author: KING, P.J.,

text:
    Derrick Ledell LEE, Appellant, v. STATE of Mississippi, Appellee.
    No. 1998-KA-01403-COA.
    Court of Appeals of Mississippi.
    Feb. 18, 2003.

      Belinda J. Stevens, Jackson, attorney for appellant.
    Office of the Attorney General, by Billy L. Gore, attorney for appellee.
    Before KING, P.J., BRIDGES and LEE, JJ.
   KING, P.J.,

for the court.

¶ 1. Derrick Ledell Lee was convicted of murder and sentenced to life in prison. He has appealed that conviction, raising as issues (1) the weight of the evidence, (2) improper closing argument by the prosecution, (3) improper and prejudicial testimony of a prior charge, and (4) the cumulative effect of trial errors. This Court finds no error and affirms.

I.

Facts

¶ 2. On June 15, 1996, Lee shot Willie James Clark. Four months later, Clark died from bronchial pneumonia related to his injuries. Four years prior to the 1996 incident, Lee suffered from mental problems in which he “heard voices directing him to do various things.” One of the. voices he claimed to have heard was that of Clark. After being jailed for the shooting, Lee was examined by Dr. Donald Guild, a licensed psychiatrist. Testifying for the defense, Dr. Guild diagnosed Lee with paranoid schizophrenia and concluded that Lee was not responsible for his actions at the time of the shooting and recommended treatment at the state mental hospital for Lee. The State’s psychiatrist concluded that Lee was severely psychotic, heard voices, but knew it was wrong to shoot Clark and was therefore competent to stand trial.

II.

Resolution of the Issues

1. Weight of the evidence

¶ 3. Lee argues that the evidence was insufficient to establish that he knew right from wrong and therefore was insufficient to convict him of murder. Lee argues that the State was not able to produce any witness testimony as to his ability to distinguish right from wrong at the time of the shooting. He maintains that the findings of the State’s psychiatrist were based upon an examination more than a year after the shooting and after Lee had undergone treatment for seven months and been treated with several different medications.

¶ 4. In advance of trial, Lee filed a motion notifying the prosecution of his intent to plead not guilty by reason of insanity. Such a defense requires a showing that at the time of the crime the defendant was “laboring under such a defect of reason from disease of the mind as (1) not to know the nature and quality of the act he was doing, or (2) if he did know it that he did not know that what he was doing was wrong.” Stewart v. State, 790 So.2d 838(¶ 7) (Miss.Ct.App.2000). A defendant is presumed sane and therefore has the burden of producing a reasonable doubt as to his sanity at the time of the crime. White v. State, 542 So.2d 250, 252 (Miss.1989). After this threshold is met, the burden shifts to the State which then must offer evidence showing defendant’s sanity beyond a reasonable doubt. Id. “Sanity is an issue left to the determination of the jury and must be upheld by this Court unless the jury’s determination is against the overwhelming weight of the evidence.” Id.

¶ 5. Dr. Guild, who is both a psychiatrist and a lawyer, was presented by Lee to testify on his behalf as to the state of his sanity at the time of the crime. After interviewing Lee once for an hour, about seven months following the shooting, Dr. Guild concluded that while Lee knew the consequences of using a gun at that time, he suffered from severe delusional beliefs which prohibited him from knowing it was wrong to do so. He concluded that Lee was “so psychotic, so crazy, so disorganized that he would not have been able to perceive right from wrong.” Following his interview with Lee, Dr. Guild recommended that Lee be treated at the state’s mental hospital.

¶ 6. At the state’s mental hospital and more than a year after the shooting, Dr. Reb MeMichael first examined Lee. He treated Lee for a period in excess of seven months, meeting with him on thirty-one occasions over that period. Dr. MeMicha-el diagnosed Lee with severe mental illness and malingering or exaggerating symptoms of psychosis because of his legal situation. In Dr. McMichael’s opinion, Lee, despite his mental frailties, knew that shooting Clark was wrong.

¶ 7. When confronted with a challenge of a jury verdict based on the weight of the evidence, this Court is bound by the well-established standard of accepting as true that evidence which supports the verdict and reversing only those cases in which we are persuaded that an abuse of discretion by the circuit court in refusing to grant a new trial has occurred. Reeves v. State, 825 So.2d 77(¶ 7) (Miss.Ct.App. 2002). On examination of the record on appeal, we give the State the benefit of all favorable inferences that may reasonably be concluded from such evidence. Id. It is only in cases where we can say that the verdict is so contrary to the evidence produced at trial that permitting the judgment to stand would be considered an “unconscionable injustice” will this Court disturb it on appeal. Id. Given this standard by which we examine this issue, we cannot say that allowing the judgment to stand would create an unconscionable injustice.

¶ 8. The jury had before it conflicting evidence of Lee’s sanity at the time he shot Clark. The weight of the evidence supporting the jury’s verdict was not such that a reasonable jury could have only found Lee insane and therefore innocent by reason of insanity. Considering the evidence in a light most favorable to the jury’s verdict, we find that sufficient evidence of Lee’s mental disposition to know right from wrong was produced by the State. This issue lacks merit.

2. Improper remarks in closing arguments

¶ 9. The State referred to Lee as a “murderer” in closing remarks. Lee argues that the jury was biased by the comments and suffered prejudice resulting in the violation of his rights to a fair trial.

¶ 10. The record shows that the prosecutor thrice referred to Lee as a murderer, saying:

There sits a mean man! There sits a man that kills because he was upset about the man embarrassing him, and there sits a murderer! That’s what’s wrong! There’s not [sic] secret or anything else about this. There sits a murderer. It’s murder and nothing else. Pure and simple.

And:

But there’s no evidence, and, in fact, it is clear that no voices that he heard told him to kill anybody, so he can’t blame these voices that make him paranoid for going out and killing somebody. You know that. Who can he blame? Blame the murderer sitting right there.

¶ 11. While Lee did not object to the first two references he did object the third time, saying “Your Honor, I would object to his continual use of the term murderer to the Defendant. He is presumed innocent until he is proven guilty.”

¶ 12. This objection was sustained by the trial court. Lee did not request that the jury be admonished to disregard the prosecution’s remarks. However, in its instructions, the trial court instructed that jury that arguments of counsel were not evidence and should be disregarded if not supported by the evidence. The jury is presumed to follow the instructions of the court. Williams v. State, 684 So.2d 1179, 1209 (Miss.1996).

¶ 13. Circuit courts are given the discretion to discern whether a statement made in closing arguments is so prejudicial to a defendant that a mistrial should be declared. Madere v. State, 794 So.2d 200 (¶¶ 62-63) (Miss.2001). The record before this Court does not suggest an abuse of that discretion by the trial court. This issue lacks merit.

3. Testimony of a prior charge denied defendant a fair trial

¶ 14. The testimony in controversy is as follows:

PROSECUTOR: Was there any record of prior treatment in Mr. Lee’s case?
DR. MCMICHAEL: No, sir, there was not.
PROSECUTOR: You said “charged with prior offenses.” Was there any record of that in his case?
DR. MCMICHAEL: We received information that Mr. Lee had been charged in a previous homicide as a juvenile.

Counsel for Lee immediately objected to the testimony. After a bench conference outside the hearing of the jury, the court stated to the jury: “The Court is going to sustain the objection and ask the jury to disregard the last statement made by Dr. McMichael.”

¶ 15. On appeal, Lee claims he should have been granted a mistrial on the basis that his case was prejudiced by the comment on a prior criminal charge. The State responds that the trial court’s remedial action in admonishing the jury was sufficient to cure any error.

¶ 16. We acknowledge that the trial judge is in the best position to ascertain the prejudicial effect of objectionable testimony. Alexander v. State, 520 So.2d 127, 131 (Miss.1988). Accordingly, on appeal we use an abuse of discretion standard to review a trial court’s decision to grant or deny a mistrial after an objectionable comment has been expressed before a jury. Horne v. State, 487 So.2d 213, 214 (Miss.1986). In the absence of serious and irreparable damage, a trial judge should admonish the jury to disregard the statement or comments. Roundtree v. State, 568 So.2d 1173, 1178 (Miss.1990). Well settled is the principle that when the trial judge sustains an objection to prejudicial testimony directing the jury to disregard it, prejudicial error does not result. Estes v. State, 533 So.2d 437, 439 (Miss.1988). Even further, we presume that the jurors will follow the directives of the court, Payne v. State, 462 So.2d 902, 904 (Miss.1984), because to suppose “otherwise would be to render the jury system inoperable.” Johnson v. State, 475 So.2d 1136, 1142 (Miss.1985).

¶ 17. We find that Dr. McMichael’s error in making the inappropriate comment before the jury was sufficiently cured by the trial court’s action in sustaining the objection and in requesting the jury to disregard the remark. Moreover, the prejudicial effect of such comment was not of such nature as to irreparably affect Lee’s fundamental right to a fair trial.

4. Cumulative effect of trial errors denied defendant a fair trial

¶ 18. Having found no reversible error, this issue is wholly without merit.

¶ 19. THE JUDGMENT OF THE CIRCUIT COURT OF YAZOO COUNTY OF CONVICTION OF MURDER AND SENTENCE OF LIFE IN THE CUSTODY OF THE MISSISSIPPI DEPARTMENT OF CORRECTIONS IS AFFIRMED. ALL COSTS OF THIS APPEAL ARE ASSESSED TO YAZOO COUNTY.

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

      . For seven years, Dr. Guild served in the position of the director of the state’s mental hospital.


source: Caselaw Access Project

author: BRIDGES, J.,

license: Public Domain

text:
    Jackie Virginia (Wright) HODGE, Appellant, v. Kenneth Edward HODGE, Appellee.
    No. 2001-CA-01877-COA.
    Court of Appeals of Mississippi.
    Feb. 18, 2003.

      Darrin Jay Westfaul, Batesville, attorney for appellant.
    C. Michael Malski, Tupelo, attorney for appellee.
    Before SOUTHWICK, P.J., BRIDGES and MYERS, JJ.
   BRIDGES, J.,

for the court.

¶ 1. Jackie Hodge brought an action for divorce against her husband, Kenneth Hodge, on grounds of habitual cruel and inhuman treatment. After the chancellors of the Lafayette County Chancery Court recused themselves, the Mississippi Supreme Court appointed a special master to hear the divorce. The chancellor denied the divorce, and Jackie Hodge appealed.

STATEMENT OF THE ISSUE

DID THE CHANCELLOR ERR IN HOLDING THAT JACKIE HODGE WAS NOT ENTITLED TO A DIVORCE ON GROUNDS OF HABITUAL CRUEL AND INHUMAN TREATMENT?

