author: THOMAS, J., SOUTHWICK, P.J.,

text:
    William Dwayne SALTER, Appellant, v. STATE of Mississippi, Appellee.
    No. 2002-CA-02004-COA.
    Court of Appeals of Mississippi.
    Dec. 16, 2003.
    Rehearing Denied March 16, 2004.
    Certiorari Denied July 2, 2004.

      Robert James Knochel, attorney for appellant.
    Office of the Attorney General by W. Glenn Watts, attorney for appellee.
   THOMAS, J.,

for the Court.

¶ 1. William Dwayne Salter, represented by counsel, appeals an order of the Circuit Court of George County denying his petition for post-conviction relief. Aggrieved, Salter asserts the following issues on appeal:

I. THE TRIAL COURT ERRED IN ACCEPTING SALTER’S PLEAS OF GUILTY TO KIDNAPING AS THERE WAS NO FACTUAL BASIS FOR THE COURT’S ACCEPTANCE OF SAID PLEAS AND THE CONFINEMENT OF THE ALLEGED VICTIMS WAS CLEARLY INCIDENTAL TO THE ROBBERY AND DID NOT CONSTITUTE KIDNAPING.

II. SALTER WAS NOT AFFORDED MINIMAL DUE PROCESS AT HIS SENTENCING HEARING AND WAS DENIED EFFECTIVE ASSISTANCE OF COUNSEL AT SENTENCING.

III. THE TRIAL COURT ERRED IN FAILING TO MAKE SURE SALTER HAD KNOWLEDGE OF THE CRITICAL ELEMENTS OF THE CHARGES AGAINST HIM AND TO MAKE SURE THAT HE FULLY UNDERSTOOD THE CHARGES AGAINST HIM.

FACTS

¶ 2. William Dwayne Salter was indicted on July 17, 2000, for burglary, two counts of armed robbery and four counts of kid-naping. This indictment was based upon evidence that Salter had broken into the First State Bank of Lucedale, Mississippi. Once inside the bank, Salter waited for the bank employees to arrive. Once the employees arrived, Salter held the employees at gun point, forced three of them into the vault where he made them lie on the floor, stole $37,000 from the bank, and then intimidated one of the employees into giving him her car keys. Salter then used her car to escape.

¶ 3. On April 16, 2001, Salter pled guilty to the charges brought against him in the Circuit Court of George County. The trial court questioned Salter and found that he had earned his G.E.D. and had taken two years of college courses, that he understood the constitutional rights he was waiving by pleading guilty, that he understood the maximum and minimum sentences he could receive, and that he had not been promised or coerced into pleading guilty. The trial court also questioned Salter regarding the factual basis for the plea.

¶ 4. The bank employees who were the victims of Salter’s crimes were then heard by the trial court. The prosecution presented evidence regarding Salter’s detailed sketch of the bank as well as the help he had provided investigators regarding the remaining money and stolen vehicle as well as showing them how he gained access to the bank through the roof. After the trial court accepted Salter’s plea as voluntarily and intelligently entered, Salter’s counsel then requested a pre-sentence investigation and pointed out that Salter had a psychiatric history. Salter’s counsel did not attempt to show that Salter was incompetent or insane, but that he had cooperated with the investigation and was trying to rehabilitate himself. The trial court examined Salter’s previous medical history and Salter testified that he had been in the hospital for taking “some pills.”

¶ 5. The trial court denied the motion for a pre-sentence report. Salter was sentenced to four thirty-year concurrent sentences on the kidnaping and armed robbery charges, and a seven year consecutive sentence for burglary to be served in the custody of the Mississippi Department of Corrections. On April 15, 2002, Salter filed a motion for post-conviction relief which was summarily denied by the trial court. The trial court found that there was no basis for relief, based upon the transcript of Salter’s guilty plea hearing. From that denial of relief, Salter perfected his appeal to this Court.

ANALYSIS

I. DID THE TRIAL COURT ERR IN ACCEPTING SALTER’S PLEAS OF GUILTY TO KIDNAPING AS THERE WAS NO FACTUAL BASIS FOR THE COURT’S ACCEPTANCE OF SAID PLEAS AND THE CONFINEMENT OF THE ALLEGED VICTIMS WAS CLEARLY INCIDENTAL TO THE ROBBERY AND DID NOT CONSTITUTE KIDNAPING?

¶ 6. Salter asserts that there was no factual basis for the kidnaping charges against him and that the trial court erred in accepting his guilty pleas to said charges. According to Salter, the kidnap-ing was merely incidental to the commission of the armed robbery, and was not a separate and distinct crime. In support of his argument, Salter points this Court to Cuevas v. State, 338 So.2d 1236 (Miss.1976). In that case, Cuevas was a prisoner that escaped from the Scott County Jail. Id. at 1237. During his escape, Cuevas entered an automobile agency and took one of the employees at gunpoint from the service department of the dealership to the parts department. Id. The Mississippi Supreme Court held:

If forcible detention or movement is merely incidental to a lesser crime than kidnapping, such confinement or movement is insufficient to be molded into the greater crime of kidnapping. An illustration might well be a strong-armed robbery where the victim is detained and perhaps moved a few feet while being relieved of his wallet. The detention and movement would not support kidnapping albeit with force and unlawful. On the other hand, if the confinement or asportation be not merely incidental to a lesser crime, but a constituent part of the greater crime, the fact of confinement or asportation is sufficient to support kidnapping without regard to distance moved or time of confinement.

Id. at 1238.

¶ 7. The question at bar, therefore, is whether Salter’s actions were incidental to a lesser crime or were a constituent part of the greater crime. According to Salter’s own testimony, he put the employees of the bank in the vault so that he could effectuate his escape and was armed with a handgun at the time he did so. Several bank employees testified that they were taken at gunpoint, forced into the bank vault, and made to lie down on the floor. One employee testified that she thought she was about to be killed when Salter made her lie face down on the floor of the vault. Before leaving, Salter closed the bank vault door.

¶ 8. Mississippi Code Annotated Section 97-3-53 (Rev.2000) directs that kidnaping occurs when “any person who shall without lawful authority forcibly seize and confine any other person, or shall inveigle or kidnap any other person with intent to cause such person to be secretly confined or imprisoned against his or her will.” By taking the employees against their will to the bank vault, Salter fulfilled this definition. As stated in Cuevas, the distance of asportation is not important, but rather the fact of asportation as it relates to the unlawful activity. Cuevas, 338 So.2d at 1238. Salter did not merely move the employees a few feet as he took the money. He took them at gunpoint and forced them into the confined area of the bank vault and forced them to lie on the ground, and shut the door on them as he left.

¶ 9. The trial court did not err in accepting Salter’s guilty plea in regard to the charge of kidnaping. This issue is without merit.

II. WAS SALTER NOT AFFORDED MINIMAL DUE PROCESS AT HIS SENTENCING HEARING AND EFFECTIVE ASSISTANCE OF COUNSEL AT SENTENCING?

¶ 10. Salter argues that he was denied effective assistance of counsel at his sentencing hearing, because both he and his mother were willing to testify regarding his mental health and provide mitigating evidence before sentencing. Salter’s trial counsel made a motion for a pre-sentence investigation which was denied. According to Salter, nothing else was said on the matter despite the fact that both he and his mother were available and willing to testify. The record, however, shows that the trial judge asked Salter’s counsel what information a pre-sentence investigation would provide. Salter’s counsel then spoke at length about Salter’s mental health and mitigating evidence. The trial court then questioned Salter briefly, and determined that there was nothing else to be gained from a pre-sentence investigation and denied the motion.

¶ 11. In order to prove ineffective assistance of counsel, Salter must establish by a preponderance of the evidence that (1) counsel’s performance was defective, and (2) that defect was so deficient that it prejudiced his defense. Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984); Moody v. State, 644 So.2d 451, 456 (Miss.1994). Salter faces a strong yet rebuttable presumption that counsel performed adequately, and he must show a reasonable probability that barring counsel’s errors, the result of the trial would have been different. Moody, 644 So.2d at 456. This Court looks at the totality of the circumstances, with deference towards counsel’s actions, to find a factual basis for the claim. Id. Should we find that Salter’s counsel was ineffective, the appropriate remedy is remand for a new trial. Id.

¶ 12. Salter has failed to show that his counsel’s performance was ineffective or that he was prejudiced as required for him to show under the test set forth in Strickland. Salter’s counsel did attempt to mitigate Salter’s sentence by informing the judge of the “circumstances surrounding the incident” as Salter stated in his affidavit. The trial court was well informed of Salter’s prior problems. This issue is without merit.

III. DID THE TRIAL COURT ERR IN FAILING TO MAKE SURE SALTER HAD KNOWLEDGE OF THE CRITICAL ELEMENTS OF THE CHARGES AGAINST HIM AND THAT HE FULLY UNDERSTOOD THE CHARGES AGAINST HIM?

¶ 13. Salter alleges that the trial court erred in failing to make sure he had full knowledge of the critical elements of the charges against him. The burden of proving that a guilty plea was involuntary is on the defendant and must be proven by a preponderance of the evidence. Terry v. State, 839 So.2d 543, 545(¶ 7) (Miss.Ct.App.2002). A plea is considered “voluntary and intelligent” if the defendant is advised about the nature of the charge against him and the consequences of the entry of the plea. Alexander v. State, 605 So.2d 1170, 1172 (Miss.1992). “Admission of guilt is not a constitutional requirement for a guilty plea.” Reynolds v. State, 521 So.2d 914, 917 (Miss.1988). “What is required is an intelligent and voluntary plea and an independent evidentiary suggestion of guilt.” Id.

¶ 14. Salter was able to meet with counsel and go over the indictment of the charges against him. The trial court questioned Salter on the record fulfilling the requirements of Uniform Rules of Circuit and County Court Practice 8.04(A)(4). At the time of trial, Salter was thirty years old, had completed the eleventh grade, obtained his G.E.D., attended two years of college courses, and indicated he was not under the influence of any medication, alcohol, or drugs. Salter testified that he was indeed pleading guilty to the charges read to him and also testified regarding his actions at the bank, as did several witnesses. Salter has failed to meet his burden of proof. This issue is without merit.

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

BRIDGES, LEE, IRVING, MYERS AND GRIFFIS, JJ., CONCUR. SOUTHWICK, P.J., DISSENTS WITH SEPARATE WRITTEN OPINION JOINED BY McMILLIN, C.J., KING, P.J., AND CHANDLER, J.

SOUTHWICK, P.J.,

Dissenting.

