author: THOMAS, J.,

text:
    Jeffery C. JAMISON, Appellant v. CITY OF CARTHAGE, Appellee.
    No. 2003-KM-00052-COA.
    Court of Appeals of Mississippi.
    Feb. 3, 2004.

      Scott Thomas Williamson, J. Edward Rainer, Brandon, attorneys for appellant.
    A.R. Wright, Carthage, attorney for ap-pellee.
    Before McMILLIN, C.J., BRIDGES and THOMAS, JJ.
   THOMAS, J.,

for the Court.

¶ 1. Jeffery C. Jamison appeals the order of the Circuit Court of Leake County which affirmed the City Court of Carthage, Mississippi’s, convicting Jamison of driving with a suspended licence and reversed and remanded for sentencing on a conviction of driving under the influence first offense, which the city court had initially dismissed. Aggrieved, Jamison asserts the following issues on appeal:

I. THE CIRCUIT COURT ERRED IN GRANTING THE CITY OF CARTHAGE’S PETITION FOR CER-TIORARI ON A CRIMINAL MATTER AND CONVICTING JAMISON OF DUI FIRST OFFENSE.

II. THE CIRCUIT COURT’S CONVICTION OF JAMISON AMOUNTS TO DOUBLE JEOPARDY AS JAMI-SON WAS TRIED AND FOUND NOT GUILTY IN THE MUNICIPAL COURT OF THE CITY OF CARTHAGE.

Finding error, we affirm in part and reverse and render in part.

FACTS

¶ 2. On April 16, 2002, Jeffery Jamison was traveling through the city of Carthage, Mississippi, when he stopped to get gas. After stopping at a gas station, a Carthage police officer approached Jami-son and informed him that he had been speeding. After talking with Jamison, the officer requested that Jamison blow into a portable breath test. Jamison acquiesced and was informed that the test indicated positive for alcohol. The officer took Ja-mison into custody and had Jamison submit to toxicology testing in order to determine his blood alcohol content. Jamison was placed under arrest and charged with careless driving, driving with a suspended licence, and DUI second offense due to information from the Department of Public Safety that Jamison had been previously convicted of a DUI in Jackson Municipal Court.

¶3. Trial was initially set for May 21, 2002; however, Jamison’s counsel had a conflict and requested that trial be reset. The case was heard in the City of Carthage Municipal Court on July 2, 2002. The municipal court chose to bifurcate the trial in order to determine whether Jami-son was in fact driving under the influence, and secondly, to determine if he was guilty of DUI second offense. The court initially found that the prosecution had met the burden of proof as to DUI and driving with a suspended licence, but the court found Jamison not guilty of careless driving. However, when the City attempted to introduce evidence regarding Jamison’s previous DUI conviction, it was discovered that the Department of Public Safety had received information that Jamison’s previous DUI conviction had been set aside.

¶ 4. Jamison moved to dismiss the charge for DUI second offense, which the court granted. The city prosecutor moved to amend the affidavit and charge Jamison with DUI first offense, and the court denied the prosecutor’s motion holding that DUI second offense, was a separate crime and the City could not amend the affidavit after trial because that would be prejudicial to the defendant. The municipal court found Jamison guilty of driving with a suspended licence and not guilty of careless driving.

¶ 5. The City of Carthage filed a petition for certiorari in the Leake County Circuit Court. The circuit court held a hearing and entered an order granting certiorari. After receiving summaries from both parties, the circuit court reversed the judgment of the municipal court and held that the defendant would not have been prejudiced and the municipal court erred in not allowing the City to amend the charge to DUI first offense. The circuit court remanded the cause to the municipal court for sentencing of Jamison on the charge of DUI first offense. Jamison then perfected an appeal to this Court.

ANALYSIS

I. DID THE CIRCUIT COURT ERR IN GRANTING THE CITY OF CARTHAGE’S PETITION FOR CERTIORARI ON A CRIMINAL MATTER AND CONVICTING JA-MISON OF DUI FIRST OFFENSE?

II. DID THE CIRCUIT COURT’S CONVICTION OF JAMISON AMOUNT TO DOUBLE JEOPARDY AS JAMISON WAS TRIED AND FOUND NOT GUILTY IN THE MUNICIPAL COURT OF THE CITY OF CARTHAGE?

¶ 6. Jamison asserts that the circuit court erred in granting the City of Carthage’s petition for certiorari on a criminal matter and convicting him of DUI first offense because it amounts to double jeopardy as Jamison was tried in the Municipal Court of Carthage and the charge was dismissed. We will examine both of Jami-son’s assertions together.

¶ 7. Pursuant to Mississippi Code Annotated' Section 99-35-103 (Rev.2000), a state or municipality is limited in its ability to prosecute an appeal in a criminal cause. This statute authorizes appeals by the State:

(a) From a judgment sustaining a demurrer to, or a motion to quash an indictment, or an affidavit charging crime; but such appeals shall not bar or preclude another prosecution of the defendant for the same offense.
(b) From a judgment actually acquitting the defendant where a question of law has been decided adversely to the state or municipality; but in such case the appeal shall not subject the defendant to further prosecution, nor shall the judgment of acquittal be reversed, but the supreme court shall nevertheless decide the question of law presented.
(c) From a ruling adverse to the state or municipality in every case in which the defendant is convicted and prosecutes an appeal; and the case shall be treated as if a cross appeal had been formally prosecuted by the state. All questions of law thus presented shall be decided by the Supreme Court.

Pool v. State, 724 So.2d 1044, 1048(¶ 24) (Miss.Ct.App.1998) (citing Miss.Code Ann. § 99-35-108 (Rev.1994)). Appeals by the prosecution are severely limited, granted only in situations which can generally be divided into two basic groups: (a) appeals permitted in order to determine a question of law; and (b) appeals permitted so long as the traditional concept of double jeopardy is not violated. State v. Insley, 606 So.2d 600, 602 (Miss.1992). Jamison asserts that the circuit court could have decided the question of law, but under Section 99 — 35—103(b), it was error for the circuit court to reverse his acquittal, grant the motion made by the prosecution, and affirm the conviction for DUI first offense which the municipal court had not entered. We agree.

¶ 8. The municipal court held that the prosecution could not amend its indictment because the motion to do so was made at the conclusion of all of the evidence and the prosecution had rested. It is true that amendments cannot be made that would result in prejudice to the defendant. Smith v. State, 725 So.2d 922, 928(¶ 17) (Miss.Ct.App.1998). All substantive amendments to indictments must be made by a grand jury. Id. “The test for whether an amendment to the indictment will prejudice the defense is whether the defense as it originally stood would be equally available after the amendment is made.” Eakes v. State, 665 So.2d 852, 859-60 (Miss.1995).

¶ 9. The City of Carthage, and the circuit court below, both relied on the case of Ostrander v. State, 803 So.2d 1172 (Miss.2002). Indeed, the initial facts in Ostran-der seem very similar to the case at bar. Ronald Ostrander was arrested and charged with DUI second offense due to a pending DUI which had been appealed. Ostrander, 803 So.2d at 1173 (¶¶ 2-3). The State rested without being able to prove Ostrander had a previous conviction for DUI. Id. at (¶ 3). The trial judge denied a motion for directed verdict to the case as a whole and allowed the case to go to the jury as a DUI first offense as a lesser-included offense of a DUI second, and the jury returned a verdict of guilty which Ostrander subsequently appealed. Id. at 1173-74(¶ 4). The Mississippi Supreme Court affirmed the trial court in Ostrander, holding that there was no reduction in charge, but simply that Ostran-der had been charged with both and the trial court granted a directed verdict only in regard to DUI second. Id. at 1176(¶ 13). The court noted that the trial judge “expressly limited his directed verdict to the second-offense DUI.” Id. at 1177(¶ 14).

¶ 10. Although the municipal judge could have dismissed only that part of the affidavit charging DUI second and allowed the City to proceed on DUI first, the judge dismissed the entire DUI charge against Jamison. When the judgment was entered, jeopardy attached. Ostrander is therefore distinguished from the case at bar. Such dismissal is inclusive of both the offense charged in the affidavit, as well as any lesser-included offenses. Any further proceedings would amount to a violation of the double jeopardy provisions of the Mississippi and United States Constitutions.