FACTS

¶ 2. Kenneth and Jackie Hodge had been married for nearly forty-one years prior to their separation in 1999. They had two grown children, Phyllis Kirkpatrick and Jason Hodge. Mrs. Hodge asked for a divorce based on habitual cruel and inhuman treatment, based mostly on allegations that her husband forced her to join in his fondness for pornography. Mrs. Hodge also claimed that her husband sabotaged her attempts to pursue a career as a hairstylist. For about thirteen years prior to their separation, Mrs. Hodge had been suffering from a rare form of colitis, for which she took a powerful steroid, predni-sone, and several courses of antidepressant drugs.

¶ 3. Jason Hodge lived with his parents until 1990, and again for a time in 1994. Phyllis Kirkpatrick together with her young daughter lived with the Hodges in 1997 and 1998. Both of them expressed concern over their mother’s aberrant behavior in the two years preceding their parents’ separation.

ANALYSIS

DID THE CHANCELLOR ERR IN HOLDING THAT JACKIE HODGE WAS NOT ENTITLED TO A DIVORCE ON GROUNDS OF HABITUAL CRUEL AND INHUMAN TREATMENT?

¶ 4. This Court reviews the decisions of a chancellor for manifest error or the application of an erroneous legal standard. Steen v. Steen, 641 So.2d 1167, 1169 (Miss.1994). A divorce on the grounds of habitual cruel and inhuman treatment requires that the party seeking the divorce show the conduct of the offending spouse endangers the life or health of the other, or is so terrible that it makes the continuation of the marriage revolting. Daigle v. Daigle, 626 So.2d 140, 144 (Miss.1993). The proof must be more than demonstrations of “unkindness, rudeness, or incompatibility.” Brooks v. Brooks, 652 So.2d 1113, 1124 (Miss.1995).

¶ 5. Mrs. Hodge argues that her husband’s conceded fondness for pornography resulted in great emotional harm. She further argues that her husband forced her to watch the pornography against her will. Mrs. Hodge also presents the deposition of Dr. Threadgill, who testified that she was suffering because of her marriage; however, Dr. Threadgill did not testify that her husband was responsible for her illnesses, which include colitis and other gastro-intestinal disorders. Dr. Threadgill also testified that it was possible that her prolonged use of medical steroids due to the nature of her diseases was affecting her.

¶ 6. Mrs. Hodge in her appeal brief not only miseharacterizes the testimony of Dr. Threadgill, she also entirely ignores the testimony of the Hodges’ two children. Phyllis Kirkpatrick, the Hodges’ daughter, lived in her parents’ home with her young daughter in 1997 and 1998, and never saw any pornography around the house. She also testified that she had never witnessed her father looking at pornography. Further, she testified that her parents had a normal marriage, and that she had heard no complaints from her mother about her father watching pornography. Kirkpatrick testified that in the year before her parents separated, her mother’s behavior changed noticeably, and that Mrs. Hodge would get angry for no apparent reason. Kirkpatrick stated that her father was concerned about her mother’s changed behavior.

¶ 7. Jason Hodge, the Hodges’ son, testified that he had lived with his parents until 1990, and again in 1994, and that he visited them roughly once a month. Jason testified that about two years before his parents separated, his mother became more irritable and controlling. He also stated that his mother had never complained about pornography in the home, and that the marriage had seemed a good one until the two years prior to the separation.

¶ 8. Mrs. Hodge does not provide any evidence beyond her own testimony that the physical illnesses or mental harm that she suffered were caused by the alleged habitual cruel and inhuman treatment by her husband. The only medical evidence available is inconclusive, and there is certainly sufficient credible evidence to refute Mrs. Hodge’s argument that she suffered cruelty due to a pervasive influence of pornography at her husband’s hands. While it is certainly possible that Mrs. Hodge was discomfited by her husband’s interest in pornography, the fact that she had been suffering from a rare form of colitis over more than thirteen years, and had been taking a strong steroid and antidepressant drugs provides a highly credible explanation for the pain and suffering she felt.

¶ 9. For the foregoing reasons, we affirm the judgment of the Chancery Court of Lafayette County.

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

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


text:
    COOPER TIRE & RUBBER COMPANY, A Self-Insurer, Appellant, v. John E. HARRIS, Sr., Appellee.
    No. 2002-WC-00483-COA.
    Court of Appeals of Mississippi.
    Feb. 18, 2003.

      John H. Freeland, Jackson, attorney for appellant.
    J. Kirkham Povall, Cleveland, attorney for appellee.
    Before SOUTHWICK, P.J., BRIDGES and MYERS, JJ.
   BRIDGES, J.,

for the court.

¶ 1. John E. Harris filed a petition to controvert against Cooper Tire, where Harris alleged he sustained a compensable pulmonary injury while working as a Ban-bury operator in Cooper Tire’s plant in Clarksdale. Harris alleged that he had suffered scarring in his lungs resulting from exposure to hazardous environmental conditions in his work area that caused bronchitis and pneumonia. The administrative law judge found that Harris had suffered a work-related injury and that Harris was due temporary total disability benefits and medical benefits. Cooper Tire paid $3,248.04 in temporary benefits and $38,829.29 in medical benefits. The administrative law judge rejected Harris’s claims for permanent disability and loss of wage-earning capacity. Harris and Cooper Tire appealed to the Workers Compensation Commission (the Commission).

¶ 2. Following oral arguments, the Commission affirmed the administrative law judge’s finding that Harris had sustained a work-related compensable injury, but remanded on the issue of whether Harris had suffered permanent disability and a loss of wage-earning capacity. On remand, the case was transferred to a second administrative law judge, who found following an evidentiary hearing that Harris had suffered a permanent disability and a loss of wage-earning capacity, and awarded Harris benefits of $50 per week for 450 weeks, with credit for previous compensation by Cooper Tire. Cooper Tire appealed again, and the Commission affirmed the administrative law judge’s findings.

¶ 3. Cooper Tire appealed to the Circuit Court of Coahoma County, and the court affirmed the findings of the Commission. Cooper Tire perfected its appeal to this Court on March 26, 2002.

STATEMENT OF THE ISSUES

I. DID THE COURT ERR IN AFFIRMING THE FINDINGS OF THE FULL COMMISSION THAT HARRIS SUFFERED A COMPENSABLE WORK-RELATED INJURY?

II. DID THE COURT ERR IN FINDING THAT HARRIS HAD SUFFERED A LOSS OF WAGE-EARNING CAPACITY?

FACTS

¶ 4. John Harris left work early on April 14, 1997, with respiratory problems. He spent two weeks in a local hospital being treated for pneumonia, then returned to work. After Harris returned to work he suffered shortness of breath and fatigue, and required assistance from coworker Michael Allen to perform his job. Allen testified at the first hearing that he had worked for more than three years with Harris, and that Harris’s work area was covered in chemical dust. Harris’s work consisted of hauling heavy bags of chemicals and dumping them into a hopper.

¶ 5. Allen further testified that he had provided Harris with extra work breaks following Harris’s return from treatment for pneumonia. Dr. Keith Mansel began treating Harris on June 19, 1997, for his continuing symptoms related to Harris’s pneumonia. Dr. Mansel treated Harris from June 19, 1997 until April 8, 1998, and on July 29, 1997, Dr. Mansel wrote to Cooper Tire requesting that Harris work in a less dusty environment. Dr. Mansel testified that Harris suffered from shortness of breath, fever, pleurisy, and that Harris’s chest x-rays indicated that Harris still suffered from some remaining ill effects of pneumonia. On April 3, 1998, Dr. Mansel ordered significant follow-up testing, including x-rays, a CT scan, and a breathing function test; these tests revealed, according to Dr. Mansel, that Harris was suffering from a fibrosis of the lungs that had reduced Harris’s lung capacity by more than 25%.

¶ 6. Dr. Mansel testified that it was his medical opinion that based on Harris’s medical history and general physical health, and considering that Harris was a reservist in the U.S. Army, Harris had developed this fibrosis from his work as a Banbury operator for Cooper Tire. Dr. Mansel based his opinion on the dusty work conditions and the poor ventilation in the work area. Harris had been a cigarette smoker for years prior to contracting pneumonia, and had discontinued smoking following this bout with pneumonia; however, Dr. Mansel testified that fibrotic scarring was inconsistent with damage caused by smoking, which tended to be either bronchial harm or emphysema, rather than fibrosis, while the shortness of breath could well have resulted from a history of smoking.

¶ 7. Cooper Tire offered testimony from Dr. Brian Forrester, a specialist in occupational medicine, who testified that Cooper Tire was in compliance with OSHA regulations. Further, he testified that the ventilation in the Banbury mixer area where Harris worked was adequate, although Cooper Tire had expanded it following Harris’s illness. Dr. Forrester testified that it was highly unlikely that the chemicals that Harris worked with could have caused either Harris’s pneumonia or his fibrosis.

ANALYSIS

I. DID THE COURT ERR IN AFFIRMING THE FINDINGS OF THE FULL COMMISSION THAT HARRIS SUFFERED A COM-PENSABLE WORK-RELATED INJURY?

¶ 8. This Court reviews the decisions of the Commission under an arbitrary or capricious standard, and will not disturb the Commission’s findings unless they are unsupported by substantial evidence. Inman v. Coca-Cola/Dr. Pepper Bottling Co., 678 So.2d 992, 993 (Miss.1996). There are three elements to a claim of compensable work-related injury: the injury was accidental; it arose out of and in the course of employment; and there is a causal connection between the injury and the disability. Miss.Code Ann. § 71-3-3 (Rev.2000). An injury is com-pensable, even in cases where employment did not cause the injury, if the conditions of employment contributed to it. Hedge v. Leggett & Platt, Inc., 641 So.2d 9, 15 (Miss.1994).

¶ 9. Harris suffered pneumonia and fi-brotic scarring of the lungs. Dr. Mansel testified that the fibrotie scarring was consistent with irritation from the chemical dust that Harris inhaled. Dr. Mansel further testified that Harris’s fibrotie scarring would not be consistent with a history of cigarette smoking, because cigarette smoking damages the bronchial areas of the lungs, typically resulting in emphysema, rather than fibrosis. Dr. Forrester, who unlike Dr. Mansel did not specialize in pulmonary illnesses, spoke with Harris in his work area for about an hour, and it was his opinion that the chemicals Harris was in daily contact with would not cause him any harm. Dr. Forrester also testified that Harris’s work area was well ventilated, but Cooper Tire had significantly expanded the ventilation in the area following Harris’s pneumonia before Forrester’s examination of the work area.

