author: THOMAS, J.,

text:
    Latesha Lavette OSBORNE, Appellant, v. STATE of Mississippi, Appellee.
    No. 2002-KA-00875-COA.
    Court of Appeals of Mississippi.
    April 15, 2003.

      David Clay Vanderburg, attorney for appellant.
    Office of the Attorney General, by Jeffrey A. Klingfuss, attorney for appellee.
    Before SOUTHWICK, P.J., THOMAS and CHANDLER, JJ.
   THOMAS, J.,

for the court.

¶ 1. Latesha Lavette Osborne was convicted in the Circuit Court of DeSoto County of aggravated assault and sentenced to twenty years in the custody of the Mississippi Department of Corrections with the last fourteen years of the sentence suspended pending good behavior. Aggrieved, she asserts the following issues on appeal:

I. THE TRIAL COURT ERRED IN DENYING DEFENDANT’S MOTION FOR MISTRIAL WHEN THE STATE’S WITNESS STATED THAT THE DEFENDANT WAS GAY.
II. THE TRIAL COURT ERRED IN DENYING THE JURY INSTRUCTION D-2, THE SELF-DEFENSE JURY INSTRUCTION.
III. THE TRIAL COURT ERRED IN DENYING THE LESSER-INCLUDED JURY INSTRUCTION OF SIMPLE ASSAULT.

Finding no error, we affirm.

FACTS

¶ 2. Latesha Osborne and two of her friends were riding down Goodman Road in DeSoto County on December 20, 2001. They passed a vehicle which contained Samantha Yates, Freddie Lockett, and Lena Pate. Although testimony at trial differed as to the remaining facts, shortly after they passed each other both vehicles ended up at a small gas station in DeSoto County. Osborne testified that she was attacked by Freddie Lockett. Witnesses for the State testified that Osborne approached Lockett first with a box cutter. According to testimony, when Lockett ran out of her reach, she went back by his car, stuck the box cutter in through the rolled down window, and cut Samantha Yates on the neck.

¶ 3. At trial, Osborne testified that she did not have a box cutter and did not touch Samantha Yates or cut her at any time but instead that she fought with Freddie Lock-ett in self-defense. At the conclusion of trial, the jury found Osborne guilty of aggravated assault, and she was sentenced to twenty years with the last fourteen suspended. Osborne then perfected this appeal to this Court.

ANALYSIS

I. DID THE TRIAL COURT ERR IN DENYING DEFENDANT’S MOTION FOR MISTRIAL WHEN THE STATE’S WITNESS STATED THAT THE DEFENDANT WAS GAY?

¶ 4. Osborne asserts that the trial court erred in denying her motion for mistrial when Lena Pate, an eyewitness for the State, testified on direct examination that Osborne was “gay,” implying that Osborne was homosexual. Pate made the statement twice, and both times Osborne’s counsel objected on the grounds of hearsay and relevancy. The trial court sustained both objections and admonished the jury to disregard the testimony. Osborne’s counsel then moved for a mistrial which the trial court denied. Osborne now asserts that she was denied a fair and impartial trial because of Pate’s testimony in front of the jury.

¶ 5. “Case law unequivocally holds that the trial judge ‘is in the best position for determining the prejudicial effect’ of an objectionable comment.” Alexander v. State, 602 So.2d 1180, 1182 (Miss.1992). The trial judge is vested with discretion to determine whether a comment is so prejudicial that a mistrial should be declared. Edmond v. State, 312 So.2d 702, 705 (Miss.1975). Absent “serious and irreparable damage,” the trial judge should request the jury to disregard the improper statement and deny any motion for a mistrial. Roundtree v. State, 568 So.2d 1173, 1178 (Miss.1990). “It is well settled that when the trial judge sustains an objection to testimony and he directs the jury to disregard it, prejudicial error does not result.” Estes v. State, 533 So.2d 437, 439 (Miss.1988). We presume that the jurors will follow the instructions given by the court. Payne v. State, 462 So.2d 902, 904 (Miss.1984). “To presume otherwise would be to render the jury system inoperable.” Johnson v. State, 475 So.2d 1136, 1142 (Miss.1985).

¶ 6. In applying the law to the facts in the case at bar, we hold that the trial judge did not abuse his discretion by refusing to declare a mistrial. The comment was minimally prejudicial, if at all. Osborne herself referred to the comment in her own testimony as being a reason for the confrontation at the gas station. When asked about the motive the State’s witnesses would have to testify that she had cut Yates’ throat, Osborne testified, “We’ve had previous confrontations. They don’t like me for some reason. Over ... like she was trying to tell you earlier, over a girl.” Osborne seems to be referring to the testimony of Lena Pate about her girlfriend and that she was gay. This issue is without merit.

II. DID THE TRIAL COURT ERR IN DENYING THE JURY INSTRUCTION D-2, THE SELF-DEFENSE JURY INSTRUCTION?

¶ 7. Osborne asserts that the trial court erred in denying her jury instruction D-2, which was a self-defense instruction. The State asserts that there was no evidence that Osborne acted in self-defense. Osborne testified that she was attacked by Freddie Lockett and that she acted in self-defense in fighting with him. However, she repeatedly testified that she had no contact with Samantha Yates, the victim. Osborne testified that at no point did she touch, cut, or otherwise harm Yates and that she did not know how she was cut or who did it.

¶ 8. This is very similar to the case of Oatis v. State, 726 So.2d 1230 (Miss.Ct.App.1998). In Oatis, a defendant was charged with aggravated assault on a police officer. Oatis, 726 So.2d at 1231(¶ 1). The defendant claimed that he never touched the officer, but requested a self-defense instruction which the trial court denied. Id. at 1233(¶ 7). This Court held on appeal, “without Oatis saying that he hit the officer in necessary self-defense, there is no basis to instruct the jury as to that possibility.” Id. at (¶ 8). “Quite simply, self-defense was not Oatis’s explanation for what happened.” Id. “Whether the self-defense issue — or any other issue of fact — should be submitted to the jury ultimately turns on whether there is in the record credible evidence supporting it.” Anderson v. State, 571 So.2d 961, 964 (Miss.1990).

¶ 9. Osborne claimed to have no idea how Yates was injured. Along with this claim, there was no evidence to support a self-defense instruction. The trial court did not err in denying the instruction. This issue is without merit.

III. DID THE TRIAL COURT ERR IN DENYING THE LESSER-INCLUDED JURY INSTRUCTION OF SIMPLE ASSAULT?

¶ 10. Osborne asserts that the trial court erred in denying her lesser-included offense jury instruction of simple assault. Osborne contends that she was fighting in self-defense and denies having had a weapon. In her brief, Osborne states that any injuries received by Yates were the result of a fist fight and therefore would come under simple assault. This contradicts Osborne’s testimony where she stated that she did not touch Yates and had no idea how she was injured.

¶ 11. The Mississippi Supreme Court has stated that “the evidence in a particular case generally warrants granting a lesser-included offense instruction if a 'rational’ or a ‘reasonable’ jury could find the defendant not guilty of the principal offense charged in the indictment, yet guilty of the lesser-included offense.” Biggers v. State, 741 So.2d 1003, 1007(¶ 17) (Miss.Ct.App.1999). Like the case in Biggers, in the case at bar Osborne was either not guilty since she claimed she did not know how Yates was injured and that she did not touch Yates, or she was guilty of aggravated assault as she caused injury under circumstances manifesting extreme indifference to the value of human life using a means likely to produce serious bodily harm. Id. at 1007(¶ 18). Yates was cut on the neck by some sort of sharp object. Eyewitness testimony by multiple witnesses was that Osborne inflicted the injury on Yates with a box cutter. There was no evidence to support a lesser-included offense instruction for simple assault. This issue is without merit.

¶ 12. THE JUDGMENT OF THE CIRCUIT COURT OF DESOTO COUNTY OF CONVICTION OF AGGRAVATED ASSAULT AND SENTENCE OF TWENTY YEARS IN THE CUSTODY OF THE MISSISSIPPI DEPARTMENT OF CORRECTIONS WITH THE LAST FOURTEEN YEARS SUSPENDED AND PAY RESTITUTION OF $2,000 IS AFFIRMED. ALL COSTS OF THIS APPEAL ARE ASSESSED TO DESOTO COUNTY.

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


source: Caselaw Access Project

author: IRVING, J.,

license: Public Domain

text:
    Douglas JOHNSON, Appellant, v. BAPTIST MEMORIAL HOSPITAL-GOLDEN TRIANGLE, INC., and Baptist Memorial Health Care Corporation, Appellees.
    No. 2002-CA-00207-COA.
    Court of Appeals of Mississippi.
    April 15, 2003.

      Jim Waide, Tupelo, Attorney for Appellant.
    John Wade Simmons, Paul E. Prather, Sylvia Rae Adams, Memphis, TN, Attorneys for Appellees.
    Before KING, P.J., LEE, and IRVING, JJ.
   IRVING, J.,

for the court.

¶ 1. Douglas Johnson sued Baptist Memorial Hospital-Golden Triangle (BMH-GT) and Baptist Memorial Health Care Corporation (BMHCC) for breach of a written contract that he entered into with BMH-GT. He alleged that the two corporations failed to give him the six-month notice required by his contract with BMH-GT before BMHCC demanded that he resign from his position as administrator.

¶ 2. BMH-GT and BMHCC filed separate motions for summary judgment which were granted by the Circuit Court of Lowndes County. In this appeal, Johnson alleges that the trial court erred in resolving factual issues when it found (1) that BMH-GT and BMHCC were separate corporations, (2) that Johnson’s contract with BMHCC replaced his contract with BMH-GT, and (3) that BMHCC, as the parent corporation, did not assume or adopt the contract made between its subsidiary, BMH-GT, and Johnson.

¶ 3. We are unable to discern any basis for reversal; therefore, we affirm.

FACTS

¶4. Douglas Johnson was hired by BMH-GT on April 2, 1994, as an associate administrator. The terms and conditions of his employment with BMH-GT were embodied in an agreement which Johnson signed. One of the terms of the BMH-GT agreement provided:

In the unlikely event that Mr. Mitchell [the administrator] found that your services were no longer needed at the hospital, he has agreed to provide a transactional period of up to six months in which you would be allowed to look for another position while still working at your job. If it were determined that you were guilty of a crime or an unethical or immoral act in association with your work, this provision would not apply-

The BMH-GT agreement did not contain a definite period of duration of employment.