¶ 11. Although appropriate for the circuit court to grant certiorari in order to answer the question of law under Mississippi Code Annotated Section 99 — 35—103(b) (Rev.2000), the circuit court erred in reversing the dismissal of the charges by the Municipal Court of Carthage. We therefore reverse the judgment of the circuit court and reinstate the judgment of the municipal court.

¶ 12. THE JUDGMENT OF THE CIRCUIT COURT OF LEAKE COUNTY OF CONVICTION OF DRIVING WITH A SUSPENDED LICENSE AND FINE OF $425 IS AFFIRMED; THE JUDGMENT OF CONVICTION OF DUI FIRST OFFENSE IS REVERSED AND RENDERED AND THE JUDGMENT OF THE MUNICIPAL COURT OF CARTHAGE IS REINSTATED. ALL COSTS OF THIS APPEAL ARE ASSESSED TO THE CITY OF CARTHAGE.

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


source: Caselaw Access Project

author: GRIFFIS, J„

license: Public Domain

text:
    Ronald AVERY, Appellant v. Anne AVERY, Appellee.
    No. 2002-CA-01841-COA.
    Court of Appeals of Mississippi.
    Feb. 3, 2004.

      Tommy Wayne Defer, and David L. Walker, Batesville, attorneys for appellant.
    Adam A. Pittman, Batesville, attorney for appellee.
    Before SOUTHWICK, P.J., THOMAS and GRIFFIS, JJ.
   GRIFFIS, J„

for the Court.

¶ 1. Anne Avery was granted a divorce from Ronald Avery, pursuant to Mississippi Code Annotated Section 93-5-1, on the ground that he was sentenced to a penitentiary and not pardoned before incarceration. Ronald appeals the judgment of divorce and asserts that the chancellor erred in awarding lump sum alimony, child support, and reimbursement for Ronald’s criminal defense fees and counseling fees. We find no reversible error and affirm.

FACTS

¶ 2. Anne Avery and Ronald Avery were married in 1970 and separated in 2001. They had two children, one emancipated and a nineteen year old daughter, Amanda. Amanda lived with her mother, at the family residence, and attended college.

¶ 3. At the time of divorce, Ronald was fifty-five years old, and was in the custody of the Mississippi Department of Corrections. Ronald had been convicted of child fondling and was sentenced to serve fifteen years, with ten years suspended, resulting in five years to serve in prison. Prior to his conviction, Ronald had been employed with the Mississippi Department of Transportation for eleven years.

¶ 4. Anne was fifty-two years old and was employed with Huron Smith Oil Company. Anne had been employed for about twenty years and earned approximately $2,300 per month.

¶ 5. Without objection from Anne, the chancellor awarded Ronald the exclusive use, ownership and possession of the boat, tools, truck, firearms, four wheeler, and his retirement benefits payable through the Mississippi Public Employees’ Retirement System. The chancellor awarded Ronald an undivided one-half interest in the marital home, valued at $27,000.

¶ 6. The chancellor awarded Anne exclusive use and possession of the marital home, her undivided one-half interest in the home, and all appliances and furnishings in the home. Anne was also awarded the benefits of her retirement plan with Huron Smith Oil Company and all life insurance policies along with any accrued cash surrender value. The chancellor’s judgment included an award to Anne for: (a) lump sum alimony of $12,600, payable in the amount of $350 per month for a period of 36 months, (b) child support of $225 per month, (c) past due child support in the amount of $4,050, beginning on the date of Ronald’s incarceration and (d) reimbursement of attorney fees and counseling fees expended during the defense of his felony charges in the amount of $6,000. The judgment was for the sum of $22,650.

¶ 7. The chancellor’s judgment also provided that the $22,650 judgment against Ronald was a lien against Ronald’s undivided interest in the marital home. All future child support payments would likewise accrue as a lien on Ronald’s undivided interest in the marital home, as the child support becomes due and vests. All court costs were assessed to Ronald.

LEGAL ANALYSIS

1. Lump Sum Alimony

¶ 8. First, Ronald argues that the chancellor erred in the award of lump sum alimony. In establishing lump sum alimony of $12,600, payable at $350 per month for thirty-six months, the chancellor specifically held that this amount was to be used to pay for medical insurance for Amanda and Anne. The chancellor reasoned that since Ronald previously paid for their insurance through his employer then this would be a reasonable provision of lump sum alimony.

¶ 9. The chancellor enjoys wide discretion in fashioning the financial aspects of the dissolution of a marriage. Tillman v. Tillman, 716 So.2d 1090(¶ 19) (Miss.1998) (citing Johnson v. Johnson, 650 So.2d 1281, 1287(Miss.1994)). The chancellor may be reversed on appeal only if it appears that the chancellor abused that discretion. Monroe v. Monroe, 745 So.2d 249(¶ 13) (Miss.1999).

¶ 10. In Armstrong v. Armstrong, 618 So.2d 1278 (Miss.1993), the Mississippi Supreme Court established the factors for a chancellor to consider to determine whether alimony is necessary. Here, the chancellor properly considered each factor in his decision. We review the chancellor’s conclusions.

¶ 11. The income and expenses of the parties. Although Ronald had no income while incarcerated, the chancellor found that Ronald had no expenses. His room, board and health care were provided by the State. The chancellor also reasoned that although Anne had income she also had everyday living expenses and liabilities.

¶ 12. The health and earning capacities of the parties. The chancellor found that both Ronald and Anne were in good health. The chancellor noted that, although Ronald had no earning capacity while incarcerated, Ronald’s period of incarceration was for a short period.

¶ 13. The needs of each party. The chancellor determined that Anne was accustomed to a two income household and the lifestyle derived from both incomes. She now has one income with the same needs, particularly with respect to the minor child, whereas Ronald has none.

¶ 14. The obligations and assets of each party. The chancellor determined that Anne has an obligation to maintain the household, whereas Ronald does not. Ronald has a life estate property interest in which he receives $1,868 per year through a government conservation program for pine trees. The chancellor found that Ronald’s assets, because of the life estate property interest, exceeded Anne’s assets.

¶ 15. The length of marriage. Ronald and Anne were married for thirty-two years.

¶ 16. The presence or absence of minor children in the home. The chancellor recognized that Amanda continues to reside with Anne.

¶ 17. The age of the parties. Ronald was fifty-five, and Anne was fifty-two years old.

¶ 18. The tax consequences of the spousal support order. The chancellor found that there was no evidence of any tax consequence.

¶ 19. Fault or misconduct. The chancellor found that the fault of the divorce was clearly due to the fault and misconduct of Ronald.

¶ 20. Wasteful dissipation of assets by either party. The chancellor found that there was no evidence of any wasteful dissipation of assets by either party, with the exception of the funds expended to defend Ronald and the counseling fees that were incurred because of his wrongful conduct.

¶ 21. After considering the Armstrong factors, the chancellor ruled that an award of lump sum alimony would be proper. Under these circumstances, a lump sum award of $12,600 was not so exorbitant as to constitute an abuse of the chancellor’s discretion. We find no abuse of discretion in the chancellor’s findings. Therefore, this assignment of error is without merit.

2. Child Support

¶ 22. Next, Ronald argues that the chancellor erred in awarding child support for Amanda. The chancellor found that the child support guidelines, set forth in Mississippi Code Annotated Section 43-19-101(1) (Rev.2000), were not appropriate because Ronald has no income due to his incarceration. The chancellor found, however, that Ronald did have sufficient assets, which could support Amanda, and ordered Ronald to pay child support in the amount of $225 per month. The chancellor also awarded a judgment against Ronald for child support, retroactive to the date of his incarceration, in the amount of $4,050. The chancellor concluded that Amanda’s expenses were $495 per month, excluding tuition.

¶ 23. An award of child support is within the sound discretion of the chancellor. Grogan v. Grogan, 641 So.2d 734, 741 (Miss.1994). This Court will not disturb that award unless the chancellor was manifestly in error in his finding of fact or has manifestly abused his discretion. Id. Further, the process of “weighing evidence and arriving at an award of child support is essentially an exercise in fact-finding, which customarily significantly restrains this Court’s review.” Id.

