author: IRVING, J., for the court. SOUTHWICK, P.J.,

text:
    Dexter Allen NORWOOD, Appellant, v. STATE of Mississippi, Appellee.
    No. 2000-KA-01027-COA.
    Court of Appeals of Mississippi.
    May 27, 2003.

      Jim Davis, Moss Point, attorney for appellant.
    Office of the Attorney General, by Charles W. Maris Jr., attorney for appel-lee.
   ON MOTION FOR REHEARING

IRVING, J., for the court.

¶ 1. The motion for rehearing is granted, the original opinion is withdrawn, and this opinion is substituted.

¶ 2. Dexter Allen Norwood pleaded guilty to kidnaping, attempted forcible sexual intercourse, and attempted rape. He was sentenced to twenty-two years for the kidnaping and ten years each for the attempted rape and attempted forcible intercourse, with the ten years for attempted forcible intercourse to run consecutively to the ten years for attempted rape. The two ten-year terms are to be served day for day without hope of parole or probation and are to run concurrently with the twenty-two year sentence for kidnaping.

¶ 3. Feeling aggrieved, Norwood has appealed and assigns error to the trial court for including in its sentencing order language requiring that the ten-year sentences for attempted forcible intercourse and attempted forcible rape be “served day for day without the benefit of parole or probation pursuant to section 47-7-3 of the Mississippi Code of 1972 as amended.” We find that the included language was surplusage with no legal effect and that Norwood’s sentence should be affirmed.

FACTS

¶ 4. Norwood’s initial sentencing order provided that Norwood’s entire sentence was to be served “under section 99-19-81, Miss.Code of 1972, as amended, said sentence being without hope of parole or probation.” This order was entered on March 29, 2000. On April 7, 2000, Norwood filed a motion to correct what he called a scrivener’s error. In this first motion, Nor-wood sought to remove from the initial sentencing order language indicating that he had been sentenced as a habitual offender under Mississippi Code Annotated § 99-19-81 (Rev.2000). The trial court, by order entered on April 11, 2000, granted the motion and removed the reference to the stated code section. However, in the corrected order, the trial court retained the language indicating that the sentence was “without hope of parole or probation.”

¶ 5. On April 20, 2000, Norwood filed a second motion seeking to correct what he called a scrivener’s error in the “corrected order.” Specifically, he objected to the inclusion of the “without hope of parole or probation” language, arguing that the determination regarding parole or probation was to be made by the Department of Corrections, not the court. On June 2, 2000, the trial court entered what it called a “3rd Corrected Order” in which it corrected the sentencing order to provide that only the two ten-year sentences for the sex crimes were to be served day for day without the benefit of parole or probation. This order was in contrast to the first corrected order which provided that the entire sentence was ordered served day for day without the hope of parole or probation. It is from this last corrected order that Norwood appeals.

¶ 6. The State, in addition to filing a brief, has filed a motion to dismiss arguing that Norwood is attempting to appeal from a conviction rendered pursuant to a guilty plea. The State argues that this attempt is prohibited by Mississippi Code Annotated § 99-35-101 (Rev.2000), which prohibits appeals “in any case where the defendant enters a plea of guilty.”

ANALYSIS AND DISCUSSION OF THE ISSUE

¶ 7. We first consider the State’s contention that this appeal should be dismissed as an attempt to appeal from a conviction on a plea of guilty. The State is correct that a defendant cannot appeal from a conviction on a plea of guilty. However, while the conviction itself cannot be appealed, an illegal sentence handed down pursuant to the plea is appealable. Trotter v. State, 554 So.2d 313, 315 (Miss.1989). Therefore, the question is whether Norwood is attempting to appeal from a guilty plea. Since we do not find that to be the case, the State’s motion to dismiss for lack of jurisdiction is not well taken and is hereby overruled.

¶ 8. Before proceeding to the merits of Norwood’s argument, we note that Norwood filed his notice of appeal on June 23, 2000. The initial sentencing order was filed on March 29, 2000, and the initial corrected sentencing order was filed on April 11, 2000. The final corrected sentencing order was filed on June 2, 2000. Athough the notice of appeal was filed within thirty days of the final corrected order, it was filed more than thirty days after the initial order. As stated, Nor-wood filed two post-trial motions, but neither of them was sufficient to toll the time for taking an appeal as specified in Rule 4(a) and (e) of Mississippi Rules of Appellate Procedure. As far as we can tell from the record, a motion for extension of time to file an appeal was not filed by Norwood in the court below. Therefore, we conclude that when Norwood filed his notice of appeal, the time to prosecute a direct appeal from the initial sentencing order had long since expired because, as stated, his post-trial motions did not toll the running of the thirty-day appeal period.

¶ 9. Only timely-filed motions for enlargement of time to file an appeal, for a new trial, and for judgment of acquittal notwithstanding the verdict can toll the running of the thirty-day appeal time. M.R.A.P. 4(e)(g). We know of no specific procedure to correct a scrivener’s error in the judgment of conviction and sentence in criminal cases. In other words, Rule 60 of Mississippi Rules of Civil Procedure has no counterpart in Mississippi criminal procedure. We have no court-enacted rules of criminal procedure except as are found in the Uniform Rules of Circuit and County Court Practice; no counterpart to Rule 60 reposes in URCCC. However, we view Norwood’s motions as motions for post-conviction relief even though neither the trial court nor the parties have characterized them as such.

¶ 10. The concurring opinion acknowledges precedent for converting certain post-trial motions to post-conviction relief motions but contends that this is not a proper case for such treatment. The concurring opinion does not cite any authority for this contention, that is, that in the interest of judicial economy, an appellate court is without authority to treat a trial court’s ruling on a post-trial motion as a ruling on a motion for post-conviction relief. In the concurring opinion’s view, the case of Bobkoskie v. State, 495 So.2d 497 (Miss.1986), is persuasive authority for the position that Norwood’s post-trial motion should not be recast as a motion for post-conviction relief. While it is true that the Bobkoskie court said that the petition for writ of mandamus to the parole board should have been dismissed without prejudice to the prisoner’s bringing a post-conviction relief motion, that was an admonition to the trial court. Id. at 499. What is significant, however, is that the Mississippi Supreme Court in Bobkoskie did just what we are doing here, that is, considered the matter under the Uniform Collateral Post-Conviction Relief Act (PCR Act). Id. at 500-01.

¶ 11. The concurring opinion argues that our treating Norwood’s motions in the court below as post-conviction relief motions precludes Norwood from later “receiving the benefit that the post-conviction procedures provide for a one-time and careful consideration of all issues that might provide some relief from a guilty plea.” To this assertion, we can only say that Norwood, not the court, chose to file the motion. He must bear the legal consequences. The concurring opinion also points out that a trial court has the authority, prior to the expiration of the term to modify a sentence handed down during the term. We do not disagree with this observation, and nothing in this opinion is intended to suggest that the trial court does not possess this authority. However, we point out that, according to the State of Mississippi Judiciary Directory and Court Calendar of which we take judicial notice, the March 2000 term of court of Harrison County expired on March 31, seven days prior to the filing of Norwood’s first motion.

¶ 12. Additionally, the concurring opinion cites a number of pre-Post-Conviction Collateral Relief Act cases for the proposition that a trial court possesses the inherent authority or “power to correct a judgment rendered at a former term of the court.” We do not disagree with this position, but the correction cannot be made in a procedural vacuum. Whatever may have been the procedure prior to the enactment of the PCR Act, it seems clear now that a motion for post-conviction relief is the vehicle for addressing errors which are not appropriately covered by a direct appeal. Miss.Code Ann. § 99-39-3 (Rev.2000).

¶ 13. Mississippi Uniform Post-Conviction Collateral Relief Act is the legal vehicle for judicial redress of claims by prisoners that “the trial court was without jurisdiction to impose sentence.” Miss. Code Ann. § 99-39-5 (Rev.2000). Here, Norwood claims that the trial court was without statutory jurisdiction to impose the “day for day without the benefit of parole or probation” provision. Therefore, we find that the trial court possessed the authority to rule on Norwood’s motions.

¶ 14. As stated, Norwood’s first motion was filed on April 7, 2000. The only relief requested by Norwood in this motion was the elimination of that portion of the order which stated that he was being sentenced as a habitual offender. As stated, the initial sentencing order contained the “day for day without the benefit of parole or probation” provision, but Norwood did not attack this provision. Perhaps, he may have thought that the provision was subsumed in the habitual offender provision and that would be taken care of by getting the habitual offender provision eliminated. If that was Norwood’s view of things, then there was no need to file an additional motion. In any event, a corrected order was entered on April 11, 2000. In this corrected order, as stated, the portion of the initial sentencing order defining Nor-wood’s status as a habitual offender was stricken, but the portion defining the sentence as being without parole or probation was left in. Norwood did not appeal from this order. Instead, he filed a second motion on April 19, 2000.

¶ 15. As we have already pointed out, in this second motion, Norwood attacked the trial court’s authority to include the “without hope of parole or probation” provision in the sentencing order. We find that the second motion was a successive PCR motion barred by the provisions of Mississippi Code Annotated § 99-39-23 (Rev.2000). However, when fundamental rights are at stake, the procedural bar may be waived. Ivy v. State, 731 So.2d 601, 603(¶13) (Miss.1999); Sneed v. State, 722 So.2d 1255, 1257(¶ 11) (Miss.1998). We hold that the allegation that the trial court exceeded its authority in the sentencing process implicates a fundamental right, for such a sentence would in all likelihood be illegal. Therefore, just as the Sneed court, notwithstanding the procedural bar, addressed an allegation that the defendant’s sentence was illegal, we address Norwood’s contention that the trial court was without authority to include the “without hope of parole or probation” provision in the sentencing order.

¶ 16. We agree with Norwood that the trial court should not have included the restrictive language in the sentencing order since the statute which prohibits the grant of parole to persons convicted of a crime after June 30, 1995, (Mississippi Code Annotated section 47-7-3(l)(g) (Rev. 2000)) is a mandate to the parole board and not to the courts. Gardner v. State, 514 So.2d 292, 294 (Miss.1987). Inclusion of such restrictive language in the sentencing order is unnecessary and surplusage. Id. While we find that the language was surplusage and should not have been included, we nevertheless decline to grant any relief because the inclusion of the restrictive language does not in fact impair the fundamental right to be free from an illegal sentence since Norwood’s sentence is not illegal.