¶ 16. The majority finds that Salter could be convicted both of robbery and of kidnaping. I find that the crimes were too closely intertwined to be the basis for separate convictions. Therefore, I respectfully dissent.

¶ 17. The controlling precedent, indeed, the only relevant precedent, is Cuevas v. State, 338 So.2d 1236 (Miss.1976). The opinion is not very enlightening. This is the operative language:

If forcible detention or movement is merely incidental to a lesser crime than kidnapping, such confinement or movement is insufficient to be molded into the greater crime of kidnapping. An illustration might well be a strong-armed robbery where the victim is detained and perhaps moved a few feet while being relieved of his wallet. The detention and movement would not support kidnapping albeit with force and unlawful. On the other hand, if the confinement or asportation be not merely incidental to a lesser crime, but a constituent part of the greater crime, the fact of confinement or asportation is sufficient to support kidnapping without regard to distance moved or time of confinement.

Id. at 1238-39. The court concluded that if detaining or moving a victim a few feet was merely incidental to the other crime, then kidnaping cannot be separately charged. The Court referred to “lesser” crimes than kidnapping. The problem would arise regardless of the relative se-verities.

¶ 18. The other situation covered by the Cuevas statement is that when the confinement or asportation is a “constituent part” of the other crime, then kidnapping may also be charged. The meaning of that, particularly in distinction to the first part of the rule being announced, is confusing. Was the court saying that if the kidnaping elements are central to the other crime, then both the other crime and kidnapping may be charged? That appears backwards.

¶ 19. To understand better what the court meant, it is necessary to examine closely something else that Cuevas said: “See People v. Adams, 389 Mich. 222, 205 N.W.2d 415 (1973), for a well-reasoned case persuasive to the above point of view.” An examination of the favored precedent, then, may uncover the mysteries created by the summary of the law in Cuevas.

¶ 20. The first point to make about Adams is that the “merely incidental language” appears in that opinion but the “constituent part” phrase does not. The latter phrase may have been an attempt by the Mississippi Supreme Court to explain situations in which the kidnaping elements are not merely incidental, and the phrasing chosen does not fully do so.

¶ 21. The Adams case concerned a prison riot, in which Adams and others took guards and threatened to kill them. Guards were moved around some within the prison. After a few hours the inmates gave up. Adams was convicted of kidnap-ing. The state court of appeals held that the guard in question, who was seized and moved about 1,500 feet by prisoners armed with knives to a fifth floor prison hospital for purpose of reducing risk of escalation, was not kidnapped.

¶ 22. The Michigan Supreme Court found a fact issue and sent it back for a new trial, but the higher court agreed in large part with the intermediate court. It went through a lengthy discussion of kid-naping. It identified what it called “absurd and unconscionable results” in some of the cases.

It is obvious that virtually any assault, any battery, any rape, or any robbery involves some ‘intentional confinement’ of the person of the victim. To read the kidnapping statute literally is to convert a misdemeanor, for example, assault and battery, into a capital offense. A literal reading of the kidnapping statute would permit a prosecutor to aggravate the charges against any assailant, robber, or rapist by charging the literal violation of the kidnapping statute which must inevitably accompany each of those offenses.

Id. at 420.

¶ 23. The Michigan court discussed the rules adopted in California and New York. One California case found that forcing a robbery victim to drive five city blocks in order to facilitate the robbery was not a kidnaping: “The true test in each case is not mere mileage but whether the movements of the victims ‘substantially increase the risk of harm’ beyond that inherent in the crime of robbery itself.” Id. at 420 (quoting People v. Timmons, 4 Cal.3d 411, 93 Cal.Rptr. 736, 482 P.2d 648, 651 (1971)). The Michigan court then quoted the New York rule:

1.The movement element must not be “merely incidental” to the commission of another underlying lesser crime.
2. The movement of a “more complicated nature” may sustain a kidnapping charge.
3. Statutory kidnapping continues to include “traditional” or “conventional” kidnapping abductions designed to effect extortions or accomplish murder.

Id. at 421 (quoting People v. Miles, 23 N.Y.2d 527, 297 N.Y.S.2d 913, 245 N.E.2d 688, 694 (1969)).

¶ 24. The Michigan court said that “if the movement is merely incidental to the commission of another underlying lesser crime, it will not sustain kidnapping. We feel that this is the critical and significant criterion and regard the other two criteria illustrative and not controlling.” Id. Whether asportation “substantially increases the risk to the victim above those to which a victim of the underlying crime is normally exposed” is not a determinative criterion.

¶ 25. This is probably the ultimate set of considerations that Michigan adopted

1. Since the language of the first part of the kidnapping statute by itself is so general as to be susceptible of defining minor crimes as well as kidnapping, where appropriate, asportation must be interpolated to achieve the Legislature’s intention to define the major crime of kidnapping.
2. The movement element is not sufficient if it is “merely incidental” to the commission of another underlying lesser crime.
3. If the underlying crime involves murder, extortion or taking a hostage, movement incidental thereto is generally sufficient to establish a valid statutory kidnapping.
4. If the movement adds either a greater danger or threat thereof, that is a factor in considering whether the movement adequately constitutes the necessary legal asportation, but there could be asportation without this element of additional danger so long as the movement was incidental to a kidnapping and not a lesser crime.
5. Where appropriate, secret confinement or some other non-movement factor may supply a necessary alternative to asportation to complete statutory kidnapping.
6. Whether or not a particular movement constitutes statutory asportation or whether there is an appropriate alternative element must be determined from all the circumstances under the standards set out above and is a question of fact for the jury.

Adams, 205 N.W.2d at 422-23.

¶ 26. Though our kidnaping statute does not require asportation, neither did the Michigan statute. What the Michigan court was saying is that when kidnaping is an integral part of another crime, then something other than temporary seizure or slight movement is needed before both crimes can be charged. Else, there are problems of “constitutional overbreadth,” which I take to be problems of multiplicity. Therefore, requiring someone not to move in order that another crime may be committed is not kidnaping, even though the kidnaping statute states that a forcible seizure of another person constitutes the crime. Miss.Code Ann. § 97-3-53 (Rev. 2000). That is because the other crime and the kidnaping are too interwoven. Even requiring someone to move if that is “merely incidental” to the other crime also cannot become the separate crime of kid-naping.

¶ 27. My conclusion is that when Cuevas adopted the phrase “merely incidental” to explain when kidnaping may not be separately charged alongside another crime, it was clearly applying Adams. The court strayed in its phrasing when it created the term “constituent part” to describe the situation when both may be charged. In fact, the best way to describe situations when both may be charged is simply to determine if the kidnaping is not merely incidental to the other crime.

¶ 28. In applying the Adams test to our case, it is immediately obvious that “merely incidental” is not the brightest line that could have been drawn. Incidental is a matter of degree. Was the locking up of the victims by Salter incidental or not? The better view to me is that telling people to move around inside the bank, even into the bank vault, did not have significance independent of the bank robbery itself. It did not increase the danger to the employees, and may even have reduced the danger to some extent. The distance moved was all within the bank itself; this was not a hostage situation, but just a securing of the victims for long enough until an escape could be made.

¶ 29. What I also find from Adams is that if the State did not seek to charge for bank robbery, the interwoven nature of that crime and kidnaping would not be a problem. The acts within the bank could be charged as kidnaping if the robbery itself were not pursued as a charge. It is only when deciding whether one crime or two were committed that this special rule for kidnaping applies.

¶ 30. The Adams court would make the determination of the separateness of the crimes an issue for the jury. Though Cuevas referred to Adams as a valid explanation of what it was attempting to accomplish, the procedures for implementing the approach might not have been adopted. Even if some cases would make a jury issue of whether the kidnaping is incidental to the other crime, I conclude here as a matter of law that the movement within the bank was incidental to the robbery and did not create a separate crime.

McMILLIN, C.J., KING, P.J., AND CHANDLER, J., JOIN THIS SEPARATE WRITTEN OPINION.


source: Caselaw Access Project

author: GRIFFIS, J.,

license: Public Domain

text:
    Theodus KENDRICK, Appellant, v. STATE of Mississippi, Appellee.
    No. 2002-CP-01001-COA.
    Court of Appeals of Mississippi.
    Feb. 3, 2004.
    Rehearing Denied April 20, 2004.
    Certiorari Denied July 1, 2004.
    Theodus Kendrick, appellant, pro se.
    Office of the Attorney General by John R. Henry, attorney for appellee.
    Before SOUTHWICK, P.J., THOMAS and GRIFFIS, JJ.
   GRIFFIS, J.,

for the Court.

¶ 1. Theodus Kendrick filed a petition for post-conviction relief challenging his guilty plea for the sale of cocaine. Kendrick’s petition was denied by the circuit court, and we affirm.

FACTS

¶ 2. Theodus Kendrick was indicted for the sale of cocaine within 1,000 feet of a park in violation of Mississippi Code Annotated Section 41-29-142. The indictment was later amended, and Kendrick was indicted for selling cocaine, as a repeat offender, pursuant to Mississippi Code Annotated Section 49-29-147. Kendrick pled guilty to the charges in the second indictment and was sentenced to serve twenty years in the custody of the Mississippi Department of Corrections.

¶ 3. Kendrick’s petition for post-conviction relief alleged error for prosecu-torial misconduct. The circuit court denied the petition, and Kendrick appeals asserting three issues. The second and third issues were not presented in the original petition before the circuit court. Therefore, these issues are not properly before this Court for consideration and will not be considered. Eaton v. State, 817 So.2d 630, 632(¶ 6) (Miss.Ct.App.2002). The only issue properly before this Court is whether Kendrick’s claim of prosecutorial misconduct was sufficient to require an evidentiary hearing. We find that it was not.

STANDARD OF REVIEW

¶ 4. In Brown v. State, 731 So.2d 595 (Miss.1999), the Mississippi Supreme Court described the applicable standard of review after the denial of a petition for post-conviction relief. “When reviewing a lower court’s decision to deny a petition for post conviction relief, this Court will not disturb the trial court’s factual findings unless they are found to be clearly erroneous. However, where questions of law are raised the applicable standard of review is de novo.” Id. at 598.

ANALYSIS

¶ 5. Kendrick’s claim of prosecutorial misconduct arises from the fact that two indictments were issued in this case. Kendrick claims that he was first indicted for selling cocaine within 1,000 feet of a park. According to Kendrick, at a pre-trial hearing, a police officer testified that no park was in the vicinity where Kendrick sold the cocaine. However, the police officer testified there were two churches within the 1,000 foot area. Kendrick alleges that based on this information, the prosecution obtained a superseding indictment to correct the error. Kendrick claims this constituted prosecutorial misconduct.