¶ 24. Upon our review of the record, we are satisfied that the chancellor’s factual findings were supported by substantial, credible evidence. The chancellor heard testimony from both Ronald and Anne and reviewed the documentary evidence. Given our limited standard of review, we decline to disturb the chancellor’s findings. Therefore, this assignment of error is without merit.

3. Reimbursement for Criminal Defense Fees and Counseling Fees.

¶ 25. Ronald contends that the chancellor erred in awarding a $6,000 judgment to Anne for reimbursement of his criminal defense fees and counseling fees paid during the marriage. The chancellor based his ruling on the finding that marital assets were dissipated due to the payment of these fees for Ronald.

¶ 26. While we do not classify fees paid for criminal defense and counseling costs as a wasteful dissipation of assets, we do find that it was within the chancellor’s discretion to award reimbursement for these fees as part of the equitable distribution of assets since the fees for Ronald’s misconduct were paid from marital funds. As discussed above, chancellors are vested with broad discretion in dealing with the financial aspects of divorce. It is well settled that chancellors have authority to order an equitable division of marital property accumulated through the joint efforts of the parties and the individual contributions of the parties to the marriage. Johnston v. Johnston, 722 So.2d 453(¶ 28) (Miss.1998). We find no abuse of discretion or manifest error in the chancellor’s ruling. Therefore, this assignment of error is without merit.

¶ 27. THE JUDGMENT OF THE PA-NOLA COUNTY CHANCERY COURT IS AFFIRMED. ALL COSTS OF THIS APPEAL ARE TAXED TO THE APPELLANT.

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


author: KING, P.J.,

text:
    Atlas BROWN, Appellant, v. STATE of Mississippi, Appellee.
    No. 2003-CP-00011-COA.
    Court of Appeals of Mississippi.
    Feb. 3, 2004.
    Atlas Brown, Appellant, pro se.
    Office of the Attorney General by W. Glenn Watts, attorney for appellee.

      Before KING, P.J., LEE, and CHANDLER, JJ.
   KING, P.J.,

for the Court.

¶ 1. Atlas Brown, pro se, appeals the dismissal of a request for post-conviction relief by the Harrison County Circuit Court. Brown asserts the following issue on appeal:

I. Whether the circuit court erred in denying Brown’s motion for post conviction relief solely on the basis of a subsequent arrest.

Finding error, we reverse and remand.

FACTS

¶ 2. On May 5, 1995, Atlas Brown was arrested on charges of aggravated assault and possession of a controlled substance. On August 9, 1996, Brown, represented by counsel, pled guilty to the abovementioned charges, and was sentenced to fifteen years in the custody of the Mississippi Department of Corrections. On March 12, 1999, Brown was granted parole.

¶ 3. On October 24, 2001, nineteen months after Brown was granted parole, he was arrested on a charge of domestic assault. Pursuant to this arrest a petition was also filed to revoke Brown’s parole. On December 6, 2001, a preliminary revocation hearing was held. On January 22, 2002, a final revocation hearing was held on the arrest for domestic assault. The record reflects no information regarding what occurred at either the preliminary hearing or the final revocation hearing.

¶ 4. On February 27, 2002, the domestic assault charge was dismissed. The record also reflects no information pertaining to the circumstances surrounding Brown’s arrest for domestic assault, or the reasons for its dismissal. However, the record does reflect that on December 30, 2002, Brown filed a “Designation of Record” requesting a copy of the revocation transcript and sentencing hearing.

¶ 5. On November 7, 2002, Brown filed a motion for post-conviction relief. In his motion Brown claimed that he was arrested on a charge that was later dismissed, and the State provided “no proof or evidence of guilt or innocence to support the revocation except for the arrest.” Finding Brown’s motion to be without merit, the Harrison County Circuit Court dismissed it on December 6, 2002, without conducting an evidentiary hearing. In its “Order denying Post-Conviction Relief,” the trial judge held that, “It is undisputed that Brown was arrested while he was on probation and that such an arrest violated one of the terms of his probation.” Aggrieved by this decision Brown has perfected his appeal to this Court.

ISSUES AND ANALYSIS

Whether the circuit court erred in denying Brown’s motion for post conviction relief solely on the basis of a subsequent arrest

¶ 6. Brown asserts the arrest itself was the only evidence presented by the State to justify the revocation of his probation. Brown contends that his arrest alone was insufficient grounds for revocation of his probation, unless there was a finding by the trial court that he “more likely than not” committed the domestic assault.

¶ 7. The standard of review for a denial of a post-conviction motion is as follows: “this Court reviews a denial of post-conviction relief under an abuse of discretion standard.” Mitchell v. State, 754 So.2d 519, 521(¶ 7) (Miss.Ct.App.1999). The findings of the trial court must be clearly erroneous in order to overturn a lower court’s denial of a post-conviction relief motion. McClinton v. State, 799 So.2d 123, 126(¶ 4) (Miss.Ct.App.2001). However, if questions of law are raised upon appeal the standard of review is de novo. Id.

¶ 8. Mississippi Code Annotated Section 99-39-5(2) (Rev.2000) requires that an applicant for post-conviction relief submit an affidavit of facts known to him, and an affidavit or some description of facts or matters beyond his personal knowledge yet relied on as basis for the requested post-conviction relief. The trial court after a consideration of the applicant’s submissions, and the record, should determine if there exists a reason to have an evidentiary hearing on the matter. The State is correct that Brown failed to attach any affidavits or statements of “good cause” explaining why they could not be obtained. However, we must note as plain error that the order itself states as a basis for denying post-conviction relief a position which is contrary to the law.

¶ 9. The trial judge ruled that “[I]t is undisputed that Brown was arrested while he was on probation, and that such arrest violated one of the terms of his probation.” This statement serves as the sole foundation for the revocation of Brown’s probation. The mere arrest of a probationer is not a violation of probation. Moore v. State, 587 So.2d 1193, 1194 (Miss.1991). Where the State seeks to revoke one’s probation based upon an allegation of criminal activity, it must show proof of an actual conviction, or that a crime has been committed and that it is more likely than not that the probationer committed the offense. McClinton v. State, 799 So.2d 123, 127(¶ 9) (Miss.Ct.App.2001); Younger v. State, 749 So.2d 219, 221-222(¶ 10) (Miss.Ct.App.1999). Even a cursory reading of the trial court’s order shows that standard was not met.

¶ 10. Finding this failure to be plain error, this Court reverses and remands this matter for further proceedings.

¶11. THE JUDGMENT OF THE CIRCUIT COURT OF HARRISON COUNTY DENYING POST-CONVICTION RELIEF IS REVERSED AND THIS MATTER IS REMANDED FOR A HEARING ON WHETHER BROWN IS ENTITLED TO POST-CONVICTION RELIEF. ALL COSTS OF THIS APPEAL ARE TAXED TO HARRISON COUNTY.

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


author: HOUSTON, Justice. JOHNSTONE, Justice,

text:
    McGUFFEY HEALTH AND REHABILITATION CENTER v. Zadie GIBSON, by and through her next friend, Dorothy JACKSON.
    1020289.
    Supreme Court of Alabama.
    May 9, 2003.
    Reed R. Bates and R. Todd Huntley of Starnes & Atchison, LLP, Birmingham, for appellant.
    H. Edgar Howard of Ford, Howard & Cornett, P.C., Gadsden, for appellee.
   HOUSTON, Justice.

This medical-malpractice action involves only one issue: Whether the trial court erred in holding that an admission agreement signed on behalf of Zadie Gibson by Dorothy Jackson with McGuffey Health and Rehabilitation Center (“McGuffey”) did not evidence a transaction that substantially affected interstate commerce so as to require Gibson’s medical-malpractice action against McGuffey to be arbitrated in accordance with the arbitration provision in the admission agreement.

It is undisputed that on October 30, 2001, Jackson, on Gibson’s behalf, signed an admission agreement with McGuffey pursuant to which Gibson was to be admitted to a nursing home operated by McGuffey; that agreement included an arbitration clause that would require arbitration of Gibson’s medical-malpractice claim against McGuffey if the admission agreement evidenced a transaction that substantially affects interstate commerce.