¶ 5. Johnson later accepted a position of administrator with BMHCC and entered into an executive severance program agreement with BMHCC. The BMHCC agreement contained separate and distinct provisions regarding severance benefits.

¶ 6. After Johnson worked at BMHCC for approximately eight months, evidence surfaced that he had pursued a relationship with a subordinate worker. BMHCC gave Johnson the option to resign or be fired. He resigned.

¶ 7. Johnson initially filed his complaint against BMH-GT. He alleged that BMH-GT terminated his employment without complying with the contract provision which gave him six months for transition. BMH-GT answered that Johnson’s employment with its corporation ended when he accepted and began employment with BMHCC, the parent corporation of BMH-GT. Johnson subsequently amended his complaint, adding the parent corporation, BMHCC, as a necessary party. He alleged that BMHCC was liable for his termination because BMHCC assumed the obligations of BMH-GT when it made Johnson its employee.

ANALYSIS AND DISCUSSION OF THE ISSUES

f 8. Johnson contends that the circuit court erred when it granted summary judgment in favor of BMH-GT and BMHCC. He explains that “whether BMH-GT and BMHCC operate as a single business enterprise or whether there were two separate entities which agreed upon a novation, involves factual issues.”

¶ 9. Because this Court recognizes each of Johnson’s issues to be an attack on the lower court’s grant of summary judgment, we shall address the issues together.

¶ 10. Our supreme court has repeatedly stated the standard of review for denials of motions for summary judgment:

Our appellate standard for reviewing the grant or denial of summary judgment is the same standard as that of the trial court under Rule 56(c) of the Mississippi Rules of Civil Procedure. This Court employs a de novo standard of review of a lower court’s grant or denial of a summary judgment and examines all the evidentiary matters before it-admissions in pleadings, answers to interrogatories, depositions, affidavits, etc. The evidence must be viewed in the light most favorable to the party against whom the motion has been made. If, in this view, there is no genuine issue of material fact, and the moving party is entitled to judgment as a matter of law, summary judgment should forthwith be entered in his favor. Otherwise, the motion should be denied. Issues of fact sufficient to require denial of a motion for summary judgment obviously are present where one party swears to one version of the matter in issue and another says to the opposite. In addition, the burden of demonstrating that no genuine issue of fact exists is on the moving party. That is, the non-movant should be given the benefit of the doubt.

McMillan v. Rodriguez, 823 So.2d 1173, 1176-77(¶ 9) (Miss.2002) (citing Heigle v. Heigle, 771 So.2d 341, 345(¶ 8) (Miss.2000))(citing McCullough v. Cook, 679 So.2d 627, 630 (Miss.1996)).

¶ 11. In considering the corporations’ motions for summary judgment, the lower court reviewed both parties’ pleadings, statements of undisputed facts, a number of depositions, affidavits and several related documents, including the BMH-GT agreement, the BHMCC executive severance program agreement, and 1999 W-2 Wage and Tax Statements from both BMH-GT and BMHCC. Following a review of these documents, the trial court concluded that there was no genuine issue of material fact and consequently granted the corporations’ motions for summary judgment. Based upon our review of the evidence considered, we find that the grant of summary judgment was proper.

¶ 12. Johnson’s argument — that there is a genuine issue of material fact — hinges upon his belief and assumption that BMH-GT and BMHCC are a part of the same corporate structure. Therefore, based on their corporate relationship, he asserts that BMHCC was responsible for the six-month transition period that BMH-GT was contractually bound to give him. However, Johnson fails to present any evidence that the corporate entities are one and the same. Moreover, the corporations’ liability is not dependent upon the establishment of a BMH-GT-BMHCC parent/subsidiary relationship. Therefore, even if this fact were in dispute, it is not fatal to the granting of the motions for summary judgment. The material fact is the identity of corporations, not the parent-subsidiary relationship. Johnson’s burden is to show that he was an employee of BMH-GT at the time of his forced resignation or that BMHCC assumed responsibility for his contract with BMH-GT. He offered nothing but his belief, assumption and conjecture. This is not sufficient to withstand a motion for summary judgment.

¶ 13. In Simmons v. Thompson Machinery of Mississippi, Inc., 631 So.2d 798, 801 (Miss.1994), our supreme court stated, “The presence of fact issues in the record does not per se entitle a party to avoid summary judgment; the court must be convinced that the factual issue is a material one, one that matters in an outcome determinative sense, and the existence of a hundred contested issues of fact will not thwart summary judgment where there is no genuine dispute regarding the material issues of fact.”

¶ 14. Mississippi has long followed the employment at-will doctrine where an employee may quit or be terminated from his job for good reason, bad reason, or no reason at all. Slatery v. Northeast Mississippi Contract Procurement, Inc., 747 So.2d 257, 259(¶ 5) (Miss.1999). Our State applies the employment at-will rule where there is no employment contract or where there is a contract which does not specify the term of the worker’s employment. Perry v. Sears, Roebuck & Co., 508 So.2d 1086, 1088 (Miss.1987).

¶ 15. The BMH-GT agreement was only applicable to the position of associate administrator and was for no definite period of time. Thus, either Johnson or BMH-GT was free to end Johnson’s employment as associate administrator at any time. Johnson exercised his right to terminate his employment relationship with BMH-GT and began employment with BMHCC as an administrator. By doing so, Johnson relieved himself and BMH-GT of any obligations under the BMH-GT agreement. Johnson did not offer any evidence that anyone with BMHCC told him or represented to him that his contract with BMH-GT would be continued upon his assumption of duties with BMHCC.

¶ 16. We further point out that even if we were to find, for all the reasons cited by Johnson, that BMHCC assumed responsibility for the contact between Johnson and BMH-GT, Johnson still cannot prevail for two reasons. First, the BMH-GT contract allowed for Johnson’s termination, without affording him the six-month transition period, upon a determination that he was guilty of a crime or an unethical or immoral act in association with his work. Johnson’s personal relationship with the director of internal audit would prevent him from receiving the benefit of the six-month transition period. Second, it is clear to this Court that the BMHCC agreement deals so comprehensively with the same subject matter as the BMH-GT agreement as to be complete in itself; therefore, we would be constrained to find that it abrogates the BMH-GT agreement. See Opportunity, L.L.C. v. Ossewarde, 136 Idaho 602, 607, 38 P.3d 1258, 1263 (Idaho 2002).

¶ 17. The BMHCC agreement, known as the Executive Severance Program, contained the following provisions:

Concept
Eligible executives will be entitled to receive severance payments, continuation of certain group health and welfare benefit programs, and outplacement assistance upon a qualifying employment termination.
Eligibility
All executives recommended for participation by the President of BMHCC, and approved by the Committee will be eligible to participate in the Program ....
An eligible executive shall commence participation in the Program as of the date the executive executes the Noncom-petition and Confidentiality Agreement.
Severance Benefit Trigger
A participant in the Program shall receive severance benefits upon a qualifying employment termination. A qualifying employment termination means an involuntary termination without “cause,” or a voluntary termination for “good reason.”
For this purpose “cause” means the occurrence of one or more of the following acts:
(1) the conviction of the participant of a felony or other crime which causes demonstrable and serious injury to BMHCC (as determined by a court of law or by an administrative agency)....
(3) the willful, gross neglect by the participant of his or her employment responsibilities; the willful gross dereliction of his or her duties; or other willful grave misconduct by the participant.

As can be discerned from the foregoing provisions, the BMHCC agreement does not provide for a six-month transaction period.

¶ 18. In conclusion, we find that the trial judge did not err in granting Baptist Memorial Hospital-Golden Triangle and Baptist Memorial Health Care Corporation’s motions for summary judgment. We reject Johnson’s assertion that the trial judge decided material issues of fact. Johnson himself admits that “[tjhere is no evidence that [BMHCC] adopted or assumed the obligations of [BMH-GT],” yet he contends that such a finding could be implied. It would indeed be a stretch to conclude that simply because a parent corporation hired an employee of one of its subsidiaries, the parent corporation had assumed the contractual arrangement between the employee and the subsidiary. Since we find no merit in Johnson’s allegations of error, we affirm the decision of the trial court.

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

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


author: CHANDLER, J.,

text:
    Jessie A. GAINWELL, Appellant, v. STATE of Mississippi, Appellee.
    No. 2001-KA-01442-COA.
    Court of Appeals of Mississippi.
    April 15, 2003.
    Jon-Marc King, Jackson, Attorney for Appellant.
    Office of the Attorney General, by Charles W. Maris, Attorney for Appellee.
    Before KING, P.J., THOMAS and CHANDLER, JJ.
   CHANDLER, J.,

for the court.

¶ 1. Jessie Gainwell was convicted in a jury trial in the Copiah County Circuit Court for domestic violence aggravated assault. The trial court sentenced him to twenty years’ imprisonment, with ten years to serve, ten years suspended, and five years’ post-release supervision. The court also ordered that Gainwell be enrolled in an alcohol and drug program. Gainwell raises the following issue on appeal:

I. WHETHER THE JURY’S VERDICT WAS CONTRARY TO THE WEIGHT AND SUFFICIENCY OF THE EVIDENCE.

Finding no error, we affirm.

FACTS

¶ 2. Jessie Gainwell and Gertrude Warmsley had an “on again, off again” relationship for at least ten years. Although never married, they were the parents of an eight-year-old son. Since September 2000, Jessie had resided in Gertrude’s home in Crystal Springs, Mississippi, along with their son and Gertrude’s nineteen-year-old daughter, Shaun Warmsley. Both Jessie and Gertrude worked at LCI, Signature Works.

¶ 3. On May 5, 2001, a fight began with a box cutter between Gertrude and Jessie in her bedroom. The testimonies of Gertrude and Jessie differ as to which was the initial aggressor. Both claim they were acting in self-defense.

¶ 4.. Gertrude testified that she was asleep when Jessie walked into the bedroom and began accusing her of sleeping with another man. She said that he then pulled out his box cutter and began to stab at her. She stated that he was on top of her when her son and daughter ran into the room yelling for Jessie to get off of her.

¶ 5. Jessie testified that he never accused her of being with another man. He stated that they were both sitting on the edge of the bed discussing Shaun’s spreading of rumors about him physically abusing Gertrude. He stated that he reached for his cigarettes which happened to be in the same pocket as his box cutter when the weapon fell on to the floor. He stated that Gertrude immediately went for the weapon and began stabbing at him. Jessie stated that he had the box cutter in his pocket because he used it at work.

¶ 6. Shaun testified that she heard her mother screaming, “Oh, he’s fixing to cut me.” She then ran into the bedroom and found Jessie on top of Gertrude. She testified that she never saw the box cutter. She also stated that she had seen Jessie drinking earlier in the night.

