text:
    In the Matter of the ESTATE OF Bennie M. THOMAS, Deceased. Walter Lockhart, Appellant v. Beverly McNair Wilson, Brenda McNair, Adrienne McNair, Nicole Pirtle-Willis, Kevin Pirtle, Antionette Pirtle, Elizabeth McNair, Pierre McNair and Gaynetha McNair, Appellees.
    No. 2006-CA-00200-COA.
    Court of Appeals of Mississippi.
    Aug. 7, 2007.

      Bill Waller, Sr., attorney for appellant.
    William C. Bell, Ridgeland, attorney for appellees.
    Before KING, C.J., GRIFFIS and ROBERTS, JJ.
   GRIFFIS, J.,

for the Court.

¶ 1. Walter Lockhart, Sr., commenced this action to probate the last will and testament of Bennie Metzler Thomas (“Thomas”), and he was appointed executor for the estate. Beverly McNair Wilson, Brenda McNair, Adrienne McNair, Nicole Pirtle-Willis, Kevin Pirtle, Antoinette Pirtle, Elizabeth McNair, Pierre McNair, and Gaynetha McNair (collectively, the “Appellees”) contested the will. The chancellor entered summary judgment declaring that the will was invalid and that Thomas died intestate. Lockhart appeals and argues the chancellor erred in (1) granting summary judgment when there was a probated claim pending, and (2) declaring the will invalid for lack of two attesting witnesses. We find no error and affirm. We remand for further proceedings consistent with this opinion.

FACTS

¶ 2. Thomas was a long time resident of Yazoo City. Lockhart was a family friend who helped care for Thomas in her old age. Thomas passed away on August 17, 2004, at the age of eighty-four. Her husband predeceased her, and she had no children. Likewise, her parents, sister Annie Mae Rucker McNair, and brothers Mickey Creely and James Metzler, Jr. predeceased her.

¶ 3. On August 26, 2004, Lockhart filed a petition to probate the last will and testament of Bennie M. Thomas. The purported will was dated August 2001 and named Annie Mae as sole beneficiary. In case Annie Mae predeceased Thomas, the will provided that Lockhart would be the sole beneficiary. The will was nonholographic and was signed by Thomas and was witnessed by notary public Evelyn Dixon. On August 30, 2006, the chancellor admitted the will to probate and authorized letters testamentary be issued to Lockhart. The same day, letters testamentary were issued by the clerk.

¶ 4. On November 12, 2004, the Appel-lees filed a petition to determine the heirs-at-law of Bennie M. Thomas, to set aside the order admitting will to probate and to remove Lockhart as executor. The petition contested the will and alleged that the will was invalid for lack of attesting witnesses and undue influence. They also petitioned for the court to determine Thomas’s heirs. An amended petition was filed on March 1, 2005, and it added a request for a declaratory judgment.

¶ 5. Lockhart responded that the will was valid. He also challenged the listing of heirs. Lockhart also probated a creditor’s claim against the estate for $131,520. The Appellees contested Lockhart’s claim.

¶ 6. On June 3, 2005, the Appellees filed a motion for summary judgment or, in the alternative, for partial summary judgment. The motion asked for a judgment on the following matters:

a. The purported last will and testament of Bennie M. Thomas is void.
b. If the court finds that the purported last will and testament of Bennie M. Thomas is a valid will, any devise or bequest to Walter Lockhart, Sr. is void.
c. Bennie M. Thomas died intestate.

On June 13, 2005, the Appellees filed a motion for judgment on the pleadings that asked for a judgment on the identical issues.

¶ 7. On December 22, 2005, the chancellor entered an order that determined the motion for judgment on the pleadings was not appropriate and that granted the motion for summary judgment “on all issues addressed in the [Appellee’s] motion for summary judgment.”

¶ 8. On January 5, 2006, Lockhart filed his notice of appeal. On February 24, 2006, the Appellees’ filed a motion to dismiss with the supreme court. The Appel-lees’ motion argued that the December 22, 2005 order was not a final appealable judgment and that it was not certified for appeal under Rule 54(b) of the Mississippi Rules of Civil Procedure. By order dated April 13, 2006, the supreme court denied the motion to dismiss. After the parties filed their briefs, the appeal was deflected to this Court for review.

STANDARD OF REVIEW

¶ 9. This Court employs a de novo standard of review of a lower court’s grant or denial of summary judgment and examines all the evidentiary matters before it — admissions in pleadings, answers to interrogatories, depositions, affidavits, etc. McMillan v. Rodriguez, 823 So.2d 1173, 1176-77(¶ 9) (Miss.2002). The evidence must be viewed in the light most favorable to the party against whom the motion has been made. Id. at 1177(¶ 9). If, in this view, there is no genuine issue of material fact, and the moving party is entitled to judgment as a matter of law, summary judgment should forthwith be entered in his or her favor. Id. Issues of fact sufficient to require reversal of a summary judgment obviously are present where one party swears to one version of the matter in issue, and another says the opposite. Id.

ANALYSIS

I. Did the chancellor err in granting summary judgment when Lock-hart’s proof of claim remained pending?

¶ 10. At oral argument, both parties agreed that the Lockhart’s probated claim remained pending before the chancery court. Indeed, it is apparent that the chancellor’s December 22, 2005 order actually granted a partial summary judgment instead of a summary judgment on all issues.

¶ 11. Normally, we would next look to determine whether this Court has jurisdiction to consider this appeal. A partial summary judgment is not a final appealable order unless the trial court certifies the judgment as final under Rule 54(b) of the Mississippi Rules of Civil Procedure or the supreme court grants permission for an interlocutory appeal under Rule 5 of the Mississippi Rules of Appellate Procedure. Neither occurred here. Nevertheless, the Appellees challenged the appellate court jurisdiction in the motion to dismiss appeal. The supreme court considered the jurisdictional issue and rejected the Appellees’ challenge. The supreme court having determined jurisdiction is appropriate and deflected this matter to this Court, we address the issues presented.

¶ 12. Lockhart’s petition to probate the last will and testament of Bennie M. Thomas commenced this action before the chancery court. The Appellees’ petition challenged the legality of the will and Lockhart’s right to take from Thomas’s estate. There were several claims before the chancellor. First, was the will probated the lawful and proper will of the decedent? If the answer was yes, the will would be probated and the estate administered according to the terms of the will. If the answer was no, then the will would not be accepted for probate, the estate would be declared intestate and the estate would be administered according to the laws of intestate succession. Second, if the laws of intestate succession applied, the court would have to determine the lawful and proper heirs of the decedent. Third, and exclusive of the above claims, the court would have to determine whether there were any amounts owed to creditors of the decedent who probated their claim against the estate. Finally, the chancellor would determine the proper distribution of the estate.

¶ 13. The December 22nd order determined the first issue, that the will probated by Lockhart was void and that Thomas died intestate. As a result, the second, third and fourth issues stated above remained before the chancellor to continue the administration of Thomas’s estate based on this determination. Such issues included an appointment of a fiduciary to administer the estate, the determination of heirs, an adjudication of the probated claim, and the proper distribution of the estate’s assets.

¶ 14. Thus, we agree with Lockhart, the December 22nd order was a partial summary judgment and was not a final appeal-able order. Lockhart seems to argue both sides of this issue. The chancellor’s order determined that the motion for summary judgment would be granted “on all issues addressed in the [Appellees’] motion for summary judgment.” The motion asked for a judgment on three issues:

a. The purported last will and testament of Bennie M. Thomas is void.
b. If the court finds that the purported last will and testament of Bennie M. Thomas is a valid will, any devise or bequest to Walter Lockhart, Sr. is void.
c. Bennie M. Thomas died intestate.

Thus, the chancellor’s order determined issues (a) and (c), the will was void and Thomas died intestate. Lockhart then chose to file the notice of appeal. When confronted with the Appellee’s motion to dismiss appeal, Lockhart opposed the motion and insisted that the December 22nd order was a final judgment. Lockhart reasoned that “[s]ince the court found the will was void, then the estate is in effect can-celled.” Now, in his brief and during oral argument, Lockhart argued that the December 22nd summary judgment was not a final order.

¶ 15. Because we find the December 22, 2005 order was one for partial summary judgment, was not a final judgment, and because both parties assert to this Court that claims remain pending before the chancellor, we remand this issue to the chancery court to adjudicate all remaining issues.

II. Did the chancellor err in granting summary judgment on the validity of the will?

¶ 16. The foregoing notwithstanding, in the interest of judicial economy, we review the chancellor’s decision to grant summary judgment on the validity of the will.

¶ 17. Lockhart argues that a jury question remains to determine the validity of the will. Even though only one witness signed it, Lockhart asserts that he, too, is an additional witness who can testify that he saw Thomas sign the will. Lockhart also maintains that he has a handwriting expert who can identify Thomas’s signature. The Appellees counter that since only one witness signed Thomas’s nonholo-graphic will, it is invalid as a matter of law. We agree.

¶ 18. Every person with testamentary capacity shall have the power to dispose of his or her property through a will, so long as that will conforms with the statutory requirements. Miss.Code Ann. § 91-5-1 (Rev.2004). One such requirement, is that “if [the will is] not wholly written and subscribed by [the testatrix], it shall be attested by two (2) or more credible witnesses in the presence of the ... testatrix.” Id. “ ‘[Attestation’ includes not only the mental act of observation, but also the manual one of subscription.” Batchelor v. Estate of Powers, 348 So.2d 776, 777 (Miss.1977). Therefore, a typewritten will that is only signed by the testatrix and a notary does not satisfy the attestation requirement. Id. at 778. Such a will is invalid as a matter of law. Madden v. Rhodes, 626 So.2d 608, 626 (Miss.1993). Thomas’s will was typewritten and signed only by the testatrix and notary. The chancellor correctly determined that it was void as a matter of law and that Thomas died intestate.

¶ 19. Nevertheless, Lockhart cites us to Fatheree v. Lawrence, 33 Miss. 585 (1857), for the proposition that the absence one attesting witness will not render the will void. He maintains that even though the statute in Fatheree required three attesting witnesses, the court held that two witnesses would suffice. This is not the case. The statute required three attesting witnesses to convey real property and only two to convey personalty. Id. at 628. Since the will in question only had two witnesses, the court held the will was “insufficient to pass the real estate [but] valid as to the personalty.” Id. The court did not relax the requirement for the statutory number of witnesses.

¶ 20. Accordingly, we conclude that the chancellor was correct to enter partial summary judgment that determined that the probated will was void and unenforceable. We find no merit to this issue. We also remand this case for further proceedings on any and all pending estate matters, including but not limited to a determination of heirs and probate of claims.