Gibson was injured on May 29, 2002, when she fell from her bed in the nursing home. In her complaint, Gibson alleges that McGuffey “failed to secure [Gibson] in her bed using appropriate instrumentalities, whereupon [Gibson] was unable to prevent herself from falling from her bed.” Gibson alternatively alleges that McGuffey “failed to monitor [Gibson] when they knew or should have known that without appropriate assistance and/or monitoring there existed a likelihood that [Gibson] would fall.”

“The party seeking to compel arbitration has the burden of proving the existence of a contract calling for arbitration and proving that that contract evidences a transaction affecting interstate commerce. Jim Burke Automotive, Inc. v. Beavers, 674 So.2d 1260 (Ala.1995).” Transouth Fin. Corp. v. Bell, 739 So.2d 1110, 1114 (Ala.1999). The parties here do not dispute the existence of a contract calling for arbitration.

This Court, in Sisters of the Visitation v. Cochran Plastering Co., 775 So.2d 759, 761-62 (Ala.2000), stated that a party seeking to compel arbitration must prove that the transaction had a “substantial effect” on interstate commerce before the party can compel another party to resolve their differences by arbitration. Sisters of the Visitation, which involved a construction contract, listed five factors to evaluate in determining whether a transaction has a substantial effect on interstate commerce: 1) the citizenship of the parties; 2) whether the tools and equipment moved in interstate commerce; 3) the allocation of the cost of services and materials; 4) whether the object of the contract is capable of subsequent movement across state lines; and 5) the degree of separability from other contracts. 775 So.2d at 765-66.

In this case, all the parties to this action are citizens of Alabama. The items McGuffey purchased to carry out its daily obligations to Gibson in accordance with the admissions agreement moved in interstate commerce: the wheelchairs McGuffey used were manufactured in Wisconsin; the hospital beds were manufactured in Indiana and Texas; the housekeeping, cleaning supplies, and laundry chemicals originated in Minnesota; and the food was from Georgia.

In Potts v. Baptist Health System, Inc., 853 So.2d 194 (Ala.2002), we concluded that although the defendants, who sought arbitration, did not provide sufficient evidence regarding all of the Sisters of the Visitation factors, they had presented sufficient evidence of certain of those factors. In Potts, there was evidence indicating that a sizeable portion of the materials Potts used in treating patients was purchased in interstate commerce and that Potts used many of those goods on a daily and recurring basis throughout the course of her employment with the defendants. 853 So.2d at 204. We concluded in Potts that the employment relation between Potts and the defendants did have a substantial effect on interstate commerce, and we affirmed the order compelling arbitration. 853 So.2d at 207.

It is undisputed that Medicare paid McGuffey $21,676 for the care and treatment of Gibson during her seven-month stay at the nursing home and that Medicaid paid McGuffey $11,691.26 for Gibson’s care and treatment. The Medicare funds (two-thirds of all sums received by McGuffey for services rendered to Gibson) originated with the federal government and passed through Mutual of Omaha located in Omaha, Nebraska, before being paid to McGuffey in Alabama. McGuffey receives between 15% and 20% of its total gross income from Medicare. Funds flowing from outside the State should be considered in determining if an agreement substantially affects interstate commerce. American General Fin., Inc. v. Branch, 793 So.2d 738 (Ala.2000); Lewis v. Conseco Fin. Corp., 848 So.2d 920 (Ala.2002). We have never directly addressed the issue whether Medicare funds moving across state lines should be considered to establish the interstate-commerce prong required in determining whether parties must arbitrate. The parties have not directed us to any cases from other jurisdictions involving this issue. McGuffey, though acknowledging that the following cases are in some respects distinguishable from this case, directs us to Summit Health Ltd. v. Pinhas, 500 U.S. 322, 111 S.Ct. 1842, 114 L.Ed.2d 366 (1991); BCB Anesthesia Care, Ltd. v. Passavant Memorial Area Hospital Association, 36 F.3d 664 (7th Cir.1994); McElhinney v. Medical Protective Co., 549 F.Supp. 121 (E.D.Ky.1982). In those cases, which were antitrust actions, the receipt of Medicare funds from out of state was considered in establishing the necessary nexus with interstate commerce. We hold that Medicare funds should be considered in determining whether the admission agreement had a substantial effect on interstate commerce.

Because two-thirds of all sums received by McGuffey for the care and treatment of Gibson came from out of state, and because materials were purchased directly from out-of-state vendors to feed Gibson, to provide her bedding, and to keep her and her surroundings clean, we hold that the admissions agreement had a substantial effect on interstate commerce, without considering the items listed in footnote one; therefore, we reverse the judgment of the trial court and remand the case for proceedings consistent with this opinion.

REVERSED AND REMANDED.

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

SEE, J., concurs in the result.

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

JOHNSTONE, Justice,

dissenting.

I respectfully dissent. The main opinion continues the now apparently inexorable evisceration of the “substantial-effect-on-interstate-commerce” test, see, e.g., my dissent in Potts v. Baptist Health System, Inc., 853 So.2d 194 (Ala.2002), and thereby gratuitously extends the reach of the Federal Arbitration Act further than ever before, in ever worse derogation of the public policy of Alabama, see Woodmen of the World Life Insurance Society v. Harris, 740 So.2d 362, 366 (Ala.1999).

      . Many of Gibson's medications, including Lortab, Paxil, Ativan, Prevacid, Sonata, Bac-troban, Aricept, and Ultram, were manufactured outside Alabama and shipped across state lines to Turenne Pharmedco, Inc. ("Tur-enne’'), a distribution center in Montgomery, Alabama; McGuffey then purchased the medications from Turenne. Likewise, restraint-free monitor alarms, bed bumper pads, and other nonpharmaceutical supplies used by McGuffey for Gibson’s care and maintenance were manufactured outside Alabama and shipped across state lines to Turenne; McGuffey then acquired them from Turenne. Nowhere in the record is there an explanation of the relationship between McGuffey and Tur-enne. McGuffey clearly proved that all of the pharmaceuticals and nonpharmaceutical supplies listed in this footnote were manufactured outside Alabama and shipped across state lines. There was no commingling so that the point of origin could not be discovered, as was the case in Ex parte Kampis, 826 So.2d 819, 822 (Ala.2002). However, because the relationship between McGuffey and Turenne is uncertain, we are aware that, under the rationale of the plurality holding in Kampis, the pharmaceuticals and nonphar-maceutical supplies McGuffey acquired from Turenne to use in treating Gibson under the admission agreement may have come to rest at Turenne’s, so that the flow of interstate commerce had ceased before McGuffey acquired them from Turenne. But see Katzenbach v. McClung, 379 U.S. 294, 296-302, 85 S.Ct. 377, 13 L.Ed.2d 290 (1964).


author:
STUART, Justice.
      JOHNSTONE, Justice

text:
    Ex parte Charles M. OLIVER III. (In re Spencer Wood, a minor, by and through his mother and next friend, Jamie Carlton Wood; and Jamie Carlton Wood, individually v. Charles M. Oliver III et al.)
    1020424.
    Supreme Court of Alabama.
    May 9, 2003.

      George P. Ford of Ford, Howard & Cornett, P.C., Gadsden, for petitioner.
    Clay Hornsby of Morris, Haynes & Hornsby, Alexander City; and Thomas King, Gadsden, for respondents.
   STUART, Justice.

The petitioner, Charles M. Oliver III, is one of several defendants in a civil action pending in the Etowah Circuit Court. Since filing his petition for a writ of mandamus, he has also been indicted by an Etowah County grand jury for four counts of first-degree assault, see § 13A-6-20, Ala.Code 1975, arising out of the same incident that gave rise to the civil action. Oliver petitions this Court for a writ of mandamus directing Judge William H. Rhea III to stay the proceedings in the civil action pending resolution of the criminal proceedings.

Facts

On January 31, 2002, Oliver was driving a tractor-trailer hauling a mobile home, when he hit a vehicle occupied by Jamie Carlton Wood and her nine-year-old son Spencer. Wood and her son were severely injured. Neither of them had health insurance, and medical treatment for their injuries was and continues to be expensive. On February 11, 2002, Wood and her son sued Oliver and several other entities. The claims against Oliver include negligence and wantonness.

