author: MYERS, J.,

text:
    Charles Sylvester BELL, Appellant v. STATE of Mississippi, Appellee.
    No. 2002-CP-01627-COA.
    Court of Appeals of Mississippi.
    May 18, 2004.
    Rehearing Denied Aug. 24, 2004.
    Certiorari Denied Nov. 18, 2004.
    Charles Sylvester Bell, appellant, pro se.
    Office of the Attorney General by Jean Smith Vaughan, attorney for appellee.
   MYERS, J.,

for the Court.

¶ 1. Charles Sylvester Bell, pro se, appeals from an order entered in the Circuit Court of Forrest County, denying his motion for post-conviction relief. Bell raises two issues on appeal: 1) whether he waived his double jeopardy claim by pleading guilty to armed robbery and 2) whether double jeopardy occurred in violation of his constitutional rights when he was re-indicted for the same armed robbery which secured his conviction of capital murder. We conclude that Bell’s motion was a second attempt to gain post-conviction relief that did not fall within any statutory exceptions to the provision that bars subsequent filings once one motion has been decided by the court and was filed beyond the three-year time limit. As such, Bell’s claim is proeedurally barred.

STATEMENT OF FACTS

¶ 2. The pertinent facts of this case are recited in Bell v. State, 751 So.2d 1035 (Miss.1999). This is the fifth time our appellate courts have reviewed Bell’s case. Bell v. State, 751 So.2d 1035 (Miss.1999); Bell v. State, 726 So.2d 93 (Miss.1998); Bell v. State, 353 So.2d 1141 (Miss.1977); Bell v. State, 360 So.2d 1206 (Miss.1978); see also Bell v. Watkins, 692 F.2d 999 (5th Cir.1982), cert. denied snib. nom. Bell v. Thigpen, 464 U.S. 843, 104 S.Ct. 142, 78 L.Ed.2d 134 (1983).

¶ 3. In March of 1977, Bell was indicted for capital murder for the killing of D.C. Haden while in the commission of the crimes of armed robbery and kidnaping in violation of Mississippi Code Annotated Section 97-3-19(2)(e). Bell, 751 So.2d at 1036(¶ 3). Mississippi Code Annotated Section 99-19-81, providing for the sentencing of habitual criminals to maximum terms of imprisonment, was enacted by the 1976 Legislature, effective from and after January 1, 1977. The crimes occurred on June 22,1976.

¶ 4. Bell was convicted of capital murder and sentenced to death. On appeal, Bell’s death sentence was overturned by the United States Court of Appeals for the Fifth Circuit in 1982. See Bell v. Watkins, 692 F.2d 999 (5th Cir.1982). After his death sentence was overturned, Bell was re-indicted for armed robbery as an habitual offender in July of 1984. On August 9, 1984, Bell entered a plea of guilty to armed robbery as an habitual offender. The State recommended life imprisonment rather than the death penalty for Bell’s capital murder conviction. The trial court accepted the State’s recommendation and sentenced Bell to life imprisonment for the capital murder and twenty-five years for the armed robbery.

¶ 5. In February 1996, Bell filed his first motion for post-conviction relief with the Forrest County Circuit Court. In that motion, Bell argued that he had an unconstitutional ex post facto law claim because he was indicted with enhanced penalties in 1984, under a 1977 statute for a crime that occurred in 1976. See Bell v. State, 726 So.2d at 94(¶ 9). The circuit court denied his motion for post-conviction relief and Bell appealed to the supreme court which remanded the case for further proceedings to determine whether Bell knowingly and voluntarily waived his ex post facto claims. Id. at 95 (¶ 11). On remand, the circuit court found that Bell knowingly and voluntarily waived his ex post facto claims. See Bell, 751 So.2d at 1036(¶5). Bell again appealed to the supreme court which affirmed the decision of the lower court to deny Bell’s motion for post-conviction relief. Id. at 1038 (¶ 12).

¶ 6. Bell filed a second motion for post-conviction relief which he titled “Motion to Vacate and Set Aside Conviction and Sentence” based on a double jeopardy claim. Bell asserts that the trial court committed reversible error by sentencing him for armed robbery since that same crime was the underlying felony used to elevate the killing of D.C. Haden to capital murder. Section 99-39-27(9) states: “The dismissal or denial of an application under this section is a final judgment and shall be a bar to a second or successive application under this chapter.” Miss.Code Ann. § 99-39-27(9) (Rev.2000). Hence, Bell’s second motion is procedurally barred unless it fits within an enumerated statutory exception. The statute provides:

Likewise excepted from this prohibition are those cases in which the prisoner can demonstrate either that there has been an intervening decision of the Supreme Court of either the State of Mississippi or the United States which would have actually adversely affected the outcome of his conviction or sentence or that he has evidence, not reasonably discoverable at the time of trial, which is of such nature that it would be practically conclusive that has such been introduced at trial it would have caused a different result in the conviction or sentence.

Miss.Code Ann. § 99-39-27(9) (Rev.2000). Bell cites no intervening cases or newly discovered evidence which would except his claim from the procedural bar.

¶ 7. Bell’s motion is also time barred as it does not fall within the three year time limitation. Section 99-39-5(2) states, in part: “a motion for relief under this chapter shall be made within three years after the time in which the prisoner’s direct appeal is ruled upon by the Supreme Court of Mississippi or ... in case of a guilty plea, within three (3) years after entry of the judgment of conviction.” Miss.Code Ann. § 99-39-5(2) (Supp.2002). Bell filed his second motion on December 4, 2001, and his guilty plea was entered on August 9, 1984. Thus, Bell’s second motion for post-conviction relief is time barred as well.

¶ 8. THE JUDGMENT OF THE CIRCUIT COURT OF FORREST COUNTY DENYING THE MOTION FOR POST-CONVICTION RELIEF IS AFFIRMED. ALL COSTS OF APPEAL ARE ASSESSED TO FORREST COUNTY.

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


source: Caselaw Access Project

author: KING, C.J.,

license: Public Domain

text:
    Ray KIRK, Appellant v. James O. CRUMP, Individually and in his Official Capacity as Deputy Sheriff of Tunica County, Mississippi, John Pickett, III, Individually and in his Official Capacity as Sheriff of Tunica County, Mississippi, and the County of Tunica, Mississippi, a Political Subdivision of the State of Mississippi, Appellees.
    No. 2002-CA-02101-COA.
    Court of Appeals of Mississippi.
    June 29, 2004.
    Rehearing Denied Sept. 7, 2004.
    Certiorari Denied Nov. 18, 2004.

      Dennis L. Horn, Madison, Joseph C. Gibbs, Clarksdale, attorneys for appellant.
    John S. Hill, Tupelo, Holly Stubblefield Mathews, Oxford, attorneys for appellees.
    Before KING, C.J., THOMAS and MYERS, JJ.
   KING, C.J.,

for the Court.

¶ 1. The Tunica County Circuit Court dismissed with prejudice Raymond Kirk’s complaint against James Crump, and others, as both individuals and as officials of Tunica County. Aggrieved by this dismissal, Kirk has appealed. Kirk’s issues on appeal will be stated as addressed.

STATEMENT OF FACTS

¶2. On February 27, 1998, at approximately 7:00 p.m. Raymond Kirk checked into the Gold Strike Casino in Tunica, Mississippi. Kirk, a resident of Georgia, had come to Tunica to attend the Mid-South Gin Show in Memphis, Tennessee on behalf of the agricultural products company for which he worked.

¶ 3. Kirk checked into his room and after “freshening up” went downstairs to eat dinner. After dinner, Kirk proceeded to the casino and played Caribbean poker and blackjack for approximately two hours. According to Kirk, after having lost several hundred dollars and drinking not more than five beers, he took a seat in one of Gold Strike’s private poker rooms. Kirk won between three and four hundred dollars playing poker.

¶ 4. At about 2 a.m., after receiving a report that Kirk had threatened to kill a dealer, Jimmy Burns, the casino night shift security supervisor, approached Kirk and asked him to leave the casino. Kirk refused to leave the area and demanded that he be given the opportunity to confront his accuser. After about ten minutes of arguing, Kirk agreed to accompany Burns to a casino detention room.

¶ 5. The remaining portion of the disturbance occurred in the casino detention room, and was captured on the casino surveillance video tape. The tape indicated that Kirk denied having threatened anyone, and demanded the opportunity to confront his accusers. Casino personnel declined to set up a confrontation with Kirk’s accusers, and again asked Kirk to leave the casino. After they were informed that Kirk had already checked into a room at the Gold Strike, Burns asked Kirk to retire to his room for the night. Kirk refused and repeatedly stated that the casino had to give him the opportunity to confront his accusers, or he wanted to be taken to jail.

¶ 6. Burns contacted the Tunica County Sheriffs Office, which dispatched Deputy James Crump to Gold Strike.

¶ 7. After Burns walked back into the detention room the video indicates that the following dialogue ensued:

BURNS: You are telling me that you’re not going to your room for the rest of the night. Is that what you are telling me?
KIRK: I want the person who said I threatened to kill somebody .... [to Burns] you lighten up now man.
BURNS: I am not doing that.
KIRK: Do you know what kind of trouble you’re in right now?
BURNS: Ok, listen to me.
KIRK: You bring that person in here right now. I’m not going anywhere.
BURNS: I am not doing that.
KIRK: You better do it.
BURNS: Not doing it.
KIRK: I’m going to jail.
BURNS: Yes, sir.
KIRK: Alright, let’s go.
BURNS: Just have a seat right there.
KIRK: I’m going to jail.
BURNS: Have a seat right there, they’re on their way.

¶ 8. After a few minutes, Officer Crump entered the detention room, and immediately asked Kirk for his driver’s license. Kirk asked what he was being charged with, and Officer Crump replied “trespassing and disorderly conduct.” As Kirk attempted to explain the situation, Officer Crump directed Kirk to stand up. Kirk demanded several times to see the charges against him, claiming he had the right to see the charges on paper. Officer Crump never produced any paperwork, but instead handcuffed Kirk. After Kirk was already in handcuffs and under arrest, a casino security guard read him the elements of a trespassing “warning” from the Mississippi Code, and told him that if he did not leave the casino he would be arrested. The video indicated that Kirk in no way resisted being placed under arrest.

¶ 9. Casino security requested that Kirk submit to a photograph for future reference by casino personnel. This photograph would be used to exclude Kirk from casino properties operated by Gold Strike. This practice is commonly called an “86” picture. Kirk refused to take the picture, and stated “we’re not in jail” and “you’re not going to take a picture of me now,” then turned and faced the wall. Several times Officer Crump directed Kirk to submit to the photograph. After Kirk declined to submit to the photograph for Gold Strike, Officer Crump grabbed Kirk’s arm and attempted to pull him around to face the camera. Kirk, who was still handcuffed, pulled away and moved further down the wall. Officer Crump then stepped behind Kirk, placed him in a choke hold, and slammed him to the floor. As Kirk lay on his side with his hands cuffed behind his back, Officer Crump held his head upward, and the casino personnel took the “86” picture of Kirk. Officer Crump then pulled Kirk into a sitting position and held his head up for another “86” picture. Afterwards, as Kirk lay motionless on the floor, Officer Crump yelled at him again to stand up, and stated “you better stand up or it’s going to hurt worse.”