¶ 7. Paramedics and the Copiah County police responded to a call at the home of Gertrude concerning a woman being stabbed. When the paramedics arrived they only found Gertrude. They carried her to the hospital where she received sixteen sutures. Her wounds consisted of cuts on her left and right thumb, her right ear, and the right side of her scalp.

¶ 8. Jessie stated that after the fight he went to a friend’s house to see if he would take him to the hospital. When his friend was not home, he came back to Gertrude’s house.

¶ 9. Approximately two hours later, the police received another call from someone in Gertrude’s home stating that the man who had stabbed Gertrude was back in the house. The police found Jessie lying in the bedroom with a rag wiping the blood from his hand. He was then arrested and escorted by police to the hospital for treatment. He received three sutures to his right hand between his thumb and index finger. The treating physician, Dr. Joy Jackson, indicated that she smelled alcohol on his breath.

¶ 10. A trial was held in Copiah County Circuit Court on January 30, 2002. The State called the victim, Gertrude Warms-ley, as well as two police officers, the dispatcher, the treating physician, and Shaun, the eyewitness. For the defense, Jessie testified. At the conclusion of the trial, the jury convicted Jessie of domestic violence aggravated assault.

LAW AND ANALYSIS

I. WAS THE JURY’S VERDICT CONTRARY TO THE WEIGHT AND SUFFICIENCY OF THE EVIDENCE?

¶ 11. This Court in reviewing a trial court’s denial of a motion for a directed verdict or a JNOV must view and test the sufficiency of the evidence as a matter of law “in a light most favorable to the State.” Lewis v. State, 832 So.2d 1266, 1267(¶ 3) (Miss.Ct.App.2002). The lower court’s ruling will only be reversed where “no reasonable hypothetical juror could find beyond a reasonable doubt that the defendant was guilty.” May v. State, 460 So.2d 778, 781 (Miss.1984).

¶ 12. Similarly, the weight of the evidence is reviewed upon the trial court’s denial of a defendant’s motion for a new trial. Brown v. State, 825 So.2d 70, 76(¶ 17) (Miss.Ct.App.2002). Gainwell asserts that had the jury based its verdict on the evidence, the only conclusion it could have reached was not guilty by reason of self-defense. However, Gainwell failed to offer a motion for a new trial. This is a matter the trial judge must decide first, before any appeal is taken, and since Gain-well failed to raise this issue in a motion for a new trial, he is barred from raising this issue here. Blankenship v. State, 792 So.2d 1009, 1012(¶ 7) (Miss.Ct.App.2001).

¶ 18. Based on the record before us, this Court finds that the trial judge did not abuse his discretion in denying Gainwell’s motion for a JNOV. Gainwell asserts that the injury to his right hand indicates that it was a self-defense wound. However, Dr. Jackson testified that both Jessie and Gertrude obtained cuts to the hands indicating defensive wounds. Also, she testified that it was not impossible to cause injury to your own hand if holding the weapon.

¶ 14. This Court holds that the State put forth sufficient evidence to create a factual question that reasonable and fair minded jurors could have formed differing conclusions about whether Gainwell was acting in self-defense. Therefore, this issue is without merit.

¶ 15. THE JUDGMENT OF THE CIRCUIT COURT OF COPIAH COUNTY OF CONVICTION OF DOMESTIC VIOLENCE AGGRAVATED ASSAULT AND SENTENCE OF TWENTY YEARS IN THE CUSTODY OF THE MISSISSIPPI DEPARTMENT OF CORRECTIONS WITH TEN YEARS SUSPENDED AND FIVE YEARS OF POST-RELEASE SUPERVISION IS AFFIRMED. ALL COSTS OF THIS APPEAL ARE ASSESSED TO COPIAH COUNTY.

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


author: GRIFFIS, J.,

text:
    In the Interest of G.L.H., A Minor.
    No. 2001-CA-01963-COA.
    Court of Appeals of Mississippi.
    April 15, 2003.

      J. Mark Shelton, Tupelo, Heather Boren Emerson, Attorneys for Appellant.
    Charles R. Brettnature, Attorney for Appellee.
    Before McMILLIN, C.J., BRIDGES, and GRIFFIS, JJ.
   GRIFFIS, J.,

for the court.

¶ 1. G.L.H., a minor, was charged with simple assault and found to be a delinquent child. On appeal, G.L.H. asserts the following issues: whether the youth court’s order finding him guilty of simple assault was in error, and whether the youth court’s refusal to allow the appeal to proceed with supersedeas constitutes a denial of due process and an abuse of discretion. Finding no error, we affirm.

FACTS

¶2. On December 22, 2000, G.L.H., a minor, was employed at Captain D’s restaurant in Tupelo and was working the evening shift. Murry F., a minor, entered the restaurant that evening and sat down with some friends. There was contradicting evidence about exactly what happened that evening. At some point, a number of individuals, including G.L.H. and Murry F., left the restaurant and went outside. Murry F. was standing with the group in a grassy area near a retaining wall with a steep drop off. G.L.H. admits that he pushed Murry F. causing him to fall over a retaining wall. Murry F. was severely injured as a result of the fall. His neck was crushed, and he is now paralyzed. G.L.H. was charged with simple assault.

¶ 3. On July 26, 2001, the Lee County Youth Court judge issued an order stating that sufficient facts existed to warrant the filing of a formal petition in youth court to determine if the allegations against G.L.H. could be proven beyond a reasonable doubt. The petition was filed and a hearing was held on September 27, 2001. At the hearing, G.L.H., Murry F. and several witnesses testified. The prosecution presented the theory that the two boys were fighting over a girl, while the defense claimed it was just horseplay between two boys which resulted in a tragic accident.

¶ 4. Murry F. testified that he went to Captain D’s that night to get something to eat and catch a ride home. He testified that two girls came in, and he began speaking with one of them. While he was talking to one of the girls, G.L.H. came up to him and asked him why he was trying to “hit on his girl.” He testified that at first he thought G.L.H. was kidding, but then G.L.H. asked him to go outside. The two of them and several others then left the restaurant. Murry F. testified that he remembered G.L.H. standing on the grass and saying “come on, come on.” He walked to the edge of the concrete, stepped on the grass, and that was the last thing he could remember. He did not remember G.L.H. pushing or striking him. Additionally, Murry F. admitted that he lied in his original police statement when he said that G.L.H. pushed him from the front and that he was facing him. He claims he lied because he was under a lot of “pressure.”

¶ 5. G.L.H. testified that everyone was “just playing around,” no one was mad and there was no confrontation. He testified that he did not say anything to Murry F. about a girl. He admitted that he did run up to Murry F. and push him. However, he thought Murry F. would just “roll down a hill.” G.L.H. contended that he was not aware of the drop off. Once he saw Murry F. falling, G.L.H, tried to catch him. G.L.H. denied hitting Murry F. with his fist and said that it was just horseplay. G.L.H. testified that he did not intend to hurt Murry F.

¶ 6. Jeremy Shells and M.P., a minor, testified for the prosecution. Shells was employed at Captain D’s and was working that night. Shells testified that he did not see G.L.H. hit Murry F., but he did see G.L.H. run toward Murry F. and bump into him. However, in his statement to the police, Shells stated that G.L.H. came up behind Murry F. and hit him very slightly with his fist behind the right ear. He also testified that he did not hear an argument and that G.L.H. was not mad or angry.

¶ 7. M.P. testified that he was talking with Murry F. about a girl whose boyfriend was friends with G.L.H. M.P. saw G.L.H. and the girl’s boyfriend go outside together and told Murry F. that he would be “foolish to go outside.” M.P. did not know what happened immediately before the fall, but testified that he was not aware of any angry words between G.L.H. and Murry F. M.P. testified that he saw G.L.H. go towards Murry F. and run into him. Then, he saw Murry F. fall off the ledge. He also testified that G.L.H. indicated he was just playing around and did not mean to cause the injury.

¶ 8. Barry Douglas testified for the defense. Douglas was at Captain D’s that night to get something to eat. He claimed that he did not “hang out” with Murry F. and G.L.H., but he knew who they were. Although he did not witness the actual incident, he testified that he observed no problems or anger between the two while he was in the restaurant. He testified that he saw no conflict that could have led to a fight. Douglas did come to the aid of Murry F. after the fall, and he testified that G.L.H. looked very surprised by the accident.

¶ 9. The youth court judge found sufficient proof that G.L.H.’s conduct was a reckless act, and he found G.L.H. to be in violation of the reckless portion of the simple assault statute. The youth court judge found “[tjhere was a reckless touching that ended up being an assault with unforeseen and most probably, I am convinced, unintended serious injury.” As a result, the youth court judge found G.L.H. to be a delinquent child, within the meaning of the Mississippi Youth Court Act, and directed that he be placed on supervised probation with the Department of Youth Services. The court also sentenced G.L.H. to thirty-two hours of public service in the juvenile work program and required that he pay $200 in attorney’s fees.

¶ 10. G.L.H. submitted a timely notice of appeal with a motion to appeal with supersedeas. The motion to appeal with supersedeas was denied.

ANALYSIS AND DISCUSSION OF THE LAW

I. WHETHER THE YOUTH COURT’S ORDER ADJUDICATING G.L.H. AS A DELINQUENT CHILD AND FINDING HIM GUILTY OF SIMPLE ASSAULT WAS IN ERROR.

¶ 11. G.L.H. first challenges the sufficiency of the evidence. When the legal sufficiency of the evidence is challenged, we will not retry the facts. Rather, we must assume that the fact-finder believed the State’s witnesses and disbelieved any contradictory evidence. McClain v. State, 625 So.2d 774, 778 (Miss.1993); Griffin v. State, 607 So.2d 1197, 1201 (Miss.1992). To determine whether there is an insufficiency as to any element of the offense, we consider all the evidence as to that element in the light most favorable to the State. McClain, 625 So.2d at 778. All credible evidence which is consistent with the defendant’s guilt “must be accepted as true,” and the State is “given the benefit of all favorable inferences that may be reasonably drawn from the evidence.” Id. This Court will reverse only where, “with respect to one or more of the elements of the offense charged, the evidence so considered is such that reasonable and fair-minded jurors could only find the accused not guilty.” Id.

