text:
    Frederick Alan NEW, Appellant, v. Sabrina COMOLA, Appellee.
    No. 2003-CA-01626-COA.
    Court of Appeals of Mississippi.
    Aug. 31, 2004.

      Mark A. Chinn and Patricia R. Williams, Jackson, attorneys for appellant.
    Cynthia A. Langston, attorney for appel-lee.
   MYERS, J.,

for the Court.

¶ 1. Frederick Alan New appeals from an order of the Chancery Court of Hinds County, Mississippi. The order directed New to pay Sabrina Comola seventeen percent of his gross income as child support every month, $600 per month toward child support arrearage in the amount of $33,050.22, $7,000 to comply with a personal property settlement entered into by Sabrina Comola and New and to provide current pay stubs every six months. New raises two issues for this Court’s consideration: (1) did the chancery court err by awarding child support calculated from an agreement which contained an invalid escalation clause and (2) did the chancellor abuse his discretion by denying New’s motion for a continuance?

STATEMENT OF FACTS

¶ 2. New and Comola were married on June 6, 1987, in New York City, New York. One child was born of the marriage, Sara Fagan New. The parties separated around February 1991 and entered into a settlement agreement on March 19, 1991. On May 15, 1991, New and Comola agreed to an amendment to the settlement agreement which contained the following provisions:

The Husband -(non-custodial parent) shall pay to the Wife (custodial parent) seventeen (17%) percent of his gross income, in accordance with the CSSA of the State of New York, to wit currently: the sum of $130.44 per week, each and every week for the support of the child of the parties. - -
This sum shall be increased at such time as the salary of the Husband increases, and that the Husband shall supply current pay stubs to the Wife no less than every six (6) months from the date thereof.
The foregoing provisions regarding child support shall be incorporated in any judgment of divorce herein, and all other terms and conditions of the Settlement Agreement shall continue in full force and effect.

¶ 3. New and Comola were granted a divorce based on crúel and inhuman treatment by the New York State Supreme Court on July 24, 1991.' Comola was granted sole custody of the minor child. Both the settlement agreement and the amendment regarding child support were incorporated into the order of the court.

¶ 4. Due to a failure by New to comply with the divorce order, specifically his failure to make child support payments and provide current pay stubs, Comola sought legal recourse. A hearing was held on September 29, 2000, in the Chancery Court of Hinds County, Mississippi. Although New was properly served, he failed to appear. The court proceeded to hear the case in his absence and found that New had failed to pay Comola seventeen percent of his gross income as child support, New was in child support arrears of $19,889.45, New had not paid Comola $7,000 as directed by the property settlement agreement and New failed to provide Comola . current pay stubs every six months in violation of the New York court order. The New York order was given full faith and credit and New was ordered to pay child support arrearage of $19,889.45 within thirty days of the entry of the order. New was also ordered to pay Comola $7,000 as directed by the property settlement agreement and seventeen percent of his gross income as child support. New failed to respond to and comply with the subpoena duces tecum issued by the court.

¶ 5. Comola filed a motion to hold New in contempt and to amend the order to reflect true arrearage and a hearing was held on January 10, 2001. The chancellor found that New fully and completely failed to comply with the court order dated October 2, 2000, and found New in willful contempt of court.. The court amended the October 2000 order to reflect the true child support arrearage as being $33,050.52. The court ordered New to pay to Comola the delinquency of $40,050.52 (child support arrearage plus the $7,000 as per the property settlement agreement) plus 9.25% interest. A withholding order was issued by the court ordering New’s employer to pay Comola seventeen percent of New’s income and to provide pay stubs to her every six months. All other provisions of the October 2002 order were in effect.

¶ 6. A hearing was held on April 9, 2003, where New appeared without counsel. New requested á continuance in order to obtain counsel “to sort through this mess that we have,” but the request was denied by the chancellor because New had appeared at the February 2001 hearing without an attorney .and was granted a continuance to - obtain counsel. The chancellor found that New had wholly failed to make any good faith effort to satisfy his $40,050.52 debt to Comola. The chancellor ordered that in addition to paying seventeen percent of his monthly gross income to Comola, New was required to pay $600 per month towards the arrearage owed to Comola. All other provisions of the February 2001 order remained in effect.

¶ 7. Through counsel, New motioned the chancery court for a new trial or for relief on the basis that the judgment rendered should have been set aside because it contained an invalid escalation clause. The chancery court denied New’s motion and it is from this denial that New now appeals to this Court for consideration of the issues.

STANDARD OF REVIEW

¶ 8. Our standard of review in domestic relations eases is limited by the substantial evidence/manifest error rule. This Court may reverse a chancellor’s findings of fact only when there is no substantial credible evidence in the record to justify his findings. Our scope of review in domestic relations matters is limited in that this Court will not disturb a chancellor’s findings unless manifestly wrong, clearly erroneous, or if the chancellor applied an erroneous legal standard. Tynes v. Tynes, 860 So.2d 325, 327(¶ 5) (Miss.Ct.App.2003) (citing Jundoosing v. Jundoosing, 826 So.2d 85, 88(¶ 10) (Miss.2002)).

LEGAL ANALYSIS

I. DID THE CHANCERY COURT ERR BY AWARDING CHILD SUPPORT CALCULATED FROM AN AGREEMENT WHICH CONTAINED AN INVALID ESCALATION CLAUSE?

¶ 9. New argues that the child support provision contained in the property settlement agreement agreed to and signed by he and Comola is unenforceable and void because it contains an invalid escalation clause. New contends that the judgment of the chancellor must be set aside. The agreement which New was a party to contained the following phrase: “The Husband (non-custodial parent) shall pay to the Wife (custodial parent) seventeen (17%) percent of his gross income, in accordance with the CSSA of the State of New York, to wit currently: the sum of $130.44 per week, each and every week for the support of the child of the parties. This sum shall be increased at such time as the salary of the Husband increases.”

¶ 10. New brings this Court’s attention to cases decided by our supreme court which held that in order for an escalation clause to be enforceable, it must be associated with certain factors such as: (1) the inflation rate, (2) the non-custodial parent’s increase or decrease in income, (3) the child’s expenses, and (4) the custodial parent’s separate income. Bruce v. Bruce, 687 So.2d 1199, 1202 (Miss.1996) (citing Tedford v. Dempsey, 437 So.2d 410, 419 (Miss.1983)). New argues that because the clause contained in the settlement agreement only relates to an increase in his income as the non-custodial parent, it is an invalid escalation clause. While it is a correct statement of law that escalation clauses must be tied to the above factors, New’s argument fails due to his willful failure to comply with court orders.

¶ 11. New has had ample opportunities to challenge the child support provision in the agreed settlement. Instead of challenging the provision, New agreed to it as evidenced by the amendment to the settlement agreement. New now asks this Court to excuse what the chancellor found as his “willful contempt” based on the invalidity of the child support provision. New appeared before the chancellor of Hinds County, Mississippi, on several occasions, without counsel. During those appearances, New never challenged the validity of the child support provision.

¶ 12. New admits to this Court that he owes money to Comola for child support arrearage and for personal property but he has not paid. New has chosen to sit on his rights for thirteen years yet asks this Court for equitable relief from his obligations to support his child. In the Seeley case, a similarly situated parent was delinquent $35,000 in child support arrears and asked the Court for a modification in the amount of support. Seeley v. Stafford, 840 So.2d 111, 114 (¶ 17) (Miss.Ct.App.2003). This Court held that due to the equitable doctrine of clean hands, the parent was not due equitable relief in the form of modification. Id. Similarly to Seeley, New enters this Court with unclean hands due to his willful contempt and therefore the chancellor’s order was in accordance with the maxims of equity.

II. DID THE CHANCELLOR ABUSE HIS DISCRETION BY DENYING NEW’S MOTION FOR A CONTINUANCE?

¶ 13. New argues that the chancellor abused his discretion by denying his motion for a continuance. The right to grant or deny a motion for continuance is within the discretion of the trial court. Shelton v. State, 853 So.2d 1171, 1181 (¶ 35) (Miss.2003) (citing Smiley v. State, 815 So.2d 1140, 1143-14 (¶ 14) (Miss.2002)). The appellate court will not reverse the trial court unless the ruling resulted in manifest injustice. Id.

¶ 14. New sought a continuance during the April 9, 2003 hearing before the chancellor in order to obtain an attorney “to sort through this mess.” The chancellor denied New’s request because New had been granted a continuance at a prior hearing in order to obtain 'counsel and he wás again appearing before the chancellor without an attorney. The chancellor was not obligated to grant New another continuance. New has failed to exhibit to this Court what manifest injustice resulted from his denial of the continuance. The record reflects that the chancellor gave New an opportunity to obtain counsel and New chose to appear before the court without an attorney. The chancellor did not abuse his discretion by denying New’s motion for a continuance.

¶ 15. THE JUDGMENT OF THE CHANCERY COURT OF HINDS COUNTY IS AFFIRMED. ALL COSTS OF THIS APPEAL ARE ASSESSED TO THE APPELLANT.

KING, C.J., BRIDGES, P.J., LEE, CHANDLER AND GRIFFIS, JJ., CONCUR. IRVING, J., CONCURS IN RESULT ONLY. BARNES, J., NOT PARTICIPATING.


source: Caselaw Access Project

author: KING, C.J.,

license: Public Domain

text:
    Paul LYONS, Appellant v. STATE of Mississippi, Appellee.
    No. 2003-CP-01780-COA.
    Court of Appeals of Mississippi.
    Aug. 31, 2004.

      Paul Lyons (Pro Se).
    Office of the Attorney General by John R. Henry, attorney for appellee.

      Before KING, C.J., LEE and GRIFFIS, JJ.
   KING, C.J.,

for the Court.

¶ 1. Paul Lyons was convicted by a jury in the Circuit Court of Lincoln County of felony possession of a controlled substance with the intent to distribute. Lyons was found to be an habitual offender and sentenced to fifteen years in the custody of the Mississippi Department of Corrections. Aggrieved by his conviction and sentence, Lyons appeals to this Court and asserts the following issues, which we have restated as follows:

I. Whether the circuit court erred in failing to hold a bifurcated hearing prior to sentencing Lyons as an habitual offender.
II. Whether the circuit court erred in dismissing, Lyons’ post-conviction motion without holding an eviden-tiary hearing.