¶ 10. Kirk was transported to the Tuni-ca County Sheriffs Department, and booked for disorderly conduct and trespassing. Kirk remained in jail overnight and posted bail the next morning.

¶ 11. Subsequent to Kirk’s release from jail, Gold Strike Casino filed an affidavit in the Justice Court of Tunica County charging Kirk with the misdemeanors of trespassing and disorderly conduct. Officer Crump also filed charges against Kirk for assault and resisting arrest. The justice court convicted Kirk of trespassing, but the disorderly conduct charge was dismissed. Officer Crump failed to appear for trial, and the assault and resisting arrest charges which he filed against Kirk were also dismissed.

¶ 12. On February 24,1999, Kirk filed a complaint against James Crump, individually and in his official capacity as deputy sheriff of Tunica County; John Pickett, III individually and in his official capacity as Sheriff of Tunica County; and the County of Tunica, Mississippi, in the Circuit Court of Tunica County. On May 25, 1999, Kirk filed his first amended complaint in the circuit court.

¶ 13. On August 4, 2000, the circuit court dismissed all claims against Sheriff John Pickett, III in his individual capacity, and also all of Kirk’s claims for punitive damages, prejudgment interest, and attorney fees. The circuit court gave Kirk thirty days to amend his complaint and articulate a cause of action against the Sheriff in his individual capacity and explain why he was entitled to punitive damages, prejudgment interest or attorney fees.

¶ 14. On September 1, 2000, Kirk filed a second amended complaint against Sheriff Pickett in his individual capacity, and renewed his claims for prejudgment interest, attorney fees, and punitive damages. In his second amended complaint Kirk also added as a defendant, Western Surety Bonding Company.

¶ 15. On October 18, 2000, Sheriff Pickett and Deputy Crump filed a renewed joint motion to dismiss all claims against Sheriff Pickett in his individual capacity, and all claims for prejudgment interest, attorney fees, and punitive damages. On February 6, 2001, the trial judge again granted the defendants’ motions, and dismissed all claims against Sheriff Pickett in his individual capacity, all claims for attorney fees, punitive damages, and prejudgment interest finding the “the claim against Defendant, John Pickett, III, falls within the purview of the Mississippi Tort Claims Act,” and pursuant to the doctrine of sovereign immunity Sheriff Pickett was immune from suit in his individual capacity-

¶ 16. On August 1, 2002, Kirk filed a motion for a jury trial. On October 14, 2002, after responses from all the defendants, the trial judge ruled that the motion would be held in abeyance pending a determination by the court of whether Officer Crump’s actions constituted fraud, malice, libel, slander, defamation, or any other ' criminal offense which waived Crump’s sovereign immunity protection pursuant to Mississippi Code Annotated Section ll-46-5(2)(Rev.2002).

¶ 17. The defendant Western Surety Bonding Company settled with Kirk prior to trial, and was subsequently dismissed as a defendant.

¶ 18. On October 28, 2002, the case proceeded as a bench trial. On November 14, 2002, the trial judge entered an order dismissing with prejudice all claims against the defendants stating “this Court finds that Deputy Crump did not commit any torts in arresting and detaining the Plaintiff, nor did Sheriff Pickett commit any torts relating to the Plaintiff. There is therefore no basis to hold Tunica County liable for any damages suffered by the Plaintiff.”

¶ 19. Aggrieved by this dismissal Kirk has perfected his appeal to this Court.

ISSUES AND ANALYSIS

¶ 20. In reviewing “findings of a trial judge sitting without a jury, this Court will reverse ‘only where the findings of the trial judge are manifestly erroneous or clearly wrong.’ ” Amerson v. State, 648 So.2d 58, 60 (Miss.1994). “A judge sitting without a jury has sole authority for determining credibility of the witnesses.” Rice Researchers, Inc. v. Hiter, 512 So.2d 1259, 1265 (Miss.1987).

I.

Whether the circuit court properly dismissed all claims against Sheriff Pickett in his individual and official capacity

¶ 21. Kirk contends that the trial court erred in granting summary judgment to the Sheriff in his individual and official capacity. Kirk contends that arresting casino patrons without arrest warrants and assisting the casinos in taking the “86” photographs strictly for casino use was in “wanton disregard” of his rights, and was committed with malice, and that such actions were not protected by the Mississippi Tort Claims Act (MTCA). Kirk contends that all arrests made at the casinos were effectuated according to a void public policy of the Tuni-ca County Sheriffs Office, and in direct contravention of the Mississippi statutes on arrest and detention.

¶ 22. Deputy Crump testified on cross-examination regarding the practice of the sheriffs office when responding to a call from the casino:

Q. “Okay, so each casino had one of these statute books, and the practice of the Tunica County Sheriffs Department was the sheriff deputy would talk to somebody in security and get the facts about what happened and then reach an agreement with security about what to charge these people with.
A. Right.

Although Deputy Crump testified that he arrested “probably more than twenty” people per week after dispatched on a call from a casino, we are not persuaded that the evidence was sufficiently developed to establish an official sheriffs office policy of making improper warrantless arrests of casino patrons, and assisting the casinos in taking “86” photographs. However, this Court is troubled by the suggestion that this was a common practice. Because the issue was not sufficiently developed this Court declines to hold that the trial court abused its discretion in finding that the sheriffs office was protected by the MTCA. However, this Court does note that in a properly developed case such actions may well be held to be outside the protection of the MTCA. See Miss.Code Ann. § 11-46-5 \

II.

Whether the circuit court erred in finding Deputy Crump was protected by sovereign immunity

¶ 23. Kirk alleges that Officer Crump acted with malice and committed an assault while forcing him to take the “86” picture for the casino. Kirk contends that Deputy Crump’s actions were outside the scope of his employment, and were malicious because there was no legitimate law enforcement purpose which justified physical coercion to obtain an “86” photograph for the casino. Kirk contends that nothing criminal occurred in the presence of Officer Crump justifying his arrest. He contends that he did not resist arrest, but merely resisted having his picture taken by the casino by turning his face away from the camera.

¶ 24. Officer Crump’s warrantless arrest was highly questionable, and improperly performed. While the arrest was poorly performed it was a matter of legitimate government interest, and was protected by sovereign immunity.

¶ 25. However, Officer Crump physically forcing Kirk to take the “86” picture is a different matter altogether. After Kirk’s refusal to turn around, at least three times, and take the “86” picture the following dialogue ensued:

OFFICER CRUMP: I am not asking you again.
KIRK: No you’re not going to ask me again.
CRUMP: That’s right turn around so we can take a picture of you.
KIRK: You can’t do that here.
OFFICER CRUMP: Yes we can.
KIRK: You can’t.
OFFICER CRUMP: That’s what we’re going to do.
KIRK: No you can’t.
OFFICER CRUMP: Well, you can call your lawyer, come on ... turn around ... turn around.
KIRK: What are you doing?

At this point in the video Officer Crump grabbed the arm of Kirk and attempted to turn him toward the camera. Then Officer Crump, standing behind Kirk, put his right arm around Kirk’s neck, and threw him to the floor. The casino personnel then took the “86” picture of Kirk while he was lying-on his side with his hands handcuffed behind his back.

¶ 26. There was no legitimate governmental interest served by Officer Crump’s assault upon Kirk to coerce him into submitting to an “86” photograph which served no arguable public purpose, and was for the sole benefit of the casino. Officer Crump’s assault upon Kirk for the sole purpose of coercing him into submitting to an “86” picture for the casino was a criminal offense which action is outside the scope and course of employment and beyond the protection of the MTCA. See Miss.Code Ann. § 11-46-5(2) (Rev.2000).

¶ 27. In forcing Kirk to take the “86” picture and assaulting him in the process, Officer Crump was acting as an agent for the casino and not as an employee of the sheriffs department. As such, he has waived the protections of sovereign immunity afforded under the provisions of MTCA, and is individually liable for his actions and any subsequent damage which they may have caused. See Miss.Code Ann. § 11-46-5(2) (Rev.2000).

III.

Whether factual issues of malice brought against law enforcement officers in their individual capacities must be decided by jury

¶ 28. Kirk alleges that Mississippi Constitution Article 8, § 31 provides that the “right of trial by jury shall remain inviolate ...” Kirk also alleges that the MTCA “allows bench trials,” but exempts crimes and does not cover acts of malice committed by governmental employees. It is Kirk’s contention that since malice, assault and battery, and false arrest and imprisonment were alleged in his complaint that a jury should have been impaneled to determine whether the officer committed these acts and if the jury determined that he did not the court would decide the issue as though the jury were an advisory panel. Kirk is in error. The MTCA requires that all actions filed pursuant to it be addressed in a bench trial. This includes non-MTCA claims, when included in a complaint with MTCA claims. The relevant portion of the MTCA, Mississippi Code Annotated Section 11-46-13 (Rev.2002) provides:

(1) Jurisdiction for any suit filed under the provisions of this chapter shall be in the court having original or concurrent jurisdiction over a cause of action upon which the claim is based. The judge of the appropriate court shall hear and determine, without a jury, any suit filed under the provisions of this chapter. Appeals may be taken in the manner provided by law.

¶ 29. Having found that Officer Crump’s actions are not protected by the provisions of sovereign immunity, upon remand Kirk is entitled to a jury trial on the issue of Officer Crump’s individual liability for assault. Article 3, Section 31 of the Mississippi Constitution provides that the right to trial by jury shall remain inviolate. Isaac v. McMorris, 461 So.2d 714, 715 (Miss.1984) (citations omitted). “This Court has interpreted that constitutional provision to apply to all cases where the right to trial by jury existed at common law.” Id.

¶ 30. The allegations in Kirk’s complaint, the oral testimony and the video would certainly suggest that Officer Crump committed an assault upon Kirk, and thereby surrendered the protection afforded to him by sovereign immunity. However, that is a question of fact, which is properly resolved by the trier of fact rather than this Court. Accordingly, we reverse and remand this cause of action for a trial by jury as to Officer Crump’s individual liability.

¶ 31. THE JUDGMENT OF THE CIRCUIT COURT OF TUNICA COUNTY IS HEREBY AFFIRMED AS TO THE DISMISSAL OF ALL CLAIMS AGAINST SHERIFF JOHN PICKETT, THE COUNTY OF TUNICA, AND DEPUTY JAMES CRUMP IN HIS OFFICIAL CAPACITY, BUT IS REVERSED AND REMANDED FOR A NEW TRIAL ON THE ISSUE OF OFFICER JAMES CRUMP’S INDIVIDUAL LIABILITY. ALL COSTS OF THIS APPEAL ARE TAXED TO THE APPELLEES.

