingham, for petitioner.
    William H. Pryor, Jr., atty. gen., and Michael B. Billingsley and Elizabeth Ray Butler, asst, attys. gen., for respondent.
   SEE, Justice.

Ansuya J. Patel petitions this Court for a writ of habeas corpus directing the trial court to enter an order releasing her from the Etowah County jail or, in the alternative, to set bail in a reasonable amount to be determined by this Court.

On May 10, 2002, the Etowah County Sheriffs Department arrested Patel on a capital-murder charge. She was placed in custody in the Etowah County jail, where she is currently being held without bail. On May 20, 2002, Patel’s counsel filed motions in the Etowah County District Court seeking a preliminary hearing and a hearing to set bond. The district court, on July 3, 2002, held the preliminary hearing and the hearing on Patel’s motion to set bond. The district court determined that there was probable cause to believe Patel had committed the charged offense, and bound the case over to the grand jury. Patel petitioned the Etowah Circuit Court for a writ of habeas corpus, seeking to be released or to have bond set. On September 10, 2002, the circuit court, after a hearing, denied Patel’s petition. The circuit court stated in its order that there was sufficient evidence from which “to conclude that the offense charged has been committed, that the defendant is the guilty agent, and that she will probably be punished capitally if the law is administered.” She filed another petition for the writ of habeas corpus with the Court of Criminal Appeals, seeking the same relief. On November 21, 2002, the Court of Criminal Appeals denied Patel’s petition, without an opinion. Ex parte Patel (No. CR-02-0118, Nov. 21, 2002), 876 So.2d 550 (Ala.Crim.App.2002)(table).

Patel argues in her petition to this Court that the State did not offer sufficient evidence to justify confining her without bail. She also argues that the facts in her case do not meet the elements required to deny a defendant in a capital-murder case bail.

Article I, § 16, of the Alabama Constitution of 1901 provides: “That all persons shall, before conviction, be bailable by sufficient sureties, except for capital offenses, when the proof is evident or the presumption great; and that excessive bail shall not in any case be required.” That constitutional provision allows a court to deny bail for a defendant charged with an offense defined by statute as capital. Ex parte Landers, 690 So.2d 537, 538 (Ala.Crim.App.1997). This Court has established three prerequisites to the denial of bail in a capital case: “The evidence must be clear and strong, that it would lead a well-guarded and dispassionate judgment to the conclusion that (1) the offense has been committed; (2) the accused is the guilty agent; and (3) he would probably be punished capitally if the law is administered.” Trammell v. State, 284 Ala. 31, 32, 221 So.2d 390, 390 (1969). The State has the burden of proving that the crime was committed and showing “facts that would convince the judge that upon final trial the judge would sustain a verdict pronouncing the defendant guilty and imposing the death penalty.” Roan v. State, 24 Ala.App. 517, 517, 137 So. 320, 321 (1931). A safe rule for a trial court to follow “is to deny bail if the court could sustain a capital conviction by a jury based on the same evidence taken at the hearing seeking bail; and to allow bail if the evidence is not so efficacious.” Webb v. State, 35 Ala.App. 575, 576, 50 So.2d 451, 452 (1951); Roddam v. State, 33 Ala.App. 356, 33 So.2d 384 (1948).

Alabama appellate courts have stated that “where bail has been refused by the primary magistrate on oral evidence, the appellate court will not interfere, unless such denial appears from the record to have been manifestly erroneous.” Roan, 24 Ala.App. at 517, 137 So. at 321. The Alabama Court of Criminal Appeals has recognized a presumption of guilt “ ‘ “[w]here one is imprisoned [for a capital offense] by virtue of an indictment.” ’ ” Landers, 690 So.2d at 538 (quoting Burks v. State, 600 So.2d 374, 381 (Ala.Crim.App.1991), quoting in turn Livingston v. State, 40 Ala.App. 376, 377, 116 So.2d 396, 397 (1959)). To be entitled to bail as of right, a defendant must overcome this presumption by proof. Landers, 690 So.2d at 538. Patel has not yet been indicted; therefore, there is no presumption of her guilt. Burks, 600 So.2d at 381. After reviewing the evidence, we conclude that the State did not meet the three prerequisites set out in Trammell. Because the trial in this case has not yet taken place, it would be imprudent for this Court to further comment on the evidence at this time. See Roddam, 33 Ala.App. at 356, 33 So.2d at 385 (stating that it is an appellate court’s practice to refuse discussing the evidence in “matters of this nature”); Roan, 24 Ala.App. at 517, 137 So. at 321 (recognizing that, because the case must still be tried, it would be improper to comment extensively on the evidence); Franks v. State, 11 Ala.App. 70, 65 So. 857 (1914)(declining to discuss the evidence for fear that such a discussion might prejudice the State’s case at trial). The trial court erred in denying Patel bail, and we direct the trial court to set bail in a reasonable amount.

PETITION GRANTED IN PART AND DENIED IN PART; WRIT ISSUED.

HOUSTON, LYONS, BROWN, JOHNSTONE, HARWOOD, WOODALL, and STUART, JJ., concur.

MOORE, C.J., concurs in part and dissents in part.

MOORE, Chief Justice

(concurring in part and dissenting in part).

I concur in denying Ansuya Patel’s petition for the writ of habeas corpus insofar as it asks this Court to set the amount of her bail or to release her. However, I dissent from the majority opinion insofar as it orders the trial court to set bail for her. The trial court has already held a hearing and has reviewed the evidence; it reviewed the testimony of the witnesses and the documentary evidence, and it determined that Patel is not entitled to bail because the “proof [that she committed a capital offense] is evident or the presumption great.” Article I, § 16, Ala. Const. 1901. The trial court found that the “defendant is a substantial flight risk.” It is not for this Court to substitute its judgment for that of the trial court in such a matter unless the trial court’s decision appears to be “manifestly erroneous.” Roan v. State, 24 Ala.App. 517, 517, 137 So. 320, 321 (1931). Therefore, I respectfully dissent from the opinion insofar as it grants the petition for the writ of habeas corpus and directs the trial court to set bail for Patel.

On Application for Rehearing

SEE, Justice.

APPLICATION OVERRULED.

LYONS, BROWN, JOHNSTONE, HARWOOD, WOODALL, and STUART, JJ., concur.

HOUSTON, J., concurs specially.

HOUSTON, Justice

(concurring specially).

I concur in overruling the application for rehearing. I write to note that, after this Court decided Roan v. State, 24 Ala.App. 517, 137 So. 820 (1931), quoted in the original opinion, the definition of “capital offense” was revised to include an offense punishable by a sentence of life imprisonment without the possibility of parole. See Ala.Code 1975, § 13A-5-39. Given that fact, I would revise the portion of the opinion in which we quote from Roan in order to clarify that, under the circumstances presented here, the State has the burden of proving that the crime was committed and showing “facts that would convince the judge that upon final trial the judge would sustain a verdict pronouncing the defendant guilty and imposing the death penalty [or a sentence of life imprisonment without parole].” Roan, 24 Ala.App. at 517, 137 So. at 321.

      . In Webb, this Court stated that because the trial judge “has the witnesses before him and is privileged to hear their oral examination,” the decision to refuse bail should not be disturbed unless it is clear that the lower court erred in its judgment. 35 Ala.App. at 576, 50 So.2d at 452.


author: PER CURIAM. MOORE, Chief Justice

text:
    Ex parte The CITIZENS BANK. (In re The Citizens Bank v. Bobby Norwood). The Citizens Bank v. Bobby Norwood.
    1010786, 1010285, and 1010951.
    Supreme Court of Alabama.
    May 23, 2003.
    Rehearing Denied Oct. 3, 2003.

      William H. Mills of Redden, Mills & Clark, Birmingham, for petitioner/appellant The Citizens Bank.
    Thomas E. Baddley, Jr., and Jeffrey P. Mauro of Baddley & Mauro, LLC, Birmingham, for respondent/appellee Bobby Norwood.
   On Application for Rehearing

PER CURIAM.

The Citizens Bank appealed the trial court’s judgment entered on a jury verdict in favor of Bobby Norwood and against Citizens Bank; this Court affirmed, without an opinion. See Citizens Bank v. Bobby Norwood, 779 So.2d 254 (Ala.1999) (table). Citizens Bank later returned to the trial court and filed what it called “an independent action” under Rule 60(b), Ala. R. Civ. P., contesting the same judgment. In that action, the trial court refused to grant Citizens Bank the relief it sought; Norwood then moved for an award of attorney fees. The trial court stated that it believed that it had retained jurisdiction to award attorney fees and found Citizens Bank liable for $24,186.35 in attorney fees.