¶ 17. The concurring opinion recognizes that the trial judge, by including the restrictive language, cannot tie the hands of the parole board. Nevertheless, the concurring opinion says it was proper for the trial judge to include the questioned language because inclusion of the language did not make the sentence illegal. This assertion seems to fly in the face of Gardner. But to be clear, we do not hold or suggest that inclusion of the restrictive language in the second corrected order made the sentence illegal, just that, pursuant to the teachings in Gardner, it was not the province of the trial court to address the propriety of parole in the sentencing order. Therefore, we affirm the decision of the trial court notwithstanding the verbiage in the sentencing order.

¶ 18. THE JUDGMENT OF THE CIRCUIT COURT OF HARRISON COUNTY OF CONVICTION OF ATTEMPTED RAPE IN CAUSE NO. Bl-98-1012 AND SENTENCE OF TEN YEARS; COUNT II, CAUSE NO. Bl-99-295, KIDNAPING, AND SENTENCE OF TWENTY-TWO YEARS; COUNT III, ATTEMPTED FORCIBLE SEXUAL INTERCOURSE AND SENTENCE OF TEN YEARS- WITH SENTENCE FOR ATTEMPTED RAPE TO RUN CONSECUTIVELY TO SENTENCE IN COUNT III; THESE SENTENCES SHALL RUN CONCURRENTLY WITH SENTENCE IN COUNT II FOR A TOTAL OF TWENTY-TWO YEARS IN THE CUSTODY OF THE MISSISSIPPI DEPARTMENT OF CORRECTIONS IS AFFIRMED. ALL COSTS OF THIS APPEAL ARE ASSESSED TO HARRISON COUNTY.

KING, P.J., BRIDGES, LEE, MYERS AND CHANDLER, JJ„ CONCUR. THOMAS, J., CONCURS IN RESULT ONLY. SOUTHWICK, P.J., CONCURS WITH SEPARATE WRITTEN OPINION JOINED BY McMILLIN, C.J. GRIFFIS, J., NOT PARTICIPATING.

SOUTHWICK, P.J.,

concurring.

¶ 19. The majority finds that the defendant after his guilty plea was given a sentence whose terms included surplusage. Successive motions to correct the sentence were not totally successful. While the motions were being considered, the time for taking an appeal expired. The majority converts the motions into requests for post-conviction relief, finds that the appeal from the denial of such relief was timely brought, but finds that the language was surplusage.

¶20. I would prefer just joining the majority, as our disagreement here has no practical effect on this case. However, since the lead opinion will now stand as precedent, I wish to discuss three matters that I believe should have been analyzed differently. First, it appears to me that the requests for correction of sentence made immediately after the sentence was entered should not be shifted into the post-conviction relief regime, which neither party nor the lower court considered appropriate. Secondly, I find no error — even surplusage error — in the language in the sentence. Finally, I find that the appeal was untimely filed and should be dismissed.

¶ 21. Norwood’s motions were seeking a correction of his sentence. No precise procedure for that exists, as the majority discusses. Though there are precedents in which certain motions have been converted into post-conviction relief motions, I believe it is inappropriate to do so here. This effectively blocks Norwood from later utilizing the post-conviction procedures for his one-time consideration of all issues that might be appropriate to raise. The majority notes this but suggests that Norwood is merely being made to lie in a bed of his own choosing. With respect, I believe that Norwood is being placed in a bed of the majority’s choosing.

¶ 22. Each time Norwood returned to court through his filings, he and the trial court and the prosecutor considered that Norwood was still attempting to get his initial sentencing order correct. If at some point there no longer was authority for the court to make further alterations, I find that the defendant should not automatically and unknowingly be shifted into an entirely different procedure that will be available to him only once. Such an inadvertent waiver of post-conviction rights should not lightly be exacted.

¶ 28. If there was no other procedure to utilize, and if post hoc imposing of the label of post-conviction relief serves no meaningful purpose either to the court or to the parties, then we should find simply that Norwood’s successive motions at some stage became nullities. I so find and also find that the appeal that dates from the last such null motion was untimely.

1. Procedure for considering motions to correct sentence

¶ 24. Norwood was sentenced on March 29, 2000. On April 7 he filed a motion to correct, which was granted in part on April 11. Norwood filed his second motion on April 20, which again was granted in part on June 2. Both motions were attempting to remove references to the unavailability of parole or probation. The notice of appeal was then filed on June 23, 2000.

¶25. We must analyze this appeal in light of various precedents that have permitted trial judges to correct sentences that as originally pronounced were beyond the court’s authority. For example, when it was discovered that a statute permitting a harsher sentence for sale of marihuana was not yet in effect at the time that the defendant committed his offense, the Supreme Court held that the trial judge had the authority to correct it:

When sentences are imposed in excess of statutory authority, such sentences should be corrected by the trial courts on motion to correct sentence which may be filed and heard in term time or in vacation.

King v. State, 304 So.2d 650, 651 (Miss.1974). In that case, the Supreme Court encouraged trial courts to make the corrections when brought to their attention and not require “the expense and delay occasioned by an appeal to this Court.” Id.

¶26. Just as pointedly, the Supreme Court held that the “ ‘power to correct a judgment rendered at a former term of the court, so as to strike out the judgment erroneously entered by mistake of the clerk and substitute for it the wholly different judgment actually entered by the court, is a power inherent in every court, and is not derived from statute.’ ” Bynum v. State, 222 Miss. 632, 640, 76 So.2d 821, 825 (1955), quoting Wilson v. Town of Hansboro, 99 Miss. 252, 54 So. 845, 847 (1911). A more recent decision held that “undoubtedly there are circumstances wherein a court does retain the authority to correct clerical errors in its orders.... ” Sisson v. State, 483 So.2d 1338, 1339 (Miss.1986). In addition, a trial “court does have inherent power to correct judgments obtained through fraud, accident or mistake, which is reviewable through a writ of error coram nobis.” Harrigill v. State, 403 So.2d 867, 869 (Miss.1981).

¶ 27. What these cases hold is that there is inherent authority for a trial judge to correct both clerical and more significant errors that appear in a criminal judgment. The only case that named a specific procedure that should be followed was Harrigill, which named the writ of error coram nobis as appropriate. If Harrigill canvassed the authorities and properly identified the sole procedure, then it is quite relevant that the later-adopted post-conviction relief statutes explicitly displaced the writ of habeas corpus and the writ of error coram nobis. Miss.Code Ann. § 99-39-3(1) (Rev.2000). This statute states that these writs were “abolished” and the “relief formerly accorded by such writs may be obtained by an appropriate motion under” the post-conviction relief statutes. Id. That phrasing is unfortunate, as the constitutionally protected writ of habeas corpus cannot be abolished by statute. U.S. Const, art. I, § 9; Miss. Const, art. 3, § 21 (1890). It is more accurate to say that the procedures for the writ of habeas corpus in post-conviction matters have been established by these statutes, but the writ itself remains alive. Walker v. State, 555 So.2d 738, 740 (Miss.1990). Since the writ of error coram nobis has no constitutional permit, it more readily may be said to have been abolished by these statutes. Regardless, the post-conviction relief statutes were enacted in 1984 and prior caselaw on altering sentences is suspect. 1984 Miss. Laws ch. 378. I will try to show proper suspicion about those older authorities as I analyze what occurred here.

¶ 28. Consistent with the interpretation that a trial court’s inherent authority in this area is now explicitly channeled through the post-conviction relief statutes are the numerous precedents that have condemned the practice of trial courts’ modifying sentences months if not years after they were entered. The Supreme Court has held that there is no inherent power to alter or amend a sentence. Mississippi Commission on Judicial Performance v. Russell, 691 So.2d 929, 944 (Miss.1997). The practice being criticized in that and related cases is for a judge months after a valid sentence has been entered to reduce and even suspend that sentence. Russell, 691 So.2d at 932; Mississippi Commission on Judicial Performance v. Sanders, 708 So.2d 866, 872 (Miss.1998); Harrigill, 403 So.2d at 868-69.

¶29. In none of those cases do I find that the original sentence was illegal. Instead, the trial court was acting as a quasi-parole board to determine whether a reduction was justified. Still, the Supreme Court has held that once the term of court expires in which the original sentence was entered, the authority to alter the sentence is extinguished. Kennedy v. State, 732 So.2d 184, 186 (Miss.1999). What is crucial is that a motion to correct a sentence be filed prior to the end of the court term; it can then be ruled upon in due course even if the term has expired. Miss.Code Ann. § 11-1-16 (Rev.1991); Presley v. State, 792 So.2d 950, 954 (Miss.2001).

¶ 30. There are a few contrary indications in the caselaw. It has occasionally been emphasized that there is no right to modify a sentence when the sentence is a lawful one, suggesting there may be authority when the sentence is unlawful. Mitchell v. State, 561 So.2d 1037, 1039 (Miss.1990). In Mitchell, the State and trial judge erroneously believed that the original sentence had been illegal. The trial judge had stated at the original sentencing hearing that the defendant would be barred from receiving parole, but the actual sentencing order did not contain that limitation. Therefore, though that limitation would have been illegal, it was not in the sentence. Mitchell, 561 So.2d at 1038-39.

¶ 31. Another contrary indication is that the post-conviction relief statutes likely are unnecessary to attack an illegal sentence. Correction of an improper sentence is a fundamental right and cannot be restricted by the successive motion or statute of limitation rules of the post-conviction relief statutes. Sneed v. State, 722 So.2d 1255, 1257 (Miss.1998). If such a claim is allowed to proceed regardless of specific prohibitions in the post-conviction statutes, then arguably the prisoner’s right to bring a claim is independent of whatever might be said statutorily about procedure.

¶ 32. Nonetheless, the most reasonable interpretation of the precedents is that once all motions have been resolved that were filed in the term of court in which sentencing occurred, the proper means to complain of sentencing error is through the post-conviction relief statutes. The exact procedural mechanism during the term of court is not altogether clear. There are precedents that hold that the right for a defendant to file a motion for new trial within ten days does not include filing a motion for reconsideration of a sentence. URCCC 10.05 (criminal defendant has 10 days to file for a new trial); Dickerson v. State, 731 So.2d 1082, 1085 (Miss.1998) (Rule 10.05 inapplicable for resentencing), overruled on other grounds in Presley, 792 So.2d at 953. Whatever the procedure, the cited precedents reveal that trial judges have the authority to modify during the court term.

¶ 33. Now I look at the application of these principles to what Norwood attempted to do. Harrison County has monthly terms of court. Mississippi SECRETARY of State, Judiciary Directory & Court Calendar 30 (2002). It appears that the first motion filed, which was on April 7 after Norwood’s sentencing on March 29, was seeking relief from a sentence after the term ended. Regardless, his last motion on June 2 certainly was beyond the term of court.