BRIDGES AND SOUTHWICK, P.JJ., THOMAS, LEE, IRVING, MYERS, AND GRIFFIS, JJ., CONCUR.

CHANDLER, J., DISSENTS WITHOUT WRITTEN OPINION.

      . Miss.Code Ann. § 11-46-5(1) : Waiver of Immunity; course and scope of employment; presumptions. Notwithstanding the immunity granted in Section 11-46-3, or the provisions of any other law to the contrary, the immunity of the state and its political subdivisions from claims for money damages arising out of the torts of such governmental entities and the torts of their employees while acting within the course and scope of their employment is hereby waived from and after July 1, 1993, as to the state, and from and after October 1, 1993, as to political subdivisions; provided, however, immunity of a governmental entity in any such case shall be waived only to the extent of the maximum amount of liability provided for in Section 11-46-15.
      (2) For the purposes of this chapter an employee shall not be considered as acting within the course and scope of his employment and a governmental entity shall not be liable or be considered to have waived immunity for any conduct of its employee if the employee’s conduct constituted fraud, malice, libel, slander, defamation or any criminal offense other than traffic violations.
      (3) For the purposes of this chapter and not otherwise, it shall be a rebuttable presumption that any act or omission of an employee within the time and at the place of his employment is within the course and scope of his employment.
      (4) Nothing contained in this chapter shall be construed to waive the immunity of the state from suit in federal courts guaranteed by the Eleventh Amendment to the Constitution of the United States.


author: BRIDGES, P.J.,

text:
    Robert BURROUGHS, Individually, Burroughs Diesel, Inc. and Rental Service, Inc., Appellants v. H.D. McDANIEL, Consolidated Contractors Corporation and McDaniel Investments, Inc., Appellees.
    No. 2001-CA-01000-COA.
    Court of Appeals of Mississippi.
    June 29, 2004.
    Rehearing Denied Aug. 24, 2004.
    Certiorari Denied Nov. 18, 2004.
    James Robert Sullivan, Laurel, attorney for appellants.
    Paul Edward Moyers, W.O. Dillard, Lester F. Smith, Jackson, attorneys for appel-lees.
    Before KING, C.J., BRIDGES, P.J., and CHANDLER, J.
   BRIDGES, P.J.,

for the Court.

¶ 1. Initially this lawsuit was a complaint for declaratory judgment between the plaintiff, Robert Burroughs, and the defendant, H.D. McDaniel. Burroughs sought to have the trial court declare the rights, if any, of Union Planters National Bank in an asset owned by McDaniel. The asset was a judgment owned by McDaniel against Reeves Contractors Corporation (Reeves Judgment). Union Planters does not have an assignment, Uniform Commercial Code financing statement or security interest in the Reeves Judgment.

¶2. Based on their guaranties, Union Planters filed a counter-claim against Burroughs and a cross-claim against McDaniel. Union Planters had made a loan to Consolidated Contractors Corporation, and Union Planters was the holder of the note. The amount of the note was $350,000, and Union Planters had security of over $3,600,000. While it was the holder of the note, Union Planters dismissed its counterclaim and cross-claim against Burroughs and McDaniel with prejudice. Simultaneously, Burroughs and McDaniel dismissed with prejudice their claims against Union Planters. Union Planters kept all of its security on a new note that was signed by Burroughs Diesel, Inc. with Burroughs as the sole guarantor.

¶ 3. Three weeks prior to trial, McDaniel filed a motion to dismiss on the grounds that Burroughs, as an individual, was not entitled to any relief and that Burroughs had no standing to request relief on behalf of Union Planters Bank. A hearing was conducted after which the judge denied McDaniel’s motion. The trial took place on June 5-7, 2000 and before closing arguments were conducted, Burroughs filed a motion to amend to seek a monetary judgment which the judge later granted. The motion, however, did not seek to add Burroughs Diesel Inc. as a party.

¶ 4. At the conclusion of the trial, the judge took the case under advisement and later ruled for McDaniel and against Burroughs. In his findings of fact, conclusion of law and final judgment, the judge found that Burroughs was not entitled to any declaratory relief or monetary relief and dismissed Burroughs’s case.

¶ 5. Burroughs’s issues are stated verbatim below.

STATEMENT OF THE ISSUES

I. WHETHER THE CHANCELLOR ERRED WHEN HE RULED THAT ROBERT BURROUGHS WAS NOT A PROPER PARTY TO THE SUIT BECAUSE THE UNDERLYING NOTE TO WHICH ROBERT BURROUGHS AND H.D. MCDANIEL WERE CO-GUARANTORS WAS PAID WITH THE FUNDS FROM BURROUGHS DIESEL, INC., A COMPANY SEPARATELY OWNED AND OPERATED BY ROBERT BURROUGHS.

II. WHETHER THE CHANCELLOR ERRED WHEN HE RULED THAT ROBERT BURROUGHS WAS NOT ENTITLED TO ASSERT HIS EQUITABLE SUBROGATION RIGHT OF FIFTY PERCENT (50%) REIMBURSEMENT AGAINST THE OTHER CO-GUARANTOR, WHEN ROBERT BURROUGHS CAUSED TO BE PAID ONE HUNDRED PERCENT (100%) OF THE UNDERLYING NOTE.

FACTS

¶ 6. In 1992, H.D. McDaniel and Robert Burroughs entered into a business relationship whereby they formed a company, Consolidated Contractors Corporation (Consolidated). McDaniel, who had been in the construction industry for numerous years and who was a licensed contractor, provided the expertise. Burroughs, who had little or no experience in construction work, provided the funding. According to the their contract, McDaniel and Burroughs would each own fifty percent (50%) of the stock of Consolidated and would divide any net profits equally. McDaniel contributed equipment, with an approximate value of three hundred thirty thousand dollars ($330,000), to the operation of the corporation in exchange for his fifty percent (50%) of Consolidated’s stock. During the corporation’s primary project under a contract with the Mississippi Regional Housing Authority, Consolidated executed a promissory note for two hundred thousand dollars ($200,000) with Sunburst Bank, now Union Planters Bank. The note, which was executed on April 11, 1994, and due on January 31, 1995, was guaranteed by three sureties or co-guarantors, namely McDaniel, Burroughs, and Burroughs Diesel, Inc., a separate company owned and operated by Burroughs. On February 17, 1995, the note was renewed for three hundred fifty thousand dollars ($350,000) with a maturity date of May 17, 1995, but this note was guaranteed only by McDaniel and Burroughs. In the fall of 1995, McDaniel secured other employment with Roy Anderson Construction Company to perform construction work on a project in Tunica County, Mississippi.

¶ 7. Also in the fall of 1995, a dispute arose between McDaniel and Burroughs. Burroughs informed McDaniel that Consolidated did not have the finances to pay the expenses of the Mississippi Regional Housing Authority project, and that the promissory note to Union Planters had to be paid. Thereafter, Burroughs obtained two extensions on the note which extended the due date of the promissory note until November 15, 1995. On November 14, 1995, Burroughs filed a complaint for declaratory judgment against McDaniel.

¶ 8. On February 28, 1996, Burroughs Diesel, Inc. executed a promissory note with Union Planters for two hundred fifty-two thousand, five hundred ninety-eight and 91/100 dollars ($252,598.91), which replaced the promissory note executed by Consolidated on February 17, 1995, and was signed and guaranteed by Burroughs only. As shown on the face of this note, the purpose was “to purchase debt instrument in the amount of $252,580.91 owed to bank by Consolidated Contractors Corp. without recourse.” The terms of the promissory note stated that the note which was executed by Consolidated on February 17, 1995, was assigned to Burroughs Diesel, Inc. and reassigned to Union Planters.

¶ 9. In May 1996, McDaniel filed two instruments, his complaint for articles of dissolution of corporation for injunctive, declaratory and other relief, and also a motion for appointment of receiver requesting the appointment of a receiver to handle the corporate affairs and assets of Consolidated in order to bring about an orderly and equitable distribution of the corporation. Also in May of 1996, Burroughs filed a motion for change of venue requesting that the chancery court action filed by McDaniel be transferred to the county of Consolidated’s principal office, Jones County, Mississippi. In June 1996, the judge granted Burroughs’s motion for a change of venue to Jones County, Mississippi.

¶ 10. In October 1996, Burroughs Diesel, Inc. executed a promissory note with Community Bank, in the amount of two hundred thirty thousand, five hundred eighty-seven 12/100 dollars ($230,587.12) which terminated or satisfied the note Burroughs Diesel, Inc. executed with Union Planters on February 28, 1996. Additionally, this note was signed and guaranteed by Burroughs only and matured on October 15, 2001.

¶ 11. At trial, the judge found that Burroughs was not entitled to any declaratory relief or monetary relief and dismissed Burroughs’s case.

ANALYSIS

I. WHETHER THE CHANCELLOR ERRED WHEN HE RULED THAT ROBERT BURROUGHS WAS NOT A PROPER PARTY TO THE SUIT BECAUSE THE UNDERLYING NOTE TO WHICH ROBERT BURROUGHS AND H.D. MCDANIEL WERE CO-GUARANTORS WAS PAID WITH THE FUNDS FROM BURROUGHS DIESEL, INC., A COMPANY SEPARATELY OWNED AND OPERATED BY ROBERT BURROUGHS.

II. WHETHER THE CHANCELLOR ERRED WHEN HE RULED THAT ROBERT BURROUGHS WAS NOT ENTITLED TO ASSERT HIS EQUITABLE SUBROGATION RIGHT OF FIFTY PERCENT (50%) REIMBURSEMENT AGAINST THE OTHER CO-GUARANTOR, WHEN ROBERT BURROUGHS CAUSED TO BE PAID ONE HUNDRED PERCENT (100%) OF THE UNDERLYING NOTE.

¶ 12. Burroughs claims that the chancellor improperly denied his equitable sub-rogation rights as a co-guarantor. He argues that sufficient and uncontroverted evidence was presented to sustain a judgment in his favor for the full amount of his equitable subrogation lien of fifty percent (50%) which arose when he caused the underlying note of $252,598.91 to be paid in full. In addition, Burroughs states that his equitable subrogation right to $126,299.46 arose the moment he caused the underlying note to be paid in full, and this equitable right remained with Burroughs regardless of the source of funds by which Burroughs effected payment.

¶ 13. Unfortunately, Burroughs’s arguments are contrary to the law. Burroughs seems to be ignoring the basic, well-established rule of law that a corporation is a separate entity, separate and apart even from its shareholders. This principle of law is true even if the shareholder is the sole shareholder of the corporation. American Telephone & Telegraph Co. v. Purcell Co., Inc., 606 So.2d 93, 97 (Miss.1990); Bruno v. Southeastern Services, Inc., 385 So.2d 620 (Miss.1980).