Finding no error, we affirm.

STATEMENT OF FACTS

¶ 2. On March 27, 2001, Paul Lyons was indicted on two counts of sale of a controlled substance, and one count of possession of a controlled substance within fifteen hundred feet of a school. On August 15, 2001, the State moved to amend Lyons’s indictment to allege that Lyons was an habitual offender pursuant to Mississippi Code Annotated Section 99-19-81 (Rev.2000). On September 27, 2001, the opening day of trial, the trial judge granted the State’s motion to amend the indictment to charge Lyons as an habitual offender. The jury found Lyons guilty of possession of a controlled substance, but was unable to reach a verdict as to the two counts of sale of a controlled substance.

¶ 3. On October 8, 2001, Lyons was sentenced as an habitual offender to fifteen years in the custody of the Mississippi Department of Corrections. On December 10, 2001, Lyons filed a notice of appeal in the Circuit Court of Lincoln County. In an agreement reached after his notice of appeal, Lyons and the State agreed to a dismissal of the two counts of sale of a controlled substance, if Lyons would withdraw his appeal to the supreme court. A copy of the plea agreement is not included in the very scant record, but the conditions of the agreement are not disputed by the parties. On March 26, 2002, in compliance with the plea agreement, Lyons filed a motion to withdraw his appeal. On April 8, 2002, the supreme court issued a mandate dismissing his appeal. On March 22, 2002, the State filed a motion to nolle prosequi the two charges against Lyons of sale of a controlled substance.

¶ 4. On April 7, 2003, Lyons filed a motion for post-conviction relief in the Circuit Court of Lincoln County contending that the trial judge sentenced him as an habitual offender without conducting the required bifurcated hearing pursuant to Mississippi Code Annotated Section 99-18-81. On July 31, 2003, the circuit judge dismissed Lyons’s motion, without conducting an evidentiary hearing. The trial judge held that Lyons could not proceed in the trial court because authority to do so had not been granted by the supreme court pursuant to Mississippi Code Annotated Section 99-39-7, and after the consideration of the exhibits, and prior proceedings it plainly appeared on the face of the motion that Lyons was not entitled to any relief.

ISSUES AND ANALYSIS

¶ 5. We will combine Lyons’s first two issues and address them as follows:

I.

Whether the circuit court erred in failing to hold a bifurcated hearing prior to sentencing Lyons as an habitual offender.

¶ 6. Lyons contends that the trial court erred in sentencing him as an habitual offender, because a bifurcated hearing was not held as required by the case law and the Rules of Circuit and County Court 11.03(2)(3). Lyons asserts that the State presented documentation of two previous convictions during its motion to amend the indictment, but no • other proof was presented, and a bifurcated hearing was not conducted.

¶ 7. Rule 11.03 of the Uniform Circuit and County Court Rules mandates a separate hearing before a defendant can be adjudged an habitual offender and subjected to enhanced punishment, and states in relevant part:

2. Separate trials shall be held on the principal charge and on the charge of previous convictions. In the trial on the principal charge, the previous convictions will not be mentioned by the state or the court except as provided by the Mississippi Rules of Evidence.
3. If the defendant is convicted or enters a plea of guilty on the principal charge, a hearing before the court without a jury will then be conducted on the previous convictions.

URCCC 11.03(2X3).

¶ 8. While Lyons is correct in asserting that a bifurcated hearing was required before his sentence could be enhanced as an habitual offender, the trial judge’s order of dismissal noted that Lyons was in fact given a bifurcated hearing. The record before this Court contains no transcript of the trial or the bifurcated hearing. “As has been oft-stated, it is the duty of the appellant to see that the record of trial proceedings wherein error is claim is brought before this Court.” Smith v. State, 572 So.2d 847, 849 (Miss. 1990). In the absence of a contrary indication, this Court must accept as true that order of the trial judge, which is a part of the record before this Court, and which states unequivocally that Lyons was given a bifurcated hearing. This Court finds no merit to this issue.

¶ 9. Moreover, Lyons’s motion for post-conviction relief is procedurally barred. The dismissal of his direct appeal from the supreme court was a final judgment. Once there has been a final judgment upon direct appeal, Mississippi Code Annotated Section 99-39-7 requires that the petitioner present any subsequent motion to a quorum of justices of the supreme court for permission to file in the trial court. Miss.Code Ann. § 99-39-7 (Supp. 2003). The mandate issued in Lyons’s appeal states: “In the proceedings held in the Courtroom, Carroll Gartin Justice Building, in the City of Jackson, Mississippi, the Supreme Court of Mississippi entered a final judgment as follows: Supreme Court Case # 2002-KA-00016 Trial Court Case # 2001-115-KS Paul Lyons v. State of Mississippi” Since the dismissal of Lyons’s appeal was a final judgment, Mississippi Code Annotated Section 99-39-7 required that he file his motion for post-conviction relief in the supreme court, seeking permission to file in the trial court. Since Lyons did not follow proper court procedure, the trial court properly denied his relief, and we affirm this denial.

n.

Whether the circuit court erred in dismissing Paul Lyons’ post-conviction motion without holding an evi-dentiary hearing.

¶ 10. Lyons contends that his motion for post-conviction relief was improperly dismissed as the trial judge did not conduct an evidentiary hearing.

¶ 11. In the case sub judice, procedural bar notwithstanding, we have repeatedly stated that “an evidentiary hearing is not necessary where the allegations in a petition for post-conviction relief are specific and conclusory.” Cole v. State, 666 So.2d 767, 777 (Miss.1995). Mississippi Code Annotated Section 99-39-11(2) (Rev.2000) provides:

If it plainly appears from the face of the motion, any annexed exhibits and the prior proceedings in the case that the movant is not entitled to any relief, the judge may make an order for its dismissal and cause the prisoner to be notified.

Miss.Code Ann. § 99-39-11(2) (Rev.2000).

¶ 12. Under this statute, dismissal is appropriate where “it appears beyond a doubt that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief.” Culbert v. State, 800 So.2d 546, 550(¶ 9) (Miss.Ct.App.2001), citing Turner v. State, 590 So.2d 871, 874 (Miss.1991). In his order the trial judge held that “it plainly appears on the face of the motion and all exhibits and prior proceedings that the movant is not.entitled to any relief from this Court.”

¶ 13. Where the trial court was not the court of proper jurisdiction an evidentiary hearing was not necessary, and Lyons’s claim was properly dismissed. We find no error in the trial court’s action, and affirm the denial of Lyons motion for post-conviction relief.

¶ 14. THE JUDGMENT OF THE CIRCUIT COURT OF LINCOLN COUNTY DISMISSING PETITION FOR POST-CONVICTION RELIEF IS HEREBY AFFIRMED. ALL COSTS OF THIS APPEAL ARE TAXED TO LINCOLN COUNTY.

BRIDGES, P.J., LEE, IRVING, MYERS, CHANDLER AND GRIFFIS, JJ., CONCUR. BARNES, J., NOT PARTICIPATING.


author: CHANDLER, J., IRVING, J.,

text:
    NOBLE HOUSE, INC. and Francis J. Ransom d/b/a Ransom Construction Company, Appellants v. W & W PLUMBING & HEATING, INC., Appellee.
    No. 2002-CA-02060-COA.
    Court of Appeals of Mississippi.
    Aug. 31, 2004.

      Bruce M. Kuehnle, Natchez, Steven H. Smith, Jackson, attorneys for appellants.
    Tim David Blalock, Natchez, attorney for appellee.
    Before KING, C.J., BRIDGES, P.J., and CHANDLER, J.
   CHANDLER, J.,

for the Court.

¶ 1. This appeal arises from an October 28, 2002 order of the Adams County Circuit Court denying a motion by Noble House, Inc. and Francis J. Ransom, d/b/a Ransom Construction Company, Inc., to alter or amend a judgment entered on October 4, 2002. At issue is a so-called “agreed judgment of dismissal” devised by Noble House and Ransom, which, without notice, unilaterally precluded the subcontractor, W & W Plumbing & Heating, Inc., from sharing in funds interpled with the court pursuant to Rule 22 of the Mississippi Rules of Civil Procedure. Noble House and Ransom challenge the circuit judge’s hand-written provision in the October 28 order for W & W Plumbing, which had been named as an interpleader defendant when litigation began in 1997. Finding that the circuit judge did not abuse his discretion in refusing to grant the motion to alter or amend the judgment, we affirm the decision of the court below.

FACTS

¶ 2. On April 27, 1994, Francis J. Ransom, d/b/a Ransom Construction Company, entered into a contract with Noble House, Inc. and the Adams County Board of Supervisors for the construction of a multifamily, low-income housing project in Natchez, Mississippi, under the aegis of the Home Investment Partnership Program of the United States Department of Housing and Urban Development. Under the terms of the contract, construction of the apartments was scheduled for completion within 240 days of the contract date. However, because of various collateral legal proceedings not related to the case sub judice, work was stopped between November 1994 and August 1995. Consequently, the apartments were not ready for occupancy until November 1996.

¶ 3. As a result of the work stoppage, the original subcontractor Ransom had hired to install the plumbing, heating and air conditioning systems refused to perform. Ransom substituted W & W Plumbing & Heating as the alternative subcontractor, which bid $55,964.32 to correct work previously done and to complete the project. Invoices submitted by W & W Plumbing to Ransom indicate that the contractor paid the first draft of $30,589.05 on September 3, 1996. Two subsequent drafts of $14,287.51, due on October 1, 1996, and $10,817.76, due on December 1, 1996, were not paid.