Citizens Bank appealed the trial court’s order in its Rule 60(b) action and the award of attorney fees. Citizens Bank also petitioned this Court for a writ of mandamus directing the trial court to set aside the award of attorney fees. This Court dismissed Citizens Bank’s petition for the writ of mandamus; the Bank has filed an application for a rehearing of that denial.

This case has produced three proceedings that are presently pending before this Court: (1) The Citizens Bank v. Bobby Norwood (case no. 1010285), the appeal of the trial court’s order in favor of Norwood in Citizens Bank’s Rule 60(b) action; (2) Ex parte The Citizens Bank (case no. 1010786), the application for a rehearing on this Court’s denial of Citizens Bank’s petition for the writ of mandamus; and (3) The Citizens Bank v. Bobby Norwood (case no. 1010951), the appeal of the trial court’s award of attorney fees to Norwood.

The Appeal of the Rule 60(b) Order (case no. 1010285)

Citizens Bank, in case no. 1010285, seeks our review of the trial court’s refusal to grant Citizens Bank relief on its Rule 60(b), Ala. R. Civ. P., motion. Citizens Bank asserted in its Rule 60(b) motion that it is entitled to relief from the original judgment against it under Rule 60(b)(4) on the ground that the original judgment entered on the jury verdict was void, or under Rule 60(b)(6), for “any other reason justifying relief.” This Court has stated the standard of review in an appeal seeking relief under Rule 60(b)(4) and (6):

“The decision to grant or to withhold Rule 60(b)(6) relief being discretionary, the trial court’s decision will not be reversed except for an abuse of that discretion. Textron v. Whitfield, 380 So.2d 259 (Ala.1979).
“On the other hand, a Rule 60(b)(4) motion has a different standard of review on appeal. When the grant or denial turns on the validity of the judgment, discretion has no place for operation. If the judgment is void, it is to be set aside; if it is valid, it must stand. Wonder v. Southbound Records, Inc., 364 So.2d 1173 (Ala.1978). A judgment is void only if the court rendering it lacked jurisdiction of the subject matter or of the parties, or if it acted in a manner inconsistent with due process. Ibid.”

Smith v. Clark, 468 So.2d 138, 140-41 (Ala.1985).

Citizens Bank alleges that an investigation of the jurors, which it conducted after this Court had affirmed the trial court’s judgment, showed that certain members of the jury were related to Nor-wood, that one member of the jury had not been a resident of the jurisdiction for the requisite 12 months to qualify for jury service, and that one member of the jury had a criminal conviction that he did not disclose on his juror questionnaire that, Citizens Bank argues, disqualified him from serving on the jury. Citizens Bank argues that these alleged facts render the original judgment void and that, therefore, it is entitled to relief under Rule 60(b)(4) in the form of a new trial.

Whether a judgment is void is a question of law. A judgment is void only if the trial court lacked subject-matter jurisdiction or jurisdiction over the parties, or if the trial court acted in a manner inconsistent with due process. Smith v. Clark, 468 So.2d at 140-41. Citizens Bank does not allege that the trial court lacked subject-matter jurisdiction or jurisdiction over the parties, and its only due-process allegation is that some jurors who served on the jury that heard its case might not have been qualified to serve as jurors. However, Citizens Bank acknowledges that it appealed the original judgment in favor of Norwood, and that only after more than two years — after its appeal was unsuccessful — did it perform the investigation that formed the basis for its Rule 60(b) action seeking to overturn the original verdict and judgment and to obtain a new trial. Citizens Bank does not suggest that it was unable to perform that investigation earlier; therefore, Citizens Bank has not been denied due process of law. Rule 60(b) is neither a substitute for a timely and appropriate appeal nor a mechanism for obtaining a second appeal. Because the judgment is not void, the trial court did not err in not granting Citizens Bank the relief it sought under Rule 60(b)(4).

Citizens Bank also argues that it is due relief in the form of a new trial under Rule 60(b)(6), Ala. R. Civ. P., which grants relief for “any other reason justifying relief from the operation of the judgment.” “This Court has held that a Rule. 60(b)(6) motion must be based on some reason other than those reasons stated in (1) through (5).” Ex parte State ex rel. J.Z., 668 So.2d 566, 570 (Ala.1995). Citizens Bank’s only argument to support its claim that it is due a new trial under Rule 60(b)(6) is that this “catchall” provision of Rule 60(b) “allows courts to set aside judgment ‘when necessary to accomplish justice.’ See Blackwell v. Adams, 467 So.2d 680, 683 (Ala.1985).” Although Citizens Bank argues that the scope of Rule 60(b)(6) is broad, it does not raise any independent basis for granting it a new trial; instead, Citizens Bank relies on the same arguments it presented for finding the earlier judgment void under Rule 60(b)(4), namely, that certain jurors should not have served on the jury. Citizens Bank offers no evidence indicating that it exercised due diligence in examining the jurors before they were empaneled, and “[failure to use due diligence in testing jurors as to qualifications or grounds of challenge is an effective waiver of grounds of challenge; a defendant cannot sit back and invite error based on a juror’s disqualification.” Holland v. Brandenberg, 627 So.2d 867, 870 (Ala.1993).

Citizens Bank has failed to show that the trial court abused its discretion in not granting a new trial under Rule 60(b)(6), Ala. R. Civ. P. Smith v. Clark, 468 So.2d at 140-41. Therefore, we affirm the order of the trial court refusing to grant Citizens Bank a new trial.

The Appeal of the Award of Attorney Fees and the Petition for the Writ of Mandamus (case no. 1010951 and case no. 1010786)

Citizens Bank appealed the trial court’s award of attorney fees (case no. 1010951); it also petitioned for a writ of mandamus contesting the award of attorney fees (case no. 1010786). This Court dismissed the petition for the writ of mandamus because we believed the issues raised in the petition could be addressed in an appeal. Citizens Bank filed an application for rehearing.

In its petition, Citizens Bank argued that the trial court lacked jurisdiction to enter a judgment granting Norwood attorney fees under the Alabama Litigation Accountability Act (“ALAA”). Citizens Bank argues that when the trial court ruled in Norwood’s favor on its Rule 60(b) motion, it did not retain jurisdiction of the case to determine an award of attorney fees.

In Baker v. Williams Bros., 601 So.2d 110, 112 (Ala.Civ.App.1992), the Court of Civil Appeals stated:

‘"When plain language is used in a statute, it must be interpreted to mean exactly what it says. Ex parte Madison County, 406 So.2d 398 (Ala.1981). The plain language of § 12-19-270 states that the court must make its award of attorney’s fees under the Act as part of its judgment on the merits of the case, ‘in addition’ to other costs assessed against a frivolous litigant. The statute does not create a new or separate cause of action to be brought after a case is litigated and given a final adjudication on its merits; rather, it indicates that the motion must be made during the pendency of the case.
“As interpreted by the supreme court, the ALAA provides for the trial court to consider the outcome of the proceedings in determining whether a party’s action was without substantial justification. For this reason, it is within the court’s discretion to hold a separate hearing on an ALAA petition after the entry of final judgment on the merits, provided that the court retained jurisdiction to do so. Meek [v. Diversified Prods. Corp., 575 So.2d 1100 (Ala.1991).] Otherwise, a final judgment puts an end to all controversies litigated or which ought to have been litigated within the particular controversy. Vacalis v. Lowry, 279 Ala. 264, 184 So.2d 345 (1966).”

In this ease, Norwood did not file his petition seeking attorney fees, costs, and expenses until after the trial court had entered the final order in Citizens Bank’s Rule 60(b) action. Norwood alleges that in his motion to dismiss he asked for attorney-fees under the ALAA and that that motion was pending when the trial court entered its order in the Rule 60(b) action. The fact remains that when the trial court entered that order, it did not mention reserving jurisdiction to determine the issue of attorney fees. Moreover, Norwood did not, at the hearing on Citizens Bank’s Rule 60(b) motion, ask the trial court to reserve jurisdiction for the consideration of an award of attorney fees. We therefore conclude that the order refusing Citizens Bank’s request for relief under Rule 60(b) was a final disposition of this case and that the trial court’s order purporting to grant Norwood’s motion for attorney fees under the ALAA was a void judgment. See, e.g., Harvey v. City of Oneonta, 715 So.2d 779, 781 (Ala.1998); Ex parte Smith, 438 So.2d 766, 768 (Ala.1983).