¶ 14. In the case sub judice, Burroughs is a separate legal entity from Burroughs Diesel, Inc. Burroughs requests that this Court grant him, as an individual, a judgment in his favor for funds he claims were paid by Burroughs Diesel, Inc. As the court stated in East v. East, an individual cannot seek relief on behalf of a corporation. Skinner v. Skinner, 509 So.2d 867, 870 (Miss.1987).

¶ 15. Burroughs can only ask for the judgment for damages he himself incurred, not those claimed to have been incurred by a non-party to the lawsuit. While on the witness stand, Burroughs stated that Burroughs Diesel, Inc. had nothing to do with this lawsuit and he refused to answer questions regarding Burroughs Diesel, Inc. Since Burroughs Diesel, Inc. was not a party to the case sub judice, this Court cannot reach “any decision on this corporation’s obligation because it was never made a party to the suit.” East, 493 So.2d at 933. In addition, Burroughs, in his brief, failed to cite any authority from this jurisdiction.

¶ 16. The lower court judge, while applying well-established law and citing numerous cases, correctly concluded that:

Burroughs, individually, cannot recover damages which have been [allegedly] suffered by Burroughs Diesel, Inc.
* * *
Thus, the court cannot grant to Mr. Burroughs, individually, redress for damages [allegedly] suffered by a separate and distinct party, Burroughs Diesel, Inc.

¶ 17. Also in his findings of fact and conclusion of law, the judge continued in his ruling by stating:

Furthermore, it is the ruling of this Court that, by failing to join Burroughs Diesel, Inc. as a party to this litigation against Mr. McDaniel, the lawsuit suffers for failing to have proper parties. Thus Mr. Burroughs’ argument that he, individually, should be awarded damages in connection with Burroughs Diesel, Inc.’s [alleged] payment of the promissory note executed by Consolidated Contractors Corporation is without merit.

¶ 18. As to the second issue, the law is basically the same as in issue I. Burroughs again contends that he is entitled to some kind of relief because of what Burroughs Diesel, Inc. (allegedly) did. However, there is no authority of law cited by Burroughs whereby, as an individual, he is entitled to any kind of equitable subrogation because of what Burroughs Diesel, Inc. allegedly paid.

¶ 19. Burroughs cites some law dealing with equitable subrogation, none of which provides for recovery by an individual for funds paid by a corporation. Burroughs continues to assert that if Burroughs Diesel, Inc. paid the note, then this means that Burroughs as an individual can seek recovery. As seen from the applicable law stated above, this argument is contrary to basic corporate law. Stated again, a corporation is simply a separate legal entity.

¶ 20. In accordance with the applicable law stated herein, this Court finds that these issues are without merit. By failing to join Burroughs Diesel, Inc. as a party to the lawsuit, the suit suffers for failure to have proper parties. Therefore, Burroughs’s argument that he, individually, should be awarded damages in connection with Burroughs Diesel, Ine.’s payment of the promissory note executed by Consolidated Contractors Corporation is without merit.

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

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


author: JOHNSTONE, Justice.

text:
    Anthony S. KINNEY et al. v. Roy W. WILLIAMS, Jr., et al.
    1020412.
    Supreme Court of Alabama.
    Dec. 30, 2003.
    Rehearing Denied Feb. 27, 2004.
    John Joseph Smith, Jr., Birmingham, for appellants.
    John S. Key and Jenny L. McLeroy of Eyster, Key, Tubb, Weaver & Roth, LLP, Decatur, for appellees.
   JOHNSTONE, Justice.

Plaintiffs Anthony S. Kinney, Nadine A. Kinney, Earl Adair, and Beverly Adair appeal the summary judgment entered in favor of defendants Joseph E. Conn III, a land surveyor, and Conn Surveyors (hereinafter collectively called “Conn”) on all plaintiffs’ claims of breach of contract, fraud, and wantonness, and the summary judgment entered in favor of defendants Roy W. Williams, Jr., an attorney, and his firm, Jackson & Williams, a partnership (hereinafter collectively called ‘Williams”), on the Kinneys’ claims consisting of several theories of legal malpractice and on the Adairs’ claims of legal malpractice and fraud consisting of negligent or mistaken misrepresentation. We affirm the summary judgment in favor of Conn on all claims by the Adairs and the Kinneys. We also affirm the summary judgment in favor of Williams on all claims by the Kinneys and on the legal malpractice claims by the Adairs. Because the summary judgments on these specified claims are supported by well-established law, this opinion will not discuss the issues argued by the plaintiffs on these specified claims. See Rule 53(a)(1) and (a)(2)(E) and (F), Ala. R.App. P.

This opinion will discuss only the summary judgment in favor of Williams on the fraud claims by the Adairs. We reverse the summary judgment in favor of Williams on the fraud claims by the Adairs.

This opinion will recount only the facts material to the issue of whether the trial court erred in entering summary judgment against the Adairs on their fraud claims of negligent or mistaken misrepresentation against Williams. In deciding a motion for summary judgment, or in reviewing a summary judgment, the court must accept the tendencies of the evidence most favorable to the nonmoving party and must resolve all reasonable factual doubts in favor of the nonmoving party. Bruce v. Cole, 854 So.2d 47 (Ala.2003), and Pitney Bowes, Inc. v. Berney Office Solutions, 823 So.2d 659 (Ala.2001). See Ex parte Helms, 873 So.2d 1139 (Ala.2003), and Willis v. Parker, 814 So.2d 857 (Ala.2001). This opinion will recount the facts in accordance with this principle. Williams is the moving party; and the Adairs are the nonmoving parties.

The Adairs are a married couple. So are the Kinneys. Mr. Adair and Mrs. Kinney are brother and sister. The two couples agreed to cooperate in the purchase of a certain parcel of land about five acres in size so that one couple could build and live on one half and the other couple could build and live on the other half.

A paved road bordered the north end of the property. The couples’ inquiries led them to believe the road was private, not public. The private character of the road was important to both couples because they wanted privacy and quiet.

After some preliminary negotiations, the Kinneys contracted in writing to buy the property from its owner, one Marcinowski, and the Adairs orally agreed with the Kin-neys to buy one-half of the property from the Kinneys. The Kinneys and Marcinow-ski employed defendant Williams to prepare the deed from Marcinowski to the Kinneys and to obtain the title insurance.

The Kinneys and the Adairs disclosed their mutual interest in and plans for the property to Williams. The couples also told Williams the importance of the private character of the road along the north end of the property.

Williams also served as the closing agent for the sale by Marcinowski to the Kin-neys. The Adairs as well as the Kinneys attended the closing of that sale. There Williams assured both couples that the road was private, not public; and Marci-nowski and the Kinneys closed the sale to the Kinneys.

Several weeks later, in accordance with the couples’ oral agreement, the Adairs bought half of the property from the Kin-neys. Months thereafter, when the Adairs tried to stop neighbors from using the road, the Adairs learned that it was public, not private.

Among the claims the Adairs asserted in their action against Williams were fraud theories of negligent misrepresentation and innocent misrepresentation. In support of these theories and in opposition to Williams’s motion for a summary judgment, Mr. Adair testified that, but for Williams’s assurances that the road was private, not public, the Adairs would not have bought their half of the property. He testified that they would not have bought the property had they known that the road was public or that its private status was uncertain.

The sole ground of Williams’s motion for a summary judgment on the Adairs’ claims was that the absence of an attorney-client relationship between Williams and the Adairs deprived them of standing to sue. Williams’s motion for a summary judgment did not assert that the Adairs lacked substantial evidence of any of the essential elements of fraud — Williams’s misrepresentations, their materiality, the Adairs’ reliance to their detriment, or the reasonableness of their reliance. Therefore, unless the Adairs lack standing to sue, as Williams’s motion asserts as its only ground, the summary judgment is erroneous. Liberty Nat'l Life Ins. Co. v. University of Alabama Health Servs. Found., P.C., 881 So.2d 1013, 1020 (Ala.2003), and Tanner v. State Farm Fire & Cas. Co., 874 So.2d 1058, 1065 (Ala.2003).

The Adairs do not base their standing on any client-attorney relationship with Williams. Rather, the Adairs rely on Potter v. First Real Estate Co., 844 So.2d 540 (Ala.2002), which bases a plaintiffs standing to sue for fraud on the defendant’s knowledge of the plaintiffs interest in the matter misrepresented or concealed and on the plaintiffs exposure to and reliance on the fraudulent conduct.

In Potter, the plaintiffs, the Potters, were newlyweds who moved into a house that flooded. They sued the defendant real estate agents for fraudulently misrepresenting or concealing the flood-prone situation of the house in negotiating the sale of the house to Mr. Potter before the couple married. While Mrs. Potter (Jamie) had not been a party to the contract to purchase the house or to the purchase itself, the defendant agents had known of her prospective interest in the house, and she had participated in the negotiations. The Potter Court wrote:

“Borden and First Real Estate challenge Jamie’s standing to bring the action because she did not enter into any contract to purchase the property nor did she take title to the property. In Doss v. Serra Chevrolet, Inc., 781 So.2d 973, 976-77 (Ala.Civ.App.2000), the Court of Civil Appeals addressed this issue:
‘Hoivever, “[ijt is not necessary to an action for misrepresentation that there be a contractual relationship between the representor and the person deceived.” Mid-State Homes, Inc. v. Startley, 366 So.2d 734, 735-36 (Ala. Civ.App.1979). Similarly, “in an action alleging suppression of a material fact, a duty to disclose may be owed to a person with whom one has not had a contractual relationship or other dealings.” Carter v. Chrysler Corp., 743 So.2d 456, 461 (Ala.Civ.App.1998) (internal quotation marks omitted). Although Alabama law recognizes that persons who are not parties to a particular transaction generally have “no right of action [for fraud occurring during that transaction], there is an exception to this general rule: ‘If a third person is injured by the deceit, he may recover against the one who made possible the damages to him by practicing the deceit in the first place.’ Thomas v. Halstead, 605 So.2d 1181, 1184 (Ala.1992) (quoting 37 C.J.S. Fraud § 60 (1944)).’
“(Emphasis added [in Potter\.)
“Although Jamie was Joseph’s fiancee at the time of the transaction made the basis of this action, this circumstance was known to Borden and First Real Estate, and her experience as a wife in a flooded house confers upon her standing to seek damages for fraud.”

844 So.2d at 553 (emphasis other than as indicated added).

The Adairs in the case before us have the same kind of standing. Although Williams was not their attorney, he knew their interest in the property and in the private status of the road, and he directed his misrepresentations to the Adairs as well as to his clients the Kinneys. Therefore, the trial court erred in entering a summary judgment in favor of Williams on the Adairs’ fraud claims.

We affirm the summary judgment in favor of Williams on all of the Kinneys’ claims and on all of the Adairs’ claims except their fraud claims. We also affirm the summary judgment in favor of Conn on all of the Adairs’ claims and on all of the Kinneys’ claims.

We reverse the summary judgment in favor of Williams on the Adairs’ fraud claims. We remand this cause to the trial court for proceedings consistent with this opinion.

AFFIRMED IN PART; REVERSED IN PART; AND REMANDED.