On October 16, 2002, Oliver moved the trial court to stay the civil action pending “resolution of the criminal investigation against [him] which arose from the same operative facts and events involved in this civil action, and pending the resolution of any criminal charges formally brought against him by indictment subsequent hereto.” As grounds for his motion, Oliver maintained that the return of an indictment appeared to be imminent, and that, in light of the propounded interrogatories and the requests for a deposition in the civil action, “his right against self-incrimination pending resolution of criminal charges against him outweigh[ed] any prejudice that [might] result from postponing the civil action.”

In response to Oliver’s motion to stay, the Woods maintained that, in light of the failure of three grand juries convened since the incident to return an indictment charging Oliver, their withdrawal of the deposition notice to Oliver, and their request to “compel [Oliver] to answer only those discovery requests (interrogatories and request for production) which are non-incriminating in nature,” Oliver’s motion to stay the civil action was moot.

On November 14, 2002, the trial court, after considering Oliver’s motion to stay, the Woods’ response, and oral and written arguments from counsel, held that Oliver’s motion to stay was moot, apparently because no criminal proceedings had been commenced against Oliver.

On December 12, 2002, Oliver filed this petition for a writ of mandamus, arguing that the trial court abused its discretion in refusing to stay the civil proceedings because, he says, his constitutional privilege against self-incrimination outweighs the Woods’ interest in obtaining a prompt resolution of the civil action. Additionally, he requested that this Court stay the trial in the civil action, which was set to begin on February 10, 2003. On January 17, 2003, Oliver informed this Court that the Eto-wah County grand jury had returned an indictment charging him with four counts of first-degree assault arising from this accident.

On January 27, 2003, this Court stayed the civil proceedings pending disposition of this petition and ordered the Woods to file an answer and brief.

Standard of Review

“Mandamus is an extraordinary remedy and one seeking it must show (1) a clear legal right to the order sought; (2) an imperative duty upon the respondent to perform, accompanied by a refusal to do so; (3) a lack of another remedy; and (4) properly invoked jurisdiction of the court.” Ex parte Windom, 763 So.2d 946, 948 (Ala.2000).

Legal Analysis

The dispositive issue presented by this petition is whether, given the principles of the Fifth Amendment privilege against self-incrimination, the trial court abused its discretion in denying Oliver’s motion for a stay of proceedings in the civil action pending the resolution of any criminal proceeding arising out of the accident.

“The Fifth Amendment privilege against self-incrimination must be liberally construed in favor of the accused, Hoffman v. United States, 341 U.S. 479, 71 S.Ct. 814, 95 L.Ed. 1118 (1951), and the privilege is applicable in state as well as in federal proceedings, Malloy v. Hogan, 378 U.S. 1, 84 S.Ct. 1489, 12 L.Ed.2d 653 (1964), and in civil as well as in criminal proceedings, Wehling v. Columbia Broadcasting System, 608 F.2d 1084 (5th Cir.1979); Ex parte Baugh, 530 So.2d 238 (Ala.1988). Under Baugh and the cases quoted and cited therein, however, the Fifth Amendment does not mandate a stay of civil proceedings pending the outcome of criminal proceedings; whether to grant a stay, based on a balancing of the interests of the parties — i.e., contrasting the interest of a party in postponing the civil proceedings with the possible prejudice to the party who wishes the litigation to go forward — is within the trial court’s discretion.”

Ex parte Pegram, 646 So.2d 644, 645-46 (Ala.1994).

In Ex parte Price, 698 So.2d 111 (Ala.1997), this Court held that discovery could continue in a civil proceeding that involved incidents that were also under criminal investigation if the defendant was not required to testify or to produce potentially incriminating documents.

At the time Oliver moved the trial court to stay the civil proceedings and the trial court held that the motion was moot, an indictment had not been returned against Oliver and the Woods had modified their discovery requests to protect Oliver’s privilege against self-incrimination. It appears that the trial court balanced the interests of the parties and concluded that the civil action could proceed in a limited way. See Ex parte Price, supra. Therefore, we cannot say that Oliver has established a clear legal right to the relief requested.

Moreover, we note that this case is distinguishable from Ex parte Williams, 775 So.2d 146 (Ala.2000), in which this Court stayed the civil proceedings in light of the potential for criminal proceedings. In Williams, the plaintiffs in the civil action refused to limit their discovery in light of the defendant’s Fifth Amendment right against self-incrimination. This Court held that Williams had presented a clear legal right to the stay because the only means to guarantee that Williams’s right against self-incrimination, in light of the plaintiffs’ refusal to limit discovery, was to stay the civil proceedings. Here, the Woods have modified and limited their discovery in light of Oliver’s privilege against self-incrimination; therefore, Oliver has failed to show a clear legal right to the stay or that the trial court had an “imperative duty” to grant his request.

This Court recognizes that after the trial court held Oliver’s motion for a stay moot and after Oliver filed this petition, the grand jury returned an indictment against Oliver. In light of the return of the indictment against Oliver and the need to guarantee Oliver’s Fifth Amendment privilege, our caselaw, see Ex parte White, 551 So.2d 923 (Ala.1989), and its progeny, requires that a stay of the civil proceedings be issued to guarantee Oliver’s Fifth Amendment privilege. Oliver, however, has not presented this change in circumstance — the return of the indictment, which creates an imperative duty for the trial court to stay the civil proceedings — to the trial court. This Court will not direct a court to take some action it has not previously refused to take. See Ex parte Windom, supra. Therefore, while a stay of the proceedings in the civil action is proper in light of the new fact presented by the issuance of an indictment, we cannot issue a writ staying those proceedings on this ground until the trial court refuses to do so.

Conclusion

Oliver has not shown that when he moved for a stay of the proceedings in the civil action he had a clear legal right to the relief sought or that the trial court had an “imperative duty” to grant the stay, but refused to do so. Therefore, we deny the petition.

PETITION DENIED.

HOUSTON, SEE, LYONS, BROWN, and HARWOOD, JJ., concur.

MOORE, C.J., and WOODALL, J„ concur in the result.

JOHNSTONE, J., concurs in part and dissents in part.

JOHNSTONE, Justice

(concurring in part and dissenting in part).

But for one reservation, I concur. The reservation is that I would not agree that a civil defendant facing the prospect of indictment could be put to trial fairly in the civil case over his objection, even if he were not required to testify and even if the plaintiff were not allowed to argue the defendant’s silence against him. Such a trial, even with these accommodations, would confront the defendant with the unfair dilemma of either waiving his right to testify in his own defense in the civil trial or waiving his right not to incriminate himself in the prospective criminal proceedings.

      . Counts one and two charged Oliver with reckless conduct resulting in injuries to the victims; counts three and four charged Oliver with driving under the influence of a controlled substance and thereby causing injuries to the victims.


author: MURDOCK, Judge.

text:
    MICHELIN TIRE CORPORATION and Ron Morgan v. Randall A. GOFF.
    2000746.
    Court of Civil Appeals of Alabama.
    Sept. 20, 2002.
    Morgan’s Certiorari Petition Denied Dec. 13, 2002 Alabama Supreme Court 1020119.
    Michelin Tire Corporation’s Rehearing Application Denied Feb. 7, 2003.
    Goffs Certiorari Petition Denied May 16, 2003 Alabama Supreme Court 1020853.

      William C. Carn III of Lee & Mclnish, P.C., Dothan; and Fred W. Suggs, Jr., of Ogletree, Deakins, Nash, Smoak & Stewart, P.C., Greenville, South Carolina, for appellants.
    Thomas D. Motley of Motley, Motley & Yarbrough, Dothan, for appellee.
   MURDOCK, Judge.

This case involves claims by Randall A. Goff against his employer, Michelin Tire Corporation (“Michelin”), and his supervisor, Ron Morgan, related to the termination of Goffs employment by Michelin.

With respect to Goffs claim against Michelin, the trial court determined, as a matter of law, that an employee handbook issued by Michelin constituted a unilateral contract of employment between Michelin and Goff. The trial court therefore submitted to a jury Goffs claim that Michelin breached this contract when it terminated Goffs employment, and the jury returned a verdict in favor of Goff and against Michelin in the amount of $78,905. The trial court entered a judgment against Michelin based on the jury’s verdict. Michelin appeals from that judgment.