This Court originally dismissed Citizens Bank’s petition for the writ of mandamus as moot, because we believed the issue raised in the petition could be addressed on appeal. Citizens Bank correctly points out, however, that an appeal from a void judgment must be dismissed. See, e.g., Luken v. BancBoston Mortgage Corp., 580 So.2d 578, 581 (Ala.1991). We therefore grant Citizens Bank’s application for a rehearing of its petition for the writ of mandamus in case no. 1010786, and we grant the petition. The trial court did not retain jurisdiction to award attorney fees under the ALAA, and in making such an award it rendered a void judgment. Because an appeal cannot be taken from a void judgment, we dismiss Citizens Bank’s appeal from the trial court’s order purporting to award attorney fees (case no. 1010951).

1010786 — APPLICATION GRANTED; PETITION GRANTED; WRIT ISSUED.

HOUSTON, SEE, LYONS, BROWN, JOHNSTONE, HARWOOD, WOODALL, and STUART, JJ., concur.

MOORE, C.J., dissents.

1010285 — AFFIRMED.

1010951 — APPEAL DISMISSED.

MOORE, C.J., and HOUSTON, SEE, LYONS, BROWN, JOHNSTONE, HARWOOD, WOODALL, and STUART, JJ., concur.

MOORE, Chief Justice

(concurring as to case no. 1010285 and case no. 1010951 and dissenting as to case no. 1010786).

I concur in the Court’s decision in case no. 1010285 to affirm the trial court’s ruling in favor of Norwood because a Rule 60(b), Ala. R. Civ. P., motion is not the proper mechanism for obtaining the relief that Citizens Bank requests. I also concur with the dismissal of the appeal in case no. 1010951. I must dissent, however, from the ruling in case no. 1010786, in which the Court grants Citizens Bank’s petition for a writ of mandamus and sets aside the trial court’s award of attorney fees to Norwood.

I agree with the Court that the trial court’s order denying Citizens Bank the relief it sought by its Rule 60(b) motion ended the trial court’s jurisdiction in the case under the terms of the Alabama Litigation Accountability Act (“ALAA”); therefore, the trial court had no jurisdiction to award attorney fees to Norwood. It follows, then, that Citizens Bank’s appeal of the trial court’s order awarding attorney fees must be dismissed because “a void judgment will not support an appeal.” Luken v. BancBoston Mortgage Corp., 580 So.2d 578, 581 (Ala.1991). However, it does not follow that Citizens Bank’s petition for a writ of mandamus should be granted. “Mandamus will be granted only when there is a clear, specific legal right shown for the enforcement of which there is no other adequate legal remedy.” Campbell v. City of Hueytown, 289 Ala. 388, 391, 268 So.2d 3, 4 (1972) (emphasis added). Citizens Bank has another legal remedy — the same remedy it incorrectly employed to challenge the trial court’s ruling for Norwood — a Rule 60(b)(4), Ala. R. Civ. P., motion, requesting that the trial court set aside its order awarding attorney fees because the order was void for lack of jurisdiction. If the trial court denies the Rule 60(b)(4) motion, Citizens Bank could properly appeal the decision, and this Court could, in that case, reverse the trial court’s order denying that motion. The denial of a Rule 60(b) motion is renewable on appeal. See, e.g., Image Auto, Inc. v. Mike Kelley Enters., Inc., 823 So.2d 655 (Ala.2001). Citizens Bank is not foreclosed from filing such a motion because, unlike motions filed under Rule 60(b)(1), (2), or (3), a 60(b)(4) motion need not be filed within four months after the entry of the judgment being challenged, but instead must be filed within a “reasonable time” after the judgment is entered. Rule 60(b), Ala. R. Civ. P.

The result of requiring Citizens Bank to file a Rule 60(b)(4) motion would, in effect, grant Citizens Bank the same relief for which it now petitions, only the form of-the relief would not be a direct command from this Court to the trial court because a Rule 60(b) motion does not bring the underlying judgment up for review; it presents only the question of the propriety of the judgment denying the Rule 60(b) motion. See, e.g., Sanders v. Blue Cross-Blue Shield of Alabama, Inc., 368 So.2d 8 (Ala.1979). Thus, Citizens Bank has available another adequate legal remedy, one that would avoid the extraordinary step of directly ordering the trial court to set aside its award of attorney fees to Norwood. Thus, Citizens Bank’s mandamus petition should be denied. Accordingly, I must dissent from the main opinion insofar as it grants the petition for the writ of mandamus in case no. 1010786.

      . In Meek v. Diversified Products Corp., 575 So.2d 1100, 1103 (Ala.1991), this Court stated:
      "The trial court specifically granted Diversified's request [made during a hearing on a motion for a summary judgment] to file a written motion and brief. This reserved the court's jurisdiction of Diversified's motion and gave ample notice to the plaintiff and his attorney.
      "The specific language of the Alabama Litigation Accountability Act, consistent with its intent, provides for the trial court to consider the outcome of the proceedings in determining whether a party's action was without substantial justification. § 12 — 19— 273(7). The holding of a separate hearing on the motion for an award of attorney fees after the entry of the summary judgment was a proper exercise of discretion by the trial court.''


author: BROWN, Justice.

text:
    Ex parte Keith NALL and Donnie Faulk. (In re Michael Franklin Cannon, Jr., a minor, by and through his father and next friend, Michael F. Cannon; Michael F. Cannon; and Lee D. Cannon v. Donnie Faulk et al.)
    1012099.
    Supreme Court of Alabama.
    June 6, 2003.
    As Modified on Denial of Rehearing Oct. 24, 2003.

      Mark S. Boardman and Clay R. Carr of Boardman, Carr, Weed & Hutcheson, P.C., Chelsea, for petitioners.
    Michael A. Worel, David G. Wirtes, Jr., and George M. Dent III of Cunningham, Bounds, Yance, Crowder & Brown, L.L.C., Mobile, for respondents.
   BROWN, Justice.

Coach Keith Nall and Coach Donnie Faulk, defendants in an action pending in the Escambia Circuit Court, petition this Court for a writ of mandamus ordering the trial court to enter a summary judgment in their favor against the plaintiffs, Michael F. Cannon, Jr. (“Michael”), and his father and mother, Michael F. Cannon and Lee D. Cannon. We grant the petition and issue the writ.

Michael played baseball on the Escam-bia County High School junior-varsity baseball team. On March 15, 1999, the junior-varsity team and the varsity team were conducting a base-running drill during a joint practice session. As part of the drill, a runner would stand at third base while Coach Faulk, the junior-varsity coach, hit a baseball from home plate. The purpose of the drill was to teach the players how to lead off the base, how to “read” the ball off the bat of the hitter, and how to react when the ball was hit. The varsity coach, Coach Nall, stood at third base instructing the runner. The remaining players on the team, including Michael, stood in the foul area behind the third-base line watching the drill and awaiting their turn as runners. Coach Nall and Coach Faulk had instructed the players to pay attention to the drill and to stand near the fence, away from the field. While the base runner wore a batting helmet, as do all base runners during a game, the players awaiting their turn near the fence were not wearing helmets.

In order to replicate what would actually occur during a game, a player would pitch a baseball to Coach Faulk from the pitcher’s mound. Coach Nall testified that he instructed Coach Faulk to take “full cuts,” or full swings, at the ball so the balls could reach the outfield, as they would in a real game. Coach Faulk testified that he took full swings at the pitched balls; he testified that some of the resulting hits were “high flies,” some were “line drives,” some just put the ball “in play,” and some were hard enough to make the ball roll to the outfield fence.

The injury to Michael occurred when Coach Faulk hit one of the balls pitched to him, and it went foul and hit Michael, who was standing in the area near third base, in the head above his left ear. Coach Nall and Coach Faulk took Michael into the dugout and examined him. A parent who was watching the practice telephoned Michael’s mother, who came and picked him up.