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


author: HARWOOD, Justice.

text:
    Ronald D. VETETO v. SWANSON SERVICES CORPORATION.
    1021278.
    Supreme Court of Alabama.
    Dec. 30, 2003.
    Rehearing Denied March 12, 2004.

      Ronald D. Veteto, pro se.
    Richard E. Smith, H. Spence Morano, and Jessica K. Stetler of Christian & Small, LLP, Birmingham, for appellee.
   HARWOOD, Justice.

On May 29, 2002, Ronald D. Veteto (“Veteto”) sued Swanson Services Corporation (“Swanson”) and, “in both their individual and official capacities,” Michael Haley, commissioner of the Alabama Department of Corrections (“DOC”); Billie Mitchem, warden of the William E. Donaldson Correctional Facility, a prison operated under the auspices of DOC and located in Bessemer, Alabama; Hurbert Etheridge, a captain at Donaldson; and Officer Marion C. Espy, a correctional officer supervisor II at Donaldson (Haley, Mitchem, Etheridge, and Espy are hereinafter referred to collectively as “the DOC defendants”). The trial court entered a summary judgment in favor of the DOC defendants and dismissed for want of prosecution the claims against Swanson. We affirm.

Veteto, an inmate at Donaldson, alleged in his complaint that he had completed Swanson order forms distributed to inmates by Donaldson employees for the purpose of selecting items, to be paid for by his parents, available to inmates under Swanson’s “Holiday Package Program.” The order forms represented that orders received by November 13, 2000, would be delivered between December 11 and December 22, 2000. Veteto’s parents subsequently completed their portion of the forms and mailed them to Swanson along with an “official” bank check made out to the order of Swanson in the amount of $158.68. Veteto did not receive his holiday packages during the promised time frame; they were finally delivered on January 5, 2001. Donaldson employees checked the contents of the packages, but, according to Veteto, they “rushed the process,” comin-gling the contents, thereby failing to detect “some of the shortages and overages” that Veteto subsequently determined to exist in the packages. Veteto determined that a number of items were missing, that some items were included that he had not ordered, and that various items of candy and snack foods were damaged or degraded. Veteto concluded that the total value of the shortages was $40.09.

Veteto alleges that he made numerous, but unsuccessful, attempts to locate Swanson and communicate with it about the situation, and that he also sent written communications about the situation to various Donaldson employees and to Commissioner Haley. Etheridge finally reported to Veteto that Donaldson employees were “in the process of resolving this now”; that the full amount of Veteto’s purchases would be refunded; and that Donaldson would remedy the problem.

In addition to making numerous factual assertions against Swanson and asserting a variety of theories of legal liability against it, Veteto asserted that the DOC defendants “conspired with and/or aided and abetted” Swanson in its breach of contract and tortious wrongdoings. Veteto sought actual damages for breach of contract in the amount of $40.09; $20,000 in compensatory damages against Swanson “for hungry, sickness, mental pain and anguish, and emotional distress”; $10,000 in compensatory damages against the DOC defendants “for conspiring with and aiding and abetting Swanson”; and $50,000 in punitive damages against Swanson and the DOC defendants.

On September 4, 2001, the DOC defendants filed a motion to dismiss, or, alternatively, for a summary judgment. The motion was accompanied by the affidavit of Espy, who attested that, after he became aware of the problems with'Veteto’s packages, he had checked with Swanson and had been told that it was “working on resolving all disputes concerning refunds” and that “Veteto’s name was on the list for a refund.” Espy gave Veteto Swanson’s address so that his parents could correspond directly with Swanson. The DOC defendants argued various legal points in a supporting brief, including their immunity from suit and that there had been no “material breach of contract.”

Veteto made filings in opposition to the DOC defendants’ summary-judgment motion, and there was a succession of responses and motions and other filings between him and the DOC defendants. Given our disposition of this appeal as to the DOC defendants, we will note hereinafter only those filings relating to or made by Swanson.

On September 25 Swanson filed its answer. Shortly after it filed its answer, it filed its responses to Veteto’s requests for admissions. Swanson subsequently filed its responses to Veteto’s first set of interrogatories and his “first request of documents.” Veteto filed objections to the DOC defendants’ summary-judgment motion, and on November 28, 2001, the trial court entered its order, finding that the DOC defendants were entitled to immunity, on the grounds that Veteto “failed to present any evidence which would create a genuine issue of material fact on the question of whether [the DOC defendants] acted willfully, fraudulently, maliciously, or in bad faith” and therefore were not entitled to immunity. The trial judge later denied Veteto’s motion to set aside that order. Subsequently, Veteto unsuccessfully petitioned the Court of Civil Appeals for a writ of mandamus, sought a rehearing as to its denial of the writ, petitioned this Court for a writ of mandamus, and sought a rehearing of its denial of the petition.

On December 9, 2002, on Swanson’s motion, the trial court dismissed the case with prejudice for want of prosecution. Veteto filed a motion to vacate that order, which the trial judge denied on February 16, 2003.

Fatal to our consideration of Veteto’s arguments in his appellate briefs concerning alleged trial court errors relating to the DOC defendants is the content of his handwritten notice of appeal. The front side of the notice of appeal reads, in its entirety, as follows:

“Notice is hereby given that the Plaintiff, Ronald D. Veteto, appeals to the Supreme Court of Alabama from the dismissal of this civil action with prejudice for want of prosecution, entered in this action by the trial court December 9, 2002, and from the denial of Veteto’s Rule 59, Ala. R. Civ. P., postjudgment motion entered February 16, 2003.
‘Veteto further moves this court for leave to proceed on this appeal informa pauperis pursuant to Rule 24, Ala. R.App. Proc., and to direct the clerk of court to prepare and transmit the entire clerk’s record to the appellate court. In support of this motion Veteto submits the following affidavit.
“[See Reverse Side]”

(Emphasis in original.) The reverse side of the notice of appeal contains Veteto’s affidavit relating to his request “to proceed on appeal without being required to prepay fees, costs or give security therefor.” It also contains the following statements:

“[T]he issues which I desire to present on appeal are the following: (1) Plaintiff has been denied effective and meaningful access to the courts and a full and fair opportunity to present and prove his evidence, arguments and claims. (2) The trial judge denied Veteto the right to any and all discovery. (3) The trial judge pretermitted and never ruled on numerous critical and pivotal plaintiff motions. (4) The trial judge refused to recuse himself.”

In Edmondson v. Blakey, 341 So.2d 481 (Ala.1976), this Court addressed a similarly structured notice of appeal. Edmondson sued Blakey and the Aetna Casualty Company. On September 5, 1975, the trial court granted Aetna’s motion for a summary judgment. The case proceeded to trial against Blakey, resulting in a verdict in his favor. A judgment was rendered on that verdict on September 30, 1975. Edmondson filed a motion for a new trial, which was denied on November 25,1975.

He thereafter timely filed the following notice of appeal:

“ ‘NOTICE OF APPEAL TO THE COURT OF CIVIL APPEALS OF ALABAMA
“ ‘WADE Q. EDMONDSON
“ ‘Appellant ‘“Vs. “ ‘K.E. BLAKEY “ ‘Appellee
In the Circuit Court of Autauga County Civil Action No. 3750
September 30,1975 Date of Judgment &
November 25,1975 Post Judgment Order
“ ‘Notice is hereby given that Wade Q. Edmondson appeals to the above-named court from the final judgment and the order dismissing his Motion for a New Trial entered in this cause.
“ ‘Security for costs of appeal is filed herewith this Notice of Appeal.’ ”

341 So.2d at 482-83.

This Court determined that the notice of appeal did not serve to effect an appeal of the September 5, 1975, summary judgment entered in favor of Aetna. The Court gave the following rationale for that conclusion:

“Aetna insists that the first notice it received which in anyway indicated that the trial court’s action on its motion for summary judgment was being challenged was when its attorney, who also represented Mr. Blakey, received a copy of Edmondson’s brief in this case. There is nothing in the notice of appeal to indicate that Aetna is an appellee; and it affirmatively indicates that the judgments appealed are those dated September 30, 1975, and November 25, 1975, and are described as the final judgment and order dismissing his motion for a new trial. These judgments related only to the defendant Blakey. The trial court’s judgment granting the motion for summary judgment at Aet-na’s request was entered September 5, 1975. That judgment is not alluded to in any manner in the notice of appeal and only Blakey is referred to as an appellee. The notice does not even contain the traditional ‘et al.’ to indicate multiple appellees.
“Our [Ala. R.App. P.] 3(c), like its federal counterpart, provides for a simple notice of appeal specifying the party or parties taldng the appeal. The rule says that the notice ‘... shall designate the judgment, order or part thereof appealed from ... ’ The federal courts have been very liberal in entertaining appeals even where the notice fails to comply literally with the requirements of Rule 3(c). The test for dismissal for failure to comply seems to be whether the intention to appeal from a specific judgment may be reasonably inferred from the text of the notice. Jones v. Chaney & James Const. Co., 399 F.2d 84 (5th Cir.1968); Donovan v. Esso Shipping Co., 259 F.2d 65 (3rd Cir.1958).
“Several federal decisions have concluded that [Fed. R.App. P.] 3(c), although given its liberal interpretation by the courts, requires that in a multi-party suit, the notice of appeal must, to be effective, include the names of those parties taking the appeal. Van Hoose, et al. v. Eidson, et al., 450 F.2d 746 (6th Cir.1971); Cook & Sons Equipment, Inc. v. Killen, 277 F.2d 607 (9th Cir.1960).
“While we might not be willing to go so far as to require the designation of each appellee in the notice of appeal, we do think that fairness requires that some indication appear that an appeal has been taken to reverse a judgment rendered in favor of a prevailing party. From the notice here, there is absolutely nothing to indicate that the judgment in favor of Aetna has been appealed. The notice not only fails to list Aetna as an appellee, but also affirmatively shows that the only two judgments being appealed are those involving only the ap-pellee Blakey.
“This conclusion probably would not be warranted in a case involving a single appellee. A notice of appeal indicating that an appeal has been taken from a judgment favorable to the appellee should give him notice that review might be sought as to matter not specified in the notice of appeal. In fact, that is contemplated by [Ala. R.App. P.] 3(c).
“The spirit of the [Alabama Rules of Appellate Procedure] is recognized and restated to insure the just, speedy and inexpensive determination of every appellate proceeding on its merits. The only jurisdictional rule in the entire rules is the timely filing of the notice of appeal. Nothing in the rules is designed to catch the unwary on technicalities. Jones v. Chaney & James Const. Co., supra. A simple statement indicating what judgments the appellant appeals from is all that is required. In this ease, the appellant has indicated that he appeals from two judgments rendered against him and in favor of the defendant Blakey. To treat this as an appeal from a judgment in favor of Aetna is to give more than a liberal construction to [Ala. R.App. P.] 3(c). It is to read into the notice of appeal something which is simply not there. This would be unfair to Aetna. Appellant could have included Aetna in the designated appellees, or could have indicated that he was appealing from the judgment favorable to Aet-na. He has done neither. Furthermore, had the appellant included in the notice of appeal a designation of the record to include the order entered on the motion for summary judgment as contemplated by Form # 1, this may well have constituted notice to Aetna that that judgment was being appealed. However, the appellant failed to do that. Instead, he simply says, in response to Aetna’s motion to dismiss the appeal, that he designated the entire record; and it includes the order granting Aetna’s motion for summary judgment.
“The failure of the appellant to either (1) include Aetna as a named appellee; or (2) to indicate by description or date that the appeal was from the order granting Aetna’s motion for summary judgment; or (3) indicating by designation that that order was being challenged; compels us to conclude that there is nothing in the notice of appeal or otherwise manifesting an intent to appeal from the summary judgment order entered in favor of Aetna.”