¶ 34. The majority takes this defect and corrects it by fitting Norwood’s motions within post-conviction relief procedures. The filings did not have the form of motions under those statutes. For example, the April 19 motion contains four paragraphs. They described the previous motions and orders on sentencing, explained why counsel believed that it is for the Department of Corrections to determine parole and probation eligibility, and requested that the language be removed. Had this been a motion under the post-conviction relief statutes, various assertions needed to be made about facts within and outside Norwood’s knowledge, and Norwood himself was to verify the motion under oath. Miss.Code Ann. § 99-39-9 (Rev.2000). That form and verification are absent.

¶ 35. Through the post-conviction relief motion, prisoners have a “procedure, limited in nature, to review those objections, defenses, claims, questions, issues or errors which in practical reality could not be or should not have been raised at trial or on direct appeal.” Miss.Code Ann. § 99-39-3(2) (Rev.2000). What Norwood instead was attempting was to correct something that had occurred at trial and which was properly reviewable on appeal. The illegality of a sentence is appealable despite a guilty plea. Berry v. State, 722 So.2d 706, 707 (Miss.1998).

¶ 36. When a motion with a different title has been transformed into a post-conviction relief motion, it has usually been obvious that the prisoner was actually seeking such relief but was avoiding or was ignorant of the proper designation. Williams v. Castilla, 585 So.2d 761, 763 (Miss.1991) (habeas corpus); Grubb v. State, 584 So.2d 786, 788 (Miss.1991) (sought to escape successive writ bar by using label “habeas corpus”); Moore v. Ruth, 556 So.2d 1059, 1061 (Miss.1990) (ha-beas corpus). In an earlier precedent, however, the court held that a petition requesting a writ of mandamus to the Parole Board should have been dismissed without prejudice to the prisoner’s bringing a post-conviction relief motion. Bobkoskie v. State, 495 So.2d 497, 499 (Miss.1986). The Supreme Court did nonetheless address whether the appeal, if considered as. an appeal from denial of post-conviction relief, had any merit. It found that it did not. Id.

¶ 37. The majority uses this last element of Bobkoskie to find support for its conversion theory. Alternative reasoning is standard appellate practice. Since the Bobkoskie court had already found that the proper procedure was to have dismissed at the trial court without prejudice, its ruling on the merits might similarly be without prejudice to a later post-conviction relief motion. I have no objection to such a resolution here. I too would be willing to say that though the trial court ran out of procedure to consider Norwood’s continuing efforts to correct his sentence and should have dismissed the motion, we could also look at the matter in the alternative and find no merit in the motion. In fact, I do so find. Bobkoskie supports that the one-time post-conviction remedy was not unknowingly exhausted by Norwood. But that is noted only as an alternative.

¶ 38. Traditionally, when courts reconfigure proceedings, it is in order to further a sufficient interest such as judicial efficiency without sacrificing any rights of the parties. The majority finds that this statement breaches the Golden Rule of appellate reasoning, which is a failure to cite authority. Maybe so. Perhaps on occasion, though, an appellate court should stand back from its cut and paste endeavors and seek unifying principles, such as there are. I find that one such pervasive principle is that procedural rules provide order and predictability, protecting parties and the courts from many scourges. Rules may not be applied when, for example, a suspension serves the “interest of expediting decision, or for other good cause” in the case. M.R.A.P. 2(c). A similar principle was applied to recasting a mislabeled filing as one for post-conviction relief:

With regard to their claim of ineffective assistance of counsel and, as well, their specific claim that they were denied their right of allocution before the Circuit Court, the Jaco brothers asked in the alternative that their papers be treated as an application for post-conviction relief. Common sense, judicial efficiency and long-standing precedent suggest we ought allow such a process.

Jaco v. State, 574 So.2d 625, 685 (Miss.1990).

¶ 39. I find here no serving of the interests of “common sense [or] judicial efficiency,” nor support in precedent to reform the motions into post-conviction relief papers. To do so prejudices Norwood should he later wish a broader consideration of the issues that arose from his plea. The choice being made is solely by this Court. The trial court and the parties did not consider the motions under those statutes. I especially find no reason to do so when the problematic language in the sentence is found by the majority only to be surplusage.

2. The parole and probation language is proper

¶ 40. The majority holds that it is improper for a sentence to include the language “without hope of parole or probation.” That sentencing language surely is incorrect when by statute a prisoner is eligible for either. The Parole Board and not the trial court has jurisdiction over parole. E.g., Shanks v. State, 672 So.2d 1207, 1208 (Miss.1996). Yet that does not mean that when a person is ineligible for probation or parole, that the sentence must be silent about that fact.

¶ 41. The difference between a trial court’s unauthorized attempt to remove eligibility for parole and the court’s referring to statutory ineligibility should not be confused:

Brown claims that the wording of the sentencing order turned his twenty (20) year sentence on the rape conviction into a mandatory sentence, thereby revoking his parole eligibility. However, exclusive power over the granting and revoking of parole is vested in this State’s parole board. Generally, a trial court has no authority to remove or a revoke a prisoner’s parole eligibility. Certain statutes specify that a trial court may or must impose a sentence “without the possibility of parole.” But this sentencing authority is separate and distinct from the parole board’s authority to grant or revoke parole. Here the trial court’s sentencing options upon a conviction of rape did not include imprisonment without parole. Therefore, the trial court had no authority to revoke or limit Brown’s parole eligibility.

Brown v. State, 731 So.2d 595, 598-99 (Miss.1999) (citations omitted, emphasis added). The Court went on to say “that where the trial court has no statutory authority to limit parole, language purporting to do so is without legal effect. Language contained in a sentencing order which amounts to conditions which the trial court has no authority to impose ‘would be treated as surplusage and would not affect the enforcement of the valid portion of the sentence.’ Cain v. State, 337 So.2d 935, 936 (Miss.1976).” Brown, 731 So.2d at 599.

¶42. Quite obviously, ineligibility for parole is something that exists; indeed, it is mandatory in some cases. When “the trial court has no statutory authority to limit parole, language purporting to do so is without legal effect.” Id. That is not orn-ease. Obviously, there are statutory commands to bar probation and parole. In a precedent cited by the majority, the Supreme Court found that mentioning such statutory language is “unnecessary and surplusage.” Gardner v. State, 514 So.2d 292, 294 (Miss.1987). Yet it is not error to do so. I can find no precedent that referring to parole in any way invalidates the sentence if by statute the person is ineligible for parole because of the kind of crime that he has committed. The majority agrees that the sentence should stand. A trial judge cannot tie the Parole Board’s hands. The legislature can, however.

¶ 43. A sentencing order that restates a statutory prohibition on probation or parole says more than it must, but it does not say more than it may. Perhaps this captures the inconsequential disagreement on the sentence issue that I have with the majority. Though Gardner uses the language of “unnecessary and surplusage,” I find that there are several situations in which it is quite artificial for a sentence not to refer to the ineligibility for probation and parole. For a sentencing order to provide for life imprisonment without the possibility of probation or parole for capital murder when a jury assesses that penalty is not illegal; it simply states the accurate sentence. Miss.Code Ann. § 99-19-101(1) (Rev.2000). A cursory search reveals that the Supreme Court has recently affirmed without comment a sentence that was without the possibility of probation or parole. Smith v. State, 835 So.2d 927, 930 (Miss.2002). So have we. Collins v. State, 817 So.2d 644, 660 (Miss. Ct.App.2002). Sentencing orders quite naturally often indicate the entirety of the statutory sentence.

¶44. I do not discuss whether Nor-wood’s sentence was for a crime that the legislature has stated could not result in probation or parole. My disagreement with the majority is whether there is anything wrong with the practice of noting a statutory bar to probation or parole in a sentence.

3. Dismissal of Appeal

¶ 45. Regardless of the question of the proper procedural mechanism for a correction of a sentence even during the term of court in which the first sentence was pronounced, Norwood never received the relief that he wanted. Once the term of court ended and any motion pending at that time was ruled upon, Norwood had thirty days from the last operative order to file a notice of appeal. M.R.A.P. 4(a). Norwood did not file his notice of appeal until it was too late.

¶ 46. I would dismiss the appeal.

McMILLIN, C.J., JOINS THIS SEPARATE WRITTEN OPINION.

      . Although the order was entitled "3rd Corrected Order,” our examination of the record indicates that it was the third order but only the second corrected order.

      . In his various motions, Norwood sought to correct a scrivener’s error in the order entered on March 29, 2000. However, in the criminal context, there is no counterpart to Rule 60 of Mississippi Rules of Civil Procedure which allows correction of clerical mistakes at any time prior to transmission of the record to the appellate court.


source: Caselaw Access Project

author: CHANDLER, J.,

license: Public Domain

text:
    In the Matter of the ESTATE OF Betty J. ENGLAND Deceased. Willie England, Jr., Administrator C.T.A. of the Estate of Betty England, Deceased, Appellant, v. Cassandra England, as Mother and the Next Friend of Kentrell England, Demarcus England and Demetrius England, Minors, Appellee.
    No. 2001-CA-01630-COA.
    Court of Appeals of Mississippi.
    May 27, 2003.

      Barrett Blake Teller, for appellant.
    F. Ewin Henson, James D. Shannon, Hazlehurst, William Buckley Stewart, for appellee.
    Before THOMAS, P.J., IRVING and CHANDLER, JJ.
   CHANDLER, J.,

for the Court:

¶ 1. Betty J. England executed a holographic instrument prior to her death. The instrument purports to convey to Betty’s ex-husband, Willie England, Jr., up to one million dollars of any recovery from a law suit arising from Betty’s consumption of the drug Rezulin. Willie England, Jr. has appealed the order of the Chancery Court of Warren County concluding that the holographic instrument is superceded by the wrongful death statute, that the instrument is not a valid assignment, and that Willie must be removed as Administrator C.T.A. of Betty’s estate in favor of Betty’s daughter-in-law, Cassandra England.

¶ 2. Finding no error, we affirm.

FACTS AND PROCEDURAL HISTORY

¶3. Willie and Betty were married in 1961 and divorced in 1996. One child was born of the marriage, Willie Demetrius England. In 1991, Willie Demetrius England married Cassandra Adams, and the couple had two children, Demetrius and Demarcus England. In 1998, Willie Demetrius England died of cardiac arrest.

