text:
    Eric Jermaine THOMAS, Appellant, v. STATE of Mississippi, Appellee.
    Nos. 2001-KA-01498-COA, 2001-KA-01499-COA.
    Court of Appeals of Mississippi.
    May 13, 2003.
    Jim Davis, Moss Point, attorney for appellant.
    Office of the Attorney General by Scott Stuart, attorney for appellee.
    Before McMILLIN, C.J., BRIDGES, and GRIFFIS, JJ.
   GRIFFIS, J., for the court.

¶ 1. On September 21, 1995, Eric Jermaine Thomas was indicted for the crime of aggravated assault for shooting Jason Evans with a handgun. On February 12, 1996, Thomas pled guilty and was sentenced to serve twenty years in the custody of the Mississippi Department of Corrections (MDOC). The Circuit Court of Stone County suspended the execution of his sentence, and Thomas was placed in the Regimented Inmate Discipline Program (RID).

¶ 2. Due to the nature of his offense, however, Thomas was removed from RID and placed in the general prison population. On June 3, 1996, Thomas filed a motion to reconsider sentence and the circuit court re-sentenced him to a twenty year suspended sentence and placed him on probation for five, years.

¶ 3. On July 8, 2000, a petition to revoke probation was filed based on Thomas’s June 20, 2000 arrest for possession of cocaine. On November 6, 2000, the Honorable John H. Whitfield, Stone County Circuit Judge, found sufficient evidence to revoke Thomas’s probation and imposed the original sentence of twenty years. On November 9, 2000, Judge Whitfield considered a motion to reconsider the revocation of probation. At the hearing, Judge Whitfield concluded “I’ll take the matter under advisement. I’ll make a ruling at some time in the future ... He’ll remain in custody pending my ruling.”

¶ 4. On November 22, 2000, Thomas was indicted for possession of cocaine. Based on the indictment, the Stone County District Attorney filed a motion to revoke Thomas’s bond pending disposition of his probationary status and the outcome of the cocaine possession trial. In January 2001, a hearing was held on the motion to revoke Thomas’s bond before the Honorable Robert H. Walker, Stone County Circuit Judge. Judge Walker concluded that Thomas was a danger to the community and ordered that no bond be set on the possession charge.

¶ 5. In May of 2001, Thomas filed a motion to dismiss the cocaine possession charge. At a hearing before the Honorable Kosta N. Vlahos, Thomas asserted that the revocation of bond hearing coupled with revocation of probation hearing constituted double jeopardy. Judge Vla-hos denied the motion to dismiss.

¶ 6. On July 18, 2001, Thomas was tried before the Honorable Jerry O. Terry, Sr., and the jury found Thomas guilty of possession of cocaine. Judge Terry sentenced Thomas to serve a term of three years in the custody of the MDOC. Judge Terry simultaneously ruled that Thomas had violated the terms of his probation, revoked his probation and sentenced him to serve the original term of twenty years, with the sentences to run consecutively.

¶ 7. On July 24, 2001, Thomas filed a motion for new trial or, in the alternative, for a judgment notwithstanding the verdict, which was denied. Thomas appealed his conviction for possession of cocaine and the revocation of probation. Upon consolidation of these appeals, we find no error and affirm.

DISCUSSION

¶ 8. Thomas asserts that (1) the court erred in revoking his suspended sentence and not dismissing the drug possession charges on grounds of double jeopardy; (2) the court erred in revoking his probation without notice and hearing; (3) his sentence exceeds the statutory maximum; and (4) revoking his suspended sentence was clear error. Thomas’s first issue will be examined in depth; however, finding the second, third and fourth issues deal with essentially the same legal principles, they will be combined into one issue.

I. WHETHER THE TRIAL JUDGE ERRED WHEN HE REVOKED BOND AND PROBATION BECAUSE IT VIOLATED THE PROHIBITION AGAINST DOUBLE JEOPARDY.

¶ 9. The Double Jeopardy Clause, contained in the Fifth Amendment of the United States Constitution, is applicable to the states through the Due Process Clause of the Fourteenth Amendment. Cook v. State, 671 So.2d 1327, 1331 (Miss.1996). In essence, the Fifth Amendment does not allow an individual to be twice put in jeopardy of life or limb for the same offense. Id.

¶ 10. Thomas argues that the trial court erred in denying his motion for a new trial and should have dismissed the case based on double jeopardy. First, Thomas contends that he was twice placed in jeopardy because the court used the same facts to revoke his bond, which were presented previously at his revocation hearing. Therefore, Thomas asserts that the possession of cocaine charges should have been dismissed because it violated his protection against double jeopardy.

¶ 11. Next, Thomas contends that, since the court previously ruled not to revoke his probation upon his initial charge of cocaine possession, the court could not subsequently reinstate his suspended sentence after his conviction on the possession of cocaine charge. Thomas argues this amounted to successive punishment for the same offense. Thomas primarily relies on the cases of United States v. Dixon, 509 U.S. 688, 113 S.Ct. 2849, 125 L.Ed.2d 556 (1993) and Blockburger v. United States, 284 U.S. 299, 52 S.Ct. 180, 76 L.Ed. 306 (1932).

¶ 12. In Dixon, the United States Supreme Court considered two cases to determine whether the double jeopardy clause was applicable. While awaiting trial, Dixon was placed on a conditional release which prohibited any further violations of the law. Dixon, 509 U.S. at 688, 113 S.Ct. 2849. If Dixon violated this condition, he would be subject to not only a revocation of release and order of detention, but also prosecution for contempt under D.C.Code Ann. §§ 23-1329(a). Id at 688, 113 S.Ct. 2849. The D.C. statute allowed for contempt sanctions after expedited proceedings without a jury and in accordance with principles applicable to proceedings for criminal contempt. Id. Subsequent to his release, Dixon was arrested for possession of cocaine with intent to distribute. Id. A criminal contempt hearing was held and the court found Dixon guilty of criminal contempt, sentencing him to 180 days in prison. Id. at 691-92, 113 S.Ct. 2849. His indictment for possession of cocaine was later dismissed on double jeopardy grounds since the crime violating the condition of release was the same as the crime. Id.

¶ 13. In its opinion in Dixon, the court held that it is well established that a criminal contempt charge which is enforced in a nonsummary proceeding is a “crime in the ordinary sense.” Id. at 696, 113 S.Ct. 2849. The court then relied on the “same elements” test, sometimes referred to as the “Blockburger ” test, which requires a court to inquire whether each offense required an element not found in the other. If not, the crimes are considered the “same offense” and the double jeopardy clause bars successive prosecutions and punishments. Id. The court noted that “the crime of violating a condition of release” could not be “abstracted from the element of the violated condition; therefore it was double jeopardy to prosecute Dixon for the crime of possession of cocaine.” Id. at 698-99, 113 S.Ct. 2849. For reasons discussed below, we conclude Dixon is not applicable.

¶ 14. The Mississippi Supreme Court and this Court have previously held that a petition to revoke probation or to revoke suspension of a sentence is not a criminal case and not a trial on the merits of the case. Therefore, double jeopardy protection does not apply to such hearings. See Lightsey v. State, 493 So.2d 375, 377-78 (Miss.1986); Ray v. State, 229 So.2d 579, 581 (Miss.1969); Cooper v. State, 737 So.2d 1042, 1045 (¶¶ 14-15) (Miss.App.Ct.1999).

¶ 15. In Showery v. Samaniego, 814 F.2d 200, 202 (5th Cir.1987), the Fifth Circuit held that the revocation of an appellate bond was equivalent to the noncriminal nature of parole and probation revocation hearings. The court explained that:

[E]ven though the alleged basis for bond revocation is the commission of a subsequent offense, the proceedings are not designed to obtain a conviction for the violation of that offense. They are designed to assess the propriety of allowing the defendant, who has already been convicted and sentenced on a separate charge, to remain free on bond. Such proceedings are not “essentially criminal.”

Id. at 203. The Fifth Circuit held that there was no double jeopardy violation. Id. at 204.

¶ 16. In this case, the bond revoked was not that of an appellate bond. Therefore, there had been no subsequent conviction and sentence, only an indictment. However, we find the same logic applicable. Additionally, as in Lightsey, Thomas failed to show he was previously convicted of the crime of possession of cocaine when the trial judge revoked his bond. Lightsey, 493 So.2d at 377-78. Accordingly, no further analysis of the “same elements” test is required.

¶ 17. Moreover, Thomas has offered no authority to support his contention that jeopardy attaches at probation and bail revocation hearings. Further, Judge Whitfield’s November 9, 2000 decision to reconsider the revocation of probation did not amount to a judicial determination that would deny the prosecution’s petition to revoke probation. Indeed, Judge Whitfield concluded “I’ll take the matter under advisement. I’ll make a ruling at some time in the future ... He’ll remain in custody pending my ruling.” The subsequent consideration of the petition to revoke probation, after the jury verdict, was not sufficient to invoke the protection of the Double Jeopardy Clause. Accordingly, this Court concludes that Thomas did not suffer a double jeopardy violation under either the federal or state constitution. We find this issue to be without merit.

II. WHETHER THE TRIAL JUDGE ERRED BY REVOKING HIS PROBATION AND SUSPENDED SENTENCE WITHOUT NOTICE AND HEARING AND EXCEEDED THE STATUTORY MAXIMUM IN HIS SENTENCE.

¶ 18. Thomas next asserts that his probation was revoked without notice or hearing and that his sentence exceeded the statutory maximum for three reasons. First, he claims the court erred when it sentenced him to the statutory maximum of twenty years in addition to the time Thomas had already served. Second, Thomas claims the court imposed a sentence that exceeded the statutory maximum when it ordered that Thomas’s probation would not be terminated until he had paid all of the restitution ordered by the court. Finally, Thomas claims the court summarily revoked his probation before a petition to revoke had been filed.

¶ 19. Each of these claims addresses errors by the trial court when it revoked Thomas’s suspended sentence. An order revoking a suspension of sentence or revoking probation is not appeal-able. Beasley v. State, 795 So.2d 539, 540(¶ 6) (Miss.2001) (citing Griffin v. State, 382 So.2d 289, 290 (Miss.1980)). In Beasley, the supreme court further stated the following:

This Court is reluctant to dismiss a proceeding because one seeks the wrong remedy; and a mere misnomer of the procedure should ordinarily not result in a dismissal; however, the attempt to appeal an unappealable order is a total departure from the orderly administration of justice and cannot and should not be approved.

Beasley, 795 So.2d at 540(¶ 6) quoting Pipkin v. State, 292 So.2d 181, 182 (Miss.1974).