¶ 4. During the course of construction, Noble House made periodic installment payments to Ransom. On October 16, 1996, with the apartments nearly ready for occupancy, Noble House notified Ransom in writing that its contract was terminated because of Ransom’s alleged failure to complete the limited work remaining in a timely and workman-like manner. Noble House thus withheld its final payment of $72,356 to the contractor. Ransom, in turn, did not pay W & W Plumbing the final $25,105.27 it was owed for completing the plumbing, heating and air conditioning work.

¶ 5. On February 1, 1997, Noble House filed a complaint in the Adams County Circuit Court against Ransom and W & W Plumbing. Noble House charged that Ransom had breached its contract by failing to complete the project in a timely and workman-like manner. Noble House averred that it had not made the final payment of $72,356 to Ransom because of economic losses caused by the construction delays. Noble House further stated in its complaint that Ransom owed the plumbing contractor $25,105.27. Therefore, Noble House sought to interplead a total of $72,856 and named W & W Plumbing as an interpleader defendant for purposes of the escrowed funds.

¶ 6. W & W Plumbing filed its response to the complaint on February 26, 1997. Ransom filed a response and counter-claim against Noble House on March 13, 1997, seeking recovery for additional project expenses incurred by the stop work order. Ransom further alleged that the original contract was rescinded by the stop work order and never revived, either orally or in writing.

¶ 7. W & W Plumbing filed a motion for partial summary judgment on March 27, 1997. W & W Plumbing asserted that it was undisputed that it had properly completed the work as agreed and was entitled to payment in the amount of $81,877.29, which included accrued interest. Since the pleadings filed by Noble House and Ransom agreed that W & W Plumbing was entitled to $25,105.27 due and payable from December 1, 1996, the subcontractor asked the court to declare that there was no issue of material fact and to pay the amount due from the interpled funds. Noble House responded that proof of the amount due had not been placed in evidence. Accordingly, the circuit judge found that granting relief would be premature and denied the motion on April 30, 1997.

¶ 8. Ransom amended its counterclaim against Noble House on July 8,1998, seeking payment of the money owed to W & W Plumbing, the $72,356 allegedly still owed for completing the construction, and further, compensation for business lost because of bonding problems arising from the litigation. Noble House likewise amended its complaint against Ransom, joining Cumberland Surety & Performance Co., Inc., which had provided Ransom’s performance bond.

¶ 9. On June 1, 2000, W & W Plumbing filed an amended response to the initial complaint. Contrary to all parties’ earlier position that the plumbing company was a subcontractor, W & W Plumbing asserted that because time had been of the essence in completing the project, it had acted as an independent contractor for both Ransom and Noble House. W & W Plumbing alleged that it had reported directly to Noble House, which had supervised the work and guaranteed payment. Because of the disputes and delays encountered during the course of construction, W & W Plumbing further claimed that it had refused to enter into a contract and all work had been done on an hourly basis. Noble House denied the allegations made in the amended response, subsequently filing a motion for partial summary judgment in August 17, 2000, seeking dismissal of any claims W & W Plumbing might have against it or the interpled funds.

¶ 10. Ransom then filed its motion for summary judgment on October 4, 2000. Ransom, for the first time, asserted that the work performed by W & W Plumbing had been done pursuant to an open account arrangement. Ransom therefore argued that any claim W & W Plumbing might have against it was time-barred by the three-year statute of limitations on open accounts prescribed by Mississippi Code Annotated Section 15-1-29 (Rev. 2003).

¶ 11. Noble House’s motion for summary judgment was denied on October 23, 2000. The circuit judge found that no independent claim by W & W Plumbing existed against Noble House which would be a proper subject for summary judgment. The judge expressly refused to rule on the validity or invalidity of any claims against the interpled funds, stating that the issue should be bifurcated and held in abeyance until the claims between Ransom and Noble House were resolved. In his November 2, 2000 order, the circuit judge reiterated that W & W Plumbing had basis for a claim against Noble House, and had not asserted any counterclaims against the owner or cross-claims against Ransom and remained only an interpleader defendant, with claims solely to the interpled funds.

¶ 12. In its amended response, W & W Plumbing noted that Noble House had failed to deposit the full $72,356 it sought to interplead in the original complaint. Ransom subsequently filed a motion to require Noble House to deposit the remaining $51,167.32 in the escrow account, which was denied by the circuit judge on January 31, 2002. Thus, the full amount was never deposited with the court.

¶ 13. Partial summary judgment for W & W Plumbing was granted on August 13, 2002. The circuit judge found that the work done by W & W Plumbing was specifically requested by both Noble House and Ransom and that it was completed according to the specifications of both parties. The amount claimed by W & W Plumbing, the judge determined, was undisputed. The circuit judge further ruled that while W & W Plumbing could bring no claims against Noble House, it was entitled to payment from the funds inter-pled with the court.

¶ 14. On October 3, 2002, Noble House and Ransom advised the circuit judge that they had reached a settlement whereby the parties would dismiss all claims against each other. The order presented to the court directed the circuit clerk to divide the interpled funds evenly between Noble House and Ransom. The circuit court entered the agreed judgment of dismissal on October 4, 2002, after amending it to provide for payment of funds to Noble House and Ransom “[ajfter first paying the sum of $25,105.27 to W & W Plumbing and Heating, Inc.”

¶ 15. Noble House and Ransom filed their motion to alter or amend the agreed judgment on October 24, 2002. They reasserted their claim that W & W Plumbing was not entitled to the funds originally interpled on its behalf. Moreover, they argued that the circuit judge’s orders exceeded his authority and contravened their intentions.

¶ 16. A hearing was held to show cause why the funds should not be paid out as ordered by the court. As a result of those proceedings, the circuit judge entered an order on October 28, 2002, finding that the October 4, 2002 agreed judgment of dismissal should stand, as amended by the judge, and denying the motion to alter or amend. In the order, the circuit judge further found that W & W Plumbing had been made a party defendant in an inter-pleader action initiated by Noble House, recognized by the court as an interpleader defendant and found to have a claim solely to the interpled funds. He emphasized that the agreed judgment of dismissal made no mention of W & W Plumbing as an interpleader defendant and that the attorney for W & W Plumbing neither had agreed to the disposition of funds set forth in the judgment of dismissal nor been informed that it would be presented to the court. The interpleader funds were ordered to remain on deposit with the circuit clerk pending this appeal.

LAW AND ANALYSIS

I. WHETHER THE CIRCUIT COURT ABUSED ITS DISCRETION IN ENTERING ORDERS GRANTING PARTIAL SUMMARY JUDGMENT TO W & W PLUMBING, AMENDING AND ENTERING THE AGREED ORDER OF DISMISSAL AND DENYING THE RULE 60 MOTION FILED BY NOBLE HOUSE AND RANSOM

A. The Order Granting Partial Summary Judgment

¶ 17. The circuit court entered an order on August 13, 2002, granting partial summary judgment for W & W Plumbing. As part of their first assignment of error, Noble House and Ransom mention in passing that the circuit judge erred in granting partial summary judgment for W & W Plumbing. However, as discussed below, the circuit court correctly found that although W & W Plumbing was not entitled to bring a claim directly against Noble House, the property owner and stakeholder in this interpleader action, it was entitled to payment from the funds interpled with the court.

B. The Agreed Order of Dismissal and Rule 60(b)(6) Motion

¶ 18. On October 3, 2002, the circuit judge entered an agreed judgment of dismissal, presented to the court by Noble House and Ransom. Noble House and Ransom advised the judge that they had reached a settlement in the case, sought the dismissal of all claims and counterclaims with prejudice, and would split the interpled funds evenly between them. W & W Plumbing was neither advised by the other parties of the agreement between them nor that it had been unilaterally cut off from the funds which had been inter-pled, ostensibly on its behalf, nearly six years earlier. The circuit judge, therefore, modified the final paragraph of the order, which originally provided that the inter-pled funds and all interest which had accrued thereon, be divided evenly between Noble House and Ransom, by inserting a handwritten provision that such division take place only “after first paying the sum of $25,105.27 to W & W Plumbing and Heating, Inc.”

¶ 19. Noble House and Ransom filed a motion to alter or amend the agreed judgment of dismissal on October 24, 2002, contending that the circuit judge abused his discretion in amending the judgment because W & W Plumbing was not entitled to the interpled funds. They asserted that because the subcontractor had failed to make a valid claim to the funds by filing a counterclaim against Noble House or a cross-claim against Ransom or by timely filing a stop notice pursuant to Mississippi Code Annotated section 85-7-181 (Rev. 1999) and had no contractual relationship with Noble House, it was precluded from recovery. Accordingly, Noble House and Ransom argued that the circuit judge’s modification of their agreed order completely abrogated the terms and conditions to which the two parties had agreed.

¶ 20. At the show cause hearing, the circuit judge explained:

Essentially what the Court is ruling is that once the funds were interpled into court, Noble House and Ransom had every right to settle all their claims, but they had no right to unilaterally provide for the disposition of the interpled funds, particularly given the rulings previously made by the Court and W.W.’s clear status as an interpled defendant to these funds.

The circuit judge further reminded the parties that “Noble House and Ransom had every right to settle their claims and competing interests between themselves, but you cannot be an Indian giver with interpled funds.”

¶ 21. Although the motion was filed by Noble House and Ransom pursuant to Rules 59 and 60 of the Mississippi Rules of Civil Procedure, it must be treated as a Rule 60(b)(6) motion because it was not filed within ten days of the final judgment as required by Rule 59. Fultz v. Doss, 507 So.2d 891, 893 (Miss.1987). The Mississippi Supreme Court has stated that “[r]elief under Rule 60(b)(6) is reserved for extraordinary and compelling circumstances,” and further, that the Rule is a “grand reservoir of equitable power to do justice in a particular case.” M.A.S. v. Mississippi Dept. of Human Services, 842 So.2d 527, 530 (¶ 12) (Miss.2003), quoting Briney v. United States Fid. & Guar. Co., 714 So.2d 962, 966 (Miss.1998). In the case sub judice, the circuit judge, as he explained at the show cause hearing, acted to correct an extraordinary situation.