1121. THE JUDGMENT OF THE CHANCERY COURT OF YAZOO COUNTY IS AFFIRMED AND REMANDED FOR FURTHER PROCEEDINGS CONSISTENT WITH THIS OPINION. ALL COSTS OF THIS APPEAL ARE ASSESSED TO THE APPELLANT.

KING, C.J., LEE AND MYERS, P.JJ., CHANDLER, BARNES, ISHEE, ROBERTS AND CARLTON, JJ., CONCUR. IRVING, J., CONCURS IN PART AND IN THE RESULT.

      . The record suggests that James was Thomas's only whole-blooded sibling.

      . The Appellees are Thomas's nieces, great nieces and great nephews. They are descendants of Thomas’s sister Annie Mae.


source: Caselaw Access Project

author: ROBERTS, J.,

license: Public Domain

text:
    Sylvia McGhee RICHARDSON, Appellant v. JOHNSON ELECTRIC AUTOMOTIVE, INC., and Zurich American Insurance Company, Appellees.
    No. 2006-WC-01598-COA.
    Court of Appeals of Mississippi.
    Aug. 7, 2007.

      Lawrence J. Hakim, Batesville, attorney for appellant.
    Joseph T. Wilkins, Jackson, attorney for appellees.
    Before KING, C.J., IRVING and ROBERTS, JJ.
   ROBERTS, J.,

for the Court.

STATEMENT OF THE CASE

¶ 1. This workers’ compensation action began when Sylvia McGhee Richardson was injured while working at Johnson Electric Automotive, Inc., when the chair she was sitting in rolled out from under her and she fell to the ground. She subsequently filed a petition to controvert on August 13, 2001, claiming disability from injuries to her lower back, neck, left upper extremity, left hip and right knee. However, Johnson Electric would only admit that Richardson’s injuries to her left upper extremity and left hip were compensable. Following a trial on the matter, the administrative law judge found that Richardson failed to prove disability. This decision was affirmed by the Full Commission and Circuit Court of Lowndes County. Richardson now appeals to this Court. Finding no error, we affirm.

FACTS

¶ 2. Richardson began working for Johnson Electric in February of 1973, and in 1996 she sustained an injury while at work, which was the subject of a separate workers’ compensation claim. As a result of this accident, Richardson injured her left hand, arm and shoulder and initially received treatment from Dr. Joe Hillman. She eventually underwent surgery by Dr. Alan Freeland for her injuries in March 1999. Dr. Freeland would subsequently determine that Richardson reached maximum medical improvement on September 9, 1999, and released her to return to work with restrictions. Richardson then applied for Social Security disability benefits as she was unable to work within Dr. Free-land’s restrictions, and in a March 18, 2000 letter from the Social Security Administration (SSA) she was informed that it found her date of disability to be September 25, 1998. Pursuant to SSA guidelines, she began receiving disability payments in March of 2000, and was still receiving payments from the SSA at the time of trial. However, after Johnson Electric consulted with a vocational expert it was able to provide Richardson with a job she could perform within her restrictions, and she returned to work in January of 2000. This workers’ compensation claim would later be settled on July 25, 2000.

¶ 3. Richardson was referred to Dr. James McAfee for evaluation of her 1996 injury and she first saw him the morning of January 26, 2000, the day of her injury that gave rise to the current cause of action. Dr. McAfee’s notes indicate that Richardson complained of continued pain in her right upper extremity, and he prescribed a splint for her right arm. However, Dr. McAfee’s records reveal no complaints of pain in her back or neck. In light of Richardson’s continued complaints of pain, during a follow up visit on February 16, 2000, Dr. McAfee ordered a nerve conduction study and EMG of her right upper extremity. Richardson failed to keep her appointment for the nerve conduction study and EMG, as well as follow up therapy visits ordered by Dr. McAfee. As a result, she was discharged from his care on February 21, 2000.

¶ 4. Richardson’s new job with Johnson Electric required her to sit in a high chair with rollers and on January 26, 2000, approximately two or three weeks after she went back to work, the chair rolled out from underneath her causing her to fall approximately thirty inches. As a result of her prior injuries, both of Richardson’s arms were in splints. She landed on her back, left hip and left elbow when she fell, and was taken to the emergency room at Baptist Memorial Hospital in Columbus soon after the accident. The emergency room report indicates that Richardson complained of pain in her left arm and left hip when she arrived. She testified during the hearing in front of the administrative law judge (ALJ) that the following day she complained of pain in her neck, shoulders and lower back to her supervisor, who then set an appointment for Richardson to see Dr. Hillman that day. Richardson testified that during this initial consultation she complained of pain in her left elbow, left hip and lower back. However, Dr. Hillman’s records show no mention of a complaint of back pain or neck pain on January 27, 2000. Dr. Hillman’s records did not show a complaint of neck pain until September 2000. Dr. Hillman saw Richardson on several occasions throughout the next three years and served as Richardson’s only source of medical testimony relating to her claims of injury resulting from the January 26, 2000 accident.

¶ 5. Richardson testified that she saw Dr. Christopher Moon, a podiatrist, for pain and swelling in both her feet on May 31, 2001. That day, he prescribed a walking cast for her right foot which she wore for approximately two weeks. She testified that roughly a month after she removed the cast she was exiting her front door and fell. Richardson stated that she lost feeling in her right leg and her back gave out causing her to fall on her knees in her yard. However, during her deposition she stated that her left leg gave out and she landed on rocks. Her knees began to swell and, because Dr. Hillman was unavailable at this time, she contacted Dr. Michael Pomphrey, an orthopedic surgeon. She testified that Dr. Pomphrey performed knee surgery in July and August of 2001.

¶ 6. Dr. Pomphrey testified during his deposition that he first saw Richardson on July 3, 2001, for complaints of right foot pain, right knee pain and right hip pain. According to Dr. Pomphrey, she did not give any specific history concerning how she may have injured herself and only mentioned prior treatment from Dr. Free-land. Additionally, he stated that she vaguely remembered a fall, but stated that she claimed that she caught herself before hitting the ground. Dr. Pomphrey testified that he performed knee surgery on Richardson’s right knee on July 27, 2001, and on her left knee on August 27, 2001. During a pre-surgery consultation prior to the August 27, 2001 surgery, Richardson indicated that she remembered falling in June. However, Dr. Pomphrey testified that Richardson never mentioned any neck or back pain during the time he was treating her from July 2001 to November 2001.

¶ 7. At the request of Johnson Electric, Richardson was examined by Dr. Howard Katz on October 28, 2002. In preparation of his report, Dr. Katz reviewed records from every physician who examined Richardson for back, neck, upper extremity or lower extremity complaints since 1993. Subsequent to reviewing Dr. Katz’s twenty-two page report, the ALJ found that,

it was Dr. Katz’s opinion, in essence, that Ms. Richardson may have temporarily aggravated a preexisting lumbar condition of long standing when she fell on January 26, 2000; that even if she did suffer an aggravation on that date, she had reached maximum medical improvement from any such aggravation by March of 2000; and that there was no way to determine to a reasonable degree of medical probability what caused either of the claimant’s reported falls in 2001.

¶ 8. Richardson testified that her left knee was still troublesome and she would later have another surgery on it in Birmingham, Alabama by Dr. Lauren Savage, an orthopedist. As noted by the ALJ, there is no mention of any falls, of any back pain, or of any neck pain throughout Dr. Savage’s records pertaining to Richardson. Additionally, Dr. Gene Watter-son, an internist and rheumatologist, saw Richardson on referral from Dr. Savage. He stated during his deposition that Richardson made no mention of back or cervical pain. Also, his physical examination of Richardson on January 28, 2003, revealed that her neck was supple and non-tender.

PROCEDURAL HISTORY

¶ 9. Richardson filed her petition to controvert on August 13, 2001, claiming injury to her lower back, neck, left upper extremity, left hip and right knee. However, Johnson Electric admitted that Richardson sustained an injury only to her left elbow and left hip. A hearing was held in Columbus on August 17, 2004. In an order filed April 18, 2005, the ALJ found that Richardson failed to support her claim with sufficiently reliable medical findings to be entitled to disability benefits. However, the ALJ stated that there was no question Richardson suffered an injury to her left hip and left elbow as a result of the January 26, 2000 accident, and determined that she reached maximum medical recovery in March of 2000. As such, the ALJ held that Richardson was entitled to all medical services and supplies provided and prescribed by Dr. Hillman from January 27, 2000, through the last day of February 2000. Richardson then appealed the ALJ’s order to the Full Commission, and it summarily affirmed the ALJ on February 17, 2006. Following the Commission’s af-firmance, Richardson appealed to the Circuit Court of Lowndes County. In an order filed September 7, 2006, the circuit court affirmed the Commission’s decision. From this order, Richardson now appeals to this Court.

STANDARD OF REVIEW

¶ 10. The Commission sits as the finder of fact and its findings are entitled to substantial deference. Raytheon Aero. Support Servs. v. Miller, 861 So.2d 330(¶ 11) (Miss.2003). As a reviewing court, we may only interfere with the Commission’s findings if they are arbitrary and capricious. Id. at (¶ 9). Where the decision of the Commission is supported by substantial evidence, there can be no finding of arbitrariness and caprice. Id. Additionally, “the Commission is also the ultimate judge of the credibility of witnesses.” Barber Seafood, Inc. v. Smith, 911 So.2d 454(¶ 27) (Miss.2005). “Further, neither this Court nor the Mississippi Supreme Court is empowered to determine where the preponderance of the evidence lies when the evidence is conflicting. Instead, this Court must affirm the decision of the Commission where substantial credible evidence supports the Commission’s order.” Id. (citations omitted).

ANALYSIS

I. WHETHER THE ALJ WAS REQUIRED TO GIVE DR. HILLMAN’S OPINIONS CONTROLLING EVI-DENTIARY WEIGHT.

¶ 11. Richardson cites S. Cent. Bell Tel. Co. v. Aden, 474 So.2d 584 (Miss.1985) in support of her argument that controlling weight should have been given to the opinions and testimony of her treating physician, Dr. Hillman, rather than to Dr. Katz, who only saw her once. In Aden, the Commission was presented with, among other testimony and evidence, the testimony of the claimant’s treating physician, Dr. Raymond Browning, and the testimony of Dr. Buford Yerger, who conducted an initial evaluation at the time of the claimant’s injury and an independent evaluation for the employer prior to Aden’s hearing. Aden, 474 So.2d at 587-88. In affirming the decision of the Commission, the supreme court stated that,

We regard the testimony of Dr. Yerger vis-a-vis the testimony of Dr. Browning as each constituting admissible medical opinions which were submitted to the triers of the facts, the members of the Mississippi Workmen’s Compensation Commission. The Commission was charged with the responsibility under our law for weighing and evaluating this testimony and all other testimony before it and making a finding. The net effect of the Commission’s fact finding in this regard was that Dr. Yerger’s testimony was simply not credible. The fact that it was admissible testimony and the fact that Dr. Yerger examined the claimant last in no way serves to undercut the Commission’s finding.