¶ 20. Thomas is not without a remedy. He may pursue his claims under the Mississippi Uniform Post-Conviction Collateral Relief Act, Miss.Code Ann. §§ 99-39-1 to 99-39-29 (Rev.2000 & Supp.2002). Miss.Code Ann. § 99-39-5(1) (Supp.2002) states in pertinent part as follows:

(1) Any prisoner in custody under sentence of a court of record of the State of

Mississippi who claims:

(g) That his sentence has expired; his probation, parole or conditional release unlawfully revoked; or he is otherwise unlawfully held in custody may file a motion to vacate, set aside or correct the judgment or sentence, or for an out-of-time appeal.

This is the proper course of action for Thomas to pursue. Therefore, we decline considering these issues.

¶ 21. THE JUDGMENT OF THE CIRCUIT COURT OF STONE COUNTY OF CONVICTION OF POSSESSION OF A CONTROLLED SUBSTANCE (COCAINE) AND SENTENCE OF THREE YEARS IN THE CUSTODY OF THE MISSISSIPPI DEPARTMENT OF CORRECTIONS TO RUN CONSECUTIVELY WITH THE SENTENCE IN STONE COUNTY CAUSE NO. 1871 IS AFFIRMED. ALL COSTS OF THIS APPEAL ARE ASSESSED TO STONE COUNTY.

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

      . Thomas had two prior revocation hearings where Judge Whitfield allowed him to remain on probation.


source: Caselaw Access Project

author: MYERS, J., for the court.

license: Public Domain

text:
    Anthony HICKS, Appellant, v. STATE of Mississippi, Appellee.
    No. 2002-KA-00916-COA.
    Court of Appeals of Mississippi.
    May 13, 2003.
    W.S. Stuckey, Greenwood, attorney for appellant.
    Office of the Attorney General, by Charles W. Maris, attorney for appellee.

      Before KING, P.J., MYERS and GRIFFIS, JJ.
   MYERS, J., for the court.

¶ 1. Anthony Hicks appeals his conviction of an assault on an officer. The only issue he presents to us is:

THE VERDICT WAS AGAINST THE OVERWHELMING WEIGHT OF THE EVIDENCE

STATEMENT OF FACTS

¶ 2. Hicks was an inmate at the Holmes County Correctional Facility. He refused to return to his cell after being informed that it would be later in the day before he could go to canteen call. Hicks requested to speak with the warden. The warden did speak with Hicks but Hicks still refused to return to his cell. The warden and several guards tried to coerce Hicks into his cell, but Hicks responded with a violent outburst. He attacked and wounded the warden. Several officers were required to pull Hicks off the warden. Hicks refused to be subdued which resulted in Mace being used.

¶ 3. Hicks argued that he started punching the warden only after being Maced. He was granted an instruction of self-defense. The testimony and a videotape shows that Hicks attacked the warden pri- or to being Maced. Hicks was able to move around one guard and grab the retreating warden.

LEGAL ANALYSIS

¶ 4. As to the weight of the evidence, the trial judge is given wide discretion to order a new trial in the face of overwhelming evidence contrary to the jury’s verdict in order to prevent an unconscionable injustice. Braxton v. State, 797 So.2d 826, 828(¶ 6) (Miss.2000). The jury was able to hear testimony from both sides recounting the facts stated earlier. The jury was also allowed to view a videotape of the assault. The jury chose to believe the evidence presented by the prosecution. The trial judge did not abuse his discretion in refusing the request for a new trial.

CONCLUSION

¶ 5. This Court cannot say that the verdict was against the overwhelming weight of the evidence nor was the evidence insufficient to allow a verdict of guilty. A reasonable and fair minded jury was presented enough evidence to reach a guilty verdict. This Court affirms the conviction.

¶ 6. THE JUDGMENT OF THE HOLMES COUNTY CIRCUIT COURT OF CONVICTION OF ASSAULT OF A LAW ENFORCEMENT OFFICER AND SENTENCE OF THREE YEARS IN THE CUSTODY OF MISSISSIPPI DEPARTMENT OF CORRECTIONS IS AFFIRMED. COSTS OF THIS APPEAL ARE ASSESSED TO HOLMES COUNTY.

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


author: LEE, J., for the court.

text:
    Karlton Lee BRADLEY, Appellant, v. STATE of Mississippi, Appellee.
    No. 2002-CA-00190-COA.
    Court of Appeals of Mississippi.
    May 13, 2003.

      Robert N. Brooks, Carthage, Christopher A. Collins, Union, Attorneys for Appellant.
    Office of the Attorney General, By: Charles W. Maris, Attorney for Appellee.
    Before McMILLIN, C.J., LEE and IRVING, JJ.
   LEE, J., for the court.

PROCEDURAL HISTORY AND FACTS

¶ 1. Karlton Lee Bradley pled guilty in the Forrest County Circuit Court to two counts of conspiracy to distribute a controlled substance and seven counts of sale of a controlled substance. On August 5, 1997, the judgment of conviction was entered and Bradley was sentenced to twenty years in the custody of the Mississippi Department of Corrections in each of the cause numbers with fifteen years to serve and five years suspended to run concurrently. Bradley was also ordered to pay a $20,000 fine, with $10,000 suspended, and all court costs.

¶2. On July 27, 2000, Bradley filed a motion for post-conviction relief in the Forrest County Circuit Court stating that his plea of guilty was not voluntary, as a result of pressure by the lower court and ineffective assistance of counsel. After an evidentiary hearing, the trial court entered its motion denying post-conviction relief on January 7, 2002. Bradley then perfected his appeal to this Court asserting that his guilty pleas were involuntary due to pressure by the lower court and ineffective assistance of counsel.

DISCUSSION OF ISSUE

¶ 3. In reviewing a trial court’s denial of post-conviction relief, our standard of review is well stated. We will not disturb the trial court’s factual findings unless they are found to be clearly erroneous. However, where questions of law are raised the applicable standard of review is de novo. Pace v. State, 770 So.2d 1052(¶ 4) (Miss.Ct.App.2000).

¶ 4. We must note that in his brief, Bradley asserts that the State has the burden of proving the voluntariness of a guilty plea by clear and convincing evidence. However, the Mississippi Supreme Court and this Court have ruled on numerous occasions that the defendant must prove by a preponderance of the evidence that his guilty plea was involuntarily or unknowingly entered. See House v. State, 754 So.2d 1147(¶ 25) (Miss.1999); Newman v. State, 820 So.2d 768(¶ 8) (Miss.Ct.App.2002); Pullem v. State, 820 So.2d 793(¶ 4) (Miss.Ct.App.2002).

¶ 5. With this issue, Bradley contends that he was coerced into pleading guilty as a result of pressure by the trial judge and ineffective assistance of counsel. However, as Bradley fails to mention in his brief how or why his trial counsel was ineffective, we decline to discuss that part of the issue on appeal.

¶ 6. The focus of Bradley’s argument is based upon an alleged conference with the trial judge, the prosecutors, the defense attorney, and two law students in which Bradley felt coerced into pleading guilty. At the post-conviction evidentiary hearing Bradley testified to the details of this meeting and his mother testified that she had overheard what had occurred during this meeting through an open door. The judge hearing the post-conviction motion found this issue to be without merit. In her order denying post-conviction relief, the judge found that Bradley, while answering questions from the trial judge during the plea hearing, denied any coercion in deciding to plead guilty. Bradley answered these questions under oath, on the record, and in the presence of his trial counsel.

¶ 7. Furthermore, in her order denying relief, the judge also stated that “this Court can only conclude that Bradley was telling the truth at his plea hearing rather than now, on appeal. Additionally, the State submitted three affidavits, ... stating that the alleged conversation between Judge O’Barr and Bradley never took place. The Court finds that this issue is without merit.”

¶ 8. We cannot disturb a lower court s findings unless they are found to be clearly erroneous, and here, we cannot find so.

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

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


text:
    Jamie STEELE a/k/a Jamie L. Steele, Appellant, v. STATE of Mississippi, Appellee.
    No. 2002-CP-00667-COA.
    Court of Appeals of Mississippi.
    May 13, 2003.

      Jamie Steele (pro se), attorney for appellant.
    Office of the Attorney General by Jean Smith Vaughan, attorney for appellee.
    Before MCMILLIN, C.J., LEE and IRVING, JJ.
   LEE, J., for the court.

PROCEDURAL HISTORY AND FACTS

¶ 1. Jamie Steele pled guilty in the Atta-la County Circuit Court to felony shoplifting and was sentenced on March 6, 2001, to serve three years and six months in the custody of the Mississippi Department of Corrections, with one year to serve and two years, six months on post-release supervision. On March 19, 2001, the circuit judge found that, by committing this crime, Steele violated the terms of his post-release supervision in an earlier shoplifting charge. Two years before, on March 1, 1999, Steele pled guilty to shoplifting and received three years in the custody of the Mississippi Department of Corrections, with seven months to serve and two years, five months on post-release supervision. The circuit judge then entered an order, dated March 19, 2001, revoking Steele’s post-release supervision, ordering Steele to serve the two years, five months from the earlier charge.

¶ 2. Steele then filed a motion for sentence clarification post-conviction in the Attala County Circuit Court on March 4, 2002, which was denied on March 8, 2002. On March 22, 2002, Steele filed a motion to reconsider the denial of his post-conviction relief, which was again denied on March 26, 2002. Steele then perfected his appeal to this Court asserting that the evidence was insufficient to support a conviction and that his probation was unlawfully revoked.

DISCUSSION OF ISSUES

¶ 3. In reviewing a trial court’s denial of post-conviction relief, our standard of review is well stated. We will not disturb the trial court’s factual findings unless they are found to be clearly erroneous. Pace v. State, 770 So.2d 1052(¶ 4) (Miss.Ct.App.2000). However, where questions of law are raised, the applicable standard of review is de novo. Id.

I. DID SUFFICIENT EVIDENCE EXIST TO SUPPORT STEELE’S CONVICTION?

¶ 4. With his first issue, Steele argues that, although he pled guilty, the evidence was insufficient to convict him. In Swift v. State, 815 So.2d 1230 (Miss.Ct.App.2001), this Court stated:

The law is well settled that when properly entered and accepted, “[a] guilty plea operates to waive the defendant’s privilege against self-incrimination, the right to confront and cross-examine the prosecution’s witnesses, the right to a jury trial and the right that the prosecution prove each element of the offense beyond a reasonable doubt.”

Swift, 815 So.2d at (¶ 13). Since Steele pled guilty, he waived his opportunity for a jury to review the sufficiency of evidence in his case; thus, we decline to review as well.