¶22. “Rule 60(b) is not an escape hatch for litigants who had procedural opportunities afforded under other rules and who without cause failed to pursue those procedural remedies.” City of Jackson v. Jackson Oaks Ltd. P’ship, 792 So.2d 983, 986 (Miss.2001). The case was initiated by Noble House, albeit represented by different counsel and overseen by a different judge, as an interpleader action pursuant to Rule 22 of the Mississippi Rules of Civil Procedure. Throughout six years of litigation, W & W Plumbing remained as a defendant solely for purposes of the interpleader funds, the total amount of which was never paid into the court by Noble House. Neither the contract issues between Noble House and Ransom nor the interpleader action were ever pursued to the extent of resolution. Both Noble House and Ransom failed to pursue the procedural remedies initiated by Noble House to resolve the differences between them. “Further, Rule 60(b) motions should be denied where they are merely an attempt to relitigate the case.” String-fellow v. Stringfellow, 451 So.2d 219, 221 (Miss.1984). Given the peculiar twists and turns this case took over six years, the agreement between Noble House and Ransom, without notice to W & W Plumbing, together with the Rule 60(b)(6) motion challenging the circuit judge’s amendment of the “agreed judgment of dismissal,” may well be construed as an attempt to relitigate the case.

¶ 23. A trial judge’s denial of a motion seeking relief under Rule 60(b)(6) is subject to review under an abuse of discretion standard. Telephone Man, Inc. v. Hinds County, 791 So.2d 208, 210 (Miss.2001); Moore v. Jacobs, 752 So.2d 1013, 1015 (Miss.1999). Among the factors a trial judge must consider when ruling on a 60(b)(6) motion are whether the movants have had a fair chance to state their claims, whether it would be inequitable to grant the relief sought as well as any other factors which are “relevant to the justice of the judgment under attack.” Briney v. United States Fidelity & Guaranty Co., 714 So.2d 962, 968 (Miss.1998). Given the particular circumstances of this case, the circuit judge did not abuse his discretion in amending the agreed order to provide the relief originally intended for W & W Plumbing or in denying the Rule 60(b)(6) motion.

¶ 24. Noble House and Ransom argue, however, that W & W Plumbing is not entitled to the interpled funds because the subcontractor did not proactively assert a claim to the funds. They contend that it first was necessary for W & W Plumbing either to file a stop notice pursuant to Mississippi Code Annotated section 85-7-181 (Rev.1999) or a construction lien or enforcement of a construction lien as authorized by Mississippi Code Annotated sections 85-7-131 (Rev.1999) and 85-7-141 (Rev.1999), or further, to seek recovery against Ransom, the contractor, before it could claim a share in funds deposited with the court through the Rule 22 interpleader action. However, following the statutory notice filing procedures is required only when a subcontractor seeks to pursue a statutory remedy against a property owner; it is not a pre-requisite to eligibility for funds interpled pursuant to a Rule 22 action.

1. Rule 22 Interpleader

¶ 25. Rule 22(a) of the Mississippi Rules of Civil Procedure provides for an interpleader action as follows:

Persons having claims against the plaintiff may be joined as defendants and required to interplead when their claims are such that the plaintiff is or may be exposed to double or multiple liability. It is not ground for objection to the joinder that the claims of the several claimants or the titles on which their claims depend do not have a common origin or are not identical but are adverse to and independent of one another, or that the plaintiff avers that he is not liable in whole or in part to any or all of the claimants. A defendant exposed to similar liability may obtain such inter-pleader by way of cross-claim or counterclaim. The provisions of this rule supplement and do not in any way limit the joinder of parties permitted in Rule 20.

The action may be used “to protect the claimants by bringing them together in one action and reaching an equitable division of a limited fund.” M.R.C.P. 22 cmt.

¶ 26. As we explained in Chic Creations of Bonita Lakes Mall v. Doleac Electric Co., 791 So.2d 254, 257 (¶ 10) (Miss.Ct.App.2000), “[t]he Rule 22 interpleader action provides only the procedural vehicle to assert claims to the specific funds. The rule by itself cannot be the basis for a pro-rata distribution. In order for the subcontractors to assert a valid claim to this fund they must do more than show that they are owed money by the contractor. They must demonstrate how they are entitled to a portion of this particular fund.... ” W & W Plumbing was brought into this litigation by Noble. House, which specifically interpled into court funds admittedly owed to the subcontractor, while Noble House, the owner, and Ransom, the contractor, attempted to settle the contract issues that had arisen between them. Noble House’s “filing of this interpleader action sufficiently demonstrated that it was willing to pay whomever the trial court determined had a valid claim to the interpled funds.” Amer-ihost Dev., Inc. v. Bromanco, Inc., 786 So.2d 362, 367 (¶24) (Miss.2001). We note, moreover, that Noble House actually deposited with the court only that amount agreed by the parties to be due W & W Plumbing; it was never required to inter-plead the entire sum specified in the original pleadings.

¶ 27. The comment to Rule 22 acknowledges that generally, “claimants will have asserted their claims to the interpleader fund in their answer to the stakeholder’s complaint. If an order of interpleader is entered, each claimant must then traverse the claims of the other claimants, thus joining the issue. Alternatively, if the issues are already clearly defined in the claimants’ initial pleadings, further pleadings may be unnecessary.” M.R.C.P. 22 cmt. (emphasis added). The complaint of Noble House, the stakeholder, together with the original responses to the complaint filed by the claimants, Ransom and W & W Plumbing, clearly articulated the issues. From the pleadings, it is evident that both Noble House and Random knew and acknowledged that W & W Plumbing had not been paid for the work it had completed on the Noble House project, and that the subcontractor was owed $25,105.27. Invoices to Ransom from W & W Plumbing provide further evidence of the unpaid balance. Because the amount owed to W & W Plumbing did not exceed the funds interpled, W & W would have no further claim against Noble House. Hum ble Oil & Refining Co. v. Rankin, 207 Miss. 402, 411, 42 So.2d 414, 416 (1949).

¶ 28. W & W Plumbing did, however, promptly file a motion for summary judgment, in essence, seeking a declaration of its interest in the interpleader funds. The Comment to Rule 22 provides that “[s]um-mary judgment may be granted in favor of any one of the claimants against any other, even before the former serves an answer to the latter’s pleading, a procedure generally appropriate under Rule 56(b).” M.R.C.P. 22 cmt. Since the initial pleadings clearly defined the issues, further pleadings were unnecessary. Thus, entitlement to funds placed in escrow pursuant to a Rule 22 interpleader action may be determined on the basis of the pleadings or any other outside evidence introduced. It need not be predicated upon satisfaction of statutory notice procedures.

2. The § 85-7-181 “Stop Notice” Action

¶29. Noble House and Ransom assert, however, that W & W Plumbing is not entitled to share in the interpleader funds because’ it did not timely file a “stop notice” with Noble House pursuant to Mississippi Code Annotated section 85-7-181 (Rev.1999). “Only those with a direct contractual relation with the owner’s contractor can file an effective stop notice, and then only to require the retention of funds owed by the owner to the contractor.” Chic Creations, 791 So.2d at 258 (¶ 14). In the initial pleadings and throughout the first three years of these proceedings, the parties and the court recognized W & W Plumbing as a subcontractor. As a subcontractor, W.W. Plumbing was eligible to seek the protection offered by the statute.

¶ 30. Filing a “stop notice” with the owner is a pre-requisite to • pursuing the subcontractor’s statutory remedy outlined in § 85-7-181-. Once a subcontractor who has not received payment for his work by a contractor provides the property owner with written notice, he is entitled to payment from the owner up to the amount the owner is indebted to the general contractor as of the date the notice is served. Miss.Code Ann. § 85-7-181 (Rev.1999). Having failed to file a stop notice with Noble House after the drafts still owing were not paid by Ransom, W & W Plumbing stands only as a general creditor of Ransom, the contractor, with no right of recovery directly against Noble House, the owner. Corrugated Indus., Inc. v. Chattanooga Glass Co., 317 So.2d 43, 47 (Miss.1975). Indeed, the circuit judge correctly found that W & W Plumbing’s only relief lay with the funds ostensibly interpled on its behalf, and not in any action against either Noble House or Ransom.

3. The §§ 85-7-131 and 85-7-1U Mechanic’s Lien

¶ 31. In its amended response filed in June, 2000, W & W Plumbing asserted for the first time that it had worked as an independent contractor for both Noble House and Ransom, operating directly under the supervision of Noble House. Noble House denied this assertion. Indeed, in his order granting summary judgment for W & W Plumbing, the circuit judge found that W & W Plumbing had worked for both Noble House and Ransom, but did not label the plumber either as a subcontractor or a general contractor. Noble House and Ransom, nevertheless, suggest that W & W Plumbing should have asserted its claim by filing a mechanic’s lien pursuant to § 85-7-131 and by pursuing an action thereunder pursuant to § 85-7-141. Contractors are entitled to a lien against the property if they are not paid for their services and materials. Chic Creations, 791. So.2d at 259 (¶ 20). Section 85-7-131 allows only “architects, engineers, surveyors, laborers, and materialmen and/or contractors” to secure a lien against the owner’s property for services rendered and improvements constructed. Cummings v. Davis, 751 So.2d 1055, 1058(¶ 14) (Miss.Ct.App.1999). The remedy does not extend to subcontractors, who, according to the statutory scheme, must pursue a separate remedy under § 85-7-181. Chic Creations, 791 So.2d at 259 (¶ 20). At the time a lien could have been filed and throughout most of these proceedings, W & W Plumbing held itself out as a subcontractor and thus, was not entitled to the remedy provided to contractors pursuant to §§ 85-7-131 and 85-7-141.

¶ 32. Assuming arguendo that W & W may be characterized as something other than a subcontractor and could have afforded itself protection with a mechanic’s lien, we note that there is no evidence in the record that Ransom, the contractor, filed a lien against Noble House pursuant to § 85-7-131 for the $72,356 allegedly it was due. upon completion of the project. If we were to extend the logic of Noble House’s and Ransom’s argument against W & W Plumbing’s entitlement to the interpleader funds to Ransom, we would have to find that Ransom, too, was just a creditor of Noble House without the priority of a lienholder and thus, on an equal footing with W & W Plumbing. Moreover, it appears from- the record that the only liens filed throughout the course of litigation wete those filed by Noble House’s former attorneys against any proceeds the project owner might recover.