¶ 6. Interestingly enough, Kendrick’s theory appears to be based on his belief that, prior to the State’s discovery of the mistake in the original indictment, he thought he would be able to “exculpate” himself by proving that he sold cocaine near a church, not a park. Kendrick alleges that he lost his advantage at trial because the State was allowed to amend the indictment.

¶ 7. First, we find no record of any “pre-trial hearing” that Kendrick alleges took place. It is an appellant’s duty to justify his arguments of error with a proper record, which does not include mere assertions in his brief, or the trial court will be considered correct. Am. Fire Prot., Inc., et al. v. Lewis, 653 So.2d 1387, 1390 (Miss.1995).

¶ 8. Second, Kendrick pled guilty. In Johnson v. State, 753 So.2d 449 (Miss.Ct.App.1999), we held that only in limited circumstances will a guilty plea not waive a defect in the indictment.

There are only two exceptions in which a voluntary guilty plea does not waive a defect: (1) if an indictment fails to charge a necessary element of the crime and (2) there is no subject matter jurisdiction. Further the Mississippi Supreme Court has recognized “that a valid guilty plea operates as a waiver of all non-jurisdictional rights or defects which are incident to trial.”

Id. at 455 (citing Anderson v. State, 577 So.2d 390 (Miss.1991)).

¶ 9. Finally, while Kendrick is correct that two indictments were indeed issued in his case, there was nothing defective about either indictment. In the first indictment, Kendrick was charged with selling cocaine within 1,000 feet of a park. Kendrick challenges the indictments because the word “park” was later changed to “church.” The second indictment, however, made no mention of a church. Instead, it charges Kendrick with selling cocaine, a crime with a potential sentence much less than that of selling cocaine within 1,000 feet of a park.

¶ 10. Kendrick was in a better position under the second indictment than the first. An indictment benefitting Kendrick could hardly be considered “prosecutorial misconduct.” The supreme court has previously held that the prosecution has the right to correct clerical errors or mistakes in an indictment, as long as the defendant has ample and sufficient notice of the offense with which he was charged. Dendy v. State, 224 Miss. 208, 213, 79 So.2d 827, 829 (1955). Based on the record before us, the State simply corrected a previous mistake in the indictment. We find no evidence to suggest otherwise. Therefore, we affirm the decision of the lower court.

¶11. THE JUDGMENT OF THE CIRCUIT COURT OF HINDS COUNTY DENYING POST-CONVICTION RELIEF IS AFFIRMED. COSTS OF THIS APPEAL ARE ASSESSED TO THE APPELLANT.

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


text:
    Clara BROWN, Appellant, v. STATE of Mississippi, Appellee.
    No. 2003-CP-00584-COA.
    Court of Appeals of Mississippi.
    April 6, 2004.
    Rehearing Denied June 29, 2004.

      Clara Brown, appellant, pro se.
    Office of the Attorney General by Jean Smith Vaughan, attorney for appellee.
    Before McMILLIN, C.J., BRIDGES and GRIFFIS, JJ.
   GRIFFIS, J.,

for the Court.

¶ 1. Clara Brown pled guilty to murder and was sentenced to serve life imprisonment in the custody of the Mississippi Department of Corrections. Brown filed a motion for post-conviction relief claiming her guilty plea was involuntary and that she received ineffective assistance of counsel. The circuit court denied her motion for post-conviction relief. On appeal, we find no merit to the issues raised, and affirm.

ANALYSIS

1. Involuntary Plea

¶ 2. Brown argues that her guilty plea was involuntary because she believed she was pleading guilty to manslaughter. She argues that her belief was based on statements made by her counsel. Brown does not state with particularity exactly what her counsel said that caused her misconception. In general terms, Brown claims that her counsel told her that by pleading guilty to manslaughter she would not serve life, but twenty years with probation.

¶ 3. A plea is considered “voluntary and intelligent” if the defendant is advised about the nature of the charge and the consequences of the entry of the plea. Alexander v. State, 605 So.2d 1170, 1172 (Miss.1992). The defendant must be instructed that a guilty plea waives his or her rights to a jury trial, to confront adverse witnesses, and to protection against self-incrimination. Id.

¶ 4. Brown bears the burden of proving by a preponderance of the evidence that she is entitled to post-conviction relief. McClendon v. State, 539 So.2d 1375, 1377 (Miss.1989). “Once the trial judge has determined at a preliminary hearing that a confession is admissible, the defendant/appellant has a heavy burden in attempting to reverse that decision on appeal.” Sills v. State, 634 So.2d 124, 126 (Miss.1994) (quoting Frost v. State, 483 So.2d 1345, 1350 (Miss.1986)). “Such findings are treated as findings of fact made by a trial judge sitting without a jury as in any other context. As long as the trial judge applied the correct legal standards, his decision will not be reversed on appeal unless it is manifestly in error, or is contrary to the overwhelming weight of the evidence.” Foster v. State, 639 So.2d 1263, 1281 (Miss.1994).

¶ 5. Brown provided no evidence to support her claim that her plea was involuntary based on her belief that she was pleading guilty to manslaughter and not murder. Brown did not produce any evidence of what statements her counsel made that caused her to believe that she was pleading guilty to manslaughter. The record clearly contradicts her claim.

¶ 6. During the plea hearing, Brown acknowledged that her counsel explained the indictment and each element of the crime to her. Brown stated on the record that she was satisfied with her counsel’s representation. The circuit judge informed Brown that the maximum penalties for murder were a life sentence and a $10,000 fine. The judge told Brown that there was no minimum sentence or fine for murder. Brown acknowledged that she understood that a guilty plea waived all of her rights and placed her in a position where she could be sentenced by the court to the maximum penalty provided by law.

¶ 7. The circuit judge fully advised Brown of her constitutional rights. Brown stated that she understood each of these rights. Brown acknowledged her plea was offered freely, voluntarily, and without any threat or promise having been made to her. Brown admitted that her counsel was present with her each time she was before the court, that he answered all of her questions, and she was satisfied with his representation. Brown stated she was pleading guilty because she was in fact guilty, and she was satisfied that the State could prove beyond a reasonable doubt that she was guilty.

¶ 8. The record is clear. The circuit judge fully explained the nature of the charges and the consequences of her guilty plea. The record also contradicts Brown’s claim that she was under the impression she was pleading guilty to manslaughter. Indeed, the judge talked to her about the crime of murder not manslaughter. Based on our review of the plea transcript, Brown entered a guilty plea to the charge of murder in a manner that was knowing, voluntary, and intelligent. Therefore, the circuit court did not commit error in denying relief on this assignment of error.

2. Ineffective assistance of counsel

¶ 9. Brown next claims she received ineffective assistance of counsel. Brown asserts that her counsel failed to properly advise her of the maximum penalty. Brown again argues that statements made by her counsel caused her to believe that she was pleading guilty to manslaughter. Brown claims that this belief arose from her receiving ineffective assistance of counsel.

¶ 10. In reviewing a claim of ineffective assistance of counsel, we apply a two-part test. The defendant must demonstrate his or her counsel’s performance was deficient and that this deficiency prejudiced him or her in such a way that it denied her a fair trial. Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). This deficiency is assessed by looking at the totality of the circumstances. Hiter v. State, 660 So.2d 961, 965 (Miss.1995). Mississippi law creates a strong presumption “that trial counsel’s conduct is within the wide range of reasonable conduct and that decisions made by trial counsel are strategic.” Vielee v. State, 653 So.2d 920, 922 (Miss.1995).

¶ 11. In the record before us, Brown has failed to demonstrate that her counsel’s performance was deficient. Brown provided no evidence to support her claim that she believed she was pleading guilty to manslaughter. Brown failed to specify which statements, if any, made by her counsel supported her allegation that she believed she was pleading guilty to manslaughter. Brown produced no evidence to support her claim that her counsel failed to advise her of the maximum penalty she faced. Brown acknowledged that her counsel explained the indictment and elements of the crime to her and that she was satisfied with her counsel’s representation. The circuit judge also informed Brown of the maximum penalty for murder.

¶ 12. Brown has not demonstrated that she would have received a different outcome but for her counsel’s actions. Even assuming that Brown’s counsel made statements that caused her to believe that she was pleading to manslaughter and failed to inform her of the maximum penalties, the circuit judge’s questioning during the plea hearing cleared up any misconception. The circuit judge clearly explained the maximum penalties for murder and that there was no minimum sentence or fine for murder.

¶ 13. Considering the totality of the circumstances, the performance of Brown’s trial counsel was neither deficient nor did it prejudice Brown. Therefore, this assignment of error is without merit.

¶ 14. THE JUDGMENT OF THE CIRCUIT COURT OF PIKE COUNTY DENYING POST CONVICTION RELIEF IS AFFIRMED. ALL COSTS OF THIS APPEAL ARE TAXED TO PIKE COUNTY.

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


author: MYERS, J.,

text:
    Maurice S. McGEE, Appellant, v. MISSISSIPPI EMPLOYMENT SECURITY COMMISSION and Choctaw Food of Carthage, Mississippi, Appellees.
    No. 2003-CC-00143-COA.
    Court of Appeals of Mississippi.
    April 20, 2004.
    Rehearing Denied June 29, 2004.

      Maurice S. McGee, pro se.
    B. Ray Therrell, attorney for appellees.
    Before McMILLIN, C.J., LEE and MYERS, JJ.
   MYERS, J.,

for the Court.

¶ 1. Maurice S. McGee, pro se, appeals an order of the Circuit Court of Montgomery County affirming his disqualification from unemployment benefits. The circuit court affirmed the decisions of the claims examiner for the Mississippi Employment Security Commission (MESC), rendered on February 14, 2002; a referee of the MESC on appeal, rendered on March 27, 2002, and the Board of Review of the MESC in a second appeal on May 8, 2002. In this appeal, McGee asserts a single issue: whether the lower court’s findings of fact are clearly erroneous. Finding no reversible error, we affirm.

STATEMENT OF FACTS

¶ 2. Maurice S. McGee was employed in the deboning area of Choctaw Maid Foods in Carthage, Mississippi, from February 22, 2000 until January 24, 2002. His duties were to pick up meat that had fallen on the floor and take the meat to the wash station where other personnel wash the meat. He was discharged on January 24, 2002, for poor work performance. On January 24, 2000, McGee picked up scrap meat off the floor and placed it in a container with clean meat. This occurred in the presence of a United States Department of Agriculture inspector. According to the referee’s report, the USDA inspector advised McGee’s supervisor that McGee should be fired for such conduct. McGee was terminated for placing the contaminated meat in the same container with uncontaminated meat in violation of USDA guidelines.