Id. at 593. The supreme court’s holding in Aden does not stand for the proposition that the Commission must give greater or controlling weight to a claimant’s treating physician’s opinion. Only that it may do so within its “responsibility under our law for weighing and evaluating ... all ... testimony before it and making a finding.”

¶ 12. Additionally, Richardson cites Mueller Copper Tube Co., Inc. v. Upton, 930 So.2d 428 (Miss.Ct.App.2005) and Stewart v. Singing River Hosp. Sys., 928 So.2d 176 (Miss.Ct.App.2005) in further support of her argument. Again, these cases do not show that the Commission must abide by a treating physician’s opinion. In Upton, the ALJ was presented with the testimony of Dr. Robert Christopher, the claimant’s treating physician, which was contradictory to the opinions of two other doctors. Upton, 930 So.2d at (¶ 35). The ALJ resolved the conflict by giving greater weight to Dr. Christopher’s testimony as he was the treating physician. Id. In affirming this decision, this Court cited Aden and stated, “[t]he Workers’ Compensation Commission is entitled to favor the testimony of a treating physician over a physician who had seen the claimant only once.” Id. (emphasis added). Noticeably absent from this holding is that the Commission is required to favor the testimony of a treating physician.

¶ 13. The same can be said from a close reading of Stewart. In Stewart, this Court reversed the decision of the Commission as it failed to consider the opinions of the claimant’s treating physician. Stewart, 928 So.2d at (¶ 37). The claimant in Stewart was injured at work in October 1996, and was involved in an automobile accident three years later that further complicated her injuries. Id. at (¶¶ 4, 11). After her 1996 injury, Stewart initially saw Dr. Steven Fineburg, her family physician, but was subsequently referred to Dr. John McCloskey, a neurosurgeon. Id. at (¶ 5). Dr. McCloskey treated Stewart for several months and in September 1997 allowed her to return to work with some restrictions, and found that she had reached maximum medical recovery. Id. at (¶¶ 7, 29). Stewart worked for several months, but continued to experience pain. Id. at (¶¶ 8-9). In August 1998, Stewart requested a referral to Dr. Jeffery Laseter, who diagnosed her with post-laminectomy syndrome after his initial consultation in December 1998. Id. at (¶ 10). Several months after the 1999 accident, Dr. Laseter took Stewart off work again because of her pain, and, after numerous subsequent follow-ups, he stated that she had reached maximum medical improvement on November 17, 2000. Id. at (¶¶ 11-12). Based in large part upon the testimony of Dr. Laseter, who had been deemed Stewart’s treating physician, “[t]he administrative law judge found that Stewart had suffered a compen-sable injury, was entitled to continuing reasonable and necessary medical services relating to the injury, and was permanently and totally disabled as a result of the accident in October 1996.” Id. at (¶ 14). On appeal to the Commission, it reversed the ALJ’s decision “apparently gave no consideration to Dr. Laseter’s opinion.” Id. at (¶ 15).

¶ 14. This Court noted that the Commission found no dispute as Jo whether Stewart was in a work-related accident nor that the 1999 accident exacerbated her injuries suffered from her work-related accident. Id. at (¶ 32). With this, the Commission made its decision based upon the opinions of Dr. McCloskey and Dr. Terry Smith, who performed an independent medical evaluation on or about October 23, 2001, at the request of the employer. Id. at (¶¶ 31-32). This Court noted that Dr. McCloskey had not seen Stewart since February 17, 1998, and that he stated in his deposition that Dr. Laseter would be in a better position to give an opinion on Stewart’s current condition. Id. at (¶ 35). Additionally, it was noted that Dr. Smith believed that Stewart’s reasons for not working were “more psychological than physical.” Id. at (¶ 31). However, his curriculum vitae did not indicate any training in psychological evaluation, and “two [other] medical professionals trained to deal in psychological evaluation found that Stewart’s pain was the primary problem.” Id. In light of the foregoing, the facts that Dr. McCloskey had not seen Stewart for two years prior to his testimony, and that Dr. Smith had not reviewed Stewart’s complete history, and neither physician was aware of Stewart’s 1999 accident, we found that the Commission incorrectly relied on Drs. McCloskey’s and Smith’s opinions over that of Dr. Laseter. Id. at (¶ 37). While it is clear that the fact that Dr. Laseter was Stewart’s treating physician factored into our decision, it was not the sole factor considered. When compared against the opinion of Dr. Laseter, the opinions of Drs. McCloskey and Smith were obviously lacking.

¶ 15. The recent supreme court ease of Hardaway Co. v. Bradley, 887 So.2d 793 (Miss.2004) also supports the proposition that the Commission is not required to follow a treating physician’s opinion. While the issue in Hardaway was whether a certain medical procedure was reasonable and necessary, its logic holds true for the issue currently before this Court. The Commission in Hardaway was presented with the testimony of two doctors, one of whom was hired by the employer, that the requested procedure was not reasonable and necessary and the testimony of the claimant’s treating physician who claimed that it was. Hardaway Co., 887 So.2d at (¶¶ 14). In spite of the treating physician’s opinion, the Commission determined that the procedure was not needed. Id. at (¶ 10). This decision was reversed by the circuit court, and the circuit court’s decision was subsequently affirmed by this Court. Id. at (¶ 1). We reasoned that so long as a treating physician deemed a particular treatment as reasonable and necessary, the employer and carrier were obliged to provide it. Id. at (¶ 18) (quoting Hardaway Co. Bradley, 887 So.2d at (¶ 21)). In reversing this Court and reinstating the decision of the Commission, the supreme court stated that the two opposing physicians’ opinions provided the substantial evidence needed to uphold the Commission’s decision. Id. at (¶ 16). Additionally, the supreme court indicated that to find that the Commission is required to always comply with a treating physician’s opinion would be contrary to Mississippi Workers’ Compensation Laws. Id. at (¶ 19); see also Miss.Code Ann. § 71-8-15 (Rev.2000).

¶ 16. In light of Aden, Upton, Stewart and Bradley, it is clear that, while a treating physician’s opinion is without question of great import, the Commission is not required to abide by it or required to give it any greater weight than other physicians’ opinions. It is the sole responsibility of the Commission to determine the credibility of the witnesses before it and, when conflicts in credible evidence arise, to determine where the preponderance of the evidence lies. Regardless of whether the Commission makes the decision to rule in line with a treating physician’s opinion, we must affirm its decision so long as it is supported by substantial evidence.

II. WHETHER THE FINDINGS OF THE COMMISSION WERE SUPPORTED BY SUBSTANTIAL EVIDENCE.

¶ 17. Dr. Hillman testified that it was his opinion based upon a reasonable degree of medical certainty that Richardson was permanently disabled as a result of the injuries sustained on January 26, 2000. After reviewing Richardson’s medical history and conducting an independent examination, Dr. Katz noted Richardson’s long history of lumbago without neurologic deficit. He concluded, based upon a reasonable degree of medical certainty, that Richardson reached maximum medical improvement of any exacerbation of her existing lumbago condition by March 2000. Additionally, Dr. Katz stated that the causes of her falls from the front and back of her home could not be determined to a reasonable degree of medical certainty. Finally, he stated that Richardson’s problems of lumbago existed prior to January 26, 2000, and could not be assigned to any particular fall or injury. As to Richardson’s claims of disability pertaining to her right knee and lower back, we cannot say that the Commission’s decision was not supported by substantial evidence. However, Dr. Katz’s report failed to comment on Richardson’s cervical complaints.

¶ 18. Johnson Electric’s' failure to introduce medical testimony concerning Richardson’s neck injury notwithstanding, we must still affirm the Commission’s decision. In the case sub judice, the Commission found Dr. Hillman’s testimony regarding Richardson’s alleged disabilities related to her work-related accident on January 26, 2000 less than credible as the ALJ noted “a combined reading of [Dr. Hillman’s] deposition and his records reveals such a confusing array of discrepancies, contradictions and misstatements that the evidence is effectively unuseable in attempting to arrive at a rational disposition of this case.” The ALJ further explained:

[Dr. Hillman] testified that the claimant injured her cervical spine in the subject accident and that this prompted him to recommend a cervical MRI, but he had recommended a cervical MRI for the claimant on January 13, 2000, 13 days prior to the subject accident; he first testified that Ms. Richardson injured her cervical spine in the subject accident by reaching out to catch herself with her right arm as she fell, but then a few pages later he stated that she is [sic] injured her neck when she reached out to catch herself with her left arm; each of the preceding statements is at odds with the history the claimant gave to Dr. Hillman on January 26, 2000 that she was unable to catch herself as she fell because each of her arms was in a splint at the time, and the only time in the record the claimant ever mentions trying to reach out and catch herself as she fell is in regard to the reported fall down the steps in June of 2001; Dr. Hillman testified that on both September 7, 2000 and April 18, 2001 the claimant exhibited left hand symptoms compatible with rad-iculopathy from the eighth cervical (C-8) nerve, yet his own office note of April 18, 2001 mentions right hand pain and right-sided C-8 radiculopathy, and then a cervical MRI performed on April 25, 2001 revealed left-sided disc bulges and foraminal stenosis at the C4-5 and C5-6 levels, from which levels any nerve root irritation would have become manifest in the left shoulder or left upper arm, not in either of the hands; and, Dr. Hillman stated unequivocally that a complaint of left hip pain is the same thing as a complaint of lumbo-sacral pain, a pronouncement contrary to even the limited amount of medical knowledge the undersigned has been able to accumulate during seven years in this job.

(internal citations omitted). While Dr. Hillman did not claim Richardson reached out with her right hand in an effort to stop herself from falling, the ALJ’s remaining observations arguably hold true. Dr. Hill-man stated that it was his opinion that Richardson injured her neck when she “tried to grab herself and catch herself from falling ... that’s when I think she popped her neck.” As identified by the ALJ, there is simply no evidence that Richardson reached out in an attempt to catch herself other than his deposition testimony, which is at odds with his medical records from that day and Richardson’s own testimony. Additionally, both of Richardson’s arms were in splints at the time of the accident. While this surely would not make it impossible for her to reach out in an attempt to catch herself, it does cast further doubt upon Dr. Hillman’s stated trigger of Richardson’s alleged neck injury.