¶ 4. In the years prior to her death, Betty J. England suffered from diabetes and was treated with the drug Rezulin. The parties allege that Betty suffered personal injuries from Rezulin, but no evidence of the nature and extent of those injuries has been submitted on appeal. On March 20, 2000, Betty signed a contract retaining the law firm of Shannon & Munn, PLLC, to prosecute a personal injury action against the manufacturers of Re-zulin. On April 22, 2000, Betty England signed a letter agreeing for Shannon & Munn, PLLC, to associate Upshaw, Williams, Biggers, Beckham & Riddick, LLP, for prosecution of the claim.

¶ 5. Betty maintained a relationship with Willie England, Jr. subsequent to the divorce. On June 3, 2000, Willie England, Jr. drove Betty to the courthouse, where she executed the holographic instrument. The instrument states:

To Whom it May Concern
I Betty J. England on this day 6 3 2000 agreed to give my ex husband one million dollar I want this to be carry out after I get my money aliso I want to after the grandchildren to make sure that they are take care of. in case that something happen to me this is to be carry out by any attorneys,
your turly
Betty J. England
s/Betty J. England
s/Faye Williams
Notary Public
Mississippi and Shannon & Munn PLLC Attorneys at Law
if something happen to me I want my ex husband to carry on
Betty J. England

¶ 6. On August 23, 2000, Betty England died of cardio-pulmonary arrest. On August 31, 2000, Cassandra England retained Shannon & Munn, PLLC, to pursue a wrongful death claim against the manufacturers of Rezulin. Cassandra proceeded as the next friend of the wrongful death beneficiaries and heirs at law of Betty England, whom she identified as Kentrell, Demarcus and Demetrius England.

¶ 7. On November 29, 2000, Willie England, Jr. filed a “Petition for Probate of Holographic Will in the Estate of Betty J. England” in the Warren County Chancery Court. On the same date, the chancery court admitted the will to probate and appointed Willie England, Jr. as the Administrator C.T.A. of Betty’s estate.

¶ 8. On March 7, 2001, Cassandra filed a “Petition to Revoke Probate of Holographic Will, for Removal of Administrator C.T.A. and Appointment of Person with Higher Priority, for Determination of Heirs-At-Law and Wrongful Death Beneficiaries, and for Court Approval of Employment Contracts.” The petition contested the validity of the holographic instrument and alleged it was superceded by the wrongful death statute, Miss.Code Ann. § 11-7-13. The petition further sought removal of Willie England, Jr. as Administrator C.T.A. of Betty’s estate and approval of the legal employment contracts made by Betty England.

¶ 9. In his answer to the petition, Willie England, Jr. argued that the instrument is a valid and enforceable holographic will and is not superceded by the wrongful death statute, or alternatively, that the instrument is a valid assignment of a chose in action pursuant to Miss.Code Ann. § 11-7-3. Willie further argued that he should remain Administrator C.T.A. of Betty’s estate. Willie also argued that Betty’s legal contracts are not enforceable against the estate.

¶ 10. The chancellor held a hearing on June 14, 2001. The parties stipulated that the drug Rezulin may have caused or contributed to Betty England’s death, and that Demarcus and Demetrius England are the grandchildren of Betty England. The parties also stipulated that the legal employment contracts between Betty England and Shannon & Munn, PLLC, and between Cassandra England and Shannon & Munn, PLLC, are valid.

¶ 11. In her opinion, the chancellor determined that it was the intent of Betty England to give Willie England, Jr. one million dollars out of any proceeds of her Rezulin suit. The chancellor referred to the holographic instrument as a will. The chancellor also made the following findings:

(1) the wrongful death statute is intended to compensate the specifically named heirs of the deceased, and, therefore, the “holographic will cannot be used to circumvent the wrongful death statute by which the benefits were to come into existence;”
(2) any lawsuit on behalf of Betty England must be brought pursuant to the wrongful death statute.
(3) the holographic instrument was not a valid assignment;
(4) Demarcus and Demetrius England are the sole heirs of Betty England pursuant to the wrongful death statute;
(5) Willie England, Jr. must be removed as Administrator C.T.A. and Cassandra England, as natural guardian of the minor wrongful death beneficiaries, must be substituted as Administratrix C.T.A.;
and
(6)the legal employment contracts between Betty England and Shannon & Munn, PLLC, were enforceable against Betty’s estate.

LAW AND ANALYSIS

¶ 12. Willie England, Jr. has appealed the chancellor’s findings on the issues of applicability of the wrongful death statute, assignment, and appointment of an Administrator C.T.A. This appeal raises no questions of fact. Our review of the chancellor’s conclusions of law is de novo. Estate of Grubbs v. Woods, 753 So.2d 1043, 1047 (¶ 10) (Miss.2000).

I. WHETHER MISSISSIPPI’S WRONGFUL DEATH STATUTE SUPERCEDES AND CIRCUMVENTS THE EXPRESSED INTENT OF BETTY J. ENGLAND AS SET OUT IN THE HOLOGRAPHIC INSTRUMENT DATED JUNE 3, 2000.

¶ 13. The chancellor found that the holographic instrument executed by Betty J. England evinced Betty’s intent to give or to devise to her ex-husband, Willie England, Jr., one million dollars of any proceeds from her Rezulin lawsuit. A decedent’s property passes according to the decedent’s valid will. Tinnin v. First United Bank of Mississippi, 502 So.2d 659, 665 (Miss.1987). It is well established that a testator’s intent is given effect only when that intent does not violate the law or public policy. Cross v. O’Cavanagh, 198 Miss. 137, 147, 21 So.2d 473, 474 (1945). We must determine whether the chancellor correctly concluded that any right of Willie England, Jr. to recover under the holographic instrument is superceded by Mississippi’s wrongful death statute. We hold that the chancellor’s decision was correct.

¶ 14. Our analysis begins with the wrongful death statute. At common law, any cause of action for personal injury resulting from the tortious conduct of another was extinguished upon the death of the injured person. Gentry v. Wallace, 606 So.2d 1117, 1120 (Miss.1992). In 1846, England passed Lord Campbell’s Act, a group of statutes abrogating the harsh common law rule by allowing certain causes of action to survive death. Id. In 1892, Mississippi enacted statutes based on the Act, including the wrongful death statute, the current version of which is found at Miss.Code Ann. § 11-7-13 (Supp.2002). Gentry, 606 So.2d at 1120. The current statute provides, in pertinent part:

Whenever the death of any person shall be caused by any real, wrongful or negligent act or omission, or by such unsafe machinery, way or appliances as would, if death had not ensued, have entitled the party injured or damaged thereby to maintain an action and recover damages in respect thereof, or whenever the death of any person shall be caused by the breach of any warranty, express or implied, of the purity or fitness of any foods, drugs, medicines, beverages, tobacco or any and all other articles or commodities intended for human consumption, as would, had the death not ensued, have entitled the person injured or made ill or damaged thereby, to maintain an action and recover damages in respect thereof, and such deceased person shall have left a widow or children or both, or husband or father or mother, or sister, or brother, the person or corporation, or both that would have been liable if death had not ensued, and the representatives of such person shall be liable for damages, notwithstanding the death, and the fact that death was instantaneous shall in no case affect the right of recovery. The action for such damages may be brought in the name of the personal representative of the deceased person for the benefit of all persons entitled under the law to recover, or by widow for the death of her husband, or by the husband for the death of the wife, or by the parent for the death of a child, or in the name of a child, or in the name of a child for the death of a parent, or by a brother for the death of a sister, or by a sister for the death of a brother, or by a sister for the death of a sister, or a brother for the death of a brother, or all parties interested may join in the suit, and there shall be but one (1) suit for the same death which shall ensue for the benefit of all parties concerned, but the determination of such suit shall not bar another action unless it be decided on its merits. In such action the party or parties suing shall recover such damages allowable by law as the jury may determine to be just, taking into consideration all the damages of, every kind to the decedent and all damages of every kind to any and all parties interested in the suit....
A wrongful death action may be maintained or asserted for strict liability in tort or for any cause of action known to the law for which any person, corporation,1 legal representative or entity would be hable for damages if death had not ensued.
In an action brought pursuant to the provisions of this section by the widow, husband, child, father, mother, sister, or brother of the deceased, or by ah interested parties, such party or parties may recover as damages property damages and funeral, medical, or other related expenses incurred by or for the deceased as a result of such wrongful or negligent act or omission or breach of warranty, whether an estate has been opened or not. Any amount, but only such an amount, as may be recovered for property damage, fu/neral, medical or other related expenses shall be subject only to the payment of the debts or other related expenses. All other damages recovered under the provisions of this section shall not be subject to the payment of the debts or liabilities of the deceased, except as hereinafter provided, and such damages shall be distributed as follows:
Damages for the injury and death of a married man shall be equally distributed to his wife and children, and if he has no children all shall go to his. wife; damages for the injury and death of a married woman shall be equally distributed to the husband and children, and if she has no children all shall go to the husband; and if the deceased has no husband or wife, the damages shall be equally distributed to the children; if the deceased has no husband, nor wife, nor children, the damages shall be distributed equally to the father, mother, brothers and sisters, or such of them as the deceased may have living at his or her death. If the deceased have neither husband, nor wife, nor children, nor father, nor mother, nor sister, nor brother, then the damages shall go to the legal representative, subject to debts and general distribution, and the fact that the deceased was instantly killed shall not affect the right of the legal representative to recover. All references in this section to children shall include descendants of a deceased child, such descendants to take the share of the deceased child by representation....

Miss.Code Ann. § 11-7-13 (Supp.2002) (emphasis added).

¶ 15. Several aspects of the action for wrongful .death are worth mentioning. The statute provides that the wrongful death suit may be brought by the personal representative of the estate for the benefit of the listed relatives, or by one of the listed relatives for the benefit of all. Id. If none of the listed relatives survives the decedent, the damages become an asset of the decedent’s estate to be used in payment of the debts of the estate, with any residue to be distributed according to the will or under the law of descent and distribution in the case of intestacy. Id.; Smith v. Garrett, 287 So.2d 258, 261 (Miss.1973).

¶ 16. This system is in accord with the theory supporting our wrongful death statute. States originally enacted wrongful death statutes based on either of two lines of authority, the survival theory or the new cause of action theory. Byars v. Austin, 218 So.2d 11, 15 (Miss.1969). Under the survival theory, a wrongful death statute perpetuates the right to sue which the negligently injured decedent had until death. Id. Mississippi’s wrongful death statute is based on the new cause of action theory. Id. Under that theory, the statute creates a new cause of action that accrues at death in favor of the heirs listed in the statute. Id.; Gentry, 606 So.2d at 1119.