Michael testified that, as a result of the accident, he now suffers from headaches, attention deficit disorder, and memory problems. On April 3, 2000, Michael, by and through his father, brought this action, alleging that Coach Nall and Coach Faulk had been negligent and wanton in conducting the practice and in supervising the players. Michael’s parents also sought damages for expenses incurred in treating Michael, for emotional and mental anguish, and loss of what is described in the complaint as “filial consortium.” On October 17, 2001, Coach Nall and Coach Faulk moved for a summary judgment on the basis of State-agent immunity. On December 20, 2001, the trial court heard oral argument on the motion; on June 27, 2002, it denied the motion. Coach Nall and Coach Faulk now petition for a writ of mandamus directing the trial court to grant their motion for a summary judgment.

Standard, of Review

“While the general rule is that the denial of a motion for summary judgment is not reviewable, the exception is that the denial of a motion for summary judgment grounded on a claim of immunity is reviewable by petition for writ of mandamus.” Ex parte Rizk, 791 So.2d 911, 912 (Ala.2000). A writ of mandamus is an extraordinary remedy available only when there is: “(1) a clear legal right to the order sought; (2) an imperative duty upon the respondent to perform, accompanied by a refusal to do so; (3) the lack of another adequate remedy; and (4) the properly invoked jurisdiction of the court.” Ex parte BOC Group, Inc., 823 So.2d 1270, 1272 (Ala.2001).

Discussion

Coach Nall and Coach Faulk claim that they are entitled to State-agent immunity under Ex parte Cranman, 792 So.2d 392 (Ala.2000), because, they say, in formulating and conducting the baseball practice they were exercising judgment in educating students. In Cranman, a plurality of this Court purported to restate the rule governing State-agent immunity:

“A State agent shall be immune from civil liability in his or her personal capacity when the conduct made the basis of the claim against the agent is based upon the agent’s
“(1) formulating plans, policies, or designs; or
“(2) exercising his or her judgment in the administration of a department or agency of government, including, but not limited to, examples such as:
“(a) making administrative adjudications;
“(b) allocating resources;
“(c) negotiating contracts;
“(d) hiring, firing, transferring, assigning, or supervising personnel; or
“(3) discharging duties imposed on a department or agency by statute, rule, or regulation, insofar as the statute, rule, or regulation prescribes the manner for performing the duties and the State agent performs the duties in that manner; or
“(4) exercising judgment in the enforcement of the criminal laws of the State, including, but not limited to, law-enforcement officers’ arresting or attempting to arrest persons; or
“(5) exercising judgment in the discharge of duties imposed by statute, rule, or regulation in releasing prisoners, counseling or releasing persons of unsound mind, or educating students.
“Notwithstanding anything to the contrary in the foregoing statement of the rule, a State agent shall not be immune from civil liability in his or her personal capacity
“(1) when the Constitution or laws of the United States, or the Constitution of this State, or laws, rules, or regulations of this State enacted or promulgated for the purpose of regulating the activities of a governmental agency require otherwise; or
“(2) when the State agent acts willfully, maliciously, fraudulently, in bad faith, beyond his or her authority, or under a mistaken interpretation of the law.”

Cranman, 792 So.2d at 405 (emphasis on “shall” and “shall not” in original, other emphasis added). See also Ex parte Butts, 775 So.2d 173 (Ala.2000).

Michael was eligible for academic credit for playing on the' junior-varsity baseball team. Generally, State agents are afforded immunity from civil liability when the conduct made the basis of the claim is based on the exercise of judgment in supervising and educating students. In Ex parte Blankenship, 806 So.2d 1186 (Ala.2000), a high-school band director, Blankenship, and a high-school principal, Fryer, petitioned this Court for a writ of mandamus directing the trial court to enter a summary judgment based on the doctrine of State-agent immunity for their actions in supervising a junior-high-school student who was participating in the high school’s band. The parents of the junior-high-school student sued Blankenship and Fryer, alleging that they should have prevented the junior-high-school student from leaving campus with her boyfriend, who was later accused of statutory rape. 806 So.2d at 1186. The boyfriend was also a member of the high-school band, and although he also did not attend the high school, he was allowed to participate in band activities because Blankenship mistakenly believed that he was a student at a private school that did not have a band. 806 So.2d at 1187. In actuality, the boyfriend had previously dropped out of high school and was no longer a student. Id.

This Court held that Blankenship and Fryer were entitled to State-agent immunity under Cranman because in allowing the girl’s boyfriend to participate in the band they were exercising discretion in “discharging their duties in educating students.” 806 So.2d at 1189. The Court stated:

“One with 20/20 hindsight might question the wisdom of Blankenship and Fryer’s decision to allow a person they thought was a student from a private school outside Elmore County to participate in the band activities and the wisdom of their failing to verify that he was a student at the private school he claimed to attend. State-agent immunity protects agents of the State in their exercise of discretion in educating students. We will not second-guess their decisions.”

806 So.2d at 1190.

In determining whether Coach Nall and Coach Faulk’s decisions regarding the safety of the practice drill are protected by State-agent immunity, we are guided by our recent decision in Ex parte Spivey, 846 So.2d 322 (Ala.2002). In Spivey, a vocational teacher, Peacock, removed a guide fence from a saw, or “shaper,” used by students to cut wood. This shaper also lacked certain safety guards. A student was injured while using the shaper, and he sued Peacock, claiming that Peacock was liable for his injuries. This Court noted that, generally, educators are afforded immunity in certain situations:

“ ‘State-agent immunity protects agents of the State in their exercise of discretion in educating students.’ Ex parte Blankenship, 806 So.2d 1186, 1190 (Ala.2000). See also [Ex parte ] Cranman, 792 So.2d [392] at 405 [ (Ala.2000) ]. ... The Wrights’ action[ ] against Peacock ... arise[s] from decisions [he] made in educating students ..., [a category] specifically included within the Cranman restatement of the rule governing State-agent immunity. 792 So.2d at 405.”

Spivey, 846 So.2d at 331-32.

The student, however, claimed that Peacock was not entitled to State-agent immunity because, he said, Peacock failed to follow general provisions in his job description and in the faculty handbook regarding safety. 846 So.2d at 332-33. We rejected this argument. Although those documents “impose[d] upon Peacock a general responsibility to ensure safety in his classroom, the[y] ... do not remove from Peacock his judgment in determining the safe operation of the tools or when a safety hazard exists.” Spivey, 846 So.2d at 333. This exercise of judgment in “determining the safe operation of the tools or when a safety hazard exists,” we held, entitled Peacock to State-agent immunity under Cranman. Spivey, 846 So.2d at 333.

In this case it is undisputed that Coach Nall and Coach Faulk, in conducting the baseball practice session, were discharging their duties in educating students. Additionally, the Escambia County Board of Education has formulated no rules or policies specifying how baseball practices are to be held; instead, Coach Nall and Coach Faulk were left to exercise broad judgment in planning the safe conduct of the session and in deciding whether any safety hazards existed. Therefore, unless one of the exceptions to State-agent immunity under Cranman exists, Coach Nall and Coach Faulk are entitled to State-agent immunity because they were exercising their judgment in discharging their duties in educating students, and we will not second-guess their decisions. Spivey, 846 So.2d at 331; Blankenship, 806 So.2d at 1190.

The Cannons admit that, under the authority of Spivey, Coach Nall’s decisions in conducting the practice are protected by State-agent immunity. They claim, however, that Coach Faulk’s actions in hitting the baseball are not protected. Specifically, the Cannons claim that during the practice several of the players teased Coach Faulk because he was not hitting the balls very hard. The Cannons claim that, in response to the teasing, Coach Faulk began hitting the balls harder. In doing so, the Cannons allege, Coach Faulk was acting “tortiously” and with knowledge that his hitting the ball hard could harm one of the players. Thus, they argue, Cranman does not apply. We disagree.

There is no exception under Cran-man for “tortious” conduct unless the State agent “acts willfully, maliciously, fraudulently, in bad faith, beyond his ... authority, or under a mistaken interpretation of the law.” Cranman, 792 So.2d at 405. Once a State agent demonstrates that a plaintiffs claims are based on conduct that occurred while the State agent was exercising his judgment, “ ‘the burden then shifts to the plaintiff to establish that the [State agent] acted in bad faith or with malice or willfulness in order to deny the [State agent] immunity from suit.’ ” Spivey, 846 So.2d at 333 (quoting Ex parte Davis, 721 So.2d 685, 689 (Ala.1998)). Because both Coach Nall and Coach Faulk demonstrated that their decisions regarding the safe conduct of the practice were an exercise of judgment in discharging their duty in educating students, the burden shifts to the Cannons to demonstrate that Coach Faulk acted with malice or willfulness in hitting the balls during the baseball practice.