¶ 19. “In order to establish a prima facie case of disability, a claimant must show by a fair preponderance of the evidence (1) an accidental injury; (2) arising out of and in the course of employment; and (3) a causal connection between the injury and the claimed disability.” Mabry v. Tunica County Sheriff’s Dep’t, 911 So.2d 1038(¶ 13) (Miss.Ct.App.2005). Unless common knowledge suffices, “the claimant must prove the causal connection between the alleged injury and the alleged disability by competent medical proof.” Sonford Products Corp. v. Freels, 495 So.2d 468, 471 (Miss.1986) overruled on other grounds by Bickham v. Dep’t. of Mental Health, 592 So.2d 96 (Miss.1991); see also Franks v. Foam Craft, 929 So.2d 350(¶ 13) (Miss.Ct.App.2006). As noted by the ALJ, “Dr. Hillman is the sole source of medical testimony relating to the claimant’s alleged disabilities.... ” Without the benefit of competent medical proof Richardson cannot meet her burden of showing a causal connection between her fall and her alleged injuries. Therefore, her claim must fail.

III. WHETHER THE COMMISSION’S DECISION IN COLEBROOK V. JOHNSON ELECTRIC AUTOMOTIVE IS PROOF THAT THEIR DECISION IN THE INSTANT CASE WAS ARBITRARY AND CAPRICIOUS.

¶ 20. Colebrook is a recent workers’ compensation case in which the Commission reversed the decision of the ALJ on April 5, 2006. While there are factual similarities between Colebrook and the case sub judice, a detailed account is unnecessary. Colebrook involved a different claimant, different facts and a different ALJ. While Dr. Hillman and Dr. Katz were involved in both claims, Dr. Hillman’s testimony and opinions were not found to be credible in the instant case. The Commission is charged with the responsibility of making a case-by-case credibility determination of the witnesses before it. Sealed Power Corp. v. Young, 744 So.2d 813(¶ 16) (Miss.Ct.App.1999). As a result of discrepancies in Dr. Hillman’s testimony and records in the case before us, which was apparently absent in Colebrook, the Commission found his testimony and opinions to be not credible and unusable in its determination of disability. As such, this issue is without merit.

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

KING, C.J., LEE AND MYERS, P.JJ., IRVING, CHANDLER, GRIFFIS, BARNES, ISHEE AND CARLTON, JJ., CONCUR.

      . Richardson already had a splint on her left arm from a previous injury.

      . During her deposition Richardson also testified that she experienced another fall down her back steps in which she broke her wrist.

      . Dr. Robert Smith, a neurosurgeon, and Dr. Paul Veal, a chiropractor, treated Richardson for lumbar and cervical strains in 1996 and 1997 after she fell off a ladder at work.


author: KING, C. J.,

text:
    Johnny CRUMP, Appellant v. STATE of Mississippi, Appellee.
    No. 2006-KA-00454-COA.
    Court of Appeals of Mississippi.
    Aug. 7, 2007.

      David Fitzgerald Linzey, attorney for appellant.
    Office of the Attorney General by Billy L. Gore, attorney for appellee.
    Before KING, C.J., GRIFFIS and BARNES, JJ.
   KING, C. J.,

for the Court.

¶ 1. Johnny Crump appeals his conviction of six counts of embezzlement under contract. He raises the following two issues: (1) that the evidence was insufficient to support the guilty verdict; and (2) that the indictment should have charged him with larceny and not embezzlement under contract. Finding no error, this Court affirms.

FACTS

¶ 2. On February 6, 2003, Johnny Crump entered into six rental contracts for furniture and electronics with Superior Reni>-to-Own in Hazlehurst, Mississippi. For a down payment of $380.01, Crump received possession of the following items: (1) a JVC home theater system, (2) a Sony Rack stereo system, (3) a Samsung big-screen television, (4) a cherry bedroom set that included a mattress set, (5) a dinette set, and (6) a living room set, consisting of a sofa and loveseat, a coffee table, and an end table. The retail value of the items totaled $14,047.

¶ 3. Under the terms of the contracts, Crump was to make monthly payments on the furniture, beginning March 6, 2003. Additionally, Crump was to notify Superior of any changes in his address. Crump agreed that, in the event he defaulted under the contracts, Superior had the right to repossess the items. Crump also agreed that he would be responsible for damage, other than normal wear or tear, to the items he leased.

¶ 4. Billy Shane Smith, the manager of the Hazlehurst Superior store, testified that he opened Crump’s account and observed Crump while he completed and signed the contracts. When Crump did not make his first scheduled payment on March 6, 2003, Smith attempted to contact Cramp. Smith was unable to reach Cramp at the address or phone number on the contracts. Smith then attempted to contact Crump’s references but was unsuccessful in reaching anyone other than Crump’s father. Crump’s father advised Smith that Crump had moved to Jackson but had left no forwarding address and no contact information.

¶ 5. On March 10, 2003, Smith sent Superior’s standard letter of delinquency to Crump at his father’s address. That letter stated in pertinent part as follows: “If you have not paid or returned our property within seven days from the date of this letter, we will assume that you do not intend to return the rental property and you will be subject to criminal prosecution.”

¶ 6. Leanne James, who took over as manager of the Hazlehurst Superior store in late March 2003 also testified that she made numerous unsuccessful attempts to reach Crump. Having exhausted all avenues to locate Crump, James “charged off’ the merchandise, in accordance with store policy, on May 20, 2003. Thereafter, on July 8, 2003, she received a call from the manager of the Shady Creek Mobile Home Park in Jackson, Mississippi. The manager had seen the name and number of the store on some of the abandoned items and had contacted Superior to see if they were interested in retrieving the items. James immediately sent a crew to pick up the merchandise. When the crew arrived in Jackson, they did not find any of the electronic equipment. The furniture — the dinette set, the bedroom set, and the living room set — was at the mobile home park, but it was completely destroyed.

PROCEDURAL HISTORY

¶ 7. Crump was indicted on six counts of embezzlement under contract on August 7, 2003. Following a jury trial on February 20, 2004, he was convicted of all six counts and sentenced as an habitual offender. The trial court ordered that Crump serve ten years on each count, with the sentences to run concurrently. As an habitual offender, Crump was not eligible for parole.

¶ 8. Crump appealed his conviction on March 19, 2004. Ultimately, that appeal was dismissed on May 13, 2004, for failure to pay costs. Crump then filed a motion for post-conviction relief, arguing that he should be permitted an out-of-time appeal. Following the trial judge’s denial of that motion, Crump appealed. This Court granted Crump’s appeal and permitted him to proceed with his direct appeal out-of-time. See Crump v. State, 913 So.2d 385 (Miss.Ct.App.2005).

ANALYSIS

¶ 9. Crump raises the following issues on appeal: (1) that the evidence was insufficient to sustain a conviction for embezzlement under contract; and (2) that the indictment should have charged Cramp with larceny, not embezzlement under contract.

1. Sufficiency of the evidence

¶ 10. Crump argues that, in order to prove embezzlement under contract, the State was required to prove that Crump intended to appropriate the rental merchandise at the time he signed the contract with Superior. In support of this argument, Crump cites the down payment he gave Superior, his use of a valid state-issued ID card to rent the furniture, and his own testimony that he believed his girlfriend was making the monthly rental payments.

¶ 11. During trial, Crump made a motion for a directed verdict, which the trial court denied. Crump also requested, and was denied, a peremptory jury instruction that he be found not guilty. Following the jury’s verdict, Crump made a motion for a judgment notwithstanding the verdict. That motion was also denied.

¶ 12. In reviewing the denial of a motion for a directed verdict or a motion notwithstanding the verdict, this Court considers the sufficiency of the evidence. See Gleeton v. State, 716 So.2d 1083, 1087(¶ 14) (Miss.1998). Under this standard of review, the Court must,

with respect to each element of the offense, consider all of the evidence' — -not just the evidence which supports the case for the prosecution — in the light most favorable to the verdict. The credible evidence which is consistent with the guilt must be accepted as true. The prosecution must be given the benefit of all favorable inferences that may reasonably be drawn from the evidence. Matters regarding the weight and credibility to be accorded the evidence are to be resolved by the jury. We may reverse only where, with respect to one or more of the elements of the offense charged, the evidence so considered is such that reasonable and fair-minded jurors could only find the accused not guilty.

Id. In the case sub judice, the evidence was sufficient for the jury to find Crump guilty of embezzlement under contract.

¶ 13. Embezzlement under contract is defined by statute as follows:

If any person shall fraudulently appropriate personal property or money which has been delivered to him on deposit, or to be carried or repaired, or on any other contract or trust by which he was bound to deliver or return the thing received or its proceeds, on conviction, he shall be punished by imprisonment in the penitentiary not more than ten years, or be fined not more than one thousand dollars and imprisoned in the county jail not more than one year, or either.

Miss.Code Ann. § 97-23-25 (Rev.2006). The statute itself is silent as to whether the intent to “fraudulently appropriate” the property must be formed at the time of the signing of the contract or whether it can be formed at some later date. The Mississippi Supreme Court, however, has addressed this issue and has held that embezzlement requires that the intent be formed at some time after the defendant receives the property. In Ruffin v. State, 482 So.2d 231, 232 (Miss.1986) (emphasis added), the Mississippi Supreme Court upheld a conviction for embezzlement under contract, finding that “the jury could find under the instant record that appellant formed the intent to embezzle or convert after he lawfully received the automobile and violated the trust imposed in him to return it.” See also Medley v. State, 600 So.2d 957, 960 (Miss.1992) (identifying the differences between embezzlement and larceny to include the time that the defendant formed the intent to unlawfully take the property. Embezzlement requires that intent be formed at some point after the defendant lawfully obtains the property.). This interpretation is wholly consistent with the language of the statute and the elements of the crime of embezzlement under contract.

¶ 14. The State introduced evidence that Crump failed to notify Superior of at least two changes of address, in violation of the rental contract. The jury also heard from Crump himself that although he was responsible for the payments, he had not personally ensured that Superior had received the money. Additionally, the jury could reasonably have inferred from the testimony of Barksdale, Crump’s former girlfriend, that Crump formed the requisite intent after the merchandise was destroyed. Barksdale testified that she agreed to pay Crump for the merchandise because she was responsible for its destruction, but Crump failed to leave her his forwarding address and that she had no way to contact him. This evidence, viewed in the light most favorable to the prosecution, supports a finding that Crump formed the intent to fraudulently appropriate the rental merchandise at some point following the signing of the rental contracts. Accordingly, this issue is without merit.

2. Failure to charge Crump with larceny and improperly charging Crump with embezzlement under contract

¶ 15. In the alternative, Crump argues that he should have been charged with larceny and not with embezzlement under contract. Crump further argues that even if the State had charged him with larceny, such a charge could not stand.