341 So.2d at 483-84.

Five years after Edmondson, we addressed a similar situation in Threadgill v. Birmingham Board of Education, 407 So.2d 129 (Ala.1981). The plaintiff, Lynn Marie Threadgill, filed a personal-injury action against the Birmingham Board of Education and its superintendent, Wilmer S. Cody. The trial court entered a summary judgment for the board on December 17, 1980, and a summary judgment for Cody on March 12, 1981. This Court noted that Threadgül’s subsequent notice of appeal stated, “in pertinent part”:

“ ‘Notice is hereby given that Lynn Marie Threadgill appeals to the Supreme Court of Alabama from the order of the trial court of March 12, 1981 in granting the motion for summary judgment, said motion being filed on or about the 2nd day of March 1981.
“ ‘Filed with this Notice of Appeal are security for costs of appeal and docket fee in the amount of $50.00.
“‘FILED: Apr23,1981....’”

407 So.2d at 131.

This Court observed:

“Nowhere in plaintiffs notice of appeal does she indicate that she is appealing from the circuit court’s order of December 17, 1980, dismissing the Birmingham Board of Education as a party to plaintiffs action. The only reference that arguably might be said to include the Birmingham Board of Education in the notice of appeal is the style of the notice which recites ‘Lynn Marie Threadgill, Appellant v. Birmingham Board of Education, et ah’ ”

407 So.2d at 131.

Quoting from Edmondson, supra, the statement that “ ‘[t]he test for dismissal for failure to comply seems to be whether the intention to appeal from a specific judgment may be reasonably inferred from the text of the notice,’ ” 407 So.2d at 132 (emphasis omitted), this Court continued with the following analysis:

“Applying the above-quoted test, the question which next arises is whether plaintiffs notice of appeal reasonably evidenced an intent to appeal from the trial court’s order dismissing the Birmingham Board of Education as a party to her action. We think that it did not. Plaintiffs notice of appeal designates only the circuit court’s order of March 12, 1981, which involved only Cody, and not the Birmingham Board of Education. We are aware that one difference does exist between the present appeal and the factual situation considered in Edmondson v. Blakey [, 341 So.2d 481 (Ala.1976)]. The style of plaintiffs notice of appeal names the Birmingham Board of Education. Appellant’s style in his notice of appeal in Edmondson v. Bla-key did not name defendant Aetna. Nevertheless, this distinction does not help plaintiff. Rule 3, Alabama Rules of Appellate Procedure, provides an uncomplicated means of effecting an appeal. It is not designed ‘to catch the unwary on technicalities.’ Edmondson v. Blakey, at 484; Jones v. Chaney & James Construction Company, 399 F.2d 84 (5th Cir.1968). ‘A simple statement indicating what judgments the appellant appeals from is all that is required.’ Edmondson v. Blakey, at 484. The thrust of plaintiffs notice of appeal is that she is appealing from the circuit court’s order and judgment of March 12, 1981.
“ ‘Where the appellant notices the appeal of a specified judgment only or a part thereof, however, this court has no jurisdiction to review other judgments or issues which are not expressly referred to and which are not impliedly intended for appeal.’
“C.A. May Marine Supply Company v. Brunswick Corporation, 649 F.2d 1049 (5th Cir.1981); Elfman Motors, Inc. v. Chrysler Corporation, 567 F.2d 1252 (3d Cir.1977); Donovan v. Esso Shipping Company, 259 F.2d 65 (3d Cir.1958).”

407 So.2d at 132.

In Gollotte v. Peterbilt of Mobile, Inc., 582 So.2d 459 (Ala.1991), the plaintiff sued only one defendant and the trial court entered a summary judgment for that defendant. In his subsequent notice of appeal, the plaintiff clearly stated that he was appealing from the summary judgment, giving the date summary judgment was entered, and from the later order denying the plaintiffs motion to reconsider, giving the date of the entry of that order. This Court held that the notice of appeal would not limit the scope of appellate review so as to preclude consideration of an earlier discovery order entered by the trial court. Noting the Edmondson test, and its application in Threadgill, supra, the Court concluded that the issue relating to the discovery order could be reached. It distinguished the facts and holding of Threadgill on the basis that

“[t]he discovery order in this case is ... very different from the summary judgment for the school board in Threadgill; that summary judgment was in no way incorporated into, or a necessary element leading up to, the summary judgment for the superintendent, even though it was the entry of the later summary judgment that made the first one final and appealable.”

582 So.2d at 463. The Gollotte Court reiterated the holding of Edmondson, however, that, in a case such as the present one, “this Court [has] no jurisdiction to review other judgments or issues that were not expressly referred to and that were not impliedly intended for appeal.” 582 So.2d at 463.

Likewise, in M.R.V. Enterprises, Inc. v. Mariott Family Restaurants, Inc., 584 So.2d 522 (Ala.1991), this Court quoted approvingly, and dispositively for that case, the following statement in Thread-gill: “ “Where the appellant notices the appeal of a specified judgment only or a part thereof ..., this Court has no jurisdiction to review other judgments or issues which are not expressly referred to and which are not impliedly intended for appeal.’ ” 584 So.2d at 524 (quoting Threadgill, 407 So.2d at 132).

“It is settled law that notice of appeal from a judgment in favor of two or more parties must specifically name each party whose judgment the appellant wishes to overturn.” Sperau v. Ford Motor Co., 674 So.2d 24, 40 (Ala.1995), judgment vacated, Ford Motor Co. v. Sperau, 517 U.S. 1217, 116 S.Ct. 1843, 134 L.Ed.2d 945 (1996)(citing Edmondson and Thread-gill, and an opinion of the United States Court of Appeals for the Fifth Circuit).

The record here reflects that the circuit clerk understood that the appeal was being taken only as to Swanson; consequently, the clerk apparently did not send notice of the appeal to the DOC defendants. Swanson’s motion to dismiss for want of prosecution, served on Veteto, reflected clearly that Swanson was serving the motion on only Veteto, not the DOC defendants, and none of Veteto’s filings subsequent to the November 28, 2001, dismissal of the DOC defendants reflect that he served a copy of those filings on the DOC defendants. Everything filed with the clerk of this Court, with the exception of Veteto’s briefs, reflects Swanson as the sole appellee. Consequently, the style of this appeal reflects that only Veteto and Swanson are parties to the appeal.

Neither of Veteto’s briefs filed in this Court contains a certificate of service indicating that he served a copy of the briefs on the DOC defendants, and, consistent with its understanding of the structure of this appeal, Swanson stated in its brief that it was “the sole Appellee” and served a copy of its brief only upon Veteto. In his reply brief, Veteto took note of Swanson’s statement that it was the only appel-lee and argued that the appeal did extend to the DOC defendants because his notice of appeal repeated the trial court’s style of the case: “Ronald D. Veteto, Plaintiff v. Swanson Services Corp., et al., Defendants.” Under the reasoning of Thread- gill, supra, 407 So.2d at 132, this oblique reference to the DOC defendants is not sufficient to put anyone on notice that the appeal was being taken as to them in addition to being taken from the two specific judgments referenced as the subjects of the appeal, which involved only Swanson.

As explained in Gollotte, supra, 582 So.2d at 463, a summary judgment entered in favor of one defendant in a two-defendant lawsuit, followed by a dispositive ruling in favor of the second defendant, is, under the circumstances involved in both Gollotte and this case, “in no way incorporated into, or a necessary element leading up to” the subsequent judgment in favor of the codefendant. This is so even though the entry of the later dispositive judgment made the first one final and appealable. As noted in both Edmondson, supra, and Threadgill, supra, Rule 3(6), Ala. R.App. P., specifying the form of the notice of appeal, is not designed “to catch the unwary on technicalities,” but rather, under Rule 3(6), “[a] simple statement indicating what judgments the appellant appeals from is all that is required.” (Edmondson, 341 So.2d at 484, and Threadgill, 407 So.2d at 132.) Rule 3, Ala. R.App. P., “provides an uncomplicated means of effecting an appeal.” Threadgill, 407 So.2d at 132.

As noted, Veteto has already previously filed petitions for a writ of mandamus in both the Court of Civil Appeals and this Court during the course of this case. In his briefs in this appeal, he cites, and intelligently discusses, the holdings in 32 cases from the Alabama Court of Civil Appeals, the Court of Criminal Appeals, this Court, numerous federal circuit courts of appeals, and the United States Supreme Court, along with numerous federal and state constitutional and statutory provisions. We note that Veteto has been a frequent and prolific filer of appeals and various petitions in the Court of Civil Appeals, the Court of Criminal Appeals, and this Court. The records of this Court for only the years 1999, 2000, 2001, and 2002, indicate that during that period Veteto has petitioned this Court for a writ of certiora-ri in four civil proceedings instituted by him in the Jefferson Circuit Court and the Escambia Circuit Court involving unrelated claims and unrelated defendants. In a letter to the circuit clerk in this case, Veteto advised that he has “filed numerous lawsuits in many different jurisdictions and venues.... ” Clearly he is no pro se “naif’ incapable of ascertaining how he should designate in his notice of appeal the particular judgments to which the appeal is directed. He knew that the DOC defendants were being represented by two assistant attorneys general, whose names and addresses were provided. As far as the record reflects, the attorney general has received no notification of the pen-dency of this appeal, and he has not filed an appearance in it.

Accordingly, because Veteto specifically stated in his notice of appeal that he was appealing “from the dismissal of this civil action with prejudice for want of prosecution, entered in this action by the trial court December 9, 2002, and from the denial of the Veteto’s Rule 59, Ala. R. Civ. P., postjudgment motion entered February 16, 2003,” and because he did not indicate any intention to appeal from the earlier, completely separate, summary judgment in favor of the DOC defendants, we hold that the propriety of that judgment is not before us.

Turning next to Veteto’s claim against Swanson, we find the following facts dis-positive.