“ ‘Willfulness’ is the conscious doing of some act or omission of some duty under knowledge of existing conditions accompanied with a design or purpose to inflict injury.” Instruction 29.01, Alabama Pattern Jury Instructions-Civil (2d ed.1993); see also Roe v. Lewis, 416 So.2d 750, 754 (Ala.1982) (willfulness “denotes an intention to cause an injury”). Similarly, malice is defined as “[t]he intent, without justification or excuse, to commit a wrongful act. ...” Black’s Law Dictionary, 968 (7th ed.1999). The Cannons have presented no evidence indicating that Coach Faulk acted with an intent, purpose, or design to inflict injury. While there is evidence that, if true, would indicate that at some point during the practice Coach Faulk was hitting the balls “hard,” there is no evidence indicating that doing so was outside the intended scope or nature of the practice drill. Therefore, Coach Faulk’s actions do not fall under this exception to State-agent immunity.

We hold that both Coach Nall and Coach Faulk were entitled to State-agent immunity. Therefore, the petition is granted and the trial court is directed to enter a summary judgment in their favor.

PETITION GRANTED; WRIT ISSUED.

HOUSTON, SEE, LYONS, JOHNSTONE, HARWOOD, and WOODALL, JJ., concur.

MOORE, C.J., dissents.

STUART, J., recuses herself.

      . The original complaint named the Escambia County Board of Education as a defendant. However, in an amended complaint filed on July 3, 2000, the Cannons dropped the Es-cambia County Board of Education from the action but added Bryant Smith as a defendant. Bryant Smith is not a party to this petition.

      . Our review is limited to whether Coach Nall and Coach Faulk are entitled to State-agent immunity; thus, we do not at this time address the issues raised in the briefs to this Court regarding whether the doctrines of contributory negligence or assumption of risk bar this action.

      . Our opinion in Spivey was released after Coach Nall and Coach Faulk filed this petition for the writ of mandamus. The Cannons’ brief, filed after the release of Spivey, candidly states: "After Spivey, it is reasonable that teachers should not be held liable for debatable failures to anticipate and correct all dangerous conditions in the school environment.” Cannons' brief at 17.


author: BROWN, Justice. HOUSTON, Justice HARWOOD, Justice LYONS, Justice

text:
    Ex parte WALTER INDUSTRIES, INC., and Black Warrior Methane Corporation. (In re: Sarah June Adams, as dependent widow of Gaston Earl Adams, Jr., deceased, and as personal representative of the estate of Gaston Earl Adams, Jr., deceased v. Walter Industries, Inc., and Black Warrior Methane Corporation) Ex parte Walter Industries, Inc., et al. and Ex parte George R. Richmond et al. (In re: Jacqueline Knox, in her individual capacity, and as dependent widow of John W. Knox, deceased v. Jim Walter Resources, Inc., et al.)
    1011467, 1020254, and 1020309.
    Supreme Court of Alabama.
    June 6, 2003.
    Rehearing Applications Denied Oct. 10, 2003.

      John H. Morrow, Philip J. Carroll III, and William Harold Albritton IV of Bradley Arant Rose & White, LLP, Birmingham, for petitioners Walter Industries, Inc., and Black Warrior Methane Corporation.
    Fournier J. Gale III, David M. Smith, Kevin W. Patton, and William L. Campbell, Jr., of Maynard, Cooper & Gale, P.C., Birmingham, for petitioners George R. Richmond, Jesse Cooley, Trent Thrasher, Mark Piper, and Tommy Spencer.
    G. Whit Drake and Sean C. Pierce of Drake & Shaw, Birmingham, for respondent Sarah June Adams.
    Tyrone C. Means, H. Lewis Gillis, and. Edward E. Angwin of Thomas, Means, Gillis & Seay, P.C., Montgomery, for respondent Jacqueline Knox.

      . Justice See did not attend oral arguments in these cases held on May 13, 2003; however, he has reviewed the videotape of the oral arguments.

   BROWN, Justice.

These three mandamus petitions have been consolidated for purposes of writing one opinion. We grant the petitions and issue the writs.

Facts and Procedural History

On September 23, 2001, 13 people died as a result of a mining accident in a mine owned and operated by Jim Walter Resources, Inc. (“JWR”), in Tuscaloosa County. Among those killed were John W. Knox and Gaston Earl Adams, Jr., employees of JWR.

A. Cases no. 102025U and 1020309

Jacqueline Knox, the widow of John W.Knox, is a resident of Jefferson County and lives in Bessemer. In April 2002, she sued George Richmond, Jesse Cooley, Trent Thrasher, Mark Piper, and Tommy Spencer, co-employees of Knox’s (hereinafter referred to collectively as “the co-employee defendants”), and Walter Industries, Inc. (“Walter”), JWR, and Black Warrior Methane Corporation (“BWM”) (hereinafter collectively referred to as “the corporate defendants”) in the Bessemer Division of the Jefferson Circuit Court. She contended that the co-employee defendants and the corporate defendants were liable under various legal theories for the death of her husband. JWR and BWM both have their principal places of business in Tuscaloosa County, while Walter’s principal place of business is in Tampa, Florida. At least two of the co-employee defendants live in Bessemer, another lives in Birmingham, and the remaining two live in Tuscaloosa County. The defendants moved to transfer the case to the Tuscaloosa Circuit Court, arguing that venue in the Bessemer Division of the Jefferson Circuit Court was improper, and alternatively that, if venue was proper there, the case should nonetheless be transferred to the Tuscaloosa Circuit Court pursuant to Ala.Code 1975, § 6-3-21.1 (the forum non conveniens statute). The trial court denied the motions. The co-employee defendants, in case no. 1020309, and the corporate defendants, in case no. 1020254, now petition this Court for writs of mandamus directing the trial court to transfer the case to the Tuscaloosa Circuit Court.

B. Case no. 101U67

Sarah June Adams, the widow of Gaston Earl Adams, Jr., is a resident of Jefferson County and lives in Bessemer. In October 2001, she sued Walter and BWM in the Bessemer Division of the Jefferson Circuit Court, alleging that both were liable for the death of her husband. Walter and BWM also moved the trial court to transfer thé case to the Tuscaloosa Circuit Court, and the trial court denied the motion. In case no. 1011467, Walter and BWM seek a writ of mandamus directing the trial court to transfer the case to the Tuscaloosa Circuit Court.

Standard of Review

“The question of proper venue for an action is determined at the commencement of the action.” Ex parte Pratt, 815 So.2d 532, 534 (Ala.2001). “If venue is not proper at the commencement of an action, then, upon motion of the defendant, the action must be transferred to a court where venue would be proper.” Ex parte Overstreet, 748 So.2d 194, 196 (Ala.1999). “A petition for a writ of mandamus is the appropriate means for challenging a trial court’s refusal to transfer an action and such a petition is due to be granted if the petitioner makes a clear showing of error on the part of the trial court.” Ex parte Alabama Power Co., 640 So.2d 921, 922 (Ala.1994). “In considering a mandamus petition, we must look at only those facts before the trial court.” Ex parte American Res. Ins. Co., 663 So.2d 932, 936 (Ala.1995).

Analysis

This case turns on the unique legal status of the Bessemer Division of the Jefferson Circuit Court. The Tenth Judicial Circuit, which consists of Jefferson County, is divided into two divisions — the Bessemer Division, also known as the Bessemer Cutoff, and the Birmingham Division. The Bessemer Division was created by Act No. 281, Ala. Acts 1892-93. Section 2 of that act provided:

“That the said circuit court, holding as above provided, shall have, exercise and possess all of the jurisdiction and powers which are now, or which may hereafter be conferred by law in the several circuit courts of this State, which said jurisdiction and power shall be exclusive in, limited to, and extend over that portion of the territory of the county of Jefferson, which is included in the following precincts, to-wit: [physical description of the Bessemer Division] and that from and over the above mentioned and described territory all jurisdiction and power exercised therein at the time of the passage of this act -by the circuit court of Jefferson county, as now held at Birmingham, and the common law jurisdiction and power, of the city court of Birmingham is hereby expressly excluded.”

(Emphasis added.) The constitutionality of that-act was upheld in Trieste & Co. v. Enslen, 106 Ala. 180, 17 So. 356 (1895). In Trieste & Co., this Court stated:

“The essence of the act indeed is nothing more or less than to provide for the holding of terms of the circuit court of Jefferson county at Bessemer for the trial of civil causes arising in a certain ’ defined part of said county; and this and nothing else is, to all common understanding, aptly expressed in the title of the enactment, and the several provisions thereof are cognate and referable to this one subject matter.”