II. WHETHER ANY AND ALL CLAIMS BY W & W PLUMBING AGAINST RANSOM AND NOBLE ' HOUSE WERE TIME-BARRED

¶ 33. Noble House and Ransom further contend that any cause of action against them or claim to the interpled funds is time-barred. They suggest that because the statutes of limitations have run on the remedies W & W Plumbing might have pursued, it is not entitled to share in the interpleader funds. The passage of time is not fatal to W & W Plumbing’s entitlement to the interpled funds. Pursuing statutory remedies is not a prerequisite to a Rule 22 interpleader action. Indeed, W & W Plumbing is in the same position as Ransom, which from the record, similarly does not appear to have timely availed itself of any statutory remedies. Moreover, since the inception of this litigation, Noble House has maintained, and the decisions of the circuit judges have consistently stated, that W & W Plumbing has no claim against Noble House, itself. Noble House cannot now argue that any action against it is time-barred. There is no merit to the assignment of error.

CONCLUSION

¶ 34. An interpleader action, the Comment to Rule 22 suggests, “can be employed to reach an early and effective determination of a disputed question with a consequent saving of trouble and expense for the parties.” Despite the circuit judge’s efforts “to reach an early and effective determination of a disputed question,” trouble and expense for the parties mounted during the six years of litigation, culminating with the circuit court’s challenging the propriety of the parties’ attorneys’ actions in unilaterally denying W & W Plumbing’s entitlement to the funds interpled to the court on its behalf. The circuit judge correctly found that W & W Plumbing was entitled to recover only against the interpleader funds and not against Noble House and Ransom. Entitlement to those funds was a finding for the court to make, not the parties. Thus, the circuit judge did not abuse his discretion in granting partial summary judgment for W & W Plumbing, amending the agreed judgment of dismissal to protect the rights of the parties which were already adjudicated and denying the motion to alter or amend the judgment. Accordingly, we affirm the judgment of the circuit court.

¶ 35. THE JUDGMENT OF THE CIRCUIT COURT OF ADAMS COUNTY IS AFFIRMED. ALL COSTS OF THIS APPEAL ARE ASSESSED TO THE APPELLANTS.

KING, C.J., BRIDGES, P.J., LEE, MYERS, GRIFFIS AND BARNES, JJ., CONCUR. IRVING DISSENTS WITH SEPARATE WRITTEN OPINION.

IRVING, J.,

Dissenting.

¶ 36. The majority affirms the judgment of the trial court granting partial summary judgment to W & W Plumbing and Heating, Inc. and awarding W & W the sum of $25,105.27 from funds interpled into court by Noble House, Inc. I am of the opinion that the majority has overlooked some glaring errors committed by the trial court and as a result has arrived at an erroneous decision. Consequently, I dissent. I would reverse and render the judgment in favor of W & W.

¶ 37. This matter began with Noble House filing an interpleader action. Francis J. Ransom d/b/a Ransom Construction Company, and W & W Plumbing and Heating, Inc. were made defendants. In its complaint, Noble alleged (1) that it entered into a contract with Ransom for construction of a low-income multi-unit dwelling at a cost of $407,689 under the Home Investment Partnership Program in conjunction with the Adams County Board of Supervisors, (2) that as a condition of the subject construction contract, Ransom obtained a performance and surety bond from Cumberland Surety Insurance Company, Inc., (3) that Ransom had materially breached the contract resulting in considerable damage to Noble, (4) that W & W served as Ransom’s plumbing subcontractor on the project and that Ransom owed W & W a balance of approximately $25,105.27 for plumbing work performed on the project, (5) and that a final payment in the amount of $72,356 was to be made upon completion of the project but because of the damages and economic loss caused by Ransom’s breach, Noble had withheld payment of the final installment. In the prayer of its complaint, Noble asked that a judgment be entered “in its favor against Ransom in an amount to be determined at trial, equal to its economic loss and damages resulting from Ransom’s breach of the subject construction contract.” Noble further requested that the court “enter an order directing the Chancery Clerk of Adams County, as the present custodian of the final payment, to pay such funds into the registry of [the] court to be held in an interest bearing account during the pen-dency of [the] litigation.”

¶ 38. Noble never alleged that W & W was entitled to any of the interpled funds, just that Ransom owed money to W & W.

¶ 39. W & W answered Noble’s complaint and admitted that it was Noble’s subcontractor on the project and that Noble owed it $25,105.27 for work performed. W & W asked to be paid out of the monies withheld and that it be dismissed from the action, leaving the remaining parties to litigate their differences. It is significant that while W & W stated that it was owed the money as alleged in Noble’s complaint, it did not make any claim against either Noble or Ransom. It simply alleged that it had performed all the work in a workmanlike manner required of it under its subcontract.

¶ 40. Ransom answered Noble’s complaint and admitted that W & W was a subcontractor on the project. Ransom did not specifically deny that he owed W & W $25,105.27 as alleged in paragraph eleven of Noble’s complaint. However, he did deny generally that he owed W & W for plumbing work as alleged in paragraph eighteen of Noble’s complaint. Finally, Ransom alleged that he was entitled to the entire $72,356, and in his counterclaim, which was also filed with his answer, Ransom demanded an additional $31,877.29 from Noble which he alleged was due him as a result of Noble’s breach of the contract.

¶41. In W & W’s motion for partial summary judgment, it alleged:

All parties hereto, both in the complaint of Noble House, Inc. and the separate answer of Francis J. Ransom d/b/a Ransom Construction Company, set forth and allege that this defendant, W & W Plumbing & Heating, Inc., has completed the terms of his [sic] contract, the basis of the monies interpled into this court pursuant to M.R.C.P. 22. Further, both parties by the same pleadings, specifically set forth and agree that this defendant is entitled to the sum of $25,105.27, being due and payable from December 1, 1996. That no other set of facts involve this defendant as a party to this action .... [t]hat there is no genuine issue of material fact on the issue of paying this defendant the sum of $25,105.27, plus accrued interest and dismissing it as a party to this action, as a matter of law.

¶ 42. On April 15, 1997, Noble responded to W & W’s motion for partial summary judgment in pertinent part as follows:

[T]here exist genuine issues of material fact which preclude summary judgment in W & W’s favor. Specifically, and contrary to W & W’s assertions, the sum total allegedly owed to W & W is not undisputed. Although NHI [Noble House, Inc.] has set forth in its pleadings that certain monies are due W & W for work done on the subject housing project, the figure relied upon was furnished to NHI by W & W and its attorney, without prove [sic] or substantiation of the same. Hence, NHI has alleged that “approximately” $25,105.27 is due W & W. This figure is subject to proof by W & W, as well as proof by NHI and Ransom, as to the accuracy of the same and whether any reductions or setoffs apply.

¶ 43. On April 22, 2000, Noble, with new attorneys, filed another response to W & W’s motion for partial summary judgment. In that response, Noble again admitted that Ransom owed money to W & W for plumbing work done on the project but denied that W & W was entitled to any of the interpled fund. Noble specifically alleged that W & W had “no legal or factual basis that would entitle it to even assert, much less prevail, on its assertion that it is somehow entitle [sic] to receive any amount or portion of the funds previously interpled or any other sum or amount paid or unpaid.”

¶44. On November 2, 2000, the trial court entered an order in which it ordered and adjudged (1) that W & W had no claim against Noble and had not asserted any counterclaim against Noble other than to the interpled funds, (2) that W & W had not asserted any cross-claim against Ransom Construction Company other than to the interpled funds, and (3) that W & W would be allowed to remain as a nonparticipating interpleader defendant throughout the duration and conclusion of the action, with a claim to the interpled funds, “for the reasons stated in the record.” Presumably, those reasons were that W & W had been made a party defendant by Noble and that Noble had alleged that W & W was owed money by Ransom as a result of work that W & W had performed for Ransom on the project. In an earlier order, the trial court had ordered that the issue of the interpled monies should be bifurcated and held in abeyance until the primary issue between Noble and Ransom had been adjudicated.

¶ 45. On August 13, 2002, the trial court granted partial summary judgment to W & W, finding that “upon the evidence heard in open court,” there was no genuine issue of fact that W & W was due the monies contracted for as the subcontract was properly completed. More specifically, the trial court found:

(1) that the work done by W & W was specifically requested by both parties, Francis J. Ransom d/b/a Ransom Construction Company and Noble House, Inc., and that all services sought were done and completed according to the specifications of both parties and the amount claimed, i.e., $25,105.27 is undisputed, (2) that [W & W was] not entitled to a claim against Noble House, Inc., [but that it was] entitled to payment from the sum interpled with the Court for which this issue was joined and for which it was made a party.

Additionally, the trial court found that W & W was entitled to payment of $25,105.27 from the interpled funds.

¶ 46. Sometime after the trial court granted summary judgment to W & W, Noble and Ransom presented an agreed judgment of dismissal to the trial court in which they agreed that the case should be dismissed with the interpled funds divided equally between them and disbursed accordingly. The trial judge, sua sponte, modified the agreed judgment to reflect that W & W be paid $25,105.27 and the remainder of the interpled funds be disbursed equally between Noble and Ransom. The agreed judgment as modified sua sponte by the trial court was executed on October 3, 2002, and entered on October 4.

¶ 47. At some point after October 4, Noble and Ransom filed a letter with the clerk of the court advising that they would be appealing the court’s October 3 order and requesting that the funds not be disbursed. The court was apprised of the letter and as a result, entered an order on October 17 in which the court stated that it would hold a hearing on October 28 to allow the remaining parties to show cause why the interpled funds should not be disbursed in accordance with the court’s order of October 3.