Veteto alleged numerous claims and grievances against Swanson in his complaint, including various tort theories and breaches of contract. Commencing on October 30, 2001, and continuing intermittently thereafter, Veteto filed numerous motions seeking to have the trial court compel discovery from Swanson. Swanson filed responses to each item of written discovery propounded by Veteto. None of Veteto’s written discovery is contained in the record. When he filed a motion to compel discovery on November 13, 2001, seeking an order compelling Swanson to “properly answer” his first set of interrogatories and to produce the “documents and things” he had requested, Veteto did not file the relevant portions of any of his interrogatories or production requests as is permitted by Rule 5(d)C., Ala. R. Civ. P. Veteto did loosely describe in his motion the general thrust of eight interrogatories, but not in such a way that the trial judge could have reviewed the motion and understood exactly the content of the interrogatories in question.

Subsequently, Veteto purported to amend his complaint. The trial judge struck the proffered amendment and also granted Swanson’s pending motion to compel Veteto to answer its interrogatories and to respond to its requests for production. Veteto never provided such responses or answers. Several times Swanson filed responses to Veteto’s motions to compel to explain that Swanson did not have in its possession the documents sought, except for one produced receipt. Swanson stated in a response that it had “produced every relevant document in its possession in an effort to provide full discovery to the plaintiff.”

At various times Swanson moved to take Veteto’s deposition, and he counter-moved to have an exchange of depositions at the prison where he was incarcerated, whereby Swanson’s “designated representative” would appear and produce broadly described records. Neither deposition was ever taken.

On July 24, 2002, the trial judge set the case for trial on December 9, 2002, and timely issued notice of the trial date to Veteto and Swanson. On August 15, 2002, Veteto filed a motion for a summary judgment, supported only by references to the complaint and the fact that outstanding discovery matters remained. In that motion Veteto purported to recite 10 interrogatories to which Swanson had responded but not answered, and he made a-request that documents relating to 8 of the interrogatories be produced. This motion was not ruled upon before the scheduled trial date.

On November 27, 2002, Veteto moved for a continuance of the trial because he had “received no responses to his numerous discovery request, except for a few request for admissions,” and because the trial court had “ignored and refused to rule on and decide numerous, crucial and outstanding motions.” Further, Veteto moved the court to order Swanson immediately to schedule and participate in an exchange of depositions.

On December 5, 2002, Veteto filed his handwritten “Deposition of Ronald D. Vet-eto,” in which he recounted and criticized various actions and inactions of various DOC personnel, including the previously dismissed DOC defendants; the shortages and damaged condition of the contents of his holiday packages; and Swanson’s inability to produce the original purchase orders and other documents, allegedly constituting spoliation of material evidence. He also claimed damages for shortages and damaged food items totaling $83.86; and he asserted that he suffered “hunger, sickness, depression, worry, anxiety, emotional distress and mental anguish” from the deficient nature of the packages and his attempts subsequently “to ascertain, understand and remedy the problem against the conspiracy and concealment of the defendants.” Veteto handprinted at the end of his “deposition” a notarization form dated November 26, 2002, but then inserted in the signature blank provided for the notary public his comment, dated December 3, 2002, that “despite my repeated written and oral requests the assigned notary refused to notarize this document.”

On December 9, 2002, the appointed trial date,. Veteto failed to appear either in person or by counsel and failed to present any admissible evidence, including his own deposition, for consideration at a trial. Swanson moved the court to dismiss the case for want of prosecution. Swanson cited three opinions of this Court that it said stand for the proposition that an incarcerated individual who undertakes to proceed as a plaintiff in a civil action unrelated to his confinement is not entitled to a court order making provisions for his personal appearance at trial but rather must present his own oral or written deposition to be used at trial. On that same day, the trial court entered an order dismissing Veteto’s case with prejudice “for want of prosecution,” citing Hines v. City of Mobile, 480 So.2d 1203 (Ala.1985), one of the cases cited by Swanson. In Hines, this Court stated:

“Hines argues that the trial judge erred in dismissing the case for want of prosecution because a layman should not be held to the standard of a lawyer in knowing how to secure his own presence or testimony at trial. This issue has been raised and rejected in prior cases. We have held that a prisoner has no right to appear in person in the trial of a civil suit unrelated to his confinement. We pointed out that a prisoner could take his own oral or written deposition under Rule 30 or 31, [Ala.]R.Civ.P., to be used at trial pursuant to Rule 32(a)(3)(C), [Ala.] R. Civ. P.”

480 So.2d at 1204.

On January 3, 2003, Veteto filed a motion to vacate the judgment and for a new trial, directed at the December 9 order dismissing his case for want of prosecution; he included in the motion the following elaboration upon his inability to procure notarial services before he transmitted his “deposition”:

“I finished the deposition on November 25, 2002, and immediately notified the Law Librarian employee Guthrie, to notarize my deposition and signature. He told me that he did not yet have his license and for me to get employee [Patrice] Richie, who is licensed to notarize my document. I sent one inmate request to Richie, via an employee and another via the Intra-Facility Mail System requesting that she notarize my deposition ‘ASAP.’ I never heard from her and, fearing my deposition may be untimely, mailed it unnotarized on December 3, 2002. On December 4, 2002, Richie summoned me to the Segregation Office for the purpose of notarizing my already mailed deposition. When I asked her the date on the request, Richie admitted that it was November 27, 2002, but said she had just received my request for notarization. I do not believe that she never received the one request from the employee and the other request had taken a week to move 200 feet through the intra-facility mail system. Nevertheless, I cannot be faulted for the lack of notarization of my deposition.”

Veteto declared in the motion “under penalty of perjury that the facts, statements, and information given in my [deposition] ... [are] true and correct.” This motion was “sworn to and subscribed before” notary public Patrice R. Richie on December 31, 2002, and her official seal is affixed. Notably, Veteto does not explain why, on December 4, he did not take advantage of Richie’s offer to notarize his deposition and submit a notarized verification of the deposition he had mailed the day before.

The trial judge denied Veteto’s motion on February 16, 2003, and this appeal followed.

A long line of opinions of this Court and the Court of Civil Appeals have explained that an incarcerated civil plaintiff is not entitled to be brought from the penitentiary to testify in his own behalf. The proper remedy is for the incarcerated civil plaintiff to take his or her own testimony, either upon written questions under Rule 31, Ala. R. Civ. P., or upon oral examination under Rule 30, Ala. R. Civ. P.

This rule has been followed unwaveringly in such cases as Lightfoot v. McDonald, 587 So.2d 936 (Ala.1991); Clements v. Moncrief, 549 So.2d 479 (Ala.1989); Hines, supra; Hubbard v. Montgomery, 372 So.2d 315 (Ala.1979); and Whitehead v. Bi-Petro Marketing, Inc., 356 So.2d 150 (Ala.1978). Rule 30, Ala. R. Civ. P., explains how a party wishing to take a deposition upon oral examination should proceed. Rule 31 explains how a deposition may be taken upon written questions. Both Rule 30(a) and 31(a) contain almost identical versions of the statement that “[t]he deposition of a person confined in prison may be taken only by leave of court and on such terms as the court prescribes.” Rule 32(a)(3)(C) provides that “[t]he deposition of a witness, whether or not a party, may be used by any party for any purpose if the court finds ... that the witness is unable to attend or testify because of ... imprisonment. ...” See Whitehead v. Baranco Color Labs, Inc., 353 So.2d 793, 794 (Ala.1977).

Veteto never sought leave of court for deposing himself either orally or upon written questions but rather simply unilaterally submitted a document that purported to be a deposition but that did not comply in any respect with the provisions of Rule 30 or 31. Under Rule 30(b)(4), failing a stipulation by the parties in that regard, “the court may upon motion order that the testimony at a deposition be recorded by other than stenographic means.” Under Rule 31 the party desiring to take the deposition upon written questions must serve a notice upon every other party of the particulars of the deposition and also serve a copy of the written proposed questions. Veteto never sought leave of court to depose himself in any fashion. Rather, he simply prepared, in affidavit form, his “deposition” and then transmitted it, unno-tarized. Thus, as of the December 9, 2002, trial date, there was nothing before the trial court that could have constituted Vet-eto’s “prosecution” of the civil case.

As this Court stated in Hubbard, supra, 372 So.2d at 316, Veteto’s “position results from his own actions and not those of the defendants or the court. Incarceration alone is no excuse to avoid a dismissal for want of prosecution.” Had Veteto properly attempted to obtain leave of court to take his own deposition, a different result might well obtain. See Feagin v. Stokes, 837 So.2d 857 (Ala.Civ.App.2002), and McConico v. Culliver, 872 So.2d 872 (Ala.Civ.App.2003).

In his motion to vacate the judgment and for a new trial, Veteto makes the general statement, without any explanation or citation to authority, that his lawsuit is “related to [his] confinement.” This is contrary to the holding in McConico, supra, that the prisoner’s tort claims against another inmate for assault; against a lieutenant and a deputy warden at the prison for an alleged “cover-up” of the assault and retaliatory actions; and against Commissioner Haley for alleged negligence in failing to train, and in promoting, the deputy warden, were all unrelated to the conditions of McConico’s confinement. Likewise, in Clements, supra, the prisoner sued several prison officials alleging that their negligence had resulted in the prisoner’s injury on a piece of equipment at the prison. This Court treated those claims by the prisoner as being “unrelated to his confinement.” 549 So.2d at 481. Moreover, Veteto does not present this issue in his primary brief on appeal, and in his reply brief he simply states in conclusion-ary fashion that he “did present a claim directly related to his confinement,” without any elaboration or citation to authority.

Veteto’s principal argument to this Court concerning the dismissal of his claims against Swanson for want of prosecution is that he “fully complied with Rules 30 or 31 and 32(a)(3)(C), Ala. R. Civ. Proc., by taking his self-deposition after notifying Swanson and submitting this deposition for consideration prior to trial.” Nothing in the record suggests that Veteto notified Swanson of his intention to take his self-deposition, and the “deposition” he filed with the trial court was clearly noncompli-ant with Rules 30, 31, and 32. In his reply brief, Veteto asserts that he “did submit a self-deposition that was properly affirmed pursuant to 28 U.S.C. § 1746 and notarized as soon as possible thereafter.... ” Veteto does not quote from 28 U.S.C. § 1746 or explain how his purported self-deposition was “properly” affirmed in accordance with it, but again, the deposition was clearly not “on oath” as required by Rule 30(c) or Rule 31(b) (referencing Rule 30(c)).

We cannot accept Veteto’s assertion that his deposition was notarized as soon as possible following its December 3 transmission. Veteto acknowledges that he could have had it notarized on the following day, yet chose to wait until December 31, 2002, after his case was dismissed for want of prosecution, to attempt a notarization before the same notary who had offered to notarize his document on December 4. As already explained, however, even if timely “notarized,” the version of the “deposition” Veteto tendered would not have been admissible because of the Vete-to’s noncompliance with either Rule 30 or 31.