¶ 10. Harris’s testimony that he suddenly began suffering chest pains and had difficulty breathing on April 14,1997, while at work stands uncontradicted. Cooper Tire argues that Harris’s history as a smoker contributed greatly to his illness, particularly since cigarette smokers have a lower resistance to pneumonia than nonsmokers. If pneumonia was the sole injury that Harris suffered, this argument would have merit; however, the extensive loss of lung function caused by the fibrotie scarring which is not symptomatic of long-term cigarette smoking is the underlying injury. Dr. Mansel testified that the pneumonia was related to the fibrosis. Dr. Forrester could not contradict Dr. Man-sel’s diagnosis, and he admitted so before the administrative law judge. Additionally, Dr. Forrester did not examine Harris’s full medical records, and he based his opinion on Harris’s being asymptomatic for more than a year following hospitalization. The testimony of Dr. Mansel, Harris, and Allen contradicts Dr. Forrester’s base assumption of Harris’s presenting asymp-tomatically for the aftereffects of pneumonia.

¶ 11. The medical evidence is not wholly conclusive; however, Harris is only required to prove his case by a preponderance of the evidence. Our case law permits courts to favor the testimony of treating physicians. South Central Bell Telephone Co. v. Aden, 474 So.2d 584, 593 (Miss.1985). Dr. Mansel’s testimony that smoking would not cause the fibrotie scarring that led to Harris’s pneumonia was uncontested. We find that the Commission’s finding of a compensable injury is supported by substantial evidence.

II. DID THE COURT ERR IN FINDING THAT HARRIS HAD SUFFERED A LOSS OF WAGE-EARNING CAPACITY?

¶ 12. Cooper Tire argues that as Harris has been continually employed since his injury and is in fact making more money now and working more hours than he was before his injury demonstrates that he has not in fact suffered a loss of wage-earning capacity. Cooper Tire is entitled to a presumption that Harris did not suffer a loss of wage-earning capacity precisely because his earnings are greater than before he suffered the fibrosis-related pneumonia. General Electric Co. v. McKinnon, 507 So.2d 363, 365 (Miss.1987). Harris can rebut the presumption by demonstrating that the earnings information is unreliable for any one of a number of factors: an increase in wage levels since the time of the accident; Harris’s own greater maturity and training; longer hours working following the accident; sympathy money, and any other factor or condition where post-injury wages are a less reliable factor of earning capacity. Id.; Karr v. Armstrong Tire & Rubber Co., 216 Miss. 132, 61 So.2d 789, 792 (1953); Spann v. Wal-Mart Stores, Inc., 700 So.2d 308, 313 (Miss.1997).

¶ 13. Harris argues since he required the assistance of coworkers to perform his job following the pneumonia that he indeed suffered a loss of wage-earning capacity. Harris presents several cases from Alabama, as Mississippi has no case law about whether the assistance of coworkers in performing one’s job demonstrates a loss of wage-earning capacity. Cooper Tire points out quite correctly that none of those cases proposes that the assistance of coworkers by itself is sufficient to demonstrate a loss of wage-earning capacity. However, Cooper Tire conceded that if Allen was in fact providing extra work breaks and covering for Harris that Harris would be reported and likely fired for failure to perform his job. Additionally, Cooper Tire could not contest the testimony of both Allen and Harris that Allen provided Harris with assistance from the time he returned to work following the injury. The administrative law judge also considered the fact that Harris tended to work less hours following his injury indicative of his lost wage-earning capacity. According to the administrative law judge, this evidence was sufficient to rebut the presumption that Harris’s wage-earning capacity was unimpaired, particularly coupled with the general increase in pay that all Ban-bury operators received following Harris’s injury.

¶ 14. The Commission affirmed in all particulars the administrative law judge’s order. Accordingly, we treat the administrative law judge’s decision as the Commission’s decision. Even though Harris presents a novel theory to account for his loss of wage-earning capacity, it is well within the non-restrictive criteria for determining whether such a loss actually occurred. Since the decision of the Commission is supported by substantial evidence, we find that the court below did not err in upholding the finding of the Commission that Harris had suffered a loss of wage-earning capacity.

¶ 15. For the foregoing reasons, we affirm.

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

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


author: McMILLIN, C.J.,

text:
    Dennie MOORE, Appellant, v. STATE of Mississippi, Appellee.
    No. 2001-KA-01497-COA.
    Court of Appeals of Mississippi.
    Feb. 18, 2003.

      Edmund J. Phillips, Newton, attorney for appellant.
    Office of the Attorney General, by Scott Stuart, attorney for appellee.
    Before McMILLIN, C.J., IRVING AND MYERS, JJ.
   McMILLIN, C.J.,

for the court.

¶ 1. Dennie Moore was convicted of manslaughter following a jury trial in the Leake County Circuit Court and was sentenced to serve ten years in the custody of the Mississippi Department of Corrections. Aggrieved by his conviction, Moore appeals and raises two issues for consideration. First, he contends that the delay between the time of his arrest and subsequent trial — which was shown to span the period of March 1997 to September 2001— constituted a denial of his constitutionally-protected right to a speedy trial. Alternatively, he claims that certain inculpatory statements made by him and introduced into evidence at trial should have been excluded and that their wrongful admission violated his Fifth Amendment right against self-incrimination. Finding no error as to either issue, we affirm the conviction and judgment of sentence.

I.

Facts

¶ 2. In March of 1997, Danny Crossland was shot to death under circumstances that, based upon the initial investigation by law enforcement officials, implicated Den-nie Moore as the person who fired the fatal shots. The shooting appeared to have followed a verbal altercation between Moore and Crossland. Investigating officers arrested Moore shortly after the shooting incident; however, Moore was not formally indicted for the crime until May 9, 2001. He was tried and convicted in a trial that commenced on September 6, 2001.

¶ 3. There is evidence in the record that the case against Moore had been presented to several grand juries in the period from 1997 until mid-2001, but that the grand juries had declined to return a true bill because of the State’s inability to produce several purported eyewitnesses to the crime; namely, Tom Wiggington, Carnice Moore, and Jerry Pike. There was also testimony in the record that, after a new Sheriff of Leake County assumed office in January 2000, a different investigator was assigned the Crossland homicide case. This investigator was informed approximately a year later by Crossland’s sister that an individual named Chris Smith and his mother, Martha Ogletree, were also eyewitnesses to the shooting and that Chris Smith was, at the time, confined in the Scott County jail. Acting on 'this information, the investigating officer interviewed these purported eyewitnesses to assess the worth of their evidence. The ultimate outcome was that the case was once again presented to a grand jury in May 2001. Smith and Ogletree both testified before that grand jury. Based on that presentation, the grand jury returned an indictment charging Moore with murder.

¶ 4. In August of 2001, Moore moved to quash the indictment against him on the basis that his constitutional right to a speedy trial had been violated. The trial court denied the motion after a hearing conducted on August 30, 2001. The trial on the merits commenced on September 6, 2001, and at its conclusion, the jury found Moore guilty of the lesser offense of manslaughter.

II.

Speedy Trial Claim

¶ 5. The Mississippi Supreme Court has stated that speedy trial claims necessarily entail questions of fact regarding “whether the trial delay rose from good cause.” DeLoach v. State, 722 So.2d 512 (¶ 12) (Miss.1998). This Court must uphold the trial court’s findings on the issue of speedy trial where supported by “substantial, credible evidence; [but] if no probative evidence supports the trial court’s findingfs] ...our duty is to reverse. Ross v. State, 605 So.2d 17, 21 (Miss.1992). As in other cases in which the trial court must make factual determinations, our Court reviews those findings using the “clearly erroneous” standard. Stokes v. State, 548 So.2d 118, 122 (Miss.1989).

¶ 6. The right to a speedy trial is guaranteed by the Sixth and Fourteenth Amendments to the United States Constitution, as well as Article 3, Section 26 of the Mississippi Constitution of 1890. An alleged violation of the constitutional right to a speedy trial is examined under the four part test first announced in Barker v. Wingo, 407 U.S. 514, 531, 92 S.Ct. 2182, 33 L.Ed.2d 101 (1972). The factors, which must be balanced in light of all surrounding circumstances, are: (1) the length of delay; (2) the reason for the delay; (3) the defendant’s assertion of his right to a speedy trial; and (4) any prejudice to the defendant resulting from the delay. Id. at 533, 92 S.Ct. 2182; Sharp v. State, 786 So.2d 372 (¶ 15) (Miss.2001). We now proceed to examine each factor individually.

A.

Length of Delay

¶ 7. In evaluating a speedy trial issue arising under general constitutional considerations, as opposed to Mississippi’s speedy trial statute (Miss.Code Ann. § 99-17-1 (Rev.2000)), the commencement of the period begins when a person is “accused.” This can be an arrest, an indictment, or any formal charge, whichever is the first to occur. Doggett v. United States, 505 U.S. 647, 654-55, 112 S.Ct. 2686, 120 L.Ed.2d 520 (1992) (stating indictment six years before arrest started speedy trial considerations); United States v. Marion, 404 U.S. 307, 313-15, 320, 92 S.Ct. 455, 30 L.Ed.2d 468 (1971) (stating arrest or formal charges begin speedy trial period). In Mississippi, this key date is construed to be the date of arrest. Taylor v. State, 672 So.2d 1246, 1257 (Miss.1996). Moore was arrested on March 21, 1997. He was not brought to trial on the charges until September, 2001' — over four and one-half years later. A presumption of prejudice arises any time the delay is for more than eight months. Sharp v. State, 786 So.2d 372 (¶ 15) (Miss.2001). The span of time from arrest to trial in this case far exceeded the presumptively prejudicial period. That factor clearly must be weighed in favor of Moore.

B.

The Reasons for the Delay

¶ 8. The only period of delay during this prolonged period that can fairly be attributed to an intentional act by Moore is the brief period from the indictment until trial began. On May 15, 2001 — less than a week after indictment — Moore agreed to an order continuing the trial of the case until the next term of court. The cause of the extended delay from late 1997 until mid-2001 plainly lies in the fact that the State did not produce for the various grand juries convened in the interim evidence satisfactory to convince those bodies that a trial was warranted.