106 Ala. at 186-87, 17 So. at 358 (emphasis added). Although that act was subsequently repealed, see Act No. 1055, Ala.Acts 1900, it was reenacted in 1919 by Act No. 213, Ala. Local Acts 1919. Section 2 of the 1919 act reenacted section 2 of the original act without a substantive change in wording (the 1919 act is hereinafter referred to as “the Act”).

After Trieste & Co., the Bessemer Division and the Birmingham Division were treated, in effect, as two counties for purposes of venue. See Ex parte Kemp, 232 Ala. 434, 168 So. 147 (1936); Ex parte Fairfield-American Nat’l Bank, 223 Ala. 252, 135 So. 447 (1931). If, under the general venue statutes, venue was appropriate in either division, then the plaintiff could elect to bring a case in the division of his choice. Kemp, 232 Ala. at 435-36, 168 So. at 148-49. No limitation on the powers of the Bessemer Division was acknowledged. Id. (“We do hot read in the act of 1919 any more specific requirement as to the venue of suits in Bessemer than if it were in a different county from Birmingham.”).

Kemp and Fairfield-American National Bank, however, were overruled by Ex parte Central of Georgia Railway, 243 Ala. 508, 10 So.2d 746 (1942). In Central of Georgia Railway, the defendant in a wrongful-death action sought a writ of mandamus ordering the trial court to transfer the case from the Bessemer Division to the Birmingham Division. Because the cause of action arose in the Birmingham Division, the defendant argued, venue in the Bessemer Division was improper.

The Court in Central of Georgia Railway noted that section 2 of the Act controlled the “territorial jurisdiction” of the Bessemer Division. After examining the history of the 1893 and 1919 acts, as well as our previous holding in Trieste & Co., supra, the Court stated:

“Reading the legislative mind from the Act of 1919 as a whole, we are impressed that Section 2 thereof, which is the law to this day, means- that civil suits at law can properly be brought at Bessemer only in cases arising in the Bessemer District, meaning ‘civil causes arising’ therein, to use the words of Triest[e] & Co. v. Enslen, [106 Ala. 180, 17 So. 356 (1895) ].
“The purpose of our several legislative acts providing for holding terms of the circuit court at places other than the county seat is for the convenience of the people in the district defined by statute. In the Act before us, as construed by this court soon after its passage, this convenience was deemed to be best conserved by giving exclusive jurisdiction of civil suits based upon causes of action arising in the Bessemer District, and limited to causes of action arising therein. The [A]ct does not deal with what suit's may properly be brought in Jefferson County under the general venue laws of Alabama. The Constitution and statutes prescribe the county or counties in which the several classes of actions may be brought. The statute before us deals with the venue as between divisions of the circuit court, each with like jurisdiction over the subject matter, but held at different places in the county. To make clear that the general venue laws should not be construed into these statutes, the lawmakers wrote into the chapter on Venue of Actions the following: ‘§ 64. Local laws in counties having two courthouses unaffected. — In all counties having two courthouses, the provisions of this chapter shall not affect any local laws relating to venue in force at the adoption of this Code.’ [Ala.Code 1975, § 6-3-10].
“Clearly all suits maintainable in Jefferson County under the general venue statutes are still maintainable in that county. All such suits not maintainable in Bessemer are properly brought in Birmingham, the county seat. Since the venue of suits in the Bessemer Division of the circuit court is limited to suits upon causes of action arising within the territorial jurisdiction of that court, suits upon all causes of action not arising therein must be brought in Birmingham.
“This, it seems to us, gives effect to the terms of the statute to the effect that the court at Bessemer has exclusive jurisdiction of all civil actions at law upon causes of action arising in the territorial jurisdiction of that court, and such jurisdiction is limited to suits upon causes of action arising within such territory.”

243 Ala. at 512-13, 10 So.2d at 749-50 (emphasis added). Because the cause of action in Central of Georgia Railway did not arise in the territorial boundaries of the Bessemer Division, the Court held that the defendants were entitled to have the case transferred to the Birmingham Division. Id.

In the years following Central of Georgia Railway, this Court has consistently held that, unless the issue is waived,- the Bessemer Division can hear only cases that have “arisen” within the territorial boundaries of that division. See Seaboard Surety Co. v. William R. Phillips & Co., 279 Ala. 510, 512, 187 So.2d 264, 266 (1966) (opinion on application for rehearing)(noting that the Act limits the “territorial, jurisdiction” of the Bessemer Division to cases that “arose” in that division); Ex parte Southern Building Code Congress, 282 Ala. 523, 213 So.2d 365 (Ala.1968)(hold-ing that the Act limits the jurisdiction conferred on the Bessemer Division to causes of action that arose there); Mead Corp. v. City of Birmingham, 295 Ala. 14, 321 So.2d 655 (1975)(same); MetroBank v. Reid, 374 So.2d 296 (Ala.1979)(same); and Ex parte Fields, 432 So.2d 1290, 1292 (Ala.1983)(“the Bessemer Division is given exclusive jurisdiction of civil suits based upon causes of action arising in the Bessemer Division and limited to causes of action arising therein”). In upholding the dismissal of cases improperly filed in the Birmingham Division of the Jefferson Circuit Court, this Court stated:

“We opine that the legislature, in enacting Section 2, Local Act No. 213, in effect created two circuit courts within one county. By the Act, the Circuit Court holding in Bessemer was given the same power exercised by the Tenth Judicial Circuit, but it could, exercise such power only for actions arising in its territorial boundary.”

United Supply Co. v. Hinton Constr. & Dev., Inc., 396 So.2d 1047, 1050 (Ala.1981).

In Glenn v. Wilson, 455 So.2d 2 (Ala.1984), Justice Shores noted that some of the cases interpreting the effect of the Act “are less than clear - and seem to confuse venue and jurisdiction by use of the term ‘territorial jurisdiction.’ ” 455 So.2d at 4. Justice Shores concluded,, “The Bessemer Cutoff legislation does not diminish the general jurisdiction of the other circuit courts, either in Jefferson or other counties”; instead, cases filed in the wrong division were subject to transfer, unless the parties waived the venue issue. Id. at 4-5. Subsequent decisions on the Bessemer/Birmingham Division venue issue have concluded that the Act controls venue between the divisions. See Ex parte World Omni Fin. Corp., 491 So.2d 236, 237 (Ala.1986)(“Venue in this case is controlled by' the local act creating the Bessemer Division.”); Ex parte Jackson, 516 So.2d 768, 769 (Ala.1986)(agreeing that the Act “should be read as venue legislation rather than jurisdiction legislation and that the two divisions should be treated as if they were two separate counties”); Ex parte Johnson, 692 So.2d 843, 845 (Ala.Civ.App.1997)(“It is well established that the Bessemer Division is, in fact, a separate and distinct circuit with the same power exercised by the Tenth Judicial Circuit, ... and that the legislation creating the two divisions in Jefferson County is ‘venue’ legislation rather than ‘jurisdiction’ legislation.”).

The petitioners in this case allege that the plaintiffs’ causes of action arose outside of the Bessemer Division. In Ex parte Fields, this Court discussed where a cause of action “arises” within the context of the Act. In that case, the Jefferson County Planning and Zoning Commission had rezoned a parcel of property lying in the Bessemer Division. Certain residents of the Bessemer Division challenged the rezoning ordinance in that court. The defendant, U.S. Steel, filed a motion to transfer the action to the Birmingham Division, arguing that the action did not “arise” in the Bessemer Division.. In determining where the action arose, the Court stated:

“In Seaboard Surety Co. [v. William R. Phillips & Co., 279 Ala. 510, 187 So.2d 264 (1966)], this court applied the general principles regarding the place 'where a cause of action arises as expressed in 92 C.J.S. Venue § 80, in determining the jurisdiction of the Bessemer Division. This court said:

“ ‘At 92 C.J.S. Venue' § 80, p., 776, speaking of statutes fixing venue as the county “where the cause of action arises” it is noted:
“ ‘ “A cause of action, within the meaning of statutes fixing the venue as the county where the cause of action arises has been said to consist of a duty on the part of one toward another and the violation or breach of that duty, or of plaintiffs primary right and the act. or omission of defendant.... It ai*ises when that is not done which should have been done, or that is done which should not have been done.... [Tjbe cause of action accrues in the county in which defendant’s wrongful act was done.”
“ ‘Relating these general principles to the case at hand, it seems reasonable to us .... that ... the cause of action “arose” within the meaning of the Bessemer Division Act within the Bessemer Division.’
279 Ala. at 513, 187 So.2d at 267. These general principles control in the case before us. Applying these principles, we opine that the alleged wrong for which the petitioners seek redress occurred-in the Birmingham Division, and, thus, the cause of action arose there.”