¶ 16. This argument is nothing-more than a red herring. The State, in the exercise of its prosecutorial discretion, opted to indict Crump under the embezzlement under contract statute. The law is clear that

[i]t is a fundamental principle of our criminal justice system that a prosecutor is afforded prosecutorial discretion over what charge to bring in any criminal trial. See United States v. Batchelder, 442 U.S. 114, 124, 99 S.Ct. 2198, 60 L.Ed.2d 755 (1979) (“Whether to prosecute and what charges to file or bring before a grand jury are decisions that generally rest in the prosecutor’s discretion.”); Bordenkircher v. Hayes, 434 U.S. 357, 364, 98 S.Ct. 663, 54 L.Ed.2d 604 (1978) (“In our system, so long as the prosecutor has probable cause to believe that the accused committed an offense defined by statute, the decision whether or not to prosecute, and what charge to file or bring before a grand jury, generally rests entirely in his discretion.”).

Watts v. State, 717 So.2d 314, 320(¶ 14) (Miss.1998). See also Welch v. State, 830 So.2d 664, 669(¶ 24) (Miss.Ct.App.2002). The State exercised its discretion in indicting Crump on charges of embezzlement under contract rather than larceny. As discussed, supra, the State met its burden of proof on those charges, and the evidence was sufficient to convict Crump of embezzlement under contract. Accordingly, what the State could have done is of no consequence. This issue is without merit.

¶ 17. THE JUDGMENT OF THE CIRCUIT COURT OF LINCOLN COUNTY OF CONVICTION OF SIX COUNTS OF EMBEZZLEMENT UNDER CONTRACT, IN VIOLATION OF MISSISSIPPI CODE ANNOTATED SECTION 97-23-25, AND SENTENCED AS AN HABITUAL OFFENDER UNDER MISSISSIPPI CODE ANNOTATED SECTION 99-19-81 TO SERVE SIX TEN-YEAR TERMS OF IMPRISONMENT WITHOUT THE POSSIBILITY OF PAROLE IN THE CUSTODY OF THE MISSISSIPPI DEPARTMENT OF CORRECTIONS, SENTENCES TO RUN CONCURRENTLY, IS AFFIRMED. ALL COSTS OF THIS APPEAL ARE ASSESSED TO LINCOLN COUNTY.

LEE AND MYERS, P.JJ., IRVING, CHANDLER, GRIFFIS, BARNES, ISHEE, ROBERTS AND CARLTON, JJ., CONCUR.


author: HARWOOD, Justice. SEE, Justice STUART, Justice

text:
    Ex parte Lernard PHILLIPS. (In re Lernard Phillips v. State of Alabama).
    1050076.
    Supreme Court of Alabama.
    Aug. 18, 2006.
    Rehearing Denied Oct. 20, 2006.
    David K. Hogg of Merrill, Harrison & Adams, Dothan, for petitioner.

      Troy King, atty. gen., and Kevin C. Newsom, deputy atty. gen., and John M. Porter, asst. atty. gen., for respondent.
   HARWOOD, Justice.

On November 7, 2005, this Court granted Lernard Phillips’s petition for a writ of certiorari to review the memorandum affirmance by the Court of Criminal Appeals of the trial court’s judgment convicting him of sexual abuse in the first degree. Phillips v. State (No. CR-03-1352, Aug. 19, 2005), 945 So.2d 1096 (Ala.Crim.App.2005) (table). The trial court sentenced Phillips to eight years’ imprisonment and ordered him to pay a $5,000 fine, $500 to the Alabama Crime Victims Compensation Fund, and court costs. We granted the writ to determine whether the Court of Criminal Appeals correctly held that the improper admission at trial of evidence of two laboratory tests based upon a type of DNA analysis was harmless error under the standard stated in, among other cases, Ex parte Hutcherson, 677 So.2d 1205 (Ala.1996).

The summary of the facts set out by the Court of Criminal Appeals in its memorandum affirmance is as follows:

“The State’s evidence tended to show that in July 2000, 9-year-old D.M. was living in Webb, Alabama, with her mother, [D.B.], and her two sisters, M.T. and L.B. On July 8, 2000, [D.B.’s] boyfriend, Lernard Phillips, knocked on the door at approximately 3:00 a.m., said that he had been drinking, and asked [D.B.] to get him some food. [D.B.] and 13-year-old M.T. went to Waffle House[, a 24-hour breakfast restaurant], leaving Phillips with D.M. and one-and-a-half-year-old L.B. D.M. testified that while her mother and M.T. were gone, Phillips came into her bedroom, said that he had ‘something to show [her]’ and ordered her to take off her panties. He then climbed on top of her, took out his penis, and tried to force it into her vagina. After three unsuccessful attempts, he got off her and told her not to tell. [D.B.] and M.T. returned from the Waffle House at approximately 3:30 a.m. When M.T. came to bed, D.M. told her what Phillips had done. Later that morning, D.M. told her mother that she no longer liked Phillips. However, she did not say why.
“The following morning, M.T. told [D.B.] during an argument that she should worry about D.M. because D.M. ‘could have got[ten] hurt.’ [D.B.] questioned D.M., and D.M. told her what Phillips had done. D.M. subsequently told police lieutenant Jerry Hunt and DHR child-abuse investigator Barbara Daniels what Phillips had done to her. On July 14, 2000, pediatrician Kenneth Brown examined D.M. and found no physical signs of abuse. Dr. Brown also did blood work to check for herpes and HIV; and he sent swabs to Alabama Reference Labs[, a private testing facility,] to test for gonorrhea and for chlamydia, a sexually transmitted disease that ‘require[s] some exchange or contact of bodily fluids.’ The trial court allowed Dr. Brown to testify, over objection, that the result of the chlamydia test was positive. Dr. Brown said that he prescribed Azithromycin, an antibiotic which was effective against both chlamydia and D.M.’s subsequent ear infection. He also stated, without objection, that D.M. later was seen by Dr. Sester, who performed a test that showed that the chlamydia infection was cured.
“Family practice physician Mark Dean testified that on March 4, 2000, D.M.’s mother had come to him with a complaint of lower abdominal pain and vaginal discharge. He performed a pelvic examination and obtained a pap smear and a sample for a DNA probe test. Dr. Dean testified that the pap test was positive for gonorrhea. He also testified, over objection, that the DNA probe test, which he sent to Alabama Reference Labs, was negative for gonorrhea and positive for chlamydia. Dr. Dean said that he performed the probe test because he suspected from [D.B.’s] symptoms that she had chlamydia.
“The victim’s mother testified that the only person she was having sex with in March 2000, was Phillips and that he did not use a condom. The victim’s sister, M.T., testified that, when she was 13 years old, Phillips had sex with her approximately five times in her mother’s trailer and one time on a dirt road. She also testified, without objection, that she went to the Houston County Health Department in August 2000 with pelvic pain. She said that she was given antibiotics, which cured the condition.
“[Phillips] testified in his own behalf that he had never been diagnosed with chlamydia. He also said that he had been given a blood test for venereal diseases in March 2003 in connection with his military service and that he was not told of any negative result. Phillips said that he arrived at [D.B.’s] trailer between 1:00 and 1:30 a.m. on July 8, that he had not been drinking and that he did not see D.M. at all while [D.B.] and M.T. went to the Waffle House. He denied having sexual contact with D.M. or M.T.”

(Emphasis added.)

Additionally, the record reveals that Dr. Brown explained that the swabs he obtained, which tested positive for chlamydia, were from D.M.’s urethra and that the laboratory test performed on them was “a DNA probe,” which he described as a more sensitive and reliable test than a conventional culture.

On appeal to the Court of Criminal Appeals, Phillips argued that the trial court committed reversible error by permitting Dr. Brown and Dr. Dean to testify concerning the laboratory reports that indicated that D.M. and her mother had both tested positive for chlamydia. The Court of Criminal Appeals addressed this argument as follows:

“The appellant contends that Dr. Brown and Dr. Dean should not have been permitted to testify about the results of the tests performed by Alabama Reference Labs, for the following reasons: (1) The reports indicating the presence of chlamydia were not properly authenticated or admissible as business records; (2) the doctors were improperly allowed to base their opinions on facts not in evidence or within their personal knowledge; and (3) the State failed to lay a proper predicate for the admission of scientific test results by showing that the DNA analysis used by the lab was reliable and relevant.”

The Court of Criminal Appeals agreed that the laboratory test results had not been properly authenticated and that they therefore constituted inadmissible evidence, but it reasoned that the error in their admission could be classified as harmless:

“Although the results of the laboratory tests performed on D.M. and her mother should not have been admitted into evidence, their admission was not so prejudicial that it requires reversal in the present case. A judgment will not be reversed on the ground of improper admission of evidence unless, after an examination of the entire cause, it appears that the error has probably injuriously affected a party’s substantial rights. Rule 45, Ala. R.App. P. Here, the victim told her sister what had happened immediately after the incident and told her mother the following day. She repeated this information for a police officer, a child-abuse investigator, and the jury, and the essential elements of her statements remained consistent throughout the period of nearly four years. The testimony of the victim alone is sufficient to establish a prima facie case of sexual abuse. A.B.T. v. State, 620 So.2d 120 (Ala.Crim.App.1992). In addition, the victim’s minor sister testified that [Phillips] had had intercourse with her. The jury could infer from this testimony that Phillips had an unnatural sexual desire for young girls. See § 13A-6-60, Ala.Code 1975, which defines ‘sexual contact’ as a touching done ‘for the purpose of gratifying the sexual desire’ of either party.
“The only medical testimony that was erroneously admitted concerned the two laboratory test results. Dr. Brown properly testified that in July 2000, he tested the victim for sexually transmitted diseases and prescribed an antibiotic. He also stated, without objection, that another doctor later found that the victim’s chlamydia was cured. Dr. Dean properly testified that he suspected that the victim’s mother had chlamydia in March 2000 because of her symptoms of abdominal pain and vaginal discharge. The victim’s sister testified, without objection, that she suffered abdominal pain in August 2000, that she was prescribed an antibiotic, and that she was cured. In light of all the evidence properly offered by the State, the improper admission of the test results was unlikely to affect the jury’s decision.”

Thus, although the Court of Criminal Appeals determined that the results of the laboratory tests in question had been improperly admitted, it concluded that the admission of those results was not sufficiently prejudicial to warrant the reversal of Phillips’s conviction, i.e., that the erroneous admission of the test results was “harmless error” in light of the other evidence presented by the State supporting an inference of Phillips’s guilt. We agree with the Court of Criminal Appeals that the two laboratory tests relied upon by Dr. Brown and Dr. Dean lacked the appropriate predicates for admission into evidence so that the admission of their testimony regarding the results of those tests over Phillips’s objection was error. We disagree, however, with the conclusion of that court that the error in admitting that testimony was harmless.