¶ 9. At a hearing on Moore’s motion to dismiss the indictment, the State produced several witnesses who related the problems that investigators were having in attempting to locate those persons believed to have information regarding the circumstances of the incident. There was further evidence that, once the principal investigator became aware of the location of Chris Smith, the State pursued the prosecution of the case with a reasonable measure of diligence. Moore did not counter this evidence with any showing of lack of diligence on the part of State officials in their efforts to locate and procure the testimony of persons believed to have critical eyewitness evidence of the crime. The inability to procure evidence vital to a proper completion of a criminal prosecution, at least so long as that evidence is pursued with some reasonable measure of diligence, does not tend to establish the sort of bad faith delay tactics on the part of the prosecution that call for the enforcement of the constitutional protections afforded a defendant under the Sixth Amendment. While a deliberate attempt to delay the trial would weigh heavily against the government a valid reason, such as a missing witness, should serve to justify appropriate delay. Barker v. Wingo, 407 U.S. 514, 531, 92 S.Ct. 2182, 33 L.Ed.2d 101 (1972).

C.

Assertion of the Right to a Speedy Trial

¶ 10. Moore never asserted his right to a speedy trial in the form of a demand. His only action in this regard was his motion to quash the indictment for lack of a speedy trial filed about three months after his indictment. The supreme court has held that where a defendant fails to assert his right to a speedy trial, that failure must be weighed against him. Watts v. State, 733 So.2d 214 (¶ 66) (Miss.1999). Moore seeks to explain his failure to demand a more speedy resolution of the charges against him by pointing out that he was not under indictment for the great bulk of the time involved in this case and, thus, could not have been subjected to a trial no matter how vigorously he might have demanded it.

¶ 11. We do not find that argument compelling. Moore was arrested for the crime, incarcerated for a time, and then released on bond. If an unindicted suspect who has been the subject of a lawful arrest has a constitutional right to a speedy resolution of the pending charges against him, then we have little doubt in concluding that the suspect may demand that the State proceed with reasonable dispatch to resolve the matter. Whether, in the absence of an existing circuit court criminal proceeding, that demand may be advanced by more informal means, e.g., a letter to the prosecuting attorney, is a matter we need not reach in this instance since Moore made no demand, formal or informal, during the long period between his arrest and indictment that the State proceed by some means to speedily dispose of the pending criminal matter. It appears on this record that Moore was content to remain free on bond without insisting that the pending charges against him be resolved. This is, perhaps, understandable in that Moore may have believed that, with the passing of time, the likelihood of an indictment grew less and less certain. Whether that was, in fact, Moore’s thinking on the matter is certainly not clear, but it is certain that it was within his power to make his position definitely known by affirmatively stating it for the record in some manner that would be preserved for subsequent consideration by this Court. In the absence of any such demand, we think that Moore’s prolonged failure to demand a speedy resolution of the ease must be weighed against his entitlement to relief.

D.

Prejudice to the Defense Occasioned by the Delay

¶ 12. Although there is a presumption of prejudice resulting from a delay of more than eight months, a defendant must still show actual prejudice in order to obtain relief. DeLoach v. State, 722 So.2d 512 (¶ 23) (Miss.1998). In the case before us, Moore seems to rely solely on the presumption of prejudice said to arise by the fact of the long delay itself. It is a fact that he was incarcerated for a little over a year, but the Mississippi Supreme Court has said that incarceration alone does not demonstrate the kind of prejudice that merits relief. McGee v. State, 608 So.2d 1129, 1130 (Miss.1992)

¶ 13. Generally, proof of prejudice beyond incarceration may include such matters as the loss of evidence, death of witnesses, or staleness of the investigation. Sharp v. State, 786 So.2d 372 (¶ 19) (Miss.2001). “The possibility of impairment of the defense is the most serious consideration in determining whether the defendant has suffered prejudices as a result of delay.” Hughey v. State, 512 So.2d 4, 11 (Miss.1987). Moore makes no affirmative showing that his defense was prejudiced in any of these ways. Only two witnesses were called on behalf of the defense — one being Moore himself. He makes no claim that other witnesses were somehow lost over the period of delay.

¶ 14. Where the delay is not “intentional or egregiously protracted, and where there is no showing of actual prejudice, the balance is struck in favor of rejecting the defendant’s speedy trial claim.” Rhymes v. State, 638 So.2d 1270, 1275 (Miss.1994). Moore has not demonstrated that the State’s long inability to assemble the necessary witnesses to obtain an indictment was either intentional or the result of an inexcusable lack of diligence in the investigative process.

¶ 15. For the foregoing reasons, we conclude, when the relevant considerations are fairly assessed in combination, Moore has failed to demonstrate an entitlement to relief on the claim that his right to a speedy trial was irretrievably violated.

III.

Evidentiary Error Regarding the Admission of Moore’s Out-of-Court Statement

¶ 16. Shortly after his arrest and while sitting in the back of the patrol car, Moore was heard by one of the investigating officers to loudly remark something to the effect that “he [Moore] had shot the SOB and if he had any more bullets he would shoot him again.” The officer testifying to having heard this remark said that it was not in response to a question from any officer at the scene and that, although Moore had already received his Miranda warnings, he had not been subjected to any form of interrogation. Moore sought to have that evidence excluded on the ground that there was unrebutted testimony that Moore appeared intoxicated at the time of his arrest and that, as a result, his statement could not be considered to be the result of a knowing and voluntary waiver of his right against self-incrimination.

¶ 17. We observe first of all that the issue before us is not governed by the substantial body of law relating to the admissibility of post-arrest statements produced as the result of questioning by investigating officers as that law has developed since the landmark decision of Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966). Even though Moore was in custody, the evidence shows that his statements were spontaneous and were, in no way, the product of police questioning. In Pierre v. State, the Mississippi Supreme Court upheld the trial court’s decision to admit a defendant’s in-culpatory statement overheard by officers after the defendant’s arrest on the ground that the remarks were not made in response to a custodial interrogation, and thus, did not invoke the Fifth Amendment protections embodied in Miranda. Pierre v. State, 607 So.2d 43, 51-52 (Miss.1992). The admissibility of the statement, rather than being a matter of constitutional interpretation, was a purely evidentiary one controlled by Mississippi Rule of Evidence 801(d)(2). Oby v. State, 827 So.2d 731, 733(¶ 4) (Miss.Ct.App.2002); Conley v. State, 790 So.2d 773, 787 (¶42) (Miss.2001).

¶ 18. Because the informed nature of the incriminating statement by Moore is not a relevant issue in considering the statement’s admissibility, the fact of Moore’s alleged intoxication bears only on the probative value of the evidence. To the extent that Moore desired to attempt to convince jurors that his statements were the unreliable pronouncements of a person suffering from excessive alcohol ingestion, he was free to do so, but it was certainly not reversible error to let the jury know of Moore’s spontaneous statements made shortly after his arrest that tended to implicate him in the shooting.

¶ 19. THE JUDGMENT OF THE CIRCUIT COURT OF LEAKE COUNTY OF CONVICTION OF MANSLAUGHTER AND SENTENCE OF TEN YEARS IN THE CUSTODY OF THE MISSISSIPPI DEPARTMENT OF CORRECTIONS IS AFFIRMED. ALL COSTS OF THIS APPEAL ARE ASSESSED TO LEAKE COUNTY.

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


author: LYONS, Justice.

text:
    RIVER CONSERVANCY COMPANY, L.L.C. v. GULF STATES PAPER CORPORATION.
    1001725.
    Supreme Court of Alabama.
    May 31, 2002.

      John P. McClusky, Tuscaloosa, for appellant.
    Clark Summerford of Zeanah, Hust, Summerford, Davis & Williamson, Tuscaloosa; and Drayton Pruitt, Jr., of Pruitt, Pruitt & Watkins, Livingston, for appellee.
   LYONS, Justice.

This is an appeal of a judgment declaring the rights of the parties under a lease of real property. On March 22, 1999, Gulf States Paper Corporation (“Gulf States”) filed a declaratory-judgment action against River Conservancy Company, L.L.C. (“River Conservancy”). On October 27, 2000, the trial court entered a declaratory judgment in favor of Gulf States. River Conservancy appeals from that judgment.

I. Facts

On May 19, 1969, Gulf States entered into a timber purchase agreement with E.O. Eddins and Anne E. Eddins. Pursuant to the agreement, the Eddinses conveyed to Gulf States all of the timber on a tract of land in Sumter County, hereinafter referred to as “the Eddins tract.” The purchase agreement provided, in pertinent part:

“Sellers hereby convey unto Buyer all of the existing timber of all sizes and descriptions, including all seedlings, saplings, trees, stumps and other forest growth, regardless of size or species .... ”

The purchase agreement gave Gulf States 40 years from the execution of the contract to remove all timber and forest products conveyed by the purchase.

On the same day, Gulf States entered into a lease agreement with the Eddinses, for a term of 40 years, beginning on May 19, 1969, and ending on May 18, 2009. The lease agreement provided, in pertinent part:

“2. During the term of this Lease, Gulf States shall have all rights to grow, cut and to remove timber from the Premises (in addition to the timber separately conveyed by a timber purchase agreement between the parties hereto as of this date), and shall have the full and complete possession, use, control and enjoyment of the Premises, and all possessory rights with respect thereto, including agricultural rights, except only those rights hereinafter specifically reserved to Lessors.
“Without limiting the generality of the foregoing, Gulf States shall have the right to protect, cultivate, spray, thin, deaden and otherwise manage all timber and timber products on the premises and to cut, harvest, mill and process all timber and timber products ... which are now growing or shall come into existence during the term of this lease (in addition to the timber separately conveyed by the timber purchase agreement between the parties hereto as of this date), or to contract with others for such acts to be done, and to use, sell, or otherwise dispose of such timber and timber products for its benefit in such manner as it may elect.”

Paragraph 19 of the lease agreement provided:

“Seed Trees
“19. For the purpose of re-stocking the land following the final harvest cut Gulf States will select from the then existing stand of timber a minimum of five (5) dominant or co-dominant trees per acre to be left as seed trees.”

On April 2, 1997, Martha Anne Eddins Kelly, an heir of E.O. Eddins and Anne E. Eddins, assigned the lease agreement to Bony F. Barrineau. On April 16, 1997, Kelly conveyed the Eddins tract to Bony F. Barrineau by warranty deed. This conveyance was subject to the timber purchase agreement and the lease between Gulf States and the Eddinses. On May 21, 1997, Barrineau conveyed the Eddins tract to River Conservancy. This conveyance was also subject to the timber purchase agreement and the lease. The warranty deed expressly reserved Kelly’s right to receive proceeds under the timber purchase agreement.