¶ 12. Under Mississippi law, “a person is guilty of simple assault if he (a) attempts to cause or purposely, knowingly or recklessly causes bodily injury to another; or (b) negligently causes bodily injury to another with a deadly weapon or other means likely to produce death or serious bodily harm; or (c) attempts by physical menace to put another in fear of imminent serious bodily harm.” Miss.Code Ann. 97-3-7(1) (Rev.2000). Subsection (a) is the operative provision of the simple assault statute in this case.

¶ 13. G.L.H. argues that the prosecution failed to prove all the elements of the crime, specifically intent. G.L.H. claims that the prosecution must prove, beyond a reasonable doubt, that G.L.H. intended to cause bodily injury to Murry F. G.L.H. further asserts the judge himself stated in his opinion that he was not convinced there was proof of intent, and still found G.L.H. guilty on the basis of recklessness. G.L.H. also argues that the evidence presented failed to rise to the level of recklessness, and the judge erred in this finding as well.

¶ 14. The Mississippi Supreme Court has held that it is not necessary to prove intent to convict a person of simple assault. The recklessness or negligence contemplated by the statute is in the act itself. Nobles v. State, 464 So.2d 1151, 1154 (Miss.1985). It does not refer to the subjective intent of the defendant. Id. Simple assault is the proper charge when the element of intent is absent. Markham v. State, 209 Miss. 135, 136, 46 So.2d 88, 89 (1950). Since the judge found G.L.H. guilty of simple assault under the recklessness prong of the statute, this argument is without merit.

¶ 15. This Court must now consider whether sufficient evidence existed to prove that G.L.H.’s actions were reckless. G.L.H. points to the contradictory testimony. G.L.H. challenges the credibility of Murry F. because he lied in his initial statement to the police and questions the testimony of the prosecution’s witnesses. The witnesses’ recollection of events varied. G.L.H. claims that these contradictions prove that the testimony of the prosecution’s witnesses were not reliable.

¶ 16. Where testimony is conflicting, the trial judge sitting as trier of fact, is in the best position to weigh the testimony and decide which is more credible. Carter v. Carter, 735 So.2d 1109, 1114(¶ 19) (Miss.Ct.App.1999). In a bench trial, the judge is “the jury” for all purposes of resolving issues of fact. Evans v. State, 547 So.2d 38, 40 (Miss.1989). In the present case, the judge reviewed each witnesses’s testimony and determined that:

The prosecution has a theory that it was a fight over a girl. The defense has a theory it was strictly horseplay. Somewhere in between those two extremes I am convinced that there is proof beyond a reasonable doubt that it was a reckless action; and that the juvenile is found to be in violation of the reckless aspect of the simple assault statute....

¶ 17. While it is apparent that accounts of the event differed, the most compelling testimony is G.L.H.’s admission that he pushed Murry F. No other witness disputed G.L.H.’s admission. In fact, the testimony was clear that G.L.H. either pushed or hit Murry F. causing him to sustain the injuries. G.L.H. testified that:

I seen Michael standing — standing on the hill. So I go run up and — push him so he will, like roll down the hill. So I ran up and pushed him. And about that time I pushed him, I seen that it was a drop-off, so I tried to catch him, but it was too late. He had already fell.

While G.L.H. claims that he was “just playing around,” this type of behavior certainly is capable of being considered “recklessness.” Recklessness is defined as “[cjonduct whereby the actor does not desire the consequence but nonetheless foresees the possibility and consciously takes the risk; recklessness involves a greater degree of fault than negligence but a lesser degree of fault than intentional wrongdoing.” Black’s Law Dictionary 526 (Pocket ed.1996). In Maye v. Pearl River County, the Mississippi Supreme Court held that recklessness “may mean desperately heedless, wanton or willful, or it may mean only careless, inattentive or negligence.” Maye v. Pearl River County, 758 So.2d 391, 393(¶ 16) (Miss.1999).

¶ 18. Based on these definitions, G.L.H.’s behavior was careless, inattentive and rises to the level of recklessness. G.L.H. may not have desired the consequence of the severe injury Murry F. sustained, but it was certainly foreseeable that pushing a person down a hill may cause serious injuries. Sometimes tragic injuries result from “horseplay.” Unfortunately, Murry F. sustained serious injuries because G.L.H. consciously took a risk by pushing or striking Murry F., intending that he roll down a hill.

¶ 19. G.L.H. relies on Williams v. State, 797 So.2d 372 (Miss.App.2001). In Williams, the defendant was charged with four counts of simple assault on four law enforcement officers. Id. at 374(¶ 2). The jury found Williams guilty of one count of disorderly conduct, one count of simple assault. Id.

¶ 20. G.L.H. points out that, in Williams, the defendant was found not guilty of simple assault because he did not intend to injure one of the police officers, but was only reacting to having mace being sprayed in his face. G.L.H. argues that because he did not intend to injure Murry F., he cannot be guilty of simple assault. While it is true the jury found Williams not guilty of simple assault with regard to this particular count, they did find him guilty of disorderly conduct and guilty of simple assault on a separate count. Additionally, this case is fact specific and cannot be compared to the case sub judice. Here, no intervening force existed that would have caused G.L.H. to have had a physical reaction that was out of his control. Nothing in the present case indicates any standard or precedent which would suggest that G.L.H.’s behavior was not reckless.

¶ 21. We find sufficient evidence existed for the trial judge, acting as the jury, to conclude that G.L.H. was guilty of simple assault. Therefore, we find no merit in this assignment of error.

II. WHETHER THE YOUTH COURT’S DENIAL OF ALLOWING THE APPEAL TO PROCEED SU-PERSEDEAS CONSTITUTES A DENIAL OF DUE PROCESS, AND AN ABUSE OF DISCRETION.

¶ 22. Appeals from Youth Court are governed by Miss.Code Ann. § 43-21-651(2) (Rev.2000), which provides:

The pendency of an appeal shall not suspend the order or decree of the youth court regarding a child, nor shall it discharge the child from the custody of that court or of the person, institution or agency to whose care such child shall have been committed, unless the youth court or supreme court shall so order. If appellant desires to appeal with su-persedeas, the matter first shall be presented to the youth court. If refused, the youth court shall forthwith issue a written order stating the reasons for the denial, which order shall be subject to review by the supreme court. If the supreme court does not dismiss the proceedings and discharge the child, it shall affirm or modify or reverse the order of the youth court and remand the child to the jurisdiction of the youth court for placement and supervision in accordance with its order, and thereafter the child shall be and remain under the jurisdiction of the youth court in the same manner as if the youth court had made the order without an appeal having been taken.

¶ 23. This Court has previously concluded that “an appeal does not stay the enforcement of the youth court’s disposition of the case unless supersedeas is specifically granted by either the youth court or the appellate court on review if the youth court refuses to grant it.” In the Interest of J.P.C. v. State, 783 So.2d 778, 781(¶ 8) (Miss.Ct.App.2001). This Court expounded on this principle by holding:

It does not stand to reason that the legislature, in establishing the procedures for resolving appeals from youth court, would set up a mechanism to obtain supersedeas during an appeal if the question could be unilaterally short-circuited by the juvenile simply by filing a notice of appeal immediately after the entry of the adjudication order and before the court could undertake the required disposition.

Id.

¶ 24. Accordingly, G.L.H. was required to immediately appeal the decision of the trial court refusing his motion to appeal supersedeas to the Mississippi Supreme Court, before proceeding with his appeal on the merits. The supreme court could have then reviewed the order of the youth court and determined if the judge abused his discretion. Since G.L.H did not do this, his claim on this issue is procedurally barred.

¶ 25. THE JUDGMENT OF THE LEE COUNTY YOUTH COURT IS AFFIRMED. ALL COSTS OF THIS APPEAL ARE ASSESSED TO LEE COUNTY.

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


author: PER CURIAM. JOHNSTONE, Justice

text:
    H.H.B., L.L.C. v. D & F, L.L.C. D & F, L.L.C. v. H.H.B., L.L.C.
    1001925 and 1002011.
    Supreme Court of Alabama.
    May 24, 2002.
    Rehearing Applications Denied Aug. 30, 2002.
    J.Patrick Courtney III, Mobile; and Gordon G. Armstrong III, Mobile, for H.H.B., L.L.C.
    William M. Lyon, Jr., of McFadden, Lyon & Rouse, L.L.C., Mobile; and Allan R. Chason of Chason & Chason, Bay Mi-nette, for D & F, L.L.C.
   PER CURIAM.

H.H.B., L.L.C., appeals from the trial court’s judgment reversing a zoning decision made by the Mobile City Council. D & F, L.L.C., cross-appeals from the trial court’s ruling allowing H.H.B. to intervene in the case. We affirm the trial court’s ruling as to H.H.B.’s intervention, but we reverse its judgment as to the zoning decision.

Factual Background and Procedural History

H.H.B., L.L.C., is a limited liability company, whose owners are accountants. D & F, L.L.C., is a limited liability company, whose owners are the principals of The Mitchell Company, a real-estate company, and other real-estate companies in Mobile. D & F owns a 1.7-acre corner parcel of property located at the intersection of Dauphin Street, North Florida Street, and Woodruff Street in Mobile (“the subject property”). The building in which H.H.B. is located is across North Florida Street from the subject property. All of the property in the immediate neighborhood is zoned, as defined in the zoning ordinance of the City of Mobile, R-l (One-Family Residential Districts) or B-l (Buffer Business Districts). D & F intends to build a 10,000-square-foot CVS retail discount store with 60 parking places on the subject property. In order to do so, however, D & F must have the zoning designation of the subject property changed to B-2 (Neighborhood Business Districts).

Woodruff Street is exclusively residential. Dauphin Street and North Florida Street are a mixture of residential areas and buffer-business areas. Buffer businesses are by definition those businesses in which permitted uses are uses of a semicommercial nature, such as professional offices and studios. The subject property previously consisted of eight lots, almost all of which have been zoned for the past 50 years as either R-l or B-l. During the 1960s, a drugstore occupied the corner site for several years. Before D & F acquired the property, three residences and a building used as a real-estate office were situated on it. The subject property has since been cleared and all buildings removed.