II. DID THE LOWER COURT ERR IN REVOKING STEELE’S POST-RELEASE SUPERVISION?

¶ 5. With his other issue, Steele contends that his post-release supervision was unlawfully revoked. Although Steele mentions many arguments as to why this was unlawful, his main claim is that the revocation of his post-release supervision violated the plea agreement which stated that he would be released after one year. What Steele fails to recognize is that the plea agreement in the most recent shoplifting charge had nothing to do with the earlier shoplifting charge. In a comprehensive order denying Steele relief, the circuit judge found that “under the terms of the sentence, if Steele violated the law at any time during the period of post-release supervision, his post-release supervision could be revoked and the two years and five months sentence imposed.” According to Miss.Code Ann. § 47-7-34(2) (Supp.2002), “failure to successfully abide by the terms and conditions shall be grounds to terminate the period of post-release supervision and to recommit the defendant to the correctional facility from which he was previously released.”

¶ 6. We can find no error in the lower court’s denial of Steele’s motion for post-conviction relief; thus, we affirm.

¶ 7. THE JUDGMENT OF THE AT-TALA COUNTY CIRCUIT COURT DENYING POST-CONVICTION RELIEF IS AFFIRMED. COSTS OF THIS APPEAL ARE TAXED TO ATTALA COUNTY.

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


author: BRIDGES, J., for the court.

text:
    Michael WHITE, Appellant, v. STATE of Mississippi, Appellee.
    No. 2001-CP-00871-COA.
    Court of Appeals of Mississippi.
    May 13, 2003.
    Michael White (Pro Se), attorney for appellant.
    Office of the Attorney General by Deirdre McCrory, attorney for appellee.
    Before SOUTHWICK, P.J., BRIDGES and CHANDLER, JJ.
   BRIDGES, J., for the court.

¶ 1. Michael White filed a motion for post-conviction relief on November 30, 1999, in the Circuit Court of Hinds County. The court denied his motion on April 5, 2001. He filed an undated notice of appeal which was filed by the circuit clerk on May 18, 2001.

STATEMENT OF ISSUES

I. WHETHER THE TRIAL COURT ERRED IN SENTENCING WHITE TO A TERM OF FIFTEEN YEARS, AS OPPOSED TO THE “PLEA AGREEMENT” OF TEN YEARS, WITH THREE YEARS SUSPENDED AND SEVEN YEARS TO SERVE IN THE CUSTODY OF THE DEPARTMENT OF CORRECTIONS, “PLAIN ERROR.”

II. WHETHER WHITE WAS DENIED EFFECTIVE ASSISTANCE OF COUNSEL, WHERE SUBSTITUTE COUNSEL INDUCED WHITE TO MAKE AN “OPEN PLEA” AND ENHANCEMENT SENTENCE IN VIOLATION OF THE SIXTH AND FOURTEENTH AMENDMENTS TO THE UNITED STATES CONSTITUTION.

FACTS

¶ 2. This Court was given very few facts to rely upon within the briefs of the parties. The few facts found, that are relevant here, state that White was arrested on or around January 23, 1996, and charged with “possession of cocaine” with intent to distribute, cause no. 96-3-179. The grand jury of Hinds County indicted White in September 1996, on the charge of “possession of cocaine.” On or around February 10, 1997, White made an “open plea” and was sentenced to a term of fifteen years.

STANDARD OF REVIEW

¶ 3. ‘When reviewing a lower court’s decision to deny a petition for post-conviction relief this Court will not disturb the trial court’s factual findings unless they are found to be clearly erroneous. However, where questions of law are raised the applicable standard is de novo.” Brown v. State, 731 So.2d 595, 598(¶ 6) (Miss.1999).

ANALYSIS

¶ 4. It should be noted that this Court has restricted its analysis in this case solely to the issue of whether White’s case is time-barred. This is because the time-bar issue determines whether any of the issues can even be considered. The order denying White’s motion for post-conviction relief was dated April 5, 2001, and consequently, the thirty day period to file any appeal to this Court challenging that order lapsed on May 5, 2001. Since White’s notice of appeal was not filed until May 18, 2001, the first thing this Court must address is whether this action is time-barred by our Rules of Appellate Procedure. Since White’s right to appeal was secured by Rule 4(a), this is what must be cited here. Rule 4(a) states:

Except as provided in Rules 4(d) and 4(e), in a civil or criminal case in which an appeal or cross-appeal is permitted by law as a right from a trial court to the Supreme Court, the notice of appeal required by Rule 3 shall be filed within 30 days after the date of entry of the judgment or order appealed from.

M.R.A.P. 4(a).

¶ 5. The order denying White’s petition for post-conviction relief was filed on April 5, 2001; therefore, he would have had thirty days from April 5, 2001, in which to file a timely notice of appeal, making May 5, 2001, the last date on which White could file his notice of appeal. White filed the current notice of appeal on May 18, 2001. Because of this, White’s notice of appeal in this case is barred by Rule 4(a) of the Mississippi Rules of Appellate Procedure, and the issues he brings here are barred as well. Therefore, we dismiss the appeal for lack of jurisdiction.

¶ 6. THE APPEAL OF THE JUDGMENT OF THE HINDS COUNTY CIRCUIT COURT DISMISSING POST CONVICTION RELIEF WITH PREJUDICE IS HEREBY DISMISSED. COSTS OF THIS APPEAL ARE ASSESSED TO HINDS COUNTY.

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


author: MCMILLIN, C.J., for the court.

text:
    Don A. WHITFIELD, Appellant, v. STATE of Mississippi, Appellee.
    No. 2002-CP-01140-COA.
    Court of Appeals of Mississippi.
    May 13, 2003.
    Don A. Whitfield (Pro Se), attorney for appellant.
    Office of the Attorney General by Jean Smith Vaughan, attorney for appellee.
    Before McMILLIN, C.J., LEE and IRVING, JJ.
   MCMILLIN, C.J., for the court.

¶ 1. Don Whitfield, a prisoner in the custody of the Mississippi Department of Corrections, has appealed from a decision of the Circuit Court of Winston County denying his motion for post-conviction relief. Whitfield claimed in his motion that his attorney had promised him that, if he pled guilty to two pending counts of selling cocaine, he would receive a sentence of twelve years with eight to serve and four suspended. Further, Whitfield alleges that his attorney told him he would need to lie to the trial court during the plea acceptance hearing and deny that he had received any promises or representations as to what his sentence would be. Whitfield did, in fact, voluntarily plead guilty to the two counts and was sentenced to fourteen years on each count, with ten years to serve and four years suspended. Both sentences were to be served concurrently.

¶ 2. He asserted in his motion that this conduct by defense counsel denied him the effective representation of counsel that is his constitutional right under the Sixth Amendment to the Constitution of the United States. The circuit court, “[a]fter examining the Petitioner’s motion and plea transcript,” found it to be without merit and denied relief. Whitfield then perfected this appeal.

¶ 3. Whitfield places substantial reliance on the case of Sanders v. State, 440 So.2d 278 (Miss.1983), for the proposition that he was entitled to a hearing before the circuit court at which he would be offered the opportunity to prove the matters alleged in his motion. Were Sanders still the law, this argument might have merit. However, the Sanders decision predated the adoption in 1984 of the Mississippi Uniform Post-Conviction Collateral Relief Act codified in Sections 99-39-1 through 99-39-29 of the Mississippi Code. The procedures set out in that act are now the exclusive remedy available for relief of the sort sought by Whitfield. Wallace v. State, 763 So.2d 909 (¶¶ 14-15) (Miss.Ct.App.2000).

¶4. Under the Act, the movant must demonstrate through sworn pleadings or supporting affidavits that evidence exists in support of his allegations in order to be entitled to an evidentiary hearing. Miss.Code. Ann. §§ 99-39-11 and 99-39-19 (Rev.2000); Campbell v. State, 611 So.2d 209, 210 (Miss.1992). In determining whether the appropriate threshold showing of an evidentiary basis for the motion has been met, the Mississippi Supreme Court has specifically held that when the only sworn assertions in the nature of an affidavit are those of the prisoner himself and those assertions are:

overwhelmingly belied by unimpeachable documentary evidence in the record such as, for example, a transcript or written statements of the affiant to the contrary to the extent that the court can conclude that the affidavit is a sham no hearing is required.

Young v. State, 731 So.2d 1120 (¶ 10) (Miss.1999) (citations omitted).

¶ 5. Whitfield’s motion, alleging an act of duplicity on the part of his defense counsel, is supported by nothing beyond Whitfield’s own assertion. That assertion is “overwhelmingly belied” by Whitfield’s own testimony under oath at the plea hearing. Id. The circuit court acted properly in denying relief on the conclusion that Whitfield’s allegations under oath contradicted his earlier sworn testimony and were, therefore, a sham.

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

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


author: JOHNSTONE, Justice. HARWOOD, Justice SEE, Justice

text:
    RONNIE SMITH’S HOME CENTER, INC. v. George LUSTER. Pioneer Housing Systems, Inc. v. George Luster.
    1000856 and 1000978.
    Supreme Court of Alabama.
    Sept. 6, 2002.
    K. Phillip Luke of Hall, Conerly, Mudd & Bolvig, P.C., Birmingham, for appellant Ronnie Smith’s Home Center, Inc.
    David L. Selby II and Olivia S. Matus-zak of Kee & Selby, L.L.P., Birmingham, for appellant Pioneer Housing Systems, Inc.
    G. Houston Howard II of Howard, Dunn, Howard & Howard, Wetumpka; and Gregory L. Davis of Davis, Hamilton, Berry & Sexton, Montgomery, for appel-lee.
   JOHNSTONE, Justice.

“This Court reviews the denial of a motion to compel arbitration de novo.” American Gen. Fin., Inc. v. Morton, 812 So.2d 282, 284 (Ala.2001). An appellate court will affirm the trial court for any legitimate reason supported by the record even if different from the reason cited by the trial court. Smith v. Equifax Servs., Inc., 537 So.2d 463 (Ala.1988). See also Southern Energy Homes, Inc. v. Gregor 777 So.2d 79 (Ala.2000).

“The merger rule applies as well as to prior or contemporaneous writings as to oral agreements. [Ex parte] Palm Harbor [Homes, Inc., 798 So.2d 656 (Ala.2001)]; Infiniti of Mobile, Inc. v. Office, 727 So.2d 42 (Ala.1999); Ex parte Conference America, Inc., 713 So.2d 953 (Ala.1998); Crown Pontiac, Inc. v. McCarrell, 695 So.2d 615 (Ala.1997); see also Lakehead, Pipe Line Co. v. Investment Advisors, Inc., 900 F.Supp. 234 (D.Minn.1995).”

Belmont Homes, Inc. v. Law, 841 So.2d 237, 240-41 (Ala.2002). The order of the trial court denying the motions to compel arbitration filed by Ronnie Smith’s Home Center, Inc., and Pioneer Housing Systems, Inc., is affirmed on the authority of Law, 841 So.2d at 242, and Ex parte Palm Harbor Homes, Inc., 798 So.2d 656, 660-62 (Ala.2001).

AFFIRMED.

HOUSTON and WOODALL, JJ„ concur.

HARWOOD, J., concurs specially.

MOORE, C.J., and LYONS, BROWN, and STUART, JJ., concur in the result.