¶ 48. On October 24, Noble and Ransom, apparently in response to the court’s October 17 order, filed a joint motion seeking relief from the court’s October 3 order. They alleged that neither NHI nor Ransom agreed to the terms and conditions which the court placed on the agreed judgment of dismissal previously provided to the court and that the court was without factual or legal authority to modify the agreed judgment of dismissal submitted by them. They further argued that the court’s modification of the agreed judgment completely abrogated the terms and conditions of the agreed judgment and that as a result there was no longer an agreement between the parties. Additionally, Noble and Ransom alleged that “at no time since W & W Plumbing purportedly performed work on the construction project for Ransom, has it filed any sort of stop notice, statutory stop notice, claim, lawsuit or other type of action against Noble House, Inc.” They further argued that W & W had no contractual relationship with Noble which would cause it to be entitled to any of the funds.

¶ 49. On October 28, the trial court entered an order in which it found that the “court’s order for disposition of the inter-pleaded funds should stand” and that the October 28 order “shall constitute the final order or judgment in this case, and that any applicable time periods for appeal shall commence to run upon the filing” of the October 28 order.

¶ 50. Neither the trial court nor the majority offers any basis for finding that W & W was entitled to be paid out of the interpled funds other than the fact that W & W was made an interpleader defendant and had performed work on the project. It appears to me that both the trial court and the majority have confused W & W’s right to be paid, with its right to be paid from the interpled funds. No right accrued to W & W to be paid from the interpled funds simply because it had done work on the project and had not been paid for it. Indeed, it seems the majority recognized as much when it quoted from our decision in Chic Creations of Bonita Lakes Mall v. Doleac Electric Co., 791 So.2d 254, 257(¶10) (Miss.Ct.App.2000), “[t]he Rule 22 interpleader action provides only the procedural vehicle to assert claims to the specific funds. The rule by itself cannot be the basis for a pro-rata distribution. In order for the subcontractors to assert a valid claim to this fund they must do more than show that they are owed money by the contractor. They must demonstrate how they are entitled to a portion of this particular fund.... ”

¶ 51. Having recognized the appropriate law, the majority then proceeds to ignore it. Therefore, I find no need to further address the rationale offered by the majority for its erroneous decision, for the opinion, in my humble judgment, misses the point.

¶ 52. Without a doubt, W & W had a remedy, but the question is whether its remedy was to be paid out of the interpled funds even if it had not followed the proper procedure to allow it to reach those funds. On the facts before us, that answer is a resounding no. In the balance of this opinion, I will attempt to explain why I believe the judgment of the trial court and the decision of the majority are misguided.

¶ 53. Ransom posted a performance bond in connection with his contract with Noble. Noble and the Board of Supervisors of Adams County were the obligees under the performance bond.

¶ 54. Mississippi Code Annotated section 85-7-185 (1972) provides:

When any contractor or subcontractor entering into a formal contract with any person, firm or corporation, for the construction of any building or work or the doing of any repairs, shall enter into a bond with such person, firm or corporation guaranteeing the faithful performance of such contract and containing such provisions and penalties as the parties thereto may insert therein, such bond shall also be subject to the additional obligations that such contractor or subcontractor, shall promptly make payments to all persons furnishing labor or material under said contract; and in the event such bond does not contain any such provisions for the payment of the claims of persons furnishing labor or material under said contract, such bond shall nevertheless inure to the benefit of such person furnishing labor or material under said contract, the same as if such stipulation had been incorporated in said bond, and any such person who has fu/mished labor or materials used therein; for which payment has not been made, shall have the right to intervene and be made a party to any action instituted on such bond, and to have his rights adjudicated in such action and judgment rendered thereon, subject, however, to the priority of the rights or claim for damages or otherwise, of the obligee....

(emphasis added).

¶ 55. Once the bond was posted, all funds due Ransom under the construction contract were released from liens or attachments of laborers and materialmen. Dickson v. United States Fidelity & Guaranty Co., 150 Miss. 864, 878, 117 So. 245, 246 (1928).

¶ 56. As stated, this case started with Noble filing an interpleader action in which it named W & W as a defendant. Initially, Cumberland, the surety of Ransom’s performance bond, was not a party to the litigation. Prior to Cumberland being made a party defendant, W & W had no legal basis whatsoever to any portion of the interpled funds. Its sole recourse at that time would have been to institute an action against Ransom and Cumberland, forcing Cumberland to make good on its obligation as surety in compliance with the requirements of section 85-7-185.

¶ 57. When Noble brought Cumberland into the case, W & W had the right under section 85-7-185 to intervene and have its rights adjudicated. Miss.Code Ann. § 85-7-185 (1972). Since W & W was already in the case when Cumberland was made a party defendant, there was no need for a motion to intervene on the part of W & W. However, W & W was required to initiate at that time a cross-claim against Ransom and Cumberland in order to have its rights adjudicated as permitted by the statute. W & W never did so. I have throughly searched the record and find that W & W never filed any sort of claim against Ransom or Cumberland. The record does reveal that W & W was given an opportunity by the trial judge to do so, but W & W declined, choosing instead to file only an amended response to Noble’s complaint.

¶ 58. Since W & W failed to follow the statute which provided the remedy for it to have its rights adjudicated, I find that the trial court erred in adjudicating W & W rights to the interpled funds. But, even if W & W’s response and amended response could be considered an assertion of a cross-claim against Ransom and Cumberland, and they certainly cannot, the trial court still committed reversible error in ordering that W & W’s claim for $25,105.27 enjoyed priority status over Noble’s claim. Again, section 85-7-185 makes it clear that W & W could not have priority over the obligee, for the rights of any materialmen or laborer, who intervenes in a suit brought against the surety on the bond of a contractor, are subject to the priority of the rights or claim for damages or otherwise, of the obligee. Miss. Code Ann. § 85-7-185 (1972).

¶ 59. I also find that the trial court erred in modifying the agreed judgment submitted to it by Noble and Ransom. For sure, the trial court was not obligated to sign the order as presented, but since it was an agreed judgment containing the terms and conditions upon which the parties were basing the resolution of their dispute, the court’s only alternative would have been to submit the court-modified agreed judgment to the parties for their acceptance or rejection. If rejected, the court’s only option would have been to set the matter down for hearing and resolution on the merits, requiring Noble to go forward and present its case.

¶ 60. For the reasons presented, I would reverse and render rather than reverse and remand because W & W was given a fair opportunity to have its claim to the interpled funds properly adjudicated in accordance with the provisions of section 85-7-185. It failed to present its claim. It now must bear the consequences of its decision.

      . By letter dated September 23, 1996, Ransom represented to Noble House that all debts related to the construction had been paid and no claims had been asserted against the contractor. The debt owed to W & W Plumbing arose after this time.

      . It is not clear from the record what role, if any, Cumberland Surety & Performance Co., Inc. played in the settlement between Ransom and Noble House and in the agreed dismissal.

      . Interpleader is an , equitable action. "[W]hen equity takes jurisdiction of a matter for one purpose it will administer complete relief as to every portion or feature of the controversy.and, so far as practicable, quiet the whole of the issues.” Humble Oil, 207 Miss, at 412, 42 So.2d at 417, quoting Griffith's Mississippi Chancery Practice § 101.

      . Later, Noble amended its complaint to make Cumberland a defendant. In its amended complaint, Noble alleged that Ransom and Cumberland were jointly liable to it as a result of Cumberland’s being the surety on Noble’s performance bond.


author: BRIDGES, P.J.,

text:
    Steven R. FARRIS, Appellant, v. STATE of Mississippi, Appellee.
    No. 2003-CP-01025-COA.
    Court of Appeals of Mississippi.
    Aug. 31, 2004.

      Steven R. Farris (pro se), Edmund J. Phillips, Robert N. Brooks, Carthage, attorneys for appellant.
    Office of the Attorney General by Jean Smith Vaughan, attorney for appellee.
   BRIDGES, P.J.,

for the Court.

¶ 1. Steven R. Farris pled guilty to the capital murder of Casey R. Harmon, a police officer who was killed in the line of duty as a deputy sheriff of Lee County. Farris’s second petition for post-conviction relief was denied as untimely filed and found not to be within any of the exceptions to the time bar of the post-conviction collateral relief statute. See Miss.Code Ann. § 99-39-5(2) (Supp.2003). From that denial, Harmon has filed this appeal.

¶2. On appeal Farris argues that the court erred in dismissing his motion for post-conviction relief as untimely, that his guilty plea was not knowingly, voluntarily, or intelligently made, that his guilty plea was the result of coercion, that he lacked knowledge and understanding of the trial process, and that his attorney provided ineffective assistance of counsel.

¶ 3. We find that the court correctly denied post-conviction relief and affirm that decision.

FACTS

¶ 4. On August 7, 1998, Farris entered a plea of guilty to capital murder and was sentenced to life without parole. Farris also pled guilty to robbery and burglary of a dwelling and 'was given additional sentences for these crimes.

¶ 5. On December 1, 1999, Farris filed a motion to withdraw the plea of guilty, arguing that he should be given an evidentia-ry hearing and that his plea was in violation of the state and federal constitutions. The motion was dismissed by the court, which found that Farris failed to meet the pleading requirements of Mississippi Code Annotated § 99-39-9 by failing to include a concise statement of the grounds upon which the claim was based and failing to pay costs.

¶ 6. On June 28, 2002, Farris filed the present motion for post-conviction relief. The court found that the motion was untimely and should be dismissed.

DISCUSSION

¶ 7. The court correctly found that the motion is time barred as it does not fall within the statutory three year time limitation. Mississippi Code Annotated § 99-39-5(2) states, in part: “[a] motion for relief under this-article shall be made within three (3) years after the time in which the prisoner’s direct appeal is ruled upon by the Supreme Court of Mississippi or [ ... ] in case of a guilty plea, within three (3) years after entry of the judgment of conviction.” See Duncan v. State, 850 So.2d 152 (¶ 4)(Miss.Ct.App.2003). Although the statute lists several exceptions to this three year statute of limitations, Farris does not come within any of these exceptions. His argument that his previous filing of a motion for post-conviction relief tolled the time requirements is not supported by the statute or case law.

¶ 8. Although we find that there was an absolute time bar, we also look to the other issues raised by Farris.