In order to obtain a zoning change, an applicant must first obtain the approval of the Mobile City Planning Commission, followed by the approval of the Mobile City Council. D & F began its efforts to obtain B-2 zoning in 1999. It withdrew its first two applications after they were submitted to the planning commission, but before the city council considered the matter. D & F submitted its third application to the planning commission in August 2000. Between the filing of the second and third applications, D & F voluntarily incorporated numerous changes to its plans and restrictions on otherwise acceptable B-2 uses in an effort to accommodate the concerns of residents of the neighborhood. Those changes and restrictions included eliminating any use that could be made of the property under B-2 zoning except for a drugstore, designing a building that would be architecturally compatible with the neighborhood’s surrounding buildings, not allowing the sale of beer and wine, not providing outside telephones, restricting dumpster pickups to daylight hours, and constructing a brick wall behind the store. Despite D & F’s efforts, however, the planning commission’s staff recommended to the commission, as it had with the first two applications, that it deny the third application. In spite of its staffs recommendation, the planning commission, in September 2000, voted 6-2 to recommend to the city council that it approve D & F’s application to change the subject property’s zoning designation to B-2. The planning commission’s recommendation was subject to the conditions and restrictions D & F had voluntarily attached to its application. The proposed amendment to the zoning ordinance to effectuate the zoning change for the subject property was presented to the city council in October 2000. Although the council members voted 4-3 to approve the amendment to the zoning ordinance, § 11-44C-28, Ala.Code 1975, requires a “supermajority” of the city council before an ordinance can be adopted, which meant that five votes were required in order for the amendment to the zoning ordinance to become effective; the amendment was therefore denied. In December 2000, D & F appealed the denial of the zoning-ordinance amendment to the Mobile Circuit Court. D & F alleged that the city council’s denial of its requested zoning change was “arbitrary and capricious,” that it bore “no substantial relationship to the health, safety, morals, or general welfare of the City of Mobile,” and that the decision not to rezone the subject property was “not fairly debatable” because D & F was not seeking to change the basic use of the property.

On June 6, 2001, the day before the case was set for trial, H.H.B. filed a motion to intervene as a party in the case pursuant to Rule 24, Ala. R. Civ. P. H.H.B. explained that it had not sought to intervene earlier because it did not know it had a right to do so and it did not know that a trial date had been set. D & F objected to the intervention. After a hearing, the trial court concluded that H.H.B., as a neighboring landowner, “had an absolute right to intervene under Rule 24.” H.H.B. participated in the nonjury trial along with D & F and the City of Mobile.

At the conclusion of the bench trial, the trial court requested briefs from the parties. The court then entered a written order in which it concluded that the City’s decision not to amend the zoning ordinance to change the zoning of the subject property to B-2 was arbitrary and capricious as applied to D & F, that keeping the subject property zoned R-l and B-l bore no substantial relationship to the health, safety, morals, or general welfare of the City, and that the City’s decision not to rezone was not fairly debatable because D & F was not seeking to change the basic use of the property. Only H.H.B. appealed. The City is not a party to these appellate proceedings.

Intervention

We first address D & F’s argument in its cross-appeal that the trial court erred when it allowed H.H.B. to intervene in this case. D & F contends that H.H.B. lacked standing to intervene, that its intervention therefore was not proper, and that it lacks standing to appeal.

D & F argues that H.H.B. lacked standing to intervene because, it says, there was no justiciable controversy at the time it entered into the case, and it now lacks standing to appeal because, D & F says, any previously arguable justiciable claim has been eliminated. D & F relies upon testimony by one of H.H.B.’s corporate representatives, Randy Jones, that the accounting firm did not oppose the subject property’s being used as a drugstore, but opposed only the change in zoning to B-2, which would have permitted the property to be used in other ways. Jones stated:

“Q. Now, I take it that you object to this project.
“A. We object not necessarily to the project, but to B-2 zoning.
“Q. So you don’t object to the drugstore?
“A. No, sir, never have.
“Q. Okay. And there is nothing about a drugstore that really causes you any injury or problem?
“A. Not a real drugstore. But this is more like — I mean, the drugstores nowadays that CVS, Rite-Aid, and Walgreen seem to be putting up are like small little Wal-Marts. They sell everything.... [A]nd they are ten, fifteen thousand square-feet buildings. They’re not like the small neighborhood drugstore was 20, 40 years ago.
“Q. Okay. So when you said you didn’t object to a drugstore, you don’t object to a small drugstore.
“A. In the neighborhood, no, sir.”

Jones further testified that one of the reasons his firm had chosen to locate in the neighborhood was that it would be surrounded by B-l businesses and that all of the corners of the intersection next door to it were zoned B-l. He stated that the primary reason his firm had decided to intervene was that its principals were concerned with the effect B-2 zoning would have on their property. He also testified that H.H.B. also intervened because it wanted to have the option to appeal the circuit court’s decision if the City decided not to do so.

Although there is no express statutory authority that allows H.H.B. to intervene to object to a rezoning, H.H.B.’s concerns are analogous to a third party’s right to intervene as an “aggrieved party” pursuant to § 11-52-80, Ala.Code 1975, in an appeal from a zoning board of adjustment’s decision to grant a variance in zoning regulations. This Court discussed the issue of an aggrieved party’s standing in

Ex parte Steadham, 629 So.2d 647 (Ala.1993):

“ ‘In order for a party to have standing to challenge the decision of a zoning board of adjustment he must be a “party aggrieved.” To establish himself as a “party aggrieved” he must present “proof of the adverse effect the changed status of the rezoned property has, or could have, on the use, enjoyment and value” of his own property.’ ”

629 So.2d at 648 (quoting Crowder v. Zoning Bd. of Adjustment, 406 So.2d 917, 918 (Ala.Civ.App.1981), quoting in part Cox v. Poer, 45 Ala.App. 295, 297, 229 So.2d 797, 799 (1969)). After reviewing Jones’s testimony in light of the above principles, we conclude that H.H.B. presented enough evidence to show that rezoning the subject property to B-2 could have an adverse effect on H.H.B.’s property. Therefore, H.H.B. had standing to intervene in this case and has standing to appeal the circuit court’s judgment.

D & F also argues, apart from the issue of standing, that the trial court should not have allowed H.H.B.’s intervention. In Root v. City of Mobile, 592 So.2d 1051, 1052-58 (Ala.1992), this Court discussed intervention pursuant to Rule 24:

“Generally a ruling on a motion to intervene is within the sound discretion of the trial court and will not be disturbed on appeal unless there is an abuse of discretion. Dearmon v. Dearmon, 492 So.2d 1004 (Ala.1986). See, also, Randolph County v. Thompson, 502 So.2d 357, 364 (Ala.1987), wherein this Court specifically noted that a trial court’s ruling with respect to the timeliness of a motion to intervene is governed by an abuse-of-discretion standard:
“ ‘Since the rule, itself, is silent concerning what constitutes a “timely application,” it has long been held that the determination of timeliness is a matter committed to the sound discretion of the trial court. See Strousse v. Strousse, 56 Ala.App. 436, 322 So.2d 726 (1975). See also McDonald v. E.J. Lavino Co., 430 F.2d 1065, 1072 (5th Cir.1970).’
“Therefore, the dispositive issue in this case is whether the trial court abused its discretion in denying the motion to intervene.”

H.H.B. explained to the trial court that it did not intervene until the eve of trial because it did not know that it had a right to intervene and because it did not know that a trial date had been set in the case. In light of that explanation, and considering H.H.B.’s status as a landowner affected by the proposed rezoning, we cannot say that the trial court abused its discretion in permitting H.H.B. to intervene.

Zoning

Judicial review of municipal decisions regarding zoning ordinances is severely limited. In American Petroleum Equipment & Construction, Inc. v. Fancher, 708 So.2d 129 (Ala.1997), this Court discussed the standard of review that both the trial court and this Court must apply in reviewing those decisions.

“It is settled law that the Alabama Legislature has delegated to municipal legislative bodies, such as city councils, the power and authority to enact zoning ordinances. Section 11-52-76, Ala.Code [1975], provides that ‘[t]he legislative body of such municipality shall provide for the manner in which such [zoning] regulations and restrictions and the boundaries of such districts shall be determined, established and enforced.’ The power to amend, supplement, or change zoning ordinances ‘as may be necessary’ from ‘time to time’ is also delegated to municipal legislative bodies. Id. See BP Oil Co. v. Jefferson County, 571 So.2d 1026, 1028 (Ala.1990), citing Village of Euclid, Ohio v. Ambler Realty Co., 272 U.S. 365, 47 S.Ct. 114, 71 L.Ed. 303 (1926).
“In Homewood Citizens Association v. City of Homewood, 548 So.2d 142 (Ala.1989), this Court discussed the law applicable to a court’s review of a city’s action in zoning cases, stating that ‘[w]hen a municipal body acts either to adopt or to amend a zoning ordinance, it acts in a legislative capacity and the scope of judicial review of such action is quite restricted.’ 548 So.2d at 143. The restrictions on this Court’s review of the validity of a zoning ordinance have been explained as follows:
“ ‘ “Zoning is a legislative matter, and, as a general proposition, the exercise of the zoning power should not be subjected to judicial interference unless clearly necessary. In enacting or amending zoning legislation, the local authorities are vested with broad discretion, and, in cases where the validity of a zoning ordinance is fairly debatable, the court cannot substitute its judgment for that of the legislative authority. If there is a rational and justifiable basis for the enactment and it does not violate any state statute or positive constitutional guaranty, the wisdom of the zoning regulation is a matter exclusively for legislative determination.
“ ‘ “In accordance with these principles, it has been stated that the courts should not interfere with the exercise of the zoning power and hold a zoning enactment invalid, unless the enactment, in whole or in relation to any particular property, is shown to be clearly arbitrary, capricious, or unreasonable, having no substantial relation to the public health, safety, or welfare, or ... plainly contrary to the zoning laws.” ’
“Homewood Citizens Association, 548 So.2d at 143 (quoting 82 Am.Jur.2d Zoning and Planning § 338 (1976)). The Court further stated in Homewood Citizens Association that ‘[t]he burden is upon the party seeking relief from an ordinance to show that the ordinance was not a fairly debatable issue before the municipal governing body.’ 548 So.2d at 144.”

708 So.2d at 131 (emphasis added). The Court went on in American Petroleum to discuss the “fairly debatable” rule.

“The ‘fairly debatable’ rule concerns the application of a zoning classification to a specific parcel of property. Byrd Companies v. Jefferson County, 445 So.2d 239, 247 (Ala.1983). ‘ “[Iff the application of a zoning classification to a specific parcel of property is reasonably subject to disagreement, that is, if its application is fairly debatable, then the application of the ordinance by the zoning authority should not be disturbed by the courts." Id., quoting Davis v. Sails, 318 So.2d 214 (Fla.Dist.Ct.App.1975). Thus, if the zoning ordinance is ‘subject to controversy or contention’ or ‘open to question or dispute,’ it is ‘fairly debatable’ and should not be disturbed by the courts. Aldridge v. Grund, 293 Ala. 333, 342, 302 So.2d 847, 854 (1974); Cudd v. City of Homewood, 284 Ala. 268, 271, 224 So.2d 625, 628 (1969).”