In Hutcherson, supra, this Court stated:

“ ‘Harmless error’ is defined as ‘an error which is trivial or formal or merely academic and was not prejudicial to the substantial rights of the party assigning it and in no way affected the final outcome of the case.’ Black’s Law Dictionary 718 (6th ed.1990). In order to secure a reversal of a judgment, an appellant not only must show error, but also must demonstrate that the error resulted in a substantial injury. Rule 45, [Ala.]R.App.P. Overwhelming evidence of guilt does not render prejudicial error harmless under Rule 45. Ex parte Lowe, 514 So.2d 1049 (Ala.1987).”

677 So.2d at 1209.

The body of proof that convinced the jury of Phillips’s guilt beyond a reasonable doubt comprised these several, interlocking features:

1. D.M.’s trial testimony concerning Phillips’s alleged July 8, 2000, sexual assault.

2. D.M.’s report of the incident to her 13-year-old sister M.T. a very short time after the assault occurred.

3. D.M.’s acknowledgment of the incident to her mother a day later, following questioning by her mother precipitated by a remark made by M.T. to the mother.

4. The fact that D.M. subsequently repeated her description of the incident to a police officer and a child-abuse investigator.

5. The fact that M.T. testified that Phillips had had sex with her on six occasions “when she was 13-years old” (she was 13 years old at the time of the July 8, 2000, incident involving D.M.) and testified that in August 2000 she was treated at the county health department for pelvic pain, which was cured by the antibiotics then prescribed.

6. The fact that when D.M. was examined by Dr. Brown six days after the alleged assault she was infected with chlamydia, a sexually transmitted disease requiring some exchange or contact of bodily fluids for transmission. However, the only evidence establishing that D.M. was in fact then infected with chlamydia was Dr. Brown’s testimony, over objection, that the result of the “DNA probe test” performed by Alabama Reference Laboratories, Inc., on swabs he had obtained from D.M. and sent to that agency was reported back to him as being positive for the presence of chlamydia. The Court of Criminal Appeals concluded, and this Court now agrees, that the unauthenticated test result, and Dr. Brown’s testimony concerning it, constituted inadmissible evidence that should not have been allowed.

7. The fact that a sample for another DNA probe test, obtained from D.M.’s mother by Dr. Dean on March 4, 2000, and sent by him also to Alabama Reference Laboratories was likewise reported by that company to be positive for chlamydia. However, the Court of Criminal Appeals concluded, and this Court agrees, that Dr. Dean’s testimony concerning that unauthenticated laboratory test result was inadmissible and should not have been allowed. The significance of the fact that the mother had chlamydia in March 2000 was that she testified that Phillips was the only person with whom she was having sex during that time and that he did not use a condom.

As quoted above, the Court of Criminal Appeals concluded in its unpublished memorandum that “[t]he testimony of the victim alone is sufficient to establish a prima facie case of sexual abuse.” That is true, but as noted above, this Court has held that even “[o]verwhelming evidence of guilt does not render prejudicial error harmless under Rule 45[, Ala. R.App. P.]” Hutcherson, 677 So.2d at 1209; and Ex parte Lowe, 514 So.2d 1049, 1050 (Ala.1987). See, also, Ex parte Greathouse, 624 So.2d 208, 211 (Ala.1993) (acknowledging the possibility that prejudicial error could be harmless, however, when the evidence of the defendant’s guilt is “virtually ironclad”).

In Ex parte Casey, 889 So.2d 615, 621-22 (Ala.2004), this Court explained:

“ ‘[Bjefore the reviewing court can affirm a judgment based upon the “harmless error” rule, that court must find conclusively that the trial court’s error did not affect the outcome of the trial or otherwise prejudice a substantial right of the defendant.’ Ex parte Crymes, 630 So.2d 125, 126 (Ala.1993) (emphasis omitted).”

If the evidence concerning the chla-mydial infections of D.M. and her mother, summarized above in paragraphs 6 and 7, is eliminated, one can hardly characterize the remaining evidence of Phillips’s guilt as “ironclad”; it likewise does not reach the somewhat lower level of “overwhelming.” Subtracting that erroneously admitted evidence, we are left with D.M.’s testimony as to what occurred, circumstantially corroborated by the fact that she reported the incident to M.T. so soon after it occurred, acknowledged it to her mother the next day, and repeated her description of it to the police officer and the child-abuse investigator, and M.T.’s testimony that Phillips had had sex with her and that she had been treated with antibiotics for complaints of pelvic pain in August 2000, which pain was cured by the antibiotics.

The jury, having been informed by Dr. Brown that chlamydia was a sexually transmitted disease that required some exchange or contact of bodily fluids for transmission, would certainly attach significance to the fact that a nine-year-old girl was found to be infected with chlamydia six days after the alleged sexual assault. Likewise, the jury could hardly be expected not to be impressed by the fact, logically representing more than mere coincidence, that the girl’s mother had been found to be infected with the same sexually transmitted disease only four months before and that the infection supposedly could have come only from Phillips. Once the jury had before it the fact that nine-year-old D.M. was found to be infected with chlamydia six days after the alleged assault and the fact that her mother had been found to have the same sexually transmitted disease only a few months before, when Phillips was her only sexual partner, it would be hard for the jury not to conclude that Phillips was the carrier in both instances. The mother’s testimony establishing that he was the only one from whom she could have contracted her chlamydia would be highly corroborative of D.M.’s testimony to the effect that the person who transmitted the disease to D.M. was Phillips.

As noted, the Court of Criminal Appeals was of the opinion that “[i]n light of all the evidence properly offered by the State, the improper admission of the test results was unlikely to affect the jury’s decision.” In that regard, that court pointed out that Dr. Brown testified that he prescribed an antibiotic for D.M. and stated further during his testimony, without objection, that another doctor later found that D.M.’s chlamydia was cured. The record reflects that Dr. Brown testified that when he examined and took “swabs” from various parts of D.M.’s body for testing for chlamydia and gonorrhea, because she was brought to him with a complaint of “possible sexual abuse,” he did not then know if she might have chlamydia. He had examined her vagina and rectum because of the nature of her complaint and had found no evidence of “any tearing or ripping or cuts on her or within her” and no other “physical signs of abuse.” He read into evidence his official report of his examination of D.M.’s genital area:

“There are no abrasions, discolorations, bruises, petechia, or other lesions noted. She had no vaginal discharge. Her hymen is intact. The labial, vagina, and anus as well as all adjacent skin appear normal without noted lesions.”

He did determine that D.M. had an ear infection “later that month,” and he prescribed a “macro antibiotic” for treatment of it. The antibiotic would also be effective against a chlamydial infection. When the trial judge asked Dr. Brown, “Was [D.M.] cured of it? Did you see her back?” Dr. Brown answered, “Yes, Dr. Sester saw her subsequent to that and did another test that showed that it was cured.” This testimony was elicited only after Dr. Brown had already been allowed to testify that the DNA probe test results on the swabs taken from D.M. were positive for chlamydia and that a chlamydia infection was “sexually transmitted.” Thus, the court’s question about whether D.M. had been cured of the chlamydia was not objectional at that point but would have been had the only evidence establishing D.M.’s chlamydial infection, the laboratory test result, not already been admitted.

Likewise, the fact that Dr. Dean “properly testified” that he suspected, in advance of her laboratory test results, that D.M.’s mother had a chlamydial infection does not alter our analysis because that testimony would have been objectionable if the evidence of D.M.’s chlamydial infection had not already been put before the jury; as it was, Dr. Dean’s testimony in that regard was relevant. Similarly, evidence of M.T.’s pelvic pain and the prescription of antibiotics to treat it and the testimony that “she was cured” were relevant under the circumstances, but would not have been if there had not already been presented to the jury the evidence of D.M.’s chlamydial infection.

Thus, all of this “properly offered” evidence was proper only because there had first been established the fact of D.M.’s chlamydial infection, which had been established only by Dr. Brown’s improperly admitted testimony concerning the laboratory test result.

If the jury had been provided with the evidence discussed above except for the evidence relating to the chlamydial infections of D.M. and her mother and had convicted Phillips on the basis of that properly admitted remainder of evidence, would that verdict stand on appeal if challenged on the basis of insufficiency of the evidence to establish guilt beyond a reason doubt? Probably. All the jury really would have to do would be to believe D.M.’s testimony rather than Phillips’s, particularly in light of the bolstering testimony of her sister that Phillips had had sexual intercourse with her during the same general time frame. Nonetheless, as discussed, that reduced quantum of evidence would not constitute “virtually ironclad” evidence of Phillips’s guilt, and even overwhelming evidence of guilt does not render prejudicial error harmless under Rule 45, Ala. R.App. P.

Had the evidence of the chlamydial infections been excluded, the jury would have been provided essentially with the opposing versions of D.M. and Phillips, and if it had found his version to be more credible, or even if it found itself unable in the final analysis to determine who was telling the truth, it might have found itself unable to agree that Phillips was guilty beyond a reasonable doubt; it then could have returned a verdict of not guilty or perhaps have been deadlocked, necessitating a mistrial. Accordingly, we cannot ignore the probable effect on the jury of the inadmissible evidence of the chlamydial infections of both D.M. and her mother. We are therefore constrained to reverse the judgment of the Court of Criminal Appeals on that point and remand this case to it for further proceedings consistent with this opinion.

REVERSED AND REMANDED.

NABERS, C.J., and LYONS and WOODALL, JJ., concur.

SEE, J., concurs specially.

STUART, SMITH, BOLIN, and PARKER, JJ., dissent.

SEE, Justice

(concurring specially).

I concur fully in the main opinion; I write only to clarify my understanding of the appropriate standard of review.

In Chapman v. California, 386 U.S. 18, 87 S.Ct. 824, 17 L.Ed.2d 705 (1967), the Supreme Court of the United States held that a lower court’s violation of certain of a defendant’s constitutional rights could be deemed harmless and therefore not require reversal of a conviction. In Ex parte Greathouse, 624 So.2d 208, 210 (Ala.1993), this Court explained:

“In [United States v. Hasting, 461 U.S. 499, 509 (1983)], the Court observed that, ‘[s]ince Chapman, the Court has consistently made clear that it is the duty of a reviewing court to consider the trial record as a whole and to ignore errors that are harmless, including most constitutional violations,’ id. (citations omitted), and stated that the proper question for a reviewing court to ask is: ‘[A]bsent the prosecutor’s allusion to the failure of the defense to proffer evidence to rebut the testimony of the victims, is it clear beyond a reasonable doubt that the jury would have returned a verdict of guilty?’ ...
“Our harmless error rule provides in pertinent part:
“ ‘No judgment may be reversed or set aside on the ground of misdirection of the jury ... unless in the opinion of the court to which the appeal is taken or application is made, after an examination of the entire cause, it should appear that the error complained of has probably injuriously affected substantial rights of the parties.’
“Rule 45, Ala.R.App.P.”