SEE, J., dissents.

HARWOOD, Justice

(concurring specially).

I concur with the main opinion that application of the merger rule is dispositive of the outcome in this case. I write specially to note that although the retad installment contract, which is the writing signed by George Luster and Ronnie Smith’s Home Center, Inc., containing the merger clause, itself contained an arbitration clause purporting to bind those two signatories to arbitrate any controversy or claim between them, Ronnie Smith’s Home Center, Inc., has not sought to compel arbitration under that clause. Rather, it and Pioneer Housing Systems, Inc., have relied solely on the separate, contemporaneous writing entitled an “Agreement for Binding Arbitration.” It is that writing that is supplanted and extinguished by force of the merger clause in the retail installment agreement.

SEE, Justice

(dissenting).

I respectfully dissent.

On April 26, 1999, George Luster purchased a single-wide mobile home from Ronnie Smith’s Home Center. Pioneer Housing Systems manufactured the mobile home. As part of the sales transaction, Luster executed a sales contract consisting of a retail installment contract and a freestanding agreement for binding arbitration.

Luster alleges that Ray Norris, a sales representative at Ronnie Smith, told him when he purchased the mobile home that he was purchasing a 1999 model Pioneer mobile home. Luster later discovered a certificate in his home indicating that Pioneer had manufactured the mobile home in November 1996. Luster sued Ronnie Smith and Pioneer, alleging misrepresentation, fraudulent inducement, suppression, and a violation of the Magnuson-Moss Warranty Act.

Ronnie Smith and Pioneer filed motions to compel arbitration based on the arbitration agreement. The trial court denied the motions.

The retail installment contract contains the following provisions:

“This contract is the entire agreement between us and I agree that no oral or implied representations have been made to me to induce me to enter into this contract .... ”
“[T]his contract sets forth our entire agreement....”

The final paragraph of the arbitration agreement reads as follows:

“This agreement is a part of the contract of sale this date entered into this date between Buyer and Seller, the terms and provisions of which are incorporated herein by reference, and shall be binding upon and inure to the benefit of their respective heirs and assigns.”

The main opinion treats the language from the retail installment contract as a merger clause and, citing Belmont Homes, Inc. v. Law, 841 So.2d 237, 241 (Ala.2002), and Ex parte Palm Harbor Homes, Inc., 798 So.2d 656, 660-62 (Ala.2001), effectively holds that the merger clause in the retail installment contract nullifies the agreement calling for binding arbitration.

Ronnie Smith, however, is correct when it argues in its reply brief

“that, while [Ronnie Smith] believes that the correct interpretation of the contract is that the retail installment agreement and the agreement for binding arbitration constitute one contract, if this court holds otherwise, it is clear that under the applicable Alabama law, that the retail installment contract was modified by the parties entering into the agreement for binding arbitration.”

“This Court recognized long ago that a contract may incorporate the terms of another document by reference.” McDougle v. Silvernell, 738 So.2d 806, 808 (Ala.1999). See also Ex parte Dan Tucker Auto Sales, Inc., 718 So.2d 33, 36 (Ala.1998)(“Parties to a contract are bound by pertinent references therein to outside facts and documents.”). The plain language of the freestanding arbitration agreement states: “This agreement is a part of the contract of sale ... the terms and provisions of which are incorporated herein by reference.” By its terms, the freestanding arbitration agreement became the contract of sale and modified the agreement reached by the parties in the retail installment contract.

I,therefore, must dissent from the decision to affirm the trial court’s denial of Ronnie Smith and Pioneer’s motions to compel arbitration.

      . The merger clause contains the following statements: “This contract is the entire agreement between us and I agree that no oral or implied representations have been made to induce me to enter into this Contract” and "THIS CONTRACT SETS FORTH OUR ENTIRE AGREEMENT AND ... NO OTHER PROMISES HAVE BEEN MADE.” (Capitalization original.)

      . In my dissent in Palm Harbor Homes I concluded that language nearly identical to the language in Luster's retail installment contract did not constitute a merger clause. See 798 So.2d at 663.

      . The main opinion does not reach the other issues presented to this Court on appeal; I therefore express no opinion on those other issues.


author: HOUSTON, Justice. LYONS, Justice JOHNSTONE, Justice

text:
    COMMERCIAL UNION INSURANCE COMPANY v. Alton Lee DeSHAZO et al. CNA Insurance Company v. Alton Lee DeShazo et al. Fireman’s Fund Insurance Company v. Alton Lee DeShazo et al.
    1002083, 1002084 and 1002099.
    Supreme Court of Alabama.
    Sept. 6, 2002.

      David M. Loper and Amy L. Stuedeman of Campbell, Waller & Loper, L.L.C., Birmingham, for appellant Commercial Union Insurance Company (reply brief filed by Cinda R. York of Campbell, Waller & Lop-er, L.L.C., Birmingham).
    Richard E. Smith, Deborah Alley Smith, and Greer B. Mallette of Christian & Small, L.L.P., Birmingham, for appellant CNA Insurance Company.
    David W. McDowell and John W. Clark, Jr., of Clark & Scott, P.C., Birmingham, for appellant Fireman’s Fund Insurance Company.
    Roger L. Lucas of Lucas, Wash, Petway, Tucker & Stephens, P.C., Birmingham, for appellees.
   HOUSTON, Justice.

This is a negligent inspection case. The defendants, Commercial Union Insurance Company (hereinafter “Commercial Union”), CNA Insurance Company (hereinafter “CNA”), and Fireman’s Fund Insurance Company (hereinafter “Fireman’s Fund”), liability and workers’ compensation insurance carriers for Sepco Corporation (hereinafter “Sepco”), petitioned, pursuant to Rule 5, Ala. R.App. P., for permission to appeal from the denial of their motion for a summary judgment against the plaintiffs, Alton Lee DeShazo; Darrell Kim DeShazo; Frances Kay De-Shazo; and Richard Clark Bishop, the administrator of the estate of Margaret Virginia DeShazo, deceased, all of whom previously worked for an independent contractor at Sepco’s facility. We granted permission to appeal.

From 1975 to 1984, the plaintiffs were employed by an independent contractor who provided janitorial services for Sepco. The plaintiffs primarily cleaned office areas, but they also cleaned bathrooms, a break room, and offices located in one of Sepco’s large production rooms where asbestos products were manufactured. They claim that while working in Sepco’s facilities they were exposed to fibrous asbestos dust, which, they say, subsequently caused asbestosis and other illnesses.

During the time the plaintiffs were providing cleaning services at the Sepco facility, Commercial Union, CNA, and Fireman’s Fund issued various insurance policies to Sepco. All of those policies contained “inspection and audit” clauses, which stated that any inspections conducted by the insurer would not be for the benefit of the insured or anyone else and would not constitute an undertaking to ensure that the inspected facilities were safe. Commercial Union, CNA, and Fireman’s Fund all conducted inspections of the Sepco facilities before or while their respective policies were in effect.

The plaintiffs sued Commercial Union, CNA, and Fireman’s Fund, alleging that the insurers failed to detect unsafe working conditions during their inspections of the Sepco facilities. Commercial Union, CNA, and Fireman’s Fund moved for a summary judgment, arguing, among other things, that the plaintiffs could not recover under a negligent or wanton inspection theory because, they say, Commercial Union, CNA, and Fireman’s Fund did not undertake a duty to inspect for the benefit of the plaintiffs. The trial court denied the motion.

In reviewing a motion for a summary judgment, we apply the same standards used by the trial court. Ex parte Lumpkin, 702 So.2d 462, 465 (Ala.1997). When a movant makes a prima facie showing that there is no genuine issue of material fact, the burden shifts to the non-movant to produce substantial evidence creating such an issue. Bass v. South-Trust Bank of Baldwin County, 588 So.2d 794, 797-98 (Ala.1989). “Substantial evidence” is evidence “of such weight and quality that fair-minded persons in the exercise of impartial judgment can reasonably infer the existence of the fact sought to be proved.” West v. Founders Life Assurance Co. of Florida, 547 So.2d 870, 871 (Ala.1989); see also Ala.Code 1975, § 12-21-12. Moreover, “[o]ur review is further subject to the caveat that this Court must review the record in a light most favorable to the nonmovant and must resolve all reasonable doubts against the movant.” Dunnam v. Ovbiagele, 814 So.2d 232, 236 (Ala.2001).

This Court has previously examined claims of negligent inspection on the part of insurers in cases involving workers’ compensation policies. In fact, we first recognized a common-law claim of negligent inspection in such a case. See Beasley v. MacDonald Eng’g Co., 287 Ala. 189, 249 So.2d 844 (1971). In Beasley, the plaintiff alleged that his employer’s workers’ compensation carrier undertook to inspect the employer’s facilities in order to determine, to improve, and to promote the safety of the facilities, as well as to provide safety engineering services. Id. at 846. The plaintiff claimed that the defendant was negligent in its inspection and that it thus failed to detect a defective condition that later led to an explosion, injuring the plaintiff. Id. In Beasley, we observed that liability can arise from the negligent performance of a voluntary undertaking. Id. at 193, 249 So.2d 844. This doctrine is found in Restatement (Second) of Torts § 324A (1965), which states:

“ ‘Liability to third person for negligent performance of undertaking. One who undertakes, gratuitously or for consideration, to render services to another which he should recognize as necessary for the protection of a third person or his things, is subject to liability to the third person for physical harm resulting from his failure to exercise reasonable care to protect his undertaking, if
“ ‘(a) his failure to exercise reasonable care increases the risk of such harm, or
“ ‘(b) he has undertaken to perform a duty owed by the other to the third person, or
“ ‘(c) the harm is suffered because of reliance of the other or the third person upon the undertaking.’ ”

Beasley, 287 Ala. at 193, 249 So.2d at 847. The defendant in Beasley undertook “to inspect the premises for safety and to provide safety inspections. Having done so, under the common law expressed in our cases, [the defendant] was under a duty to use care in the performance of this undertaking.” Id.