¶ 3. After McGee’s termination, he applied for unemployment benefits. The claims examiner determined that he was fired for misconduct connected with his employment and was not eligible for benefits. McGee appealed this decision to the MESC. A referee held two telephonic hearings on March 12, 2002 and March 26, 2002. McGee testified on his own behalf and Nikki Stiles, the human resources clerk for Choctaw Maid Food, testified on behalf of the employer. Following the hearing, the referee found: “In this case, the claimant was discharged for putting dirty meat in with clean meat. It is the opinion of the referee that claimant’s actions would constitute misconduct as that term is used in the law. The decision of the claims examiner is affirmed.”

¶ 4. McGee appealed to the Board of Review and the Board affirmed the referee’s decision. McGee then appealed to the Circuit Court of Montgomery County which affirmed the Board of Review of the MESC.

LEGAL ANALYSIS

¶ 5. When an appellate court reviews a trial court’s decision to affirm or deny an administrative agency’s findings and decisions, the appropriate standard of review is abuse of discretion. Brandon v. Miss. Employment Sec. Comm’n, 768 So.2d 341, 343(¶ 7) (Miss.Ct.App.2000). The standard for reviewing the findings and decisions of an administrative agency, such as the MESC, is found in Mississippi Code Annotated Section 71-5-531 (Rev. 2000). The statute reads: “In any judicial proceedings under this section, the findings of the board of review as to the facts, if supported by evidence and in the absence of fraud, shall be conclusive, and the jurisdiction of said court shall be confined to questions of law.” Id.

¶ 6. On the standard of review of MESC proceedings, this Court has held “[t]he denial of benefits may be disturbed only if (1) unsupported by substantial evidence, (2) arbitrary or capricious, (3) beyond the scope of power granted to the agency, or (4) in violation of the employee’s constitutional rights.” Miss. Employment Sec. Comm’n v. Noel, 712 So.2d 728, 730(¶ 5) (Miss.Ct.App.1998) (citing Miss. Comm’n on Envtl. Quality v. Chickasaw County Bd. of Supervisors, 621 So.2d 1211, 1215 (Miss.1993)). This Court must affirm the decision of the MESC when the decision is supported by substantial evidence. Reeves v. Miss. Employment Sec. Comm’n, 806 So.2d 1178, 1179(¶ 5) (Miss.Ct.App.2002).

¶ 7. According to Mississippi Code Annotated Section 71-5-513 A.(1)(b)(Rev.2000), a person is disqualified from receiving unemployment benefits if he is discharged due to misconduct connected with his work. The employer has the burden of proving misconduct by clear and convincing evidence. Brandon, 768 So.2d at 344 (¶ 10). In the case of Wheeler v. Arriola, 408 So.2d 1381 (Miss.1982), the Mississippi Supreme Court defined “misconduct” within the meaning of the unemployment statute as:

conduct evincing such willful and wanton disregard of the employer’s interest as is found in deliberate violations or disregard of standards of behavior which the employer has the right to expect from his employee. Also, carelessness and negligence of such degree, or recurrence thereof, as to manifest culpability, wrongful intent or evil design, and showing an intentional or substantial disregard of the employer’s interest or of the employee’s duties and obligations to his employer, came within the term.

Wheeler, 408 So.2d at 1383. Actions not included in the realm of “misconduct” include “[m]ere inefficiency, unsatisfactory conduct,' failure in good performance as the result of inability or incapacity, or inadvertences [sic] and ordinary negligence in isolated incidents, and good faith errors in judgment or discretion ...” Id.

¶ 8. In the case sub judice, McGee’s violation of USDA guidelines by placing contaminated meat in containers with uncontaminated meat constitutes misconduct. McGee stated that he thought the scrap meat was going to be used for dog or cat food and so its placement did not matter. He also testified in the telephonic hearing with the referee that he knew he should not place contaminated meat with uncontaminated meat. Regardless of this knowledge, McGee chose to violate the guidelines in the presence of a USDA inspector who was visiting the plant.

¶ 9. McGee also presents an argument on appeal that another female employee, Marilyn Waters, did the same thing with contaminated meat and she was suspended for three days. He argues that this was an Equal Protection violation according to the Fourteenth Amendment. The hearing on March 12, 2002, was delayed specifically so Nikki Stiles, the representative of Choctaw Maid Foods, could obtain Marilyn Waters’ employee file. During the hearing on March 26, 2002, Stiles testified that she saw no record in Waters’ file of discipline; specifically of her being suspended for three days. McGee’s assertions were not supported by documentation in Waters’ employee records.

¶ 10. For the reasons discussed above, the decision of the lower court affirming the decision of the MESC denying McGee unemployment compensation benefits is affirmed.

¶ 11. THE JUDGMENT OF THE CIRCUIT COURT OF MONTGOMERY COUNTY IS AFFIRMED.

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


author: IRVING, J.,

text:
    Jamie OSTER, Appellant v. Jan OSTER, Appellee.
    No. 2002-CA-01174-COA.
    Court of Appeals of Mississippi.
    April 27, 2004.
    Rehearing Denied June 29, 2004.

      Renee M. Porter, attorney for appellant.
    Ralph L. Peeples, Brookhaven, attorney for appellee.
    Before McMILLIN, C.J., IRVING and MYERS, JJ.
   IRVING, J.,

for the Court.

¶ 1. This is an appeal by Jamie Oster from a judgment of the Chancery Court of Lincoln County awarding his former wife, Jan Oster, permanent periodic alimony in the amount of $500 per month. Jamie’s sole issue on appeal is that the chancellor erred in awarding permanent periodic alimony.

FACTS

¶ 2. Jamie and Jan were divorced in August 2001. The judgment of divorce ordered Jamie to pay rehabilitative alimony for a period of six months but contained a provision that, at the end of the six month period, the court would review Jamie’s financial situation to determine whether “to continue the rehabilitative alimony, make the rehabilitative alimony permanent, terminate the rehabilitative alimony or make adjustments in connection therewith.”

¶3. The review hearing was held in March 2002. At the beginning of the hearing, the chancellor stated the matter for resolution as follows:

This matter is before the Court on a six month review of the financial situation of Mr. Oster to determine whether or not rehabilitative alimony should be continued, whether or not that rehabilitative alimony should be converted to permanent alimony, or to make any other adjustments in connection therewith the Court deems appropriate, and to consider whether or not an extension in time is necessary for the payment of the attorney’s fees ordered by this Court.

¶ 4. During the hearing, both Jan and Jamie presented testimony of their respective financial conditions. Jamie testified that he was self employed as a yard maintenance worker and worked as an umpire during baseball season. He further testified that he had worked at a job in Louisiana since his last court appearance which was during the divorce proceedings. He testified that “the work was not hard or anything like that, but it was not my kind of work. I was not accustomed to that kind of work.”

¶ 5. On cross-examination, Jamie claimed that he quit the job in Louisiana because it did not offer any benefits. He stated that during his three months of employment there, he was guaranteed ninety-one hours a week, at $10 per hour for the first forty hours and $15 an hour for any overtime.

¶ 6. Jamie produced what he called a financial statement but when he was asked the amount of his adjusted gross income, he was unable to state the amount, responding that “he could not say, but it was not very much.” He admitted that he had paid his court-ordered child support only one month. However, he had paid his daughter’s car note and insurance as ordered by the court. He further testified that he had given his daughter money and had helped her with the purchase of school items and the maintenance of her automobile. Jamie further testified that he had paid five out of the six house notes that he was ordered to pay. Finally, Jamie testified that he was not able to continue paying the house payments or any money to Jan.

¶ 7. Jan, as might be expected, testified that she needed support from Jamie by way of either alimony or payment for a place to live for herself and the two children. She testified that her income had not changed since she was in court during the divorce proceedings. She testified that her monthly income was $1,300 and that her monthly expenses were $1,400. She also testified that she owed two outstanding loans in the amount of $700 each. Jan further testified that Jamie had not made a house payment since December and that the house was in foreclosure. She concluded her testimony with an affirmation of her continuing need for support.

¶ 8. At the conclusion of the testimony, the chancellor found that the court had not given a lot of credibility to Jamie’s financial information. The chancellor stated that he did not “believe that it was any different this time.” The chancellor further remarked that he did not believe that there was “really a great difference in what [Jamie] testified to about his income [at the divorce hearing] and now.” As a result, the chancellor reasoned that, based upon the prior findings of the court, the alimony would continue, but it would be changed to permanent periodic alimony at $500 per month. The chancellor relieved Jamie of making the house payments, but ordered that Jamie’s obligation for the alimony payment would be retroactive to January when Jamie stopped making the house payments. Additional facts will be related during our discussion of the issue.

ANALYSIS AND DISCUSSION OF THE ISSUE

¶ 9. As noted in an earlier portion of this opinion, Jamie argues that the chancellor erred in ordering him to pay periodic alimony to his former spouse. He seeks a reversal and rendering of the chancellor’s decision.

¶ 10. Our standard of review of a chancellor’s award of alimony is very clear. Voda v. Voda, 731 So.2d 1152, 1154(¶7) (Miss.1999). Since the decision to award alimony, as well as the amount, is left to the discretion of the chancellor, we will not reverse unless the chancellor manifestly erred or abused his discretion. Id.

¶ 11. Similarly, the standard is the same for periodic and rehabilitative alimony. Id. at 1155(¶ 8). Rehabilitative alimony is simply a variation, an additional tool to be used in the chancellor’s discretion. Id. This type of alimony provides for a party who is trying to become self-supporting and prevents that party from be-coining destitute while searching for a means of income. Id. It is for a fixed period, in contrast to periodic alimony which is for an indefinite period. Id.

¶ 12. Both Jan and Jamie properly advance that with any type alimony award, factors for the chancellor’s consideration are as follows: (1) the income and expenses of the parties, (2) the health and earning capacities of the parties, (3) the needs of each party, (4) the obligations and assets of each party, (5) the length of the marriage, (6) the presence or absence of minor children in the home, which may require that one or both of the parties either pay, or personally provide childcare, (7) the age of the parties, (8) the standard of living of the parties, both during the marriage and at the time of the support determination, (9) the tax consequences of the spousal support order, fault or misconduct of either party, (10) wasteful dissipation of assets by either party, or (12) any other factor deemed by the court to be just and equitable in connection with the setting of spousal support. Armstrong v. Armstrong, 618 So.2d 1278, 1280 (Miss.1993).