Ex parte Fields, 432 So.2d at 1292-93. See also Winn-Dixie Montgomery, Inc. v. Bryant, 421 So.2d 1254, 1256 (Ala.1982)(noting, in a case involving the Act, that “a case arises wherever the alleged wrong occurs”); Ex parte Central of Georgia Ry., 243 Ala. at 511, 10 So.2d at 748 (holding that a wrongful-death action arose at the time and place of the injury causing the death).

All of the cases this Court uncovered that address the issue of the propriety of maintaining an action in the Bessemer Division deal with factual situations in which the cause of action arose in either the Bessemer Division or the Birmingham Division — i.e., in Jefferson County. In this case, the “alleged wrong for which the petitioners seek redress” occurred not in the Bessemer Division, but in Tuscaloosa County. No case, as far as this Court can determine, has addressed the issue presented in this case- — whether venue in the Bessemer Division is proper in a case where the cause of action arose outside Jefferson County.

It is clear that, in creating the Bessemer Division, the Legislature specifically limited the powers of that division. This Court’s first decision on the issue, Trieste & Co., recognized this limitation and held that the Jefferson Circuit Court, sitting in the Bessemer Division, could hear only cases “arising” in the territorial boundaries of the division. While at times this limitation has been described as jurisdictional, this Court has recognized since Glenn v. Wilson, supra, that the limitation in the Act is one of venue. In sum, the voluminous caselaw on this issue clearly holds that venue for an action filed in Jefferson County is proper in the Bessemer Division only if the cause of action “arose” in that division.

In determining whether venue in this ease is proper in the Bessemer Division, we are guided by this Court’s opinion in Ex parte Alabama Mobile Homes, Inc., 468 So.2d 156 (Ala.1985). In Alabama Mobile Homes, this Court employed a two-step analysis to determine whether an action should be brought in the Bessemer Division. First, we must determine whether Jefferson County is the proper venue for the action. Id. at 161. If the case was properly brought in Jefferson County, then

“we must determine which of the two divisions the case should have been filed in. An action must be brought in Bessemer if it ‘arises’ within the territorial boundaries of the Bessemer Cutoff. Local Act No. 213, § 2, p. 62, Ala. Acts 1919. All suits maintainable in Jefferson County which do not arise in Bessemer should be brought in the Birmingham Division.”

468 So.2d at 161-62 (emphasis added).

The parties in these cases dispute, without much discussion, whether venue is proper in Jefferson County. However, assuming, without deciding, that venue in Jefferson County is proper, we hold that venue in the Bessemer Division is not proper because the plaintiffs’ claims did not “arise” within the territorial boundaries of that division. Id. at 162. See also United Supply Co., 396 So.2d at 1050 (the Bessemer Division may exercise its power “only for actions arising in its territorial boundary”); Central of Georgia Ry., 243 Ala. at 512, 10 So.2d at 749 (“civil suits at law can properly be brought at Bessemer only in cases arising in the Bessemer District”). Therefore, even if venue in these cases is proper in Jefferson County, venue is improper in the Bessemer Division. The actions belong instead, assuming venue is proper in Jefferson County, in the Birmingham Division.

The petitioners, however, did not ask that the actions be transferred to the Birmingham Division of Jefferson County; instead, they requested that the actions be transferred to Tuscaloosa County. It is undisputed that Tuscaloosa County is a proper venue — it is the county in which the “act or omission complained of’ and “a substantial part of the events or omissions giving rise to the claim” occurred. Ala. Code 1975, §§ 6-3-2(a)(3) and 6-3-7(a)(1). When a plaintiff commences an action in an improper forum, the defendant may move for a transfer to a proper forum. Ex parte Alfa Mut. Gen. Ins. Co., 806 So.2d 367, 369 (Ala.2001); see also Ala.Code 1975, § 6-3-21. The defendants have demonstrated that the Bessemer Division is an improper forum; therefore, the defendants were entitled to a transfer of the actions to the Tuscaloosa Circuit Court. Ala.Code 1975, § 6-3-21. The defendants have demonstrated that the trial court erred in refusing to transfer the actions; accordingly, the petitions are granted. Alabama Power Co., 640 So.2d at 922.

PETITIONS GRANTED; WRITS ISSUED.

SEE, WOODALL, and STUART, JJ., concur.

HOUSTON and HARWOOD, JJ., concur specially.

MOORE, C.J., and LYONS and JOHNSTONE, JJ., dissent.

HOUSTON, Justice

(concurring specially).

Pursuant to a motion filed by the defendants on November 27, 2001, to dismiss the actions or, in the alternative, to transfer venue, the trial court for the Bessemer Division transferred case no. 1011467 to the Tuscaloosa Circuit Court on December 26, 2001.

On January 23, 2002, Sarah June Adams, the plaintiff in case no. 1011467, filed a motion in the Jefferson Circuit Court, Bessemer Division (“Bessemer Division”), to reconsider the transfer of the action to the Tuscaloosa Circuit Court, and on March 15, 2002, the Bessemer Division trial court entered the following order: “Motion to reconsider is granted and case is not transferred.”

Whether the Bessemer Division trial court had the power to set aside its order transferring the case is a concern of mine. See Ex parte MedPartners, Inc., 820 So.2d 815, 821 (Ala.2001). However, even if the Bessemer Division trial court did not have such power, a petition for a writ of mandamus directed to the transferor court (in this case the Bessemer Division) is the proper procedure to challenge the trial court’s granting of the motion to reconsider and the trial court’s refusal to transfer. Since the majority opinion holds that the petition in this case should be granted, I concur.

HARWOOD, Justice

(concurring specially).

I concur fully with the main opinion. I write further only to make the following observations.

Section 12-11-11, Ala.Code 1975, provides:

“Whenever it shall appear to the court that any case filed therein should have been brought in another court in the same county, the court shall make an order transferring the case to the proper court, and the clerk or register shall forthwith certify the pleadings, process, costs and order to the court to which the case is transferred, and the case shall be docketed and proceed in the court to which it is transferred, and the costs accrued in the court in which the case was originally filed shall abide by the result of the case in the court to which transferred.”

“This statute vests in the court the power to order a transfer on his own motion....” Ex parte Central of Georgia Ry., 243 Ala. 508, 513, 10 So.2d 746, 750 (1942). Civil actions for which venue is otherwise proper in Jefferson County, but which are filed in the wrong division — either in the Bessemer Division or in the Birmingham Division — “are subject to transfer to the proper division pursuant to the provisions of § 12-11-11, [Ala.] Code 1975.” Glenn v. Wilson, 455 So.2d 2, 4 (Ala.1984). Nonetheless, where the trial judge does not order such a transfer on his or her own volition, the right of a defendant to have the case transferred between divisions can be waived and lost if the defendant proceeds inconsistently with that option. See Central of Georgia Ry., 243 Ala. at 513, 10 So.2d at 750; Glenn v. Wilson, 455 So.2d at 4-5.

In the present cases, as far as is revealed in the respective petitions, briefs, and answer filed by the parties, no one asked the trial judge to transfer either case to the Birmingham Division. Rather, the defendants sought a transfer only to Tuscaloosa County, and the two plaintiffs sought only to have their cases remain in the Bessemer Division. Unlike Ms. Knox, Ms. Adams mentions § 12-11-11 to this Court, stating in her answer to the petition for the writ of mandamus filed by Walter Industries, Inc., and Black Warrior Methane Corporation that “if this Court determines that venue is improper because of the Bessemer Act, then this action should be transferred to the Birmingham Division pursuant to the case law interpreting the Act and Alabama Code § 12-11-11 (for actions commenced in the wrong ‘division’ of a county).” Such a request, apparently never made to the trial court, comes too late to alter the right of the defendants to have the cases transferred to Tuscaloosa County. See § 6-3-21, Ala.Code 1975 (“A defendant in a civil action may move for a transfer of venue as provided in the Alabama Rules of Civil Procedure.”), and Rule 82(d)(3), Ala. R. Civ. P. (“In the event the venue of the action is ... improper and venue is appropriate in more than one other court, ... multiple defendants, by unanimous agreement, shall have the right to select such other court to which the action shall be transferred.... ”). Even if we assume that venue could properly have been laid in the Birmingham Division of the Jefferson Circuit Court for either or both cases, Tuscaloosa County is indisputably also a proper venue, as the main opinion explains.