¶ 17. Thus, “wrongful death has been recognized as a tort separate and distinct from other personal injury actions.” Gentry, 606 So.2d at 1119 (citing Partyka v. Yazoo Development Corp., 376 So.2d 646, 650 (Miss.1979)). The distinction is reflected by the purposes underlying recovery of damages in each type of action. In a suit for personal injury, the damages are intended to compensate the injured person for the injuries sustained. Gentry, 606 So.2d at 1120. In a suit for wrongful death, the damages are intended to compensate the statutory wrongful death heirs for their losses resulting from the death. Id.

¶ 18. The Mississippi Supreme Court has held that the statutory purpose of compensating the wrongful death heirs cannot be circumvented by the decedent’s will. Partyka, 376 So.2d at 650. In Partyka, a husband and wife were killed in an accident, but the wife briefly survived the husband. Id. at 648. The court found that a wrongful death action accrued at the instant of the husband’s death in favor of any surviving relative of the first degree of statutory beneficiaries, namely, wife and children. Id. Since the wife survived the husband, and there were no children, at the instant of the husband’s death the action accrued to the wife; at her death, it became an asset of her estate. Id. Therefore, the decedent’s mother, as a surviving relative of the second degree, lacked standing under the statute to bring suit for the death. Id.

¶ 19. The decedent’s mother alternatively argued that, as the sole beneficiary of the decedent’s will, she should be allowed to bring suit because a last will and testament should circumvent the wrongful death statute. Id. at 650. The court found this argument without merit because the wrongful death statute creates a new cause of action in favor of the statutory beneficiaries. Id. The deceased may not devise that which he does not have. Id. Therefore, a wrongful death action cannot become a part of the wrongful death victim’s estate except in the circumstance when, as provided by the statute, no statutory heirs survived the wrongful death victim. Id.

¶20. In the instant case, Willie England, Jr. admits that Betty England’s grandchildren, Demarcus and Demetrius England, are her sole statutory wrongful death heirs. Miss.Code Ann. § 11-7-13 (Supp.2002). Willie further admits Party-ka’s holding that a will cannot bequeath the recovery from a suit for the death because that recovery belongs exclusively to the surviving statutory heirs. Partyka, 376 So.2d at 650. Willie asserts that, when Betty suffered personal injuries from taking Rezulin, an action for those injuries accrued, and that this occurred on or before the date that Betty retained counsel to sue Rezulin’s manufacturers. Willie’s contention is that the will did not devise proceeds of an action for Betty’s death from Rezulin. Rather, Willie avers, the will devised proceeds from the personal injury action that had accrued prior to Betty’s death. He asserts that the personal injury action belonged to Betty as of the date it accrued and she was free to devise it as she wished.

¶ 21. Mississippi’s survival statute allows an estate administrator to commence and prosecute any personal action which the decedent might have commenced and prosecuted. Miss.Code Ann. § 91-7-233 (Rev.1994). The term “personal action” includes actions for injuries to person or property. J.H. Leavenworth & Son, Inc. v. Hunter, 150 Miss. 245, 267, 116 So. 593, 596 (1928). Any recovery from such an action becomes an asset of the estate, and, like any other asset, is subject to distribution according to the will or according to the law of descent and distribution. Miss.Code Ann. § 91-7-91 (Rev.1994). We construe the survival statute in pari materia with the wrongful death' statute. Thornton v. Insurance Co. of North America, 287 So.2d 262, 266 (Miss.1973).

¶22. Willie argues that the wrongful death statute cannot foreclose the right of Betty’s estate under the survival statute to sue and recover damages for Betty’s personal injuries. He points out that the parties have stipulated that Rezulin may have caused or contributed to Betty’s death. Willie argues that, because it is unknown whether Rezulin actually killed Betty, the wrongful death statute is not implicated and the estate is entitled to prosecute the personal injury action and recover any damages, up to one million dollars of which would be paid to Willie under the will.

¶23. The wrongful death statute allows the statutory heirs to recover damages for the defendant’s wrongful, lethal conduct. Miss.Code Ann. § 11-7-13 (Supp.2002); Gentry v. Wallace, 606 So.2d 1117, 1122 (Miss.1992). To be entitled to recovery, the wrongful death plaintiff must prove that the wrongful conduct proximately caused the death. Berryhill v. Nichols, 171 Miss. 769, 773, 158 So. 470, 471 (1935). If the plaintiff so proves, then the plaintiff may recover all damages arising “from the death.” Gentry, 606 So.2d at 1120.

¶ 24. The statute identifies the kinds of damages recoverable “from the death.” Miss.Code Ann. § 11-7-13 (Supp.2002). It provides, “[t]here shall be but one (1) suit for the same death which shall ensue for the benefit of all parties concerned ... [i)n such action the party or parties suing shall recover such damages allowable by law as the jury may determine to be just, taking into consideration all the damages of every kind to the decedent and all damages of every kind to any and all parties interested in the suit. ... [these damages include] property damages and funeral, medical or other related expenses incurred by or for the deceased as a result of such wrongful or negligent act or omission or breach of warranty....” Id. (emphasis added).

¶ 25. This language indicates that any damages for personal injuries suffered by the decedent during her lifetime are recoverable in the wrongful death suit. Id.; Gatlin v. Methodist Medical Center, 772 So.2d 1023, 1030-31 (¶ 24) (Miss.2000). This is true even though an action for the personal injuries accrued to the decedent during her lifetime, and could have been prosecuted by the decedent had she lived. Edward Hines Yellow Pine Trustees v. Stewart, 135 Miss. 331, 347, 100 So. 12, 14 (1924). When the same wrongful conduct causes both personal injury and death, at the instant of death, the recovery for the personal injury is embraced by the “one suit” for wrongful death and is not actionable by the estate under the survival statute. Id.; Miss.Code Ann. § 11-7-13 (Supp.2002). Thus, it is definite that, if Rezulin proximately caused Betty England’s death, any damages for Betty’s personal injuries from Rezulin must be recovered in an action for wrongful death, and could not be recovered by the estate under the survival statute.

¶ 26. On the other hand, it is definite that if Rezulin did not proximately cause Betty’s death, there could be no recovery for the heirs under the wrongful death statute. Wilks v. American Tobacco Co., 680 So.2d 839, 843 (Miss.1996); Berryhill v. Nichols, 171 Miss. 769, 774, 158 So. 470, 471 (1935). In that situation, any recovery for Betty’s personal injuries from Rezulin belongs to the estate under the survival statute. Berryhill, 171 Miss, at 774, 158 So. at 471. In Berryhill, the plaintiffs failed to prove the essential element of a wrongful death claim, which is that the defendant’s wrongful conduct proximately caused the death. Id. The court stated that, because the proof failed to show that the death was caused by the alleged negligence, “any pain and suffering of the deceased endured by him between the injury and death and which may be shown was probably caused by the asserted negligence, that is an item which must be recovered, if at all, under [the survival statute] at a suit by the personal representative, not by the next of kin or heirs at law.” Id.

¶ 27. The aforementioned statutory and case law indicates that whether recovery for Betty’s personal injuries would be accomplished under the wrongful death statute or under the survival statute depends on whether the wrongful conduct that caused Betty’s injuries also caused Betty’s death. We are unable to decide whether Rezulin killed Betty England; that is a fact question properly resolved by a trier of fact in an action for Betty’s injuries. The question in the present case is whether the wrongful death heirs, the estate on its own behalf, or both may sue the manufacturers of Rezulin based on the same wrongful conduct against the decedent, Betty England.

¶ 28. In Wilks v. American Tobacco Co., 680 So.2d 889, 840 (Miss.1996), the wrongful death heirs alleged that the decedent died from lung problems caused by smoking cigarettes manufactured by the defendant. After trial, the jury determined that the death was unrelated to the lung problems. Id. On appeal, the heirs argued that they were entitled to recover damages for the lung problems caused by smoking that the decedent suffered during his lifetime. Id. The court held that, because the wrongful death claim failed, the heirs could not recover for the decedent’s personal injuries. Id. at 843. The court held that the heirs only could recover the lifetime damages by asserting a claim under the survival statute. Id.

¶ 29. Wilks makes clear that the proper resolution of this case is to allow the estate administrator to assert both a wrongful death action and a survival action against the manufacturers of Rezulin. If the jury finds that Rezulin caused Betty’s death, then the estate is foreclosed from recovering in the survival action for any personal injuries caused by Rezulin; that recovery would belong solely to Betty’s wrongful death heirs. Miss.Code Ann. § 11-7-13 (Supp.2002); Miss.Code Ann. § 91-7-233 (Rev.1994). If the jury finds that Rezulin did not cause Betty’s death, the estate may recover for any personal injuries caused by Rezulin. Miss.Code Ann. § 91-7-233 (Rev.1994); see Munn v. Southern Health Plan, Inc., 719 F.Supp. 525, 530-31 (N.D.Miss.1989) (discussing the differences in proof and recovery between wrongful death and survival actions). If the estate recovers survival damages, then Willie England, Jr. could recover any amount from the estate to which he is entitled under the holographic instrument. We expressly withhold opinion on the validity or effect of the holographic instrument, as those issues are not before this Court.

II. WHETHER THE HOLOGRAPHIC INSTRUMENT IS A VALID ASSIGNMENT PURSUANT TO MISS. CODE ANN. § 11-7-3 (SUPP.2002).

¶ 30. Willie contends that, if the holographic instrument is not a will, then it is a valid assignment of Betty’s chose in action for personal injuries from Rezulin pursuant to Miss.Code Ann. § 11-7-3 (Supp.2002). Willie argues that because the instrument is an assignment, he can sue the manufacturers of Rezulin as assignee of Betty’s personal injury chose in action regardless of the heirs’ entitlement to recovery for the injuries under the wrongful death statute.

¶ 31. Mississippi Code Annotated § 11-7-3 provides, in pertinent part, “the assignee of any chose in action may sue for and recover on the same in his own name, if the assignment be in writing.” Id. Any action for injury to person or property is assignable. J.H. Leavenworth & Son v. Hunter, 150 Miss. 245, 267, 116 So. 593, 596 (1928). In Kaplan v. Harco National Insurance Co., 716 So.2d 673, 677-82 (¶¶ 21-43) (Miss.Ct.App.1998), this Court discussed assignment of choses in action. Generally, all types of claims that would survive the initial claimant’s death are assignable, and if the decedent’s estate could succeed to the claim, in most cases so may an assignee. Id. at (¶ 29). The Court cited a wrongful death action as an exam-pie of a claim that survives death. Id. at (¶ 31).