In 1998, Gulf States decided to exercise its rights under the timber purchase agreement to harvest timber on the Ed-dins tract. Representatives of Gulf States met with representatives of River Conservancy to discuss the timber harvest; however, a controversy arose over the restocking of the harvestéd timber. Specifically, a controversy arose over whether the “seed-tree” provision in paragraph 19 of the lease agreement applied to both hardwood trees and pine trees. River Conservancy claimed that paragraph 19 of the lease agreement required that Gulf States leave both hardwoods and pine trees on the property as seed trees. Gulf States contended that paragraph 19 referred only to pine trees, requiring that it select a minimum of five dominant or codominant pine trees per acre to be left as seed trees. According to Gulf States, at the time the lease was executed, hardwood trees were not regenerated using the “seed-tree” method; thus, Gulf States contended, at the time it entered into the lease agreement with the Eddinses, both parties intended that Gulf States was entitled to harvest all of the hardwood on the tract, and it was required to leave only pine seed trees after its final harvest.

As a result of the disagreement between the parties, Gulf States sought a judgment declaring the rights, status, obligations, and liabilities of Gulf States and River Conservancy with respect to the lease agreement and the timber purchase agreement. The complaint also requested the court to declare that Gulf States had the right under the lease agreement and the timber purchase agreement to harvest all timber on the Eddins tract and, after the final harvest cut, to restock the land using currently accepted forestry practices to be selected by Gulf States without interference by River Conservancy. Finally, Gulf States’ complaint asked the court to declare that River Conservancy did not have a right to obtain Gulf States’ plans and proposals regarding its timber management and timber harvesting.

River Conservancy filed an answer and a counterclaim, asking the court to determine which trees Gulf States could and could not harvest; the extent to which River Conservancy was entitled to have knowledge of, and participate in, Gulf States’ plan to harvest the timber; the scope of Gulf States’ seed-tree-regeneration obligations to River Conservancy; the extent to which the lease agreement required Gulf States to respect and preserve River Conservancy’s hunting and fishing rights on the Eddins tract; the extent to which River Conservancy was permitted to withdraw disputed parcels from any proposed harvest of timber; and the extent to which both parties were obligated to comply with environmental laws and principles existing to protect the land.

During the trial of the case, Gulf States presented two proposed timber-harvest cutting plans. Those plans were entitled “Timber Harvest Proposal Number One” and “Timber Harvest Proposal Number Two.” Timber Harvest Proposal Number One would allow Gulf States to harvest 3 of the 16 compartments on the Eddins tract per year from 2001 through 2003. The plan provided for a harvest of two compartments in 2004, and one compartment per year from 2005 through 2009.

Timber Harvest Proposal Number Two would allow Gulf States to perform select cutting through each of the 16 compartments in the first 3 years, from 2001 through 2003. During this process Gulf States would cut and remove some of the timber it had purchased in 1969. The plan provided for a final harvest from 2004 through 2009, during which Gulf States would harvest all the timber in the hardwood areas and leave a minimum of five dominant or codominant seed trees in the pine-tree areas.

After a hearing on the matter, the trial court entered a judgment for Gulf States. The court concluded that Timber Harvest Proposal Number Two was “in keeping with the spirit and plain language of the lease.” However, the court ordered Gulf States to leave both hardwood and pine seed trees to restock the Eddins tract. The court found that River Conservancy had actual notice of the existence of the timber purchase agreement and the lease agreement before it purchased the property and that it knew that the property was subject to the terms of the timber purchase agreement and the lease agreement. The court concluded that Gulf States had the right under the timber purchase agreement and the lease agreement to go upon the land to cut and remove timber to which it is entitled as a preliminary cut or cuts, leaving a sufficient number of hardwood trees and pine trees from which to select seed trees at the final harvest. The court held that Gulf States may return to conduct a final harvest cut before the lease expired and at- that time shall select and leave at least five dominant or codominant seed trees per acre from the then existing stand. The court appointed Jim Jeter, an employee of the Alabama Forestry Commission, or his successor in office, to supervise Gulf States’ final cut of the timber to ensure that the trees selected to be left are seed trees and that they are dominant or codominant trees of the then existing stand.

II. Did the trial court improperly consider extrinsic evidence to determine the intent of the parties at the time of the execution of the lease?

At trial Gulf States argued that paragraph 19 of the lease agreement was ambiguous because, it said, the provision did not specify the species of the seed trees it was required to leave after the final harvest. The trial court, in apparent agreement, allowed Gulf States to present several witnesses who testified that the term “seed tree” as that term was used in 1969 did not apply to hardwoods. The trial court also allowed Jack Loper, the vice president in charge of forestry at Gulf States when Gulf States entered into the lease agreement, to testify as to which spedes of trees Gulf States had intended that paragraph 19 refer to. Loper testified that the lease agreement was a form lease document Gulf States had used when there were pine trees on the land being leased. Loper testified that provisions such as paragraph 19 were not included in leases for land that had no pine trees on it. Loper also testified that at the time of the execution of the lease agreement, Gulf States did not intend for paragraph 19 to apply to hardwood trees. River Conservancy argues that the trial court improperly considered extrinsic evidence to determine the intent of the parties at the time of the lease.

Whether a contract is ambiguous is a question of law for the court to determine. Haddox v. First Alabama Bank, 449 So.2d 1226, 1229 (Ala.1984). Ambiguity exists when a term is reasonably susceptible to more than one interpretation. Cannon v. State Farm Mut. Auto. Ins. Co., 590 So.2d 191, 194 (Ala.1991). If a court determines that a contract is ambiguous, extrinsic evidence will be allowed to clarify the contract. Poole v. Henderson, Black & Greene, Inc., 584 So.2d 485, 487 (Ala.1991). Paragraph 19 of the lease agreement required Gulf States to leave five dominant or codominant trees per acre as seed trees following its final harvest cut. The provision did not specify whether the term “seed trees” referred to a particular species. Paragraph 19 could reasonably be interpreted to apply to only pine trees, only hardwood trees, or both pine and hardwood trees. Thus, the trial court did not err in considering extrinsic evidence to determine the meaning of paragraph 19. Furthermore, although River Conservancy argues that paragraph 19 was not ambiguous, in its brief River Conservancy concedes that paragraph 19, when read in light of the timber purchase agreement, was in need of resolution by judicial construction. Thus, River Conservancy concedes that paragraph 19 was ambiguous.

Based upon the extrinsic evidence introduced by Gulf States, the trial court ordered Gulf States to leave both hardwood and pine trees as seed trees, in effect ruling against Gulf States and in favor of River Conservancy regarding the interpretation of paragraph 19. River Conservancy had argued that paragraph 19 applied to both pine and hardwood trees. Upon consideration of the evidence, the trial court ordered that Gulf States leave both pine and hardwood seed trees after the final harvest. Thus, not only did the trial court not err in receiving extrinsic evidence, the trial court’s ruling based on the consideration of extrinsic evidence to determine the meaning of paragraph 19 benefited River Conservancy.

III. Did the trial court comply with the Declaratory Judgment Act ?

River Conservancy also contends that the trial court’s declaratory judgment did not meet the requirements of the Alabama Declaratory Judgment Act, § 6-6-220 et seq., Ala.Code 1975. According to River Conservancy, § 6-6-222, Ala.Code 1975, requires that declaratory-judgment actions falling within the statute result in a “final judgment” that declares “the rights, status, and other legal relations whether or not further relief is or could be claimed.” River Conservancy argues that the trial court failed to comply with § 6-6-222 because, according to River Conservancy, the court misconstrued the issues in controversy, misstated the parties’ relative positions as to the uncontroverted facts, failed to resolve disputed facts, and improperly adopted as its judgment a settlement proposal by Gulf States that did not fully delineate the relative rights and responsibilities of the parties.

The trial court heard this case without a jury.

“Under the ‘ore tenus rule/ a presumption of correctness accompanies the trial court’s judgment when it has made findings of fact based on disputed oral testimony without a jury, and its judgment will not be reversed unless it is shown to be plainly and palpably wrong, considering all of the evidence and all inferences that can be logically drawn from the evidence.”

Alabama Highway Dep’t v. Stuckey’s/DQ of Grand Bay, Inc., 613 So.2d 333, 335 (Ala.1993); see also Coghlan v. First Alabama Bank of Baldwin County, N.A., 470 So.2d 1119, 1122 (Ala.1985). The trial court’s judgment in cases where the evidence is heard ore tenus will be affirmed, if, under any reasonable aspect of the testimony, there is credible evidence to support the judgment. Pforr v. Intercorp, Inc., 577 So.2d 1291, 1293 (Ala.1991). Furthermore, the presumption of correctness is coupled with the wide discretion vested in the trial judge in declaratory-judgment actions. Continental Cas. Co. v. City Realty Inc., 673 So.2d 399 (Ala.1995). Section 6-6-222, Ala.Code 1975, does not require a declaratory judgment to conform to any strict guideline or any particular form. The provision states only that “[t]he declaration may be either affirmative or negative in form and effect,” vesting wide discretion with the trial court. See § 6-6-222, Ala.Code 1975; see also Continental Cas. Co., supra.

Gulf States presented several witnesses who testified that in 1969 hardwoods were not regenerated using the seed-tree method. The witnesses testified, nonetheless, that if the court interpreted paragraph 19 of the lease agreement to require that Gulf States regenerate the timber on the Eddins tract by leaving both pine and hardwood seed trees, both the pine trees and hardwood could be restocked by implementing Timber Harvest Proposal Number Two. Mark Key, a district forester employed by Gulf States, testified that in 1969 the seed-tree method of regeneration was not used to restock hardwoods. Key testified that hardwoods were regenerated by letting them sprout. Key described both Timber Harvest Proposal Number One and Number Two and testified that Gulf States could implement Timber Harvest Proposal Number Two leaving both hardwood and pine seed trees.

James Jeter, a regional forest-management specialist with the Alabama Forestry Commission, testified that he had been working in the field of forestry since 1976. Jeter testified that there were basically four methods of regeneration for hardwoods, including regeneration from a stump left after a cut, from seeds that lay dormant in the ground, from root sprouts from shade intolerant trees after removal of the canopy, and from advanced regeneration — growth in smaller-sized trees that have been suppressed because of lack of sunlight. Jeter testified that in his opinion, the best method of regeneration of hardwoods is the advanced-regeneration process. Jeter testified that in his opinion the hardwood areas of the Eddins tract could be regenerated using Timber Harvest Proposal Number Two.