LYONS, Justice

(dissenting).

In Ex parte Central of Georgia Railway, 243 Ala. 508, 512, 10 So.2d 746, 750 (1942), this Court held: “Clearly all suits maintainable in Jefferson County under the general venue statutes are still maintainable in that county.” Sarah June Adams, the plaintiff in case no. 1011467, argues that because venue is good in Jefferson County and because the action was brought in Jefferson County, albeit in the Bessemer Cutoff, the defendants’ privilege of selecting another county to which the action should be transferred pursuant to Rule 82(d)(3), Ala. R. Civ. P., has not yet accrued. I was almost persuaded by this argument; however, I find § 6-3-7(d), Ala. Code 1975, to be an insurmountable obstacle.

Section 6-3-7(d), amended in 1999, provides as follows:

“(d) Notwithstanding Section 6-3-10, or any local laws relating to venue, in any county having two courthouses, the divisions' shall be treated as two separate judicial districts for purposes of venue and for purposes of any change or transfer of venue, unless the jury venire is drawn from throughout the entire' county.”

(Emphasis added.)

At first I was troubled by the reference in § 6-3-7(d) to “two separate judicial districts” as opposed to “two séparate judicial circuits” or “two separate counties.” However, in Ex parte Longmire, 584 So.2d 503 (Ala.1991), this Court construed a local act creating separate divisions in St. Clair County, a single-county circuit, holding that “the Act does not create two separate judicial districts for purposes of venue.” 584 So.2d at 505. (emphasis added). Because the phrase “two separate judicial districts” as used in Ex parte Longmire refers to .two separate parts of a single-county circuit, I am persuaded that the reference in § 6-3-7(d) to “two separate judicial districts” refers to two separate parts of the same county. Pursuant to § 6-3-7(d), the Bessemer Cutoff must be treated as a county unto itself. This result comports with the determination reached by the Court of Criminal Appeals in Agee v. State, 465 So.2d 1196, 1204 (Ala.Crim.App.1984). In Agee, in the context of venue in criminal cases, that court held as follows:

“We are convinced that, in criminal actions, the Bessemer court legislation should be read as venue legislation and the two divisions treated as if two separate counties existed. See Shell v. State, 2 Ala.App. 207, 56 So. 39 (1911).”

Treating the Bessemer Cutoff as a county unto itself for venue purposes, as § 6-3-7(d) requires, one could conclude that venue in the Bessemer Division was improper and that the defendants’ privilege of selecting another court to which the action should be transferred pursuant to Rule 82(d)(3), Ala. R. Civ. P., has accrued if the construction given to § 2 of the act initially creating the Bessemer Cutoff, Act No. 281, Ala. Acts 1892-93 (“the Act”), in Ex parte Central of Georgia Railway applies to the circumstances here presented. I do not, however, believe that it does.

Section 2 of the Act provides:

“That the said circuit court, holding as above provided, shall have, exercise and possess all of the jurisdiction and powers which are now, or which may hereafter be conferred by law in the several circuit courts of this State, which said jurisdiction and power shall be exclusive in, limited to, and extend over that portion of the territory of the county of Jefferson, which is included in the following precincts, to-wit: ... and that from and over the above mentioned and described territory all jurisdiction and power exercised therein at the time of the passage of this act by the circuit court of Jefferson county, as now held at Birmingham, and the common law jurisdiction and power of the city court of Birmingham is hereby expressly excluded.”

In Ex parte Central of Georgia Railway, this Court interpreted the foregoing section of the Act to mean that “the court at Bessemer has exclusive jurisdiction of all civil actions at law upon causes of action arising in the territorial jurisdiction of that court, and such jurisdiction is limited to suits upon causes of action arising within such territory.” 243 Ala. at 513, 10 So.2d at 750 (emphasis added).

I am not the first Justice on this Court who has had reservations as to how we got from the language of the Act to the current construction. In his dissent in Ex parte Central of Georgia Railway, Justice Foster stated:

“I think as an original proposition, the Act could very well be construed on either of two theories. One that the venue statute should apply as though it created a separate county; and, another, that it was intended to confine them [causes of action that may arise in the Bessemer Division] to that court and eliminate the Birmingham court from considering causes which arose in the Bessemer Division, though the parties may all reside in Birmingham, and though if they resided in another county, it would not exclude that county as being the proper venue.
“That being the situation, this Court deliberately accepted the former theory [that the venue statute should apply as though it created a separate county] in Ex parte Fairfield-American Nat. Bank, 223 Ala. 252, 135 So. 447, decided in 1931.”

243 Ala. at 514, 10 So.2d at 751. Justice Foster then criticized the majority for overruling Ex parte Fairfield-American National Bank, 223 Ala. 252, 135 So. 447 (1931), and challenged the validity of relying upon Trieste & Co. v. Enslen, 106 Ala. 180, 17 So. 356 (1894), because “[t]hat case did not consider venue, and had no such thought insofar as there manifested.” 243 Ala. at 515, 10 So.2d at 752.

We are now asked to apply the construction of § 2 limiting venue in the Bessemer Cutoff to claims arising in the Cutoff to a case that did not arise in either the Bessemer Division or the Birmingham Division of Jefferson County. None of the cases in which this rule has been applied deal with a claim arising in a county other than Jefferson County. If we apply this reading of § 2 to cases arising outside Jefferson County, we will have created narrower venue for Alabama citizens who happen to reside in the Bessemer Cutoff than is applicable to all other citizens of this State. I am reluctant to endorse such disparate treatment unless a clear legislative command requires such a result. I cannot conclude that stare decisis requires application of the rule urged on us by the defendants where the factual footing for the rule — claims arising in different parts of Jefferson County — is not present in this case.

Justice Foster noted that the alternative rule accepted by the majority in Ex parte Central of Georgia Railway confined causes of action that may arise in the Bessemer Division to that court and eliminated the Birmingham Division from considering causes of action that arose in the Bessemer Division, though the parties may all reside in Birmingham. Here we are not concerned with eliminating the Birmingham Division from considering a cause of action that arose in the Bessemer Cutoff. As previously noted, we are here dealing with a cause of action that did not arise in either division of Jefferson County.

Rather than apply to significantly different circumstances what is at best a less than obvious response to a legislative command, I would interpret § 2 of the Act as though it created a separate county for venue purposes in the context of claims not arising in Jefferson County. Section 2, after having provided that “jurisdiction and power shall be exclusive in, limited to, and extend over that portion of the territory of [the Bessemer Cutoff,]” concludes with the statement that “all jurisdiction and power exercised therein at the time of the passage of this act by the circuit court of Jefferson county, as now held at Birmingham, and the common law jurisdiction and power of the city court of Birmingham is hereby expressly excluded.” (Emphasis added.) I would interpret the references to exclusivity in § 2 as exclusive of that portion of Jefferson County not in the Bessemer Cutoff, and not exclusive of claims that might otherwise be appropriate under general venue laws not in conflict with the provisions for exclusivity within the divisions of Jefferson County. Under this construction of § 2, citizens residing in the Bessemer Cutoff would enjoy the same venue privileges of all other citizens with respect to claims arising outside of the county in which they reside. The defendants, relying solely on the claim’s having arisen outside the Bessemer Cutoff, have failed to demonstrate improper venue.

With respect to the denial of the motion to transfer venue pursuant to § 6-3-21.1, Ala.Code 1975, for the convenience of parties and witnesses or in the interest of justice, I would deny the petition for failure of the defendants to show a clear legal right to such relief.

JOHNSTONE, J., concurs.

      . The Act was amended in 1943, see Act No. 199, Ala. Local Acts 1943. Again section 2 was reenacted without a substantive change in wording.

      . Act No. 99-249, Ala. Acts 1999.

      . As the main opinion notes, the Act was repealed in 1900 and then reenacted in 1919 by Act No. 213, Ala. Local Acts 1919. The 1919 version of the Act reenacted § 2 without any pertinent changes in wording.