In Armstrong v. Aetna Insurance Co., 448 So.2d 353 (Ala.1983), this Court further elaborated on the tort of negligent inspection. In that case, an independent contractor was injured while performing services on an employer’s premises. The independent contractor sued the employer’s workers’ compensation insurer, alleging that the insurer had been negligent in its inspection of the premises. We stated:

“This case raises the novel question in Alabama whether a workmen’s compensation carrier can be held liable on a negligent inspection theory for injuries incurred by an employee of an independent contractor who was not covered by the policy of workmen’s compensation insurance issued by the defendant. The tort of negligent inspection is based on the theory that when an insurer undertakes the performance of the duty owed by the insured to a third party, the insurer may be liable to that third-party if the third-party was injured as the proximate result of the insurer’s failure to exercise reasonable care in said performance. Restatement (Second) of Torts § 324A [ (1965) ]. Thus, when an insurer undertakes to inspect an insured employer’s premises for safety, it assumes the duty of the insured employer to provide a safe place for its employees to work. Beasley v. MacDonald Engineering Co., 287 Ala. 189, 249 So.2d 844 (1971).
“Under Alabama law, the premises owner is also under a duty to employees of an independent contractor to maintain the premises in a reasonably safe condition, except with respect to conditions arising in the progress of the work on the contract. Pate v. United States Steel Corp., 393 So.2d 992, 994 (Ala.1981); Green v. Reynolds Metals Co., 328 F.2d 372, 374 (5th Cir.1964). In making a safety inspection, does a workmen’s compensation carrier assume the insured employer’s duty as a premises owner to employees of independent contractors?
“When a workmen’s compensation carrier inspects its insured’s work place, it does so to promote its interest in underwriting, rating, and loss prevention with respect to the policy of insurance. The duty of care to third persons which it assumes, therefore, must be limited. While an action for negligent inspection sounds in tort and is, therefore, not based on the contract of insurance per se, the class of persons who are the intended beneficiaries of the inspection is limited to those covered by the policy. Since the duty in question is one which is gratuitously assumed by the insurer, we opine that the scope of the duty should be concomitant with the class of persons covered by the policy.”

Armstrong, 448 So.2d at 355. This Court held that any duty assumed by a workers’ compensation carrier when making an inspection is limited by the policy and does not include a duty to employees of an independent contractor. Id,.

In this case, the plaintiffs allege that Commercial Union, CNA, and Fireman’s Fund, by undertaking inspections pursuant to their general liability policies, assumed the duty to provide the plaintiffs with a reasonably safe workplace. We disagree.

As Armstrong explains, the underlying theory of the tort of negligent inspection rests on the notion that the inspecting party assumes the duty of the insured to provide a safe place to work. See id. at 355 (“when an insurer undertakes to inspect an insured employer’s premises for safety, it assumes the duty of the insured employer to provide a safe place for its employees to work”); see also Beasley, 287 Ala. at 194, 249 So.2d at 847. In this case, however, the “inspection and audit” clauses in the policies issued by Commercial Union, CNA, and Fireman’s Fund all stated that they were not undertaking “to determine or warrant that such property or operations [or workplaces, operations, machinery or equipment] are safe or healthful.” Thus Commercial Union, CNA, and Fireman’s Fund specifically stated that they were not, by inspecting the premises, assuming Sepco’s duty to provide a safe place to work.

Furthermore, the “inspection and audit” clauses also indicate that any inspection was solely for the benefit of the defendants, and not, as described in the clauses, made “on behalf of or for the benefit of the named insured or others.” (Emphasis added.) See Ranger Ins. Co. v. Hartford Steam Boiler Inspection & Ins. Co., 410 So.2d 40, 42 (Ala.1982) (noting that an “inspection and audit” clause demonstrates that “the inspection by [the insurer] was never intended to be an undertaking for the benefit of the insured”). Thus, the defendants were not voluntarily undertaking, “gratuitously or for consideration, to render services to another,” as described by the Restatement (Second) of Torts. See Pugh v. Butler Tel. Co., 512 So.2d 1317, 1320 (Ala.1987) (holding that inspections made for the sole benefit of a telephone company to ensure compliance with plans and specifications did not create a duty of care to the employees of a construction company); see also Jansen v. Fidelity & Cas. Co., 79 N.Y.2d 867, 868-69, 589 N.E.2d 379, 380, 581 N.Y.S.2d 156, 157 (1992) (‘While it is true that one who assumes to act, even though not obligated to do so, may thereby become subject to the duty to act carefully .... The application of this principle has been limited to ‘those situations wherein the action taken is for the benefit of another and not in furtherance of the interest of the one who assumes to act.’ ” (citations omitted)(quoting James v. State, 90 A.D.2d 342, 344, 457 N.Y.S.2d 148, 151 (1982))).

While we have, in the past, described this situation as fitting an “exception” to the common-law principles embodied in Restatement (Second) of Torts § 324A (1965), see Rudolph v. First S. Fed. Sav. & Loan Ass’n, 414 So.2d 64, 68 (Ala.1982) (stating that an “inspection and audit” clause brought the defendant in Ranger Insurance within a recognized exception to the common-law “voluntary undertaking” doctrine because the policy provision leaves no doubt the inspections are for the sole benefit of the insurer), we note that it is not based upon an “exception” to § 324A that we decide this case. Rather, it is the fact that, in this situation, § 324A, as a conduit of liability, is rendered wholly unavailable to the plaintiffs because there was no “undertaking ... to render services for another.” See Rudolph, 414 So.2d at 68 n. 2 (stating that “[w]hile Ranger Insurance uses the term ‘exception to the rule’ ..., we recognize that, in the purest sense, its holding of no liability is not an ‘exception’; rather, the Ranger Insurance facts ... do not invoke the operative effect of the ‘gratuitous undertaking’ doctrine”). Because the inspections were not made for the benefit of anyone other than the defendants, the defendants owed no duty of care to the plaintiffs.

The plaintiffs argue that because they were not a party to the insurance contracts between Sepco and the defendants, the “inspection and audit” clauses cannot preclude their claims. The plaintiffs, however, misunderstand the effect of the clauses. Just as the insurance contract may limit the persons to whom a duty of care is assumed by an inspection, see Armstrong, 448 So.2d at 355, the contract may limit the scope of any duty assumed by the insurers when an inspection is made pursuant to the contract. The “inspection and audit” clauses in this case clearly demonstrate that the defendants were not assuming Sepco’s duty to keep the workplace safe for the plaintiffs.

Because Commercial Union, CNA, and Fireman’s Fund undertook to inspect Sep-co’s facilities for their own benefit and did not assume the duty to provide a safe place to work, they cannot be held liable for negligent inspection. Therefore, the defendants are entitled to the summary-judgment. The trial court’s order denying Commercial Union’s, CNA’s, and Fireman’s Fund’s motions for a summary judgment is reversed and a judgment is rendered for Commercial Union, CNA, and Fireman’s Fund.

REVERSED AND JUDGMENT RENDERED.

MOORE, C.J., and SEE, BROWN, HARWOOD, WOODALL, and STUART, JJ., concur.

LYONS, J., concurs in the result.

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

LYONS, Justice

(concurring in the result).

I find highly persuasive Justice John-stone’s argument that the document to which he refers implicates Fireman’s Fund in activities beyond conducting inspections solely for its own benefit. I would be receptive to an argument that such conduct estops Fireman’s Fund from relying on the restrictive language of its policy, thereby making it subject to liability as “[o]ne who undertakes, gratuitously or for consideration, to render services to another which he should recognize as necessary for the protection of a third person or his things.” Restatement (Second) of Torts § 324A (1965). However, in Armstrong v. Aetna Insurance Co., 448 So.2d 353 (Ala.1983), this Court held that in an action alleging the tort of negligent inspection the class of beneficiaries to whom a duty is owed is restricted to the insureds under the insurance policy. Stare decisis prevents me from dissenting from the majority’s denial of relief to the plaintiffs, who are not insureds under the policy.

JOHNSTONE, Justice

(concurring in part and dissenting in part).

But for one exception, I concur. The exception results from a factual distinction between the claims against Fireman’s Fund and the claims against the other defendants.

On March 25, 1982, Fireman’s Fund wrote and sent Sepco a letter which stated:

“The results of the air sampling survey indicated no personal over-exposures to asbestos, nuisance dust and solvent vapors. Since the standards for these substances were not exceeded, and are not likely to be exceeded with your present method of operations and the degree of protection provided, additional controls on your part are not required. We do suggest that you continue your medical monitoring program presently established for all your employees in the braiding department operations.” (Emphasis added.)

The record contains substantial evidence that contradicts the statements in this lulling letter that exposure standards were not exceeded and likely would not be exceeded and that “additional controls on your part are not required.” This letter is substantial evidence that Fireman’s Fund actively participated in the bad safety management at Sepco which injured the plaintiffs.

While the disclaimer in the Fireman’s Fund insurance policy would be effective to avoid liability in Fireman’s Fund for merely conducting inspections and making its own underwriting decisions, the disclaimer is not effective to avoid liability in Fireman’s Fund for actively participating in the perpetuation of safety hazards. The lulling letter by Fireman’s Fund was, in the words of Restatement (Second) of Torts § 324A (1965), as quoted in Beasley v. MacDonald Engineering Co., 287 Ala. 189, 249 So.2d 844 (1971), an “under-tak[ing], gratuitous! ] or for consideration, to render [safety management] services to [Sepco] which [Fireman’s Fund] should [have] recognize[d] as necessary for the protection of [those working at Sepco].” The record contains substantial evidence of the existence of all three of the § 324A disjunctive conditions for liability in Fireman’s Fund:

“(a) [its] failure to exercise reasonable care inerease[d] the risk of such harm, or
“(b) [it undertook] to perform a duty owed by [Sepco] to the [workers], or “(c) the harm [was] suffered because of rebanee of [Sepco] or the [workers] upon the undertaking.”

287 Ala. at 193, 249 So.2d at 847 (emphasis added).

Therefore, I respectfully submit that we should affirm the trial court in its denial of the motion for summary judgment filed by Fireman’s Fund. I concur in our reversing the denial of the other defendants’ motions for summary judgment and rendering judgments for those defendants.

      . Commercial Union issued general liability policies which were in effect from 1970 through 1978 and 1981 through 1982, as well as two workers’ compensation policies which provided coverage from 1971 to 1973. Fireman’s Fund insured Sepco under a general liability insurance policy from 1981 until September 1982. From September 1982 to September 1984, CNA provided Sepco both workers’ compensation and general liability coverage.

      . Two variations of the inspection and audit clause appear in the policies:
      "Inspection and Audit: The Company shall be permitted but not obligated to inspect the named insured's property and operations at any time. Neither the Company’s right to make inspections nor the making thereof nor any report thereon shall constitute an undertaking, on behalf of or for the benefit of the named insured or others, to determine or warrant that such property or operations are safe or healthful, or are in compliance with any law, rule or regulation.”
      "Inspection and Audit: The company and any rating authority having jurisdiction by law shall each be permitted but not obligated to inspect at any reasonable time the workplaces, operations, machinery and equipment covered by this policy. Neither the right to make inspections nor the making thereof nor any report thereon shall constitute an undertaking on behalf of or for the benefit of the insured or others, to determine or warrant that such workplaces, operations, machinery or equipment are safe or healthful, or are in compliance with any law, rule or regulation.”

      . Armstrong clearly bars a claim against CNA and Commercial Union for negligent inspections performed pursuant to the workers’ compensation policies. The parties seem to acknowledge this on appeal, because the issues presented for review revolve solely around liability for inspections pursuant to the general liability policies.