¶ 32. The way a wrongful death claim “survives death” is that it extends the defendant’s liability for an injury past the moment of the injured person’s death. Miss.Code Ann. § 11-7-13 (Supp. 2002). The wrongful death claim itself accrues at death for the benefit of the statutory beneficiaries. Partyka, 376 So.2d at 650. Because the claim accrues at death, it is impossible for the deceased to assign any interest in the claim. See Gillis v. Case, 574 So.2d 692, 694 (Miss.1990). As previously discussed, a wrongful death claim includes damages for personal injuries caused by the same conduct that caused the death. Miss.Code Ann. § 11-7-13 (Supp.2002). Therefore, a chose in action for personal injuries that would accrue to the wrongful death heirs cannot be assigned by the wrongful death victim. It is true that one’s chose in action against a defendant for personal injuries caused by wrongful conduct may be assigned pursuant to § 11-7-3. Wells v. Edwards Hotel & City Ry. Co., 96 Miss. 191, 194, 50 So. 628, 629 (1909). However, when the same wrongful conduct also results in death, damages for personal injuries are' recoverable only in a wrongful death action by or on behalf of the statutory heirs. Miss. Code Ann. § 11-7-13 (Supp.2002); Partyka, 376 So.2d at 650. Thus, Willie England, Jr. may not avoid the wrongful death statute by claiming the instrument is an assignment.

III. WHETHER WILLIE ENGLAND, JR. SHOULD BE REMOVED AS ADMINISTRATOR C.T.A. OF THE ESTATE OF BETTY J. ENGLAND.

¶33. The chancellor found that Willie England, Jr. must be removed as Administrator C.T.A. of Betty England’s estate and Cassandra England substituted as Administratrix C.T.A. Willie England, Jr. argues that this finding was error.

¶ 34. Betty England died without naming an estate executor, so the chancellor applied Miss.Code Ann. § 91-7-63 to determine the correct person to be issued letters of administration. The statute provides, in part, “[t]he court shall grant letters of administration to the relative who may apply, preferring first husband or wife and then such others that may be next entitled to distribution, if not disqualified, selecting amongst those who may stand in equal right the person or persons best calculated to manage the estate; or the court may select a stranger, a trust company organized under the laws of this state, if the kindred be incompetent. If such person does not apply for administration within thirty (30) days from the death of an intestate, the court may grant administration to a creditor or to any other suitable person.” The chancellor has considerable discretion in selecting an estate administrator, but must preserve the legal right of husband, wife, or distributee, unless incompetent. Stribling v. Washington, 204 Miss. 529, 537, 37 So.2d 759, 761 (1948).

¶ 35. The settled interpretation of Miss. Code Ann. § 91-7-63 is that the person entitled to the estate is entitled to the administration. Moreland v. Moreland, 537 So.2d 1337, 1341 (Miss.1989) (citing Langan v. Bowman, 20 Miss. 715, 717 (1849)). The chancellor found that Demar-cus and Demetrius England, as the sole wrongful death beneficiaries of Betty England and her sole surviving heirs, were the only persons entitled to distribution from Betty’s estate. Mississippi Code Annotated § 97-7-65 prevents the grant of letters of administration to a minor. The chancellor found that Cassandra England should be granted the letters of administration pursuant to Moreland, 537 So.2d at 1341, which holds that the preferred administrator is the guardian of the sole party entitled to the estate.

¶ 36. Willie England, Jr. argues that he was the most suitable person to administer Betty England’s estate because, as the beneficiary of one million dollars of Betty’s Rezulin suit under the will, he is the person “next entitled to distribution” from the estate. The chancellor was within her discretionary authority in removing Willie England, Jr. and substituting Cassandra England. Willie England, Jr. could be entitled to distribution from the estate if the holographic instrument is a valid will which is not superceded by the right of recovery of Demarcus and Demetrius England for Betty England’s wrongful death. See Issue I. A party’s right of distribution that has not been finally determined does not abridge the chancellor’s considerable discretion in selecting an administrator. Estate of Burnside, 227 Miss. 110, 112-13, 85 So.2d 817, 818 (1956). We find that the chancellor’s selection of Cassandra England, as the guardian of the sole, minor wrongful death heirs, was within the chancellor’s sound discretion.

¶ 37. THE JUDGEMENT OF THE CHANCERY COURT OF WARREN COUNTY IS AFFIRMED. ALL COSTS OF THIS APPEAL ARE ASSESSED TO APPELLANT.

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

      . These are Cassandra England’s three children. Cassandra's first child, Kentrell England, is not the child of Willie Demetrius England, who signed Kentrell’s birth certificate but never formally adopted him. In her post-trial brief, Cassandra England admitted that Kentrell England is not a wrongful death beneficiary of Betty England, and that the sole surviving wrongful death beneficiaries of Betty England are Demarcus and Demetrius England.


author: STUART, Justice.

text:
    PROVIDIAN NATIONAL BANK and Providian Financial Corporation v. Calvin PRITCHETT et al.
    1010296.
    Supreme Court of Alabama.
    Sept. 27, 2002.
    William H. Brooks and William H. Morrow of Lightfoot, Franklin & White, L.L.C., Birmingham; and Courtney R. Pot-thoff of Williams, Potthoff, Williams & Smith, L.L.C., Eufaula, for appellants.
    Allen G. Woodard of Woodard, Patel & Sledge, Andalusia; and L. Cooper Rutland of Rutland & Braswell, L.L.C., Union Springs, for appellees.
   STUART, Justice.

Providian National Bank and Providian Financial Corporation (hereinafter collectively referred to as “Providian”) appeal from an order of the Bullock Circuit Court, in which claims asserted by Calvin Pritch-ett and James Joyner, former holders of Visa credit cards issued by Providian National Bank, were certified for class treatment pursuant to Rule 23(b)(2) and (b)(3), Ala. R. Civ. P. We vacate the class-certification order and remand.

Procedural Background

On June 3, 1999, Calvin Pritchett and James Joyner, both holders of Visa credit cards issued by Providian National Bank, sued Providian, alleging that Providian had charged their credit-card accounts, without their knowledge or permission, for products or services Pritchett and Joyner had not ordered or requested. In their complaint, Pritchett and Joyner alleged misrepresentation, suppression, deceit, fraudulent deceit, and unjust enrichment. Pritchett and Joyner also sought unspecified “declaratory and injunctive relief.”

However, when Pritchett and Joyner filed this action, litigation involving similar claims was pending in California, Pennsylvania, and other states. Many of those cases had been consolidated, and a nationwide class had been certified in the Superi- or Court of California, San Francisco County; Pritchett and Joyner fell within the definition of the nationwide class. Some of the class representatives involved in those actions were Alabama residents, and Alabama lawyers were listed as counsel of record in those actions.

Allegations in the nationwide class action included claims that Providian had “unfairly and unlawfully impos[ed] and collected] monthly fees for fee-based or add-on products which Plaintiffs and Class Members did not request or authorize.” Pritchett and Joyner received notice at least as early as February 22, 2000, that that claim was being alleged in the nationwide class action. In June 2001, Pritchett and Joyner received notice of a proposed settlement of the nationwide class action; included in that notice were detailed instructions regarding the class members’ rights under the proposed settlement, the date of a scheduled fairness hearing regarding the proposed settlement, how class members could object to the proposed settlement, and how class members could exclude themselves from the nationwide class. The notice provided that if the class members elected to exclude themselves from the class, they could not participate in the proposed settlement and they would not be allowed to file an objection to the proposed settlement.

In July 2001, and again in September 2001, Pritchett and Joyner filed with the Superior Court of California objections to the proposed settlement of the nationwide class action. Pritchett and Joyner asserted that the settlement proposed in the nationwide action was unfair to Providian Visa credit-card holders in Alabama in several respects. First, Pritchett and Joyner asserted that the proposed settlement provided only a de minimis recovery to each class member while Bullock County, in which their action had been filed, because of historically large jury verdicts awarded in that county was an excellent venue in which to punish Providian for its questionable practices aimed at unsophisticated consumers. Thus, Pritchett and Joyner argued that the proposed settlement was unfair to Visa credit-card holders in Alabama and that it should not be approved as to those class members. Pritchett and Joyner requested that the California trial court create a separate subclass of Alabama cardholders and formulate a different settlement plan for members of that subclass. Next, Pritchett and Joyner challenged the sufficiency of the proposed settlement notice sent to the class members. Finally, although Providian’s headquarters are located in San Francisco, California, Pritchett and Joyner alleged that the State of California lacked sufficient contact to the claims asserted to exercise jurisdiction over nonresident class members. It is undisputed that Pritchett and Joyner elected to file an objection to the proposed settlement rather than to opt out of the nationwide class. Despite their objections, the California trial court approved the proposed settlement, and on November 4, 2001, entered a final judgment.

On September 20, 2001, in the action instituted by Pritchett and Joyner in Alabama, the Bullock Circuit Court certified unidentified claims for class treatment, pursuant to Rule 23(b)(2) and (b)(3), Ala. R. Civ. P.:

“Those similarly situated adult persons or entities in the State of Alabama who from January 1, 1996 to the present, have or have had credit cards issued by defendants and their subsidiaries and were charged a fee related to defendants’ add-on products, specifically Credit Protection, Providian Health Advantage or Price-Pro or ‘Buy Smart.’ The defined class encompasses only those customers within the Unbanked market or market segment of defendants.”

In its order, the trial court stated:

“The Court is aware of the other litigation pending against these defendants in other jurisdictions, notably California. However, the claims in the California action pertain to a class of nationwide cardholders and not exclusively to the class of Alabama Unbanked consumers. The Court has reviewed the transcript of the class certification hearing in California and has noted the California Court’s concerns about the pending California class action and the proposed settlement. Most notable is the likelihood that Providian will profit from their wrongful conduct despite settlement of the proposed class action and payment of fines to the O.C.C. [Office of the Comptroller of Currency]. The efficacy of the O.C.C. settlement has come into question in the California proceeding since it appears there are concerns of the California Court about whether Pro-vidian abided by the injunction set out in the O.C.C. settlement.
“In addition, the Court has determined that Alabama’s Attorney General has made no intervention in either the California case, this case, or any other civil or criminal action to protect the rights of Alabama consumers. The allegations made by the plaintiffs in this case pertaining to Unbanked Alabama consumers can best be decided in a single Alabama forum and Alabama is the most suitable forum to protect Alabama citizens’ interests. The California class action is in no way a superior forum in which to protect the rights of Alabama citizens since it deals primarily with violations of the California trade practices statutes and an accompanying RICO statute. While this Court is and will remain respectful of the California State Courts, it is the finding of the Court that the present class representatives would better represent and protect the rights of absent Alabama class members because of the differences in the class definitions and allegations between this action and the California action.”