¶ 13. Jan contends that the Armstrong factors were set out and followed by the chancellor in his opinion rendered in the divorce proceeding, and that, since Jamie did not provide a transcript of that proceeding with the record of this appeal, we have nothing to review. We agree that the absence of the transcript of the divorce proceedings prevents any review of the chancellor’s initial decision to grant rehabilitative alimony. However, that is not the decision which is the subject of this appeal. When the chancellor, in the judgment of divorce, ordered Jamie to pay rehabilitative alimony for six months and neither he nor Jan appealed, that judgment became final. A judgment of divorce is not temporary. The review provision was contained in the judgment of divorce, not in a separate temporary order. The consequences flowing from the finality of that judgment are binding on both Jamie and Jan. In that judgment, the chancellor determined that Jan should receive rehabilitative, not permanent periodic alimony. We must assume that when the chancellor ordered rehabilitative alimony, as opposed to permanent alimony, his initial decision was correct.

¶ 14. Rehabilitative alimony, by its very nature, is intended to be short term and provide protection to the recipient until that person becomes self supporting. Rehabilitative alimony can never be permanent. Inasmuch as the chancellor had ordered rehabilitative alimony initially and that judgment had become final, any review six months later would necessarily be a review of what had been ordered. In this case, that was rehabilitative alimony.

¶ 15. Apparently, the review was commenced by a motion filed by Jan. A copy of that motion does not appear in the record before us, but, based on the discussions in the record, it does not appear that it was a motion for modification of the provisions of the judgment of divorce based on a material change in circumstances. Rather, it appears that it was simply a motion to initiate a review in compliance with the provision contained in the judgment of divorce.

¶ 16. Consequently, we hold that the chancellor erred in converting the rehabilitative alimony into permanent periodic alimony. In order for the chancellor to change the alimony from rehabilitative to permanent periodic, a motion for modification needed to have been filed. Thereafter, it would have been incumbent upon the chancellor to make written specific findings of fact as to the reasons that the rehabilitative alimony needed to be terminated and permanent periodic alimony substituted. That was not done here. Notwithstanding the fact that a motion for modification was not filed, we see nothing in the record which would support a finding that a material change in Jan’s circumstances had occurred between the date of the judgment of divorce, when the chancellor made the initial award of rehabilitative alimony, and the date of the review hearing when the chancellor converted the rehabilitative alimony to permanent periodic. She testified that her income remained the same. There was testimony that the marital home had gone into foreclosure, but apparently that was caused by Jamie’s failure to make the rehabilitative alimony payments as ordered.

¶ 17. Further, during the review hearing, the chancellor erred in focusing on Jamie’s financial condition. The focus should have been on Jan’s financial condition. The fact that Jamie’s financial condition was about the same as it had been earlier had no bearing on whether Jan had arrived at a point that she no longer needed financial help. Therefore, we reverse and remand for the chancellor to make a determination as to whether there is a need to extend the time period in which Jamie should make rehabilitative alimony payments to Jan, and if so, for how long. Additionally, if the chancellor determines that an extension of rehabilitative alimony is in order, he may revisit the amount which he deems sufficient to meet Jan’s temporary financial needs. Nothing in this opinion is intended to limit the parties’s rights on remand to file any pleadings which they may deem appropriate as a result of any material changes in circumstances which may have occurred following the entry of the judgment of divorce.

¶ 18. THE JUDGMENT OF THE CHANCERY COURT OF LINCOLN COUNTY IS REVERSED AND REMANDED FOR FURTHER PROCEEDINGS CONSISTENT WITH THIS OPINION. ALL COSTS OF THIS APPEAL ARE ASSESSED TO THE APPELLEE.

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


author: STUART, Justice.

text:
    Ex parte Kathy SAWYER. (In re Joyce Marsh, as guardian of Edna Moseley, an incapacitated person v. Kathy Sawyer et al.)
    1020897.
    Supreme Court of Alabama.
    Sept. 5, 2003.

      John D. Clements, Ricky J. McKinney, and Robert E. Battle of Burr & Forman, LLP, Birmingham; and Nancy Jones, State Department of Mental Health and Mental Retardation, for petitioner.

      Kenneth J. Mendelsohn and Thomas E. James of Jemison, Mendelsohn & James, P.C., Montgomery, for respondent, Joyce Marsh.
    LaVette Lyas-Brown and Alice Maples, asst, attys. gen., filed a brief entitled “Respondent Smith’s Return to Writ of Mandamus” on behalf of Rita Smith, a codefen-dent in the circuit court.
   STUART, Justice.

Kathy Sawyer, the commissioner of the Alabama Department of Mental Health and Mental Retardation, filed this petition for a writ of mandamus directing Judge Charles Price to grant her motion for a summary judgment, dismissing all state-law claims against her on the basis of State-agent immunity and the § 1983 claim against her on the basis of qualified immunity.

In September 1999, Edna Moseley, a resident at the Mary Starke Harper Geriatric Center at Bryce Hospital in Tuscaloosa, was injured when she was attacked by another patient. Joyce Marsh, in her capacity as Edna Moseley’s guardian, sued the Alabama Department of Mental Health and Mental Retardation (“DMHMR”) and Sawyer, commissioner of DMHMR, in her individual and official capacities, seeking damages, injunctive relief, and declaratory relief. Marsh alleged that Sawyer had negligently or intentionally violated the policies and procedures of DMHMR by refusing to provide Marsh with information regarding the assault; that Sawyer’s actions violated Moseley’s civil rights under 42 U.S.C. § 1983; that Sawyer had negligently failed to correct the pattern of abuse of patients by workers at Bryce Hospital; and that Sawyer had failed to perform numerous legal duties and ministerial acts to protect mental-health patients at Bryce Hospital. The trial court dismissed the claims against Sawyer in her official capacity, but it denied her motion for a summary judgment as to claims against her in her individual capacity. Sawyer filed this petition for a writ of mandamus directing Judge Price to dismiss the claims asserted against her in her individual capacity.

Standard of Review

“ ‘While the general rule is that the denial of a motion for summary judgment is not reviewable, the exception is that the denial of a motion grounded on a claim of immunity is reviewable by petition for writ of mandamus. Ex parte Purvis, 689 So.2d 794 (Ala.1996)....
“ ‘Summary judgment is appropriate only when “there is no genuine issue as to any material fact and ... the moving party is entitled to a judgment as a matter of law.” Rule 56(c)(3), Ala. R. Civ. P., Young v. La Quinta Inns, Inc., 682 So.2d 402 (Ala.1996). A court considering a motion for summary judgment will view the record in the light most favorable to the nonmoving party, Hurst v. Alabama Power Co., 675 So.2d 397 (Ala.1996), Fuqua v. Ingersoll-Rand Co., 591 So.2d 486 (Ala.1991); will accord the nonmoving party all reasonable favorable inferences from the evidence, Fuqua, supra, Aldridge v. Valley Steel Constr., Inc., 603 So.2d 981 (Ala.1992); and will resolve all reasonable doubts against the moving party, Hurst, supra, Ex parte Brislin, 719 So.2d 185 (Ala.1998).
“ ‘An appellate court reviewing a ruling on a motion for summary judgment will, de novo, apply these same standards applicable in the trial court. Fuqua, supra, Brislin, supra. Likewise, the appellate court will consider only that factual material available of record to the trial court for its consideration in deciding the motion. Dynasty Corp. v. Alpha Resins Corp., 577 So.2d 1278 (Ala.1991), Boland v. Fort Rucker Nat’l Bank, 599 So.2d 595 (Ala.1992), Rowe v. Isbell, 599 So.2d 35 (Ala.1992).’
“Ex parte Rizk, 791 So.2d 911, 912-13 (Ala.2000).”

Ex parte Turner, 840 So.2d 132, 135 (Ala.2002).

Analysis

Sawyer petitions this Court for a writ of mandamus directing the trial court to enter a summary judgment in her favor on the claims against her in her individual capacity, on the ground that she is protected against civil liability by the doctrines of State-agent immunity and qualified immunity.

In Ex parte Cranman, 792 So.2d 392 (Ala.2000), a plurality of this Court suggested a new test for determining when a State employee sued in his or her individual capacity is entitled to State-agent immunity:

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

792 So.2d at 405 (emphasis added). A majority of this Court adopted the Cranman test in Ex parte Butts, 775 So.2d 173 (Ala.2000).

Reviewing Sawyer’s claim of immunity by the standards set forth in Cranman, we conclude that Sawyer is protected under the doctrine of State-agent immunity because the actions for which Marsh is seeking to hold her liable occurred while she was acting as the commissioner of DMHMR. With regard to Marsh’s contention that Sawyer’s actions proximately caused Moseley’s injuries, the evidence before us indicates that Sawyer did not work at Bryce Hospital, that she was not responsible for providing Moseley’s family with information regarding the assault, and that she did not take any actions to delay the disclosure of the results of the investigation to the family. This evidence indicates that Sawyer’s involvement in the incident was in her capacity as the commissioner of DMHMR, supervising the DMHMR personnel involved in the incident and involved in the investigation of the incident (paragraph (2)(d) of the Cranman restatement).

In her answer, Marsh specifically states:

“[I]t is [Marsh’s] understanding that the thrust of the trial court’s order [denying Sawyer’s motion for a summary judgment on the claims asserted against her in her individual capacity] goes to Defendant Sawyer’s conduct in failing to provide results of the investigation to Ms. Moseley’s family and her conduct in delaying and attempting to thwart the civil litigation process. This was the understanding at the summary judgment hearing and [Marsh’s] counsel did not pursue the claim that Ms. Sawyer was personally responsible for the injuries.”

(Marsh’s answer at p. 5.) In support of her claim that Sawyer “delay[ed] and attempt[ed] to thwart the civil litigation process,” Marsh cites the failure of DMHMR’s counsel to respond to a letter requesting the investigation report on the Moseley assault prepared by DMHMR’s bureau of special investigation (“BSI”); the fact that Sawyer refused to disclose the BSI report after the trial court granted Marsh’s Rule 27, Ala. R. Civ. P., petition for discovery before an action is filed; and the fact that Sawyer never informed the court that it was the policy of DMHMR to disclose the results of the investigation to the victim’s family. Marsh concludes that those actions indicate that Sawyer “acted in concert [with DMHMR] to cover up a crime and to thwart and delay any trial proceedings in an attempt to deny an adequate remedy at law.” (Marsh’s answer at p. 8.)