      . The plaintiffs argue that Hodge v. United States Fidelity & Guaranty Co., 539 So.2d 229 (Ala.1989), rejects the notion that inspections can be made for the sole benefit of the insurer. In Hodge, the plaintiffs presented evidence indicating that their employer’s workers' compensation insurer had assumed the employer’s duty to provide a safe workplace. In the case at issue, however, the policies expressly state that the defendants were not undertaking a duty to ensure that the workplace was safe.

      . Other courts have reached the same legal conclusion. In James v. State, 90 A.D.2d 342, 344, 457 N.Y.S.2d 148, 151 (1982), the court held that a similar “inspection and audit” clause disclaimed that any inspection was conducted for the benefit of the employer or others; thus, the inspection was not a gratuitous undertaking for the benefit of another. 90 A.D.2d at 345, 457 N.Y.S.2d at 150-51. Holding that the scope of the duty undertaken was strictly defined by the contract, the court stated:
      "Although the claim is based on negligence and not on the contract, the scope of the undertaking must be determined in the context of the contract and not in isolation from it since any inspection which may have occurred was conducted pursuant to the permissive clause in the contract. Viewed in this context, the undertaking was clearly not for the benefit of the employer or employee.”

        James, 90 A.D.2d at 345, 457 N.Y.S.2d at 152 (footnote omitted). See also Kennard v. Liberty Mut. Ins. Co., 277 So.2d 170, 174 (La.Ct.App.1973) (holding that an "inspection and audit clause” negates any duty created by an inspection on the part of an insurer to an employee of the insured).


author: HOUSTON, Justice. MOORE, Chief Justice

text:
    Ex parte EMPLOYERS MUTUAL CASUALTY COMPANY, Inc. (In re Computer Equipment and Service Company, Inc., et al. v. Employers Mutual Casualty Company, Inc., et al.)
    1011202.
    Supreme Court of Alabama.
    Sept. 6, 2002.

      John D. Richardson of Richardson, Spear, Spear & Hamby, P.C., Mobile, for petitioner.
    Bibb Allen and Richard E. Smith of Christian & Small, L.L.P., Birmingham, for respondents Computer Equipment and Service Company, Inc., and Todd Barwiek.
    Nat Bryan, Dennis E. Goldasich, Jr., and Thomas M. Powell of Marsh, Rickard & Bryan, P.C., Birmingham, for respondent Nadia, Inc.
   On Application for Rehearing

HOUSTON, Justice.

Employers Mutual Casualty Company, Inc. (hereinafter “EMC”), seeks a writ of mandamus directing the Jefferson Circuit Court to vacate its orders striking EMC’s affirmative defense of, and preventing discovery regarding, fraud and collusion with respect to a consent judgment entered in a case involving the respondents, Computer Equipment and Service Company, Inc., and its employee Robert Todd Barwiek (hereinafter referred to collectively as “CESCO”), and Nadia, Inc. We grant the petition in part and deny the petition in part.

This case finds its roots in an action, filed by Nadia, Inc., against CESCO (case no. CV-00-658) alleging damage to one of Nadia’s computers by CESCO. CECSO referred the complaint to EMC, CESCO’s liability insurer, but EMC, asserting that CESCO was not entitled to coverage, refused to provide a defense. CESCO eventually consented to a judgment against it and in favor of Nadia for $1,100,000.

Before the entry of the consent judgment in case no. CV-00-658, CESCO filed a separate action (case no. CV-00-2329) against EMC and Nadia, alleging, among other things, that EMC’s failure to provide a defense amounted to a breach of contract, negligence, and the tort of outrage. After the entry of the consent judgment, Nadia filed a cross-claim against EMC in case no. CV-00-2329. EMC filed a counterclaim against CESCO and a cross-claim against Nadia, seeking a declaratory judgment on the issue whether there was collusion to defraud involved in the consent judgment. However, the trial court dismissed EMC’s counterclaim and cross-claim.

EMC then essentially restated its claim of collusion to defraud by amending its answer to add the claim as an affirmative defense against both CESCO and Nadia. The trial court struck the defense on the same basis it dismissed EMC’s counterclaim and cross-claim, namely, because EMC failed to intervene as a party and challenge or appeal the consent judgment in case no. CV-00-658:

“THE COURT: ... You know, a court receives a case based upon facts and decisions that are made, have been made prior to the filing. And in this particular situation, I’m looking at the consent judgment signed the 26th day of July, 2001 by Judge Owen Horn, which is Civil Action Number CV-00-658 AEH.
“I have reviewed all of the authority which you all have cited and considered all of the arguments made today and I stand by my previous order of February 7 [denying EMC’s counterclaim and cross-claim], wherein I stated that this Court finds that EMC decided to deny coverage and to deny to defend in the underlying action and has no standing to challenge the judgment which has been properly entered [in] the underlying action. There was no appeal taken from this consent judgment and there’s been no 60(b) [Ala. R. Civ. P.] motion filed to attack this judgment.
“Now, certain decisions were made. The way I read the law, the way I read it on February 7 was EMC, for whatever reason, decided not to take part in the proceedings before Judge Horn and made the decision not to file any kind of motion or to appeal the judgment of Judge Horn. It is my considered opinion that I cannot go behind the judgment of Judge Horn, whether it’s by consent or not.
“I’ve heard arguments in our last time together, ‘Well, what if this was some astronomical consent judgment, Your Honor?’ And I just heard the sum of, What if it were two billion dollars?’
‘Well, it’s not. And in fact, it’s $1,100,000. And before a judgment can be consented to and finalized, it takes the signature of a circuit judge in order to — for that to become a valid judgment. And on July 26, 2001, as evidenced by the file and as evidenced by the consent judgment executed by Judge Horn, this became a judgment. And in fact, the last piece of paper in that file and the last entry by the clerk makes reference to the consent judgment and I find nothing else. I’m going to make the following rulings, based upon everything I have heard today and previously.
“Number one, I’m going to grant the Motion to Strike the last Amended Complaint, the 23rd affirmative defense.”

Furthermore, in accordance with this ruling, the trial court granted CESCO’s and Nadia’s motions for protective orders, barring EMC from deposing CESCO’s and Nadia’s lawyers regarding the circumstances surrounding the consent judgment.

EMC argues that it is entitled to a writ of mandamus directing the trial court to allow EMC to maintain, and to seek discovery regarding, its asserted affirmative defense. Typically, a petitioner seeking the extraordinary remedy of a writ of mandamus must demonstrate: “(1) a clear legal right in the petitioner to the order sought; (2) an imperative duty upon the respondent to perform, accompanied by a refusal to do so; (3) the lack of another adequate remedy; and (4) properly invoked jurisdiction of the court.” Ex parte Integon Corp., 672 So.2d 497, 499 (Ala.1995).

However, acknowledging the particularities of certain scenarios, we have sometimes stated the standard in a different way. For example, with regard to discovery, we examine whether the trial court abused its discretion:

“Because discovery involves a considerable amount of discretion on the part of the trial judge, the standard this Court will apply in reviewing his actions on a petition for a writ of mandamus is whether there has been a clear showing that the trial court abused its discretion. Thus, a writ of mandamus directing the trial judge to set aside his ruling on a discovery matter will issue only where it is clear that the trial judge has abused his discretion.”

Ex parte Clarke, 582 So.2d 1064, 1067 (Ala.1991). Likewise, governed by the particular concerns of judicial economy raised by the scenario involved here — a trial court’s pretrial decision to strike a potentially determinative affirmative defense — we have previously issued the writ after holding that the trial court’s decision was erroneous, focusing mainly on the inherent prejudice on the petitioner. Ex parte United States Gypsum Co., 533 So.2d 557 (Ala.1988). In Ex parte United States Gypsum, we issued a writ of mandamus based on a trial court’s erroneous striking of a defendant’s affirmative defenses, stating:

“Our holding [that the trial court erroneously stuck the affirmative defenses] necessarily implies that mandamus is a proper remedy in this case. The probability that the trial court’s error would require U.S. Gypsum to go through a second trial following reversal on appeal following a trial outweighs any prejudice that the plaintiffs face by way of having to defend against the matters raised in the original pre-trial motions. Accordingly, U.S. Gypsum is not restricted to raising these issues on appeal.”

533 So.2d at 561 n. 3 (citation omitted); see also Ex parte Neely Truck Line, Inc., 588 So.2d 484, 486 (Ala.Civ.App.1991) (applying an abuse-of-discretion standard to a petition for a writ mandamus challenging a trial court’s refusal to allow a defendant to plead an affirmative defense).

In this case, we hold that the trial court clearly erred in striking EMC’s affirmative defense alleging collusion to defraud in obtaining the consent judgment. To a great extent, CESCO’s and Nadia’s arguments essentially follow the reasoning of the trial court: EMC cannot “collaterally attack” the consent judgment because EMC did not take advantage of the opportunity to intervene and to challenge the judgment in case no. CV-00-658. Indeed, intervention would have been required to bring a challenge under the rule mentioned by the trial court — Rule 60(b), Ala. R. Civ. P. — because that rule applies only to parties or their legal representatives. Rule 60(b), Ala. R. Civ. P. (providing an avenue for “the court [to] relieve a party or a party’s legal representative from a final judgment, order, or proceeding”). However, EMC argues that it was not required to intervene in case no. CV-00-658 in order to challenge the consent judgment and that such intervention (1) would violate Rule 18(c), Ala. R. Civ. P., which prohibits “a jury trial of a liability insurance coverage question jointly with the trial of a related damage claim against an insured,” and (2) would be inconsistent with EMC’s position that it owed no coverage to CESCO.

Furthermore, a case cited by CESCO, First National Bank of Decatur v. Pullen, 129 Ala. 638, 29 So. 685 (1901), appears to support EMC’s position that intervention in case. no. CV-00-658 was not required. In Pullen, this Court stated:

“Judgments and decrees of courts are binding only upon parties thereto and their privies (except, of course, judgments strictly in rem which conclude all interest in the subject-matter, the thing against which it is rendered). Strangers are not bound by them, and may attack them collaterally whenever they are interposed to affect their rights. But it does not follow that strangers may not in any case attack them by a direct proceeding seeking their annulment. To the contrary, it appears to be well established law that whenever the existence of a judgment or the uses of which it is capable and which are imminent injuriously affect the rights or remedies of a stranger to it, he may by original bill directly attack it for fraud and collusion and, upon proof, have it set aside and held for naught ....”

129 Ala. at 642, 29 So. at 687 (emphasis added). EMC is no doubt a “stranger” to the consent judgment (i.e., EMC was not a party in the action that resulted in the judgment), and there is also no doubt that the existence of the judgment injuriously affects EMC’s rights; the judgment serves as the basis for CESCO’s and Nadia’s claims against EMC. We can simply find no reason why EMC should not be able to attack the consent judgment by raising “fraud and collusion” as an affirmative defense in case no. CV-00-2329. Id.