708 So.2d at 131 (emphasis added).

Under the highly deferential standard we must apply in this case, we cannot say that a rezoning request that received a split vote by the planning commission and a split vote by the city council was not reasonably subject to disagreement, that is, not fairly debatable. The trial court determined that the city council’s decision was not fairly debatable because D & F was not seeking to change the basic use of the subject property from that of a drugstore. The record reflects, however, that the “drugstore” that occupied the site in the 1960s was of the “mom-and-pop” variety, not the large retail establishments that exist today. The record in this case demonstrates that the question whether to zone the subject property B-2 instead of B-l was certainly “subject to controversy or contention” or “open to question or dispute,” especially as it relates to a change from a small, family-run apothecary to a modern, broad-based retail facility such as is before the Court in this case. Therefore, the city council’s decision should not be disturbed by a court. Because D & F’s application to amend the zoning ordinance to designate the subject property as B-2 was fairly debatable, we hold that the city council’s decision not to rezone the subject property had a reasonable relationship to the health, safety, morals, or general welfare of the community and that the trial court erred in finding its decision to deny rezoning to be arbitrary and capricious. We reverse the judgment, and remand the case for the trial court to enter an order affirming the decision of the city council.

1001925 — REVERSED AND REMANDED.

1002011 — AFFIRMED.

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

JOHNSTONE, J., dissents.

JOHNSTONE, Justice

(dissenting).

I respectfully dissent from the scholarly main opinion. I disagree in both the appeal and the cross-appeal.

D & F has cross-appealed the decision of the trial court allowing H.H.B. to intervene. This ruling is critical in that H.H.B. is the only party which appealed the zoning decision by the trial court in favor of D & F. The City of Mobile did not appeal the zoning decision. Were this Court to reverse the ruling allowing H.H.B. to intervene, this Court would necessarily also dismiss the only appeal of the zoning decision in favor of D & F.

I respectfully submit that this Court should reverse the intervention ruling. The motion of H.H.B. was untimely and the excuse for untimeliness too insubstantial to fit within the parameters of the discretion of the trial court to allow intervention.

H.H.B., having successfully intervened, has appealed the zoning decision of the trial court in favor of D & F. I respectfully submit that we should affirm the zoning decision.

Section IX.A.l.b. of the Zoning Ordinance of the City of Mobile allows zoning amendments like the one sought by D & F if “[c]hanged or changing conditions in a particular area, or in the planning region generally, make a change in the ordinance necessary and desirable.” In essence, the trial court, upon evidence ore terms, found that the conditions in the particular area at issue in this case had changed to such an extent and in such a way that the application of the existing B-l classification, as distinguished from the proposed B-2 classification, to the D & F property would no longer bear a substantial relationship to the health, safety, morals, or general welfare of the City, that no fairly debatable rationale supported the denial of the zoning amendment, and that, therefore, the denial constituted an impermissible arbitrary and capricious act by the City. The record contains superabundant evidence to support this finding.

The nature and extent of change in the particular area is a factual issue to be decided by the fact-finder. Fact-findings based on evidence ore terms are not to “‘be disturbed on appeal unless they are palpably wrong, manifestly unjust, or without supporting evidence.’ ” Samek v. Sanders, 788 So.2d 872, 876 (Ala.2000) (quoting McCoy v. McCoy, 549 So.2d 53, 57 (Ala.1989)). The correctness of the fact-findings by the trial court in the case now before us is buttressed by the prior six-to-two vote of the planning commission in favor of recommending adoption of the zoning amendment sought by D & F and the four-to-three vote (albeit legally insufficient) of the city council in favor of adopting the amendment. Because the record supports a factual basis sufficient to support the legal conclusions by the trial court necessary to its judgment granting zoning relief to D & F, that judgment should be affirmed.

      . D & F criticizes § 11-44C-28 in its brief, pointing out that that Code section has been heavily criticized in Mobile and including with its brief a copy of a complaint filed by the president of the city council, seeking a declaratory judgment to determine whether the statute is constitutional. D & F elected not to challenge the constitutionality of the ordinance in this case, however; therefore, that question is not before us.


author: HOUSTON, Justice.

text:
    Caroline Chapman PHILPOT et al. v. STATE of Alabama et al.
    1002116.
    Supreme Court of Alabama.
    June 14, 2002.
    Rehearing Denied Aug. 30, 2002.

      George K. Williams of Watson, Jimmer-son, Givhan & Martin, P.C., Huntsville; and Thomas K. Jefferson, Huntsville, for appellants.
    John F. Porter III, Scottsboro, for ap-pellee Jacobs Bank.
    J.R. Brooks, William B. Tatum, and Jeffrey T. Kelley of Lanier Ford Shaver & Payne, P.C., Huntsville, for appellee RBC Limited Partnership.
   HOUSTON, Justice.

This action was originally brought by the State of Alabama in the Probate Court of Madison County as a petition to condemn a strip of land that abuts U.S. Highway 72 East in Huntsville. Caroline Chapman Philpot, individually and as trustee under the last will and testament of Elizabeth H. Chapman; Rosalie Pettus Price; Reuben Chapman V; and Erie Pet-tus, Jr., individually and as trustee under the last will and testament of Reuben Chapman IV (hereinafter collectively referred to as “the Chapman heirs”; where appropriate, the Chapman heirs shall include their predecessors and the decedents whose estates are represented) and RBC Limited Partnership were made parties to the condemnation action. The probate court granted the petition to condemn the property. The State of Alabama, the Chapman heirs, and RBC Limited appealed to the Madison Circuit Court.

In the circuit court, Jacobs Bank and Henson, Inc., were allowed to intervene as defendants based on their claims that they owned portions of the strip of land. The Chapman heirs then brought as a cross-claim a declaratory-judgment action against RBC Limited, Jacobs Bank, and Henson, Inc. (hereinafter collectively referred to as “the defendants”), to determine who actually owned the land. After an evidentiary hearing, the circuit court found that the defendants owned the land in fee simple absolute. The Chapman heirs filed a motion for a new trial, or in the alternative, a motion to alter, amend, or vacate the judgment. The motion was denied, and after the trial court certified its judgment as final pursuant to Rule 54(b), Ala. R. Civ. P., the Chapman heirs appealed. We reverse and remand.

In 1932, the Chapman heirs conveyed to Madison County an 80-foot wide by 6,100-foot long strip of land; U.S. Highway 72 was later constructed on that strip of land. In 1936, the Chapman heirs conveyed to Madison County two additional 60-foot strips of land on either side of the original 80-foot strip. However, the 1936 deed, unlike the 1932 deed, contained a reversion clause; that clause states:

“PROVIDED, HOWEVER, it is understood that the lands herein conveyed and granted from the grantors herein to Madison County, Alabama, is to be used for the purpose of roadside improvements, including grading, constructing of slopes and ditches, planting, beautifying, maintaining and tending; and in the event Madison County or its assigns or the State of Alabama, or its assigns, shall cease to use and maintain the lands herein conveyed as herein provided, and as originally used and maintained hereunder the right of the grantee or its assigns shall cease and determine, and the title to the lands herein conveyed shall revert to the grantors, their heirs or assigns.”

In 1963, the Chapman heirs conveyed by a fee simple warranty deed 18 acres of land that abutted the 60-foot strip on the south side of U.S. Highway 72 (the south-side 60-foot strip is hereinafter referred to as “the south strip”) to Wikle Enterprises, Inc. Subsequently, through various conveyances, Wikle Enterprises conveyed all of its interest in the 18 acres to the defendants, each of whom became the owner of a separate portion of the land. None of these conveyances are in dispute.

The sole issue on appeal is whether the 1963 deed conveying the 18 acres to Wikle Enterprises also conveyed the south strip to the defendants. Typically, when a trial court hears ore tenus testimony, its findings on disputed facts are presumed correct and its judgment based on those findings will not be reversed unless the judgment is palpably erroneous or manifestly unjust. Bearden v. Ellison, 560 So.2d 1042, 1043 (Ala.1990). However, in this case, although the trial court heard ore tenus testimony, the heightened deference commanded by the ore tenus rule does not govern our review. The ore tenus rule does not apply to cases involving undisputed facts, see Stiles v. Brown, 380 So.2d 792, 794 (Ala.1980), and while the evidence before the trial court in this case may indicate a dispute concerning what land the parties “thought” they owned, the evidence indicates no material dispute as to what the 1963 deed actually conveyed. Therefore, our review is de novo. See Stiles, 380 So.2d at 794.

A court must fix a boundary at the location called for in the deed unless there is some claim of relocation by other means (e.g., adverse possession). Jesse P. Evans III, Alabama Property Rights and Remedies § 12.5(d) (2d ed.1998). It is well-settled that when there is no ambiguity in the language of a deed, a court must give effect to the clear and plain terms. African Methodist Episcopal Church v. Saint Paul Methodist Church of Selmont, 362 So.2d 868, 871 (Ala.1978). Furthermore, “[w]here the language in a deed is plain and certain, acts and declarations of the parties cannot be resorted to to aid a construction.” Kennedy v. Henley, 293 Ala. 657, 662, 309 So.2d 435, 439 (1975).

Therefore, the 1963 deed is the beginning point of the inquiry in determining which party owned the south strip. The description in the deed is as follows:

“All that part of the Southeast quarter of Section 19, Township 3 South, Range 1 East in the City of Huntsville, Madison County, Alabama, particularly described as beginning at the intersection of the East margin of Maysville Road and the South margin of U.S. Highway # 72 East, said point being located North 50 degrees 06 minutes East 144.0 feet from the most Northerly corner of Lot 23, Block 11 of the Chapman Heights Eighth Addition to the City of Huntsville as of record in Plat Book 3, Page 153 of the Probate records, Madison County, Alabama; said point is further described as being North 1 degree 00 minutes West 1235.0 feet North 49 degrees 42 minutes East 929.75 feet, North 50 degrees 45 minutes East 2391.50 feet and North 50 degree 06 minutes East 144.0 feet from the center of the West boundary of Section 30, Township 3 South, Range 1 East; thence from the place of beginning North 50 degrees 31 minutes East along the South margin of U.S. Highway # 72 East 1310.05 feet to a 6 inch x 6 inch concrete R.O.W. marker; thence North 38 degrees 26 minutes West 59.65 feet to a 6 inch x 6 inch concrete R.O.W. marker on the South margin of U.S. Highway # 72 East; thence North 50 degrees 31 minutes East along the South margin of U.S. Highway # 72 East 249.7 feet to a point of curve marked by a 6 inch x 6 inch concrete R.O.W. marker; thence around a curve to the left, the cord bearing and distance of North 49 degrees 36 minutes East 189.15 feet to a point on the South margin of U.S. Highway # 72 East; thence South 39 degrees 29 minutes East 462.65 feet to a point; thence South 50 degrees 31 minutes West 1894.4 feet to a point; thence North 89 degrees 53 minutes West 143.45 feet to a point on the East margin of Maysville Road; thence North 0 degrees 07 minutes East along the East margin of Maysville Road 400.00 feet to the place of beginning and containing 18.01 acres.”