John Hodges, a forest-management consultant, testified that he had worked almost exclusively with hardwoods over the last 25 years as a forester employed by the United States Forest Service and as a professor of silviculture at Mississippi State University. Hodges testified that in 1969, no one, to his knowledge, restocked hardwood forests by leaving seed trees. According to Hodges, the seed-tree method was the preferred method for regenerating most of the pine species. Hodges testified that the better way to regenerate the hardwood on the Eddins tract would be to implement Timber Harvest Proposal Number Two — which would allow Gulf States to first perform selective cutting, leaving a stand of trees to grow for another two to four years using the advanced-regeneration method and then coming back to do a final cut. Hodges testified that Timber Harvest Proposal Number Two could restock the forest without leaving seed trees, but that Gulf States could also leave seed trees during this process.

Tom Cambre testified that he had been a forester since 1967. Cambre testified that in 1970 he began working with the Alabama Forestry Commission as a forester and two years later he became the statewide hardwood specialist. Cambre also testified that he had extensive experience in pine-tree management. Cambre testified that in 1969 hardwood timber was not regenerated by seed trees. According to Cambre, in 1969 hardwoods were regenerated primarily by diameter limit cutting. Cambre testified that the best way to regenerate hardwood is by natural regeneration, which begins with advanced regeneration. Cambre testified that if Timber Harvest Proposal Number Two was followed and Gulf States did a preliminary cut and four to five years later a second cut from which seed trees were left, the Eddins tract would be restocked.

River Conservancy presented several witnesses who testified that the seed-tree method has been used to regenerate hardwood trees; however, none of the witnesses testified that if Timber Harvest Proposal Number Two was implemented, the Eddins tract would be restocked with both pine and hardwood trees. David Austin, a forestry consultant and timberland manager, testified for River Conservancy. Austin testified that he had extensive experience in hardwood management. Austin testified that he had been using the seed-tree method for the regeneration of hardwoods for almost 10 years.

Billy Callahan, the vice president of a timberland management company also testified for River Conservancy. Callahan testified that he had gained significant experience in hardwood forestry while working for Sears, Roebuck and Co.’s forestry department in Mississippi. Callahan testified that he had used the seed-tree method of hardwood regeneration for approximately 10 years. Callahan testified that he had visited the Eddins tract and that, of the hardwood trees preliminarily marked to be left as seed trees, Gulf States had marked the less valuable sweet-gum trees.

The record indicates that the trial court had before it adequate evidence upon which to determine that Timber Harvest Proposal Number Two could be implemented in accordance with the timber purchase agreement and the lease agreement, thereby restocking the Eddins tract with both hardwoods and pine trees. Furthermore, the trial court did not err by refusing to enter a judgment detailing a more precise plan for the removal of the timber purchased by Gulf States than the plan delineated by Timber Harvest Proposal Number Two. The lease agreement provided that Gulf States had the right “to cut, harvest, mill and process all timber and timber products ... in such manner as it may elect.” (Emphasis added.) The plain language of this provision allowed Gulf States wide discretion in determining how it could cut and harvest the timber that it had purchased on the Eddins tract, as long as that method adequately restocked the Eddins track with both hardwoods and pine trees.

The trial court fairly and wisely resolved a difficult dispute. The evidence in the record and the agreements before the court sustain its findings. Accordingly, the judgment of the trial court is affirmed.

AFFIRMED.

MOORE, C.J., and HOUSTON, JOHNSTONE, and WOODALL, JJ., concur.

      . This term was later extended by agreement between Gulf States and River Conservancy, as successor in interest to the Eddinses, to October 13, 2010.


author: STUART, Justice.

text:
    Ex parte ALABAMA DEPARTMENT OF MENTAL HEALTH AND MENTAL RETARDATION et al. (In re Laura Percer, as administratrix of the estate of Cynthia Ruth Shirley, deceased v. Alabama Department of Mental Health and Mental Retardation et al.).
    1002189.
    Supreme Court of Alabama.
    June 7, 2002.

      Bill Pryor, atty. gen.; Courtney W. Tar-ver, deputy atty. gen., and David E. Jackson, asst. atty. gen., Alabama Department of Mental Health and Mental Retardation, for petitioners.
    Kenneth J. Mendelsohn and Thomas E. James of Jemison, Mendelsohn & James, P.C., Montgomery, for respondent.
   STUART, Justice.

The Department of Mental Health and Mental Retardation (“the Department”) and its commissioner, Kathy Sawyer, filed this petition for a writ of mandamus directing a judge of the Montgomery Circuit Court to vacate his order issued August 16, 2001, denying the Department and Sawyer’s motion to dismiss and directing him to enter an order dismissing all claims against them in this matter. We grant the petition in part and deny it in part.

Laura Percer, as administratrix of the estate of Cynthia Ruth Shirley, deceased, brought the underlying action against the Department, Sawyer, certain employees of the Department, and a number of fictitiously named defendants. Percer’s claims arise out of injuries Shirley suffered on August 8, 2000, while she was a resident at the Lurleen B. Wallace Developmental Center (“the Center”) in Decatur, a facility operated by the Department. Ms. Shirley later died as a result of those injuries.

The style of the complaint does not indicate whether Sawyer is being sued individually or in her official capacity as commissioner. Sawyer was served with two summonses; identical complaints were attached to each. One summons was addressed to “Kathy Sawyer as Commissioner of Dept, of Mental Health and Mental Retardation”; the other was addressed to “Kathy Sawyer, Individually.” The complaint in its “Statement of Parties” states that “Defendant Kathy Sawyer ... is currently serving as the Commissioner of The Department of Mental Health and Mental Retardation and is being sued in her official capacity only, to compel the Commissioner and all future Commissioners, to perform their legal duties and to perform ministerial acts” (emphasis added).

The allegations of the complaint are 1) that fictitiously named defendant “A” assaulted Shirley; 2) that fictitiously named defendant “A” negligently caused Shirley to fall and that she hit the back of her head when she fell; 3) that Sawyer, James R. Finch (the director of the Center), and the Department negligently hired, trained, and supervised the employees of the Center; 4) that Finch, the Department, and fictitiously named defendant “B” negligently or wantonly failed to provide Shirley with comprehensive health-care services by qualified personnel; 5) that Finch, the Department, and fictitiously named defendant “B” negligently or wantonly failed to provide unimpeded access to health care; 6) that fictitiously named defendants “E” and “F” negligently or wantonly failed to have Shirley examined by a physician within a reasonable time after her injury; 7) that the Department and Sawyer failed to perform their duty to make the premises at the Center safe; and 8) that “[sjince Commissioners serve at the pleasure of the Governor and eventually Ms. Sawyer will no longer be the Commissioner, ... that an Order be entered against Defendant Sawyer, as the Commissioner, that would require her and all future Commissioners to perform their legal and ministerial duties.”

The Department and Sawyer filed a motion to dismiss under Rule 12(b)(1), Ala. R. Civ. P., asserting lack of subject-matter jurisdiction; Rule 12(b)(2), Ala. R. Civ. P., asserting lack of personal jurisdiction; and Rule 12(b)(6), Ala. R. Civ. P., asserting that Percer failed to state a claim upon which relief may be granted. The trial court denied the motion to dismiss.

I.

A writ of mandamus is an extraordinary form of relief. In order for this Court to issue a writ of mandamus, the petitioner must demonstrate:

“ ‘(1) a clear legal right ... to the order sought; (2) an imperative duty upon the respondent to perform, accompanied by a refusal to do so; (3) the lack of another adequate remedy; and (4) properly invoked jurisdiction of the court.’ ”

Ex parte Bloodsaw, 648 So.2d 553, 554 (Ala.1994) (quoting Ex parte Alfab, 586 So.2d 889, 891 (Ala.1991)).

II.

This case involves the sovereign immunity of a State agency and its commissioner, in her official capacity, against an action seeking money damages and in-junctive relief. The issue of immunity is jurisdictional. “This constitutionally guaranteed principle of sovereign immunity, acting as a jurisdictional bar, precludes a court from exercising subject-matter jurisdiction. Without jurisdiction, a court has no power to act and must dismiss the action.” Alabama State Docks Terminal Ry. v. Lyles, 797 So.2d 432, 435 (2001). Therefore, a court’s failure to dismiss a case for lack of subject-matter jurisdiction based on sovereign immunity may properly be addressed by a petition for the writ of mandamus. The Department, as an agency of the State of Alabama, has absolute immunity from lawsuits based upon the long-standing principle of sovereign immunity set forth in Article I, § 14, of the Alabama Constitution of 1901. Larkins v. Department of Mental Health & Mental Retardation, 806 So.2d 358 (Ala.2001); Ex parte Franklin County Dep’t of Human Res., 674 So.2d 1277 (Ala.1996). The courts of this State lack subject-matter jurisdiction over actions brought contrary to § 14. Alabama State Docks Terminal Ry. v. Lyles, 797 So.2d 432 (Ala.2001). Percer concedes in her brief to this Court that any claims for money damages against the Department are due to be dismissed. Likewise, Percer agrees that Sawyer, in her official capacity, is entitled to a dismissal as to claims for money damages. Percer is correct because Sawyer, in her official capacity as commissioner, is also entitled to absolute immunity pursuant to Art. I, § 14, Ala. Const, of 1901. Ex parte Butts, 775 So.2d 173 (Ala.2000).

III.

Percer argues, however, that she may pursue an action against the Department and against Sawyer, in her official capacity as commissioner, for injunctive relief, that is, to obtain an order requiring them to perform their legal and ministerial duties. We disagree.

Claims for injunctive relief, such as an action to compel a State official to perform his or her legal duty or to perform a ministerial act, are among a category of actions this Court has recognized as falling outside the prohibition of Art. I, § 14, of the Alabama Constitution of 1901. Aland v. Graham, 287 Ala. 226, 250 So.2d 677 (1971). Nevertheless, the Department and Sawyer are entitled to dismissal under Rule 12(b)(6), Ala. R. Civ. P., for failure to state a claim upon which relief may be granted because Percer lacks standing to bring such a claim for injunctive relief.

Injunctive relief is extraordinary relief; it will not be granted “merely to allay an apprehension of a possible injury; the injury must be imminent and irreparable in an action at law.” Carson v. City of Prichard, 709 So.2d 1199, 1207 (Ala.1998). Here Percer brings this action as the ad-ministratrix of the estate of Cynthia Ruth Shirley, who is deceased. She has no standing to seek injunctive relief because she cannot demonstrate that she, as ad-ministratrix, or the estate will suffer immediate harm if the requested relief is not granted. Further, she cannot show that she has no adequate remedy at law. Because Percer has no standing to bring her claim for injunctive relief, the Department and Sawyer, in her official capacity, are entitled to a dismissal as to the claims for injunctive relief.

IV.