Because EMC is entitled to assert its affirmative defense, we hold that the trial court erred in striking it. Therefore, we grant the petition in part and direct the trial court to vacate its order striking EMC’s affirmative defense. However, the trial court’s denial of discovery was based upon its refusal to allow EMC’s affirmative defense; therefore, the scope of discovery in light of our ruling is a matter to be addressed by the trial court. Accordingly, we deny the petition to the extent EMC asks this Court to direct the trial court to allow particular discovery.

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

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

MOORE, C.J., concurs in part and dissents in part.

MOORE, Chief Justice

(concurring in part and dissenting in part).

I concur in the Court’s decision to deny the petition for the writ of mandamus regarding the trial court’s protective order preventing discovery as to the fraud and collusion claims asserted by Employer Mutual Casualty Company, Inc. (“EMC”). However, I must respectfully dissent from the Court’s issuance of the writ of mandamus directing the trial court to vacate its order striking EMC’s affirmative defense of collusion to defraud. Regardless of whether striking the defense was error, EMC can challenge that decision on appeal. “It is well settled that the writ of mandamus is an extraordinary and drastic remedy and is available only where 1) the petitioner has a clear legal right to the relief sought; and 2) the petitioner has no other adequate legal remedy.” Ex parte Alabama Dep’t of Envtl. Mgmt., 627 So.2d 927, 930 (Ala.1993). EMC has an adequate legal remedy available by way of an appeal. Therefore, mandamus relief is not warranted in this case.

      . Another party, Briggs Insurance Agency, was also named as a defendant in case no. CV-00-2329.

      . According to EMC, its claims of collusion to defraud are based upon evidence indicating (1) that Nadia had originally demanded only $250,000 to settle its claims in case no. CV-00-658, an amount substantially less than the amount eventually consented to ($1.1 million), and (2) that the former owner of CES-CO, while he did not believe that CESCO was liable to Nadia and even though he had already sold CESCO, nonetheless consented to the $1.1 million judgment.


author: WOODALL, Justice. HOUSTON, Justice

text:
    Rolfe C. HARPER III v. BROWN, STAGNER, RICHARDSON, INC. Brown, Stagner, Richardson, Inc. v. Rolfe C. Harper III.
    1011109 and 1011205.
    Supreme Court of Alabama.
    Sept. 6, 2002.

      Paul V. Lagarde and James H. McDonald, Jr., of Alford, Clausen & McDonald, L.L.C., Mobile, for appellant/cross-appellee Rolfe C. Harper III.
    Dennis G. Pantazis and Brian M. Clark of Gordon, Silberman, Wiggins & Childs, P.C., Birmingham, for appellee/cross-ap-pellant Brown, Stagner, Richardson, Inc.
   WOODALL, Justice.

On November 28, 2001, the trial court entered a summary judgment in the amount of $113,115.34 for Brown, Stagner, Richardson, Inc. (“Brown”), and against Rolfe C. Harper III (“Harper”). The summary judgment included no prejudgment interest or punitive damages. Harper appeals from the summary judgment against him, and Brown cross-appeals from that judgment, but only with regard to the trial court’s refusal to award prejudgment interest and its refusal to allow a trial with regard to punitive damages. With regard to Harper’s appeal (case no. 1011109), we reverse and remand. With regard to Brown’s cross-appeal (case no. 1011205), we dismiss.

I.

Brown initially sued only Harper Sales Company, Inc. (“Harper Sales”). “The trial court conducted a trial on [Brown’s] claims against Harper Sales. The jury returned a verdict in favor of [Brown] and awarded damages of $113,115.34. The trial court entered a judgment on that verdict.” Harper Sales Co. v. Brown, Stagner, Richardson, Inc., 742 So.2d 190, 191 (Ala.Civ.App.1999). The judgment against Harper Sales became final on July 17, 2000, when the trial court dismissed with prejudice the counterclaim filed by Harper Sales against Brown. There was no appeal from that final judgment.

On March 28, 2001, more than eight months after the entry of final judgment, Brown filed a motion, stating that “pursuant to Ala. R. Civ. P. 60(b)[, it] moves this court for an order amending the complaint ... to add Rolfe C. Harper, III as a party defendant.” Brown attached to its motion an amended complaint against Harper, which it described as an “action to pierce the corporate veil” in order to impose personal liability upon Harper. The trial court granted Brown’s motion on April 10, 2001.

The amended complaint was served upon Harper on May 8, 2001. On June 7, 2001, Harper filed a motion, asking the trial court to reconsider its order allowing amendment of the complaint, and, alternatively, asking that the amended complaint be dismissed. His first argument in that motion was that Brown’s use of Ala. R. Civ. P. 60(b) “to assert new claims against a new defendant” was improper.

On July 2, 2001, Brown responded to Harper’s motion. On July 3, 2001, the trial court denied Harper’s motion. Harper then filed his answer on July 20, 2001. As one of his defenses, Harper stated in his answer that the “action is due to be dismissed because it raises new claims against a new defendant postjudgment and is not a proper application of Rule 60(b).”

As previously mentioned, on November 28, 2001, the trial court entered a summary judgment in the amount of $113,115.34 for Brown and against Harper. On December 28, 2001, Harper filed a motion to vacate that judgment. On January 16, 2002, the trial court denied Harper’s motion to vacate the judgment. These appeals followed.

II.

On July 17, 2000, the trial court entered a final judgment, which, by its own terms, “eonclude[d] this entire case.” However, on March 28, 2001, Brown, purportedly pursuant to Ala. R. Civ. P. 60(b), moved for leave to amend its complaint to add Harper as a defendant and to assert new claims against him. On April 10, 2001, the trial court granted Brown’s motion. We hold that the trial court erred in doing so; therefore, we pretermit discussion of the other issues raised by the parties.

Rule 60 is entitled “Relief from Judgment or Order.” “Subdivision (b) ... specifies certain limited grounds upon which final judgments may be attacked, even after the normal procedures of motion for a new trial and appeal are no longer available.” Ala. R. Civ. P. 60, Committee Comments on 1973 Adoption. Rule 60 contains no provision contemplating its use as a means to add new claims against a new defendant after a final judgment has been entered.

When Brown sought to add Harper as a defendant, it claimed to be making its motion pursuant to Rule 60(b). However, the motion did not attack the judgment in its favor against Harper Sales, and the motion sought no relief from that judgment. Instead, Brown’s motion sought only to amend its complaint to add Harper as a defendant, relief clearly not contemplated by Rule 60.

In the trial court, Brown admitted that its motion “[did] not seek ‘relief from the judgment in the traditional sense.” Memorandum in Support of Plaintiffs Motion pursuant to Ala. R. Civ. P. 60(b) to Add Rolfe C. Harper as a Defendant, at 3. However, Brown argued that a “purpose of Rule 60(b)(6) is to provide an avenue to present good cause why a party should ... have a judgment modified.” Id. Similarly, on appeal, Brown argues that Rule 60 “provides the procedural vehicle” by which the trial court can “modify and amend judgments.” Brief of Appellee, at 27. Brown’s argument has no merit.

By its title, it is clear that Ala. R. Civ. P. 59, in pertinent part, deals with the “Amendment of Judgments.” In fact, Rule 59(e) provides that “[a] motion to alter, amend, or vacate the judgment shall be filed not later than thirty (30) days after entry of the judgment.” Since Brown’s motion was filed more than eight months after the entry of final judgment, no relief was available to it under Rule 59, the only rule dealing with the modification or amendment of a judgment.

This Court recently held that a trial court erred in allowing plaintiffs to amend their complaint to add additional defendants after a final judgment had been entered. See Pratt Capital, Inc. v. Boyett, 840 So.2d 138 (Ala.2002). Although the facts of this case differ somewhat from the facts of that case, our holding today is consistent with our holding in Pratt Capital, Inc., and in the cases cited therein.

III.

For the aforesaid reasons, the summary judgment for Brown and against Harper is reversed, and the case is remanded for an order consistent with this opinion. Because Brown is entitled to no recovery from Harper in this action, we must dismiss the cross-appeal as moot.

1011109 — REVERSED AND REMANDED.

1011205 — DISMISSED.

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

HOUSTON, J., concurs in the result.

HOUSTON, Justice

(concurring in the result).

I concur in the result. Harper Sales Company, Inc., was the trade name under which Redmond Brokerage Company, Incorporated, did business. In accordance with Hughes v. Cox, 601 So.2d 465 (Ala.1992), a judgment against Harper Sales would be a judgment against Redmond Brokerage. I dissented in Hughes v. Cox, and, although I must follow the holding in that case, I will not extend that holding to hold that a judgment against Hughes Sales is a judgment against Rolfe C. Harper III.

I concur in the result because the majority opinion holds that Brown cannot recover from Rolfe C. Harper III in this case. Even without extending the holding in Hughes, there is a factual issue as to whether Harper is individually liable for the judgment obtained against Harper Sales Company, Inc., in this case. See Ex parte AmSouth Bank of Alabama, 669 So.2d 154, 156-58 (Ala.1995).


author: JOHNSTONE, Justice

text:
    Ex parte Donald DALLAS. (In re Donald Dallas v. State of Alabama).
    1961457.
    Supreme Court of Alabama.
    Sept. 9, 2002.
   Petition for Writ of Certiorari to the Court of Criminal Appeals (Montgomery Circuit Court, CC-94-2142, Eugene W. Reese, Judge; Court of Criminal Appeals, CR-95-0354).

Note from the reporter of decisions: On September 9, 2002, the Alabama Supreme Court issued an order setting an execution date for Donald Dallas. That order stated, in part:

“The State of Alabama having filed a motion to set an execution date, and the same having been submitted and duly considered by the Court, it is considered that the motion to set an execution date is due to be granted.
“IT IS NOW ORDERED that Thursday, October 17, 2002, be fixed as the date for the execution of the convict, Donald Dallas, who is now confined in the William C. Holman Unit of the Prison System at Atmore, Alabama.”

Justice JOHNSTONE issued a special writing dissenting from the order setting the execution date.

JOHNSTONE, Justice

(dissenting).

I respectfully dissent from setting an execution date while Donald Dallas’s petition for federal habeas corpus relief is pending in federal court. While the State contends to us that Dallas’s federal habeas corpus petition is untimely, its timeliness vel non is a federal issue for the federal court to decide. Our now setting this execution date tends to arrogate this federal issue unto this Court for decision and thereby tends to strain the comity between the state judiciary and the federal judiciary and to add one more pressure to the pressures the federal courts already bear.