The only testimony offered at trial concerning the land description contained in the 1963 deed was given by Thomas Black, a land surveyor, who testified that the property line of the property deeded to Wikle Enterprises in 1963 clearly abuts the south line of the south strip; thus, the property conveyed to Wikle Enterprises in 1963 did not include the south strip. None of the defendants presented any evidence contradicting Black’s testimony, nor did they present any evidence showing that their particular deeds included the south strip.

The defendants’ only response to Black’s testimony was that the 1963 deed conveyed the south strip because they “thought” it did. This alone is not sufficient evidence upon which the trial court could base its judgment. Why the defendants thought that the Chapman heirs would purport to convey by a warranty deed fee simple title to a strip of land in which the Chapman heirs had only a right of reversion if the State of Alabama or Madison County failed to use the land “for the purpose of roadside improvements” was not explained. The Chapman heirs would have breached their warranty upon execution and delivery of such a deed.

The defendants also argued that because the description of the land in the 1963 deed referred to U.S. Highway 72 East, their property must border U.S. Highway 72, and not the south strip. While reference is made to Highway 72 East at the beginning of the 1963 deed, the reference is coupled with two other descriptions: a description based on the Madison County plat map and a description based on a government survey. As the description continues, reference is made to the border of U.S. Highway 72 East along with metes and bounds descriptions and references to concrete “R.O.W.” markers. Black testified at trial that, based on his survey of the property, the calls in the description matched the border of the south strip, not the pavement of U.S. Highway 72. The defendants presented no evidence disputing this testimony. Stated alternatively, the defendants made no showing that the descriptions in the 1963 deed conflict with one another.

Because of the alleged conflict in the deed, the trial court resorted to evidence other than the actual description in the deed itself to determine the intent of the parties. However, without a showing by the defendants that the land description in the 1963 deed was ambiguous, any evidence concerning the parties’ acts or declarations could not be used to interpret the deed. Kennedy, 293 Ala. at 662, 309 So.2d at 439. Because there was no showing that the description in the 1963 deed was ambiguous, the trial court erred in considering this evidence.

There is no proper evidence in the record showing that the 1963 deed conveyed the south strip. Because the defendants make no other claim whereby they would have received an interest in the property, we hold that the defendants own no interest in the land at issue, and we reverse the judgment of the trial court and remand the case for an order or proceedings consistent with this opinion. The defendants own the 18 acres the Chapman heirs conveyed to Wikle Enterprises in 1963 by a warranty deed conveying fee simple title; this property, however, is not the property in dispute here.

REVERSED AND REMANDED.

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

WOODALL, J., recuses himself.

      . It is unclear how each Chapman received his or her interest in the property sought to be condemned. However, because each Chapman's individual interest is not in dispute, we refer to them collectively as "the Chapman heirs.”

      . The Madison County tax collector and the Central Volunteer Fire Department were also named as defendants in the condemnation action; however, they are not parties to this appeal.

      . The defendants argue that the following evidence was credible evidence upon which the trial court relied in rendering its judgment: the testimony of Luther Wikle (a party to the 1963 conveyance), stating that he thought he was purchasing the south strip; the fact that the land conveyed in 1963 was conveyed for commercial purposes; the testimony of Ed Ragland (a general partner in RBC Limited), stating that he would not have purchased the land without unrestricted access to U.S. Highway 72; and a prior conveyance made in 1960 by one of the Chapman heirs that specifically excluded from the conveyance the re-versionary interest in the south strip.

      . The defendants also argue that the reference to U.S. Highway 72 East in the deed’s description of the land is the controlling description because a description using artificial objects takes precedence over a metes-and-bounds description when there is a conflict between descriptions in a deed. However, this rule of construction, like other rules of construction for deeds, is used only when all efforts to reconcile conflicting terms have failed. See Deramus v. Deramus, 204 Ala. 144, 85 So. 397 (1920). Therefore, because the defendants have not presented any evidence indicating that the descriptions cannot be reconciled, the reference to U.S. Highway 72 East does not control.


author: JOHNSTONE, Justice. BROWN, Justice

text:
    Ex parte Earl WEBB. (In re Earl Fitsgerald Webb v. State of Alabama).
    1000789.
    Supreme Court of Alabama.
    June 14, 2002.

      Earl Webb, pro se.
    William H. Pryor, Jr., atty. gen., and J. Thomas Leverette, asst. atty. gen., for respondent.
   JOHNSTONE, Justice.

We granted Earl Webb’s petition for a writ of certiorari to determine whether the circuit court had jurisdiction to adjudicate the merits of a criminal charge against Webb while his appeal of an order transferring the case against him from juvenile court to the circuit court was pending in the Court of Criminal Appeals. We reverse and remand with instructions.

On October 19, 1983, Webb, a 14-year-old juvenile, was arrested and charged as a juvenile with first-degree burglary, first-degree robbery, and second-degree assault. Subsequently, the district attorney filed a motion to transfer the case from the juvenile court to the circuit court. After a hearing, the juvenile court granted the motion and transferred Webb’s case to the circuit court for him to be tried as an adult. On November 1, 1983, Webb appealed the transfer order to the Court of Criminal Appeals.

On January 11, 1984, while Webb’s appeal of the transfer order was pending, Webb was indicted in the circuit court for the first-degree burglary. On February 9, 1984, likewise while Webb’s appeal of the transfer order was still pending, the circuit court accepted Webb’s guilty plea on the first-degree burglary indictment, convicted him, and sentenced him to 20 years’ imprisonment.

Thereafter, the Court of Criminal Appeals affirmed the transfer order, by an unpublished memorandum, and overruled Webb’s application for rehearing. Webb v. State, 453 So.2d 11 (Ala.Crim.App.1984) (table). On certiorari review, this Court reversed the affirmance by the Court of Criminal Appeals. The ground of reversal was that the transfer order of the juvenile court was invalid for noncompliance with the requirements of § 12-15-34(d), Ala. Code 1975 (factors the juvenile court must consider to transfer a case to circuit court). Ex parte Anonymous, 466 So.2d 81 (Ala.1984). This Court remanded Webb’s case for a new transfer hearing. Id. The juvenile court apparently ignored the remand order and did not conduct a new transfer hearing.

Pro se, on July 24, 2000, Webb filed a Rule 32, Ala. R.Crim. P., petition challenging his first-degree burglary conviction and sentence. Webb complained that the circuit court lacked jurisdiction to accept his guilty plea and to adjudicate his case because, at the time of those proceedings in the circuit court, Webb’s appeal of the order transferring his case from juvenile court to the circuit court was pending before the Court of Criminal Appeals. The trial court summarily dismissed Webb’s petition. Webb appealed, and the Court of Criminal Appeals affirmed, in an unpublished memorandum. Webb v. State, 820 So.2d 178 (Ala.Crim.App.2000) (table). The Court of Criminal Appeals subsequently overruled Webb’s application for rehearing.

The dispositive issue before us is whether the circuit court retained jurisdiction to adjudicate the merits of the indictment against Webb while his appeal of the juvenile court transfer order was pending before the appellate courts of this state. The State maintains that this issue is nonjuris-dictional and is precluded because Webb’s Rule 32 petition was filed after the two-year deadline for filing on nonjurisdictional grounds. See Rule 32.2(c), Ala. R.Crim. P.

In affirming the dismissal of Webb’s Rule 32 petition, the Court of Criminal Appeals held that the circuit court did have jurisdiction to accept Webb’s plea and to adjudicate the case while his appeal of the juvenile court transfer order was pending. For this holding, the Court of Criminal Appeals relied on § 12 — 15—120(d), Ala. Code 1975, and Bragg v. State, 453 So.2d 756 (Ala.Crim.App.1984) (hereinafter “Bragg II”).

In Bragg II, the Court of Criminal Appeals held only that the circuit court had jurisdiction to receive an indictment against a juvenile while the juvenile’s appeal of the transfer order was pending before this Court. Bragg had previously appealed an order by the juvenile court transferring his homicide case to circuit court. Bragg v. State, 416 So.2d 715 (Ala.1982) (hereinafter “Bragg I ”). While this first appeal was pending, the grand jury indicted Bragg for manslaughter, and the circuit court merely received the indictment from the grand jury. Thereafter, this Court affirmed the transfer order, Bragg I. Only after this Bragg I affir-mance did the circuit court try and convict Bragg on the indictment. Appealing his conviction {Bragg II), Bragg argued that the circuit court had lacked jurisdiction to receive the indictment while his appeal of the transfer order had been pending in Bragg I. The Court of Criminal Appeals affirmed the conviction, and we denied cer-tiorari review. Bragg II.

Our denial of certiorari in Bragg II should not be interpreted as an endorsement of the correctness of the holding and rationale of the Court of Criminal Appeals. Ex parte Terry, 540 So.2d 785 (Ala.1989); Banks v. State, 358 So.2d 480 (Ala.1978); and Hurst v. State, 293 Ala. 548, 307 So.2d 73 (1975). One significant distinction between Bragg II and Webb’s case now before us is that in Bragg II, in the appellate review of the transfer order {Bragg I), this Court affirmed the affirmance by the Court of Criminal Appeals of the transfer order, while in Webb’s case, in the appellate review of the transfer order, we reversed the affirmance by the Court of Criminal Appeals of the transfer order because it did not comply with § 12-15-34(d), Ex parte Anonymous, supra. A more precisely pertinent distinction is that, during the pendency of an appeal of a transfer order, merely receiving but not adjudicating an indictment (Bragg II) is vastly different from actually adjudicating the indictment (Webb).

Section 12-15-120, Ala.Code 1975, enacted in 1975, governs only appeals from judgments or orders of juvenile court to a circuit court. Subsection (d) of that statute provides:

“The appeal shall not stay the order, judgment or decree appealed from, but the circuit court may otherwise order, on application and hearing consistent with this chapter, if suitable provision is made for the care and custody of the child....”