At the close of Goffs case-in-chief, the trial court “dismissed” a claim by Goff against Morgan alleging that Morgan, who was Goffs supervisor at Michelin, intentionally interfered with Goffs employment relationship when he reported to Michelin that Goff was sleeping on the job. After the trial, however, the trial court granted Goffs motion for a new trial with respect to this intentional-interference claim. Morgan appeals from that order.

Goffs complaint alleged that he and Michelin had entered into an “employment contract of indefinite duration” in 1978, pursuant to which Goff began to work for Michelin as an electrician in South Carolina. More specifically, Goff averred that in 1978 Michelin provided him with a copy of an employee handbook (the “1978 handbook”) that, according to the complaint, “promised that employees would be discharged only for good cause, and only in accordance with discharge procedures set out in the manual” and that he continued to work for Michelin in reliance on those alleged promises.

In 1984, Goff was transferred by Michelin to a facility located in Dothan, Alabama. Several versions of the employee handbook were published after the 1978 handbook; these subsequent versions were provided to Goff at various times both before and after his transfer to Alabama. Michelin terminated Goffs employment in May 1993.

According to Goff, Morgan had falsely reported to Michelin that Goff had been sleeping on the job. In his complaint, Goff contended that Michelin had thereafter breached its employment agreement with him by wrongfully discharging him from employment and that Michelin should be estopped from denying the enforceability of its alleged promises to him regarding his employment. Goff also alleged that Morgan’s action constituted intentional interference with his employment relationship with Michelin, intentional infliction of emotion distress, and defamation. Goffs complaint against Michelin and Morgan sought damages for, among other things, lost earnings of $40,000 and expenses related to seeking other employment.

In March 1994, after having previously filed an answer to Goffs complaint, Michelin and Morgan jointly filed a motion for a summary judgment as to all of Goffs claims. In support of their motion, Michelin and Morgan filed an affidavit from Morgan, excerpts from Goffs deposition testimony, and certain exhibits to Goffs deposition testimony, including a copy of the Michelin employee handbook that was in effect at the time of Goffs termination in 1993 (the “1993 handbook”).

Goff filed a “motion” in opposition to the motion for a summary judgment; he supported his motion with an affidavit that stated, in pertinent part:

“I was recruited for employment by Michelin Tire Corporation beginning on or about December, 1977 and was employed beginning January 23, 1978. During the recruitment period, it was explained to me by agents of Michelin that I would be offered a position at Michelin with a beginning salary of $5.76, and that my employment would be probationary for a period of ninety days, during which time I could be discharged for any reason. It was further explained that after successful completion of the probationary period, I would become a regular employee of Michelin with full benefits, including a set of policies and procedures to be followed by both myself and the company in dealing with infractions that might subject me to dismissal for reasons set out in the employee manuals, and to deal with grievances which I might have. Based upon these representations and the policies and procedures outlined in the employee manuals distributed to the employees at that time, I accepted employment with Michelin and continued that employment for approximately fifteen years.”

Among other things, Goff also filed an uncertified copy of an employment agreement that was apparently executed by Goff and a Michelin representative. The employment agreement was on Michelin’s letterhead, was dated January 10, 1978, and stated in its entirety:

“Michelin Tire Corporation is pleased to extend to you an offer of employment which will become effective on January 23, 1978 at an hourly rate of $5.76. The first ninety (90) days of employment will be considered as a probationary period.
“This offer is contingent upon the successful completion of a physical examination by one of our designated medical doctors.”

In June 1994, the trial court entered a summary judgment in favor of Morgan as to Goffs claims against Morgan for intentional infliction of emotional distress and defamation, but denied Michelin and Morgan’s motion for a summary judgment as to all other claims.

The trial court held a pretrial conference in March 1995 and ordered the parties to submit briefs as to certain issues related to Michelin’s employee handbook. In response, Michelin and Morgan filed a brief arguing that the trial court, rather than the jury, should determine whether Michelin’s employee handbook constituted a contract; that, based upon the language of the 1993 handbook, the court should determine that Micheliris employee handbook was not a contract; and that the 1993 handbook was the only version of Micheliris employee handbook that was relevant to Goffs claims. Goff filed a brief arguing that the issue of whether the employee handbook constituted a contract between Goff and Michelin should be submitted to the jury for determination. Michelin and Morgan filed a response to Goffs brief, contesting Goffs arguments and seeking a summary judgment in their favor.

On May 5,1995, the trial court issued an order that stated, in part:

“The Court has considered the briefs and arguments of [Goff] and [Michelin], The Court has also considered the [1993 handbook] in effect at the time of [Goffs] dismissal. The Court finds that the [1993 handbook] constituted a contract of employment between [Goff] and [Michelin], where no employee would be discharged without just cause. The company further provided a grievance procedure to be followed.
“Accordingly, the [1993 handbook] is the only relevant handbook in this cause and there exists a genuine issue of matter of fact as to whether [Michelin] breached said contract.
“Therefore, Summary Judgment [for Michelin] is hereby denied.”

(Emphasis added.)

In May 1996, the trial court issued an order that purported to certify its May 5, 1995, order as a final order, pursuant to Rule 54(b), Ala. R. Civ. P. Michelin and Morgan appealed to the Alabama Supreme Court in June 1996, arguing that the trial court erred when it determined that the 1993 handbook constituted a contract between Michelin and Goff and that it also erred when it denied Michelin and Morgan’s motion for a summary judgment. Goff cross-appealed, arguing that the determination of whether the employee handbook constituted a contract was a question of fact to be determined by a jury. The Alabama Supreme Court transferred the appeals to this court, pursuant to Ala.Code 1975, § 12-2-7. We dismissed the appeal and the cross-appeal, without issuing an opinion. See Michelin Tire Corp. v. Goff, (No. 2951218, Aug. 13, 1996) 690 So.2d 565 (Ala.Civ.App.1996) (table).

The ease was tried before a jury in November 2000. At the close of Goffs case-in-ehief, Michelin and Morgan filed a motion for a judgment as a matter of law arguing that provisions contained in the 1993 handbook precluded a finding that the 1993 handbook was an employment contract. Michelin and Morgan argued, in the alternative, that, if the trial court nonetheless determined that the 1993 handbook was a contract, Michelin did not breach that contract when it terminated Goff for allegedly sleeping on the job. They also argued that Morgan could not be liable to Goff for intentional interference with an employment relationship between Goff and Michelin because, they argued, (1) Morgan was an agent of Michelin, (2) Morgan had acted within the scope of his employment when he reported that he had caught Goff sleeping on the job, and (3) Goff had not introduced substantial evidence indicating that Morgan had acted with malice.

After considering Michelin and Morgan’s motion for a judgment as a matter of law made at the close of Goffs case-in-chief, the trial court stated: “I’m going to stand by my ruling that the [1993] Handbook constituted an implied contract. But I feel that Mr. Morgan, as a principal, ... is a party in this case and he is an agent or employee. Therefore, I’m going to dismiss Mr. Morgan on the tortious interference [claim].”

At the end of the trial, Michelin again requested that the trial court enter a judgment as a matter of law in its favor. At that time, the trial court stated, “I’m going to ... submit it to the jury. We have come this far. I’m going to give an instruction ... as follows: That I have ruled that the [1993 handbook] is an implied contract, that an employee cannot be discharged without just cause.” Goffs claims against Michelin were then submitted to the jury.

Michelin filed a postjudgment motion, requesting that the trial court enter a judgment as a matter of law in its favor or, in the alternative, that it grant Michelin a new trial. Goff also filed a postjudgment motion, arguing that the trial court erred when it dismissed Goffs claim against Morgan for intentional interference with his employment relationship with Michelin and requesting a new trial as to that claim. The trial court denied Michelin’s post-judgment motion, but granted Goffs motion for a new trial. In the order denying Michelin’s postjudgment motion, the trial court stated:

“The evidence presented in this case showed that ... Goff was first recruited by ... Michelin ... in South Carolina in 1977 and began work in January, 1978. At the time of his employment, Goff was issued an employee handbook which the Court determined as a matter of law contained language sufficient to constitute an offer of a unilateral contract of employment, which Goff accepted by becoming employed and remaining employed with Michelin for fifteen years. There was evidence presented that additional handbooks were issued by the company throughout Goffs employment, and the Court determined that the language of those handbooks was sufficient to constitute an amendment to the rules and regulations under which ... [Michelin] and ... [Goff] would conduct their responsibilities and obligations under the initial contract and that the latest handbook issued should control these responsibilities and obligations; however, the Court determined the issuance of these additional handbooks did not negate the employment contract nor change the employment relationship to at-will.
“The evidence at trial was sufficient to submit Goffs claims that Michelin breached the employment contract under the latest handbook to the jury.