I am constrained to observe further that the ineffective assistance of counsel claims in the now pending federal habeas corpus petition seem worthy of consideration if the federal court can reach the merits. Dallas raised these same claims in his Rule 32, Ala. R.Crim. P., petition in state court. After the state trial court heard and denied the Rule 32 petition, Dallas’s Rule 32 counsel missed the appeal deadline, and the Court of Criminal Appeals dismissed Dallas’s appeal. After Dallas then obtained a declaration by the trial court that the appeal time had been tolled during the pendency of a post-denial motion, Dallas refiled his appeal of the denial, but the Court of Criminal Appeals again dismissed the appeal as untimely. When Dallas petitioned this Court for a writ of certiorari to review the latter dismissal of the refiled appeal, this Court denied certiorari review because Dallas’s Rule 32 counsel had violated Rule 40(d)(1), Ala. R.App. P., by failing to file a timely application for rehearing before the Court of Criminal Appeals on the issue of its dismissal of the refiled appeal.

The allegations of Dallas’s Rule 32 petition were so apparently meritorious but the procedural defects in his quest for appellate review were so insurmountable that I personally was perplexed to the point of being unwilling to vote either to grant or to deny certiorari review. The note I wrote myself at the bottom of the cover of our internal memorandum regarding Dallas’s petition for a writ of certiorari reads:

“Petition alleges serious ineffectiveness on pp. 14-16. Petitioner’s appeal of the denial of his Rule 32 petition was dismissed as tardy because of his lawyer’s impression that a motion to reconsider would toll the appeal time. Then petitioner faded to apply for rehearing on that dismissal — so no cert. But isn’t the defendant entitled to some competent lawyer?”

My note, as it applies to Dallas’s Rule 32 counsel, was not meant as disparagement, for apparently she was zealous, but was meant as a reference to the critical need for absolute mastery of the complexities of our appellate law.


author: WOODALL, Justice.

text:
    RUSSELL COAL COMPANY, INC. v. Kenneth SMITH and Deborah Smith.
    1011008.
    Supreme Court of Alabama.
    Sept. 20, 2002.

      John M. Bergquist of Parsons, Lee & Juliano, P.C., Birmingham, for appellant.
    Garve Ivey, Jr., of Ivey & Ragsdale, Jasper, for appellees.
   WOODALL, Justice.

The defendant, Russell Coal Company, Inc. (“Russell”), appeals from an order denying its Rule 60(b), Ala. R. Civ. P., motion for relief from a default judgment in favor of the plaintiffs, Kenneth Smith and Deborah Smith. Russell suffered a default judgment in the amount of $300,000 after it failed to answer the Smiths’ complaint. Russell argues that the judgment is void, because, it says, the Smiths did not properly serve process on it. We agree, and we reverse and remand.

I.

In 1996, Russell filed a petition in the United States Bankruptcy Court for the Northern District of Alabama, seeking protection under Chapter 11 of the United States Bankruptcy Code. The bankruptcy court appointed Terry Humphryes trustee of the bankruptcy estate of Russell, the debtor. Humphryes retained David B. Anderson as his attorney, apparently with the approval of the bankruptcy court.

In 1997, the Smiths filed this action against Russell. After their attempts to obtain service of process upon Russell failed, the Smiths had a copy of the summons and complaint sent by certified mail to Anderson, the attorney representing the bankruptcy trustee. A secretary at the law firm where Anderson works signed the eertified-mail receipt on January 6, 2000.

On September 18, 2000, the Smiths filed an application for the entry of a default against Russell, claiming that Russell “was served through the bankruptcy trustee ... on January 6, 2000.” Default was entered on that same date, with leave to prove damages. On November 6, 2000, after a hearing on damages, the trial court entered judgment in favor of the Smiths and against Russell in the amount of $300,000.

On March 6, 2001, Russell filed a Rule 60(b), Ala. R. Civ. P., motion for relief from the default judgment, claiming that the judgment was void, because, it alleged, it had not been served with process in accordance with Rule 4(c)(6), Ala. R. Civ. P. On January 10, 2002, the trial court held a hearing on Russell’s Rule 60(b) motion. Testimony was taken and exhibits were received. On February 4, 2002, the trial court entered an order denying Russell’s Rule 60(b) motion. On February 19, 2002, Russell filed a notice of appeal from that order.

II.

Russell argues that the trial court erred in denying its motion for relief from the default judgment, because, it argues, the judgment is void. Rule 60(b), Ala. R. Civ. P., provides, in pertinent part: “On motion and upon such terms as are just, the court may relieve a party or a party’s legal representative from a final judgment, order, or proceeding for the following reasons: ... (4) the judgment is void-” Specifically, Russell argues that the Smiths did not serve process on it in accordance with Rule 4(c)(6), Ala. R. Civ. P. “ ‘Failure of proper service under Rule 4 deprives a court of jurisdiction and renders its judgment void.’ Ex parte Pate, 673 So.2d 427, 428-29 (Ala.1995.)” Northbrook Indem. Co. v. Westgate, Ltd., 769 So.2d 890, 893 (Ala.2000).

Ala. R. Civ. P. 4(c) provides:

“Service of process ... shall be made as follows:
“(6) ... Upon a corporation, either domestic or foreign, by serving the agent authorized by appointment or by law to receive service of process or by serving the corporation by certified mail at any of its usual places of business or by serving an officer or an agent of the corporation....”

Russell asserts that David Anderson is not authorized by appointment or by law to receive service of process for Russell and that he is not an officer or agent of Russell.

The applicable standard of review is well established:

“This Court has held that ‘[t]he review applicable to a Rule 60(b)(4) motion is de novo.’ Greene v. Connelly, 628 So.2d 346, 351 (Ala.1993); accord Insurance Management & Admin., Inc. v. Palomar Ins. Corp., 590 So.2d 209, 212 (Ala.1991).
“ ‘When the grant or denial of relief turns on the validity of the judgment, as under Rule 60(b)(4), discretion has no place. If the judgment is valid, it must stand; if it is void, it must be set aside. A judgment is void only if the court rendering it lacked jurisdiction of the subject matter or of the parties, or if it acted in a manner inconsistent with due process.’
“Palomar Ins., 590 So.2d at 212.”

Northbrook Indem. Co., 769 So.2d at 893.

The Smiths argue that service upon Anderson, the attorney for the bankruptcy trustee, was sufficient to effect service upon Russell. They rely completely on their interpretation of 11 U.S.C.A. § 323, a portion of Chapter 11 of the United States Bankruptcy Code. That section provides that “[t]he trustee ... is the representative of the estate,” and that “[t]he trustee ... has capacity to sue or be sued.” However, there is no factual or legal support for the Smiths’ contention that § 323 allows service of process upon the attorney for the trustee, in lieu of service upon the debtor-defendant.

David Anderson was the only person to testify at the hearing on Russell’s Rule 60(b) motion. He testified that neither he nor the bankruptcy trustee was Russell’s agent or employee. Further, he testified, without objection, that he could not accept service for Russell, the debtor-defendant. Anderson emphasized that he had been retained by the trustee of Russell’s bankruptcy estate, ie., of its assets. Pointing out that the trustee and the debtor may have adverse interests, Anderson testified: “[I]n fact, I could not legally represent the trustee if I had an agency relationship with the debtor because I would be disqualified under the Bankruptcy Code from being both.” Obviously, Anderson’s testimony provides no factual support for the Smiths’ contention.

The Smiths do not cite any case in support of their contention. Not only is their contention contrary to the plain language of the statute making the trustee “the representative of the estate,” it is also inconsistent with those cases cited by Russell, as well as those cases revealed by our research. See, e.g., Commodity Futures Trading Comm’n v. Weintraub, 471 U.S. 343, 350, 105 S.Ct. 1986, 85 L.Ed.2d 372 (1985); In re Adelphi Hosp. Corp., 579 F.2d 726 (2d Cir.1978); and In re Obie Elie Wrecking Co., 35 B.R. 114 (N.D.Ohio 1983).

III.

For the foregoing reasons, we conclude that service upon Anderson, the attorney for the bankruptcy trustee, was not effective service of process upon Russell, the debtor-defendant. Therefore, the default judgment entered against Russell is void. Because the default judgment against Russell is void, we reverse the trial court’s order denying Russell’s Rule 60(b) motion for relief from the default judgment, and we remand the case for further proceedings.

REVERSED AND REMANDED.

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


text:
    Charles McRAE, deceased v. Kenneth JOHNSON.
    1010952.
    Supreme Court of Alabama.
    Sept. 20, 2002.

      Tommy R. Scarborough, Dothan, for appellant.
    John F. Robertson, Clayton, for appel-lee.
   WOODALL, Justice.

Notice of this appeal was filed on January 23, 2002, by an attorney purporting to represent Charles McRae, who died in November 2000. We dismiss the appeal.

This “appeal” purports to be from the denial on January 10, 2002, of a post-judgment motion, challenging a judgment entered on December 11, 2001, which, among other things, set aside a judgment entered on November 4, 1999, “quieting title” in Charles McRae to certain real estate in Barbour County. The attorney who filed the notice of appeal in this case represented McRae in that original action. Throughout these proceedings, no suggestion of death has been filed and no substitution of parties has been made. See Ala. R. Civ.App. 25(a); Ala. R.App. P. 43.

It is a general rule that “ ‘an attorney’s authority to act on behalf of a client ceases on the death of that client.’ ” Estate of Jones v. State Farm Mut. Auto. Ins. Co., 829 So.2d 170, 171 (Ala.Civ.App.2002) (quoting Brown v. Wheeler, 437 So.2d 521, 523 (Ala.1983), overruled on other grounds, Hayes v. Brookwood Hosp., 572 So.2d 1251 (Ala.1990)). See also Kissic v. Liberty Nat’l Life Ins. Co., 641 So.2d 250, 251 (Ala.1994); McDonald v. Womack, 107 So. 812, 214 Ala. 309 (1926).

The fact that the person purporting to file the notice of appeal is deceased is “not just ‘a mere irregularity, but a complete and radical defect.’ ” Brantley v. Fallston Gen. Hosp., Inc., 333 Md. 507, 511, 636 A.2d 444, 446 (1994) (quoting Owings v. Ornngs, 3 G. & J. 1, 4 (Md.1830)). Such a notice of appeal fails to invoke the appellate jurisdiction of this Court. See McMillan, Ltd. v. Warrior Drilling & Eng’g Co., 512 So.2d 14, 20-21 (Ala.1987). Thus, where it is undisputed that the appellant was deceased when the notice of appeal was filed, this Court will dismiss the appeal ex mero motu. Because the notice of appeal purportedly filed by Charles McRae was a nullity, we dismiss the appeal.

APPEAL DISMISSED.

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

      . This case does not involve a situation where a purported appellant dies shortly before the deadline for filing a notice of appeal.

      . "Rule 43 applies to substitution when the death of a party occurs during the pendency of an appeal.” McMillan, Ltd. v. Warrior Drilling & Eng’g Co., 512 So.2d 14, 21 (Ala.1987).