Thus, in Greathouse this Court identified both a beyond-a-reasonable-doubt standard of review and a probably-affected-substantial-rights standard of review, without explaining the relationship between the two. Similarly, in Ex parte Hutcherson, 677 So.2d 1205 (Ala.1996), this Court again stated both standards.

I understand Rule 45 to set out the “harmless error” standard of review. We do not reverse or set aside a judgment, even where there was error below, if the error was harmless, that is, if it did not “injuriously affect[] substantial rights of the parties.” Rule 45, Ala.R.App.P. In determining whether an error had such an injurious effect on a substantial right of a criminal defendant, the standard we must satisfy is whether it is “clear beyond a reasonable doubt that the jury would have returned a verdict of guilty” even had the error not occurred. Greathouse, 624 So.2d at 210.

For the reasons stated in the main opinion, I do not believe that it is “clear beyond a reasonable doubt that the jury would have returned a verdict of guilty” absent the improperly introduced evidence.

STUART, Justice

(dissenting).

I respectfully dissent from the majority’s conclusion that the improper admission of the test results indicating that the victim and her mother were infected with chlamydia was not harmless. Under the facts of this case, I do not believe that the improper admission of the test results resulted in substantial injury to Phillips’s rights.

In Ex parte Hutcherson, 677 So.2d 1205, 1209 (Ala.1996), this Court held that the improper admission of “both ‘DNA matching’ evidence and DNA population frequency statistics” created a prejudicial error that did result in substantial injury. In Hutcherson, this Court recognized that the admission of the DNA test results and the testimony of the forensic scientist presented scientific testimony establishing that “the semen found in the victim’s rectum ‘matched’ [the defendant’s],” 677 So.2d at 1209, and, consequently, that this improperly admitted scientific evidence, which identified the defendant as the victim’s attacker, contributed to the defendant’s conviction and was not harmless.

Here, I conclude that the improper admission of the test results, which were based on a DNA probe, was harmless error. Unlike the DNA test results in Hutcherson, which resulted in the admission of evidence that the defendant’s DNA matched the DNA in the semen found in the victim’s body, the DNA test results in this case established only that both the victim and the victim’s mother were infected with a sexually transmitted disease. The improperly admitted scientific evidence did not identify Phillips as the source of the infection in either the victim’s mother or the victim. I recognize that the victim’s mother testified that Phillips was the only possible source of her infection. However, in my opinion the mother’s testimony and the test results in this case, unlike the testimony and evidence in Hutcherson, which with a degree of scientific certainty identified the defendant as the offender, do not establish prejudice that resulted in substantial injury to Phillips. I have reviewed the evidence in this case, and I conclude, as did the Court of Criminal Appeals, that the improper admission of the test results was harmless beyond a reasonable doubt.

SMITH, BOLIN, and PARKER, JJ., concur.


author: McMILLAN, Presiding Judge.

text:
    Lernard PHILLIPS v. STATE.
    CR-03-1352.
    Court of Criminal Appeals of Alabama.
    Dec. 20, 2006.
    David K. Hogg, Dothan, for appellant.
    Troy King, atty. gen., and John M. Porter, asst. atty. gen., for appellee.
   On Remand from the Alabama Supreme Court

McMILLAN, Presiding Judge.

In accordance with the judgment of the Alabama Supreme Court in Ex parte Phillips, 962 So.2d 159 (Ala.2006), the judgment of the trial court is hereby reversed, and the cause is remanded for further proceedings in compliance with the opinion of the Alabama Supreme Court.

REVERSED AND REMANDED.

COBB, BASCHAB, SHAW, and WISE, JJ., concur.


author: BOLIN, Justice.

text:
    Michael WEINRIB, M.D., and Gastroenterology Consultants, P.C. v. Frances J. DUNCAN.
    1050261.
    Supreme Court of Alabama.
    Jan. 12, 2007.

      L. Peyton Chapman III and Bethany L. Bolger of Rushton, Stakely, Johnston & Garrett, P.A., Montgomery, for appellants.
   BOLIN, Justice.

Michael Weinrib, M.D., and Gastroen-terology Consultants, P.C. (hereinafter collectively referred to as “Weinrib”), appeal, pursuant to Rule 5, Ala. R.App. P., from the trial court’s interlocutory order reinstating in the Montgomery Circuit Court a malpractice action against Weinrib, which Weinrib claims is barred by the statute of limitations. The trial court certified the following controlling question of law: “Is the reinstatement of this action barred by the statute of limitations?” We determine that it is, and we reverse and remand.

Factual Background and Procedural History

On February 18, 1999, Frances J. Duncan, who is disabled due to a stroke, was injured while attempting to climb down from an examination table in Dr. Weinrib’s office. On February 16, 2001, Duncan sued Weinrib in the Montgomery Circuit Court alleging certain claims under the Alabama Medical Liability Act (“AMLA”). Weinrib filed a motion for a summary judgment on the ground that Duncan had failed to present expert testimony in support of her medical-malpractice claims. On June 10, 2003, Duncan amended her complaint to assert violations of the Americans with Disabilities Act, 42 U.S.C. § 12182 et seq. (“ADA”), and on July 10, 2003, Weinrib filed a notice removing the case to the federal district court, pursuant to 28 U.S.C. §§ 1441 and 1446.

On September 1, 2004, the federal court entered a summary judgment in favor of Weinrib on Duncan’s claims brought under the ADA. The federal court elected not to exercise supplemental jurisdiction over the AMLA claims; it dismissed those claims without prejudice pursuant to 28 U.S.C. § 1367(c), providing that Duncan could refile those claims in a state court pursuant to 28 U.S.C. § 1367(d), because the limitations period for filing the claims was tolled during the pendency of the ADA claims in the federal court.

On August 30, 2005, approximately one year after the entry of the order in the federal court, Duncan filed- in the Montgomery Circuit Court a “motion to reinstate action.” Weinrib responded and opposed the motion, arguing that the statute of limitations barred reinstatement because Duncan did not refile her action in the state court within 30 days after the entry of the federal court’s order, as required by 28 U.S.C. § 1367(d). Duncan filed no response to Weinrib’s opposition.

On November 9, 2005, the trial court entered an order granting Duncan’s motion to reinstate the action, holding “that the original filing of this action in this Court, and [Weinrib’s] filing of an Answer, prior to the removal to federal court and the dismissal of the state law claims without prejudice by the federal court, protects the action from being barred by the applicable Statute of Limitations.” As previously noted, this Court granted permission to appeal under Rule 5, Ala. R.App. P., to answer the question whether the reinstatement of the action in the state court was barred by the statute of limitations.

Discussion

On appeal, Weinrib argues that Duncan is in clear violation of the two-year statute of limitations in Ala.Code 1975, § 6-5-482, and that the statutory tolling provision of 28 U.S.C. § 1367(d) provides for the tolling of the limitations period for only 30 days after the federal district court enters its order of dismissal.

As previously noted, Duncan’s injury occurred on February 18, 1999. Pursuant to § 6-5-482, Ala.Code 1975, Duncan’s AMLA claims were timely filed on February 16, 2001. After Duncan amended her complaint to assert additional claims under the ADA, the entire case was removed to the federal court pursuant to 28 U.S.C. §§ 1441 and 1446. Once removal was effectuated, the state trial court was divested of jurisdiction over the underlying case and could not, in the absence of an order of remand, take any further action regarding the case. The federal removal statute is explicit on this point. See 28 U.S.C. § 1446(d) (stating that after removal is effectuated, the “State court shall proceed no further unless and until the case is remanded”). The federal district court in this case did not remand the state-law claims to the state court from which they had been removed. Nor was it obliged to do so. See Williams ex rel. Williams v. City of Beverly Hills, (Ms. No. 4:04-CV-631, May 17, 2006) (E.D.Mo.2006) (not reported in F.Supp.2d) (“When a court declines to exercise supplemental jurisdiction over state law claims in a case that has been removed from state court, the court has two options: the claims may either be dismissed without prejudice or the case may be remanded to the state court from which it was removed. See Carnegie-Mellon University v. Cohill, 484 U.S. 343, 351 (1988); Moses v. Banco Mortgage Co., 778 F.2d 267, 274 (5th Cir.1985).”).

Once the federal court disposed of the ADA claims, it declined to exercise supplemental jurisdiction over the state AMLA claims, dismissing them without prejudice, citing 28 U.S.C. § 1367(c)(3). The federal district court’s order specifically stated that this “dismissal should not work to Duncan’s disadvantage should she elect to bring suit in state court because the period of limitations for any of these claims is tolled during the pendency of this action. See 28 U.S.C. § 1367(d).”

Section 1367(d), 28 U.S.C., specifically states:

“The period of limitations for any claim asserted under subsection (a), and for any other claim in the same action that is voluntarily dismissed at the same time as or after the dismissal of the claim under subsection (a), shall be tolled while the claim is pending and for a period of 30 days after it is dismissed unless State law provides for a longer tolling period.”

(Emphasis added.)

Conclusion

The federal district court’s order dated September 1, 2004, afforded Duncan the opportunity to refile her case in the state court by tolling the applicable statute of limitations set forth in § 6-5^182 for a period ending 30 days after the entry of the order. Specifically, Duncan had until October 1, 2004, to refile her action. See Roden v. Wright, 611 So.2d 333 (Ala.1992)(refiled action conformed with 28 U.S.C. § 1367(d), where the plaintiff refiled his claims within 17 days after the federal court’s dismissal of the plaintiffs state-law claims without prejudice). Because Duncan did not refile her action in the state court within the time frame afforded by federal law and Alabama law does not provide for a longer tolling period, her subsequent attempt on August 30, 2005, to have the action reinstated is time-barred, and the trial court’s order reinstating her case is contrary to the applicable statute of limitations. Consequently, the order of the trial court reinstating the case is reversed. The case is remanded for the trial court to vacate its order and to dismiss Duncan’s action.

REVERSED AND REMANDED WITH INSTRUCTIONS.

NABERS, C.J., and SEE, HARWOOD, and STUART, JJ., concur.


author: SMITH, Justice.

text:
    Terry SUMMERLIN v. Sharon SUMMERLIN.
    1051470.
    Supreme Court of Alabama.
    Jan. 12, 2007.
    Kenneth A. Nixon, William E. Shreve, Jr., and Shane E. Taylor of Lyons, Pipes & Cook, P.C., Mobile, for appellant.

      W. Gregory Hughes, Mobile, for appel-lee.
   SMITH, Justice.

Terry Summerlin appeals from a partial summary judgment entered in favor of Sharon Summerlin by the Mobile Circuit Court. We set aside the trial court’s certification of the summary judgment as final under Rule 54(b), Ala. R. Civ. P., and remand.