We now turn to the issue whether Percer has brought an action against Sawyer in her individual capacity. Percer acknowledges in her brief the confusion with regard to the capacity in which Sawyer has been sued. She states that she “clearly intended to sue Ms. Sawyer in her individual capacity for monetary damages ...” (emphasis added) and that “any confusion related to the Complaint can be cleared up through an amendment, or in a pre-trial order.” However, we cannot address intentions or potential future amendments to a complaint. The language of the complaint is controlling, and we must view that language in the light most favorable to Percer, the nonmovant. Counts III (there are two Counts III in the complaint) and IV of the complaint state:

“COUNT III
“18. Plaintiff realleges all paragraphs of the Complaint as if set out here in full.
“19. Defendants Sawyer, Finch and the Department of Mental Health knew that residents of their facilities were not protected by [sic] abuse by employees.
“20. Defendants Sawyer, Finch and the Department of Mental Health knew that residents were needlessly subjected to the risk of injury, physical abuse and sexual abuse.
“21. Defendants Sawyer, Finch and the Department of Mental Health negligently failed to correct this long-standing problem.
“22. Defendants Sawyer, Finch and the Department of Mental Health knew that the failure to take corrective measures would likely result in the injury and harm such as that caused to Cynthia Shirley.
“23. These negligent acts were violations of a ministerial duty and not a discretionary duty.
“24. As a proximate result, Cynthia Shirley was subjected to an assault by Fictitious Defendant(s) ‘A.’
“WHEREFORE, Plaintiff demands judgment against Defendants Sawyer, Finch and the Department of Mental Health in the amount of $5,000,000.00 plus costs.
“COUNT III [sic]
“25. Plaintiff realleges all prior paragraphs of the Complaint as if set out here in full.
“26. Defendants Sawyer, Finch and the Department of Mental Health negligently failed to supervise employees of the Department of Mental Health including, but not limited to, negligently failing to inform employees of the policies and regulations; negligently failing to have supervisors properly train employees; negligently failing to require employees to follow the policies and regulations; and negligently allowing employees to abuse residents and negligently failing to monitor residents.
“27. During Defendant Sawyer’s tenure as Commissioner of the Department of Mental Health and during Defendant Finch’s employment ■ as Director of the Center, the Department of Mental Health had developed a very lax policy related to employee’s carrying out ministerial duties and following set policies and procedures, especially at the Center.
“28. Defendants Sawyer, Finch and the Department of Mental Health allowed employees to violate rules and regulations.
“29. Defendants Sawyer, Finch and the Department of Mental Health knew that employees were not following rules and regulations.
“30. Defendants Sawyer, Finch and the Department of Mental Health knew that the staffing at the Center was insufficient to enable adequate habilitation, monitoring and care for residents, and to ensure safety of residents, including Cynthia Shirley.
“31. Despite Federal Court Orders, Defendants Sawyer, Finch and the Department of Mental Health have refused to adequately staff, train and supervise employees.
“32. As a proximate result, one or more of Fictitious Defendants ‘A’ through ‘F’ callously neglected to follow procedure.
“33. As a proximate result, Cynthia Shirley sustained injuries from which she died.
“WHEREFORE, Plaintiff demands judgment against Defendants Sawyer, Finch and the Department of Mental Health in the Amount of $5,000,000.00 plus costs.
“COUNT TV
“34. Plaintiff realleges all prior paragraphs of the Complaint as if set out here in full.
“35. Before Cynthia Shirley’s death, Defendant Sawyer knew that patients at the various Department of Mental Health facilities were in danger of physical injuries and death and in fact was aware of numerous incidents of injuries and death caused by employees of the Department failing to follow written policies and procedures.
“36. Before Cynthia Shirley’s death, Defendant Sawyer knew from various court cases including [Wyatt v. Sawyer, 105 F.Supp.2d 1234 (M.D.Ala.2000) ] that the Department of Mental health did not adequately hire, train or supervise employees and consequently, that patients at the various mental health facilities were in danger of physical injuries and death.
“37. , Before Cynthia Shirley’s death, Defendant Sawyer knew that mental health workers were underpaid and overworked and has made no effort to see that the mental [sic] workers were adequately paid so as to insure competency.
“38. Defendant Sawyer has negligently faded to follow Court orders and standards with respect to running the Department of Mental Health.
“39. Defendant Sawyer’s conduct as alleged above, were violations of ministerial duties and not discretionary duties.
“WHEREFORE, Plaintiff demands judgment against Defendant Sawyer in the amount of $5,000,000.00.”

Despite other language in the complaint, these portions of the complaint, when read in a light most favorable to Percer, undoubtedly state claims against Sawyer in her individual capacity. We find that the language of the complaint is determinative. Based upon the plain language of the complaint, we conclude that Sawyer is being sued not only in her official capacity as commissioner, but also in her individual capacity.

V.

We turn now to the propriety of the trial court’s refusal to dismiss those claims against Sawyer that we have determined were brought against Sawyer in her individual capacity. While Sawyer argues vigorously that Percer sued her only in her official capacity, she asserts that even if she was sued in her individual capacity, as we have determined she was, she is entitled to a dismissal in her individual capacity on grounds of State-agent immunity. Percer argues that Sawyer, in her individual capacity, is not entitled to a dismissal under Rule 12, Ala. R. Civ. P., on grounds of qualified immunity or State-agent immunity as that doctrine has been established by this Court in Ex parte Butts, 775 So.2d 173 (Ala.2000), and Ex parte Cranman, 792 So.2d 392 (Ala.2000). She notes that no discovery has been conducted in this case, and she argues that the Department’s petition for the writ of mandamus is premature. We agree that a motion to dismiss is typically not the appropriate vehicle by which to assert qualified immunity or State-agent immunity and that normally the determination as to the existence of such a defense should be reserved until the summary-judgment stage, following appropriate discovery. “ ‘[I]t is the rare case involving the defense of [State-agent] immunity that would be properly disposed of by a dismissal pursuant to Rule 12(b)(6), [Ala. R. Civ. P.].’ ” Ex parte Butts, 775 So.2d at 177, quoting Patton v. Black, 646 So.2d 8, 10 (Ala.1994) (quoting earlier cases).

In Ex parte Butts, this Court addressed the appropriateness of the dismissal of claims alleging negligence and wantonness against Jimmy Butts, who was then the Commissioner of the Alabama Department of Transportation. Commissioner Butts, like Sawyer, was the administrative head of a State agency, a cabinet-level position. He was sued in his official and individual capacities. The plaintiff in that case, which involved a bridge collapse in which two people were killed, made claims against Commissioner Butts alleging negligence and wantonness relating to the use of certain personnel to demolish the bridge; negligence or wantonness for failure to halt the demolition; and negligence or wantonness relating to training and supervising the personnel assigned to the bridge project. Those claims are similar to those Percer makes against Sawyer in her individual capacity. Justice Lyons, writing for a majority of the Court in Butts, in addressing the claims made against Butts in his individual capacity, stated:

“[I]f any employee failed to discharge duties pursuant to detailed rules or regulations, such as those stated on a checklist, or acted willfully, maliciously, fraudulently, in bad faith, beyond his authority, or under a mistaken interpretation of the law, then it is possible that that employee would not be entitled to State-agent immunity. As this Court stated in Patton, ‘[i]t is not for this court to determine, based on the complaint, whether the plaintiff will ultimately prevail, but only if he may possibly prevail’ 646 So.2d. at 10. It is conceivable that the families could prove facts that would show one or more of the employees failed to discharge duties pursuant to a checklist or acted willfully, maliciously, fraudulently, in bad faith, beyond his authority or under a mistaken interpretation of the law. If so, the families ‘may possibly prevail’ on their claims. Therefore, the trial court properly denied the employees’ motion to dismiss the claims stated against them in their individual capacities.”

775 So.2d at 178.

The claims against Sawyer that we have determined are made against her in her individual capacity are fact intensive. Sawyer’s Rule 12(b) motion to dismiss is premature with regard to these claims. No discovery has been conducted in this case. After the parties have had the opportunity to conduct discovery, Sawyer will have the opportunity to seek a summary judgment on the ground that she is entitled to State-agent immunity. The trial judge did not err in denying the motion to dismiss as to the claims made against Sawyer in her individual capacity based on a defense of State-agent immunity at this stage of the proceedings.

VI.

The Department and Sawyer, in her official capacity as commissioner, have demonstrated a clear legal' right to -dismissal of all existing claims against them. Accordingly, we direct the trial court to grant the Department and Sawyer’s motion to dismiss as to the Department and Sawyer in her official capacity. Sawyer, however, has failed to demonstrate, at this stage of this ease, a clear legal right to a dismissal of the claims made against her in her individual capacity. Therefore, we deny that portion of the relief requested by Sawyer.

PETITION GRANTED IN PART AND DENIED IN PART; WRIT ISSUED.

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


author: HARWOOD, Justice.

text:
    Ex parte STERILITE CORPORATION OF ALABAMA. (In re John C. Homer III v. Sterilite Corporation of Alabama).
    1010724.
    Supreme Court of Alabama.
    June 7, 2002.
    Glenn E. Ireland, Joseph H. Driver, and Holly H. Bazemore of Carr, Allison, Pugh, Howard, Oliver & Sisson, P.C., Birmingham, for petitioner.
    Stephen D. Heninger and R. Edwin Lamberth of Heninger, Burge, Vargo & Davis, L.L.P., Birmingham, for respondent.
   HARWOOD, Justice.

Sterilite Corporation of Alabama (hereinafter referred to as “Sterilite”), a defendant in an action filed by John C. Homer III in the Jefferson Circuit Court petitions this Court for a writ of mandamus directing the trial court to vacate its denial of Sterilite’s motion to dismiss. The petition is denied.

From the statements of facts contained in, and the exhibits attached to, the parties’ briefs to this Court, the following pertinent facts are presented to this Court in consideration of Sterilite’s petition for the writ of mandamus. On or about March 23, 1998, Homer was injured when merchandise fell on him when he opened a trailer he had delivered from an undisclosed location to a Wal-Mart distribution center in Virginia. Sterilite had loaded the trailer. On October 4, 1999, Homer filed a voluntary petition in bankruptcy in the United States Bankruptcy Court, Middle District of Georgia (hereinafter referred to as “the bankruptcy court”). Homer indicated, by checking a box appearing on the bankruptcy petition, that he was filing for bankruptcy under Chapter 7 of the Bankruptcy Code. A document accompanying the petition entitled “Schedule B — Personal Property” listed various types of personal property and provided blank areas for Homer to describe and give the location of the property he owned, and to state the current market value of his interest in the listed property. Homer did not list as property in that document any cause of action he had against Sterilite.