At her deposition taken on August 20, 2002, Sawyer testified that she was unaware that Marsh’s counsel had sent a letter to counsel for DMHMR requesting the BSI report on the Moseley assault. Marsh specifically asked Sawyer about her position on the release of the BSI report and the position she had taken in previous proceedings in this case concerning DMHMR’s refusal to release the BSI report; Marsh asked: “Were any of your decisions based upon trying to delay this action for more than two years so that the statute of limitations would run?” Sawyer unequivocally stated “No.” Marsh does not present any evidence indicating that Sawyer’s actions in the events surrounding the Moseley assault were committed “willfully, maliciously, fraudulently, in bad faith, beyond ... her authority, or under a mistaken interpretation of the law.” 792 So.2d at 405. She offers only speculation. Additionally, Marsh does not argue or present any evidence indicating that obtaining the information contained in the report by other means would create an undue hardship.

The evidence regarding Sawyer’s involvement in DMHMR’s alleged refusal to produce the BSI report indicates that Sawyer’s decisions regarding the Moseley incident were made while she was “discharging duties imposed on” DMHMR and while she was acting in her capacity as commissioner of DMHMR (paragraph (3) of Cranman). Paragraph (3) provides State-agent immunity to a State employee when the employee is “discharging duties imposed on a department or agency by statute ... insofar as the statute ... prescribes the manner for performing the duties and the State agent performs the duties in that manner.” Cranman, 792 So.2d at 405.

This Court in Ex parte Alabama Department of Mental Health & Mental Retardation, 840 So.2d 863 (Ala.2002), held that BSI investigation reports are protected from disclosure by § 12-21-3.1, Ala. Code 1975. Specifically, we stated in that case that “BSI investigative reports are law enforcement investigative reports’ within the meaning of § 12-21-3.1, and are therefore entitled to protection from civil subpoena, except upon a showing that the information contained in the report cannot be obtained from other sources without undue hardship.” 840 So.2d at 868. We further stated: “A showing of undue hardship requires more than a mere conclusory statement by the party seeking the information that he or she could not obtain the equivalent of the information in the reports sought by discovery without undue hardship.” 840 So.2d at 868. Indeed, the party must show that he has tried to obtain the information by other means but that the BSI report is the only way to obtain the information without undue hardship. Once a party has made that showing, the party may request an in camera hearing at which the trial court can inspect the report to determine the relevance of the information in the report and to determine “whether the information is such that it can be obtained from another source without undue hardship.” 840 So.2d at 869. See also Ex parte Alabama Dep’t of Mental Health & Mental Retardation, 840 So.2d 876 (Ala.2002).

At the time Marsh sent the letter to DMHMR’s counsel requesting the information, Marsh had not shown that she could not otherwise obtain the information without undue hardship. Additionally, at the hearing at which Sawyer’s first deposition was ordered, the trial court stated that once Marsh sued DMHMR and Sawyer the information could be produced by discovery; therefore, it appears that Marsh had not shown “undue hardship” at that time. By refusing to disclose the BSI report, Sawyer was discharging her duties as commissioner subject to and in the manner prescribed by § 12-21-3.1, Ala. Code 1975.

To the extent that Marsh argues that Sawyer allegedly failed to establish policies that would have prevented the assault from occurring, the evidence indicates that there were policies in effect and in establishing those policies Sawyer had acted squarely within her authority as the commissioner. Thus, she is protected from civil liability in her personal capacity under paragraph (1) of Cranman. The commissioner is “authorized and directed to establish and promulgate reasonable rules, policies, orders and regulations providing details of carrying out [DMHMR’s] duties and responsibilities.” § 22-50-11(8), Ala. Code 1975. Additionally, the commissioner is “authorized to establish and promulgate reasonable minimum standards for the ... operation of facilities, including reasonable minimum standards for the admission, diagnosis, care, treatment, [and] transfer of patients....” § 22-50-11(11), Ala.Code 1975. Sawyer’s testimony at her deposition indicates that all her decisions were made while she was formulating DMHMR policies in her official capacity as commissioner, which falls within paragraph (1) of Cranman.

Sawyer’s deposition describes the statutory duties she was discharging and demonstrates that she was discharging these duties in her capacity as commissioner. Sawyer’s deposition also establishes that she was acting in good faith, without malice, and under no mistake of law. No evidence before us indicates otherwise. Sawyer has established that she is entitled to State-agent immunity as to the state-law causes of action.

Viewing the facts in a light most favorable to the nonmovant Marsh, as we must, see Ex parte Rizk, 791 So.2d 911 (Ala.2000), we conclude that there is insufficient evidence indicating that Sawyer acted “willfully, maliciously, fraudulently, [or] in bad faith” in discharging her duties. Sawyer, as the commissioner of DMHMR, is protected by State-agent immunity in the discharge of the duty “to provide mental health services and mental retardation services for the people of Alabama.” § 22-50-9, Ala.Code 1975. The trial court erred in denying Sawyer’s motion for a summary judgment on the state-law claims against her in her individual capacity.

Additionally, Sawyer asks this Court to direct the trial court to enter a summary judgment in her favor with regard to the § 1983 claim on the ground that her actions were protected by qualified immunity. Marsh asserts that the BSI report regarding the incident was not being released when it was initially requested and Sawyer’s refusal to discuss the matter during her deposition on December 12, 2001, violated her Sixth Amendment right to a trial by jury.

“In deciding whether a public official ... is entitled to qualified immunity in a § 1983 action, this Court employs the following two-step analysis:
“ ‘ “1) The defendant public official must first prove that ‘he was acting within the scope of his discretionary authority when the allegedly wrongful acts occurred.’
“ ‘ “2) Once the defendant public official satisfies his burden of moving forward with the evidence, the burden shifts to the plaintiff to show lack of good faith on the defendant’s part. This burden is met by proof demonstrating that the defendant public official’s actions ‘violated clearly established constitutional law.’ ” ’
“[Roden v. Wright,] 646 So.2d [605] at 610 [(Ala.1994)], quoting Rich v. Dollar, 841 F.2d 1558, 1563-64 (11th Cir.1988). (Citations omitted.) In Point Properties[, Inc.] v. Anderson, [584 So.2d 1332] at 1338-39 [(Ala.1991)], this Court, quoting Stewart v. Baldwin County Board of Education, 908 F.2d 1499, 1503 (11th Cir.1990), explained that ‘ “the relevant question on a motion for summary judgment based on a defense of qualified immunity is whether a reasonable official could have believed his or her actions were lawful in light of clearly established law and the information possessed by the official at the time the conduct occurred.” ’ This Court went on to note that ‘ “the qualified immunity defense provides ample protection to all except the plainly incompetent or those who knowingly violate the law.” ’ 584 So.2d at 1339, quoting Stewart, supra.

Couch v. City of Sheffield, 708 So.2d 144, 155 (Ala.1998). See also Smith v. Siegelman, 322 F.3d 1290 (11th Cir.2003).

Viewing the evidence in the light most favorable to the nonmovant Marsh, as we are required to do under our summary-judgment standard of review, we conclude that Sawyer was engaged in a discretionary function. First, Sawyer was not responsible for providing the information to Marsh about the incident involving Moseley. Moreover, when Sawyer refused to answer Marsh’s questions during her deposition on December 12, 2001, she could have reasonably believed she was acting lawfully. It is clear from the transcript of the hearing at which the deposition was ordered, as well as from the statements of Sawyer’s counsel at the deposition, that Sawyer and DMHMR were confused as to the purpose and the subject matter of the deposition. The trial court’s rulings at the hearing were at best ambiguous. The trial court ordered Marsh to convert her Rule 27, Ala. R. Civ. P., petition to a complaint against DMHMR and ordered Sawyer to permit the requested discovery of the incident. The trial court also granted Marsh’s Rule 27 petition. At the time of the deposition, a written order had not been issued. When the trial court did issue its written order on January 23, 2002, Sawyer and DMHMR released the BSI report. Nothing before us indicates that Sawyer did not believe her actions at the time she was deposed were lawful in light of the law and the information she possessed at that time. Indeed, nothing before us establishes that at that time she was “plainly incompetent” or that she “knowingly violate[d] the law.” Couch, 708 So.2d at 155.

Our observation that Sawyer believed she was acting within the parameters of the law is supported by holdings of this Court issued after DMHMR’s initial refusal to release the BSI report, which establish that BSI reports are protected from civil subpoena by § 12-21-3.1, Ala.Code 1975. See Ex parte Alabama Dep’t of Mental Health & Mental Retardation, 840 So.2d 863, and Ex parte Alabama Dep’t of Mental Health & Mental Retardation, 840 So.2d 876. Marsh’s version of Sawyer’s actions, standing alone, is not sufficient to create a fact question that takes Sawyer out from under the protection of the qualified-immunity doctrine.

Conclusion

Sawyer has shown that she has a clear legal right to the relief sought. The trial court is directed to enter a summary judgment in favor of Sawyer on the claims against her in her individual capacity.

PETITION GRANTED; WRIT ISSUED.

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

      . Section 12-21-3.1, Ala.Code 1975, provides that law-enforcement investigative reports are protected from civil subpoena unless the court finds upon proof of substantial evidence that the party seeking the report will suffer undue hardship and that the records are unavailable from other reasonable sources.

      . It appears that general information about such incidents is provided to the victim's family or guardian by personnel at the facility where the incident occurred.


author: HOUSTON, Justice.

text:
    Michael Raymond WATTS v. SENTRY INSURANCE, a Mutual Company.
    1020995.
    Supreme Court of Alabama.
    Sept. 5, 2003.

      Michael K. Beard, Thomas M. Powell, and Alan B. Lasseter of Marsh, Rickard & Bryan, P.C., Birmingham, for appellant.
    John W. Clark, Jr., and Lucy W. Jordan of Clark & Scott, P.C., Birmingham, for appellee.
   HOUSTON, Justice.

This is an appeal from a summary judgment entered in favor of Sentry Insurance, a Mutual Company (“Sentry”), in an action brought by Michael Raymond Watts against Sentry and numerous other defendants. On July 15, 2003, the trial court made its summary judgment for Sentry final pursuant to Rule 54(b), Ala. R. Civ. P. Watts appealed. We reverse and remand.