Providian appeals from the trial court’s order certifying the class, raising the following issues:

1. Whether the trial court erred in certifying a class under Rule 23(b)(2) and Rule 23(b)(3), Ala. R. Civ. P., where, Providian argues, the class representatives’ claims have been released and are barred by the doctrine of res judicata as a result of the settlement of a nationwide class encompassing the class representatives’ claims.
2. Whether the trial court performed the “rigorous analysis” required under Ala.Code § 6-5-641 where the class-certification order fails to discuss the required elements of the plaintiffs’ causes of action and contains almost no analysis of how the plaintiffs’ evidence has any connection to the actual claims or experiences of the class representatives.
3. Whether the trial court erred in finding that common issues of law and fact predominate where, Provi-dian argues, the plaintiffs failed to identify any common misrepresentation or other common wrongful conduct that applied to any plaintiff or absent class member.
4. Whether the trial court erred in finding that common issues of law and fact predominate where, Provi-dian argues, questions of reliance and injury can be determined only by individual inquiry of each and every class member.
5. Whether the trial court erred in certifying a class under Rule 23(b)(2) where the predominate relief sought by the plaintiffs is money damages.
6. Whether the trial court erred in finding that a class action was the superior method of adjudicating the plaintiffs’ claims where, Providian argues, those claims are encompassed by the settlement of a nationwide class, and a separate class action in Alabama could exist only from those Alabama class members who opted out of the nationwide class settlement.

We find that the claims asserted in Pritch-ett and Joyner’s complaint are barred by the doctrine of res judicata and by the express language of the settlement agreement entered into by the parties to the nationwide class action, which included Pritchett and Joyner. We, therefore, vacate the Bullock Circuit Court’s class-certification order and remand the case for further proceedings consistent with this opinion.

Discussion

Providian asserts that Pritchett and Joyner’s claims are barred by the doctrine of res judicata and that those claims have been released by the settlement agreement entered into by Providian and the nationwide class members who did not opt out of the nationwide action. We agree.

In Parmater v. Amcord, Inc., 699 So.2d 1238 (Ala.1997), we noted:

“The elements of res judicata are (1) a prior judgment on the merits, (2) rendered by a court of competent jurisdiction, (3) with substantial identity of the parties, and (4) with the same cause of action presented in both actions. If these four elements are present, then any claim that was adjudicated or could have been adjudicated in the prior action is barred from further litigation....
“The doctrine of res judicata is intended to put an end to litigation; it bars a plaintiff from recovering twice for a wrongful act, and it applies in this case.”

699 So.2d at 1240-41 (citations omitted).

Applying those elements to the facts before us, we conclude that the four elements of res judicata are present. The nationwide action has been finally resolved by a stipulated settlement. See Martin v. Drummond Co., 663 So.2d 937, 947 (Ala.1995) (recognizing that the settlement of a class action is a final judgment and bars the relitigation of claims settled in that class action). Thus, a final judgment has been entered in the nationwide action.

Second, we have no reason to question the jurisdiction of the Superior Court of California, San Francisco County, which entered the judgment in the nationwide class action. The jurisdiction of the California court over the nonresident class members is not an issue properly before this Court and, to our knowledge, that issue was not pursued on appeal in the nationwide action. Thus, the second element of res judicata is not at issue here.

Third, Providian, Pritchett, and Joyner were all parties to the settlement of the nationwide class action. Providian was unquestionably a party to the nationwide action, and we have already determined that Pritchett and Joyner, who were included in the definition of the class members, did not opt out of the settlement agreement in that action. Thus, the third element— substantial identity of the parties — has been met.

Fourth, the claims asserted by Pritchett and Joyner in this action are encompassed within the claims settled and released in the nationwide action. The settlement agreement executed by the parties to the nationwide action defined “Released Claims” to mean:

“[A]ny and all individual, Class, or general public claims or causes of action, and ‘Unknown Claims’ as defined in the following paragraph, that have been or could have been asserted by Plaintiffs and the Class Members, or any of them (on their own behalf and/or behalf of the general public), against the Releasees in the Litigation or in the Non-Consolidated Cases, or based upon or related to any unlawful, unfair, fraudulent or deceptive business practice, breach, offense, or violation of any statutory or common law provision, relating to the sale or provision of Providian credit products or services (including but not limited to Providian Accounts, add-on products or services, balance transfers, or changes in credit lines or interest rates), which relate to the facts, transactions, events, occurrences, acts, disclosures, statements, omissions or failures to act which were alleged in any of the complaints filed in the Litigation or the Non-Consolidated Cases.”

Additionally, the settlement agreement defined “Non-Consolidated Cases” specifically to include the action filed by Pritchett and Joyner in Alabama. Thus, the language of the settlement agreement references Pritchett and Joyner’s claims in two ways: by referring to claims of the class members based upon or arising out of the sale by Providian of add-on products or services, and by referring to the allegations in any of the complaints filed in Non-Consolidated Cases, including this one. Pritchett and Joyner’s claims were specifically released in the settlement of the nationwide class action; therefore, the same cause of action presented in this action was presented in the nationwide action.

Accordingly, all four of the elements of res judicata have been met. We conclude that Pritchett and Joyner’s claims are barred by the doctrine of res judicata. Additionally, because Pritchett and Joyner’s claims are also barred by the express language of the settlement agreement, the doctrine of release bars the relitigation of those claims. See New York Life Ins. Co. v. Robinson, 735 So.2d 463 (Ala.1999) (plaintiffs who failed to opt out of an out-of-state class action were members of that class for settlement purposes; because the plaintiffs’ claims were encompassed by the class-action settlement to which they were a party, relitigation of those claims was barred). We, therefore, vacate the Bullock Circuit Court’s order certifying this action for class treatment, and we remand this action for an order or further proceedings consistent with this opinion. Because of our resolution of the first issue raised by Providian, we need not address the remaining class-certification issues raised by Providian.

ORDER VACATED AND CAUSE REMANDED.

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

MOORE, C.J., concurs in the result.

      . Providian asserts that Providian Financial Corporation is the holding company of which Providian National Bank is a subsidiary. Providian asserts that, because Calvin Pritch-ett and James Joyner, the plaintiffs, had no dealings with Providian Financial Corporation, that corporation is not a proper party to this case. Because of our disposition of this appeal, we express no opinion on this issue.

      . This order was issued the day before the California trial court concluded its fairness hearing on the proposed settlement.


text:
    CONSECO FINANCE CORP.-ALABAMA v. John T. SALTER.
    1010657.
    Supreme Court of Alabama.
    Sept. 27, 2002.

      R. Austin Huffaker, Jr., of Rushton, Stakely, Johnston & Garrett, P.A., Montgomery, for appellant.
    Mark D. Ryan, Bay Minette, for appel-lee.
   On Application for Rehearing

STUART, Justice.

The opinion of July 3, 2002, is withdrawn and the following is substituted therefor.

Conseco Finance Corp.-Alabama (“Con-seco”) appeals from the trial court’s denial of its motion to compel arbitration. We reverse and remand.

Factual and Procedural Background

On March 19, 1999, John T. Salter purchased a mobile home from Southern Lifestyle Manufactured Housing, Inc., located in Bay Minette. In connection with this purchase, Salter executed a Manufactured Home Retail Installment Contract and Security Agreement (“the installment contract”), which reflected that the installment contract was to be assigned to Green Tree Financial Corp.-Alabama, located in Pensacola, Florida. Green Tree Financial Corp.-Alabama is now known as Conseco Finance Corp.-Alabama.

The installment contract contained the following arbitration provision:

“14. ARBITRATION: ALL DISPUTES, CLAIMS, OR CONTROVERSIES ARISING FROM OR RELATING TO THIS CONTRACT OR THE PARTIES THERETO SHALL BE RESOLVED BY BINDING ARBITRATION BY ONE ARBITRATOR SELECTED BY YOU [CONSECO] WITH MY [SALTER’S] CONSENT. THIS AGREEMENT IS MADE PURSUANT TO A TRANSACTION IN INTERSTATE COMMERCE, AND SHALL BE GOVERNED BY THE FEDERAL ARBITRATION ACT AT 9 U.S.C. SECTION 1. JUDGMENT UPON THE AWARD RENDERED MAY BE ENTERED BY ANY COURT HAVING JURISDICTION. THE PARTIES AGREE AND UNDERSTAND THAT THEY CHOOSE ARBITRATION INSTEAD OF LITIGATION TO RESOLVE DISPUTES. THE PARTIES UNDERSTAND THAT THEY HAVE A RIGHT TO LITIGATE DISPUTES IN COURT, BUT THAT THEY PREFER TO RESOLVE THEIR DISPUTES THROUGH ARBITRATION, EXCEPT AS PROVIDED HEREIN. THE PARTIES VOLUNTARILY AND KNOWINGLY WAIVE ANY RIGHT THEY HAVE TO A JURY TRIAL, EITHER PURSUANT TO ARBITRATION UNDER THIS CLAUSE OR PURSUANT TO A COURT ACTION BY YOU (AS PROVIDED HEREIN). THE PARTIES AGREE AND UNDERSTAND THAT ALL DISPUTES ARISING UNDER CASE LAW, STATUTORY LAW, AND ALL OTHER LAWS INCLUDING, BUT NOT LIMITED TO, ALL CONTRACT, TORT, AND PROPERTY DISPUTES WILL BE SUBJECT TO BINDING ARBITRATION IN ACCORD WITH THIS CONTRACT. THE PARTIES AGREE THAT THE ARBITRATOR SHALL HAVE ALL POWERS PROVIDED BY THE LAW, THE CONTRACT AND THE AGREEMENT OF THE PARTIES. THESE POWERS SHALL INCLUDE ALL LEGAL AND EQUITABLE REMEDIES INCLUDING, BUT NOT LIMITED TO, MONEY DAMAGES, DECLARATORY RELIEF AND INJUNCTIVE RELIEF. NOTWITHSTANDING ANYTHING [HEREIN TO] THE CONTRARY, YOU RETAIN AN OPTION TO USE JUDICIAL (FILING A LAWSUIT) OR NON-JUDICIAL RELIEF TO ENFORCE A SECURITY AGREEMENT RELATING TO THE MANUFACTURED HOME SECURED IN A TRANSACTION UNDERLYING THIS ARBITRATION AGREEMENT, TO ENFORCE THE MONETARY OBLIGATION SECURED BY THE MANUFACTURED HOME OR TO FORECLOSE ON THE MANUFACTURED HOME. THE INSTITUTION AND MAINTENANCE OF A LAWSUIT TO FORECLOSE UPON ANY COLLATERAL, TO OBTAIN A MONETARY JUDGMENT OR TO ENFORCE THE SECURITY AGREEMENT SHALL NOT CONSTITUTE A WAIVER OF THE RIGHT OF ANY PARTY TO COMPEL ARBITRATION REGARDING ANY OTHER DISPUTE OR REMEDY SUBJECT TO ARBITRATION IN THIS CONTRACT, INCLUDING THE FILING OF A COUNTERCLAIM IN A SUIT BROUGHT BY YOU PURSUANT TO THIS PROVISION.
“15. WAIVER OF JURY TRIAL: I HEREBY WAIVE ANY RIGHT TO A TRIAL BY JURY THAT I HAVE IN ANY SUBSEQUENT LITIGATION BETWEEN ME AND THE SELLER, OR ME AND ANY ASSIGNEE OF THE SELLER. WHERE SUCH LITIGATION ARISES OUT OF, IS RELATED TO, OR IS IN CONNECTION WITH ANY PROVISION OF THIS CONTRACT WHETHER THE CONTRACT IS ASSERTED AS THE BASIS FOR A CLAIM, COUNTERCLAIM OR CROSSCLAIM, OR A DEFENSE TO A CLAIM, COUNTERCLAIM OR CROSSCLAIM.”