Michelin and Morgan appealed to the Alabama Supreme Court. The case was transferred to this court, pursuant to § 12-2-7, Ala.Code 1975.

Michelin argues on appeal that the trial court erred when it denied Michelin’s motion for a judgment as a matter of law and instead determined that the 1993 handbook constituted a contract between Michelin and Goff. Michelin argues that Goff was an employee at will whose employment could be terminated with or without cause, and that the trial court erred when it instructed the jury that Goff could not be terminated without “just cause.” Michelin argues, in the alternative, that the jury’s determination that Michelin breached its contract with Goff was not supported by substantial evidence because, Michelin says, it “presented overwhelming evidence of just cause to terminate Goffs employment.”

“Whether the language of an employee handbook is sufficiently clear and specific to constitute an offer of a unilateral contract is a question of law to be determined by the court.” Dykes v. Lane Trucking, Inc., 652 So.2d 248, 250 (Ala.1994). See also Davis v. University of Montevallo, 586 So.2d 27, 29 (Ala.Civ.App.1991) (“ ‘Although the ultimate determination ... is a matter of law, the facts underlying that legal conclusion may be in dispute, thus requiring resolution by the factfinder.’ ” (Quoting Lassiter v. Covington, 861 F.2d 680, 684 (11th Cir.1988))).

“[0]n appeal, the ruling on a question of law carries no presumption of correctness, and this Court’s review is de novo.” Ex parte Graham, 702 So.2d 1215, 1221 (Ala.1997).

As our Supreme Court has explained:

“[T]he rule is well settled in Alabama that an employee contract at will may be terminated by either party with or without cause or justification. This means a good reason, a wrong reason, or no reason.
“The cases reveal that three elements must be shown to establish that an employment contract is one other than one terminable at will: (1) that there was a clear and unequivocal offer of lifetime employment or employment of definite duration; (2) that the hiring agent had authority to bind the principal to a permanent employment contract; and (3) that the employee provided substantial consideration for the contract separate from the services to be rendered.”

Hoffman-La Roche, Inc. v. Campbell, 512 So.2d 725, 728 (Ala.1987) (citations omitted; final emphasis added). Thus, an “employment-at-will relationship can be modified by provisions in an employee handbook by which an employer promises not to discharge an employee except by specified procedures or for specified causes.” Campisi v. Scoles Cadillac, Inc., 611 So.2d 296, 298 (Ala.1992).

“[T]he language contained in a handbook can be sufficient to constitute an offer to create a binding unilateral contract. The existence of such a contract is determined by applying the following analysis to the facts of each case: First, the language contained in the handbook must be examined to see if it is specific enough to constitute an offer. Second, the offer must have been communicated to the employee by issuance of the handbook, or otherwise. Third, the employee must have accepted the offer by retaining employment after he has become generally aware of the offer. His actual performance supplies the necessary consideration.”

Hoffman-La Roche, Inc., 512 So.2d at 735 (emphasis added).

The Alabama Supreme Court also stated in Hoffman-La Roche, Inc.:

“Of course, to become a binding promise, the language used in the handbook must be specific enough to constitute an actual offer rather than a mere general statement of policy. However, whether a proposal is meant to be an offer for a unilateral contract is determined by the outward manifestations of the parties, rather than by their uncommunicated beliefs.... Indeed, if the employer does not wish the policies contained in an employee handbook to be construed as an offer for a unilateral contract, he is free to so state in the handbook. Thus, this Court has refused to hold the provisions of a handbook enforceable against an employer where the handbook at issue expressly stated the following:
“ ‘This Handbook and the policies contained herein do not in any way constitute, and should not be construed as a contract of employment between the employer and the employee, or a promise of employment.’ ”

512 So.2d at 734 (quoting McCluskey v. Unicare Health Facility, Inc., 484 So.2d 398, 400 (Ala.1986)) (citations omitted); see also Bell v. South Central Bell, 564 So.2d 46, 48 (Ala.1990) (“Whether the language in the handbook was intended to be an offer is determined by reference to the reasonable meaning of the parties’ external and objective manifestations, rather than by their uncommunicated beliefs.”).

The following language appears at the beginning of the 1993 handbook:

“Welcome to Michelin. This handbook has been compiled to help you become better acquainted with the company of which you are an important member.
“Some of the information you will be reading here will be used immediately on the job. Some you will use in planning your future. And, some you’ll need for later reference.
“This handbook is not intended to be a rule book for employees, nor is it a complete statement of policies and practices. It is a brief look at Michelin today and a summary description of many Michelin employee programs.”

(Emphasis added.)

The second page of the 1993 handbook contains a letter from Michelin’s president that states, in pertinent part:

“I am happy to present you with a copy of our employee handbook that has been specially designed for all Michelin U.S. employees to help you know your company better. It contains information which is important to your understanding of the company and how you fit in as a team member.
“Please understand that not all situations can be covered nor every question answered in a handbook. This is not an employment contract. Michelin may change or revise policies and procedures from time to time. However, we can best work together and build an ever stronger company if we understand our common goals, policies and procedures.”

(Emphasis added.)

The 1993 handbook also states, in pertinent part:

“Your first three months with Michelin are considered a probationary period.... Upon successful completion of this period, you will be considered a regular employee of Michelin and become eligible for our full range of benefits. Of course, both during and after the Probationary Period you will be expected to meet the standards of performance so essential to successful teamwork.
“One of the responsibilities of every employee is to conduct themself [sic] in a reasonable, adult manner. These rules of conduct at Michelin are basic, common sense rules of behavior which govern on-the-job conduct and performance. Each rule, the violation of which can result in disciplinary action up to and including discharge, is listed below. Every employee is expected to know and abide by these rules. The list is not all inclusive. If you have questions, consult your supervisor.”

The 1993 handbook then listed several rules, including sleeping on the job, the violation of which would subject an employee to discharge.

In actions like the present one, the Alabama Supreme Court has repeatedly upheld summary judgments for employers when an employee handbook contained a disclaimer stating that the handbook was not to be considered a contract, particularly where, as in this case, the handbook language also indicated that any listed reasons for which an employee might be dismissed were nonexclusive or that those reasons could be changed in the discretion of the employer. See, e.g., Campisi, 611 So.2d at 299-300; Clark v. America’s First Credit Union, 585 So.2d 1367, 1369 (Ala.1991); Stinson v. American Sterilizer Co., 570 So.2d 618, 621-22 (Ala.1990); McCluskey v. Unicare Health Facility, Inc., 484 So.2d 398, 400-01 (Ala.1986). Based upon the language contained in the 1993 handbook, we conclude that the trial court erred when it determined that the 1993 handbook established a unilateral contract between Michelin and Goff and when it submitted to the jury Goffs breach-of-contract claim against Michelin. Therefore, we need not address the remaining issues Michelin has raised on appeal.

We turn now to Morgan’s appeal from the trial court’s order granting Goff a new trial on his claim alleging intentional interference with an employment relationship. In that order, the trial court stated, in pertinent part:

“At the close of [Goffs] evidence in this case, [Michelin and Morgan] moved for judgment as a matter of law and the Court dismissed [Goffs] claims against ... Morgan for intentional interference with Goffs employment relationship with Michelin, based upon its opinion that because Morgan was an employee of Michelin, the cause of action could not be maintained against him and, therefore, should not be submitted to the jury. Upon review of [Goffs] motion for new trial and the caselaw in Alabama, the Court determines it had misconstrued Alabama law in this regard and the issue should have been presented to the jury. Therefore, [Goffs] motion for new trial upon this issue is granted.”

To be actionable, the tort of intentional interference with a business or contractual relation requires:

“(1) The existence of a contract or business relation;
“(2) Defendant’s knowledge of the contract or business relation;
“(B) Intentional interference by the defendant with the contract or business relation;
“(4) Absence of justification for the defendant’s interference; and
“(5) Damage to the plaintiff as a result of defendant’s interference.”