On December 20, 1999, Homer filed a complaint in the trial court alleging that Sterilite had negligently or wantonly loaded and sealed the trailer, and that its negligence or wantonness had resulted in the merchandise located in the trailer falling on Homer when he opened the trailer, causing him permanent emotional and physical injuries; Homer sought compensatory and punitive damages based upon his alleged injuries. On January 20, 2000, Homer was discharged from bankruptcy by order of the bankruptcy court; on that same day, the bankruptcy court entered a final decree closing Homer’s case, stating that his estate had been fully administered, that the deposit required by the plan, if any, had been distributed, and that the trustee of the estate was discharged and his bond cancelled.

On February 23, 2000, Sterilite filed an answer to Homer’s complaint. On February 8, 2001, Sterilite filed an amended answer that set out two additional defenses: (1) that Homer “[did] not have standing to assert the claims and seek damages as alleged in his [c]omplaint”; and (2) that Homer “[was] judicially estopped from asserting the claims and seeking damages as alleged in his defense [sic].” On March 29, 2001, the trustee in Homer’s bankruptcy case filed, in the bankruptcy court, a motion to reopen that case; that motion stated, in pertinent part, that “[i]t now appears that [Homer] failed to schedule or advise your trustee of his interest in a personal injury action,” and that “[i]t is believed that this interest has significant value.” A portion of a case action summary sheet attached as an exhibit to Homer’s brief in reply to Sterilite’s petition for a writ of mandamus further shows that on April 24, 2001, the trial court denied a motion for a summary judgment that had been filed by Sterilite on February 21, 2001. On May 3, 2001, the bankruptcy court entered an order reopening Homer’s case. On May 8, 2001, Homer filed an amendment to his bankruptcy petition, adding his lawsuit against Sterilite as a potential asset, and claiming an exemption to a portion of the damages he might receive.

On August 16, 2001, Sterilite filed a motion to dismiss in the trial court. That motion stated, in pertinent part:

“Comes now the Defendant, Sterilite Corporation of Alabama, and moves this Court to enter an Order in accordance with Alabama Rule of Civil Procedure 12(b)(1), on the grounds that Plaintiff lacks standing to bring this action, and therefore, the Court lacks subject matter jurisdiction. As grounds for this Motion, Defendant shows as follows:
“2) In eases where there is a bankruptcy estate, the right to pursue causes of action formerly belonging to the debt- or vests in [the] trustee for the benefit of the estate. See Scheinert v. Southern Rubber Co., 764 So.2d 1291 (Ala.Civ.App.2000)(quoting Cooks v. Jim, Walter Homes, Inc., 695 So.2d 19 (Ala.Civ.App.1996)).
“3) The debtor has no standing to pursue such causes of action. Scheinert, 764 So.2d at 1292.
“4) The issue of whether a party has standing may be raised at any time. McCurdy v. L.C. Properties, [L.L.C.], 781 So.2d 991 (Ala.Civ.App.2000).
“5) The trial court has no subject matter jurisdiction ‘when a party without standing purports to commence an action.’ City of Gadsden v. Property at 2018 Rainbow Drive, known as the Oasis, 740 So.2d 1025 (Ala.1999).
“6) The lack of standing is a jurisdictional defect and ‘cannot be cured.’ City of Gadsden, 740 So.2d at 1028.”

On November 26, 2001, the trial court entered the following order on its case action summary sheet:

“The Defendant, Sterilite Corp. of Alabama (‘Sterilite’)’s motion to dismiss pursuant to Rule 12(b)(1) [, Ala. R. Civ. P.,] is overruled. See Jinright v. Paulk, 758 So.2d 553 [ (Ala.2000) ].”

On January 4, 2002, Sterilite filed in this Court a petition for a writ of mandamus. On January 7, 2002, Sterilite filed a motion to stay pending a ruling from this Court on its petition for the writ of mandamus; the trial court granted that motion on January 17, 2002. On February 8, 2002, this Court ordered that an answer and briefs be filed; the order limited the answer and briefs to “the issue of whether [Homer] had standing to maintain this action against Sterilite and whether the trial court had subject-matter jurisdiction in this case.” On February 28, 2002, Homer’s bankruptcy trustee filed a motion asking the trial court to lift the stay in order to consider his motion to add himself as a plaintiff in this case.

Our review of a petition for writ of mandamus is settled.

“A writ of mandamus is an extraordinary remedy, and it will be ‘issued only when there is: 1) a clear legal right in the petitioner to the order sought; 2) an imperative duty upon the respondent to perform, accompanied by a refusal to do so; 3) the lack of another adequate remedy; and 4) properly invoked jurisdiction of the court.’ Ex parte United Serv. Stations, Inc., 628 So.2d 501, 503 (Ala.1993). A writ of mandamus will issue only in situations where other relief is unavailable or is inadequate, and it cannot be used as a substitute for appeal. Ex parte Drill Parts & Serv. Co., 590 So.2d 252 (Ala.1991).”

Ex parte Empire Fire & Marine Ins. Co., 720 So.2d 893, 894 (Ala.1998).

Sterilite argues that the trial court erred in denying its motion to dismiss because, it says, Homer does not have standing to bring this action. In reply, Homer argues that he does have standing and asserts that the appropriate question, not raised by Sterilite in the trial court, is whether he is the real party in interest. This Court has previously recognized that the principles of “real party in interest” and “standing” are distinguishable. In State v. Property at 2018 Rainbow Drive, 740 So.2d 1025 (Ala.1999), this Court observed:

“There are fundamental differences between the principles of ‘real party in interest’ and ‘standing.’ ‘ “[T]he real party in interest principle is a means to identify the person who possesses the right sought to be enforced. Therefore, the term directs attention to whether [the] plaintiff has a significant interest in the particular action he has instituted.” ’ Dennis v. Magic City Dodge, Inc., 524 So.2d 616, 618 (Ala.1988)(quoting 6 Charles Alan Wright, Arthur R. Miller & Mary Kay Kane, Federal Practice and Procedure § 1542 (1971)).
“Standing, on the other hand, turns on ‘whether the party has been injured in fact and whether the injury is to a legally protected right.’ Romer v. Board of County Comm’rs of the County of Pueblo, 956 P.2d 566, 581 (Colo.1998)(Kourlis, J., dissentingXemphasis added). See also NAACP v. Town of East Haven, 892 F.Supp. 46 (D.Conn.1995). ‘One has standing to bring his complaint into court “if his stake in the resolution of that complaint assumes the proportions necessary to ensure that he will vigorously present his case.” Smith v. Potts, 293 Ala. 419, 422, 304 So.2d 578, 580 (1974)(emphasis added).”

740 So.2d at 1027-28.

Further, in Battle v. Alpha Chemical & Paper Co., 770 So.2d 626 (Ala.Civ.App.2000), a case involving a defendant’s challenge to a Chapter 7 bankruptcy debtor’s “standing” to maintain a breach-of-contract action against it, the Court of Civil Appeals, after determining that the defendant was not entitled to a summary judgment on the theory of judicial estoppel, stated:

“Having concluded that the summary judgment cannot be upheld on the basis of judicial estoppel, we must now address whether that judgment may be affirmed on the basis that the trustee in bankruptcy, rather than Battle, was the real party in interest, with exclusive power to maintain a civil action against Alpha. We use the term ‘real party in interest,’ rather than ‘standing,’ for a reason. Although both the parties and the trial court have blurred the issue3 by referring to Battle’s ‘standing,’ the question whether a party has standing to sue is distinct from whether he or she is the real party in interest. While the real-party-in-interest principle directs attention to whether the plaintiff has a significant interest in the particular action he or she has instituted, standing requires that the plaintiff demonstrate an injury to a legally protected right. State v. Property at 2018 Rainbow Drive, 740 So.2d 1025, 1027-28 (Ala. 1999); accord, Sprague v. Sysco Corp., 97 WashApp. 169, 175, 982 P.2d 1202, 1205 (1999), review denied, 140 Wash.2d 1004, 999 P.2d 1262 (2000)(table). Here, Battle has standing to sue because Alpha’s alleged- breach of contract injured her, not the bankruptcy trustee. Sprague [,] 97 Wash.App. at 175, 982 P.2d at 1205; Hammes v. Brumley, 659 N.E.2d 1021, 1030 (Ind.1995).
“A number of cases have held that once a proceeding has been initiated under Chapter 7 of the Bankruptcy Code involving a debtor, the trustee in bankruptcy becomes the real party in interest with respect to lawsuits upon causes of action held by the debtor. See, e.g., Bickford v. Ponce de Leon Care Ctr., 918 F.Supp. 377 (M.D.Fla.1996); Ex parte Moore, [793 So.2d 762] (Ala.2000)(distinguishing Chapter 13 cases, although using ‘standing’ terminology.) ...
"3 We note that this court has, on occasion, similarly blurred this issue. E.g., Cooks v. Jim Walter Homes, 695 So.2d 19 (Ala.Civ.App.1996)(using standing’ terminology), which was overruled by Ex parte Moore, [793 So.2d 762] (Ala.2000), as it applied to Chapter 13 debtors.”

770 So.2d at 634.

The situation in the instant case is similar to the situation presented in Battle, and, as in that case, there is no question that Homer has “standing,” because Steril-ite’s alleged negligence or wantonness injured him, not his bankruptcy trustee. Further, in Property at 2018 Rainbow Drive, this Court observed that while objections to a plaintiffs standing are not waivable, objections based upon an action’s not being prosecuted in the name of the real party in interest can be waived. 740 So.2d at 1028 n. 1 (citing 6A Charles Alan Wright et al., Federal Practice and Procedure § 1542, at 333 (1990)). We note that Sterilite made no objection based upon Homer’s not being the real party in interest in any of its responsive pleadings; the only defense at issue is whether Homer had standing.

We conclude that Homer has “standing” to maintain this action, and because that was the only issue presented to this Court in this petition for the writ of mandamus, it is not necessary that we further address the question whether Homer or his bankruptcy trustee is the real party in interest. The trial court was correct in denying Sterilite’s motion to dismiss, and Sterilite has not shown a “clear legal right ... to the order sought.” Empire Fire & Marine Ins. Co., supra. Therefore, the petition for the writ of mandamus is due to be denied.

PETITION DENIED.

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

      . Listed as number 20 in the document as a type of personal property was: "Other contingent and unliquidated claims of every nature, including tax refunds, counterclaims of the debtor, and rights to setoff claims. Give estimated value of each." Homer checked "None” in a corresponding box.