Watts was driving a motor vehicle owned by his employer, Johnson Controls, Inc., when the vehicle was struck by a utility trailer that had come loose from a vehicle driven by William J. Rupe and owned by Rupe’s employer, Dwight’s Lawn & Garden Equipment, Inc., d/b/a A & D Distributors; the utility trailer was owned by Dwight’s Lawn & Garden Equipment, Inc. The accident occurred while Watts was acting within the line and scope of his employment. Watts fractured his right tibia and injured his left knee, shoulders, and back in the accident. Watts received from his employer, Johnson Controls, workers’ compensation benefits and expenses for medical and surgical treatment pursuant to Ala.Code 1975, § 25-5-77.

Watts sued Rupe and others, including Sentry (but not Johnson Controls), to recover compensatory damages and punitive damages as a result of the accident. In count III of the complaint, which is the only count relevant in this appeal, Watts alleged that he was insured by, or was the beneficiary of, policies of motor-vehicle insurance issued by Sentry, pursuant to which Sentry was to provide Watts protection against bodily injury caused by an uninsured/underinsured motorist in consideration of a premium paid to Sentry by Watts’s employer, Johnson Controls. Watts alleged that the injuries and damage he suffered were proximately caused by the negligent or wanton conduct of Rupe, an underinsured motorist, and that Sentry had failed to pay Watts benefits under the policy.

Sentry moved for a summary judgment, alleging that Watts was an employee of Johnson Controls; that Watts was operating a vehicle owned by Johnson Controls within the line and scope of his employment at the time of the accident; that Watts was injured as a result of that accident; that Watts and Johnson Controls were subject to the provisions of the Alabama Workers’ Compensation Act; that Watts had made a claim for and received workers’ compensation benefits from Johnson Controls; that Sentry is the underin-sured-motorist carrier for Johnson Controls, but not its workers’ compensation carrier; and that Watts sued Sentry (Johnson Controls’ underinsured-motorist carrier) seeking underinsured-motorist benefits after he had filed a workers’ compensation claim to recover benefits from Johnson Controls’ workers’ compensation carrier.

Section 25-5-53, Ala. Code 1975, provides:

“[I]mmunity from civil liability [for injury to or death of the employer’s employee] ... shall ... extend to the workers’ compensation insurance carrier of the employer; to a person, firm, association, trust, fund, or corporation responsible for servicing and payment of workers’ compensation claims for the employer; to an officer, director, agent, or employee of the carrier, person, firm, association, trust, fund, or corporation; to a labor union, an official, or representative thereof; to a governmental agency providing occupational safety and health services, or an employee of the agency; and to an officer, director, agent, or employee of the same employer, or his or her personal representative.”

The issue this case presents is whether an employee who is receiving workers’ compensation benefits from his employer for injuries he sustained in a motor-vehicle accident that occurred while the employee was driving a vehicle belonging to the employer can recover underinsured-motorist benefits from the employer’s automobile liability insurer (which is not the employer’s workers’ compensation insurer), if the employee’s injuries were proximately caused by the negligence or wantonness of an underinsured driver, who was not a co-employee?

The answer to that question is yes, subject to the employer’s right to reimbursement for the compensation paid on account of the employee’s injury to the extent of the employee’s recovery of damages against the third-party tortfeasor. Ala. Code 1975, § 32-7-23 and § 25-5-11.

The Alabama Workers’ Compensation Act, Ala.Code 1975, § 25-5-1 et seq., specifically provides that an injured employee who is receiving workers’ compensation benefits can file an action against a third party (except for certain third parties not relevant here), whose negligence or wantonness proximately caused the injuries for which the employee is receiving workers’ compensation benefits. § 25-5-11. Rupe was a third party against whom Watts could bring an action pursuant to § 25-5-11. Sentry was contractually obligated to pay Watts, its own insured, those damages, if any, over and above the damages Rupe’s own liability insurance carrier would pay for Rupe’s alleged negligence or wantonness in causing Watts’s injuries. Until a trier of the facts ascertains Watts’s damages, if any, whether Rupe was in fact an underinsured motorist is unknown. That, however, does not entitle Sentry to a summary judgment. The mere fact that the trier of fact may find against a plaintiff on the issues of liability or damages in an action does not entitle the defendant to a summary judgment. Sentry is not being sued because of negligence or wantonness on the part of Watts’s employer or any entity protected from such an action by § 25-5-53. Nothing in the Alabama Code or Alabama caselaw shelters Sentry from its liability for underinsured-motorist coverage under the facts of this case.

There is a tension among the Justices on this Court as to whether “the damages which the injured person is legally entitled to recover” (Ala.Code 1975, § 32-7-23(b)(4)) depend entirely on the merits of the injured person’s claim against the tort-feasor under the laws of the State. However, without dispute, Watts was legally entitled to recover damages from Rupe in this case if the trier of fact determines that Watts was injured as a proximate result of Rupe’s negligence or wantonness. Therefore, we do not test that tension in resolving the issue before us.

We reverse the trial court’s judgment and remand the case for further proceedings consistent with this opinion.

REVERSED AND REMANDED.

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

      . See Ex parte Carlton, 867 So.2d 332 (Ala.2003); Hogan v. State Farm Mut. Auto. Ins. Co., 730 So.2d 1157 (Ala.1998); State Farm Mut. Auto. Ins. Co. v. Jeffers, 686 So.2d 248 (Ala.1996); State Farm Auto. Ins. Co. v. Baldwin, 470 So.2d 1230 (Ala.1985).


author: WOODALL, Justice. LYONS, Justice

text:
    John A. MOORE et al. v. JOHN HANCOCK LIFE INSURANCE COMPANY and Susan Moore Davis.
    1020405.
    Supreme Court of Alabama.
    Sept. 5, 2003.

      J. Gusty Yearout and Jason L. Yearout of Yearout & Traylor, P.C., Birmingham, for appellants.

      Howard K. Glick and J. Clinton Pittman of Spain & Gillon, LLC, Birmingham, for appellee John Hancock Life Insurance Company.
   WOODALL, Justice.

John A. Moore, J. Ryan Moore, and Barbara Ann Moore appeal from a summary judgment for John Hancock Life Insurance Company (“John Hancock”), in their action against John Hancock and Susan Moore Davis. We vacate the summary judgment and dismiss the appeal.

I.

John A. Moore and Susan L. Moore married in 1972. They had two children, J. Ryan Moore and Barbara Ann Moore. On April 27, 1999, John and Susan were divorced. Susan has remarried and is now known as Susan Moore Davis.

On April 26, 1984, John created the John A. Moore Family Trust (“the Trust”). The Trust designated Susan as its trustee. By its terms, the Trust was created for the benefit of Susan, as John’s wife, and Ryan and Barbara Ann, as John’s children. Susan, as the trustee, was given broad rights with respect to any insurance policies forming any part of the trust estate:

“The Trustee shall be vested with all right, title and interest in and to any policies of insurance forming any part of the trust estate, and is authorized to exercise all options, benefits, rights, and privileges under such policies, including the rights to collect the cash surrender value, to borrow on such policies, to receive any dividends on such policies, distributions of surplus, or other refunds of a similar nature, to collect payments upon the face amount of such policies, payments by way of endowment, and any other proceeds of such policies, and the insurance companies which have issued such policies are empoiuered to deal with the Trustee as the absolute assignee and owner thereof. The Grant- or hereby relinquishes all rights and powers in such policies which are not assignable and will, at the request of the Trustee, execute all other instruments reasonably required to effectuate this relinquishment.”

(Emphasis added.) Also, the Trust included a provision addressing the possibility that John and Susan might divorce:

“Any provision in this entire Trust Agreement to the contrary notwithstanding, the provisions made herein for the benefit of Grantor’s wife are being made on the assumption that she and Grantor shall remain husband and wife at all times prior to Grantor’s death. In the event Grantor and his wife shall be divorced at any time prior to Grantor’s death, then on the date that such divorce shall become final, all rights and benefits of Grantor’s wife under the terms of this entire Agreement, both prior and subsequent to Grantor’s death, shall cease, terminate and become null and void, including, but not limited to, any special power of appointment which may have been granted to Grantor’s wife, exercisable by specific provision in the Will of Grantor’s wife, to alter the disposition made by Grantor under the terms hereof of the trust assets among Grantor’s lineal descendants. In the event that Grantor and his wife shall be divorced at any time piior to Gi'antor’s death, then upon the date that such divorce decree becomes final, Grantor’s ivife, if then serving as a Trustee hereunder, shall no longer remain as Trustee, but, on the contrary, shall be required to resign forthwith and to transfer, deliver and pay over all assets included in the trust to the successor Trustee named herein, and the administration of this trust and disposition of assets shall thereafter be handled in the same manner as herein directed following the death of Grantor’s wife.”

(Emphasis added.)

In 1987, John Hancock issued a policy of life insurance, designating John as the insured. The policy was issued to Susan, as trustee of the Trust, and, in that same capacity, Susan was designated the owner and sole beneficiary of the policy. The policy provided that “ ‘you’ and ‘your’ refer only to the Owner of this policy.” Regarding the rights of the owner of the policy, including the right to change the owner or beneficiary, the policy provided, in pertinent part:

“The Owner, the Contingent Owner (if any) and the Beneficiary will be as shown in the application unless you change them or they are changed by the terms of this provision.
“You shall have the sole and absolute power to exercise all rights and privileges without the consent of any other person unless you provide otherwise by written notice....
“While the Insured, is alive, you may change the Owner, Contingent Owner and Beneficiary by written notice. A change will take effect when the notice is signed if we acknowledge receipt on the notice. The change will take effect whether or not you or the insured is alive. A change shall be subject to the rights of any assignee of record with us and subject to any payment made or other action taken by us before we acknowledge receipt.”

The owner’s address on the application for the John Hancock policy was the mailing address of International Oil Company, Inc. (“International Oil”), where John was then employed. International Oil paid the premiums on the John Hancock policy.

As International Oil paid the premiums, the policy began to accumulate a cash value, against which the owner was entitled to obtain policy loans. Beginning in 1990, John, by his own admission, obtained loan proceeds from John Hancock by signing Susan’s name to the necessary loan-request forms. John admittedly used the loan proceeds to pay his personal financial obligations, after intercepting the loan checks, which were payable to Susan, as trustee of the Trust.

As previously mentioned, John and Susan were divorced in April 1999. After the divorce, John continued to obtain loan proceeds from the policy for his personal use by signing Susan’s name, as trustee, to the necessary loan-request forms.