¶ 9. Farris argues that his guilty plea should be set aside because of his fear of the death penalty. His contention is that this fear led him to plead guilty. Based on Farris’s declarations in open coúrt, the court found that the guilty plea was voluntarily and intelligently made. In Brady v. U.S., 397 U.S. 742, 755, 90 S.Ct. 1463, 25 L.Ed.2d 747 (1970), cited by the State, the United States Supreme Court adopted the following standard for determining whether a guilty plea is voluntary:

A plea of guilty entered by one fully ¿ware of the direct consequences, including the actual value of any commitments made to him by the court, must stand unless induced by threats (or promises to discontinue improper harassment), misrepresentation (including unfulfilled or unfulfillable promises), or perhaps by promises that are by their nature improper as having no proper relationship to the prosecutor’s business (e.g. bribes).

¶ 10. The record and Farris’s arguments do not show that any. of these defects were present in this case. Farris does not present a claim that shows a denial of any state or federal right. A valid, fact-based fear of the death penalty is a legitimate consideration in deciding whether or not to seek or accept a plea bargain. Farris does not claim that he is innocent or that the death penalty was not properly sought in this case. Merely being aware of the direct consequence of his crime does not entitle Farris to relief absent improper conduct on the part of the State or his attorney.

¶ 11. Farris next claims that his plea was not valid because he did not understand the trial process.' Farris does not supply us with any specific facts or any legal argument to support this claim. This issue was also raised in Taylor v. State, 682 So.2d 359, 361-62 (Miss.1996), cited by Farris, but that court did not use this as a basis for finding that the guilty plea was involuntary or unintelligently entered. Farris also asserts that he was denied effective assistance of counsel. In order to prevail, on this claim, Farris must, under Strickland v. Washington, 466 U.S. 668, 684, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984), show that counsel’s performance was deficient, and that he was prejudiced by his counsel’s mistakes. There is a strong presumption that the counsel’s performance falls within the range of reasonable professional assistance. Id. To overcome this presumption, “the defendant must show that there is a reasonable possibility that, but for the counsel’s unprofessional errors, the result would have been different. A reasonable probability is sufficient to undermine confidence in the outcome.” Id.

¶ 12. Farris states that his attorney led him to believe that he would be sentenced to death at trial and that he had no possibility of receiving a fair trial. He also claims that his attorney encouraged him to lie and tell the court that the plea had not been induced by promises.

¶ 13. Farris concedes that his testimony at the guilty plea hearing is in direct conflict with his claim of ineffective assistance of counsel. At the hearing, Farris admitted to having committed the crimes. He stated that he was voluntarily entering his plea and that no one threatened him or promised him anything in order to get him to plead guilty. He also stated under oath that his attorneys properly advised him concerning his constitutional rights and the consequences of pleading guilty.

¶ 14. We find that none of the issues raised by Farris would entitle him to relief even if his motion for post-conviction relief had been timely filed. We affirm the judgment of the circuit court.

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

KING, C.J., LEE, MYERS, CHANDLER AND GRIFFIS, JJ., CONCUR. IRVING, J., CONCURS IN RESULT ONLY. BARNES, J., NOT PARTICIPATING.


author: PER CURIAM. SEE, Justice

text:
    Ex parte KIA MOTORS AMERICA, INC., et al. (In re Patricia Foxworth, as administratrix of the estate of Christopher Allen Durden, deceased v. Kia Motors America, Inc., et al. Debra Woodward, as administratrix of the estate of Justin Valieres, deceased v. Kia Motors America, Inc., et al. Howard Jeffreys, as administrator of the estate of Marilyn Elise Jeffreys, deceased v. Kia Motors America, Inc., et al.)
    1011037.
    Supreme Court of Alabama.
    May 9, 2003.
    As Modified on Denial of Rehearing Nov. 21, 2003.

      De Martenson and Christopher S. Rodgers of Huie, Fernambucq & Stewart, LLP, Birmingham, for petitioners Kia Motors America, Inc., and Kia Motors Corp.
    Ron Storey, Dothan, for petitioner Emerald Auto Sales, Inc.
    J. Cole Portis and Benjamin E. Baker, Jr., of Beasley, Allen, Crow, Methvin, Por-tis & Miles, P.C., Montgomery; and Herman Cobb and S. Steadman Shealy, .Jr., of Cobb, Shealy & Crum, Dothan, for respon- - dents.
   PER CURIAM.

Kia Motors' America, Inc., headquartered in California; Kia Motors Corporation, headquartered in Korea (Kia Motors America, Inc., and Kia Motors Corporation are hereinafter collectively referred to as “Kia”); and Emerald Auto Sales, Inc. (“Emerald”), located in Houston County, Alabama, petition this Court for a writ of mandamus directing the Houston Circuit Court to grant their motions to dismiss these cases based on the doctrine oí forum non conveniens. See Ala.Code 1975, § 6-5-430. We grant their petition.

Facts and Procedural History

On October 16, 1999, Marilyn Elise Jef-freys, her daughter Danielle Jeffreys, Justin Valieres, and Christopher Allen Dur-den were in a 1998 Kia Sephia automobile when they were involved in a high-speed crash with another vehicle in Jackson County, Florida. The force of the crash caused the Sephia to leave the roadway; it came to rest in a pasture, where it caught fire and burned. The only occupant to survive the accident was Danielle Jeffreys.

On September 7, 2001, Howard Jeffreys, as the administrator of the estate of Marilyn Elise Jeffreys; Patricia Foxworth, as the administratrix of the estate of Christopher Allen Durden; and Debra Woodward, as the administratrix of the estate of Justin Valieres (Howard Jeffreys, Foxworth, and Woodward are hereinafter collectively referred to as “the respondents”), sued Kia and Emerald in the Houston Circuit Court on theories of product liability, breach of warranty, and negligence and wantonness as to Kia, and product liability and breach of warranty as to Emerald.

On October 11, 2001, Kia filed a motion to dismiss the Alabama actions on the ground of forum non conveniens, pursuant to Ala.Code 1975, § 6-5-430; it requested the trial court to dismiss the actions and allow them to be filed in Jackson County, Florida. Subsequently, Kia filed an evi-dentiary submission in support of its motion to dismiss, presenting the affidavits of 25 witnesses who are residents of Florida and who stated that it would be more convenient if the actions were brought in Jackson County, Florida, where the crash occurred. From the facts before us, it appears that the accident site, the decedents, the plaintiffs, nonparty witnesses, rescue personnel and medical examiners who might testify, and documents related to this accident are located in Florida. The wrecked vehicle is currently being stored in Birmingham.

On October 29, 2001, the respondents’ counsel filed a motion to consolidate the three actions; that motion was granted. On November 13, 2001, Emerald filed its motion to dismiss the Alabama actions on the basis of forum non conveniens, adopting and incorporating all of the arguments previously made by Kia in its motion to dismiss.

The motions to dismiss were originally set for hearing in November 2001, but were subsequently continued to January 3, 2002, and again to February 6, 2002. On January 15, 2002, Kia and Emerald were notified that the trial court had denied their motions to dismiss without a hearing and without any responsive filing from the respondents. The trial court’s order stated: “The Court has reconsidered the motion for change of venue and finds that the Houston County Circuit Court will be more convenient to the parties. The Court also finds that [Emerald] is a resident of Houston County.” Kia and Emerald then filed this petition.

Standard of Review

Our standard of review in mandamus cases is well settled:

“Mandamus is a drastic and extraordinary writ, to be issued only where there is (1) a clear legal right in the petitioner to the order sought, (2) an imperative duty upon the respondent to perform, accompanied by a refusal to do so, (3) the lack of another adequate remedy, and (4) properly invoked jurisdiction of the court. Ex parte Integon Corp., 672 So.2d 497, 499 (Ala.1995). ‘A petition for the writ of mandamus is a proper method for presenting a venue challenge based on the doctrine of forum non con-veniens.’ Id. (citations omitted). We apply the abuse-of-discretion standard when considering a mandamus petition challenging a venue ruling, and we will not issue the writ unless the trial court exercised its discretion in an arbitrary and capricious manner. Id.”

Ex parte Brookwood Health Servs., Inc., 781 So.2d 954, 956-57 (Ala.2000). Furthermore, our review is limited to those facts that were before the trial court. Ex parte Jim Burke Auto., Inc., 776 So.2d 118, 120 (Ala.2000).

Analysis

Kia and Emerald allege that in denying their motions to dismiss on the basis of forum non conveniens the trial court exceeded its discretion. Specifically, they argue that because the decedents were, and the plaintiffs are, residents of Florida and because the accident occurred in Florida and the majority of witnesses and accident-related documents are located in Florida, in the interests of justice the trial court should dismiss these actions so that they may be brought in Jackson County, Florida. We agree.

Alabama’s forum non conveniens statute, Ala.Code 1975, § 6-5-430, provides:

“Whenever, either by common law or the statutes of another state or of the United States, a claim, either upon contract or in tort[,] has arisen outside this state against any person or corporation, such claim may be enforceable in the courts of this state in any county in which jurisdiction of the defendant can be legally obtained in the same manner in which jurisdiction could have been obtained if the claim had arisen in this state; provided, however, the courts of this state shall apply the doctrine of forum non conveniens in determining whether to accept or decline to take jurisdiction of an action based upon such claim originating outside this state; and provided further that, if upon motion of any defendant it is shown that there exists a more appropriate forum outside this state, taking into account the location where the acts giving rise to the action occurred, the convenience of the parties and witnesses, and the interests of justice, the court must dismiss the action without prejudice. Such dismissal may be conditioned upon the defendant or defendants filing with the court a consent (i) to submit to jurisdiction in the identified forum, or (ii) to waive any defense based upon a statute of limitations if an action on the same cause of action is commenced in the identified forum within 60 days of the dismissal.”