(Capitalization original; emphasis added.)

On March 29, 2001, Conseco instituted this action in the Baldwin Circuit Court, alleging that Salter was in default for failing to timely make the payments due under the installment contract. Conseco sought recovery of the mobile home or, in the alternative, an amount representing the value thereof and damages for Salter’s wrongful detention of the mobile home; Conseco also sought a money judgment in the amount of $59,033.29, plus interest, and the costs of the litigation and attorney fees. Conseco also filed a motion for a prejudgment writ of seizure.

On April 27, 2001, the trial court granted Conseco’s motion for a writ of seizure and issued the writ; however, on May 2, 2001, Conseco filed a motion with the trial court, asking the trial court to set aside its writ of seizure. Salter asserts that during the course of discussions with him after it instituted its action, Conseco learned that Salter had made all of his payments in a timely manner and that his account had never been in default. Salter further asserts that the writ of seizure was issued only because Conseco failed to timely notify the trial court that Salter’s account was not in default.

On August 17, 2001, Salter filed an answer and counterclaims in response to Conseco’s complaint. Salter sought a judgment declaring that his account with Conseco was not in. default and that all payments he lawfully owed Conseco had been paid. Salter also asserted counterclaims alleging negligence and the tort of outrage arising out of Conseco’s continued attempts to collect the purportedly delinquent payments.

Three days later, on August 20, 2001, the trial court conducted a hearing on Conseco’s pending claims. At that hearing, Conseco voluntarily withdrew its claims, and only Salter’s counterclaims remained pending.

On September 28, 2001, Salter filed a motion seeking to enjoin Conseco from further collection attempts and requesting an immediate hearing. Salter alleged that even after Conseco learned that his account was not in default, Conseco continued to harass him by repeatedly telephoning Salter’s home and by contacting Salter’s neighbors and making what Salter says were defamatory statements about him. The trial court granted Salter’s motion and entered a preliminary injunction on October 17, 2001.

On the day the trial court entered the preliminary injunction, Conseco filed its motion to compel arbitration of Salter’s claims against it and a supporting affidavit, seeking to enforce the arbitration provision contained in the installment contract. On November 13, 2001, Conseco filed a brief in support of its motion to compel arbitration. On that same day, the trial court denied Conseco’s motion, finding that Conseco had substantially invoked the litigation process and thereby had waived its right to enforce the arbitration provision. Conseco appeals from that order.

Standard of Review

A direct appeal is the proper procedure by which to seek review of a trial court’s order granting or denying a motion to compel arbitration. Rule 4(d), Ala. RApp. P. This Court reviews de novo a trial court’s grant or denial of a motion to compel arbitration. Vann v. First Cmty. Credit Corp., 834 So.2d 751 (Ala.2002); Ex parte Roberson, 749 So.2d 441, 446 (Ala.1999).

Discussion

In Ex parte Greenstreet, Inc., 806 So.2d 1203, 1209 (Ala.2001), this Court held:

“[Ojnee a moving party has satisfied its burden of production by making a prima facie showing that an agreement to arbitrate exists in a contract relating to a transaction substantially affecting interstate commerce, the burden of persuasion shifts to the party opposing arbitration. If that party presents no evidence in opposition to a properly supported motion to compel arbitration, then the trial court should grant the motion to compel arbitration.”

The record before this Court establishes that an “agreement to arbitrate exists in a contract relating to a transaction substantially affecting interstate commerce.” Ex parte Greenstreet, supra. It is undisputed that Salter executed the installment contract, which contained an agreement to arbitrate. It is also undisputed that Salter’s transaction substantially affected interstate commerce. Thus, Conseco has properly supported its motion to compel arbitration and the burden of persuasion shifted to Salter to oppose that motion.

The only opposition Salter offers to Conseco’s properly supported motion to compel arbitration is his claim that Conseco waived its right to compel arbitration by substantially invoking the litigation process. We note that a presumption exists against a finding that a party has waived the right to compel arbitration. See Lee v. YES of Russellville, Inc., 784 So.2d 1022, 1028 (Ala.2000); Eastern Dredging & Constr., Inc. v. Parliament House, L.L.C., 698 So.2d 102 (Ala.1997). “A party seeking to prove a waiver of a right to arbitrate carries a heavy burden, and the courts will not lightly infer a waiver of the right to compel arbitration.” Lee, 784 So.2d at 1028-29, citing Mutual Assurance, Inc. v. Wilson, 716 So.2d 1160 (Ala.1998).

In First Family Financial Services, Inc. v. Jackson, 786 So.2d 1121 (Ala.2000), this Court addressed the issue whether the defendant in that case had waived its right to compel arbitration. This Court stated:

“We will find a waiver of the right to compel arbitration only when ‘the party seeking arbitration has so substantially invoked the litigation process that to compel arbitration will substantially prejudice the party opposing it.’ Georgia Power Co. v. Partin, 727 So.2d 2, 7 (Ala.1998). In Companion Life Insurance Co. v. Whitesell Manufacturing, Inc., 670 So.2d 897 (Ala.1995), this Court said:
“ Whether a party’s participation in an action amounts to an enforceable waiver of its right to arbitrate depends on whether the participation bespeaks an intention to abandon the right in favor of the judicial process and, if so, whether the opposing party would be prejudiced by a subsequent order requiring it to submit to arbitration. No rigid rule exists for determining what constitutes a waiver of the right to arbitrate; the determination as to whether there has been a waiver must, instead, be based on the particular facts of each case.’
670 So.2d at 899.”

First Family Financial Servs., 786 So.2d at 1128.

The First Family Court continued:

“The record in this case shows unequivocally that First Family did not substantially invoke the litigation process before it moved to compel arbitration. The first document First Family filed was its motion to compel arbitration. Like the defendant in [Ex parte] Merrill Lynch[, Pierce, Fenner & Smith, Inc., 494 So.2d 1 (Ala.1986)], First Family did not even answer the complaint. The only other documents in the record that First Family filed are its brief in support of its motion to compel arbitration, evidentiary filings also in support of that motion, and its notice of appeal to this Court. Jackson had the heavy burden of proving both that First Family had substantially invoked the litigation process and that he was prejudiced thereby. He did not meet that burden.”

786 So.2d at 1128 (citations omitted).

In this case, as in First Family, the record reflects that Conseco did not “bespeak an intention to abandon the right [of arbitration] in favor of the judicial process.” Id. at 1128. Conseco initiated this action; however, the mere filing of a pleading does not constitute a waiver of the right to compel arbitration. See, e.g., Ex parte Smith, 736 So.2d 604 (Ala.1999). Additionally, as evidenced by the express language of the arbitration provision, the parties specifically agreed that Conseco retained the right to seek judicial relief “to enforce a security agreement relating to the manufactured home secured in a transaction underlying this arbitration agreement, to enforce the monetary obligation secured by the manufactured home or to foreclose on the manufactured home,” and that the filing of such an action would not constitute a waiver of Conseco’s right to seek arbitration. The relief requested by Conseco in its complaint falls within the parameters of the judicial relief specifically agreed to by Salter.

Additionally, we do not agree that Conseco substantially invoked the litigation process by appearing at hearings held on its action and by participating in discussions with Salter regarding the status of his account. Because Salter agreed that Conseco retained the right to seek judicial relief “to enforce a security agreement relating to the manufactured home secured in a transaction underlying this arbitration agreement, to enforce the monetary obligation secured by the manufactured home or to foreclose on the manufactured home” and that such an action would not constitute a waiver of Conseco’s right to compel arbitration, Conseco was also entitled to pursue that action once it was filed. It would be meaningless for Salter to agree that Conseco could file such an action in the trial court without waiving its right to compel arbitration, but that Conseco could not pursue that action without waiving its right to compel arbitration. This same reasoning applies to Salter’s argument that Conseco participated in “discovery” by discussing with Salter the status of his account. Neither informal discussions among the parties regarding a disputed issue nor settlement negotiations among the parties constitute “discovery.”

Finally, we note that Conseco moved to compel arbitration within two months after Salter filed his counterclaims. Once Salter asserted his counterclaims, Conseco’s only filing in the trial court related to enforcement of the parties’ agreement to arbitrate.

Salter has failed to prove that Conseco substantially invoked the litigation process; therefore, Conseco has not waived its right to compel arbitration. Because Salter has not proven that Conseco substantially invoked the litigation process, we need not address whether Salter would be prejudiced by an order compelling arbitration. Conseco has properly supported its motion to compel arbitration. Salter has failed to establish that Conseco waived its right to compel arbitration by substantially invoking the litigation process. For these reasons, we conclude that the trial court erred in denying Conseco’s motion to compel arbitration. We reverse the trial court’s order of November 13, 2001, and remand this case to the trial court for the entry of an order granting Conseco’s motion to compel arbitration.

APPLICATION OVERRULED; OPINION OF JULY 3, 2002, WITHDRAWN; OPINION SUBSTITUTED; REVERSED AND REMANDED WITH INSTRUCTIONS.

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

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

      . Although the record does not indicate why Conseco voluntarily withdrew its claims, Salter alleges that, as a result of his discussions with Conseco, Conseco realized that his account was current and that it had not been in default.

      . Salter does not challenge Conseco's claim that the transaction at issue substantially affected interstate commerce.