Neither this subsection nor any other part of § 12-15-120 governs an appeal from a judgment or an order of a juvenile court to an appellate court. A juvenile could not appeal from the juvenile court directly to an appellate court until 1982, when Rule 28, Ala. R. Juv. P., was adopted, At that time, however, Rule 28 did not address whether the jurisdiction of the circuit court was stayed during the pendency of the appeal of the transfer order. The Supreme Court has subsequently amended Rule 28 by adding subsection (F), effective August 1, 2000, to provide that “[t]he filing of an appeal from an order transferring a child to the adult court for criminal prosecution shall stay the proceedings in the circuit court.”

Subsection (F) of Rule 28 did not exist when Webb appealed his transfer order on November 1, 1983, and entered his guilty plea in the circuit court on February 9, 1984, while his appeal of the transfer order was still pending before the Court of Criminal Appeals. Nevertheless, the law at that time was that the circuit court did not have jurisdiction to proceed on the merits of the transferred case while the appeal of the transfer order was pending before an appellate court. See Reeves v. State, 419 So.2d 217 (Ala.1982).

“[T]he general rule [is] that jurisdiction of a case can be in only one court at a time.” Ex parte State ex rel. O.E.G., 770 So.2d 1087, 1089 (Ala.2000). “While a case is pending in an appellate court, the trial court may proceed in matters entirely collateral to that part of the case that has been appealed, but can do nothing in respect to any matter involved on appeal that may be adjudged by the appellate court.” Ex parte Elmore, 585 So.2d 921, 922 (Ala.1991) (citing Foster v. Greer & Sons, Inc., 446 So.2d 605 (Ala.1984)). See also Reeves v. State, supra.

In Reeves, James Reeves, a juvenile, appealed from an order transferring his case from the juvenile division to the criminal division of Mobile Circuit Court. Reeves, 419 So.2d at 217. After Reeves perfected his appeal, the juvenile division issued a second order amending nunc pro tunc the previous transfer order. Reeves contended that “the trial court no longer had jurisdiction over the original transfer order once Reeves had perfected his appeal to this Court.” Id. at 218. Applying the general rule to a juvenile case, the Supreme Court held that “after an appeal is taken, the trial court may proceed only in matters ‘which are entirely collateral to that part of the case which is taken up (by the appeal) but it can do nothing in respect to any matter or question which is involved in the appeal, and which may be adjudged by the appellate court.’ ” Id. at 219 (citing Osborn v. Riley, 331 So.2d 268, 271 (Ala.1976), and quoting Barran v. Roden, 263 Ala. 305, 82 So.2d 398 (1955)).

Similarly, in Minor v. State, 502 So.2d 778 (Ala.Crim.App.1986), the Court of Criminal Appeals stated:

“In April 1983, a petition alleging delinquency was filed against appellant James Winston Minor, who was at that time 15 years old. The petition charged him with murder and was later amended to charge capital murder. In June 1983, the district attorney moved to transfer. Minor appealed his transfer to this court. We remanded the case with instructions. While the case was on appeal, the juvenile court entered an amended transfer order. We had no choice but to rule that the juvenile court did not have jurisdiction of the case while jurisdiction lay in the appellate court system.”

502 So.2d at 778.

The exercise of jurisdiction over Webb’s ease by the circuit court in its adjudication on the merits was not merely collateral to the issue then on appeal, which was whether the case had been properly transferred to the circuit court so as to invest the circuit court with jurisdiction over the case in the first place. Rather, the circuit court proceedings on the merits presumed the very jurisdiction that Webb was challenging on appeal.

Applying the rationale and legal principles of O.E.G., Elmore, Reeves, and Minor, supra, we hold that the circuit court did not have jurisdiction to adjudicate the merits of the indictment against Webb while his appeal of the transfer order was pending before the appellate courts. Thus, the judgment of the circuit court against Webb for first-degree burglary is a nullity.

Therefore, the Court of Criminal Appeals erred in affirming the dismissal of Webb’s Rule 32 petition challenging the jurisdiction of the circuit court. Accordingly, we reverse the judgment of the Court of Criminal Appeals, and we remand this case to that court for it to remand the case to the trial court for it to grant Webb Rule 32 relief by vacating the conviction and sentence.

REVERSED AND REMANDED WITH INSTRUCTIONS.

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

BROWN and STUART, JJ., dissent.

BROWN, Justice

(dissenting).

I would deny certiorari review in this case. After looking at the applicable statute, the rules, and the caselaw relevant to Webb’s claim, I believe that the Court of Criminal Appeals decided this issue correctly.

When Webb entered his guilty plea, in 1984, § 12 — 15—120(d), Ala.Code 1975, provided that an appeal from a judgment of the juvenile court, such as a transfer order, did not stay proceedings on the judgment appealed from. Thus, at first blush, it would appear clear that the circuit court could proceed to try Webb as an adult (or to accept Webb’s guilty plea), even though Webb was at the same time appealing a transfer order of the juvenile court. However, as the majority opinion points out, the language of § 12-15-120(d) refers to appeals from orders of the juvenile court to the circuit court for a trial de novo and does not refer to appeals to the Court of Criminal Appeals. However, Rule 28, Ala. R. Juv. P., as adopted in 1982, was in effect when Webb pleaded guilty. That rule provides for appeals from a juvenile court’s transfer order directly to the Court of Criminal Appeals.

In Bragg v. State, 453 So.2d 756 (Ala.Crim.App.1984), Judge Bowen wrote an opinion that reconciled § 12-15-120(d) and Rule 28 so that, when read together, the statute and the rule provided that an appeal to the Court of Criminal Appeals from a transfer order of the juvenile court will not necessarily stay proceedings on the matter in the circuit court, i.e., the circuit court has jurisdictional authority to proceed to try the defendant as an adult even though his appeal from the transfer order is pending in the appellate court. As the majority opinion notes, the facts of Bragg concerned the circuit court’s proceeding on an indictment, as opposed to a trial or a guilty plea in the circuit court, and Judge Bowen wrote in Bragg that it may still be preferable for the circuit court to delay the criminal proceedings pending the appeal of the transfer order. However, Judge Bowen also made clear that the “fundamental jurisdiction” of the circuit court is not lost pending the appeal of the transfer order; therefore, the circuit court could (i.e., it retains jurisdiction to) proceed on the case.

Judge Bowen wrote in Bragg:

“[T]he circuit court ... was not ousted of its jurisdiction to receive the indictment against the defendant by virtue of the principles enunciated in Stewart v. State, 287 Md. 524, 413 A.2d 1337 (1980), a case indistinguishable from the one before us.
“Like the defendant here, Stewart also insisted that the indictment was void because the circuit court lost jurisdiction during the pendency of his appeal. The Maryland court upheld the indictment, pointing out that the term ‘jurisdiction’ embraces two concepts: the power of a court to act (‘fundamental jurisdiction’) and the ‘propriety of granting the relief sought.’ [287 Md. at 526,] 413 A.2d at 1338. While an appeal does not divest a court of its fundamental jurisdiction, or its power to act, it may make judicial action inappropriate until the completion of appellate proceedings. If fundamental jurisdiction was lost, it would be unnecessary to require stays since the court could not act in any event.
“ ‘(P)ending an appeal the trial court retains its “fundamental jurisdiction” over the cause, but its right to exercise (this judicial) power may be interrupted by (i) statute or ... Rule, (ii) the posting of an authorized appeal bond, or bail following a conviction and sentence, or (iii) a stay granted by an appellate court, or the trial court itself, in those cases where a permitted appeal is taken from an interlocutory or final judgment.... If the trial court does, however, decide to proceed during the pendency of the appeal, it, absent a stay required by law, or one obtained from an appellate court, has authority to exercise the fundamental jurisdiction which it possesses.’
“Stewart, [287 Md. at 528-29] 413 A.2d at 1339 (quoting Pulley v. State, 287 Md. 406, 412 A.2d 1244, 1250 (1980) (appeal of interlocutory order denying Double Jeopardy claim)).
“In Pulley, the same Maryland court explained that the public policy underlying its holding was to prevent the innumerable delays resulting from halting every criminal proceeding in which an interlocutory appeal was taken. In the case before us, the trial judge suggested an additional reason for not denying the power of the grand jury to indict the defendant: the possibility that the delay could precipitate a speedy trial problem.
“In our judgment, therefore, the circuit court retained its jurisdiction over the subject matter of defendant’s case pending the outcome of his appeal and the' indictment was valid.”

453 So.2d at 758-59 (emphasis added).

I believe that Bragg was correctly decided and that its holding is not limited merely to a circuit court’s jurisdiction to receive an indictment.

Rule 28 was amended effective August 1, 2000, to provide that proceedings in the circuit court shall be stayed pending the appeal of a transfer order. See Rule 28(F), Ala. R. Juv. P. However, that rule was not in effect when the transfer order in Webb’s case was appealed. There was no statute or rule preventing the circuit court from proceeding on the matter, and there is no indication in this case that the appellate courts required the circuit court to stay its proceedings. While it may well have been preferable for the circuit court to have postponed its proceedings and not to have taken Webb’s guilty plea in 1984, the circuit court was not without jurisdiction to do so. Therefore, I would hold that Webb’s claim is nonjurisdietional and that the trial court correctly denied his Rule 32 petition.

STUART, J., concurs.


author: SHAW, Judge.

text:
    Earl Fitsgerald WEBB v. STATE of Alabama.
    CR-99-2390.
    Court of Criminal Appeals of Alabama.
    Aug. 30, 2002.
    Earl Fitsgerald Webb, pro se.
    William H. Pryor, Jr., atty. gen., and J. Thomas Leverette, asst. atty. gen., for ap-pellee.
   After Remand from the Alabama Supreme Court

SHAW, Judge.

On the authority of Ex parte Webb, 843 So.2d 127 (Ala.2002), the circuit court’s summary denial of Earl Fitsgerald Webb’s Rule 32, Ala.R.Crim.P., petition for post-conviction relief is reversed and this case is remanded for the circuit court to grant Webb Rule 32, Ala.R.Crim.P., relief by vacating his conviction and sentence for burglary in the first degree.

REVERSED AND REMANDED WITH DIRECTIONS.

McMILLAN, P.J., and COBB, BASCHAB, and WISE, JJ., concur.

      . This case was originally assigned to another judge on this Court; it was reassigned to Judge Shaw after remand from the Alabama Supreme Court.