Gross v. Lowder Realty Better Homes & Gardens, 494 So.2d 590, 597 (Ala.1986) (footnote omitted). An employee who desires to maintain a suit against a coworker for intentional interference with the employee’s employment contract must also “ ‘show that the [coworker] acted outside [his or her] scope of employment and did so maliciously.’ ” Hanson v. New Technology, Inc., 594 So.2d 96, 103 (Ala.1992) (quoting Hickman v. Winston County Hosp. Bd., 508 So.2d 237, 241 (Ala.1987) (Adams, J., concurring specially)). Further, in order to show malice the plaintiff must “ ‘make a strong showing of a pattern of interference.’ ” Perlman v. Shurett, 567 So.2d 1296, 1299 (Ala.1990) (quoting Hickman, 508 So.2d at 241 (Adams, J., concurring specially)).

On appeal, Morgan first asserts that Goff and Michelin had “no contract or business relation” with which Morgan could interfere, because Goffs employment with Michelin was “at will.” Morgan provides us with no legal authority for this assertion. We therefore do not hold the trial court in error on this basis. See Rule 28(a)(10), Ala. R.App. P.

Morgan also argues that Goff failed to present substantial evidence that Morgan acted outside the scope of his employment when Goffs employment was terminated and that Goff failed to present substantial evidence that Morgan acted with malice.

Goff testified that he had filed a grievance with Michelin for discrimination in 1989 and that, at that time, Morgan had told Goff that if he “followed through with [the grievance] that it would end any opportunity to advance with Michelin in the future. That [Goffs] career would basically be over.” Goff further testified that within a few weeks after he filed the grievance, he was moved from day shift to rotating shift and that Morgan participated in the decision to change Goffs shift. He stated that he had been working on the day shift for two and one-half years before the shift change and that the move to the rotating shift also required him to perform mechanical work for which he had not been adequately trained. Goff testified that Morgan knew of his job qualifications and his abilities with respect to mechanical work. Goff testified that his job approval reports suffered as a result of his new assignment.

Goff also testified that, after he filed the grievance, his relationship with Morgan quickly deteriorated and that Morgan requested that Goff be terminated on four separate occasions, the last one being the 1993 incident that resulted in Goffs termination. Goff also testified that Michelin had asked him to quit voluntarily after he had filed the grievance and that Michelin had offered him a severance package if he would quit.

Goff stated that, after he filed the grievance, Morgan harassed him on a daily basis and required him to work overtime without pay. He also testified that Morgan had filed a disciplinary report against him for insubordination when Goff had attempted to report Morgan’s actions to Michelin’s personnel department. Goff testified that Michelin dismissed Morgan’s disciplinary report and told Morgan not to require Goff to work when Goff was not “on the clock.” However, Goff stated that Morgan continued to treat him the same way that he had in the past.

Goff testified that on numerous occasions he requested that Michelin transfer him to another department so that he would not be under Morgan’s supervision, but that his requests had been refused. Goff admitted that approximately one year before Michelin terminated his employment, he had been placed on a one-year probation for allegedly threatening another employee in a telephone conversation after work. Goff further testified that toward the end of his probationary year Morgan was “pushing” him at every opportunity, “He was relentless. He wouldn’t let up at all.”

As noted above, Michelin terminated Goffs employment in 1993 when Morgan allegedly caught Goff sleeping on the job. Goff denied that Morgan had found him sleeping on the job, though he admitted that his eyes were heavy and that his head may have “bobbed.” We note that another Michelin employee testified that it was not uncommon for someone to “nod” when they worked on the night portion of the rotating shift and that “nodding” was not considered sleeping on the job.

Goff testified that at the time Morgan reported that he allegedly had been sleeping “on the job,” Goff was taking one of the breaks Michelin permitted an employee to take and that he had been reading a magazine. Goff stated that at that time Morgan “basically ... said I have got you now. You are gone. You are out of here. You won’t get out of this one.... I’m going to fire you for sleeping.... [I]t’s going to be my word against yours.”

Although Morgan offered evidence that contradicted much of Goffs testimony, based upon our review of the record, we conclude that Goff offered substantial evidence indicating that Morgan had repeatedly attempted to have Goffs employment terminated and had fabricated reasons for Goffs termination on more than one occasion, including the 1993 incident that actually resulted in the termination of Goffs employment. That evidence, if believed, would support a finding that Morgan acted outside the scope of his employment and with malice when he requested that Goff be terminated in 1993. The trial court therefore did not err when it granted Goffs motion for a new trial as to his intentional-interference claim against Morgan. See generally, e.g., Pegram v. Hebding, 667 So.2d 696, 701 (Ala.1995) (holding that a trial court erred when it failed to submit to the jury an employee’s claim for intentional interference with his employment contract and noting that “[a] directed verdict is proper only if the evidence and the inferences that can be drawn from that evidence must lead reasonable persons to only one conclusion”).

Based on the foregoing, we reverse the trial court’s judgment against Michelin, and we remand the cause for the trial court to enter a judgment in favor of Michelin. We affirm the trial court’s order granting Goff a new trial as to his claim against Morgan for intentional interference with a business relation.

AFFIRMED IN PART; REVERSED IN PART; AND REMANDED.

YATES, P.J., and PITTMAN, J., concur.

THOMPSON, J., concurs in the result.

      . One of those versions was published and provided to employees in or about 1988. It is unclear from the record whether the version of the handbook in effect in 1993, when Goff’s employment was terminated, was this 1988 version or a subsequent version of the handbook.

      . The trial court also ordered Michelin to produce a copy of the employee handbook it had originally issued to Goff and each subsequent edition of the handbook. Michelin thereafter produced copies of its employee handbooks that had been published in 1977, 1980, 1983, and 1988. However, only what is referred to herein as the 1993 handbook was put into evidence. See note 1, supra.

      . Goff does not make this argument on appeal, and he has not conditionally cross-appealed from the trial court’s determination that it, rather than the jury, should have made the decision as to whether the employee handbook constituted a contract between Goff and Michelin.

      . There is some indication in the record that in his previous appeal Goff argued that the determination of whether the employment handbook was a contract and the question of who should maleé that determination were governed by South Carolina law and that South Carolina law would favor him on both issues. Goff does not make these arguments in the current appeal and, as noted above, no cross-appeal has been filed in connection with the current appeal; Goff does not contend in this appeal that the jury should have been allowed to decide whether the employee handbook constituted a contract of employment.

      . Although Goff argues that the 1978 handbook was the version of the handbook that was relevant to his claims, no evidence was introduced at trial as to the terms of the 1978 handbook. Further, the Alabama Supreme Court has stated that "absent an admission by the defendant of the existence, execution, and content of [a] written agreement, a written contract sued upon must be put into evidence." Alabama Life & Disability Ins. Guar. Ass’n v. Trentham, 543 So.2d 195, 196 (Ala.1989). See also Rule 1002, Ala. R. Evid.

      . Under certain circumstances, after a contract for permanent employment has been made based upon the terms of an employee handbook, an employer cannot unilaterally change the terms of that employment to an "at-will” relationship by subsequently amending its handbook to state that the handbook does not constitute a contract of employment. See Birmingham Parking Auth. v. Wiggins, 797 So.2d 446, 450 n. 2 (Ala.2001); Ex parte Amoco Fabrics & Fibers Co., 729 So.2d 336, 340 (Ala.1998).
      Here, however, it is the employee who would have us uphold the terms of a subsequent handbook as contractually binding on the parties. Specifically, the employee asks us to affirm the trial court's ruling that both parties are contractually bound by the terms of the 1993 handbook. Yet, it is that very handbook that, by its own terms, disclaims any intent that it be construed as a contract. This case is therefore governed by the holdings of Hoffman-La Roche, Inc., and the cases cited in the text accompanying this note, not by the holdings of Birmingham Parking Authority and Ex parte Amoco Fabrics & Fibers Co.

      . We note that in Hanson v. New Technology, Inc., although the Supreme Court did not expressly address the particular argument made in this case by Morgan, it did apply to an at-will employee attempting to assert an intentional-interference claim against a coworker the requirement that the employee show that the coworker acted outside the scope of his employment and that he did so maliciously.