The doctrine of forum non conve-niens requires a court to determine whether to accept or to decline jurisdiction of claims arising outside the state. Ex parte Integon Corp., 672 So.2d 497 (Ala.1995). “Initially, the party seeking dismissal must show that the claim[s] arose outside Alabama. Next, that party must show that an alternative forum exists.” 672 So.2d at 499; Ex parte Preston Hood Chevrolet, Inc., 638 So.2d 842, 845 (Ala.1994); Ex parte Employers Ins. of Wausau, 590 So.2d 888, 893 (Ala.1991); Jerome A. Hoffman & Sandra C. Guin, Alabama Civil Procedure § 2.148 (2d ed. 2000) (“A party seeking dismissal under § 6-5-430 must establish that the claim to be dismissed arose elsewhere than in Alabama.” (footnote omitted)).

Thus, the trial court is compelled to dismiss an action without prejudice if, upon a defendant’s motion, it is shown that there exists a more appropriate forum outside the state, taking into account the location where the acts giving rise to the action occurred, the convenience of the parties and witnesses, and the interest of justice. Ex parte Prudential Ins. Co. of America, 721 So.2d 1135, 1138 (Ala.1998). In addition, in determining whether a dismissal of the action on the ground of forum non conveniens should be granted, the trial court should consider “the relative ease of access to sources of proof, the location of the evidence, the availability of compulsory process for the attendance of unwilling witnesses, the cost of obtaining the attendance of willing witnesses, the possibility of a view of the premises, if a view would be appropriate to the action, and any other matter in order to assess the degree of actual difficulty and hardship that would result to the defendant in litigating the case in the forum chosen by the plaintiff.” Ex parte Ben-Acadia, Ltd., 566 So.2d 486, 488 (Ala.1990). If, after weighing all of the factors, the judge finds that the balance is “strongly in favor of the defendant,” he or she may decline to exercise jurisdiction and dismiss the complaint. Id.

In the instant case, for the doctrine of forum non conveniens to be applicable, the claims must have arisen outside Alabama. The respondents’ complaints allege product-liability and breach-of-warranty claims against both Kia and Emerald. Additionally, the respondents allege that Kia was negligent or wanton in its design and manufacture of the Sephia. It is undisputed that the product-liability and negligence claims against Kia arose in Florida. However, the parties disagree as to where the breach-of-warranty claim against Emerald arose. The respondents, in their brief, state:

“In this case, Florida’s substantive law will apply to the products liability, negligence and wantonness claims brought against the Defendants Kia Motors America, Inc. (‘KMA’) and Kia Motors Corporation (‘Kia’). However, the Plaintiffs’ breach of warranty claims against Emerald Auto Sales, Inc., arise under Alabama law since the subject car was purchased in Alabama.”

(Respondents’ brief at 4.)

In contrast, Kia and Emerald allege that all of the respondents’ claims, including the breach-of-warranty claim against Emerald, arose in Florida. We agree.

Section 7-2-725(2), Ala.Code 1975, provides:

“A cause of action accrues when the breach occurs, regardless of the aggrieved party’s lack of knowledge of the breach. A breach of warranty occurs when tender of delivery is made, except that where a warranty explicitly extends to future performance of the goods and discovery of the breach must await the time of such performance the cause of action accrues when the breach is or should have been discovered; however, a cause of action for damages for injury to the person in the case of consumer goods shall accrue when the injury occurs.”

(Emphasis added.) Clearly the breach-of-warranty claim in the present action is a claim of “damages for injury to the person in the ease of consumer goods,” the cause of action for which occurred in Florida. The claim, then, accrued in Florida. Accordingly, we find it is a “claim [that] has arisen outside this state.” Ala.Code 1975, § 6-5-430.

In the present case, Jackson County, Florida, is clearly a more appropriate forum for these actions than is Houston County, Alabama. Applying Alabama law, we are satisfied that all of the causes of action occurred in Florida. Furthermore, 25 nonparty witnesses that Kia and Emerald plan to call on the issue of liability reside in Florida and cannot be subpoenaed and made to personally appear in the Houston Circuit Court. The inability to have live testimony in Alabama from these nonparty witnesses in the liability phase of this action, we believe, clearly favors dismissal pursuant to § 6-5-430, Ala.Code 1975. Section 6-5^430 authorizes the trial court to condition its dismissal upon a defendant’s consent to jurisdiction in the transferee forum and waiver of any defense based on the statute of limitations. A dismissal pursuant to § 6-5-430 without providing for the right of a plaintiff to refile would be contrary to the interests of justice, one of the factors to be considered in ordering such a dismissal. As previously noted, Kia and Emerald have filed in this Court a notice of consent to jurisdiction and waiver of the statute of limitations, thereby obviating the need for judicial action to protect the respondents from the assertion of defenses based on jurisdiction and limitations periods upon refiling in Jackson County, Florida.

Conclusion

We hold that the trial court exceeded its discretion in failing to dismiss the actions pursuant to § 6-5-430, Ala.Code 1975. Therefore, we grant the petition and order the trial court to dismiss these actions so that they can be refiled in Jackson County, Florida.

PETITION GRANTED; WRIT ISSUED.

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

MOORE, C.J., and SEE and WOODALL, JJ., dissent.

SEE, Justice

(dissenting).

I respectfully dissent from the majority opinion holding that the trial court exceeded its discretion in failing to dismiss this case pursuant to Alabama’s forum non conveniens statute, § 6-5^430, Ala.Code 1975.

The forum non conveniens statute provides, in pertinent part:

“Whenever ... a claim, either upon contract or in tort[,] has arisen outside this state against any person or corporation ... and ... upon motion of any defendant, it is shown that there exists a more appropriate forum outside this state, ... the court must dismiss the action without prejudice.... ”

§ 6-5-430, Ala.Code 1975. I agree with the majority that, for the forum non con-veniens statute to apply, all of the claims in the present case must have arisen outside Alabama. However, I submit that Kia and Emerald have not met their burden of showing that the respondents’ breach-of-warranty claim against Emerald arose outside this State.

Where a breach-of-warranty claim arises for purposes of determining venue is a question of first impression in Alabama. The majority opinion concludes that the breach-of-warranty claim against Emerald arose in Florida because, under the statute of limitations, the cause of action for breach of warranty accrued when the accident occurred there. In reaching this conclusion, the majority likens the word “arisen” in the forum non conveniens statute to the word “accrue” in the statute of limitations. The statute of limitations provides that “a cause of action for damages for injury to the person in the case of consumer goods shall accrue when the injury occurs.” § 7-2-725(2), Ala.Code 1975. However, the words “arisen” and “accrue” are not synonymous. “Arisen” is used to describe the location of a cause of action, whereas “accrue” is used to describe the initial point in time when a cause of action may be asserted.

Although Alabama courts have not addressed this issue, other state courts have. Under Florida law, “a cause of action is deemed to have ‘accrued’ for venue purposes ‘where the act of default occurs.’ ” Stanfield v. DeStefano, 300 So.2d 712, 713 (Fla.Dist.Ct.App.1974) (citations omitted). “In the case of an action for breach of warranty, [venue] is controlled ... by the place ... where the breach took place— that is, where (and when) the goods in alleged breach of the warranty were delivered.” Id.

Under Pennsylvania law, a cause of action “arises when that is not done which should have been done.” Alpha Claude Neon Corp. v. Pennsylvania Distilling Co., 325 Pa. 140, 142, 188 A. 825, 826 (1936). Relying on this rule of law, the Court of Common Pleas held that the place where an alleged breach of an implied warranty arises is the county where tender is made. Brough v. Carl Cook Auto Sales, Inc., 75 Pa. D. & C.2d 132, 134 (1976). Therefore, that court concluded that the proper venue for asserting a breach-of-implied-warranty claim was the county where the allegedly defective car had been purchased, not the county where the injury occurred. Id.

The consumer-goods exception contained in the statute of limitations, § 7-2-725(2), Ala.Code 1975, does not supplant the general rule that “a breach of warranty occurs when tender of delivery is made.” It merely extends the time within which a consumer may assert a breach-of-warranty claim.

In the present case, Emerald warranted the car as fit for its intended purpose when the purchaser accepted delivery of the car in Houston County. The respondents allege that the car was not fit for its intended purpose. The act giving rise to the breach-of-warranty claim against Emerald was Emerald’s delivery of an allegedly defective car at its dealership in Houston County, not the accident in Florida. Therefore, the breach-of-warranty claim against Emerald arose in Houston County, even if it did not accrue, for purposes of the statute of limitations, until the date of the Florida accident; thus, venue for this action properly lies in Houston County.

WOODALL, J., concurs.

      . Kia and Emerald do not tell us who owned the Kia Sephia or the date it was purchased. However, it is clear from the complaint that the vehicle had been purchased from Emerald.

      . All four occupants of the Sephia were residents of Jackson County, Florida.

      . On April 17, 2002, Kia and Emerald filed in this Court a "Notice of Consent to Jurisdiction and Waiver of Statute of Limitations," stating that upon the dismissal of the Alabama actions on the ground of forum non conve-niens, they would consent to personal jurisdiction in Florida and would agree to waive any defense based upon any applicable statute of limitations. Similar consents were filed in the trial court.

      .The only evidence before the trial court at the time of its ruling on the motions to dismiss was the respondents’ complaint, the motions to dismiss, and the affidavits of 25 witnesses stating that it would be more convenient if the cases were brought in Jackson County, Florida, rather than in Houston County, Alabama.

      . Both the respondents and Kia and Emerald state that the product-liability and negligence and wantonness claims against Kia arose in Florida.

      . The respondents’ breach-of-warranty claim against Kia and the product-liability claim against Emerald are not discussed in the respondents’ brief.

      . "The burden of proving improper venue is on the party raising the issue....” Ex parte Finance America Corp., 507 So.2d 458, 460 (Ala.1987). Kia and Emerald do not provide this Court with any reason, much less the reason provided by the majority, why the breach-of-warranty claim against Emerald arose in Florida, not in Alabama. See City of Birmingham v. Business Realty Inv. Co., 722 So.2d 747, 752 (Ala.1998) ("[I]t is neither this Court’s duty nor its function to perform [a party's] legal research.”).

      . It is not clear from the facts which of the respondents, if any, purchased the car from Emerald.