In March 1999, International Oil stopped paying the premiums on the John Hancock policy. As a result, the policy’s cash value began to diminish by virtue of the fact that the cash was being used to pay the premiums. John “decided in early 2000 to cash surrender the John Hancock life insurance policy.” Appellants’ brief, at 5. However, under the terms of both the Trust and the John Hancock policy, only Susan, acting in her capacities as trustee of the Trust and as owner of the policy, was entitled to surrender the policy for cash. Therefore, according to John, he “intended to obtain the cash surrender form from John Hancock, discuss the cash surrender with [Susan], and determine the best way to proceed with the cash surrender of the policy.” Id. Barbara Ann and Ryan were aware of John’s plans to obtain the cash-surrender proceeds and to use them to pay his personal financial obligations and living expenses. Neither of the adult children objected to John’s plans.

John contacted a John Hancock agent to request the necessary cash-surrender form. John Hancock mailed the form to Susan at International Oil’s address. International Oil, where John was no longer employed, forwarded the form to Susan, who telephoned John to discuss the matter.

John and John Hancock agree that Susan initially agreed to obtain the cash-surrender benefits for John, as both he and their children had requested. However, they also agree that Susan changed her mind, deciding, instead, to surrender the policy for cash for her personal benefit.

On February 14, 2000, Susan, as owner of the policy, signed the cash-surrender form, requesting that John Hancock make its check payable to “Policy/Contract Owner” and that it mail the check to her at a new address. John Hancock received Susan’s cash-surrender form on February 16, 2000. On February 18, John Hancock issued its check for the cash-surrender value of the policy. The check was payable to “Susan L. Moore, Trustee,” and was mailed to Susan at the new address. Before that payment, John Hancock had not received any request from Susan for a change of the ownership of the policy.

John had attempted to prevent Susan’s cash surrender of the policy. On February 15, 2000, a former John Hancock agent, at John’s request, had an employee telephone John Hancock to notify it that there was a “dispute” over the ownership of the policy. On February 16, 2000, the former agent faxed copies of the Trust and the divorce judgment to John Hancock.

II.

On December 6, 2000, John, Ryan, and Barbara Ann filed a complaint against John Hancock and Susan, in which they “sought compensatory and punitive damages against John Hancock and [Susan] for the wrongful cash surrender of [the] life insurance policy insuring the life of John A. Moore and held in trust for J. Ryan Moore and Barbara Ann Moore.” Appellants’ brief, at 1. As later amended, the complaint stated claims alleging negligence, wantonness, conversion, fraudulent misrepresentation, breach of contract, bad faith, fraudulent suppression, and conspiracy.

On March 16, 2001, John Hancock answered the complaint, denying its material allegations and asserting various affirmative defenses. On June 7, 2002, John Hancock filed a motion for a summary judgment, which, after oral arguments and the submission of briefs, the trial court granted on August 15, 2002. In its order granting John Hancock’s motion for a summary judgment, the trial court stated, in part, its conclusion that the “[p]laintiffs lack standing to bring this action against John Hancock.”

On September 13, 2002, John, Ryan, and Barbara Ann filed a motion to alter, amend, or vacate the summary judgment in favor of John Hancock. The trial court denied that motion on October 23, 2002. The trial court later made the summary judgment for John Hancock final, pursuant to Ala. R. Civ. P. 54(b), and John, Ryan, and Barbara Ann timely appealed to this Court.

III.

We review de novo the trial court’s summary judgment for John Hancock.

“We review this case de novo, applying the oft-stated principles governing appellate review of a trial court’s grant or denial of a summary-judgment motion:
“ We apply the same standard of review the trial court used in determining whether the evidence presented to the trial court created a genuine issue of material fact. Once a party moving for a summary judgment establishes that no genuine issue of material fact exists, the burden shifts to the nonmovant to present substantial evidence creating a genuine issue of material fact. “Substantial evidence” is “evidence of such weight and quality that fair-minded persons in the exercise of impartial judgment can reasonably infer the existence of the fact sought to be proved.” In reviewing a summary judgment, we view the evidence in the light most favorable to the nonmovant and entertain such reasonable inferences as the jury would have been free to draw.’
“Nationwide Prop. & Cas. Ins. Co. v. DPF Architects, P.C., 792 So.2d 369, 372 (Ala.2001) (citations omitted).”

American Liberty Ins. Co. v. AmSouth Bank, 825 So.2d 786, 790 (Ala.2002).

IV.

It is clear that John’s appeal must be dismissed. John conceded in the trial court that he has no standing to sue John Hancock. “When a party without standing purports to commence an action, the trial court acquires no subject-matter jurisdiction.” State v. Property at 2018 Rainbow Drive, 740 So.2d 1025, 1028 (Ala.1999). The absence of subject-matter jurisdiction renders void any judgment entered in the action. Sumlin Constr. Co., L.L.C. v. Taylor, 850 So.2d 303 (Ala.2002); Sustainable Forests, L.L.C. v. Alabama Power Co., 805 So.2d 681 (Ala.2001); Stamps v. Jefferson County Bd. of Educ., 642 So.2d 941 (Ala.1994); Luken v. Banc-Boston Mortgage Corp., 580 So.2d 578 (Ala.1991). A void judgment will not support an appeal. Baldwin County v. Bay Minette, 854 So.2d 42 (Ala.2003); Kid’s Care, Inc. v. Alabama Dep’t of Human Resources, 843 So.2d 164 (Ala.2002). Therefore, the summary judgment for John Hancock and against John is vacated, and the appeal is dismissed as to John.

V.

The trial court concluded that Ryan and Barbara Ann, like John, “lack standing to bring this action against John Hancock.” If this Court agrees with that conclusion, the summary judgment for John Hancock must be vacated and the appeal must be dismissed as to Ryan and Barbara Ann, too. We agree.

The requirement that a plaintiff have standing is fundamental.

“Standing, like jurisdiction, is necessary for any valid legal action. To say that a person has standing is to say that that person is a proper party to bring the action. To be a proper party, the person must have a real, tangible legal interest in the subject matter of the lawsuit. Eagerton v. Williams, 433 So.2d 436 (Ala.1983); Brown Mech. Contractors, Inc. v. Centennial Ins. Co., 431 So.2d 932 (Ala.1983); Bagley v. City of Mobile, 352 So.2d 1115 (Ala.1977); Boger v. Jones Cotton Co., 234 Ala. 103, 173 So. 495 (1937); Stewart v. White, 128 Ala. 202, 30 So. 526 (1901).”

Doremus v. Business Council of Alabama Workers’ Compensation Self-Insurers Fund, 686 So.2d 252, 253 (Ala.1996)(em-phasis added). Specifically, “[standing ... turns on ‘whether the party has been injured in fact and whether the injury is to a legally protected right.’ ” State v. Property at 2018 Rainbow Drive, 740 So.2d at 1027 (quoting Romer v. Board of County Comm’rs of the County of Pueblo, 956 P.2d 566, 581 (Colo.1998)(Kourlis, J., dissenting)). Thus, the dispositive issue in this case is whether John Hancock’s payment of the cash-surrender value to Susan, as trustee, caused Ryan and Barbara Ann to suffer an injury to a legally protected right.

Ryan and Barbara Ann contend that they have standing “[a]s owners and beneficiaries of the life insurance policy.” Appellants’ brief, at 18. This contention is premised upon their assumption that, “as of April 27, 1999, the date of [their parents’] divorce, [Susan] was no longer the Trustee of the Trust, and was no longer the ‘owner’ of the subject life insurance policy.” Id. at 15. However, their assumption is fatally flawed in several respects.

The argument that Susan “was no longer the Trustee” is belied by the undisputed facts. Ryan and Barbara Ann contend that the divorce resulted in Susan’s “automatic removal as Trustee.” Id. at 17. However, the Trust does not provide for any such “automatic removal.” Instead, the Trust “required [Susan] to resign.” As John Hancock correctly argues, Susan “was never asked to and never resigned as Trustee.” John Hancock’s brief, at 27. Thus, when John Hancock paid the cash-surrender value to Susan, she was still the trustee.

Ryan and Barbara Ann provide no factual support for their contention that, after the divorce, Susan “was no longer the ‘owner’ of the subject life insurance policy.” Also, there is no evidence supporting their claim of standing “[a]s owners ... of the ... policy.” Indeed, it is undisputed that Susan, as the trustee, was the only owner of the policy from its issuance until its surrender. The policy unambiguously provided that only Susan, as the owner, could “change the Owner ... by written notice.” It is undisputed that, before the cash-surrender payment, John Hancock had not received any request from Susan for a change of the ownership of the policy.

To the extent Ryan and Barbara Ann claim to have standing as “beneficiaries of the life insurance policy,” they ignore the undisputed fact that Susan, as trustee, was the only beneficiary of the policy. While the policy provided that Susan, as the owner, could “change the ... Beneficiary by written notice,” it is undisputed that no such change was made.

Ryan and Barbara Ann make no other argument in support of their contention that they have standing to maintain this action against John Hancock. Therefore, we must conclude that they have failed to demonstrate any error in the trial court’s conclusion that they lack such standing.

VI.

Our resolution of the standing issues makes it unnecessary for us to consider the other issues presented by John, Ryan, and Barbara Ann. For the foregoing reasons, the summary judgment in favor of John Hancock and against John, Ryan, and Barbara Ann is vacated, and this appeal is dismissed.

JUDGMENT VACATED; APPEAL DISMISSED.

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

LYONS, J., concurs specially.

LYONS, Justice

(concurring specially).

I concur as to Part IV of the main opinion, dealing with John’s standing, and with Part V, dealing with the standing of Ryan and Barbara Ann, the other two of the three beneficiaries of the John Hancock life insurance policy. I agree with the main opinion’s conclusion that John Hancock properly paid the proceeds to Susan, as trustee of the John A. Moore Family Trust. I further agree with the conclusion in the main opinion that the divorce did not automatically terminate Susan’s status as trustee.

I write specially to point out that the trust agreement provides for the automatic termination of Susan’s beneficial interest in the event of divorce. The sole issue before us in this appeal, however, is the propriety of the summary judgment in favor of John Hancock. We do not have before us any issues having to do with the standing of Ryan and Barbara Ann to challenge the propriety of Susan’s activities upon receipt of the proceeds paid to her in her capacity as trustee.

      . We have not overlooked their argument that, "[e]ven if this Court finds that [they] lack standing, at a minimum, it should allow a substitution of the [Trust] pursuant to Alabama Rule of Civil Procedure 17(a).” Appellants' brief, at 18. However, see State v. Property at 2018 Rainbow Drive, 740 So.2d at 1027 ("There are fundamental differences between the principles of ‘real party in interest' and 'standing.' ”).