Facts and Procedural History

On July 23, 2005, Thomas R. Summerlin, 38, and his 7-year-old stepson, Noah C. Butler, were on the beach in Gulf Shores when they were struck by lightning and killed. Thomas was buried in a plot owned by his father, Terry Summerlin, at Serenity Memorial Gardens Cemetery; Noah was buried in a plot owned by Sharon Summerlin, Noah’s mother and Thomas’s widow, at Mobile Memorial Gardens.

On September 28, 2005, Sharon informed a representative of Serenity Memorial that she wanted to have Thomas’s remains disinterred and reinterred at Mobile Memorial Gardens. The representative stated that Serenity Memorial would not permit the disinterment without a court order requiring Serenity Memorial to comply with Sharon’s request.

Sharon then filed in the Mobile Circuit Court a “petition for injunctive relief,” naming as defendants SLG Group, Inc., d/b/a Serenity Memorial Gardens, and Terry Summerlin. Sharon alleged that Terry had “unduly pressured” her into agreeing to bury Thomas at Serenity Memorial rather than at Mobile Memorial. Sharon’s petition requested the court to

“issue all such orders necessary to require [Serenity Memorial] to allow the disinterment of the remains of Thomas R. Summerlin from Serenity Memorial Gardens; [to] issue all necessary orders allowing the remains of Thomas R. Sum-merlin to be reinterred at Mobile Memorial Gardens; and ... [to order] such other, further, and different relief [that the plaintiffs] may be entitled to receive.”

Terry filed an answer to the petition. Among other things, Terry denied having “unduly pressured” Sharon into agreeing to Thomas’s burial at Serenity Memorial, and Terry requested that the court deny Sharon’s petition to disinter Thomas’s remains.

On March 13, 2006, Sharon moved for a summary judgment. Sharon contended that she had initially planned to bury Thomas at Mobile Memorial Gardens but that “she was then persuaded by [Terry] to have [Thomas] buried at Serenity [Memorial].” Sharon asserted that Terry “used economic duress by demanding [that Thomas] be buried in Serenity Memorial Gardens at [Terry’s] expense,” and that she “reluctantly ... acquiesced to [Terry’s] demand.”

On April 5, 2006, Terry filed a breach-of-contract counterclaim against Sharon. Terry contended that after Thomas’s death Sharon told him “she did not know how she was going to pay for [Thomas’s] funeral and burial expenses.” Terry alleged that he and Sharon then “entered into a verbal contract in which [Terry] agreed to pay for [Thomas’s] burial” in exchange for Sharon’s agreement to have Thomas “interred at Serenity Memorial Gardens.” Terry’s counterclaim asserts, and Sharon does not dispute, that Sharon and Terry-signed a card entitled “Interment Record,” which authorized Thomas’s burial in Serenity Memorial Gardens.

Terry’s counterclaim also alleges that a few days after Thomas’s funeral, when Sharon mentioned to Terry that she wanted to move Thomas’s remains from Serenity Memorial to Mobile Memorial, Terry and Sharon entered into a second contract. The terms of that contract, Terry contends, “were that, in consideration for allowing [Sharon] to retain a truck and furniture [for] which [Thomas] owed [Terry] at least $5,700, [Sharon agreed] to leave [Thomas’s] remains undisturbed.” Terry claimed Sharon had breached that agreement by filing the present action seeking to disinter Thomas’s remains. Sharon later filed an answer to Terry’s breach-of-contract counterclaim.

On the same date he filed his counterclaim, Terry also filed materials in opposition to Sharon’s summary-judgment motion. Among other things, Terry included an affidavit from James Baldwin, the manager of the funeral home at Serenity Memorial. In his affidavit, Baldwin asserts that he witnessed Sharon’s agreement to bury Thomas at Serenity Memorial; that he witnessed her signing of an “interment card” authorizing Thomas’s burial at Serenity Memorial; and that he witnessed her agreement that Terry would pay Thomas’s funeral expenses. Baldwin also stated in his affidavit that “[a]t no time did [he] witness [Sharon’s] being pressured or coerced into agreeing to permit [Thomas] to be buried at Serenity Memorial.”

On June 26, 2006, the trial court entered the following written order:

“On the 28th day of April, 2006, [the attorneys for Sharon and Terry] in open court submitted oral argument and written caselaw concerning the issues of relief prayed for by [Sharon]. After careful consideration it is hereby ORDERED, ADJUDGED and DECREED that a final judgment in favor of [Sharon] for the relief requested in [her] motion for a summary judgment is hereby granted. Said order is hereby made final under [Rule 54(b), Ala. R. Civ. P.]. It is further ORDERED, ADJUDGED and DECREED that [Sharon] may disinter the remains of [Thomas] from Serenity Memorial Gardens and reinter the remains in Mobile Memorial Gardens.
“It is further ORDERED, ADJUDGED and DECREED that the defendant, SLG Group, Inc., shall comply with the request of [Sharon] to disinter the remains of [Thomas] from Serenity Memorial Gardens and reinter the remains in Mobile Memorial Gardens.”

Terry filed a timely notice of appeal to this Court.

Discussion

Terry contends that the summary judgment in favor of Sharon was inappropriate. He argues that there is a genuine issue of material fact because, he says, there is substantial evidence indicating that Sharon consented, without coercion or duress, to Thomas’s interment at Serenity Memorial. Conversely, Sharon argues that her consent to Thomas’s burial at Serenity Memorial was the result of coercion by Terry or duress. Moreover, she asserts that her consent to Thomas’s interment at Serenity Memorial is irrelevant because, she says, as the suryiving spouse she has the exclusive right to decide whether Thomas’s remains should be disinterred from Serenity Memorial and rein-terred at Mobile Memorial Gardens.

However, there is a fundamental issue in this appeal not addressed by the parties— namely, the appropriateness of the trial court’s certification, under Rule 54(b), Ala. R. Civ. P., of its June 26, 2006, order entering a summary judgment in favor of Sharon.

Rule 54(b) states, in pertinent part:

“When more than one claim for relief is presented in an action, whether as a claim, counterclaim, cross-claim, or third-party claim, or when multiple parties are involved, the court may direct the entry of a final judgment as to one or more but fewer than all of the claims or parties only upon an express determination that there is no just reason for delay and upon an express direction for the entry of judgment.”

This Court, in Branch v. SouthTrust Bank of Dothan, N.A., 514 So.2d 1373 (Ala.1987), noted:

“Rule 54(b), A.R. Civ. P., provides a means of making final ‘an order which does not adjudicate the entire case but as to which there is no just reason for delay in the attachment of finality.’ Foster v. Greer & Sons, Inc., 446 So.2d 605, 609 (Ala.1984). ‘Rule 54(b) certifications should be granted only in exceptional cases and “should not be entered routinely or as a courtesy or accommodation to counsel.” Page v. Preisser, 585 F.2d 336, 339 (8th Cir.1978).’ Foster, 446 So.2d at 610.
“Rule 54(b) is properly applied in a situation where the claim and the counterclaim present more than one claim for relief, either of which could have been separately enforced. Cates v. Bush, 293 Ala. 535, 307 So.2d 6 (1975). Under ‘appropriate facts,’ a partial summary judgment on an original claim may be finally adjudicated pursuant to Rule 54(b), leaving a counterclaim undecided so that the parties can further litigate the issues presented by the counterclaim.”

514 So.2d at 1374.

In Branch, the trial court certified as a final judgment, under Rule 54(b), its summary judgment in favor of SouthTrust Bank on its claim that Branch had defaulted on a promissory note. 514 So.2d at 1373. However, at the time of the Rule 54(b) certification, the trial court had not ruled on Branch’s counterclaim, which was “based upon an alleged fraudulent representation by an agent of SouthTrust upon which Branch claim[ed] he relied in executing the promissory note.” 514 So.2d at 1374. This Court set aside the Rule 54(b) certification and remanded the case to the trial court, noting that because the issues in SouthTrust’s claim and Branch’s counterclaim were “so closely intertwined that separate adjudication would pose an unreasonable risk of inconsistent results,” it would not be “in the interest of justice” to adjudicate the claims separately. 514 So.2d at 1374.

In this case, the trial court purported to enter a summary judgment as to Sharon’s entire claim — namely, her petition for in-junctive relief. In form, Sharon’s “claim” appears to be separate and distinct from Terry’s breach-of-contract counterclaim. If one looks beyond form, however, Terry’s breach-of-contract counterclaim is, in substance, a defense to Sharon’s petition for injunctive relief.

For Sharon to be entitled to an injunction requiring Serenity Memorial to permit her to have Thomas’s remains disinterred, she must show that she has a clear, specific, legal right to disinter Thomas’s remains. See Gulf House Ass’n, Inc. v. Town of Gulf Shores, 484 So.2d 1061, 1064 (Ala.1985) (“A permanent injunction will be granted when there exists a clear, specific, legal right requiring protection and the injunction is necessary to prevent irreparable injury and there is no adequate remedy at law.”). The essence of Terry’s breach-of-contract counterclaim — as well as his arguments and materials in opposition to Sharon’s summary-judgment motion — is that Sharon does not have “a clear, specific, legal right” to the injunctive relief she is seeking. Although the trial court’s June 26 order purports to rule only on the claim presented in Sharon’s petition and not on Terry’s counterclaim, the trial court’s summary judgment granting Sharon the relief she requested in her petition amounts to a denial of the relief Terry seeks to obtain by pursuing his counterclaim.

In short, the issues presented in Terry’s counterclaim and those in Sharon’s petition for injunctive relief “are so closely intertwined that separate adjudication would pose an unreasonable risk of inconsistent results.” Branch, 514 So.2d at 1374. “We must conclude, therefore, that in the interest of justice, the claims should not be adjudicated separately.” 514 So.2d at 1374. Consequently, the trial court erred in certifying its summary judgment in favor of Sharon as final under Rule 54(b), Ala. R. Civ. P. Branch, 514 So.2d at 1374. Cf. Automatic Liquid Packaging, Inc. v. Dominik, 852 F.2d 1036, 1038 (7th Cir.1988) (describing a claim presented in the plaintiffs complaint and one presented in the defendant’s counterclaim as “the same claim, expressing the parties’ opposed interpretations of [the agreement at issue], though configured as a plaintiffs claim in the complaint and as a defense masquerading as a positive claim for relief in the counterclaim”).

Conclusion

The trial court’s certification of finality under Rule 54(b), Ala. R. Civ. P., is set aside, and the case is remanded to the trial court.

CERTIFICATION SET ASIDE; REMANDED.

NABERS, C.J., and LYONS, WOODALL, and PARKER, JJ., concur.

      . Neither SLG Group nor Serenity Memorial is a party to this' appeal.

      . Thomas and Sharon’s daughter was also named as a plaintiff to the action. As a minor, the daughter sued by and through her mother, Sharon.