A dismissal for want of prosecution “ ‘is a matter within the discretion of the trial court, and its judgment will be reversed on appeal only if there is an abuse of that discretion.’ ” Feagin, supra, 837 So.2d at 860 (quoting M.J.F. v. J.W., 680 So.2d 302, 303 (Ala.Civ.App.1996)). This Court has held likewise in a number of cases, observing that a trial court has the inherent power to dismiss a cause for a want of prosecution and that the dismissal will be reversed only if it is shown that the trial court exceeded its discretion in dismissing the cause. Riddlesprigger v. Ervin, 519 So.2d 486 (Ala.1987); and Burdeshaw v. White, 585 So.2d 842 (Ala.1991). We conclude that the trial judge did not exceed his discretion in dismissing Veteto’s claims against Swanson for want of prosecution at the scheduled trial date, given the state of the record at that time.

AFFIRMED.

SEE, BROWN, JOHNSTONE, and STUART, JJ., concur.

      . " 'This court takes judicial notice or has judicial knowledge of contents of its records with reference to its previous consideration of litigation presently before it.’ ” Morrow v. Gibson, 827 So.2d 756, 762 (Ala.2002) (quoting Federal Deposit Ins. Corp. v. Equitable Life Assur. Soc., 289 Ala. 192, 194, 266 So.2d 752, 753 (1972)).


author: LYONS, Justice.

text:
    Kathy KING v. HEAD START FAMILY HAIR SALONS, INC.
    1021814.
    Supreme Court of Aabama.
    Jan. 16, 2004.
    Rehearing Denied March 12, 2004.
    Robin B. Stephens and J. Rushton McClees of Sirote & Permutt, P.C., Birmingham, for appellant.
    John E. Medaris, Pelham, for appellee.
   LYONS, Justice.

Kathy King appeals from the trial court’s preliminary injunction enforcing a noncompetition agreement between King and Head Start Family Hair Salons, Inc. (“Head Start”). We reverse and remand.

King has worked as a hair stylist for over 25 years. She is a single mother and provides financial support for her daughter, who is in college. Hair styling is King’s only vocation. During the 25 years she has been a hair stylist, King has been employed by several different entities rendering hair-care services. The hair-care services offered by Head Start include haircuts, hair coloring, and permanents; it offers those services for both men and women. Head Start had 30 locations throughout Jefferson and Shelby counties. King was employed by Head Start for approximately 16 years; for most of that time she performed duties as a stylist and, from October 1995 to September 1996, she also managed one of the company’s facilities in Shelby County.

In early March 2003, King left her employment with Head Start and began working for another hair-care entity, Sports Clips, as a manager at its Pelham location. The only hair-care service Sports Clips offers is haircuts, and its primary customers are men and boys. Sports Clips is located in the same shopping center as is the Head Start facility at which King had been employed at the time of her resignation. King apparently contacted several of her former coworkers at Head Start in an effort to get them to leave Head Start and work for Sports Clips. After King had been working at Sports Clips for several weeks, she received a letter from counsel for Head Start. The letter informed her that by working as a manager for Sports Clips and by attempting to recruit Head Start employees to work at Sports Clips, she was violating the “Employee Non-Disclosure and Non-Competition Agreement” (“the noncompet-ition agreement”) she had signed in 1995 while she was employed as a manager of one of Head Start’s facilities.

The noncompetition agreement prohibited King from working at a competing business within a two-mile radius of any Head Start facility for a period of 12 months after she left the employ of Head Start and prohibited her from recruiting Head Start employees. King continued her employment with Sports Clips after she received Head Start’s letter, and Head Start sued King. Head Start filed a motion for a preliminary injunction, seeking to enforce the noncompetition agreement. Head Start also filed an injunction bond in the amount of $2,000.

At the hearing on the preliminary injunction, King testified that she left Head Start to work as a manager for Sports Clips, but she assumed that the noncom-petition agreement was invalid because she believed that her employment file, which contained the noncompetition agreement, had been lost or destroyed. Several of Head Start’s current employees testified that King had contacted them about leaving their jobs at Head Start to go to work for Sports Clips. The trial court found that King was violating the noncompetition agreement and entered an injunction prohibiting her from working in the hair-care industry within a two-mile radius of a Head Start facility for a period of 12 months after her employment at Head Start had been terminated.

King argues on appeal that Head Start did not meet its burden of proving that the noncompetition agreement is valid and enforceable. Section 8-1-1, Ala.Code 1975, provides that contracts ' restraining business are void, with certain exceptions. The relevant exception here is set forth in § 8 — 1—1(b):

“[Ojne who is employed as an agent, servant or employee may agree with his employer to refrain from carrying on or engaging in a similar business and from soliciting old customers of such employer within a specified county, city, or part thereof so long as the ... employer carries on a like business therein.”

In construing § 8-1-1, this Court has stated that restraints on trade are disfavored; however, the terms of the noncompetition agreement will be enforced if:

“(1) the employer has a protectable interest;
“(2) the restriction is reasonably related to that interest;
“(3) the restriction is reasonable in time and place;
“(4) the restriction imposes no undue hardship.”

DeVoe v. Cheatham, 413 So.2d 1141, 1142 (Ala.1982). King contends that Head Start did not satisfy each of the four elements.

King’s most persuasive argument is that the geographic restriction contained in the noncompetition agreement imposes an undue hardship on her. King argues that the restriction — that she may not be employed by a competing business within a two-mile radius of any Head Start facility — may appear insignificant, but under the circumstances here presented, the restriction is unduly burdensome. Specifically, King states that she is 40 years old, that she has been in the hair-care industry for 25 years, and that it is the only industry in which she is skilled and the only industry in which she can find employment. She further states that, as the trial court found, Head Start has 30 locations throughout the Jefferson County and Shelby County area, making it virtually impossible for her to find employment in the hair-care industry at a facility that does not violate the terms of the noncompetition agreement. According to King, the geographic restriction constitutes a blanket prohibition on practicing her trade. King argues that she will be unable to support herself and her daughter if the geographic restriction is upheld.

King compares her situation to the situation of the employee in Sheffield v. Stoudenmire, 553 So.2d 125, 126-27 (Ala.1989), in which this Court held that a noncompet-ition agreement restricting an employee from competing within a 50-mile radius of his former employer posed an undue hardship on the employee because he was “50 years old, married, and possesse[d] significant financial obligations.” Head Start’s response to King’s argument is that no undue hardship is imposed because the geographic restriction in the noncompetition agreement here “is only a two (2) mile restriction.”

King’s circumstances are unique. When she signed the noncompetition agreement, there were approximately 15 Head Start facilities located throughout Jefferson and Shelby Counties. Now there are approximately 30 facilities located throughout the area, dramatically increasing King’s difficulties in finding employment in the haircare industry that does not violate the noncompetition agreement. It cannot reasonably be argued that King, at the age of 40 and having spent more than half of her life as a hair stylist, can learn a new job skill that would allow her to be gainfully employed and meet her needs and the needs of her daughter.

In Calhoun v. Brendle, 502 So.2d 689 (Ala.1986), this Court declined to uphold a noncompetition agreement that restricted the employee from, servicing fire-extinguishing equipment within a 100-mile radius of the business location of his former employer. Evidence was presented showing that the employee was trained and- educated only in the field of fire-equipment maintenance. The employee also was supporting his wife and an infant child. Under those circumstances, this Court held that enforcement of the non-competition agreement imposed an undue hardship on the employee because the agreement prohibited him from practicing the only trade that he knew. Calhoun, 502 So.2d at 693-94. The rationale applied in disallowing the enforcement of the non-competition agreement in Calhoun was based upon this Court’s prior statement regarding noncompetition agreements in Robinson v. Computer Servicenters, Inc., 346 So.2d 940, 943 (Ala.1977):

“Contracts restraining employment are looked upon with disfavor, because they tend not only to deprive the public of efficient service, but tend to impoverish the individual. Hill v. Rice, 259 Ala. 587, 67 So.2d 789 (1953).”

It is upon this same reasoning that we reverse the trial court’s order entering a preliminary injunction enforcing the non-competition agreement. Under the circumstances presented here, enforcement of the noncompetition agreement works an undue hardship upon King. Notwithstanding any protectable interest Head Start may have, the noncompetition agreement cannot so burden King that it would result in her impoverishment. Calhoun, 502 So.2d at 693.

Head Start is nevertheless entitled to some of the protection it sought in the noncompetition agreement. Head Start has a valid concern that King would be able to attract many of her former Head Start customers if she is allowed to provide hair-care services unencumbered by any limitations. “An agreement in restraint of trade may be divisible. An unreasonable limitation or restriction may be stricken.... ” Cullman Broad. Co. v. Bosley, 373 So.2d 830, 835 (Ala.1979). Furthermore, “a court of equity has the power to enforce a contract against competition although the territory or period may be unreasonable, by granting an injunction restraining the respondent from competing for a reasonable time and within a reasonable area.” Mason Corp. v. Kennedy, 286 Ala. 639, 645, 244 So.2d 585, 590 (1971). To prevent an undue burden on King and to afford some protection to Head Start, the trial court should enforce a more reasonable geographic restriction — such as one prohibiting King from providing haircare services within a two-mile radius of the location of the Head Start facility at which she was formerly employed or imposing some other limitation that does not unreasonably interfere with King’s right to gainful employment while, at the same time, protecting Head Start’s interest in preventing King from unreasonably competing with it during the one-year period following her resignation. Indeed, King invites a limitation of a two-mile radius from the location of the Head Start facility at which she was last employed in the event this Court finds that the noncompetition agreement is otherwise enforceable:

“Ms. King respectfully requests that this Honorable Court reverse the trial court’s grant of a preliminary injunction and instruct the trial court to either dissolve its injunction altogether or modify its injunction to restrict Ms. King from competing within a two mile radius of the Head Start location where she worked as of the time of her last employment with Head Start.”

King’s reply brief, p. 18 (emphasis added). Head Start also has a valid objection to King’s actively recruiting its employees. King does not object to the enforcement of this portion of the noncompetition agreement in the event this Court finds that the agreement is otherwise enforceable.

The restriction in the noncompetition agreement prohibiting King from working in the hair-care industry within a two-mile radius of any of Head Start’s 30 locations is unduly burdensome, and the trial court’s order enforcing that restriction is therefore reversed and the case remanded. On remand, the trial court should prohibit King from competing with Head Start only within a two-mile radius of the location of the Head Start facility at which she was last employed and from actively recruiting its employees, or it should impose some other reasonable limitation that protects King’s right to gainful employment while simultaneously protecting Head Start from unreasonable competition from King during the one-year period following her resignation. We remand this case for further proceedings consistent with this opinion.

REVERSED AND REMANDED.

HOUSTON, JOHNSTONE, WOODALL, and STUART, JJ., concur.

      . The parties differ as to how many locations Head Start has in Jefferson and Shelby Counties. King states that there are 30; Head Start states that there are about 17. However, the trial court heard ore tenus evidence from both parties during the hearing on the preliminary injunction and concluded that there are 30 Head Start locations in the area. Under the ore tenus rule, we will assume that the trial court's finding on this issue is correct. See Yates v. El Bethel Primitive Baptist Church, 847 So.2d 331, 345 (Ala.2002).